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 ‘speed-up’ legislation.46 Article 68 TFEU, which explicitly mentions the strategic programming 37 Similarly, Funke, Primärrechtliche Grundlagen, para 22; see, however, Kosińska/Mikołajczyk, ‘Does the Right to Migration Security Already Exist?’, EJML 21 (2019), p. 83, 106–109; Herlin-Karnell, The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification (Hart, 2019); and McCormack-George, ‘Equal Treatment of Third Country Nationals in the European Union: Why Not?’, EJML 21 (2019), p. 53, 65. 38 See the European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere; on the basis of the initial ‘Vienna Action Plan’ (OJ 1999 C 19/1). 39 The Hague Programme Strengthening Freedom, Security and Justice in the European Union (OJ 2005 C 53/1). 40 The Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizens (OJ 2010 C 115/1). 41 European Council, Conclusions of the Meeting on 26/27 June 2014 in Ypres, doc. EUCO 79/14, paras 1–13. 42 See Council doc. 13440/08 of 24 September 2008, which was spearheaded by France, Germany and the United Kingdom and reinvigorated the European debate. It was criticised for its focus on the perspective of interior ministers; cf. O’Dowd, ‘Mutual Recognition in European Immigration Policy’, in: Goudappel/Raulus (eds), The Future of Asylum in the European Union (Springer, 2011), p. 73, 77–78. 43 Commission Communication, COM(2015) 240 of 14 May 2015, which, as a Commission, had not officially been coordinated with the Council or the European Parliament. 44 See Commission Communication, COM(2020) 609 and the accompanying legislative proposals, which, similarly, did not necessarily reflect the Council’s or the Parliament’s view. 45 By way of example, see Monar, The Area of Freedom, p. 556–561. 46 See, e.g., the Seville European Council of 21/22 June 2002, Presidency Conclusions, Council doc. 13463/02 of 24 October 2002, para 37; see also Papagianni, Institutional and Policy Dynamics, p. 215–220.

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function, serves as a reminder of the initial significance of the European Council in the early 2000s.47 8a It remains uncertain whereas the European Council stands ready to continue the political programming or whether the – comparatively meagre – Ypres conclusions effectively marked the endpoint. The five-year cycle was not taken up in 2019, unless one counts the ‘New Strategic Agenda 2019–2024’48 as a replacement, even though it covered diverse policy areas, not only justice and home affairs, and dealt with entry control, immigration and asylum on half a page only. Legally, it can be maintained that these abstract guidelines are sufficient.49 It could even be argued that the ‘strategic guidelines’ need not be enshrined in a single document, but can be issued on a case-by-case basis whenever questions require the attention of heads of state or government.50 Apparently, the Council discussed more detailed draft strategic guidelines during March 2020, but failed to reach an agreement due to the opposition of two Member States.51 It is plausible that parallel debates within the Commission about the ‘New Pact on Migration and Asylum’ complicated an agreement among the Member States, since doing might have required the Council to deal with highly sensitive questions like refugee relocation. 8b Throughout the years, the focus of attention shifted in response to wider political and social developments in Europe and beyond. Such change of direction need not present itself as a disadvantage, since it is the purpose of strategic guidelines to ‘define the general political directions and priorities’52, which can evolve over time.53 While the initial Tampere Programme was full of youthful enthusiasm mirroring the optimism of the period after the end of the Cold War,54 The Hague Programme was dominated by the fight against terrorism and the Stockholm Programme made a deliberate effort, after heated political debates,55 to occupy a middle ground between security and control imperatives and human rights concerns in light of the new provisions of the Treaty of Lisbon.56 By contrast, the Ypres Guidelines were noticeably shorter and comprised only a few paragraphs with little substantive guidance,57 while the Strategic Agenda 2019–2024 covers diverse policy areas and deals with entry control, immigration and asylum on half a page.58 47 Like the other Treaty provisions on the area of freedom, security and justice, Article 68 TFEU was drafted in the early 2000s in the run-up to the erstwhile Constitutional Treaty (see above MN 4). 48 European Council, A New Strategic Agenda 2019–2024, Annex to doc. EUCO 9/19 of 20 June 2019, p. 7. 49 Note that Article 68 TFEU specifies neither the degree of detail nor the five-year time-cycle. 50 Note that the drafting history with its orientation at the historic model of the Tampere Conclusions argues against such an interpretation. 51 See the outcome of the 3756th Council Meeting, Council doc. 6582/20 of 13 March 2020, p. 3. 52 Article 15(1) TEU defining the general function of the European Council. 53 By contrast, Treaty rules on monetary union and the single market have been criticised for enshrining policy preferences in primary law, thereby frustrating calls for a political change of direction; see Scharpf, ‘The European Social Model’, JCMS 40 (2002), p. 645–670; and Grimm, ‘The Democratic Costs of Constitutionalisation. The European Case’, ELJ 21 (2015), p. 460–473. 54 For a generic statement, see Francis Fukuyama, The End of History and the Last Man (Free Press, 1992). 55 See Carrera, ‘The Impact of the Treaty of Lisbon over EU Policies on Migration, Asylum and Borders’, in: Guild/Minderhoud (eds), The First Decade, p. 229, 239–243. 56 For an overview, see Murphy/Acosta Arcarazo, ‘Rethinking Europe’s Freedom, Security and Justice’, in: ibid., EU Security, p. 1, 4–9; Kostakopoulou/Acosta Arcarazo/Munk, ‘EU Migration Law. The Opportunities and Challenges Ahead’, in: Acosta Arcarazo/Murphy, EU Security, p. 129, 133 report that the Council replaced the term ‘fairness’ with ‘well-managed’ in the preparation of the Stockholm Programme (see below MN 8). 57 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. 58 See, again, European Council, A New Strategic Agenda 2019–2024, Annex to doc. EUCO 9/19 of 20 June 2019, p. 7.

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Chp. 1 The political programmes have lost their practical impact. Of course, controversial topics, such as the reform of the rules on asylum jurisdiction, may still be taken up at the highest political level, irrespective of whether they are addressed in medium-term 5 year programmes. From a legal perspective, the guidelines are political in the sense that institutions are 9 free to deviate from the contents in the legislative procedure; it would distort the institutional balance if the strategic guidelines under Article 68 TFEU prevented the Commission, the European Parliament and the Council from finding a different solution in the ordinary legislative procedure.59 An example is the drafting history of the Long-Term Residents Directive, which departed from the political guidance by the European Council in Tampere when it laid down rules that were considerably stricter than the free movement of EU citizens.60 Doctrinally, the political programmes are political in nature and do not commit the other institutions legally, they are, therefore, less relevant than the Treaty objectives introduced by the Treaty of Lisbon, which are binding as a matter of principle, even though the EU institutions have much discretion in deciding how to implement them (see above MN 7). The limited legal weight of the political programmes does not detract from their political significance, if heads of state or government help overcoming political stalemate (see above MN 8). Moreover, earlier programmes cannot be relied upon any longer after the expiration of the period for which they had been adopted. They may serve, however, as a contextual element elucidating the telos and the drafting history of legal instruments adopted at the time (see Thym, Long-Term Residents Directive 2003/109/EC, Article 1 MN 8–11). The loss of significance over demonstrates that the area of freedom, security and justice has reached a state of maturity. Change remains possible, but the various legislative instruments, which are commented upon in this volume, are now at the centre of attention. Abstract political programming has lost its relevance.

II. Overarching Principles 1. Interpretation of EU Legislation Immigration and asylum regulations and directives are interpreted in light of the 10 same principles that apply in other areas of EU law. These methods of statutory interpretation are well known in continental civil law jurisdictions, while experts socialised in common law countries are not always accustomed to them.61 They are described by the ECJ in general terms: ‘In accordance with the settled case-law of the Court, in interpreting a provision of EU law it is necessary to consider its wording, its origin, its context and the objectives pursued by the legislation of which it forms part.’62 Experts with a background in international law should recognise that the ECJ has emphasised for decades that the supranational legal order created a legal system and is not subject, therefore, to the interpretative principles of public international law.63 Closer inspection of ECJ practice demonstrates an emphasis on statutory interpretation 59 Similarly, see Müller-Graff, ‘Article 68 TFEU’, in: Pechstein/Nowak/Häde (eds), Frankfurter Kommentar (Mohr Siebeck, 2017), para 4. 60 See Thym, Long-Term Residents Directive 2003/109/EC, Article 1 MN 9, 11. 61 On the civil law background, see van Gestel/Micklitz, ‘Why Methods Matter in European Legal Scholarship’, ELJ 20 (2014), p. 292–316. 62 ECJ, Hassan, C-647/16, EU:C:2018:368, para 40. 63 Cf. ECJ, Costa v. 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

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with many judgments elaborating on the wording or general scheme of secondary legislation over dozens of paragraphs,64 while the earlier tendency for dynamic interpretation, which had defined the ECJ case law on primary law, has a lesser weight in migratory matters.65 Nevertheless, the emphasis on statutory interpretation must be combined with mandatory respect for constitutional requirements, such as human rights or international law (see below MN 46–59) as well as the unwritten general principles of Union law (see below MN 21–27). When interpreting secondary legislation, the institutional practice of the ECJ supports cross-fertilisation between different areas of Union law: there are no specialised chambers dealing with immigration or asylum; judges may decide cases on asylum procedures, tax policy, environmental regulation or consumer protection during the same week.66 The different chapters of this Commentary explore the interpretation of EU immigration and asylum instruments on the basis of the above-mentioned principles, including in situations where there is currently no ECJ case law on a specific question. 11 Dual indeterminacy of the supranational legal order and the political process complicates the 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 constructed.67 Experts with a background in domestic legal systems mirroring the rich German or Italian tradition will find the ECJ’s approach a rough imitation of complex doctrinal arguments developing theoretically embedded legal concepts beyond a simple resolution of individual cases.68 By contrast, observers with a background in common law may be perplexed by the sincerity of the interpretative exercise. It is not only the ECJ practice which complicates the interpretative exercise. Debates in the Council and between the EU institutions tend to follow the tradition of diplomatic negotiations resulting in open compromise formulae instead of clear guidance.69 Poor drafting and lack of coordination between working parties can further entail that EU immigration and asylum legislation occasionally employs similar terminology and concepts, albeit with separate meanings in different legislative acts.70 In Mengesteab, for instance, the ECJ had to decide whether the initial asylum request with the border police or the official application with migration authorities defined time-limits under the Dublin system. After careful inspection of various methods of interpretation, including preparatory acts, the Court did not hide its apparent frustration when it concluded that the material ‘does not appear to be conclusive.’71 of Treaties; but see de Witte, ‘Retour à “ Costa ” – La primauté de droit communautaire à la lumière du droit international’, Revue trimestrielle de droit européen 20 (1984), p. 425–454. 64 See Thym, Bird’s Eye View, p. 183–184. 65 See Thym, “Administrative Mindset” and “Constitutional Imagination”, p. 148–157. 66 See Thym, Bird’s Eye View, p. 168–169, 175; and Groenendijk, Recent Developments, p. 329. 67 On the relative doctrinal weakness of EU law, see Poiares Maduro, ‘Interpreting European Law’, Eur. J. Legal Stud. 2 (2007), Issue 2, p. 1, 9–10; and von Danwitz, ‘Funktionsbedingungen der Rechtsprechung des Europäischen Gerichtshofs’, Europarecht (2008), p. 769, 780–782. 68 See Itzcovich, ‘The Interpretation of Community Law by the European Court of Justice’, GLJ 10 (2009), p. 537–561; and Bomhoff, ‘Perfectionism in EU Law’, The Cambridge Yearbook of European Legal Studies 12 (2014), p. 75–100. 69 See Sharpston, ‘Transparency and Clear Legal Language in the European Union’, The Cambridge Yearbook of European Legal Studies 12 (2009–2010), p. 409, 411–412. 70 See Hecker, ‘Zur Europäisierung des Ausländerrechts’, Zeitschrift für Ausländerrecht (2011), p. 46, 48–49. 71 ECJ, Mengesteab, C-670/16, EU:C:2017:587, para 100; and Thym, ‘Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction’, CML Rev. 55 (2018), p. 549, 558–560.

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Chp. 1 While the Court of Justice has acquired a certain celebrity for dynamic interpretation, 12 it should be noted that the most notorious examples of dynamic interpretation concerned essential components of the integration project, such as the primacy of Union law over domestic law, the realisation of the single market or the promotion of Union citizenship. By contrast, immigration and asylum law does not necessarily benefit from a similar constitutional predominance, since Treaty rules on the area of freedom, security and justice embrace diverse and occasionally conflicting objectives (see above MN 6–7a). It is convincing, therefore, that the ECJ exhibits more sensitivity towards the choices of the EU legislature in areas where the Treaties award the EU institutions greater leeway. In the case law on regulations and directives on migration, the majority of judgments is based on the wording, general scheme, objectives or other interpretative principles mentioned above – a tendency I described as the ‘administrative mindset’ of judges in Luxembourg.72 The Court’s approach towards secondary legislation is, from a methodological perspective, more conservative than towards Treaty law, even though statutory interpretation need not result in pro-state outcomes.73 The legislature holds the primary responsibility to define the contents of legislation in the ordinary legislative procedure on the basis of Articles 77–80 TFEU. A core aspect of many ECJ rulings on migration is the assumption ‘that, in 12a accordance with the need for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union.’74 By emphasising the autonomous self-sufficiency of supranational rules towards domestic law, judges in Luxembourg defend the effet utile of supranational rules vis-àvis national legal systems (see below MN 16). In the context of migration, it is usually relied upon by those challenging domestic practices, i.e. it is often the position of migrants which is vindicated when the ECJ insists on uniform interpretation.75 The autonomy argument applies to overarching themes, such as the notion of ‘public policy’ (see Thym, Legal Framework for EU Immigration Policy, MN 42a-42d), as well as distinct questions which are specific to individual articles, such as the meaning of ‘unaccompanied minor’ to decide whether the application of family reunification rules depends on the age at the time of the initial asylum application or the subsequent administrative decision (see Bornemann/Arévalo, Family Reunification Directive 2003/ 86/EC, Article 4 MN 21).76 It should be noted that uniform interpretation does not preclude a leeway of the Member States when applying supranational rules whenever autonomous interpretation supports that outcome.77 Moreover, autonomy has an ‘external’ dimension,78 if the meaning of Union law differs from similar concepts under public international law, such as in the case of subsidiary protection (see Thym, Legal See Thym, “Administrative Mindset” and “Constitutional Imagination”, p. 148–157. See Thym, Bird’s Eye View, p. 184–186. 74 ECJ, Belgischer Staat, C-133/19, C-136/19 & C-137/19, EU:C:2020:577, para 30; by contrast, in cases of references to domestic law the ECJ will usually refrain from defining the meaning, see ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 77. 75 See Acosta Arcarazo, ‘Civic Citizenship Reintroduced? ‘, ELJ 21 (2015), p. 200, 213–216. 76 ECJ, A & S, C-550/16, EU:C:2018:248, paras 37–64 opted for the former in the absence of clear statutory prescriptions. 77 By way of example, see ECJ, Bevándorlási és Menekültügyi Hivatal, C-519/18, EU:C:2019:1070, paras 44–45, 55–59; ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 23–27, 33; and ECJ, Saciri et al., C-79/13, EU:C:2014:103, paras 47–51. 78 See Klamert, ‘The Autonomy of the EU (and of EU Law)’, EL Rev. 42 (2017), p. 815, 819–823; and Thym, Bird’s Eye View, p. 177–178. 72 73

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Framework for EU Asylum Policy, MN 21; and Storey, Asylum Qualification Directive 2011/95/EU, Article 15 MN 12–14). 12b While the wording usually serves as a starting point, it will rarely resolve the dispute at hand as a result of poor legislative drafting and the indeterminacy of the supranational legal order, which mostly lacks predefined doctrinal structures in the tradition of civil law jurisdictions (see above MN 11 and below MN 18). Moreover, multilingual character of Union law can complicate the interpretative exercise whenever different language versions support diverging outcomes. According to settled case-law, ‘where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part.’79 Notwithstanding the factual predominance of English and French as the main working languages of the EU institutions and the Court of Justice, which holds its internal délibérés in French, all language versions have the same legal significance.80 The same applies to the literature. Academics and judges should make an effort to build bridges between transnational debates in English and the enduring domestic discussions within the Member States in the respective national languages,81 which the contributions to this commentary aim to integrate into their analysis. Commentators should not mistake the transnational debate in English for the only or main forum for legal debates about EU immigration and asylum law.82 13 Questions of interpretation frequently arise with regard to the drafting history of a directive or regulation. In earlier case law, the Court had generally attributed limited importance to the legislative history.83 Even interpretative declarations of the Member States were considered irrelevant in light of the primary importance of the fundamental freedoms,84 which realise the central Treaty concepts of the single market and Union citizenship (see above MN 12). In the area of freedom, security and justice, the Court takes the drafting history more seriously. Judgments regularly elaborate on ‘the origin’85 of the rule under consideration.86 It is recognised as an argument amongst others; in contrast to public international law, the preparatory work is not just supplementary.87 In practice, digitalisation facilitates consideration of the drafting history when information on the position of various actors is easily accessible through the EUR-Lex portal of the EU institutions;88 preparatory documents of the Council’s working party can be 79 ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:511, para 33 with regard to Article 18 Return Directive. 80 See Article 342 TFEU; and Regulation No 1 determining the languages to be used by the European Economic Community, Official Journal English Special Edition, Ser. I Vol. 1952–1958, p. 59. 81 See Thym, The Limits of Transnational Scholarship on EU Law. A View from Germany, EUI Working Paper LAW 2016/14, p. 2–16, available online at https://papers.ssrn.com/sol3/papers.cfm? abstract_id=2785668 [last accessed 1 June 2021]. 82 Not least as a result of Brexit and since Ireland does not participate in many immigration and asylum law initiatives; see below MN 42–45. 83 See Wendel, ‘Renaissance der historischen Auslegungsmethode?’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg Journal of International Law 68 (2008), p. 803, 807–811. 84 See, in the context of the free movement of EU citizens (not: third country nationals), ECJ, Antonissen, C-292/89, EU:C:1991:80, paras 17–18. 85 ECJ, Hassan, C-647/16, EU:C:2018:368, para 40. 86 By way of example, see ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, para 263; ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 59; ECJ, Hassan, C-647/16, EU:C:2018:368, paras 44–46; ECJ, Mengesteab, C-670/ 16, EU:C:2017:587, para 90; and ECJ, N, C-601/15 PPU, EU:C:2016:84, para 53. 87 Cf. Article 32 Article Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) UNTS Vol. 1155, p. 331. 88 In the ‘procedure’ section, the EUR-Lex portal offers detailed information for each legislative act, which may be identified through the EUR-Lex advanced search form (see http://eur-lex.europa.eu/

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Chp. 1 found via the public register of Council documents,89 at least once negotiations have been concluded.90 This information is particularly useful when addressing questions that have not yet been discussed in ECJ case law – as many chapters to this Commentary illustrate. The newly found prominence of historic interpretation extends to the EU Treaties mutatis mutandi, since the drafting documents of the rules on immigration and asylum in the Treaty of Lisbon and the European Convention preparing the Constitutional Treaty (see above MN 5) are easily accessible online.91 Article 52(7) of the Charter expressly obliges judges at national and European level to give due regard to the official explanations.92 In the field of asylum and immigration, human rights and international legal 14 standards have an enduring influence on the interpretation of EU law. In so far as public international law is concerned, the ECJ maintains that EU law must be interpreted in light of the international legal obligations of the European Union as a matter of principle, although there are some caveats concerning the direct applicability of international law as well as obligations of the Member States to which the EU has not signed up (see below MN 58–59). In practice, the Geneva Convention holds a special position which is confirmed by Article 78(1) TFEU (see Thym, Legal Framework of EU Asylum Law, MN 8, 47). When it comes to human rights, Article 6 TEU leaves no doubt that they must be respected; secondary legislation can be struck down or interpreted in conformity with human rights,93 as the ECJ reaffirmed in a number of cases on immigration and asylum.94 In practice, the European Convention of Human Rights plays a central role, since it informs the interpretation of the EU Charter (see below MN 49). There have been cases, however, where judges in Luxembourg preferred to focus on the general scheme (see above MN 12) instead of embarking on a human rights analysis, especially in situations where the human rights dimension did not directly influence the outcome of the case.95 Moreover, experts on immigration and asylum should recognise that the ECJ pays due regard to other constitutional principles, such as the division of competences between the European Union and the Member States,96 which may entail that the assessment of national laws beyond the scope of EU advanced-search-form.html) or via the subsection on ‘procedure’ of the corresponding preparatory COM document, available through the Commissions’ search form(see https://eur-lex.europa.eu/collection/eulaw/pre-acts.html; both accessed last on 1 June 2021). 89 Available online at https://www.consilium.europa.eu/en/documents-publications/public-register/publicregister-search [last accessed 1 June 2021]; I recommend to search via the document number, e.g. 12026/20. 90 Beforehand, they are often leaked on the Statewatch website, online at www.statewatch.org [last accessed 1 June 2021]. 91 For the European Convention, see http://european-convention.europa.eu; and for the IGC for the Lisbon Treaty, see http://www.consilium.europa.eu/en/documents-publications/intergovernmental-conferences [both accessed last on 1 June 2021]; 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. 92 See the Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303/17). 93 Similarly, Groenendijk, Recent Developments, p. 330; and Groß, ‘Europäische Grundrechte als Vorgaben für das Einwanderungs- und Asylrecht’, Kritische Justiz (2001), p. 100–111. 94 Cf., by way of example, ECJ, E, C-635/17, EU:C:2019:192, paras 55; ECJ, Gnandi, C-181/16, EU: C:2018:465, paras 54–56; ECJ, X, Y & Z, C-199/12 & C-200/12, EU:C:2013:720, para 40; and ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 34. 95 Cf., by way of example, the silence on Article 8 ECHR in ECJ, K & B, C-380/17, EU:C:2018:877, paras 51 et seq.; and ECJ, Noorzia, C-338/13, EU:C:2014:2092; or the lack of comments on human dignity or Article 34 of the Charter in ECJ, Saciri et al., C-79/13, EU:C:2014:103; see also Azoulai/de Vries, ‘Introduction’, in: ibid. (eds), EU Migration Law, p. 1, 6–7. 96 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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obligations are left to national constitutions and the ECHR (see below MN 47–48). The ECJ is not a specialised immigration and asylum tribunal, but rather a supreme court with broader constitutional responsibilities. 15 Together with the concept of direct effect, the category of individual rights plays a prominent role.97 Judges recognised that migrants may have individual rights emanating from EU legislation98 and that, in addition, exceptions should be construed narrowly.99 On this basis, the position of migrants can be advanced through a rightsbased approach to statutory interpretation,100 as the case law on the Dublin III Regulation exemplifies (see Hruschka/Maiani, Regulation 604/2013, Article 27 MN 7–8). At the same time, there is an important difference between migratory matters and other areas of Union law where individual rights played a prominent part in limiting state discretion, such as the single market or Union citizenship. In immigration and asylum legislation, individual rights of third country nationals do not usually flow directly from the EU Treaties (see below MN 20).101 Human rights, in particular, do not typically comprise a guarantee to be granted access to the European territory (see Thym, Legal Framework for Entry and Border Controls, MN 32–36). Nevertheless, individual rights in secondary legislation can go beyond the level of protection prescribed by human rights, as the ECJ explicitly recognised in the case of family reunification.102 When deciding on the scope of the statutory rights beyond human rights requirement, the EU legislature determines the conditions and limits set forth in legislative instruments. Judges should generally respect these legislative choices, even though the precise contents can be difficult to determine, as the example of pre-departure language skills illustrated (Bornemann/ Klarmann, Family Reunification Directive 2003/86/EC, Article 7 MN 25–29). The contours of individual rights in EU legislation have to be determined under recourse to the interpretative principles, such as the wording, the telos or the general scheme (see above MN 10–13).103 16 EU law experts are aware that the ECJ frequently activates the principle of effet utile, supporting the domestic application of supranational rules. It was activated by the Court in immigration and asylum law, for instance when it prevented Member States from charging prohibitive fees that might render the realisation of statutory rights of migrants practically ineffective104 or required renewed application of the Dublin III Regulation in case of double irregular secondary movements.105 It is often applied in the form of a prohibition on undermining the objectives of secondary legislation to scrutinise domestic rules which are not covered by specific prescriptions in a directive or regulation (see below MN 21a).106 Examples are language requirements for long-term 97

Generally, see Thorson, Individual Rights in EU Law (Springer, 2016), chs 7–8, 16–26. By way of example, see ECJ, Chakroun, C-578/08, EU:C:2010:117, para 41. 99 By way of example, see ECJ, Arib et al., C-444/17, EU:C:2019:220, para 50. 100 See Bast, Aufenthaltsrecht, p. 101–111; Groenendijk, Recent Developments, p. 329–330; and Boeles, ‘What Rights Have Migrating Third country Nationals?’, in: de Zwaan/Goudappel (eds), Freedom, Security and Justice in the European Union (T.M.C. Asser, 2006), p. 151, 152–162. 101 For further reading, see Thym, “Administrative Mindset” and “Constitutional Imagination”, p. 151–152; and Thym, Constitutional Rationale, p. 718–721. 102 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, paras 59–60. 103 See Eilmansberger, ‘The Relationship between Rights and Remedies in EC Law’, CML Rev. 41 (2004), p. 1199, 1231–1245; Thorson, Individual Rights in EU Law (Springer, 2016); and the dynamic proposal by Warin, Individual Rights under European Union Law (Nomos, 2019). 104 See ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43; and ECJ, Commission v. Netherlands, C-508/ 10, EU:C:2012:243, para 65. 105 See ECJ, Hasan, C-360/16, EU:C:2018:35, paras 71–80. 106 See Thym, ‘Towards a Contextual Conception of Social Integration in EU Immigration Law’, EJML 18 (2016), p. 89, 97–98. 98

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Chp. 1 residents107 or the long list of cases limiting the criminalisation of irregular stay.108 While the effet utile can work to the benefit of migrants, it is not intrinsically linked to this scenario, since it promotes the effectiveness of Union law as an end in itself. The effet utile supports individual rights whenever the latter coincide with broader objectives of the integration process,109 whereas the effet utile will lead interpretation in other directions whenever Union law pursues different objectives. Thus, the ECJ emphasised that the Return Directive 2008/115/EC aims to establish an effective policy of removal and repatriation of illegally staying foreigners.110 Unfortunately, the ECJ can be superfluous when identifying the aims pursued by 17 the EU legislature.111 With regard to the Dublin III Regulation, for instance, it fluctuated between the prevention of secondary movements or ‘forum shopping’ in more restrictive cases112 and swift processing by means of stable asylum jurisdiction in more lenient judgments113 (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,114 while Article 4(5) establishing a minimum age of 21 years was considered to prevent forced marriages (an objective that may conflict with the promotion of family reunification).115 To say, moreover, that the Long-Term Residents Directive 2003/109/EC pursues the objective of promoting the integration of long-term residents may conceal the complexity inherent in the meaning of the seemingly well-defined ‘integration’ objective (see Thym, Legal Framework for EU Immigration Policy, MN 43–47). Judgments on the Long-Term Residents Directive present different visions depending on the outcome of the case (see Thym, Directive 2003/109/EC, Article 1 MN 17a). Likewise, it can be treacherous to rely solely on a particular recital, since closer inspection of the instrument in question in the light of the drafting history (see above MN 13) will often expose that legislative acts pursue diverse and potentially conflicting objectives which reflect the diversity of opinions among various participants in the legislative process in a democratic and pluralistic society.116 In such scenarios, courts should discuss the plurality of objectives openly and address them, where appropriate, in the balancing exercise that underlies the proportionality test (see below MN 26). It is not surprising that the ECJ supports the coherence of the supranational legal 18 order by interpreting similar terms in an identical fashion whenever appropriate. Doctrinal concepts developed for other segments of Union law are being applied to immigration and asylum legislation,117 such as the concept of ‘abuse’, which was first See ECJ, P & S, C-579/13, EU:C:2015:369, paras 44 et seq. See ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, paras 57–59; and ECJ, Sagor, C-430/11, EU: C:2012:777, paras 31–47, which distinguished between different criminal sanctions (not) impeding statutory objectives. 109 For a prominent critique, see Weiler, ‘Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy’, International Journal of Constitutional Law 12 (2014), p. 94–103. 110 See ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, para 59. 111 Generally, see Thym, Bird’s Eye View, p. 186–187. 112 ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, para 79; and ECJ, Mirza, C-695/15 PPU, EU: C:2016:188, para 52. 113 See ECJ, Ghezelbash, C-63/15, EU:C:2016:409, para 52; ECJ, Mengesteab, C-670/16, EU:C:2017:587, paras 54, 73, 96; and ECJ, X & X, C-47/17 & C-48/17, EU:C:2018:900, para 69. 114 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43. 115 ECJ, Noorzia, C-338/13, EU:C:2014:2092, para 16. 116 To pursue diverse and potentially conflicting aims is a hallmark of open democratic discourse, not a pathology. 117 See Groenendijk, Recent Developments, p. 329; and Jesse, ‘The Value of “Integration” in European Law’, ELJ 27 (2011), p. 172–189. 107 108

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developed for economic market regulation (see Thym, Legal Framework for EU Immigration Policy, MN 48–49). As a matter of principle, the ECJ highlights in welcome clarity the objective of interpretative coherence: whenever two instruments use similar terminology, the same definition should be used ‘[w]ith a view to a consistent and uniform application of Union law on asylum and immigration.’118 However, parallel interpretation of similar terminology is no foregone conclusion, since it depends on the context of the statutory rule under consideration. Occasionally, the legislature may expressly define the meaning of a term for the purpose of specific instruments,119 in line with the objective of terminological coherence in legislative drafting.120 Nevertheless, the institutional practice is not always clear-cut. An example of incoherent terminology is the definition of the term ‘third country national’ which Article 2(a) Family Reunification Directive and Article 2(a) Blue Card Directive define as any person who is not a Union citizen, while Article 3(1) Return Directive excludes those enjoying the right of free movement as a family member of Union citizens from the definition of third country nationals for the purposes of the directive.121 In other scenarios, the application of interpretative criteria to the wording, general scheme, objective and drafting history of secondary legislation (see above MN 10–13) may support the conclusion that identical terms have distinct implications in different instruments.122 The best example of the potential and limits of interpretative coordination in the ECJ case law is the ‘public policy’ exception, in relation to which the ECJ recognised that it has a uniform meaning in different segments of Union law as a matter of principle, even though the interpretative exercise may result in legislation-specific outcomes (see Thym, Legal Framework for EU Immigration Policy, MN 42a-42d). It therefore has to be ascertained, in line with general interpretative criteria, whether and, if so, to what extent different legislative acts may be interpreted in parallel. 19 Case law on the Association Agreement between the EEC and Turkey and related Decisions of the Association Council, was often relied on as a harbinger of dynamic interpretation of similar terminology.123 It demonstrates both the potential and the limits of parallel interpretation. The ‘so far as is possible’124 formula employed by the ECJ reflects the wording of the Association Agreement with Turkey which stipulates explicitly that rules on Turkish citizens should be approximated to the economic freedoms in the single market.125 This implied, in turn, that parallel interpretation came to an end where the objectives and the general scheme of Union law and the 118

ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9, para 38. Such official definitions can usually be found in the introductory operative articles of the directive or regulation and may be specific to it, i.e. other instruments may prescribe a different meaning. 120 The Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of European Union Legislation, July 2016, Guideline 6.3.1 calls for consistent terminology: ‘Any given term is therefore to be used in a uniform manner to refer to the same thing … This applies not only to the provisions of a single act, including the annexes, but also to the provisions of related acts.’ 121 See Klarmann, Illegalisierte Migration. Die (De-)Konstruktion migrationsspezifischer Illegalität im Unionsrecht (Nomos, 2021), p. 86–88. 122 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. 123 See Barbou des Places, ‘Droit communautaire de la liberté de circulation et droit des migrations’, in: L’Union européenne: Union de droit, Union des droits. Mélanges 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. 124 ECJ, Bozkurt, C-434/93, EU:C:1995:168, para 20. 125 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). 119

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Chp. 1 Association Agreement diverged, for instance with regard to the notion of ‘public policy’ (see Thym, Legal Framework for EU Immigration Policy, MN 24b, 60). Considerations above demonstrate that it is a general feature of EU immigration and 20 asylum law that the interpretation of specific rules depends on the broader statutory and constitutional context. It is therefore not convincing to maintain the generic argument that the interpretation of secondary legislation on immigration and asylum by the ECJ will support a sort of domino effect that confers equal rights as Union citizens upon third country nationals.126 There is no legal expectation enshrined at Treaty level that third country nationals and Union citizens should have 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 MN 15). Judges in Luxembourg have repeatedly recognised that ‘a particularly restrictive interpretation’127 of derogations of the rights of Union citizens was required in the light of EU primary law.128 This cannot be extended to the rules on immigration and asylum, which are an integral part of the area of freedom, security and justice in line with the diverse policy objectives laid down in the EU Treaty (see above MN 6–7), which distinguish the new policy field from the historic template of the single market and Union citizenship (see Thym, Legal Framework for EU Immigration Policy, MN 28–36). This different constitutional context for immigration and asylum law supports the search for autonomous solutions for third country nationals in light of the wording, the origin, the general scheme and legislative objectives as well as constitutional prescriptions and general principles of the supranational legal order.

2. General Principles (including Proportionality) The supranational legal order comprises a number of unwritten general principles, 21 which were developed by the Court of Justice on the basis of the legal traditions common to the domestic legal orders of the Member States.129 These general principles were developed by the ECJ over the past few decades and are now applied to immigration and asylum law as an integral part of the EU legal order. As unwritten rules, general principles apply without the need for references to them in secondary legislation. They can be relied upon to interpret measures adopted by the EU institutions and, in exceptional circumstances, they may serve as grounds for challenging the validity of secondary legislation.130 General principles are also binding on Member States when implementing Union law: state authorities and domestic courts must respect the general principles when they adopt decisions or render judgments whose outcome is determined by EU law mirroring the scope of the Charter of Fundamental Rights (see below MN 47–47a). Whenever Member States are not bound by general principles, they apply national 21a standards, including domestic constitutional guarantees. This concerns in particular 126 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. 127 By way of example, see ECJ, Orfanopoulos & Olivieri, C-482/01 & C-493/01, EU:C:2004:262, para 65. 128 See also, Thym, Constitutional Rationale, p. 718–721. 129 For further reading, see Craig, Administrative Law, chs 15–21; and Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007). 130 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.

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questions that are not covered by secondary legislation, such as the status of nondeportable foreigners beyond the peripheral prescriptions in Article 14 Return Directive. In these areas, Union law and general principles do not apply as a matter of principle, even though judges may exceptionally limit state discretion if the latter undermines the effective realisation of the objectives of secondary legislation (see above MN 16). A fine example is the line of judgments limiting the criminalisation of illegal stay by the Member States following the initial El Dridi ruling (see above MN 16). 22 Human rights have traditionally been the most relevant unwritten general principles. Following the entry into force of the Treaty of Lisbon, the legally binding Charter of Fundamental Rights means that human rights are nowadays often discussed separately, as in this chapter (see below MN 47–50). General principles include the primacy and direct effect of Union law in national legal orders, when individuals rely upon EU rules that are clear, precise and unconditional in national courts and when the supranational rules prevail over domestic laws in cases of conflict (see below MN 34). Other principles include legitimate expectations and legal certainty131 or damages Member States may have to pay to individuals for manifestly and gravely disrespecting their obligations under EU law,132 which have not gained much practical relevance for migratory matters so far. General principles relating to the right to defence and judicial protection will be discussed below (see below MN 37–37c). 23 From a conceptual perspective, the general principles guarantee that EU immigration and asylum law is firmly embedded into the rule of law. Traditional notions of migration law and alienage as an exclave of legal protection, which prevailed in some Member States until recently, cannot be maintained.133 Poland, for instance, cannot exclude the jurisdiction of domestic courts in a dispute concerning the denial of a visa.134 The significance of the general principles comes to the fore after the end of the legislative procedure, once domestic courts and the ECJ begin to interpreting Union law. Unexpected legal effects flowing from the interpretation of secondary law in light of general principles are a common phenomenon,135 even though judges in Luxembourg did not continue their earlier celebrity for dynamic interpretation when interpreting immigration and asylum legislation (see above MN 12). In its case, the ECJ adapts the bearing of general principles to the specificities of the area of freedom, security and justice whenever appropriate.136 24 The general principle of proportionality is of great importance and has a dual relevance: it serves as a yardstick for the delimitation of EU competences137 and defines 131

See Craig, Administrative Law, ch. 18; and Wiesbrock, Legal Migration, p. 189–192. Cf. ECJ, Brasserie du pêcheur & Factortame, C-46/93 & C-48/93, EU:C:1996:79 and any textbook on EU law. 133 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. 134 See ECJ, El Hassani, C-403/16, EU:C:2017:960, paras 39–41, even though it remained unclear, in light of the more elaborate opinion of AG Bobek, to what extent the verdict rested on the general assumption that states must provide for judicial review in areas where no statutory individual rights exist (see below MN 37c). 135 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 Europäisierung des Ausländer- und Asylrechts’, Zeitschrift für Ausländerrecht (2006), p. 1, 6–7. 136 See Labayle/Bergé, ‘Les principes de l’Espace de liberté, de sécurité et de justice’, Revue trimestrielle de droit européen (2016), p. 589–610; and Herlin-Karnell, ‘Constitutional Principles in the Area of Freedom, Security and Justice’, in: Acosta Arcarazo/Murphy (eds), EU Security and Justice Law (Hart, 2014), p. 38–53. 137 I.e. the definition of the scope of EU powers in line with Article 5(4) TEU. 132

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Chp. 1 the limits of state action affecting individuals.138 It is the second scenario that is especially relevant in the field of immigration and asylum. Generally speaking, any application of the principle of proportionality requires a multi-step test, which may ideally concern four questions: firstly, the state measure affecting individuals must pursue a legitimate aim; secondly, the measure must be suitable for achieving the objective; thirdly, the state action must be necessary to achieve the aim, since there are no less onerous ways available; finally, proportionality sensu stricto is assessed on the basis of a balancing exercise that takes the competing interests into account (although the ECJ sometimes merges the third and fourth criteria).139 This four step test rationalises the application of the principle of proportionality and allows courts and academics to evaluate individual scenarios more easily. It is important to understand that, despite being based on objective standards, any 25 assessment of proportionality depends on the circumstances of the individual case. Closer inspection of the ECJ case law on migratory matters shows that proportionality is a uniform principle whose application is context-specific.140 While judges often leave the EU institutions more leeway when assessing the proportionality of EU legislation, they are sometimes (not: always) stricter with regard to state action.141 Unfortunately, it is difficult to discern a clear pattern as to when and why judges opt for a higher or lower level of scrutiny.142 The abstract criteria of the four-pronged test described above have to be assessed in light of the measure in question and the constitutional context. This dependence on context implies that the degree of judicial scrutiny may depend on the subject area under consideration. There may be good reasons to treat pre-departure language tests as a precondition for family reunification differently from police checks near internal Schengen borders, time limits for accelerated asylum procedures or the suitability of the refugee relocation scheme in light of Treaty objectives.143 The argument in favour of a margin of appreciation by the EU legislature or domestic authorities is particularly strong when assessing questions in relation to which no distinct European position exists144, when courts lack information or expertise and when broader value judgments have to be made.145 An important feature of the ECJ case law is the ‘clear separation of functions between 25a the national courts and the Court of Justice’146 under the preliminary reference procedure. While the ECJ remains responsible for interpreting Union law, any assessment of the facts as a matter for domestic courts. Since the principle of proportionality is in essence about a weighing exercise in light of the specificities of the legal and factual 138 In contrast to the German legal order, from which the 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 not covered by individual rights. 139 For details, see Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007), ch. 3. 140 See Thym, Bird’s Eye View, p. 187–192. 141 See Craig, Administrative Law, chs 19–20; and Tridimas, ‘The Principle of Proportionality’, in: ibid. and Schütze (eds.), The Oxford Principles of European Union Law, Vol. I (OUP, 2018), p. 243, 251–262. 142 Cf. Zglinski, ‘The Rise of Deference’, CML Rev. 55 (2018), p. 1341–1385. 143 For these four examples, see ECJ, A, C-9/16, EU:C:2017:483, paras 60–61; ECJ, Samba Diouf, C-69/ 10, EU:C:2011:524, paras 66–68; and ECJ, Slovak Republic & Hungary v. Council, C-643/15 & C-647/15, EU:C:2017:631, paras 206–224. 144 For the ECJ practice in the light of constitutional theory, see Dawson, The Governance of EU Fundamental Rights (CUP, 2017), p. 78–80; and Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, ELJ 17 (2011), p. 80, 85–100. 145 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), p. 153–173. 146 ECJ, Dumon & Froment, C-235/95, EU:C:1998:365, para 25.

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situation, there are good reasons why the ECJ often leaves the proportionality test to domestic courts. In these cases, it remains the responsibility of national judges to apply supranational standards diligently; deference to domestic courts does not release them from the rule of law. Theoretical considerations invite the ECJ to treat domestic courts as partners and to seek a viable working relationship, since the domestic level is crucial for the effective application of supranational rules on the ground.147 ECJ practice shows that the degree of deference can differ considerably. While judges give detailed instructions in some cases, they limit themselves to abstract principles on other occasions and refrain from substantive guidance on how to apply the principle of proportionality in other judgments.148 Generally, there are good constitutional reasons that judges give domestic courts more leeway when the answer to a question requires an intimate knowledge of the facts, does not concern matters of great practical or conceptual importance for Union law or is intricately linked to the domestic legal context, not least in the field of administrative or judicial procedure.149 26 In the evaluation of specific scenarios, it is necessary to clearly identify both the objective(s) pursued by state measures and individual interest(s) at stake. Without careful identification of the objectives and interests, the balancing exercise in the final proportionality assessment sensu stricto runs the risk of remaining aloof, since it ignores the relative weight of public policy objectives and private interests. It found, for instance, that national rules laying down a maximum period of eight months may be justified for third country nationals, although it violates the EU Treaties for Union citizens, whose special status bears greater weight in the proportionality assessment.150 Unfortunately, the ECJ can be superfluous in the identification of the aim pursued by the EU legislature effet utile(see above MN 17). With regard to the Visa Code Regulation (EC) No 810/2009, judges highlighted the dual and potentially contradictory objective of facilitating legitimate travel and of preventing ‘visa shopping.’151 In such scenarios, judges should discuss the plurality of objectives openly and address them in the balancing exercise. When it comes to fundamental rights, there is often established ECtHR case law, which may serve as guideline for interpreting the Charter (see below MN 50). When statutory rights enshrined in EU legislation go beyond human rights requirements, for instance with regard to family reunification (see above MN 15), they have a greater weight in the weighing exercise. 27 An open question concerns the interaction between statutory rules and the principle of proportionality when legislative rules lay down general standards by requiring, for instance, immigrants to have a certain amount of money, comply with language requirements, meet time limits or demonstrate certain skills. A number of judgments can be read to supplant these general rules with an individualised assessment requiring the legislature or domestic authorities to set aside abstract prescriptions.152 By 147 See the classic account by Alter, ‘The European Court’s Political Power’, Western European Politics 19 (1996), p. 458, 466–471; remember that, without references from domestic courts, few cases would reach the ECJ, which, moreover, would not have enough capacities to handle a major increase of the caseload if it decided all matters independently without deference to domestic courts. 148 See Thym, Bird’s Eye View, p. 189–191; and Tridimas, ‘Constitutional Review of Member State Action. The Virtues and Vices of an Incomplete Jurisdiction’, ICON 9 (2011), p. 737, 739–745. 149 Thym, Bird’s Eye View, p. 191–192. 150 See ECJ, Ordre des barreaux francophones et germanophone et el., C-718/19, EU:C:2021:505, paras 65–72, which also mention procedural and contextual differences. 151 See ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 52–53. 152 By way of example see, on language requirements, ECJ, K & A, C-153/14, EU:C:2015:453, paras 58–60 referring to both the principle of proportionality and Article 17 Family Reunification Directive; on financial means see ECJ, X, C-302/18, EU:C:2019:830, para 39 highlighting the statutory requirement of

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Chp. 1 contrast, other rulings accepted clear-cut conditions or thresholds without requiring domestic authorities to embark on an investigation of whether the individual situation warranted a different treatment.153 Unfortunately, the case law is not straightforward.154 It should be noted, in particular, that human rights do not prevent precise statutory conditions provided that an assessment of the legislation indicates that public policy objectives generally prevail over private interests insofar as the proportionality of the general rules is concerned.

3. More Favourable National Provisions Most directives on immigration and asylum contain an express provision stating that 28 it does not prevent Member States from introducing or retaining more favourable provisions – a discretion which most instruments adopted in recent years qualify to be limited ‘insofar as these [national rules] are compatible with this Directive.155 These provisions in secondary legislation are generally understood to allow Member States to adopt rules in favour of third country nationals whose rights and duties are regulated by the Directive in question,156 although the precise scope remains unclear. Both the new primary law framework of the Treaty of Lisbon and the aforementioned proviso concerning compatibility with the directive in question argue in favour of a cautious approach towards national deviations. It will be demonstrated in this section that, notwithstanding specific prescription in individual directives, Member States cannot deviate from common rules on the basis of generic clauses on more favourable rules whenever the instrument in question opts for full harmonisation. Before the entry into force of the Treaty of Lisbon, the Treaty allowed for the 29 adoption of ‘minimum standards’ only, while rules on immigration, border controls and visas had not been subject to a similar restriction.157 It was often argued at the time that the limitation to ‘minimum standards’ in EU primary law and corresponding provisions in secondary legislation should be understood, in a similar way to international human rights law, as a minimum requirement for domestic legislation, while generally allowing for more generous rules for the benefit of migrants, especially in the field of asylum.158 It is no longer relevant whether this was correct, since the Treaty of Lisbon abandoned the restrictive Treaty base, thereby permitting a higher degree of harmonisation (see above MN 3–4). New legislation on asylum has been adopted allowing for more favourable ‘sufficient’ resources in Article 5(1)(a) Long-Term Residents Directive; and on Union citizens and the loss of nationality see ECJ, Tjebbes et al., C-221/17, EU:C:2019:189, paras 40–42. 153 See, on the loss of long-term residence status, ECJ, Y.Z. et al., C-557/17, EU:C:2019:203, para 73; on Union citizenship and social benefits ECJ, Alimanovic, C-67/14, EU:C:2015:597, paras 59–60; and on the loss of nationality AG Mengozzi, Tjebbes et al., C-221/17, EU:C:2018:572, paras 51–118; similarly, the position of the German Federal Administrative Court (Bundesverwaltungsgericht), judgment of 19 April 2018, 1 C 1.17, ECLI:DE:BVerwG:2018:190418U1C1.17.0, para 61 on the application of the Rottmann judgment; and, generally, of the German Federal Constitutional Court (Bundesverfassungsgericht), decision of 17 December 2013, 1 BvL 6/10, ECLI:DE:BVerfG:2013:ls20131217.1bvl000610, paras 84–85. 154 See Davies, ‘How Citizenship Divides. The New Legal Class of Transnational Europeans’, European Papers 4 (2019), p. 675, 682–685; and Van Eijken, ‘Tjebbes in Wonderland’, EuConst 15 (2019), p. 714, 723–725. 155 By way of example, see Article 5 Asylum Procedure Directive 2013/32/EU. 156 See Peers, EU Justice, p. 450. 157 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. 158 Cf. Storey, ‘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.

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national rules only insofar as they are compatible with the relevant directive.159 The interpretation of these rules should acknowledge the broader objective laid down in the EU Treaty to move towards a ‘Common European Asylum System’ as an integral part of the area of freedom, security and justice, which generally aims for more uniformity.160 This constitutional context supports extensive legislative activities (see above MN 5) and argues for a restrictive reading of the clauses on national deviations that compromise uniformity. 30 To understand the relevance of the provisions on more favourable national treatment, the concept of harmonisation is central, since it entails the approximation of national rules in line with the overarching objective of ‘ever closer union,’161 in which differences between Member States are replaced by common standards. Tellingly, regulations on immigration and asylum, such as the Schengen Borders Code, the Dublin III Regulation or the Visa Regulation, contain no provision authorising Member States to adopt more favourable provisions.162 Unlike international human rights law,163 these harmonisation measures do not establish minimum requirements, but lay down pan-European standards that command primacy over domestic rules in cases of conflict. It is well known that the Court of Justice cautiously defends the uniform and effective application of EU law and generally regards national deviations with suspicion.164 For that reason, one should ascertain on a case-by-case basis whether and if so to what extent Member States may deviate from secondary legislation. In cases of doubt, it should be assumed that legislation supports a pan-European standard from which Member States cannot deviate. 31 The Court of Justice establishes on a case-by-case basis whether individual articles result in complete (full) harmonisation, which pre-empts national deviations as a uniform standard. More favourable national rules are allowed in other scenarios as long as they do not compromise the effective and uniform application of the EU rules in question.165 Whether an article grants discretion depends on an interpretation of the provision in light of the wording, the general scheme, the drafting history, the aims and the constitutional context (see above MN 10–18), including the Treaty objective to move towards a common immigration and asylum policy (see above MN 29). In some instances the interpretation of individual articles will be straightforward. The term ‘shall’ designates mandatory rules, while the word ‘may’ indicates a certain level of flexibility awarded to Member States, which are not free, however, to do as they please, since national deviations are only permitted in so far as the article in question allows for leeway. One may conclude by means of interpretation, for example, that Member States 159 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. 160 See also Peers, EU Justice, p. 242. 161 Recital 1 of the Treaty on the Functioning of the European Union. 162 In line with Article 288 TFEU, regulations are – unlike directives – meant to be applied directly, thereby establishing a higher degree of harmonisation. 163 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. 164 Cf. de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’, in: Craig/de Búrca (eds), The Evolution of EU Law, 2nd edn (OUP, 2011), p. 323–362. 165 See the debate on the example of consumer protection by 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 Stürner (ed), Vollharmonisierung im Europäischen Verbraucherrecht? (Sellier, 2010); and Whittaker, ‘Unfair Terms and Consumer Guarantees’, European Review of Contract Law 5 (2009), p. 223–247.

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Chp. 1 ‘may’ choose between solution A and B, while solution C would violate the directive, since it would involve going beyond the discretion afforded by the instrument in question.166 With regard to the Schengen Borders Code and the Visa Code, the Court found explicitly that the objective of common standards argues against Member States’ discretion.167 In short, the definite scope for possible deviations must be ascertained on a case-by-case basis when interpreting EU legislation.168 The formulation follows different patterns and three clauses on more favourable 32 national provisions can be distinguished: (1) Most directives permit for national deviations only ‘insofar as [they] are compatible with this Directive’169; these provisions require an assessment on a case-by-case basis as to whether specific articles allow for flexibility (see above MN 31). (2) Other directives explicitly lay down that Member States may deviate from specific provisions, which allow for the adoption of more favourable rules as a result.170 (3) Some directives stipulate in more general terms that Member States remain free ‘to adopt or maintain provisions that are more favourable to the persons to whom it applies’ without indicating, like in the first scenario, that domestic rules must comply with the directive.171 The Family Reunification Directive and the Long-Term Residents Directive, neither of which contain the caveat that more favourable domestic rules concern only those ‘to whom [the Directive] applies’, are the most far-reaching instruments. An interpretation of the Family Reunification Directive and the Long-Term 33 Residents Directive shows that the third scenario above does not allow Member States to deviate from mandatory provisions when they adopt implementing legislation. Member States remain free, however, to retain or adopt more favourable domestic rules outside the scope of the directive. They can establish, for instance, a hardship clause for family reunion, which, as a result, does not bring about rights under the Directive (see Arévalo/Bornemann, Directive 2003/86/EC Article 3 MN 19) or retain more generous domestic rules on long-term residence status if the latter can be distinguished from the status prescribed by EU law (see Thym, Directive 2003/109/ EC, Article 13 MN 2, 4). Similarly, the ECJ recognised that Member States can grant complementary status under domestic law to people whose application for international protection has been rejected as long as states do not call into question the effective implementation of the EU legislation, which in practice requires them to draw ‘a clear distinction … between national protection and protection under the directive.’172 More favourable national protection statuses do not bring about rights under the EU asylum acquis, since Member States act within the scope of their retained powers.173 166 Interpretation in the light of the broader context can even indicate that ‘may’ means ‘shall’ or that Member States 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. 167 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. 168 By way of example, see ECJ, Ahmedbekova, C-652/16, EU:C:2018:801, paras 69–74 with regard to Article 3 Asylum Qualification Directive 2011/95/EU. 169 See the new asylum directives mentioned above MN 29; Article 4(3) Return Directive 2008/115/EC; and Article 15 Employer Sanctions Directive 2009/52/EC. 170 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. 171 See Article 4(2) Students and Researchers Directive (EU) 2016/801; and Article 13(2) Procedures Directive 2011/98/EU. 172 See ECJ, B., C-57/09 & 101/09, EU:C:2010:661, para 120; and ECJ, Bevándorlási és Menekültügyi Hivatal, C-519/18, EU:C:2019:1070, paras 42–43. 173 Cf. ECJ, M‘Bodj, C-542/13, EU:C:2014:2452, paras 42–46.

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4. Application in Domestic Law The legal effects of directives and regulations follow the general principles of Union law, which apply to border controls, asylum and immigration law like to any other area of the supranational legal order. Regulations such as the Schengen Borders Code or the Dublin III Regulation are by nature directly applicable and are binding on state authorities and domestic courts applying EU immigration and asylum law.174 Regulations can lay down individual rights of or obligations for individuals, which the latter can invoke and must respect irrespective of domestic rules. By contrast, directives must be transposed into national law during the transposition period, whose length is determined by the legislature on a case-by-case basis.175Member States need not ‘copy and paste’ the wording of a directive; national rules and the general legal framework may suffice provided that they ensure respect for EU law and render individual rights visible.176 It is established in ECJ case law that directives can be directly applicable in case of incorrect transposition, if the provision in question is clear, precise and unconditional and if it seeks to confer rights on individuals against the state.177 Moreover, domestic courts are bound to interpret national law, so far as possible, in light of the directive to achieve the result sought by the EU legislature, including in situations when the conditions for direct effect have not been met.178 The requirement for national law to be interpreted in conformity with Union law effectively means that a directive can be indirectly relied upon via domestic rules. 34a The ECJ has regularly taken recourse to general principles to promote their application even before the expiry of the period of transposition of a directive where national rules fall within the scope of EU law. Observance of general principles of Union law cannot be made conditional, in the eyes of the Court, on the expiry of the period allowed for the transposition of a directive.179 Moreover, national courts are obliged to refrain as far as possible from interpreting domestic law in a manner which might seriously compromise the attainment of an objective pursued by a directive from the date when it enters into force, even before the adoption of implementing legislation.180 Finally, there may be scenarios when EU legislation does not deal with an issues, but Member States decide to apply Union law voluntarily to questions it does not cover, such as family reunification of those with subsidiary protection as opposed to refugee status. In these cases, national courts are obliged to respect Union law, including general principles, as if the matter was covered by a directive. Domestic courts can ask the ECJ for guidance.181 34b In contrast to regulations, directives tend to leave more discretion to Member States as to how to regulate certain questions, although the scope of flexibility depends on the interpretation of secondary legislation. Nevertheless, directives can include provisions fully harmonising a specific legal question (see above MN 31). In practice, the distinc34

174

Cf. Article 288(2) TFEU. It can usually be found in the final provisions of each directive. See ECJ, Commission v. Austria, C-194/01, EU:C:2004:248, paras 37–39; and EuGH, Commission v. Germany, 29/84, EU:C:1985:229, para 23. 177 By contrast, the state cannot rely on provisions in a directive, which puts an obligation on individuals; see Craig/de Búrca, EU Law, 6th edn (OUP, 2015), ch. 4; by way of example contrast ECJ, A, C-404/17, EU:C:2018:588, paras 28–31 to ECJ, Torubarov, C-556/17, EU:C:2019:626, paras 91–101, which confirmed the direct applicability of certain provisions of asylum legislation to the benefit of individuals. 178 Cf. ECJ, Pfeiffer, C-397/01-C-403/01, EU:C:2004:584, paras 110–119. 179 Cf. ECJ, Mangold, C-144/04, EU:C:2005:709. 180 See ECJ, Adeneler, C-212/04, EU:C:2006:443, paras 113–123, in part. 123. 181 See ECJ, E, C-635/17, EU:C:2019:192, paras 35–42. 175 176

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

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domestic actions (principle of equivalence) and, secondly, that they do not render the exercise of rights conferred by Union law practically impossible or excessively difficult (principle of effectiveness).187 The principle of effectiveness can play a critical role in limiting the discretion of Member States, although its operationalisation in practice remains inherently difficult to predict.188 By contrast, judges in Luxembourg will often leave the application of the principle of equivalence to domestic courts which know the relevant national law in question.189 36a The ECJ has applied the principle of procedural autonomy to immigration and asylum law, even though the number of judgments elaborating on the principle remains limited. One explanation for this may be the inclination of domestic courts not to refer matters of Union law to judges in Luxembourg unless secondary legislation lays down detailed prescriptions or whenever previous rulings raised specific questions.190 This is often not the case when it comes to procedures. This explains why the judgments on the limits to national procedural autonomy concern selective matters only. Regarding the principle of equivalence, the ECJ often leave its application to domestic courts which have the knowledge necessary to compare national laws in question.191 When doing so, the ECJ does not insist on categorical parallelism. It recognised explicitly that asylum procedures can be subject to stricter procedural requirements than rules for other areas of domestic law; no equal treatment is required when the national procedures in question are not comparable, for instance regarding the suspensive effect of legal remedies.192 It explicitly found that the objective of ‘expeditious’ decision-making argues for stricter time limits for and legal effects of legal remedies in the field of asylum.193 Distinctions within asylum law between different countries of origin do not constitute unjustified unequal treatment.194 36b In the judicial practice, the principle of effectiveness serves as a generic standard to challenge strict domestic rules in the absence of supranational harmonisation.195 More specifically, the principle of effectiveness gained relevance for time limits for remedies against administrative decisions and the legal effects of a failure to comply with procedural obligations by the immigration and asylum authorities (see below MN 37a). Judges held a time limit of 15 days for remedies to be acceptable, while striking down an eight-day rule as a matter of principle (subject to a caveat that it might be acceptable in some scenarios).196 The outcome ultimately depends on the specificities of the case at hand. Strictly calculated deadlines of 10 days for regular appeals and of 5 days for 187

Settled case law ever since ECJ, Rewe-Zentralfinanz, 33/76, EU:C:1976:188, para 5. See, again, Craig, Administrative Law, ch. 23. 189 By way of example, see ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU: C:2020:681, paras 39–41, 51–52. 190 See Thym, Bird’s Eye View, p. 170–174; and Krommendijk, ‘The Preliminary Reference Dance between the CJEU and Dutch Courts in the Field of Migration’, European Journal of Legal Studies 10 (2018), p. 101–154. 191 By way of example, see ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU: C:2020:681, paras 39–41, 51–52. 192 See ECJ, Belastingdienst/Toeslagen, C-175/17, EU:C:2018:776, paras 41–46. 193 See ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU:C:2020:681, para 54. 194 See ECJ, D. & A., C-175/11, EU:C:2013:45, paras 72–73 in light of human rights. 195 See Majcher, Returns Directive, p. 172–183; Reneman, ‘Speedy Asylum Procedures in the EU’, IJRL 25 (2013), p. 717, 730–746; and, by way of example, ECJ, K & B, C-380/17, EU:C:2018:877, paras 56–63. 196 See ECJ, Samba Diouf, C-69/10, EU:C:2011:524, paras 66–68; and ECJ, Bevándorlási és Menekültügyi Hivatal (Tompa), C-564/18, EU:C:2020:218, paras 72–73; moreover, ECJ, Danqua, C-429/15, EU: C:2016:789, paras 41–48 concerned time limits for submitting an asylum application. 188

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Chp. 1 subsequent applications made during detention were accepted, although judges highlighted that national judges had to ascertain whether accompanying procedural rights, such as access to legal assistance, were practically available.197 While effectiveness will work to the benefit of individual claimants in most cases, it is not intrinsically linked to it. For instance, it stands in the way of domestic rules obliging domestic authorities to positively respond to an application for a residence permit for the sole reason that time limits had elapsed; non-compliance with time limits does not absolve the authorities from diligently applying the conditions laid down in secondary legislation.198 Conversely, the ECJ found that domestic rules obliging courts to take their decisions within a certain time frame may violate the principle of effectiveness if this prevents domestic courts from performing their oversight function effectively in light of contextual factors such as the workload, working conditions, or the difficulty of certain cases.199 Additional limitations can result from the fundamental right to an effective remedy, whose interpretation increasingly overlaps with the principle of effectiveness (see below MN 37b). Inspection of the ECJ case law shows that judges found a violation of the effectiveness 36c test in the majority of judgments. Such an outcome is no foregone conclusion, however, and can be rationalised by the practice of domestic courts primarily referring cases where they justifiably expect support from supranational judges to disapply problematic national rules. As a matter of principle, the ECJ recognises that it can be legitimate to curb legal remedies, for instance to guarantee that ‘applications for international protection should be dealt with expeditiously’200. Judges concluded that appeals to a higher court can be limited to matters raised before the lower court, even though this may result in certain aspects being excluded from legal oversight at second instance.201 They also confirmed, in the context of asylum, that the principle of legal certainty can outweigh the effectiveness test. Doing so, the ECJ had recourse to a line of judgments on other segments of the supranational legal order to confirm that administrative decisions and court rulings for which time limits for remedies or appeals have elapsed need not be automatically reversed even though they were based on an incorrect interpretation of Union law.202 Effectiveness is an essential tool to correct overly restrictive national rules but no all purpose tool.

5. Procedural Fundamental Rights Guarantees National rules on administrative and judicial procedure must comply with statu- 37 tory rules in EU legislation and the limits to the principle of procedural autonomy (see above MN 35–36c). Additional guarantees can be derived from the Charter of Fundamental Rights, which binds Member States whenever they are implementing Union law (see below MN 47–48). Procedural guarantees in the Charter can complement the principle of effectiveness as a limitation of state discretion in areas that are 197 See ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU:C:2020:681, paras 54–64 with additional comments on the special situation of an applicant residing abroad; and ECJ, T.H.C., C-755/19, EU:C:2021:108, paras 26–44. 198 See ECJ, Belgische Staat, C-706/18, EU:C:2019:993, paras 26, 34–36; and ECJ, Diallo, C-246/17, EU: C:2018:499, paras 44–49. 199 See ECJ, Bevándorlási és Menekültügyi Hivatal, C-406/18, EU:C:2020:216, paras 26–34. 200 ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU:C:2020:681, para 54. 201 ECJ, Bensada Benallal, C-161/15, EU:C:2016:175, paras 27–28 read in conjunction with the opinion of Advocate General Mengozzi, para 42 for the principle of effectiveness; additional limitations may flow from the principle of equivalence. 202 See ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, paras 185–187.

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not directly subject to supranational harmonisation (see above MN 36b).203 Procedural guarantees in the Charter deserve closer attention, since they transcend obligations of the Member States under general human rights law. Articles 41 and 47 of the Charter provide a higher level of protection than Articles 6 and 13 ECHR, which do not usually apply to immigration and asylum law and do not necessarily require a judicial remedy (see Thym, Legal Framework for EU Asylum Policy, MN 61). 37a The fundamental right to good administration in Articles 41 of the Charter is an innovative novelty that does not exist in many other human rights documents. While the provision directly binds the institutions and agencies of the Union only, the ECJ recognised that it can similarly be applied within domestic legal orders as an unwritten general principle of Union law in line with Article 6(3) TEU.204 Practical relevance depends on the state of affairs in domestic legal orders: Member States with sophisticated procedural statutory or constitutional guarantees will be less affected than countries with less developed administrative safeguards. In practice, the right to be heard under Article 42(2)(a) of the Charter205 and the obligation to give reasons in Article 42(2)(c) of the Charter have gained relevance, even though the ECJ refrains from laying down extensive requirements. It found, for instance, that the standard form for rejecting visa applications meets the obligation to state reasons, although the predefined answers are highly abstract (and are given in an official language of the Union only).206 In applying the right to be heard, which forms an integral part of the rights of the defence,207 judges do not necessarily follow the interpretation most beneficial to individuals. In a number of rulings, the ECJ sought to balance the right to be heard with countervailing public policy objectives,208 thus avoiding an outcome in which a violation of rights of the defence necessarily results in an annulment of the ensuing administrative or judicial decision.209 Unfortunately it is difficult to distil clear patterns from the case law, which fluctuates between irrelevance, substitution by court hearings and referral to the administrative authority. Generally speaking, judges are stricter when it comes to personal interviews in asylum proceedings, since secondary legislation specifies the implications of the right to be heard in great detail.210 Judges are also less strict under the Return Directive, which does not establish detailed hearing require203

See ECJ, El Hassani, C-403/16, EU:C:2017:960, paras 33–34. 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’, EuConst 9 (2013), p. 73–101. 205 Note that the scope ratione materiae of the provision is – unlike Article 47 of the Charter (see below MN 37c) – not limited to scenarios where individual statutory rights are at stake. 206 With regard to the less specific predecessor rule of Article 32 in conjunction with Annex VI of the revised Regulation (EC) No 810/2009, see ECJ, Minister van Buitenlandse Zaken, C-225/19 & C-226/19, EU:C:2020:951, paras 33–47, which did not concern the question of translation and found that additional remarks can be entered in the form. 207 See ECJ, M, C-560/14, EU:C:2017:101, para 25. 208 Remember that fundamental rights can be limited under Article 52(1) of the Charter; on the judicial practice, see ECJ, Sacko, C-348/16, EU:C:2017:591, paras 37–38. 209 See Sadowski, ‘A Safe Harbour or a Sinking Ship?’, European Journal of Legal Studies 11 (2019), p. 29, 52–53; Diekmann, Menschenrechtliche Grenzen des Rückführungsverfahrens in Europa (Nomos, 2016), p. 142–143; and De Bruycker/Mananashvili, ‘Audi alteram partem in Immigration Detention Procedures’, CML Rev. 52 (2015), p. 569, 582–587. 210 See ECJ, Addis, C-517/17, EU:C:2020:579, paras 64–71; and the more generous conclusion of ECJ, M, C-560/14, EU:C:2017:101, paras 32–33 on the predecessor instrument; more flexibility is given in the reverse scenario where a judicial decision is delivered without a second hearing in light of the detailed information in the administrative file; see ECJ, Sacko, C-348/16, EU:C:2017:591, paras 33–40, 45–48. 204

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Chp. 1 ments and where the absence of a hearing does not generally result in the illegality of the ensuing administrative decision.211 The right to an effective judicial remedy in Article 47 of the Charter plays a central 37b role, since it is often relied upon to challenge restrictive national provisos.212 Article 47 of the Charter must be interpreted in light of Articles 6 and 13 ECHR as a matter of principle213 – with the notable exception that the Charter, unlike Article 6 ECHR, extends to core area of immigration and asylum law (see above MN 37). This entails that independent internal administrative review structures do not usually meet the requirements of judicial independence in accordance with Article 47 of the Charter, although they are sufficient under Article 13 ECHR.214 The ECJ found that Article 13(1) Return Directive has to be interpreted in light of the Charter (see Mananashvili/Moraru, Directive 2008/115/EC, Article 13 MN 11–12). The provision has gained practical relevance in the field of asylum procedure in particular, where it increasingly supplants the principle of effectiveness as a limitation of national procedural autonomy.215 The contents of the right to an effective remedy must be analysed carefully in line with the complex supranational and international case law of the ECJ and the ECtHR.216 A good example that the case law does not always result in clear-cut answers are judgment on time limits (see above MN 36b). Moreover, it can be difficult for the ECJ and the ECtHR to develop uniform standards in light of the profound discrepancies between national procedural practices.217 Appeals against asylum decisions are an area in which some harmonisation was achieved in a serious of judgments interpreting Article 46(3) Asylum Procedures Directive (see Vedsted-Hansen, Directive 2013/32/EU, Article 46 MN 3a-4b), which did not distinguish neatly between statutory and constitutional requirements, thereby making it difficult to determine to what extent they can be applied to other areas of immigration law.218 The right to an effective remedy applies to ‘[e]veryone whose rights and freedoms 37c guaranteed by the law of the Union are violated’219 in the same way as Article 13 ECHR presupposes an arguable claim that another human right was violated.220 We know for certain that individual rights to which Article 47(1) of the Charter applies need not be fundamental rights but embrace statutory guarantees enshrined in secondary legislation, 211 See ECJ, Mukarubega, C-166/13, EU:C:2014:2336, paras 46–53; and ECJ, G. & R., C-383/13 PPU, EU:C:2013:533, paras 32–40; see also ECJ, Boudjlida, C-249/13, EU:C:2014:2431, paras 55–56; and Ilareva, Valeria: The Right to be Heard. The Underestimated Condition for Effective Returns and Human Rights Consideration, in: Madalina Moraru/Galina Cornelisse/Philippe De Bruycker (Hrsg.), Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union (Hart, 2020), p. 351–368. 212 See Bast, ‘Of General Principles and Trojan Horses’, GLJ 11 (2010), p. 1006, 1020–1023; and Acosta Arcarazo/Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’, JCMSt. 51 (2013), p. 179–193. 213 See ECJ, Toma & Biroul Executorului Judecătoresc Horaţiu-Vasile Cruduleci, C-205/15, EU: C:2016:499, para 40. 214 Contrast ECtHR, judgment of 26 October 2000 [GC], No. 30210/96, Kudła v. Poland, para 157 to ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/ 19 PPU, EU:C:2020:367, paras 1258–135. 215 On the often indeterminate interaction, see Reneman, Article 47 of the Charter, p. 60–64. 216 For a holistic analysis before the promulgation of most judgments mentioned hereinafter, see Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014). 217 See Reneman, Article 47 of the Charter, p. 77–78; and von Danwitz, Europäisches Verwaltungsrecht (Springer, 2008), p. 11–140. 218 This applies in particular to the need for a comprehensive ex nunc assessment by national courts and their power to replace administrative decisions; see Reneman, Article 47 of the Charter, p. 67–73. 219 Article 47(1) of the Charter. 220 See ECtHR, judgment of 28 February 2008 [GC], No 37201/06, Saadi v. Italy, para 125 on Article 13 ECHR; and ECtHR, judgment of 14 September 2016 [GC], No 56665/09, Károly Nagy v. Hungary, paras 61–62 on Article 6 ECHR.

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such as the right to appeal of those refused entry at the external borders (see Epiney/ Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 13 MN 4–5). That distinction becomes relevant if the EU legislature decides to limit rights of appeal on the occasion of a legislative amendment, such as the revision of the Dublin III Regulation.221 If the application of Article 47 of the Charter presupposes the existence of an individual right, the abrogation of statutory guarantees can result in a parallel termination or limitation of the right to appeal, at least for as long as statutory guarantees are not simultaneously covered by a fundamental right. The wording of the Charter supports that interpretation,222 since it does not apply, unlike Article 42(2)(a) of the Charter on the administrative right to be heard,223 to any measure which might negatively affect someone, irrespective of whether the interest concerned corresponded to a statutory individual right.224 Whether secondary legislation establishes an individual right has to be decided on the basis of general principles of Union law, which are not crystal clear (see above MN 15). 37d Time is often a matter of great practical importance in border control, asylum and return procedures, in particular when individuals seek to remain on the territory of the Member States. An ‘effective remedy’ does not generally require automatic suspensive effect, including a right to remain on the territory during judicial proceedings. It is established case law that the frequently-cited ‘automatic suspensive effect’-requirement applies only if there is a a real risk of an irreversible human rights violation, in particular of Article 3 ECHR225 (not, however, for private and family life226). In doctrinal terms, automatic suspensive effect requires a domestic court to be able to issue a suspension order; states have a certain leeway how to organise the procedure provided that the result complies with human rights.227 The ECJ has explicitly endorsed this view. Article 47 of the Charter brings about a right to remain on the territory during court proceedings only if there is a danger of refoulement,228 in particular a 221 See See Article 33 of the Proposal for an Asylum and Migration Management Regulation, COM (2020) 610 of 23 September 2020; and Article 28 of the Proposal for a Dublin IV Regulation, COM(2016) 270 of 4 May 2016, which was repealed in 2020. 222 See AG Bobek, El Hassani, C-403/16, EU:C:2017:659, paras 74–84 emphasising that Article 47(1) of the Charter presupposes a ‘right’, not an ‘interest’; similarly, the established case law on Article 19(4) of the German Constitution, the Grundgesetz, which uses similar terminology and has traditionally been perceived to presuppose the existence on an individual right, whose scope is determined by the legislature unless fundamental rights prescribe otherwise. 223 See General Court, BRF & SHB Comercio e Industria de Alimentos v. Commission, T-429/18, EU: T:2020:322, para 83; and ECJ, Foshan Shunde Yongjian Housewares & Hardware v. Council , C-141/08 P, EU:C:2009:598, para 74. 224 Contra den Heijer, ‘Remedies in the Dublin Regulation: Ghezelbash and Karim’, CML Rev. 54 (2017), p. 859, 869–870, who suggested to interpret Article 47 of the Charter in line with ECJ, M.M., C-277/11, EU:C:2012:2479, paras 83–87, even though that judgment concerned Article 42(2)(a). 225 See the summary of general principles in ECtHR, judgment of 12 December 2016, No 16483/12 [GC], Khlaifia et al. v. Italy, paras 276–277; and ECtHR, judgment of 21 January 2011, No 30696/09 [GC], M.S.S. v. Belgium and Greece, paras 289–293. 226 See ECtHR, judgment of 13 December 2012 [GC], No 22689/07, De Souza Ribeiro v. France, paras 82–83. 227 ECtHR, judgment of 5 February 2002, No 51564/99, Čonka v. Belgium, para 79: ‘may prevent the execution of measures’; and ECJ, CPAS de Liège, C-233/19, EU:C:2020:757, paras 49–53; German lawyers, in particular, are advised not to confuse the ECtHR’s reference to ‘automatic suspensive effect’ with suspensive effect under the German administrative court procedure, since the ECtHR, ibid., requires either a judicial interim measure or the restoration of suspensive effect under German doctrine; see Thym, ‘Menschenrechtliche Feinjustierung des Dublin-Systems zur Asylzuständigkeitsabgrenzung’, Zeitschrift für Ausländerrecht (2011), p. 368, 374–376. 228 See ECJ, Gnandi, C-181/16, EU:C:2018:465, paras 54–56; ECJ, CPAS de Liège, C-233/19, EU: C:2020:757, paras 61–66; ECJ, Tall, C-239/14, EU:C:2015:824, paras 56–58; and ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 44–53.

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Chp. 1 real risk of inhumane or degrading treatment (see Thym, Legal Framework for EU Asylum Policy, MN 55–63). Automatic suspensive effect, where applicable, concerns the first instance of judicial review only; insofar as domestic law foresees a second instance, suspensive effect is no longer mandatory, even if a potential violation of non-refoulement obligations is at stake.229 The abstract requirement, in ECtHR case law, that remedies ‘must be available in 37e practice as well as in law’230 can have repercussions for diverse aspects, for instance regarding access to legal assistance or interpretation services. A good example is the situation in hotspots, which are often situated in the geographic periphery where legal assistance can be difficult or virtually impossible to obtain. Articles 20–23 Asylum Procedures Directive 2013/32/EU contains far-reaching statutory guarantees in this respect, while Article 13(3) Return Directive 2008/115/EC refers to the ‘possibility’ to obtain legal assistance without obliging state to make them factually available. There is complex human rights case law on conditions under which legal assistance is mandatory, possibly even free of charge in extreme cases, although judges do not recognise a generic and unconditional guarantee.231 Experts of migration law should recognise that it would have far-reaching practical implications beyond the scope of EU migration law to find otherwise. It is settled ECJ case law that preparatory acts or intermediate procedural decisions need not usually be subject to an independent legal remedy provided that domestic courts can review the legality of these preparatory or intermediate decisions indirectly at a subsequent stage, in particular in the context of legal challenges against the final outcome.232 The ECJ has applied data protection guarantees under Articles 7 and 8 of the 37 f Charter and Article 8 ECHR to migration control instruments, thereby indicating that the proliferation of databases in the fields of entry, visa, border control ad asylum policies (see Thym, Legal Framework for Entry and Border Controls, MN 10, 17b) is subject to fundamental rights requirements, which, generally, judges in Luxembourg have interpreted dynamically in the field of data protection. Applying the Charter to migration control instruments, the ECJ sought to balance countervailing interests, thereby signalling the double determination to insist, on the one hand, on compliance with fundamental rights, while recognising, on the other hand, that databases can support effective migration management.233 Notwithstanding scarce judicial practice, data protection presents us with a rich area for legal analyses, which experts of immigration and asylum law often ignore. It comprises complex rules on the scope of data being stored, access by public authorities depending on the objective pursued or time limits for data retention.234 In practice, human rights are often superseded by statutory guarantees in the General Data Protection Regulation (EU) 2016/679 and 229 See ECJ, Belastingdienst/Toeslagen, C-175/17, EU:C:2018:776, paras 22–24 paras 22–24, which also highlighted in paras 32–36 that Article 47 CFR does not require a second instance. 230 ECtHR, M.S.S. v. Belgium & Greece (Fn. 100), para 290. 231 See ECJ, DEB, C-279/09, EU:C:2010:811, paras 37–52; and ECJ, Boudjlida, C-249/13, EU: C:2014:2431, paras 64–70; for further reading, see Majcher, Izabella: The European Union Returns Directive and its Compatibility with International Human Rights Law. Analysis of Return Decision, Entry Ban, Detention, and Removal (Brill Nijhoff, 2020), S. 168–172; and Diekmann, Maren-Kathrin: Menschenrechtliche Grenzen des Rückführungsverfahrens in Europa (Nomos, 2016), p. 195–200. 232 See ECJ, Samba Diouf, C-69/10, EU:C:2011:524, paras 54–55; in line with ECJ, Safalero, C-13/01, EU:C:2003:447, paras 54–56. 233 See ECJ, A et al., C-70/18, EU:C:2019:823, paras 52 et seq.; and ECJ, U, C-101/13, EU:C:2014:2249, para 41. 234 See Majcher, Returns Directive, ch. 7; Vavoula, ‘The “Puzzle” of EU Large-Scale Information Systems for Third-Country Nationals. Surveillance of Movement and Its Challenges for Privacy and Personal Data Protection’, EL Rev. 45 (2020), p. 348–372; Brouwer, Digital Borders and Real Rights

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

III. Territorial Scope (Member State Participation) Mirroring the asymmetrical composition of the intergovernmental Schengen Agreement, EU immigration and asylum law contains country-specific opt-outs. More specifically, we need to distinguish different opt-out arrangements for Denmark and Ireland (as well as the United Kingdom before Brexit), which were fortified by procedural twists and a novel degree of selectivity in the Treaty of Lisbon. Unfortunately, the country-specific opt-outs do not follow a uniform rationale and are defined by enhanced degree of complexity. There are differences between the rules governing Denmark and Ireland (and the United Kingdom). Moreover, we are faced with two sets of rules for each of these countries: firstly, measures building upon the Schengen acquis laid down in the Schengen Protocol235 and, secondly, measures building the area of freedom, security and justice that do not form part of the Schengen acquis.236 These separate areas of legislation are governed by separate protocols, which lay down distinct and special procedures.237 Altogether, we therefore need to distinguish four distinct optout arrangements for the Ireland and Denmark and for measures (not) building upon the Schengen acquis.238 39 In practice, the recitals of secondary legislation indicate whether Ireland and Denmark are bound by the relevant instrument and whether it is considered to build upon the Schengen acquis. Usually, the information is contained in the last recitals. The overall picture emanating from these diverse arrangements is complex and can be difficult to monitor. In order to facilitate orientation, the introductions to the different parts of this volume include a list of all measures commented upon with an indication of whether they apply to Ireland or Denmark (and the United Kingdom before Brexit). Corresponding overviews can be found in the sections on border controls and visas (see Thym, Legal Framework for Entry and Border Controls, MN 5), immigration (see Thym, Legal Framework for EU Immigration Policy, MN 5) and asylum (see Thym, Legal Framework for EU Asylum Policy, MN 7). 39a It is a recurrent feature of EU decision-making that the choice of legal basis is politically contested whenever enhanced powers of the European Parliament or qualified majority voting in the Council apply to one possible legal basis only. In line with settled case law, the relevant legal basis has to be determined in light of the 38

(Martinus Nijhoff, 2008), p. 127 et seq.; and Heussner, Informationssysteme im Europäischen Verwaltungsverbund (Mohr Siebeck, 2007), p. 190 et seq. 235 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 v. Council, C-77/05, EU:C:2007:803, paras 54–68. 236 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 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). 237 Allegedly, two different working groups preparing the Amsterdam Treaty designed the rules and forgot to align their substance; later IGCs drafting the Treaty of Nice, the erstwhile Constitutional Treaty and the Treaty of Lisbon retained their distinct outline; cf. Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration’, CML Rev. 37 (2000), p. 345, 352. 238 The presentation in this section builds on Thym, Supranational Differentiation, p. 860–867.

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Chp. 1 predominant purpose and contents of the measure in question; in cases of doubt, the centre of gravity serves as the decisive factor.239 This raised the question in how far the non-participation of a Member State in decisions adopted on a specific legal basis (such as Articles 77–80 TFEU) can influence the determination. Judges answered the question to the negative: the application of the contents and purpose test is not affected by the opt-outs.240 Similarly, dual legal bases cannot be relied upon when decision-making procedures in the Council differ as a result of country-specific optouts; whenever the object and purpose test concludes that a measure similarly concerns migration and another topic, not subject to the opt-outs, two separate legal acts have to be adopted.241 Whenever the centre of gravity lies beyond the area of freedom, security and justice, Ireland and Denmark automatically participate in a measure if the centre of gravity is found not to concern border controls, visas, immigration or asylum policy. Thus, corollary rules on migration in broader trade or development cooperation agreements are adopted on the basis of Articles 206–210 TFEU (see Thym, Legal Framework for Entry and Border Controls, MN 15) in the same way as social security coordination for third country nationals can be based on single market rules or association policies whenever there is a sufficient nexus to these areas (see Thym, Legal Framework for EU Immigration Policy, MN 17).

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

239

See ECJ, Commission v. Council, C-411/06, EU:C:2009:518, paras 45–46. See ECJ, Commission v. Council, C-137/12, EU:C:2013:675, paras 43–44; and ECJ, C-81/13, United Kingdom v. Council, EU:C:2014:2449, para 37. 241 See generally ECJ, Titandioxid, C-300/89, EU:C:1991:244, paras 17–18; and for the opt-outs ECJ, Opinion 1/15, Draft Agreement between Canada and the EU, EU:C:2017:592, paras 105–118; and EuGH, Istanbul Convention, Opinion 1/19, EU:C:2021:#, paras 302–337. 242 The Protocol on the Position of Denmark enshrined in firm Treaty rules the compromise at the 1992 European Council in Edinburgh, the legal status of which had remained precarious; cf. Howarth, ‘The Compromise on Denmark and the Treaty on European Union’, CML Rev. 31 (1994), p. 765–805. 243 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. 244 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. 245 Article 7 of the Protocol No 22 on Denmark allows for its renunciation at any time, also in part. Moreover, Article 8 allows for the substitution by a flexible British-style solution. 240

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referendum to switch to the more flexible Irish position, which also resulted in the departure from Europol.246 41 In line with its original compromise to participate in Schengen, while opposing supranationalisation, Denmark retains, with regard to measures building upon the Schengen acquis,247 the right to ‘decide within a period of 6 months … whether it will implement this decision in its national law.’ If it decides to do so, this creates ‘an obligation under international law between Denmark and other Member States.’248 Denmark is bound by measures building upon the Schengen acquis on the basis of public international law.249 The experience in recent years does not indicate any major political disputes or legal difficulties which were directly related to the opt-out.250 One reason for this comparatively trouble-free performance may be the similarity between the Danish position and the situation of the neighbouring countries Norway and Iceland, which are both associated with the Schengen acquis on the basis of an international association agreement (see Thym, Legal Framework for Entry and Border Controls, MN 29). Mirroring the Schengen Protocol, Denmark has associated itself with the Dublin II Regulation (EC) No 343/2003 on asylum jurisdiction through the conclusion of international agreements between Denmark and the Community/Union.251 The indirect participating via international agreements creates an excessive complexity, which is also legally problematic, since the ECJ decided with a view to Gibraltar that low-threshold intergovernmental cooperation can be illegal if it evades formal participation under the opt-out protocols.252 Politically, the EU institutions might have been motivated to accommodate the Danish desire to participate given that the government had tried unsuccessfully to switch to a flexible opt-out.

2. Ireland (and the United Kingdom) 42

The Irish position can only be understood against the background of decades of political debates about the role of the United Kingdom within the European Union, since the UK had always – unlike Denmark – objected to the political project of borderfree travel. Consecutive British governments had maintained that the geographical position of the British Isles, the traditional absence of domestic identification requirements (such as ID cards) and the symbolism of Schengen cooperation as a means for closer European integration warned against British participation.253 Nonetheless, the 246 53.1 % voted against, 46.9 % in favour of the government proposal; see https://en.wikipedia.org/wiki/ 2015_Danish_European_Union_opt-out_referendum [last accessed 1 June 2021]. 247 By contrast, initiatives which are not part of the Schengen acquis are subject to a strict opt-out. 248 Article 4(1) Protocol No 22 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 Europäisches Verfassungsrecht (Nomos, 2004), p. 110–114, available online at http://www.ungleichzeitigkeit.de [last accessed 1 June 2021]. 249 The Protocol refrains from defining of international law; in essence, general principles of Union law, such as direct and supreme effect, and the ECJ’s jurisdiction do not apply. 250 In 2011, the Danish government announced plans to reintroduce limited border controls at the insistence of the populist peoples’ party. The project was abandoned when the general elections in 2012 brought a centre-left government into power. 251 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; for Europol the Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and Europol of 29 April 2017 in line with Implementing Decision (EU) 2017/290 (OJ 2017 L 42/17) defined Denmark to be a third state (!) for the purposes of the Europol Decision. 252 See ECJ, Spain v. European Parliament & Council (Eurosur), C-44/14, EU:C:2015:554, paras 30–42. 253 See Wiener, ‘Forging Flexibility – The British ‘No’ to Schengen’, EJML 1 (1999), p. 441, 456–459 and the evidence in House of Lords Select Committee on the European Communities, Schengen and the United Kingdom’s Border Controls, 7th Report, Session 1998/99.

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Chp. 1 Labour government under Tony Blair’s leadership was willing to consent, at the final stages of the intergovernmental conference for the Amsterdam Treaty, to the integration of the Schengen acquis into the EU framework under the condition that Britain retained a special status with a 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.254 As in the case of monetary union, the asymmetry of the Schengen law was characterised by an inherent pragmatism: the opt-out was a compromise to secure the unanimity necessary for Treaty change which was necessary to integrate the Schengen Agreement into the EU framework.255 Upon closer inspection, the British/Irish opt-out is the most prolific expression of the 43 à la carte logic of principled freedom.256 Firstly, Ireland (and Britain) retain the right, during the legislative process, to ‘notify … that they wish to take part’ in the adoption of a proposal.257 On this basis, Ireland (and the United Kingdom) decided to participate in the legislative procedure ex ante for many (not all) measures on immigration and asylum (see above MN 39). Such opt-in was a one-way street towards closer integration, until the Lisbon Treaty granted Britain and Ireland the option of unilateral withdrawal (see below MN 45). Secondly, they retain the option of ex post accession. Ireland (and Britain) ‘may at any time request to take part in some or all of the provisions’ that define the original Schengen acquis or which have been adopted in other segments in the area of freedom, security and justice.258 Both countries joined important areas of the original Schengen cooperation, in particular the Schengen Information System, albeit without subscribing to the abolition of border controls.259 The combined effect of ex ante and ex post participation was quite constructive. Ireland’s freedom of choice is not absolute. The Schengen Protocol limits participa- 44 tion to proposals and initiatives ‘which are capable of autonomous application.’260 This meant, in the eyes of the Council, that two British requests for participation in the borders agency 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.261 The ECJ confirmed this standpoint in two judgments which demonstrated a certain willingness on the side of the Court to ensure that the opt-outs do not undermine the uniform and coherent application of Schengen law.262 Since the Lisbon Treaty leaves the relevant provisions intact, this case law remains relevant: Ireland may not sign up to 254 See Fahey, ‘Swimming in a Sea of Law’, CML Rev. 47 (2010), p. 673, 679–682 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. 255 See Thym, Supranational Differentiation, p. 852–855. 256 See Thym, Supranational Differentiation, p. 851–852. 257 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). 258 See Article 4 Schengen Protocol and Article 4 Protocol No 21. 259 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). 260 Advocate General Verica Trstenjak, United Kingdom v. Council, C-77/05, EU:C:2007:419, para 107. 261 Legally, both disputes concerned the delimitation of Articles 4–5 Schengen Protocol and the (more flexible) rules of Protocol No 21 (n 237); see ECJ, United Kingdom v. Council, C-77/05, EU:C:2007:803; and ECJ, United Kingdom v. Council, C-137/05, EU:C:2007:805. 262 See Fletcher, ‘Schengen, the European Court of Justice and Flexibility under the Lisbon Treaty’, EuConst 5 (2009), p. 71, 83–88.

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measures building on the Schengen acquis if they require the application of the broader legislative or operative context.263 45 During the intergovernmental conference drafting the Lisbon Treaty, the British government demanded and obtained further flexibility.264 London insisted upon the right to opt out of amendments of instruments in whose adoption it had earlier decided to participate.265 Again, Ireland followed the example of its neighbour. By means of a simple declaration, it may withdraw itself from an ongoing legislative process, although it is bound by the instrument the other Member States want to modify – an option Britain chose to use for the revision of the Asylum Qualification Directive.266 From the perspective of legal certainty, it is regrettable that Ireland will continue to be bound by previous rules, even if these rules are repealed with regard to all other Member States as a result of the amendment.267 If the Irish excluded themselves from amendments, the Council could vote against continued participation in related instruments if such ‘rump’ legislation cannot be applied effectively.268 The example of Frontex demonstrates that the ECJ may support the Council in cases of conflict (see above MN 44). 45a As a result of Brexit, the UK stopped being bound on 1 January 2021 when the transitional period under the Withdrawal Agreement came to an end. As a result, Brexit had a paradoxical effect in the field of migration: even though the desire to ‘take back control’ played a prominent role in the debate prior to the Brexit referendum,269 withdrawal may complicate British policy towards third country nationals. While it had benefited from a flexible opt-in option as a Member State and decided to participate in the Schengen Information System or the Dublin II and III Regulation, it cannot do so any longer. Instead, it may have to pay a political ‘price’ to convince Brussels to join existing initiatives on the basis of an international agreement.270 This was confirmed during negotiations on the Trade and Cooperation Agreement during which the EU rejected the British proposal of a readmission agreement that could have served as a partial replacement for the Dublin III Regulation.271 Nevertheless, the British government changed domestic regulations to allow the rejection of asylum claims on the basis of a safe third country provision, which includes EU countries under the condition that they are willing to take-back a 263 See Wilderspin, ‘Article 77 TFEU’, in: Kellerbauer/Klamert/Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), paras 9–10; and Piris, The Lisbon Treaty (CUP, 2010), p. 199. 264 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. 265 See Article 5(2)–(5) Schengen Protocol and Article 4a Protocol No 21. 266 Contrast Recital 50 of the Asylum Qualification Directive 2011/95/EU to Recital 38 of the former Asylum Qualification Directive 2004/83/EC. 267 Legally, the repeal of the earlier measure through new legislation does not extend to the United Kingdom, since the latter is not bound by the amendment; 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. 29–33. 268 See Article 5(3) Schengen Protocol and Article 4a(2) Protocol No 21. 269 See Curtice, ‘Why Leave Won the UK’s EU Referendum’, Journal of Common Market Studies Special Edition 55 (2017), p. 19, 21–23, 28–29. 270 See Thym/Wendel, ‘Immigration after Brexit. Ironies and Challenges’, in: Pernice/Guerra Martins (eds), Brexit and the Future of EU Politics. A Constitutional Law Perspective (Nomos, 2019), p. 185; and Thym, ‘The Irony of Brexit for Immigration Control’, EULawAnalysis of 20 October 2017, available at http://eulawanalysis.blogspot.com/2017/10/the-irony-of-brexit-for-immigration.html [last accessed 1 June 2021]. 271 See Hulme, ‘Analysis of the United Kingdom’s Proposal for a UK-EU Readmission Agreement’, EULawAnalysis of 20 August 2020, available at http://eulawanalysis.blogspot.com/2020/08/analysis-ofunited-kingdoms-proposal.html [last accessed 1 June 2021].

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Chp. 1 person and without the need for a meaningful link with the country concerned.272 It also indicated its political intention to negotiate bilateral readmission agreements ‘with the most concerned Member States.’273 With regards to the status of British nationals residing in the EU and Union citizens living in UK, we have to distinguish between the acquired rights of those who moved to the other country before the end of the transitional period under the Withdrawal Agreement and the limited guarantees for those entering after 1 January 2021 on the basis of the new Trade and Cooperation Agreement (see Thym, Legal Framework for EU Immigration Policy, MN 61). Moreover, bilateral agreements or political arrangements on other questions, such as border control cooperation, continue to apply and may be extended in the coming years. They exist in particular between France, Ireland and the United Kingdom.

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

1. Charter of Fundamental Rights The entry into force of the Treaty of Lisbon rendered the Charter of Fundamental 47 Rights legally binding; the rights and principles therein ‘shall have the same legal value as the Treaties’274. Respect of the Charter is mandatory for the EU legislature and can be enforced in actions for annulment before the Court of Justice irrespective of whether the recitals of EU legislation invoke the Charter expressly.275 Moreover, directives and regulations have to be interpreted in accordance with the Charter as far as possible in cases of potential conflict (see above MN 14). Aside from the EU institutions, Member 272 See ‘UK to Deny Asylum to Refugees Passing through “Safe” Third Country’, The Guardian of 10 December 2020, available at https://www.theguardian.com/uk-news/2020/dec/10/uk-to-deny-asylumto-refugees-passing-through-safe-third-country [last accessed 1 June 2021]. 273 See the Joint Political Declaration on Asylum and Returns (OJ 2020 L 444/1477). 274 Article 6(1) TEU. 275 See Article 258(2) TFEU; alternatively, domestic courts can send preliminary references under Article 267 TFEU, which are 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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States are bound by the Charter but ‘only when they are implementing Union law.’276 In its Åkerberg Fransson judgment, the ECJ maintained that Member States are bound ‘within the scope of European Union law.’277 The Charter is, so to say, the ‘shadow’ of Union law; just as an object defines the contours of its shadow, the scope of EU law determines that of the Charter.278 Despite that seemingly clear-cut starting-point, the precise meaning of Article 51 of the Charter has been (and still is) subject to debates in judicial and academic circles. 47a ECJ judgments indicate that Member States are bound by the Charter whenever state action responds to an obligation under EU law. Thus, domestic rules transposing a directive or administrative activities applying supranational rules can be assessed in light of the Charter.279 By contrast, the Charter does not apply, whenever EU legislation does not regulate subject areas or categories of persons. One may activate national constitutions or the ECHR instead, but the ECJ does not hold jurisdiction on these instruments.280 Any domestic application of the Charter requires, therefore, careful analysis of whether the factual circumstances of the dispute and the domestic rules in question are covered by EU legislation on immigration and asylum ratione materiae, personae, temporis and loci. This means, by way of example, that the Charter applies to the living conditions of those with subsidiary protection status as far as Articles 20–35 Asylum Qualification Directive 2011/95/EU regulate their status, while the same subject areas cannot be analysed in light of the Charter for those awarded complementary humanitarian protection under domestic law outside the scope of EU legislation.281 Similarly, the Charter applies only to those border control activities for which the Schengen Borders Code or related instruments lay down obligations that the national border police has to respect.282 The Charter serves as a yardstick for the criteria for the selection of who gets funding, while the projects as such are not subject to supranational human rights.283 Notwithstanding these caveats, it is well established that the exercise of national implementing discretion can be judged in the light of the Charter in cases when Member States have different options how to achieve the objective prescribed in a directive or regulation.284 By contrast, the activation of an optional clause not to apply secondary legislation to specific scenarios cannot – in contrast to implementing discretion – be assessed in light of the Charter.285 The same applies to domestic rules transcending minimum harmonisation in secondary legislation 276

Article 51(1) TFEU. ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 19; for further comments, see Thym, ‘Separation versus Fusion’, EuConst 9 (2013), p. 391–419. 278 See Lenaerts/Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’, in: Peers/ Hervey/Kenner/Ward, The EU Charter, p. 1559, 1568. 279 For typologies, see Pirker, ‘Mapping the Scope of Application of EU Fundamental Rights’, European Papers 3 (2018), p. 133–156; Fontanelli, ‘Implementation of EU Law through Domestic Measures after Fransson’, EL Rev. 39 (2014), p. 682, 689–697; and Thym, ‘Blaupausenfallen bei der Abgrenzung von Grundgesetz und Grundrechtecharta’, Die Öffentliche Verwaltung (2014), p. 941, 948–950. 280 ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 44 rejected an autonomous interpretation of the ECHR in areas not covered by Union law and the EU Charter. 281 See ECJ, M‘Bodj, C-542/13, EU:C:2014:2452, paras 42–46; and ECJ, Ajdini, C-312/12, EU: C:2013:103, para 25. 282 See ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–42. 283 See Ladenburger, ‘Session on Protection of Fundamental Rights Post-Lisbon’, in: Laffranque (ed), The Protection of Fundamental Rights Post-Lisbon, Reports of the XXV FIDE Congress, Vol. 1 (Tartu UP, 2012), p. 165–167; and ECJ, Soukupová, C-401/11, EU:C:2013:223, paras 28–31. 284 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, European Parliament v. Council, C-540/03, EU:C:2006:429, paras 22–23, 104–105. 285 See ECJ, Land Oberösterreich, C-94/20, EU:C:2021:477, paras 45–58. 277

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Chp. 1 or abstract competences in Articles 77–80 TFEU before the adoption of secondary legislation: these situations do not bring about an application of the Charter.286 Domestic procedural rules must respect the Charter when they are applied to substantive EU rules (see above MN 37–37c). When interpreting the Charter, the meaning of specific guarantees can often be 48 identified under recourse to the ECHR and corresponding case law of the ECtHR, since Article 52(3) of the Charter calls for a parallel interpretation of both instruments whenever it contains rights which are corresponding to guarantees in the ECHR.287 For our purposes, parallel interpretation concerns primarily the prohibition of torture and inhuman or degrading treatment (Article 3 ECHR, Article 4 Charter),288 human rights-based nonrefoulement obligations (Article 3 ECHR, Article 19(2) Charter),289 the respect for private and family life (Article 8 ECHR, Article 7 Charter),290 the prohibition of collective expulsions (Article 4 Additional Protocol No 4 to the ECHR, Article 19(1) Charter)291 and equal treatment (Article 14 ECHR, Article 21 Charter)292. While protection against unlawful detention (Article 5 ECHR, Article 6 Charter)293 is defined by a principled coherence, judges in Luxembourg have occasionally emphasised the autonomy of Union law, thereby indicating potential differences (see Thym, Legal Framework for Entry and Border Controls, MN 44–45). A higher level of protection is enshrined in Articles 18, 24 and 47 of the Charter. Notwithstanding occasional disagreement, it is standard practice for EU judges in Luxembourg to refer to the case law of the human rights court in Strasbourg, even though the EU has not yet acceded formally to the ECHR (see below MN 51). When interpreting the Charter, the official explanations agreed upon at the time of 49 negotiations 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 be justified if they pursue a legitimate aim in a proportionate manner.294 When it comes to the contents, the Charter contains both individual rights and abstract ‘principles’, in particular in Title IV on solidarity, which require implementation by means of either Union or domestic legislation.295 Principles can be applied by courts only in conjunction with implementing measures, although the precise degree of legal obligations remains uncertain.296 In practice, principles concern primarily the social rights enshrined in Articles 27 to 38 of the Charter. 286 See ECJ, TSN & AKT, C-609/17 & C-610/17, EU:C:2019:981, paras 46–52; and ECJ, Julian Hernández et al., C-198/13, EU:C:2014:2055, para 36. 287 See Article 52(3) of the Charter. 288 On parallel interpretation, see ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, paras 86–88, 109–114, which simultaneously clarified that the Charter does not contain a higher level of protection than the ECHR. 289 ECJ, Tall, C-239/14, EU:C:2015:824, paras 53–54 confirmed that Article 19(2) of the Charter represents a codification of case law of the ECtHR on Article 3 ECHR. 290 On parallelism, see ECJ, McB., C-400/10 PPU, EU:C:2010:582, para 53. 291 Although the ECJ has not yet affirmed the parallelism, it ensues from Article 52(7) of the Charter in conjunction with the Explanations relating to the Charter (OJ 2007 C 303/17), p. 24; the autonomy of the Charter ensures that even Member States that have not ratified Supplementary Protocol No 4, such as Greece, are bound to observe Article 19(1) of the Charter. 292 See ECJ, X, Y & Z, C-199/12–C-201/12, EU:C:2013:720, para 54. 293 On the need for coherence, see ECJ, N, C-601/15 PPU, EU:C:2016:84, paras 44–47; and ECJ, K, C-18/16, EU:C:2017:680, para 32, 50–52, which also emphasised the autonomy of Union law and advanced cautious differentiation, which need not necessarily mean a higher level of protection. 294 A generic provision on the justification of restrictions can be found in Article 52(1) of the Charter. 295 See Article 52(5) of the Charter, which leaves open which provisions guarantee individual rights or contain only ‘principles’. 296 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 Jääskinen, ‘Fundamental Social Rights in the Charter’, in: Peers/Hervey/Kenner/Ward, The EU Charter, p. 1703–1714.

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The relevance of individual guarantees will be discussed in the thematic introductions to the different chapters of this Commentary. Relevant provisions include procedural guarantees for administrative proceedings and judicial review, including data protection (see above MN 37–37 f). With regard to border controls and visas, the extraterritorial application and the relative liberty of public authorities in regulating access by migrants to EU territory, search and rescue and rules on detention are pertinent (see Thym, Legal Framework for Entry and Border Controls, MN 32–46). In the context of legal migration, the guarantee of private and family life and the rights of the child in Articles 7 and 24 of the Charter (see Thym, Legal Framework for EU Immigration Policy, MN 52–58), the provisions on equal 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 the right to asylum and non-refoulment obligations in Articles 4 and 18 of the Charter are crucial for asylum law, since they reaffirm guarantees under the ECHR (see Thym, Legal Framework for EU Asylum Policy, MN 55–63). Moreover, other provisions may have an indirect effect, including human dignity297 or the social rights and principles (see above MN 49).298 Few ECJ judgments have explored this potential so far, but judges in Luxembourg might do so.299

2. European Convention on Human Rights 51

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

297 See the prohibition of certain interrogation techniques to determine whether an asylum seekers is gay or lesbian by ECJ, A, B & C, C-148/13–C-150/13, EU:C:2014:2406, paras 65–66; and ECJ, F, C-473/ 16, EU:C:2018:36, paras 27–53; in both cases the reference to Art. 1 of the Charter remained abstract as one argument amongst others. 298 See ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 92; and the far-reaching proposal by Inglese, ‘The Right to Healthcare in the Common European Asylum System’, EJML 20 (2018), p. 135–156. 299 For a rich analysis see Sánchez Iglesias, ‘The Constitutional Status of Foreigners and EU Citizens’, in: Thym (ed), Questioning EU Citizenship (Bloomsbury/Hart, 2017), p. 243–266. 300 See ECJ, Accession to the ECHR, Opinion 2/13, EU:C:2014:2454. 301 See ECJ, ibid., paras 192–195. 302 At present, the ECtHR would deny jurisdiction, in line with ECtHR, judgment of 30 June 2005 [GC], No 45036/98, Bosphorus Airways v. Ireland, paras 149–158. 303 See ECJ, ibid., paras 189–190.

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Chp. 1 the ECtHR, while the principled orientation of the Charter at the ECHR guarantees widespread convergence in regular circumstances (see above MN 48). Unlike many international agreements, such as the Refugee Convention, the ECHR 51a establishes a mandatory court system providing for authoritative interpretation and enabling anyone to seek redress against an alleged violation of fundamental rights before the European Court of Human Rights (ECtHR). People who are not familiar with EU law should make an effort not to confuse the ECtHR in Strasbourg with the ECJ in Luxembourg. While the latter can apply supranational EU legislation to the 27 Member States of the European Union, the former is responsible for applying the ECHR to the 47 members of the Council of Europe. While the ECJ is usually consulted indirectly via domestic courts sending preliminary references to Luxembourg, the ECtHR can be seized directly by individuals (not only nationals) who have exhausted local remedies.304 Over the past two decades, a great number of applicants have seized the ECtHR in immigration and asylum matters, thereby stretching the ECtHR’s institutional resources.305 One way of responding to the immense workload is to actively engage domestic courts.306 Judges in Strasbourg have made a deliberate effort in recent years to lay down clear standards that can guide the effectively application of the ECHR by domestic courts.307 Judgments of the Grand Chamber are particularly relevant in this respect. Many rulings distinguish between abstract ‘general principles’ and the ‘application to the present case’, thereby allowing readers from academia or practice to identify the standards that can be generalised. The case law will be discussed in the introductory chapters on the subject area for 52 which it is most relevant. Article 1 ECHR and to a lesser extent Article 5 ECHR are central to the debate on extraterritorial jurisdiction and corresponding guarantees to enter EU territory (see Thym, Legal Framework for Entry and Border Controls, MN 32–45). Private and family life under Article 8 ECHR and equal treatment under Article 14 ECHR are particularly important for those residing in the EU already (see Thym, Legal Framework for EU Immigration Policy, MN 37–42, 52–58). The prohibition of inhuman and degrading treatment as well as the guarantee of an effective remedy in line with Articles 3 and 13 ECHR inform the analysis of asylum law (see Thym, Legal Framework for EU Asylum Policy, MN 56–60).

3. Refugee Convention and International Human Rights Article 78(1) TFEU mandates that the EU asylum acquis complies with the Refugee 53 Convention and the 1967 Protocol relating to the status of refugees and other relevant treaties. This obligation has been put into effect by the ECJ, which reaffirmed, in a number of judgments, that the EU asylum acquis must be interpreted taking into account the Geneva Convention (see Thym, Legal Framework for EU Asylum Policy, MN 47–54). From a legal perspective, this obligation to respect the Geneva Convention and the 1967 Protocol flows from EU primary law, since the EU has not formally acceded to the Refugee Convention or assumed the functions of Member States by means of functional succession (as it had previously done with regard to the GATT Agreement).308 As a result, 304

Articles 1 and 34 ECHR do not distinguish between nationals and foreigners. See the former President Wildhaber, ‘Ein Überdenken des Zustands und der Zukunft des Europäischen Gerichtshofs für Menschenrechte’, Europäische Grundrechte-Zeitschrift (2009), p. 541–553; and, more generally, Greer, The European Convention on Human Rights (CUP, 2006), chs 2–3. 306 The so-called ‘principle of subsidiarity’ was reinforced by the Protocol Nos 14–16 to the ECHR (CETS Nos 204, 213, 214). 307 See Gerards, General Principles of the European Convention on Human Rights (CUP, 2019), ch. 2. 308 See ECJ, Qurbani, C-481/13, EU:C:2014:2101, paras 22–29. 305

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the ECJ holds no autonomous jurisdiction to interpret the Refugee Convention; it only does so in conjunction with secondary Union law, in particular the Asylum Qualification Directive 2011/95/EU. Recital 23 of the Directive states explicitly that its provisions should ‘guide the competent national bodies of Member States in the application of the Geneva Convention.’ 54 International human rights treaties are not directly binding upon the European Union, since it has not acceded to them under international law. They can however be relied upon indirectly as a source of inspiration for the interpretation of the unwritten general principles of Union law that complement the human rights in the Charter.309 On this basis, the ECJ recognised explicitly that the International Covenant on Civil and Political Rights (ICCPR) can be relied upon in order to identify the contents of EU human rights,310 although judicial practice has remained sketchy, partly because ICPR guarantees usually fall short of the ECtHR jurisprudence.311 In line with established ECJ case law, other international agreements can be considered legally binding if they have been ratified by all Member States. This means that the UN Convention on the Rights of the Child312 and the European Social Charter313, as well as the UN314 and the European315 conventions against torture316 can be relied upon in order to identify unwritten principles of European Union law. When applying these conventions we have to ensure that potential reservation or interpretative declarations of the Member States, which are particularly widespread in the case of the European Social Charter, are respected; EU law cannot be used to bypass these caveats. A particular case is the UN Convention on the Rights of Persons with Disabilities, which was ratified by the EU as a state party.317 54a Treaty bodies established under international human rights instruments are, unlike the ECJ or the ECtHR, no international courts with the power to authoritatively decide individual cases or to lay down the authentic interpretation of human rights treaties. It was explicitly recognised by the ECJ that the ‘opinions’ or ‘views’ of international treaty bodies, such as the Human Rights Committee, are not usually legally binding.318 However, that does not render them irrelevant. Their position presents one view among many in which direction human rights law can develop. They have gained visibility within the European debate in recent years.319 309 Cf. Article 6(3) TEU, although the provision does not list international human rights treaties explicitly; for further reflection, see Rosas, ‘The Charter and Universal Human Rights Instruments’, in: Peers/Hervey/Kenner/Ward, The EU Charter, p. 1685–1702. 310 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, para 37. 311 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. 312 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, para 37. 313 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, para 39; the European Social Charter has a certain impact in the field of family reunion, see Hailbronner/Arévalo, Directive 2003/86/ EC Article 3; generally, see O’Cinnéide, ‘Migrant Rights under the European Social Charter’, in: Costello/ Freedland (eds), Migrants at Work (OUP, 2014), p. 282–302. 314 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 1 July 2020]. 315 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 1 June 2021]. 316 Their relevance for the general principles of EU law has not been recognised explicitly by the ECJ yet. 317 UNTS Vol. 2515, p. 3; by way of example, see ECJ, Z., C-363/12, EU:C:2014:159, paras 73–90. 318 See ECJ, Grant, C-249/96, EU:C:1998:63, para 46; for further reading, see Tomuschat, Human Rights, 3rd edn (OUP, 2014), chs 6–8. 319 See Çalı/Costello/Cunningham, ‘Hard Protection through Soft Courts?’, German Law Journal 21 (2020), p. 355–384.

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Chp. 1 By contrast, the European Union is not bound by international human rights treaties 55 that have not been ratified by all Member States (see above MN 54).320 This implies that the UN Convention on Migrant Workers321 has no legal effect in the EU legal order, since it has not been ratified by a single EU Member State.322 The same applies to most Conventions of the International Labour Organisation, most of which have not been ratified by all EU Member States and which cannot be relied upon as a legal yardstick for judicial review in the field of EU immigration and asylum law as a result.323 Finally, most international treaties concluded within the framework of the Council of Europe with a potential impact upon migration law obtained only a limited number of ratifications (see below MN 59) – with the notable exception of the European Convention of Human Rights and the European Social Charter, which form the bedrock of Europe’s regional human rights obligations thus far (see MN 51, 54).

4. Other International Agreements With regard to international treaties on other themes than human rights, one should 56 distinguish between treaties between the EU and third states (or international organisations) and treaties of the Member States (see below MN 58). In so far as international agreements concluded by the European Union are concerned, it should be remembered that the ECJ has categorically upheld that the EU Treaties have established an autonomous supranational legal order distinct from public international law ever since the seminal Costa/E.N.E.L. judgment.324 It maintains, on this basis, that the legal effects of international agreements in the EU legal order are determined by the latter. It is settled case law that international agreements concluded by the EU institutions ‘form an integral part of [Union] law’325 and can benefit, as a result, from the same effects as regular EU law within the domestic legal orders of the Member States, including primacy over national law in cases of conflict.326 The ECJ assumes, moreover, that international agreements can be relied upon to challenge the validity of EU legislation.327 Provisions of international agreements concluded by the EU have a 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,328 nor can the European Convention on Human Rights and corresponding ECtHR case law (see above MN 51). The practical relevance of international agreements concluded by the EU is compro- 57 mised significantly by settled ECJ case law rendering the effects mentioned above subject 320 Cf. argumentum e contrario ECJ, European Parliament v. 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. 321 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 1 June 2021]; for further comments, see Cholewinski, Migration and Human Rights. The United Nations Convention on Migrant Workers’ Rights (CUP, 2009); and Desmond, ‘The Triangle that Could Square the Circle?’, EJML 17 (2015), p. 39–69. 322 Cf. the list of ratifications at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4 [last accessed 1 June 2021]. 323 For an overview of the ILO instruments, see Wiesbrock, Legal Migration, p. 247–252. 324 Cf. ECJ, Costa v. E.N.E.L, 6/64, EU:C:1964:66. 325 ECJ, Haegemann II, 181/73, EU:C:1974:41, para 5. 326 On the conditions for direct applicability and primacy, see below MN 57. 327 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. 328 Cf. ECJ, Kadi & Al Baraak v. Council & Commission, C-402/05 & C-415/05 P, EU:C:2008:461, in part. paras 305–309.

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Constitutional Framework and Principles for Interpretation

to direct applicability. Provisions in international treaties that are not directly applicable cannot be relied upon by individuals or national courts to challenge the validity of secondary Union legislation or domestic rules.329 In the absence of direct applicability, the ECJ also excludes indirect effects, such as consistent interpretation.330 In assessing whether international treaties can be directly applied, the ECJ highlights their international legal character and the corresponding applicability of the Vienna Convention on the Law of Treaties in the context of interpretation of agreements concluded by the EU,331 which may deviate from the interpretative standards for supranational EU law (see above MN 10–20). While the ECJ has traditionally been rather strict towards international agreements of global reach, such as world trade law or the Convention on the Law of the Sea, it is more generous when it comes to association agreements.332 Among the association agreements, the Ankara Agreement between the EEC and Turkey has become particularly relevant (see above MN 19; and Thym, Legal Framework for EU Immigration Policy, MN 60), while the agreements with the UK contain explicit clauses to what extent they can be relied upon in national courts (see Thym, Legal Framework for EU Immigration Policy, MN 61). Interpretation in light of public international law implies, moreover, that even provisions with an identical wording may have a different meaning than equivalent rules in EU legal instruments.333 58 International agreements concluded by Member States (not the European Union) are not binding on the EU institutions under public international law. While international human rights instruments ratified by all Member States can be invoked indirectly (see above MN 54), other agreements concluded by Member States cannot be relied upon in the EU legal order, even if they have been ratified by all Member States: the ECJ maintains that such agreements can only be invoked if they reflect customary international law and are directly applicable334 – a double condition that is rarely met. In so far as these agreements were concluded prior to EU accession (or the conferral of corresponding competences to the EU level), they may benefit from the safeguard clause in Article 351 TFEU, which provides that the EU Treaties and secondary legislation do not prevent Member States from fulfilling their obligations under pre-existing agreements with third states.335 This safeguard for earlier agreements is static, i. e. Member States loose the capacity to amend them.336 In practice, respect for existing obligations is often guaranteed through explicit safeguard clauses in EU secondary legislation stating that Member States remain free to retain more favourable national provisions in line with international agreements (see above MN 32–33). From a legal point of view, these provisions are declaratory in nature in so far as they relate to pre-existing agreements concluded prior to accession to the European Union that are covered by Article 351 TFEU. 59 Insofar as safeguard clauses in secondary legislation refer to existing agreements, the latter have to be ratified before the adoption of EU measure in question. They can concern bilateral treaties on commerce and navigation, which never gained much 329

See ECJ, Z., C-363/12, EU:C:2014:159, paras 84–86. See Thym, ‘Foreign Affairs’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 309, 320–323. 331 See ECJ, Walz, C-63/09, EU:C:2010:251, para 23. 332 See Thym, ‘Foreign Affairs’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 309, 322–323. 333 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. 334 Cf. ECJ, Intertanko, C-308/06, EU:C:2008:312, paras 48–52. 335 For more comments, see Koutrakos, EU International Relations Law, 2nd edn (Hart, 2015), ch. 9. 336 See ibid. and ECJ, Commission v. Austria, C-205/06, EU:C:2009:118. 330

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Chp. 1 influence in most domestic legal orders.337 More important are multilateral agreements within the framework of the Council of Europe, which – like the bilateral treaties on commerce and navigation – confer reciprocal rights only upon the nationals of state parties and did not gain much practical influence either.338 When discussing these agreements, it is necessary to assess existing ratifications on a case-by-case basis: the European Convention on the Legal Status of Migrant Workers of 1977 was ratified by eleven state parties, including six EU Member States and five third states339 and the European Social Charter is binding upon most Member States and many third states.340 The European Convention on Social and Medical Assistance of 1953 applies to several Member States as well as Norway, Iceland, the United Kingdom and Turkey341 and the European Convention on Establishment of 1955 was ratified by nine EU Member States as well as Norway, Iceland, the United Kingdom and Turkey.342 Given that the nationals of Norway and Iceland hold extensive rights under the EEA Agreement, the practical relevance of these conventions is extremely limited at present; they relate in particular to Turkish nationals residing legally in Member States to which the conventions apply. 337 See Paulus, ‘Treaties of Friendship, Commerce and Navigation’, in: The Max Planck Encyclopedia of Public International Law, OUP: online edition, http://www.mpepil.com, last updated March 2011, paras 9–13; and Randelzhofer, Der Einfluss des Völker- und Europarechts auf das deutsche Ausländerrecht (De Gruyter, 1980), p. 32–40. 338 See Oellers-Frahm, ‘The Contribution of the Council of Europe to the Legal Position of Aliens’, in: Frowein/Stein (eds), Die Rechtsstellung von Ausländern nach staatlichem Recht und Völkerrecht, Vol. 2 (Springer, 1987), p. 1725–1773; and Groenendijk, ‘Long-Term Immigrants and the Council of Europe’, EJML 1 (1999), p. 275, 286–288. 339 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 https://www.coe.int/en/web/conventions/full-list [last accessed on 1 June 2021]. 340 Convention of 18 October 1961, CETS No 35, entry into force on 26 February 1965; see ibid. 341 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 and Sweden; see ibid. 342 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 and Sweden; see ibid.

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PART B SECONDARY LEGISLATION ON ENTRY AND BORDER CONTROLS Chapter 2. Legal Framework for Entry and Border Controls Select Bibliography: Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011); Carrera/den Hertog/Panizzon/Kostakopoulou (eds), EU External Migration Policies in an Era of Global Mobilities. Intersecting Policy Universes (Brill, 2019); den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); Dubout, ‘Les enjeux constitutionnels du pouvoir de substitution de l’agence Frontex’, Revue trimestrielle de droit européen (2017), p. 457–476; Fernández Rojo, EU Migration Agencies. The Operation and Cooperation of Frontex, EASO and Europol (Elgar, 2020); Fink, Frontex and Human Rights (OUP, 2018); Foblets/Leboeuf (eds), Humanitarian Admission to Europe. The Law between Promises and Constraints (Nomos/Hart, 2020); Funke, ‘Primärrechtliche Grundlagen’, in: Wollenschläger (ed), Enzyklopädie Europarecht, Band X, 2nd edn (Nomos, 2021), § 16; García Andrade, ‘EU External Competences in the Field of Migration’, CML Rev. 55 (2018), p. 157–200; 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); Ippolito/Borzoni/Casolari (eds), Bilateral Relations in the Mediterranean. Prospects for Migration Issues (Elgar, 2020); Lehner, ‘Rechtliche Möglichkeiten zur Schaffung einer EU-Asylbehörde’, in: ibid./Wapler (eds), Die herausgeforderte Rechtsordnung (BWV, 2018), p. 183–221; Maes/Foblets/De Bruycker/Vanheule/Wouters (eds), External Dimensions of EU Migration and Asylum Law and Policy (Bruylant, 2011); Mancano, The European Union and Deprivation of Liberty (Hart, 2019); 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); Moreno-Lax, Accessing Asylum in Europe (OUP, 2017); Mungianu, Frontex and Non-Refoulement (CUP, 2016); Müller-Graff, ‘Article 67–80 TFEU’ in: Pechstein/Nowak/Häde (eds), Frankfurter Kommentar (Mohr Siebeck, 2017); Muzak, ‘Articles 77–80 TFEU’, in: Mayer/Stöger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 141th edn, 2012); Paoli, ‘France and the Origins of Schengen. An Interpretation’, in: Calandri/Paoli/ Varsori (eds), Peoples and Borders. Seventy Years of Migration in Europe, from Europe, to Europe [1945–2015] (Nomos, 2017), p. 255–280; Pastore, ‘Visas, Borders, Immigration’, in: Walker (ed), Europe’s Area of Freedom, Security and Justice (OUP, 2004), p. 89–143; Peers, EU Justice and Home Affairs Law. Vol. 1, 4th edn (OUP, 2016); Progin-Theuerkauf, ‘Artikel 77 AEUV’, in: von der Groeben/Schwarze/Hatje (eds), Europäisches Unionsrecht, Vol. 2, 7th edn (Nomos, 2015); Ripoll Servent/Trauner (eds), The Routledge Handbook of Justice and Home Affairs Research (Routledge, 2018); Siebold, ZwischenGrenzen. Die Geschichte des Schengen-Raums aus deutschen, französischen und polnischen Perspektiven (Ferdinand Schöningh, 2013); Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010); Thym, ‘The End of Human Rights Dynamism? Judgments of the ECtHR on “Hot Returns” and Humanitarian Visas as a Focal Point of Contemporary European Asylum Law and Policy’, IJRL 32 (2020), p. 569–596; Weiß, ‘Articles 77–80 TFEU’, in: Streinz (ed), EUV/AEUV. Kommentar, 3rd edn (C.H. Beck, 2018); Wilderspin, ‘Articles 77–80 TFEU’, in: Kellerbauer/Klamert/Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), p. 802–851; Zaiotti, Culture of Border Controls. Schengen and the Evolution of European Frontiers (University of Chicago Press, 2011). 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 Schengen Acquis.......................................................... 2. Territorial Scope (Member State Participation) .................................. II. Treaty Guidance under Article 77 TFEU .................................................. 1. Efficient Border Monitoring (Article 77(1) TFEU) ............................

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Chp. 2

Legal Framework for Entry and Border Controls 2. Scope of EU Competences (Article 77(2) TFEU) ............................... 7 a) Visas ......................................................................................................... 9 b) External Border Controls .................................................................... 16 c) Intra-European Free Movement ........................................................ 18 d) Integrated Border Management System .......................................... 19 e) Absence of Internal Border Controls ............................................... 22 3. Travel Documents (Article 77(3) TFEU) .............................................. 24 4. Geographical Demarcation of Borders (Article 77(4) TFEU) .......... 24a III. Overarching Principles .................................................................................. 24b 1. Maintenance of Law and Order (Article 72 TFEU) ........................... 25 2. External Relations....................................................................................... 28 IV. Human Rights and International Law ....................................................... 31 1. (No) Right to Enter the European Union............................................. 32 2. Extraterritorial Reach................................................................................. 38 3. Search and Rescue ...................................................................................... 42 4. Detention ...................................................................................................... 44

I. General Remarks 1. Evolution of the Schengen Acquis 1

In the 1970s, political actors discussed how to reinvigorate the European project. Heads of state or government considered a ‘Passport Union’, which anticipated core tenets of the later Schengen cooperation and which was meant to symbolise the political ambition to move towards a ‘People’s Europe’ and a ‘European Union.’1 At a summit in May 1984, the French President and the German Chancellor, François Mitterrand and Helmut Kohl, took up the idea and lanced the project of a border-free zone among a core group of Member States.2 Attempts to realise the project within the European Economic Community failed because of the reticence of the UK, scepticism towards some Member States and suspicion of the EU institutions, which favoured open borders over effective home affairs cooperation3 – in line with the objective of establishing an internal market as an ‘area without internal frontiers’4, which conceived of border controls as a ‘constant and concrete reminder to the ordinary citizen that the construction of a real European Community is far from complete.’5 France, Germany and the Benelux countries, which had abolished border controls amongst themselves 25 years earlier, signed a political commitment on the gradual abolition of checks at their common borders in 1985 in the idyllic town of Schengen on the Moselle river where the borders of France, Germany and Luxembourg meet.6 The latter paved the way for the ‘Convention Implementing the Schengen Agreement’ (CISA) of 1990 with detailed rules on the abolition of border 1 See the Commission Communication, A Passport Union. Implementation of Point 10 of the Final Communiqué Issued at the European Summit Held in Paris on 19 and 10 December 1974, COM(75) 322 of 2 July 1975 = Bulletin of the European Communities, Supplement 7/75. 2 The decision was taken at the highest political level without the involvement of ministries; see the archive-based studies of Paoli, France, p. 260–266; and Siebold, ZwischenGrenzen, p. 40–59. 3 For a fascinating survey of the debate among the Schengen countries and the supranational institutions during the 1980s, see Zaiotti, Culture of Border Controls, chs 4–6; Italy, in particular, had been excluded initially, because it was deemed an unreliable partner in home affairs by some national governments at the time; see Paoli, France, p. 263–265. 4 Article 26(2) TFEU. 5 Commission White Paper, Completing the Internal Market, COM(85) 310, para 47. 6 The Agreement on the Gradual Abolition of Checks at their Common Borders of 14 June 1985 (OJ 2000 L 239/13) 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.

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Chp. 2 controls and corresponding flanking measures.7 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.8 On this basis, intra-European border controls were gradually abandoned. Until today, we must distinguish between the applicability of the Schengen acquis and the effective abolition of border controls after accession following an evaluation procedure and an unanimous decision to put the common rules into effect.9 Thus, what had started off as an exclusive project among some Member States gradually turned into a pan-European vision of high symbolic importance.10 EU Member States with the exception of the UK and Ireland had 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. Legally, the incorporated Schengen acquis was (and continues to be) construed as a 2 specific form of enhanced cooperation whose establishment has already been authorised and which comprises all Member States with the exception of Ireland (as well as the United Kingdom before Brexit)11, along with rather complex rules on the association of Denmark and the status of 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 Schengen-related instruments.12 At the time of the Treaty of Amsterdam, the European Union thus absorbed the Schengen rulebook, which supplanted the largely unsuccessful intergovernmental justice and home affairs cooperation before and after the Treaty of Maastricht.13 Insofar as the amendment of existing rules are concerned, the Schengen Protocol reaffirmed unambiguously that all ‘proposals and initiatives … shall be subject to the 7 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. 8 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). 9 On gradual implementation, see the Joint Declaration Article 139(2), Final Act of the 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; on the legal dimension of accession, see Wilderspin, Article 77 TFEU, MN 3; on the political debate during the 1990s and 2000s, see Siebold, ZwischenGrenzen, p. 70–90. 10 On the ambiguous effects of differentiated integration between unity-building and disintegration see Thym, ‘Legal Solution vs. Discursive Othering: The (Dis)Integrative Effects of Supranational Differentiation’, DCU Brexit Institute – Working paper No 7/2018, available online at https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3235289 [last accessed 1 June 2021]. 11 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. 12 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; for the complex legal and political debate surrounding the integration, see Zaiotti, Culture of Border Controls, ch. 7. 13 For an overview, see Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), chs 1, 3; and O’Keeffe, ‘The New Draft External Frontiers Convention and the Draft Visa Regulation’, in: Monar/Morgan (eds), The Third Pillar of the European Union (Peter Lang, 1995), p. 135–149.

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Legal Framework for Entry and Border Controls

relevant provisions of the Treaties.’14 Many rules of erstwhile international treaties have been replaced by new legislative instruments on the basis of the legislative procedure, thus illustrating that the Schengen law has become regular European law. Today’s Schengen Borders Code Regulation (EU) 2016/399 and the Visa Code Regulation (EC) No 810/2009, which are commented upon in this volume, are the most prominent expression of the supranationalised Schengen law. 3 Whereas to many citizens ‘Schengen’ simply means they do not need a passport when crossing borders in continental Europe, the so-called flanking measures compensating national authorities for the loss of control options at domestic borders through panEuropean cooperation on issues such as visas, police cooperation, criminal matters and immigration, presented the focal point of policy debates.15 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,16 although deliberations became more balanced after the gradual extension of qualified majority voting in the Council and co-decision powers of the European Parliament (see Thym, Constitutional Framework, MN 3–4).17 While the ECJ had originally emphasised the inherent link between the flanking measures and the abolition of internal border controls,18 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 demarcation remains the prerogative of the EU legislature (see Thym, Constitutional Framework, MN 5–9). 3a Ever since the 1980s, the relationship between free travel and external control measures had been discussed controversially and complicated the initial success of the Schengen area, whose core features had been agreed before the fall of the Iron Curtain at a time of little migration from third states to Western Europe.19 After years of comparatively little disputes after the millennium,20 migratory movements hampered the Schengen cooperation during the 2010s. There were spats between France and Italy following a surge of irregular entries from Tunisia during the Arab spring as well as between Denmark and Germany, which attracted much media attention during 2011.21 Terrorist attacks and the migration and refugee policy crisis during 2015/16 resulted in a proliferation of internal border controls, which continued for ever longer 14 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’Intégration de Schengen dans l’Union Européenne’, Revue du Marché Commun (1999), p. 342–349. 15 See Zaiotti, Culture of Border Controls, ch. 5; and Siebold, ZwischenGrenzen, ch. 3. 16 See Guiraudon, ‘European Integration and Migration Policy’, JCMSt. 38 (2000), p. 251–271. 17 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; Ette, ‘Europe’s Core Member States’, in: Ripoll Servent/Trauner, Routledge Handbook, p. 229, 230–235; 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. 18 Cf. ECJ, Wijsenbeek, C-378/97, EU:C:1999:439, para 40 rejecting the direct applicability of Article 26 TFEU. 19 See Siebold, ZwischenGrenzen, p. 50–69; Paoli, France, p. 270–275; and Bigo, ‘Criminalisation of “Migrants”’, in: Bogusz et al. (eds), Irregular Migration and Human Rights (Martinus Nijhoff, 2004), p. 61, 73–80. 20 At the time, there were comparably few internal controls for short periods only, see the Commission Report on the Application of Title III (Internal Borders), COM(2010) 554 of 13 October 2010. 21 See the EP Plenary Debate, Migration flows and asylum and their impact on Schengen (2011/2689 (RSP)) of 10 May 2011; and Jørgensen/Sørensen, ‘Internal Border Controls in the European Union:

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Chp. 2 periods on different legal bases and did not always comply with the wording and spirit of the Schengen rules.22 The original idea of supporting the emergence of a European identity through the abolition of internal border controls (see above MN 1) threatened to turn itself against the European project, when national governments used internal border controls to convey a sense of closure and protection.23 During early 2020, the Schengen system experienced a dramatic phase during the COVID-19 pandemic, when most Member States reinstated internal border controls and restricted free movement dramatically.24 At the time of writing, it appeared as if the crisis had subsided after a few months with most Member States discontinuing border controls and travel restrictions and confirming their commitment to the Schengen area. A result of the crises during the 2010s was a political determination to reinforce 4 controls at the external borders.25 This move towards external closure reasserted that the Schengen cooperation and the formation of an ‘area of freedom, security and justice’ can be presented, conceptually, as an expression of the territorial dimension of the integration project with the European Union assuming selected state-like features, at least at a symbolic level.26 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’27 or, simply, of the ‘territory of the European Union.’28 Such ideas can even be traced back to dark episodes of European history, when Nazi academics, for instance, conceived the idea of a European ‘Großraum’ (greater area).29 Nevertheless, it should be recognised that 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.30 Linguistically, the English term ‘area’ has more Recent Challenges and Reforms’, EL Rev. 37 (2012), p. 249, 249–250; on the ensuing political reform, see Cornelisse, ‘What’s Wrong with Schengen?’, CML Rev. 51 (2014), p. 741, 757–762. 22 Cf. De Somer, ‘Schengen and Internal Border Controls’, in: De Bruycker/ibid./De Brouwer (eds), From Tampere 20 to Tampere 2.0 (EPC, 2019), p. 119, 120–122; and Guild et al., Internal Border Controls in the Schengen Area: Is Schengen Crisis-Proof?, EP doc. PE 571.356, June 2016, p. 38–56. 23 On the corresponding ‘symbolic’ significance of borders, see Brown, Walled States, Waning Sovereignty (Zone Books, 2010), ch. 4; and De Genova, ‘Spectacles of Migrant “Illegality”’, Journal of Ethnic and Racial Studies 43 (2013), p. 1180, 1082–1086. 24 For national practices, see Carrera/Chun Luk, ‘Love thy neighbour?’, CEPS Paper in Liberty and Security No 2020–04, April 2020, p. 2–13; for a legal assessment, see Thym/Bornemann, ‘Schengen and Free Movement Law During the First Phase of the Covid-19 Pandemic: Of Symbolism, Law and Politics’, European Papers 5 (2020), 1143–1170. 25 See Pascouau, ‘Quel avenir pour Schengen?’, in: Auvret-Finck/Millet-Devalle (eds), Crise des Réfugiés, Crise de l’Union Européenne? (Pedone, 2017), p. 261, 267–271. 26 See Bast, ‘Völker- und unionsrechtliche Anstöße zur Entterritorialisierung des Rechts’, Veröffentlichungen der Vereinigung Deutscher Staatsrechtslehrer 76 (2017), p. 277, 285–289; and Lindahl, ‘Finding a Place for Freedom, Security and Justice’, EL Rev. 29 (2004), p. 461–484; and on the limitations Coutts, ‘Citizenship, Territory and COVID-19’, in: Kostakopoulou/Thym (eds), Research Handbook on European Union Citizenship Law and Policy (Elgar, 2022), section I (forthcoming). 27 ECJ, McCarthy, C-434/09, EU:C:2011:277, para 66. 28 ECJ, Dereci et al., C-256/11, EU:C:2011:734, para 50; for discrepancies in the case law, see Nic Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law’, Yearbook of European Law 38 (2019), p. 267–319; and for a more positive outlook, see Azoulai, ‘Transfiguring European Citizenship’, in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2017), p. 178, 184–187. 29 See Joerges, ‘Europe a Großraum? Shifting Legal Conceptualisations of the Integration Project’, in: ibid./Singh Ghaleigh (eds), Darker Legacies of Law in Europe (Hart, 2003), p. 167–191; and Weber, ‘Formen Europas. Rechtsdeutung, Sinnfrage und Narrativ im Rechtsdiskurs um die Gestalt der Europäischen Union’, Der Staat 55 (2016), p. 151, 159–161. 30 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

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territorial connotations than the French ‘espace’, which other Roman languages use as well, while the German ‘Raum’ can cover both the more territorial ‘area’ and the boundless ‘space’.31 The so-called ‘spatial turn’ in the social sciences did not influence the use of language and was not taken up by legal academia beyond the debate on territorialisation mentioned above.32 Moreover, the federalising pull of the Schengen acquis remains incomplete: the asymmetric (non-)participation of some Member States limits the identificatory potential;33 EU agencies are comparatively weak and the Schengen rules continue to be applied primarily by distinct national authorities (see below MN 8); Article 77(4) TFEU reaffirms the national demarcation of state borders (see below MN 24a). In contrast to classic examples of state building, the supranationalisation of external border control policies did not coincide with an extensive identificatory, bureaucratic and military internal territorialisation.34 Limited internal penetration of the Schengen area does not, however, effect the momentum of external closure, which is often described as ‘fortress Europe’ – a term that had originally been applied to the element of external economic closure inherent in the single market programme, while it is used for border control and migration policies nowadays.35

2. Territorial Scope (Member State Participation) 5

Measures on border controls and visas are subject to country-specific opt-outs for Ireland and Denmark as well as the United Kingdom before Brexit. The abstract rules guiding these arrangements have been described in the introductory chapter (see 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 countryspecific opt-outs for Ireland and Denmark do not follow a uniform pattern. There are differences between the rules for Denmark on the one side and those for Ireland (and the United Kingdom) 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 Ireland and Denmark are bound. In order to facilitate orientation, the list of the measures below indicates which Member States participate in the instruments commented upon in this volume and whether they are considered to be building upon the Schengen acquis.36 Neither the Withdrawal Agreement nor the negotiating guidelines for future agreements may imply a higher density of cooperation (today’s designation as a ‘policy’ was introduced by the Treaty of Lisbon). 31 Other Germanic languages fluctuate between open-endedness and the English ‘area’, which nevertheless need not necessarily be understood territorial, since it can designate subjects of activity as well; Slavic languages were not yet among the official languages when the term became widely used from 1999 onwards; see also Schwarz, Grundlinien der Anerkennung im Raums der Freiheit, der Sicherheit und des Rechts (Mohr Siebeck, 2016), p. 217–222. 32 See Funke, Primärrechtliche Grundlagen, para 7. 33 See Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schütze (eds), The Oxford Principles of European Union Law, Vol. I (OUP, 2018), p. 847, 880–881. 34 Cf. the contrasting accounts of Rokkan, State Formation, Nation-Building, and Mass Politics in Europe (OUP, 1999), p. 97–107; and Jönsson/Tägil/Törnqvist, Organizing European Space (Sage, 2000). 35 See Aho, ‘Fortress Europe. Will the EU isolate itself from North America and Asia’, Columbia Journal of World Business 29 (1994), p. 32–39, who also reminds us that the term had a historic precedent, namely the Nazi vocabulary to describe the fortification of the French coast against an Allied invasion; see Schmitz-Berning, ‘Festung Europa’, in: ibid., Vokabular des Nationalsozialismus (De Gruyter, 2007), p. 232–233. 36 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 Europäisches Verfassungsrecht (Nomos 2004), p. 119–130, available online at http://www.ungleichzeitigkeit.de [last accessed 1 June 2021].

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Chp. 2 indicate that the United Kingdom will associate itself with the harmonisation of border control and visa policies, including the Schengen Information System, on the basis of international treaties (see Thym, Constitutional Framework, MN 45a). Ireland

Denmark37

United Kingdom (before Brexit)

Schengen?38

Visa Code Regulation (EC) No 810/2009

no

no (int. law)

no

yes

Sea Borders Regulation (EU) No 656/2014

no

no (int. law)

no

yes

Schengen Borders Code Regulation (EU) 2016/399

no

no (int. law)

no

yes

Frontex Regulation (EU) 2019/1896

no

no (int. law)

no

yes

Instrument

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 37 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 Thym, Constitutional Framework, MN 41. 38 Does the measure build upon the Schengen acquis? If yes, it is subject to the opt-out arrangements in the Schengen Protocol described by Thym, Constitutional Framework, MN 41, 44.

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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) 6

The Treaty objective for entry and border controls in Article 77(1) TFEU emphasises that the EU’s activities are meant to support internal free movement (part A) through the ‘efficient monitoring’ of the external borders (part B) on the basis of ‘an integrated management system’ (part C). The Treaty obliges the legislature to aim at ‘efficient’39 external border controls as an end in itself as an integral part of the area of freedom, security and justice, which is no longer linked to the single market (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 Thym, Constitutional Framework, MN 5–7).40 To highlight the objective of an ‘integrated border management system’ accentuates the role of Frontex (see below MN 19–21). Twofold instructions for border controls and visas in a single article show that the EU Treaty accepts a multilevel entry control concept that comprises activities at the territorial borders in the same way as it encompasses extraterritorial control activities, which can contribute to primary law’s output-oriented efficiency objective. These can include the high seas (see below MN 17a, 38–41) and cooperation with third states (see below MN 20b, 28–30) as well as visas, which are handed out by the consulates of the Member States in third states as a classic example of externalisation in the form of a ‘border abroad.’41 The broad Treaty objective can inform a generous interpretation of the more specific legal bases in Article 79(2) TFEU, which expressly relates to the purposes of paragraph 1.42

2. Scope of EU Competences (Article 77(2) TFEU) 7

As a shared competence, legislation on entry and border controls must comply with the principles of subsidiarity and proportionality (see Thym, Legal Framework for EU Immigration Policy, MN 9). Nevertheless, the Treaty objective of efficient border monitoring (see above MN 6) stipulates a certain generosity when applying the principles of subsidiarity and proportionality. Since most Member States cannot usually control their territorial borders in the Schengen area, the principle of subsidiarity will rarely stand in the way of common action. EU action adds value by doing something that Member States alone cannot any longer achieve effectively; external border controls are carried out ‘in the interests … of all Member States which have abolished internal border controls.’43 The term ‘measure’ in the introductory part of Article 77(2) TFEU 39 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.’ 40 See also Müller-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. 41 Guild, ‘The Border Abroad’, in: Groenendijk et al. (eds), In Search, p. 87–104. 42 See von Bogdandy/Bast, ‘The Federal Order of Competences’, in: ibid. (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 271, 288. 43 ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 65 referring to Recital 6 of the former Schengen Borders Code Regulation (EC) No 562/2006.

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Chp. 2 indicates, in line with established EU terminology, that directives, regulations and decisions can be adopted; they can provide for legislative harmonisation, administrative cooperation, financial support or other activities.44 The term ‘measure’ can also cover the administrative involvement of EU agencies (see below MN 8). Recommendations without binding force can be adopted in line with Article 288(5) TFEU in the same way as informal ‘soft law’ instruments, such as non-binding guidelines or communications, which unlike recommendations, do not constitute a legal act with non-binding force,45 rather an informal opinion or policy paper.46 EU legislation on entry and border controls can embrace rules on administrative 8 procedure and judicial protection which supplant, as leges speciales, the principle of national procedural autonomy (see Thym, Constitutional Framework, MN 34–37 f). 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 calls for a certain flexibility on the side of the Member States in line with the principle of subsidiarity.47 In accordance with the EU’s constitutional structure, the supranational level concentrates on legislative harmonisation and administrative support, while decisions affecting individuals are taken by domestic authorities.48 That does not generally exclude, however, the involvement of supranational agents in domestic decision-making and may even cover the direct application of EU law towards individuals by supranational authorities. To what extent primary law allows for the involvement of federal agents has to be assessed on the basis of the relevant provisions in the EU Treaties in line with the means of interpretation.49 This general rule extends to Article 77(2) TFEU keeping in mind that the ECJ interpreted the term ‘measure’ to cover administrative action at the supranational level, at least when Member States do not fulfil certain functions in a satisfactory manner.50 It is also possible to support transnational cooperation among domestic authorities with or without the involvement of federal agents on the basis of Article 77 TFEU – as Article 74 TFEU confirms declaratorily. The so-called ‘Meroni doctrine’ will not usually prevent the involvement of Frontex or other supranational agents in border control and visa policies, since the application of detailed secondary legislation to individuals does not usually involve an autonomous policy design; it would comply, therefore, with the criteria set out in recent ECJ case law developing the original Meroni judgment.51 The examples of Frontex (see below MN 20) and visa

44 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). 45 The ECJ can be consulted on the interpretation and validity of non-binding recommendations on the basis of Article 288(5) TFEU; see ECJ, Belgium v. Commission, C-16/16 P, EU:C:2018:79. 46 They have found more general acceptance in recent years, not least during the Covid-19 pandemic, mirroring their function in other areas of EU law; see Scott, ‘In Legal Limbo. Post-Legislative Guidance as a Challenge for European Administrative Law’, CML Rev. 48 (2011), p. 329–355. 47 See Article 67(1) TFEU; and Schütze, ‘From Rome to Lisbon: “Executive Federalism” in the (New) European Union’, CML Rev. 47 (2010), p. 1385, 1410–1415. 48 See Article 291(1), (2) TFEU; and Articles 4(2), 5(1), 19(1)(2) TEU. 49 See Article 2(6) TFEU; for further reflection, see Lehner, Rechtliche Möglichkeiten, p. 190–196. 50 See ECJ, United Kingdom v. Council & European Parliament (EMSA), C-270/12, EU:C:2014:18, paras 97–115; for further reading, see Dubout, Les enjeux constitutionnels, p. 463–464; and Lehner, Rechtliche Möglichkeiten, p. 190–196. 51 See ECJ, United Kingdom v. Council & European Parliament (EMSA), C-270/12, EU:C:2014:18, paras 44–52; for further comments, see Dubout, Les enjeux constitutionnels, p. 469–473; Bergström, ‘Shaping the New System for Delegation of Powers to EU Agencies’, CML Rev. 52 (2015), p. 219, 235–242; and Coman-Kund, European Union Agencies as Global Actors (Routledge, 2018), p. 204–206.

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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 ever since the introduction of Article 100a EC Treaty as amended by the Treaty of Maastricht, which was replaced by more extensive provisions on visas in the Treaties of Amsterdam and Nice later.52 The complexity of previous Treaty provisions entailed a number of intricate questions of legal interpretation most of which became moot because of the simplification and completion of EU competences in the Treaty of Lisbon.53 It is inherent in the proviso of a ‘common policy’ 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 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.54 10 Article 77(2)(a) TFEU covers rules on both visa requirements and procedure. The EU 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 mirroring Article 1 of the Visa List Regulation (EU) 2018/1806: the legislature can pursue, among other things, strategic foreign policy considerations (Article 21(3) TEU) or be guided by migration policy objectives, such as the prevention of illegal migration (Article 79(1) TFEU).55 We cannot expect the ECJ or the ECtHR to find countryspecific visa requirements to be incompatible with the fundamental right to equality or to constitute illegal discrimination on grounds of race in regular circumstances (see Thym, Legal Framework for EU Immigration Policy, MN 40–40a).56 In particular, nationality-based distinctions and reciprocal contractual arrangements have been found to be compatible with human rights.57 10a The objective of efficient border monitoring (see above MN 6–7) supports a broad reading of Article 77(2)(a) TFEU which embraces detailed procedural prescriptions, such as the use of biometric identifiers, application fees or security features that can help to prevent abuse.58 The provision does not generally exclude secondary legislation authorising Member States to cooperate with external service providers or commercial intermediaries when processing visa applications in third states (see Meloni, Visa Code Regulation (EC) No 810/2009, Article 45). It also covers the Visa Information System which supports effective cooperation among the Member States considering the broad meaning of the term ‘measure’ (see above MN 8); additional recourse to Article 74 TFEU may be required only for independent supranational databases reaching beyond 9

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See Meloni, Visa Policy, p. 43–120; and Pastore, Visas, Borders, Immigration, p. 89–107. 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. 54 This was contested under previous versions of the EU Treaties; see also, Peers, EU Justice, p. 174; and Weiß, Article 77 TFEU, para 19. 55 On the corresponding practice, see Meloni, Visa Policy, p. 100–107. 56 See also den Heijer, ‘Visas and Non-Discrimination’, EJML 20 (2018), p. 470, 474–479. 57 See ECtHR, judgment of 16 March 2010 [GC], No 42184/05, Carson et al. v. the United Kingdom, para 88 on an agreement on social security coordination. 58 See ECJ, Schwarz, C-291/12, EU:C:2013:670, paras 15–19. 53

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Chp. 2 the transnational connection of national systems.59 Of course, EU legislation has to comply with human rights, including guarantees for data protection in the European Convention and the EU Charter (see Thym, Constitutional Framework, MN 37–37 f). If access to these databases is granted to Europol or domestic authorities in specific pieces of secondary legislation, Articles 87 or 88 TFEU may be used as a legal basis, not the immigration-related provision of Article 77 TFEU. It follows from constitutional considerations that national consulates will regularly 11 process visa applications. Nevertheless, Article 77(2)(a) TFEU allows for the adoption of a wide range of measures through which the EU can support the effective application of common rules or transnational cooperation among Member States (see above MN 8). 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 7). On this basis, an enhanced degree of practical cooperation can be achieved, for instance through the joint accommodation of consulates from in a single building, representation arrangements or the so-called local Schengen-cooperation.60 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.61 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 Service62 provides a sufficient legal basis for a move in this direction: EU consulates would require a formal Treaty change under Article 48 TFEU. Article 77(2)(a) TFEU does not confine itself, in contrast to previous versions, to visas 12 for intended stays of no more than three months63 employing the open formulation ‘short-stay’ instead. 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 primary law grants more flexibility. The EU legislature could lay down, for instance, a time limit of five months.64 In any case, the general scheme of Treaty rules demonstrates 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, 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.65 It is generally 59 Storage of personal data at EU level may be considered the demarcation line; see Peers, EU Justice, p. 81; and Bast, Aufenthaltsrecht, p. 157–158; in practice, the European Parliament will prefer Article 77(2)(a) TFEU, since it allows – unlike Article 74 TFEU – for co-decision, while the Council decides by majority in both cases; in case of a dual legal basis, the legislation would be subject to co-decision. 60 Cf. Articles 8, 37–48 Visa Code Regulation (EC) No 810/2009. 61 See Laas, Die Entstehung eines europäischen Migrationsverwaltungsraumes (Nomos, 2008), p. 139–144. 62 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. 63 Cf. Article 63(2) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173). 64 Similarly, see Weiß, Article 77 TFEU, para 7; Peers, EU Justice, p. 173, 99–100; Muzak, Article 77 TFEU, para 14; and Müller-Graff, Article 77 TFEU, para 12; before the entry into force of the Lisbon Treaty, the Commission had proposed a six-month definition which caused political debates; cf. COM (2001) 388 (later repealed in accordance with OJ 2006 C 64/3). 65 This conclusion ensures the application of the opening clauses in Article 79(4), (5) TFEU, builds on the historic model of short-stay Schengen visas for touristic and other non-commercial purposes and reflects the usual meaning of the term ‘immigration’ in Article 79 TFEU, which resonates with access to

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irrelevant for the delimitation of Articles 77 and 79 TFEU 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.’66 Similarly, Article 77(2)(a) TFEU does not cover permits or visas for intended longer stays, such as humanitarian visas for refugees, which the ECJ found not to be covered by the provisions of the Visa Code Regulation (EC) No 810/2009 on short-stays.67 This does not exclude, however, that Article 78(2)(d) TFEU is activated as a legal basis (see Thym, Legal Framework for EU Asylum Policy, MN 26). 13 Article 77(2)(a) TFEU concerns abstract rules on visas, including the rejection of an 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.68 Such foreign policy decisions apply to all Member States, including Ireland and Denmark (see above MN 5); they must be respected when applying the Visa Code Regulation or respective national rules in Ireland or Denmark. 14 It is settled case law that the EU acquires an exclusive external treaty-making power whenever international treaties may affect common rules or alter their scope (see below MN 28a). As a result, the EU has acquired an exclusive external competence for international treaties ever since the adoption of today’s Visa List Regulation (EU) 2018/ 1806 insofar as short-stay visas are concerned.69 Member States cannot conclude any longer, without an express authorisation by the EU legislature,70 international agreements with third states on visa exemptions.71 Existing agreements continue to apply, but can no longer be amended (see 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, including with the United States which rejected to treat all Member States equally for a long time.72 the labour market (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 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. 66 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. 67 While ECJ, X & X, C-638/16 PPU, EU:C:2017:173, paras 40–44 concerned the interpretation of secondary legislation, it can be read as an implicit statement that Article 77 TFEU does not apply; similarly, see Wilderspin, Article 77 TFEU, MN 41; for a critical assessment Sarolea, ‘Is Access to Asylum the Same as Access to Justice?’, in: Foblets/Leboeuf, Humanitarian Admission, p. 115, 128–132. 68 Peers, EU Justice, p. 84 does not really explain why he wants to apply Article 77 TFEU instead; corollary rules on entry bans, for instance Article 26 pf the SIS II Regulation (EC) No 1987/2006, can be included in legislation covered by Article 77 TFEU in line with ECJ case law on the delimitation of competences on the basis of the main content and purpose of the legislation in question. 69 Note that the EU’s exclusive external competence is limited ratione materiae to those types of visas which have been harmonised at the EU level in line with general principles guiding the delineation of the EU’s external competences. 70 Cf. Article 2(1) TFEU. 71 See García Andrade, External Competences, p. 165–169; and Martenczuk, ‘Visa Policy and EU External Relations’, in: ibid./van Thiel (eds), External Relations, p. 36, 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. 72 On the corresponding mechanism see Article 7 of the Visa List Regulation (EU) 2018/1806; 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).

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Chp. 2 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 so, under which conditions a visa waiver shall be granted. They can insist on reciprocal exemptions or embrace strategic foreign policy considerations in line with the Common Foreign and Security Policy; country-specific visa requirements will not usually violate fundamental rights (see above MN 10). In line with the general principles guiding the delineation of the EU’s external 15 competences, 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 under Articles 206–207 TFEU,73 even though it should be noted that corresponding rules have not gained much significance in practice (see below MN 28b). The situation is similar for corollary rules on migration in contractual relations in the field of development cooperation with a centre of gravity in developments matters and association agreements with countries outside Europe, which will be covered by Articles 206–210 or 217 TFEU, and have not gained much practical significance in recent years (see below MN 28b). Potential mobility partnerships, which are – unlike the recent practice – legally binding, with rules on visa waivers and legal migration would have to be based on Articles 77 and 79 TFEU jointly (see Thym, Legal Framework for EU Immigration Policy, MN 23). Whenever international treaties concluded by the EU command visa free access, they have precedence over secondary Union legislation in cases of conflict (see Thym, Constitutional Framework, MN 56–57). b) External Border Controls. The original Schengen Implementing Convention 16 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 reveals 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.74 This entails that, for the purposes of entry control, a flight between France and Ireland crosses an ‘external border’ with regard to which Article 77(2)(b) TFEU allows for the adoption of common control standards (see Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Articles 6–14). The EU legislature benefits from a principled discretion when deciding upon the 17 intensity and the nature of border control standards. The term ‘border control’ is broad enough to cover classic activities of border policy personnel as well as border surveillance with airborne or land-based technical equipment or databases (see below MN 17b). The legislature can prescribe, like in the case of visas (see above MN 10), detailed procedural and substantive guidelines. Of course, EU rules must comply with fundamental rights, which apply to domestic control activities in accordance with ECJ case law when Member States are implementing Union law (see Thym, Constitutional Framework, MN 47–48).75 In practice, the Charter will rarely result in a human right to 73 See Martenczuk, ‘Visa Policy and EU External Relations’, in: ibid./van Thiel (eds), External Relations, p. 36, 48–49. 74 Similarly, Muzak, Article 77 TFEU, para 38; and Weiß, Article 77 TFEU, para 20. 75 According to ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–42 it has to be assessed on a case-bycase basis whether national border control activities are to be considered an implementation of Union law, i.e. they are not automatically subject to the Charter.

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be admitted to the EU territory with the potential exception of refugees (see below MN 33–37). More stringent requirements exist for Union citizens and their third country 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).76 Differential control requirements for other status groups are permissible for as long as all Union citizens, including Irish and Danish nationals, are treated equally irrespective of nationality at the external Schengen borders.77 17a The wording of the Treaties does not specify the geographic location of border controls, which the legislature need not restrict, as a result, to the immediate environment of the borderline. Legislation on the basis of Article 77(2)(b) TFEU can extend to the contiguous zone or the high seas or prescribe border surveillance a few kilometres away from the land border whenever this appears adequate for border control purposes – in line with the output-oriented objective of ‘efficient’ border controls (see above MN 6).78 It need not be limited to third states neighbouring the European Union provided there is a substantive nexus to migratory movements to the Member States, which the Frontex Regulation does not prescribe any longer (see Ryan, Regulation (EU) 2019/1896, Article 74 MN 2). If need be, additional legal bases can be activated, such as Article 77(2)(c) TFEU on return or Article 78(2)(g) TFEU on cooperation with third states ‘for the purpose of managing inflows of people applying for asylum’ (see Thym, Legal Framework for EU Asylum Policy, MN 34).79 This flexible interpretation of the term ‘border controls’ entails that maritime control activities in the Mediterranean, the Atlantic or the Black Sea can contribute de facto to search and rescue operations on the high seas beyond the territorial waters of the Member States, even though it should be noted that the Treaties do not give the EU institutions an autonomous competence to harmonise search and rescue standards or to set up supranational search and rescue operations as an end in itself (on Frontex see below MN 20b). For as long as the control element remains the predominant object and contents (see Thym, Constitutional Framework, MN 39a), Article 77(2)(b) TFEU can serve as a legal basis for corollary rules on safety at sea, search and rescue as well as disembarkation laid down in the Sea Borders Regulation (EU) No 656/2014.80 17b Article 77(2)(b) TFEU allows for the harmonisation of procedural standards as well as data collection, including the creation and operation of databases in light of the broad meaning of the term ‘measure’ in EU constitutional law (see above MN 8), even though one might possibly use Article 74 TFEU as an additional legal basis (see above MN 10a). Recourse to a different Treaty provision, such as judicial and police cooperation in criminal matters, will only be necessary whenever domestic authorities are given access to databases which have been set up for border control purposes. Over the past years, we have seen a proliferation of databases for border control purposes in addition 76 Specifically for border controls, see ECJ, Ryanair Designated Activity Company, C-754/18, EU: C:2020:478, para 40 and the opinion of the Advocate General the Court referred to; ECJ, Commission v. Spain, C-503/03, EU:C:2006:74; and ECJ, MRAX, C-459/99, EU:C:2002:461. 77 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; see Thym, Ungleichzeitigkeit und Europäisches Verfassungsrecht (Nomos, 2004), p. 254–258, available online at http://www.ungleichzeitigkeit.de [last accessed 1 June 2021]; see also ECJ, Ryanair Designated Activity Company, C-754/18, EU:C:2020:478, paras 41–47. 78 Similarly, see Wilderspin, Article 77 TFEU, MN 18. 79 Council Decision (EU) 2018/1031 (OJ 2018 L 185/6). 80 Article 352 TFEU could possibly be activated for legislative harmonisation or operative measures on search and rescue, even though it remains questionable whether there is a sufficient link to an EU objective beyond the abstract promotion of human rights and respect for international law.

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Chp. 2 to the traditional Schengen Information System (SIS), such as the European Border Surveillance System (Eurosur), the Entry/Exit System (EES) or the European Travel Information and Authorisation System (ETIAS), which also serves criminal purposes. These multiple databases are managed by the European Union Agency for the Operational Management of Large-Scale IT Systems (EU-LISA) and have been rendered more and more interoperable.81 Of course, the legislation and the operation of databases must comply with human rights, which have been applied by the ECJ to migration control instruments (see Thym, Constitutional Framework, MN 37 f). c) Intra-European Free Movement. The original Schengen Agreements and today’s 18 EU immigration policy are defined by a regulatory 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.82 Foreigners residing legally in a Member State do not have, as a result, a generic right to visit other Member States.83 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.84 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 had established an unequivocal legal basis for such measures.85 While Article 77 TFEU covers short-term travel (see above MN 12), 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 (see above MN 16–17).86 The amendment reflects the will of the High Contracting Parties to develop joint administrative capacities, thereby moving beyond legislative harmonisation.87 The concept of ‘integrated border management’ (IBM) was being discussed in the political debate when the European Convention drafted the erstwhile Constitutional Treaty, which later became

81 See the SIS II Regulation (EC) No 1987/2006 (OJ 2006 L 381/4), the Eurosur Regulation (EU) No 1052/2013 (OJ 2013 L 295/11), the ETIAS Regulation (EU) 2018/1240 (OJ 2018 L 236/1), the EULISA Regulation (EU) 2018/1726 (OJ 2018 L 295/99) and the Interoperability Regulation (EU) 2019/817 (OJ 2019 L 135/27). 82 This applies both to residence permits for which no EU harmonisation exists and for rights to reside in accordance with the 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. 83 Similarly, see Funke, Primärrechtliche Grundlagen, para 30. 84 Residence in Ireland (or the UK before Brexit) 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 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. 85 See Regulation (EU) No 265/2010 (OJ 2010 L 85/1). 86 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. 87 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; and 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, 763.

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the Lisbon Treaty,88 even though there was no uniform understanding of what IBM meant and entailed.89 It encompassed the structural cooperation among different policy areas (e.g. security, migration, customs) as well as the institutional integration of domestic border guards. Both the drafting history and the general scheme of the Treaties indicate that Article 77(2)(d) TFEU was meant to be primarily about institutional integration revolving around the borders’ agency Frontex.90 Both the specific wording and the drafting history argue against a direct comparison with the legal bases for Europol and Eurojust.91 20 The abstract reference to an integrated border management ‘system’ allows for diverse legislative, operational and financial instruments to support domestic border guards, Frontex and their mutual cooperation. Thus, Article 77(2)(d) TFEU can cover the purchase of technical equipment, training activities, joint operations, statutory rules on civil or criminal liability and much more; many of these instruments have expanded considerably since the migration and asylum policy crisis of 2015/16.92 The borders’ agency Frontex , which has seen repeated adjustments over the past years which led to a substantial increase in powers and capacities (see Ryan, Frontex Regulation (EU) 2019/ 1896, Art. 1), realises most of the instruments mentioned above. While it was a common feature of the early forms of cooperation to be confined to enhanced transnational cooperation below the threshold of autonomous decision-making at the European level,93 it can be argued that – unlike the provision on visas (see above MN 11) – Article 77(2)(d) TFEU authorises a deeper degree of integration.94 20a The ambitious reference to ‘any measure necessary for the gradual establishment’ (French: toute mesure nécessaire pour l’établissement progressif; German: schrittweise … eingeführt werden soll) may not reflect a precise vision among those drafting the new provision about what an ‘integrated border management system’ entails. Even though the vision of a potential ‘border corps’ were on the table during the drafting process,95 such abstract calls did not necessarily imply the creation of a truly federal bureaucracy.96 88 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 31 (2008), p. 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. 89 See Moreno-Lax, Accessing Asylum, p. 28–40. 90 Frontex and so-called rapid border intervention teams defined the debate in the European Convention, including an abstract reference to the possibility of a future ‘European border corps’; see Monar, ‘Die Vertragsreformen von Lissabon in den Bereichen Inneres und Justiz’, Integration 31 (2008), p. 379, 385 and below MN 20a; it does not convince, therefore, to conceive of the IBM concept primarily in terms of cooperation across policy fields; contra Mungianu, Frontex, p. 22–24. 91 Contra Rijpma, ‘Frontex and the European System of Border Guards’, in: Fletcher/Herlin-Karnell/ Matera (eds), The European Union as an Area of Freedom, Security and Justice (Routledge, 2018), p. 217, 236–237. 92 See Berthelet, ‘Les conséquences des crises migratoires de 2011 et de 2015, une solidarité européenne encore très imparfaite’, Cahiers de droit européen 54 (2018), p. 395, 399–406. 93 See Schöndorf-Haubold, ‘Europäisches Sicherheitsverwaltungsrecht’, in: Terhechte (ed), Verwaltungsrecht der Europäischen 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/Türk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 322. 94 Similarly, see Peers, EU Justice, p. 86; Müller-Graff, Article 77 TFEU, para 26; and Weber, ‘Migration im Vertrag von Lissabon’, Zeitschrift für Ausländerrecht (2008), p. 55, 56. 95 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. 96 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.

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Chp. 2 Against this background, one could argue that the general preference of the EU Treaties for the indirect application of supranational rules by the Member States (see above MN 8) prevents the EU institutions from giving Frontex extensive administrative decision-making powers, also considering that Article 4(2) TEU and Article 72 TFEU confirm the primary responsibility of the Member States for the maintenance of law and order.97 It seems to me, however, that the open formulation used in the Treaties supports more flexibility, not least since the ECJ has interpreted more restrictive provisions to allow for decisions by supranational agencies in situations of urgency in full compliance with the so-called ‘Meroni doctrine’ (see above MN 8). Frontex can be given autonomous decision-making powers in selected areas provided that the supranational agency does not generally replace national administrations. That applies in particularly in scenarios which are related to the constitutional prescription of solidarity in relation to which Article 80 TFEU mandates a generous reading of other Treaty competences.98 Only the move towards a genuine federal border guard substituting national units would require a Treaty change.99 Below that threshold there is room for further integration going beyond the current Frontex Regulation.100 This leaves room for the further development of Frontex by overcoming the binary distinction between direct and indirect implementation. Of course, enhanced powers must be accompanied by appropriate accountability mechanisms, which the legislative framework for Frontex has not developed yet.101 The output-oriented Treaty objective of ‘efficient monitoring of the crossing of 20b external borders’ (see above MN 6) and the open reference to an ‘integrated border management system’ (see above MN 19) indicate that border control activities need not be confined to the immediate border area; they can extend to control activities on the high seas (see above MN 17a) and extend to cooperation with third states (see below MN 30). Nevertheless, the use of the term ‘border’ should not be interpreted openendedly to situations in which the geographic and substantive connection to the external borders of the Schengen area is vague at best. Thus, support for third states in returning third country nationals to their home country (or another third state) cannot usually be covered by Article 77(2)(d) TFEU, unless there is a specific nexus with the external Schengen border. That does not preclude, however, the activation of the legal basis to fight illegal immigration in Article 79(2)(c) TFEU (see Thym, Legal Framework for EU Immigration Policy, MN 20). It has been explained already that Article 77 TFEU does not authorise the EU institutions to set up autonomous search and rescue operations, even though Frontex and national border guards can contribute

97

See ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006), p. 416 et seq. See also Ramboll/EurAsylum, Study on the Feasibility and legal and practical implications of establish-ing a mechanism for the joint processing of asylum applications on the territory of the EU, HOME/2011/ERFX/FW/04 of 13 February 2013, p. 75. 99 Even if one defends that position, the novel supervision and intervention power of Frontex concerned could still appear as being constitutionally problematic in light of Article 4(2) TEU and Article 72 TFEU, insofar as Frontex can act against the will of the Member State concerned; see Dubout, Les enjeux constitutionnels, p. 465–466; and Rijpma, The Proposal for a European Border and Coast Guard: evolution or revolution in external border management?, Study for the European Parliament, PE 556.934, March 2016, p. 18. 100 De Bruycker ‘The European Border and Coast Guard. A New Model Built on an Old Logic’, European Papers 1 (2016), p. 559, 562–564, 569 criticised the Frontex Regulation (EU) 2016/1624 for employing the ambitious term ‘European Border and Coast Guard’ despite the high degree of control of the Member States. 101 See Fink, Frontex, ch. 3–4; and Groß, ‘Defizite des Grundrechtsschutzes bei FRONTEX-Einsätzen’, Zeitschrift für Ausländerrecht (2020), p. 51–58. 98

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to better search and rescue in the Mediterranean and elsewhere in the context of border control operations (see above MN 17a).102 21 In line with the classification of Article 77 TFEU as a shared competence, the Member States retain the option to cooperate bilaterally in order to support the effective functioning of the multilevel border control system. Protocol (No 23) 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…’103 This entails that the EU does not possess, in contrast to other areas (see above MN 14), an exclusive competence for agreements concerning border controls with third states. It certainly has the power to conclude such agreements, but cannot prevent Member States from doing the same, since Protocol (No 23) pre-empts the emergence of an exclusive external competence104 – provided that supranational legislation can pre-empt operative activities of the Member States at all if the latter do not, as an expression of the jurisdiction to enforce, interfere with the Union’s legislative prescriptions.105 Protocol (No 23) stipulates, moreover, that agreements of the Member States must ‘respect Union 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 (see below MN 28–30). 22

e) Absence of Internal Border Controls. The abolition of internal border controls 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 as a self-executing obligation under primary law,106 today’s Article 77(1)(a) TFEU lays down an original and explicit obligation to border free travel.107 Corresponding rules can be adopted in accordance with Article 77(2)(e) TFEU, which serves as the legal basis for the relevant aspects of the Schengen Borders Code Regulation (EU) 2016/399, 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 between 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 102 103

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TEU.

104 For a constructive comparison with an earlier debate about trade in services, see De Baere, ‘The Basics of EU External Relations Law’, in: Maes et al., External Dimensions, p. 121, 170–171; similarly as here, see Hailbronner, Immigration, p. 65–66; Pastore, Visas, p. 103–104; Muzak, Article 77 TFEU, para 6; Peers, EU Justice, p. 162; García Andrade, External Competences, p. 168; Cremona, ‘EU External Action in the JHA Domain. A Legal Perspective’, in: ibid./Monar/Poli (eds), The External Dimension of the European Union’s Area of Freedom, Security and Justice (Lang, 2011), p. 77, 105–107; and Weiß, Article 77 TFEU, para 25. 105 See García Andrade, External Competences, p. 168–169. 106 Cf. ECJ, Wijsenbeek, C-378/97, EU:C:1999:439, para 40. 107 From a legal perspective, the abolition of the Schengen area would require, therefore, a formal Treaty change under Article 48 TEU.

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Chp. 2 (see above MN 18). At the border between some Member States, corresponding migration control activities towards third country nationals are widespread.108 It is inherent in the objective to ‘develop a policy’ (Article 77(1) TFEU) and 23 the primary responsibility of the Member States for the maintenance of law and order under Article 72 TFEU (see below MN 25–27) that the abolition of internal border controls can be subject to 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/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Articles 30–35). It has been mentioned above that Member States have reinstated internal border controls repeatedly during the 2010s and were not always in full compliance with the wording and spirit of the Schengen Borders Code (see above MN 3a). While the Commission and national courts could ask the ECJ to review the legality of internal border controls, there has been no judgment to this date.109 By contrast, we have amply case law confirming and limiting the room of manoeuvre for Member States to proceed with internal checks within the territory,110 which one can criticise for being too generous in its implicit understanding of the term and concept of ‘controls’, whose absence at the internal borders Article 77(2)(c) TFEU prescribes in regular circumstances.111

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.112 Uncertainty about the added-value of the provision was amplified by the parallel introduction of Article 21(2) TFEU, which uses comparable wording but does not require unanimity in the Council. Article 77(3) TFEU shall only apply, in line with the express wording, when other 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 passports (see above MN 17)113 and that Article 21(2) TFEU covers free movement of Union citizens and their family members,114 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 108 For a socio-legal study of the situation at the Franco-Spanish border, see Barbero, ‘The European Union Never got Rid of its Internal Controls’, EJML 20 (2018), p. 1–27. 109 ECJ, Melki & Abdeli, C-188/10 & C-189/10, EU:C:2010:363 can be read to have implicitly confirmed that rules in the Borders Code on the temporary reintroduction are compatible with Article 77(2)(e) TFEU. 110 See ECJ, Melki & Abdeli, C-188/10 & C-189/10, EU:C:2010:363, paras 63–75; and ECJ, A, C-9/16, EU:C:2017:483, paras 38 et seq. 111 See Wilderspin, Article 77 TFEU, MN 18–30. 112 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 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). 113 Cf. Regulation (EC) No 2004/2252 (OJ 2004 L 385/1) with later amendments; and Peers, EU Justice, p. 81–82; for a different view, see Müller-Graff, Article 77 TFEU, para 6. 114 See Regulation (EU) 2019/1157 (OJ 2019 L 188/67).

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features for ID cards, for which no binding secondary legislation exists so far.115 It was not activated when the ‘EU Digital COVID Certificate’ was introduced in 2021 to facilitate movement for those vaccinated or tested during the final phase of the COVID19 pandemic.116 Deference to other legal bases and the special legislative procedure, which requires unanimity among Member States and foresees the consultation of the European Parliament only, explains why the institutions prefer not to use Article 77(3) TFEU in practice.

4. Geographical Demarcation of Borders (Article 77(4) TFEU) 24a

The provision was introduced by the Treaty of Lisbon in reaction to a debate in the European Convention drafting the Constitutional Treaty on the lingering dispute between Spain and the United Kingdom over the status of Gibraltar.117 It confirms that the EU cannot legislate on the reach of state territory. Rather, the geographic scope of the Schengen area follows domestic and international rules in line with Article 52 TEU and Article 355 TFEU. While the provision does not give us a direct statement about the constitutional character of the European project, it can be read, in the eyes of the German Constitutional Court, as a confirmation that the EU ‘does not have comprehensive territorial authority replacing that of the [Member States]’, even though the area of freedom, security and justice ‘reduces territorial sovereignty as an element of the state territory’118, in line with the symbolic and conceptual significance of the Schengen cooperation (see above MN 4).

III. Overarching Principles 24b

The Treaty rules on the area of freedom, security and justice contain provisions with a horizontal character, which are described in the introductory chapter on the policy field to which they are most relevant. Thus, Article 72 TFEU on the maintenance of law and order and external competences for cooperation with third states are described in the context of entry and border controls (see below MN 25–30), while Article 80 TFEU on solidarity is an integral part of the asylum chapter (see Thym, Legal Framework for EU Asylum Policy, MN 41–44). General principles of interpretation, proportionality, statutory provisions on more favourable domestic rules and requirements of primary law for domestic implementation are discussed in the general introduction (see Thym, Constitutional Framework, MN 10–37). Comments on the distinction between Union citizens and third country nationals, the meaning of the ‘public policy’ exception in secondary legislation and the principle of abuse can be found in the immigration chapter (see Thym, Legal Framework for EU Immigration Policy, MN 33–49).

115 The Resolution of the representatives of the Governments of the Member States meeting within the Council of 23 June 1981 (OJ 1981 C 241/1), with later amendments, which is not legally binding as a matter of EU law at present. 116 Regulation (EU) 2021/953 (OJ 2021 L 211/1). was based on Article 21(2) TFEU. 117 See Labayle, ‘L’espace de liberté, sécurité et justice dans la Constitution pour l’Europe’, Revue trimestrielle de droit européen 41 (2005), p. 437, 453. 118 Federal Constitutional Court (Bundesverfassungsgericht), judgment of 30 June 2009, 2 BvE 2/08 et al., Treaty of Lisbon, paras 402–403.

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Chp. 2 1. Maintenance of Law and Order (Article 72 TFEU)

Article 72 TFEU This 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 the proviso in Article 72 TFEU is subject to some controversy 25 that can be traced back to the predecessor provisions in the Treaties of Maastricht and Amsterdam,119 while an earlier provision limiting judicial oversight by the ECJ was discontinued by the Treaty of Lisbon.120 In the debate about Article 72 TFEU, two different proposals of interpretation can be distinguished. Some commentators maintained that the caveat in today’s Article 72 TFEU should be construed in parallel to the public policy exception to the fundamental freedoms,121 i.e. as a justification for noncompliance with EU legislation whenever the maintenance of law and order was at stake.122 Other commentators conceived the provision primarily as a statement about competences, which does not generally exclude EU action with regard to the maintenance of law and order, but can serve as an interpretative guideline for the scope of supranational competences based on other Treaty articles, thereby reinforcing the principles of subsidiarity and proportionality.123 An intermediate position argued that Article 72 TFEU cannot usually justify disrespect for secondary legislation, even though it requires the EU legislature to leave Member States breathing space when it comes to the maintenance of law and order and the safeguarding of internal security, for instance via the temporary reintroduction of internal border controls (see above MN 23) or the rejection of visas on public policy grounds (see above MN 13). Article 72 TFEU informs the interpretation of these provisions and may even result in a possible annulment of legislation that does not respect Article 72 TFEU sufficiently,124 for instance by overtly restricting internal border controls.125 ‘According to settled case-law,’126 the ECJ supports the intermediate position in regular 26 circumstances, even though it accepts that the provision may justify disrespect for 119 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). 120 Cf. the previous Article 64(2) EC Treaty, ibid. 121 See, for the free movement of goods, Article 36 TFEU; and, for workers, Article 45(3) TFEU. 122 See Battjes, European Asylum Law and International Law (Martinus Nijhoff, 2006), p. 157; Weiß, Article 72 TFEU, para 2; Rossi, ‘Article 72 TFEU’, in: Calliess/Ruffert (eds), EUV/AEUV-Kommentar, 5th edn (C.H. Beck, 2015), paras 5–8; Feik, ‘Article 72 TFEU’, in: Mayer/Stöger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 175th edn, 2014), para 2; ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006), p. 150–158; and Thun-Hohenstein, Der Vertrag von Amsterdam: die neue Verfassung der EU (Manz, 1997), p. 31. 123 See Peers, EU Justice, p. 84–85; Müller-Graff, Article 72 TFEU, paras 2, 4; Mungianu, Frontex, p. 156; and Breitenmoser/Weyeneth, ‘Article 72 TFEU’, in: von der Groeben/Schwarze/Hatje (eds), Europäisches Unionsrecht. EUV, AEUV, GRC, Vol. 2, 7th edn (Nomos, 2015), para 5. 124 The option of annulment was mentioned by AG Pikamäe, Commission v. Hungary, C-808/18, EU: C:2020:493, para 105. 125 In contrast to the second opinion, this position does not aim at a general limitation of the scope of EU competences, but aims, rather, at a specific design of EU legislation; see Hailbronner/Thym, ‘Grenzenloses Asylrecht? Die Flüchtlingskrise als Problem europäischer Rechtsintegration’, Juristenzeitung (2016), p. 753, 761–763; Bornemann, ‘Mitgliedstaatliche Gestaltungsspielräume im Schengener Grenzkodex’, Integration 41 (2018), p. 194, 195–196, 200–201; Hailbronner, Immigration, p. 102; and the second edition of this chapter. 126 ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:511, para 28.

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secondary legislation in exceptional scenarios. The Court’s Grand Chamber explicitly recognised that the provision can be compared with the derogations to the fundamental freedoms, as well as in situations of war, under Articles 36, 45, 52, 65, 346 and 347 TFEU, ‘which deal with exceptional and clearly defined cases.’127 Judges found that Article 72 TFEU must be interpreted strictly and that it does not generally authorise Member States to disrespect supranational rules.128 When invoking the provision, Member States must prove that it is necessary to disrespect secondary legislation in a specific scenario; they are not free to determine unilaterally whether to do so and are subject to the control by the Court of Justice.129 Insofar as the exception does not apply, Article 72 TFEU does not hinder the application of secondary legislation, since it does not generally define the areas of state activity mentioned therein as an exclusive area of responsibility of the Member States.130 This generic recognition of an option to derogate from otherwise mandatory rules of EU law has not yet found to be justified in a single case. 26a The meaning of the terms ‘maintenance of law and order’ and ‘safeguarding of internal security’ is not immediately clear, since it does not follow established EU terminology. It should be noted, however, that other language versions, such as the French (ordre public) and the German (öffentliche Ordnung), emulate the reference to ‘public policy’ in other derogations. This indicates that the provision should be given a similar or at least identical meaning, referring to a fundamental interest of society (see Thym, Legal Framework for EU Immigration Policy, MN 42–42c).131 Even though the notion of ‘internal security’ should usually be limited to internal events, there may be exceptional scenarios when internal and external events coincide, also considering that entry control, border, asylum and immigration policies are conceptually like to international events; there is no clear-cut distinction between Article 72 TFEU and Article 347 TFEU. Both provisions specify the bearing of Article 4(2) TEU for the subject areas covered. 26b An activation of Article 72 TFEU was discussed heatedly in Germany and Austria during the migration and refugee policy crisis of 2015/16 as a potential justification for the non-acceptance of asylum applications at the internal Schengen borders.132 The issue was never resolved and the Jafari judgment cannot be read as statement to the contrary, since no Member States had maintained at the time, neither in its administrative practice nor before the Court, that the crisis required an activation of Article 72 TFEU.133 In early 2020, the provision was discussed, together with the sister 127 ECJ, Commission v. Poland, the Czech Republic & Hungary, C-715/17, C-718/17 & C-719/17, EU: C:2020:257, para 143; note that the explicit recognition of the parallelism to other derogation clauses departed from the more restrictive proposal of Advocate General Sharpston, ibid., EU:C:2019:917, paras 208–221. 128 See ECJ, ibid., paras 144–145. 129 See ECJ, ibid., paras 146–147; the emphasis on the need for justification can be read as an implicit rejection of the opinion of Advocate General Jacobs, Commission v. Greece, C-120/94, EU:C:1995:109, paras 50–51 on Article 347 TFEU, which had emphasised the necessarily subjective character of the application of the norm; the final judgment did not address the question for procedural reasons; cf. ECJ, ibid., EU:C:1994:275. 130 The argument of the Swedish government to the contrary, in line with the first potential interpretation mentioned in MN 25, was rejected by ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:511, paras 22–30. 131 See ECJ, Bouchereau, 30/77, EU:C:1977:172, paras 33–35. 132 Authors writing in English are often unaware of the debate which followed the opposite rationale of the discussion whether the Dublin III Regulation was compatible with Article 80 TFEU; see Thym, ‘Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction: Jafari, A.S., Mengesteab and Shiri’, CML Rev. 55 (2018), p. 549, 556–558; among the authors defending an activation of Article 72 TFEU, see Obwexer, Gutachten für die österreichische Bundesregierung, 2016; see also Wissenschaftliche Dienste des Deutschen Bundestags, Obergrenzen für Asylsuchende und Bürgerkriegsflüchtlinge im Lichte des EU-Rechts, PE 6–3000 – 153/15 of 16 December 2015, p. 36–42. 133 Cf. ECJ, Jafari, C-646/16, EU:C:2017:586, paras 93–96.

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Chp. 2 guarantee in Article 347 TFEU on a ‘serious international tension constituting a threat of war’, as a potential justification for the closure of the Greek border towards Turkey and the temporary suspension of domestic asylum laws.134 The Gree government's argument about an ‘hybrid aggression’ emanating from the Turkish decision to allow – and encourage – foreigners to leave the country was taken up subsequently, by Lithuania and Poland when the Belarussian dictator threatened to ‘flood’ Europe with migrants in response to economic sanctions. The underlying argument of a ‘hybrid attack’ by means of politically incentivised migratory movements was politically sanctioned at the highest political level by the European Council and the Commission President, although the persuasiveness and potential legal effects of such arguments for specific policy scenarios remained uncertain at the time of writing. Be it as it may, the provision provides Member States with legal ammunition to justify restrictive practices, although such attempts will rarely succeed. Moreover, it was – unsuccessfully – invoked by Hungary in infringements proceedings the Commission had brought against draconian domestic asylum legislation.135 Recourse to the derogation will be limited to exceptional scenarios. An activation of 27 the provision presupposes that the arguments put forward in favour of derogation cannot be adequately addressed on the basis of statutory rules. In practice, specific provisions in secondary legislation will supplant Article 72 TFEU in regular circumstances, even though an activation of the derogation close remains possible in exceptional scenarios. Along these lines, the ECJ found statutory rules on the reintroduction of internal border controls, the public policy exception in the relocation decisions, exemptions from the asylum border procedure to realise the requirements of Article 72 TFEU.136 Advocates General supported the same view on the rejection of family reunification and student visas.137 In applying specific provisions of secondary legislation, the latter can be interpreted in light of Article 72 TFEU in line with the intermediate position presented above.138 Moreover, the EU institutions can agree on new measures to alleviate the concerns of the Member States, including provisional support in cases of sudden inflow of third country nationals on the basis of Article 78(3) TFEU (see Thym, Legal Framework for EU Asylum Policy, MN 36).139 An activation of Article 72 TFEU does not constitute a state of emergency, which 27a rejects the application of legal principles to safe the legal order from collapse. The Court of Justice has made clear, rather, that any recourse to the derogation is subject to judicial review. Similarly, the duty of loyal cooperation under Article 4 TEU requires Member States to coordinate among themselves and with the EU institutions in order to alleviate the concerns whenever possible, including through the adoption of specific 134 See Skordas, ‘The Twenty-Day Greek-Turkish Border Crisis: Geopolitics of Migration and Asylum Law’ (Part I & II), EU Immigration and Asylum Law Blog of 5 and 8 May 2020. 135 See ECJ, Commission vs. Hungary, C-808/18, EU:C:2020:1029, paras 212–226 in line with AG Pikamäe, ibid., EU:C:2020:493, paras 98–108. 136 On border controls see ECJ, Adil, C-278/12, EU:C:2012:508, para 66; on relocation ECJ, Commission v. Poland, the Czech Republic and Hungary, C-715/17, C-718/17 & C-719/17, EU:C:2020:257, paras 148–153; and on border procedures ECJ, Commission vs. Hungary, C-808/18, EU:C:2020:1029, para 222–224. 137 See Advocate General Kokott, European Parliament v. Council, C-540/03, EU:C:2005:517, paras 34–42; and Advocate General Szpunar, Fahimian, C-544/15, EU:C:2016:908, para 71. 138 See, mutatis mutandi, the Court’s position on Article 4(2) TEU, whose meaning may be replicated and specified for justice and home affairs in Article 72 TFEU, by ECJ, Ministrstvo za obrambo, C-742/19, EU:C:2021:597, paras 35–45. 139 The horizontal character of Article 72 TFEU argues against the conceptualisation of Article 78(3) TFEU as a lex specialis; contra Hilpold, ‘Quotenregelungen zur Bewältigung des Flüchtlingsproblems – ein rechtlich gangbarer Weg?’, Migralex (2016), p. 58, 63–65.

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supranational measures. If that is not possible, derogations must be limited in time and substance to comply with the requirements of the principle of proportionality. They have to respect, moreover, basic principles of the supranational legal order, including fundamental rights and the prohibition of refoulement, which are not subject to an emergency caveat.140 The safeguard clause does not allow for an exit from the constitutional framework of the EU, but is integrated into the latter as an exceptional flexibility measure.

2. External Relations In its strategic guidelines for legislative and operational planning(see Thym, Constitutional Framework, MN 8–9), the European Council has repeatedly called upon the EU institutions to reinforce cooperation with third states. The short Strategic Agenda 2019–2024 lists cooperation with countries of origin and transit as a top priority.141 Earlier initiatives had adopted a more holistic outlook in the Global Approach to Migration and Mobility of 2005/11 or the New Partnership Framework of 2016, which continue to inform the design and implementation of more specific policy proposals.142 They influence cooperation in the fields of visas (see above MN 14, 15), border controls (see below MN 30, 30a), readmission and legal migration (see Thym, Legal Framework for EU Immigration Policy, MN 22–22a) as well as asylum (see Thym, Legal Framework for EU Asylum Policy, MN 26, 33–35). 28a Competences for cooperation with third states and international organisations embrace all aspects of border control, visa, asylum and immigration policies, since the EU benefits from an implied shared external competence in all areas covered by internal competences irrespective of whether Articles 77–80 TFEU say so explicitly.143 The residual implied shared power turns into an exclusive external competence for international agreements after the adoption of secondary legislation insofar as an international treaty may affect internal rules or alter their scope.144 These shared and exclusive implied powers go further than express competences, which the EU Treaties lay down for readmission agreements (see Thym, Legal Framework for EU Immigration Policy, MN 22) and cooperation with third states in the field of asylum (see Thym, Legal Framework for EU Asylum Policy, MN 33–35). Do not misunderstand such express powers as an implicit statement that the EU cannot cooperate with third states or international organisations in other domains. While it remains a political choice whether to activate shared powers, the use of exclusive competences is mandatory, i.e. Member States are constitutionally prohibited from acting autonomously without an authorisation by the EU institutions.145 It is irrelevant whether an international agreement is in open conflict with Union law, since thematic overlap is sufficient to 28

140 See Hailbronner/Thym, ‘Grenzenloses Asylrecht? Die Flüchtlingskrise als Problem europäischer Rechtsintegration’, Juristenzeitung (2016), p. 753, 762–763; and ECRE, Derogating from EU Asylum Law in the Name of ‘Emergencies’, Legal Note No 6/2020, p. 6–7. 141 See European Council, A New Strategic Agenda 2019–2024, Annex to doc. EUCO 9/19 of 20 June 2019, p. 7. 142 See García Andrade/Martín/Mananashvili, EU Cooperation with Third Countries in the Field of Migration, Study requested by the European Parliament Directorate General for Internal Policies, October 2015, p. 22–69; and 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. 143 While the existence of shared implied external competences independent of the adoption of secondary legislation had been subject to debate for many years, it was confirmed to originate in Article 216(1) TFEU by ECJ, Germany v. Council, C-600/14, EU:C:2017:935, paras 45–52. 144 See Article 3(2) TFEU. 145 See Article 2(1) TFEU.

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Chp. 2 bring about an exclusive external competence.146 Similarly, minor gaps in the regulatory reach of secondary legislation do not prevent the emergence of an exclusive external competence insofar as Union law has ‘largely covered’ a field.147 By way of example, a fundamental revision of the Refugee Convention would be covered by an exclusive Union competence nowadays, since its contents largely coincides with the provisions of the Qualification Directive 2011/95/EU. The scope and character of Union powers for specific dimensions of border control, visa, immigration and asylum policies will be described in the relevant sections of the introductory chapters on entry and border controls, asylum and immigration to this Commentary. In accordance with settled case law, the demarcation of different legal bases follows 28b the aim and contents of the measure in question; whenever there are multiple aims and components, the centre of gravity prevails over incidental aspects.148 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 under Articles 206–207 TFEU.149 In the case of the GATS, the Annex on Movement of Natural Persons states expressly that it shall not prevent states from applying measures regulating the entry and stay of natural persons, including visa requirements.150 As a result, neither the GATS nor bilateral trade agreements have gained much significance for migration law in practice151 – in contrast to the status of posted workers from third countries under the EU’s internal market rules (see Thym, Legal Framework for EU Immigration Policy, MN 31a). Similarly, corollary rules on migration in contractual relations on development cooperation are covered by Articles 206–210 TFEU,152 while broader association agreements are based on Article 217 TFEU, for instance with neighbouring countries. Again, provisions on migration in development cooperation agreements have a limited scope.153 The relevance of association agreements depends on the political context; generally speaking, there are little rules on migration with states outside the European continent.154 It can be argued that the control-oriented externalisation projects, which are primarily pursued in the self-interest of the European Union, are not sustained by the competence on development cooperation, since the linkage is too vague155 – unlike 146

See ECJ, Accession of Third States to the Hague Convention, Opinion 1/13, EU:C:2014:2303, paras 69–74. Settled case law on the basis of ECJ, Lugano Convention, Opinion 1/03, EU:C:2006:81, para 126. 148 See ECJ, Commission v. Council (ECOWAS), C-91/05, EU:C:2008:288, para 73. 149 See ECJ, Opinion 2/15, EU-Singapore FTA, EU:C:2017:376, paras 40 et seq., 217. 150 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. 151 See Tans, Service Provision and Migration (Brill/Nijhoff, 2017); Jacobsson, ‘Liberalisation of Service Mobility in the EU’s International Trade Agreements’, EJML 15 (2013), p. 245–261; and Dony, ‘Espace de liberté, de sécurité et de justice et politique commerciale commune’, in: Flaesch-Mougin/Rossi (eds), La dimension extérieure de l’espace de liberté, de sécurité et de justice de l’Union européenne après le Traité de Lisbonne (Bruylant, 2013), p. 533, 535–542. 152 This was explicitly confirmed for ancillary rules on illegal migration by ECJ, Commission v. Council, C-377/12, EU:C:2014:1903, paras 58–59. 153 On the African, Caribbean and Pacific (ACP) countries, see Devisscher, ‘Legal Migration in the Relationship between the European Union and ACP Countries’, EJML 13 (2011), p. 53–94; and Van Criekinge, ‘Integration of Migration Issues in EPAs’, in: Faber/Orbie (eds), Beyond Market Access for Economic Development (Routledge, 2009), p. 173–195. 154 See the contributions to Thym/Zoeteweij-Turhan (eds), Rights of Third-Country Nationals under EU Association Agreements. Degrees of Free Movement and Citizenship (Brill Nijhoff, 2015); and Korneev/ Van Elsuwege, ‘The Eastern Partnership Countries and Russia. A Migration-Driven Cooperation Agenda with the European Union’, in: Ripoll Servent/Trauner, Routledge Handbook, p. 298–309. 155 See Gatti, ‘The Gendarmes of Europe. Southern Mediterranean States and the EU’s Partnership Framework on Migration’, in: Ippolito et al., Bilateral Relations, p. 140, 149–150. 147

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in the case of border management projects to counter terrorism as a precondition for security without which economic development rarely succeeds.156 Even if we concluded that development cooperation cannot be used as a legal basis, practical consequences would be limited, since EU institutions could activate alternative or complementary legal bases instead. Article 78(2)(g) TFEU and Article 79(2)(c) TFEU, in particular, establish shared powers that can be used for cooperation with third countries (see Thym, Legal Framework for EU Immigration Policy, MN 20–23). In the field of border controls, there can be an overlap with security and defence policy when police or military missions contribute to wider migration control objectives.157 Note that a legal basis beyond Articles 77–80 TFEU means that Ireland and Denmark will participate automatically, since their opt-outs are limited to the area of freedom, security and justice (see Thym, Constitutional Framework, MN 39a). 28c The internal decision-making procedure for international agreements follows Article 218 TFEU that provides for the consent of the European Parliament to all agreements on matters relating to entry and border controls, immigration and asylum.158 The Council votes by a qualified majority, i.e. Member States do not have a veto. It should be noted, however, that the need for parliamentary approval implies a lesser degree of influence than for internal legislation for the simple reason that Parliament is left with a binary choice to either approve or to reject the agreement, which the Commission negotiated in close consultation with the Council;159 MEPs can try, however, to influence negotiations indirectly.160 The ECJ can be consulted on the compatibility of a future agreement with the EU Treaties.161 After ratification, judges in Luxembourg can interpret agreements, which take precedence over secondary legislation and domestic laws if they are found to be directly applicable (see Thym, Constitutional Framework, MN 56–57). 29 We can observe the proliferation of informal cooperation frameworks in the field of external migration governance, including operational procedures on return, mobility partnerships or other bi- or plurilateral measures (see Thym, Legal Framework for EU Immigration Policy, MN 22–22a) as well as regarding border controls (see below MN 30a) and legal migration (see Thym, Legal Framework for EU Immigration Policy, MN 62).162 While such arrangements are – as gentlemen’s agreements – not legally binding, they commit the Union politically and can be effective in terms of influencing 156 ECJ, European Parliament v. Commission, C-403/05, EU:C:2007:624, paras 56–60 recognised the overlap but found the funding instrument not to justify the delivery of funds nonetheless, thus effectively calling for a legislative amendment. 157 Again, the delineation follows the centre of gravity of the mission in question, in relation to which the use of military equipment or personnel argues in favour of CFSP/CSDP; on the overlap in practice see Dura, ‘The EU in the Central Mediterranean. Impact and Implications of the Comprehensive Approach’, EJML 20 (2018), p. 205–222; and Koutrakos, ‘The Nexus between CFSP/CSDP and the Area of Freedom, Security and Justice’, in: Blockmans/ibid. (eds), Research Handbook on the EU’s Common Foreign and Security Policy (Elgar, 2018), p. 296, 302–307. 158 In line with Article 218(6)(a)(v) TFEU, the European Parliament must give its consent whenever the ordinary legislative procedure applies internally, like for Articles 77–79 TFEU. 159 On negotiations, see Article 218(3), (4), (10) TFEU. 160 See Eckes, ‘External Relations Law. How the Outside Shapes the Inside’, in: Acosta Arcarazo/ Murphy (eds), EU Security and Justice Law (Hart, 2014), p. 186, 190–193; and Thym, ‘Parliamentary Involvement in European International Relations’, in: Cremona/de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Hart, 2008), p. 201, 204–205. 161 See Article 218(11) TFEU. 162 Generally on the (dis)advantages of informal cooperation, see García Andrade, ‘The Role of the European Parliament in the Adoption of Non-Legally Binding Agreements with Third Countries’, in: Juan Santos Vara/Rodríguez Sánchez-Tabernero (eds), The Democratisation of EU International Relations through EU Law (Routledge, 2018), p. 115–132.

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Chp. 2 the behaviour of the parties. From a constitutional perspective, informal cooperation frameworks have to emanate from an external competence and are negotiated by the Commission with the consent of the Council (not the European Parliament), which retain the authority to determine the EU’s position politically.163 They are, as nonbinding arrangements, not published in the Official Journal but can often – though not necessarily – be access online. In the case of the EU-Turkey Statement of March 2016, the ECJ found, controversially, that it was the Member States (not the EU institutions) which consented to the pact and that legal challenges in Luxembourg were inadmissible;164 in other cases it can remain similarly unclear who the author of an informal arrangement is.165 Whenever the EU institutions adopt non-binging cooperation frameworks, the ECJ may have competence, in exceptional cases where legal effects are produced nonetheless, to review the legality of information action in line with established case law.166 Note that the implementation of informal cooperation frameworks will often be subject to legally binding internal legislation, such as the Return Directive for the Visa Code Regulation; in accordance with general rules, domestic courts and the ECJ can review the legality of corresponding state practices. In the field of border controls, the European Union has agreed to the far-reaching 30 association of Norway, Iceland and Switzerland (as well as Liechtenstein) with the Schengen acquis, including the abolition of internal border controls.167 This legal construction implies that the participation of these countries in the Schengen law rests upon international agreements concluded by the EU institutions,168 not upon EU membership. During the negotiations, the EU institutions insisted on 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.169 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.170 163 This was decided on the basis of Articles 16–17 TEU – not Article 218 TFEU, which applies to legally binding treaties only – by ECJ, Council v. Commission, C-660/13, EU:C:2016:616, paras 36 et seq.; for a proposal to require parliamentary consent by means of an analogous application of Article 218(6) TFEU, see García Andrade, ‘The Duty of Cooperation in the External Dimension of the EU Migration Policy’, in: Carrera et al. (eds), EU External Migration Policies in an Era of Global Mobilities (Brill, 2019), p. 299, 317. 164 See ECJ, NF et al. v. European Council, C-208/17 C-210/17 P, EU:C:2018:705, para 16. 165 See Molinari, ‘The EU and its Perilous Journey through the Migration Crisis: Informalisation of the EU Return Policy and Rule of Law Concerns’, EL Rev. 44 (2019), p. 824, 837–839. 166 See Santos Vara, ‘Soft International Agreements on Migration Cooperation with Third Countries’, in: Carrera/ibid./Strik (eds), Constitutionalising the External Dimension of EU Migration Policies in Times of Crisis (Elgar, 2019), p. 21, 33–35. 167 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. 168 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. 169 Cf. Article 2(3) of the said agreements, ibid.; failure to comply with the obligation can result in the termination of the agreement unless a political solution is found. 170 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.

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Since association agreements establish international legal obligations, domestic 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.171 It was decided that Gibraltar should join the Schengen area on the basis of a bilateral agreement to be negotiated during 2021, which is apparently meant to foresee individual decision-making powers of Frontex (see Ryan, Frontex Regulation (EU) 2019/1896, Article 1 MN 17). 30a In addition to association agreements, there are various forms cooperation on entry and border controls with third states, in particular those in the immediate neighbourhood. Over the years, there have been various examples of international cooperation, mostly below the threshold of legally binding commitments (see above MN 29).172 These supranational initiatives are often complemented by bilateral arrangements of the Member States, such as the highly controversial cooperation between Italy and Libya173 or the arrangements between Poland and Ukraine.174 A specific phenomenon are working arrangements or status of mission agreements FRONTEX has signed with third states in recent years (see Ryan, Frontex Regulation (EU) 2019/1896, Article 73). Such border control initiatives are often integrated into the wider reorientation of European immigration and asylum policy at the externalisation of migration control (see Thym, Legal Framework for EU Asylum Policy, MN 5).

IV. Human Rights and International Law 31

EU migration 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 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 Thym, Constitutional Framework, MN 47–48). With regard to specific legal questions, 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 in all scenarios (see Thym, Constitutional Framework, 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 generally form part of the EU legal order (see Thym, Constitutional Framework, 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. Other chapters elaborate on human rights requirements for immigration policy, including private and family life, the rights of the child and equal treatment (see Thym, Legal Framework for EU Immigration Policy, 171 See Articles 8–9 of the Agreement with Switzerland, ibid., and Articles 10–11 of the Agreement with Norway and Iceland, ibid. 172 See the contributions to Ippolito et al., Bilateral Relations; and Martin (ed), La gestion des frontières extérieures de l’Union européenne (Pedone, 2011). 173 See Gloninger, ‘From Humanitarian Rescue to Border Security’, EJML 21 (2019), p. 459, 475–480; on the previous practice, see Marchetti, ‘Expanded Borders: Policies and Practices of Preventive Refoulement in Italy,’ in: Geiger/Pécoud (eds), The Politics of International Migration Management (Palgrave Macmillan, 2010), p. 160–183. 174 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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Chp. 2 MN 37–42, 52–58), as well as asylum policy, in particular the prohibition of nonrefoulement and corresponding procedural obligations (see Thym, Legal Framework for EU Asylum Policy, MN 47–63a). Moreover, procedural guarantees beyond the confines of asylum policy, including data protection, are discussed in the general introduction (see Thym, Constitutional Framework, MN 37–37e).

1. (No) Right to Enter the European Union As starting point of its case law, the ECtHR maintains to this date that the contracting 32 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.’175 This assertion of state sovereignty over the entry and stay of foreigners, which has been criticised as the ‘Strasbourg reversal’ in academic writing,176 reiterates the classic position of public international law that emerged during the 19th century: states retain discretion when authorising the entry and stay of foreigners.177 The dynamic evolution of the human rights case law considerably curtailed this classic position, thereby overcoming the traditional limitation of human rights to guarantees within states that were not originally intended to restructure cross-border situations.178 Similarly, migration-related questions had originally been left outside the scope of the European Convention.179 State control over the entry and stay of foreigners is subject to limitations on human 33 rights grounds. We may distinguish two sets of obligations: firstly, Article 3 ECHR serves as the central guarantee against mistreatment in countries of origin or transit (see Thym, Legal Framework for EU Asylum Policy, MN 55–63); 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 irrespective 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 Europe. 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 a primary right to be admitted for purposes of family reunion only in exceptional circumstances (see Thym, Legal Framework for EU Immigration Law, MN 51), which is supplanted by extensive statutory guarantees in secondary legislation. These constitutional principles can be extended to the EU Charter, since Articles 4 and 7 CFR have to be interpreted in line with the ECtHR case law.180 175 This standard formula was first used in ECtHR, Judgment of 28 May 1985, Nos 9214/80, 9473/81 & 9474/81, Abdulaziz, Cabakes & Balkandali v. the United Kingdom, para 67; reconfirmed by ECtHR, judgment of 13 February 2020 [GC], Nos 8675/15 & 8697/15, N.D. & N.T. v. Spain, para 167; see also Saroléa, Droits de l’homme et migrations (Bruylant, 2006), p. 331–335. 176 See Dembour, When Humans Become Migrants (OUP, 2015), ch. 4. 177 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 1 June 2021]; and Jennings/Watts, Oppenheim’s International Law, Vol. II, 9th edn (OUP, 2008), chs 6 & 9; on different traditions before the heyday of the nation state, see Chetail, International Migration Law (OUP, 2019), ch. 2. 178 See Moyn, The Last Utopia. Human Rights in History (Harvard UP, 2010). 179 The travaux préparatoires 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 réservée 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 Flüchtlings im Rahmen des Europarats’, Archiv des Völkerrechts 21 (1983), p. 60, 61–64. 180 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.

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In relation to refugees, the mandatory respect for the Refugee Convention and human rights (see above MN 31) requires Member States to respect these obligations when implementing EU policies. In line with Article 51 CFR, it has to be assessed on a case-bycase basis whether national border control activities are to be considered an implementation of Union law to which EU fundamental rights standards apply (see Thym, Constitutional Framework, MN 47–48).181 Express provisions in EU legislation on the necessary respect for refugee law and human rights, such as Article 3(b) Schengen Borders Code Regulation (EU) 2016/399,182 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 fleeing persecution at the border,183 even though the scope of these obligations remains unclear, especially with regard to extraterritorial state activities (see below MN 38–41) and concerning non-admission at the border (see below MN 35). 35 In the context of entry control, it is important to distinguish between non-refoulement obligations and access to an asylum procedure. While the former (non-refoulement) prohibits the return to unsafe territories, the latter (access to an asylum procedure) is usually understood to embrace access to basic procedural safeguards, a provisional right to stay during status determination and, in case of recognition, a set of socioeconomic rights. It remains contested to what extent the ECtHR case law on the prohibition of collective expulsions and the right to asylum in Article 18 of the Charter embrace a generic guarantee to be temporarily admitted to EU territory, especially in situations where people do not face a real risk of inhumane or degrading treatment (see Thym, Legal Framework for EU Asylum Policy, MN 55–63). In practical terms, most of these questions are supplanted by statutory guarantees in the Asylum Procedures Directive. 35a The distinction between non-refoulement and the right to asylum is particularly relevant for those who are not covered by the EU asylum directives ratione loci, in particular those who are confronted with European border guards on the occasion of extraterritorial control activities (see below MN 39). As long as non-refoulement obligations are met, applicants 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 or inhumane or degrading treatment under the criteria set out in international human rights and refugee law (see Thym, Legal Framework for EU Asylum Policy, MN 56–59a). These principles apply to search and rescue operations mutatis mutandi (see below MN 42–43). Against this background, it would be possible, from a constitutional perspective, for the EU legislature to provide for the relocation of asylum seekers to transit zones, disembarkation platforms or safe third countries on the basis of agreements providing for credible guarantees for fair treatment,184 if necessary by supporting third states or international organisations in guaranteeing an adequate treatment through financial or administrative support.185 Taking up previous debates, the EU Treaties establish a supranational competence to set up asylum reception centres outside the EU territory (see Thym, Legal Framework for EU Asylum Policy, MN 35). 34

181

By way of example, see ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–41. Even without an express provision respect would be mandatory, since EU legislation has to comply with primary law, see Thym, Constitutional Framework, MN 14. 183 See Goodwin-Gill/McAdam, Refugee, p. 206–208; and Kälin/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. 184 On the relevance of diplomatic assurances within the context of Article 3 ECHR, see Thym, Legal Framework for EU Asylum Policy, MN 57. 185 For further comments, see Thym, Expert Opinion on the Reform of the Common European Asylum System, January 2017, available online at http://ssrn.com/abstract=3163014 [last accessed 1 June 2021]. 182

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Chp. 2 With regard to other categories of foreigners than refugee and family members, 36 international human rights law confirms the principled freedom of states to control their borders and to regulate the entry and stay of foreigners.186 Only nationals must not be arbitrarily deprived of the human right to enter their ‘own country’187, which the Human Rights Committee extended to certain categories of long-term residents.188 Neither contractual obligations nor customary international law have so far brought about an authoritative basis for a generic human right to enter other states in situations others than those related to family unity and refugee protection.189 More recent attempts to invigorate the right to leave any country under Article 2(2) of the Additional Protocol No. 4 to the ECHR have not been fruitful so far;190 the ECtHR has rejected an activation of the provision for interception at sea.191 In short: there is no generic human right to enter foreign states, while those residing in another country benefit from civil, economic, social and cultural rights,192 including those with illegal residence status.193 EU legislation can provide for more far-reaching individual rights in situations where 37 human rights do not contain such guarantee. Corresponding statutory rights of migrants to be admitted 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 reunification and for students.194 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 (see Thym, Constitutional Framework, MN 15). In accordance with Article 47 of the Charter (see Thym, ibid., MN 37–37b), 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 appeal against rejection at the border (see Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 13 MN 4–5). 186

Lauterpacht, Oppenheim’s International Law. Vol. I, 8th edn (Longham, 1955), p. 675–676. Article 12(4) ICCPR; similarly, Article 3(2) Additional Protocol No 4 to the ECHR; the Charter of Fundamental Rights does not take up the guarantee, which may exist nonetheless as an unwritten general principle of Union law in line with Article 6(3) TEU. 188 See Human Rights Committee, General Comment No 27, Doc. CCPR/C/21/Rev.1/Add.9 of 2 November 1999, para 20; for a more cautious position, see Human Rights Committee, Communication No 538/1993, Stewart v. Canada, doc. CCPR/C/58/D/538/1993 of 16 December 1996. 189 See Perruchoud, ‘State Sovereignty and Freedom of Movement’, in: Opeskin et al. (eds), Foundations of International Migration Law (CUP, 2012), p. 123, 129–136; Martin, ‘The Authority and Responsibility of States’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 31–46; and the prospective considerations by den Heijer, Extraterritorial Asylum, p. 142–160. 190 See the dynamic proposals by Stoyanova, ‘The Right to Leave Any Country and the Interplay between Jurisdiction and Proportionality in Human Rights Law’, IJRL (2020), p. 403–439; and Markard, ‘The Right to Leave by Sea. Legal Limits on EU Migration Control by Third Countries’, EJIL 27 (2016), p. 591–616. 191 See ECtHR, decision of 11 January 2001, No 39473/98, Xhavara et al. vs. Italy & Albania, para 3. 192 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-Marín (ed), Human Rights and Immigration (OUP, 2014), p. 177–211. 193 See Carlier, ‘Quelles Europes et quel(s) droit(s) pour quels migrants irréguliers?’, in: Leclerc (ed), Europe(s), droit(s) et migrants irréguliers (Bruylant, 2012), p. XIII–XXVI. 194 For a statement of principle, see ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, paras 59–60. 187

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2. Extraterritorial Reach The borders agency FRONTEX has become a symbol for the attempt, on the side of 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 obligations under human rights and refugee law by preventing potential refugees from reaching the territorial borders of the European Union (see above MN 4; and Thym, Legal Framework for EU Asylum Policy, MN 5). While it is beyond doubt that extraterritorial border controls and support for third states must comply with the established principles of the law of the sea concerning safety and rescue of life (see below MN 42–43), 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 case law. In a number of judgments concerning extraterritorial military activities, judges in Strasbourg held that a state’s ‘jurisdictional competence is primarily territorial’ and that extraterritorial activities amount to an exercise of jurisdiction only in ‘exceptional circumstances.’195 These instances can include situations of effective control of an area as a consequence of military action as well as factual authority over an individual abroad, for instance as a result of arrest (including kidnapping) or ‘on board aircraft and vessels.’196 39 On the basis of these principles, the ECtHR concluded, in the Hirsi judgment, that Italian border guards held jurisdiction over migrants on board of a coastguard vessel,197 thus triggering the application of the double prohibition of refoulement and collective expulsion (see Thym, Legal Framework for EU Asylum Policy, MN 57–63). It remains an open question whether the ECtHR’s statement about migrants on board ships ‘registered in, or flying the flag of, that State’198 entails that other forms of de facto control cannot be qualified as an exercise of jurisdiction, particularly in situations when border control officers are not in physical contact with migrants on private vessels. That question is far from academic given the pre-dominance of private vessels and the coast guard of neighbouring states, notably from Libya and Morocco, for search and rescue in the Mediterranean. In a case about delayed rescue operations, the Human Rights Committee found that the jurisdictional link was sufficient ‘in the particular circumstances of the case.’199 It remains to be seen whether the ECtHR follows the example and whether the same conclusion might even be reached in scenarios involving the Libyan coast guard.200 38

195 Reaffirmed by ECtHR, decision of 5 May 2020 [GC], No 3599/18, M. N. and others v. Belgium, paras 98, 102 summarising earlier judgments. 196 See, again, the summary of earlier case law by ECtHR, judgment of 23 February 2012 [GC], No 27765/09, Hirsi Jamaa et al. v. Italy, paras 73–75. 197 See the application of the principles described above by ECtHR, judgment of 23 February 2012 [GC], No 27765/09, Hirsi Jamaa et al. v. Italy, paras 76–82. 198 ECtHR, judgment of 23 February 2012 [GC], No 27765/09, Hirsi Jamaa et al. v. Italy, para 75. 199 See Human Rights Committee, Views of 27 January 2021, No. 3042/2017, A.S. et al. v. Italy, section 7.4-7.8 with regard to the jurisdictional yardstick under Article 2(1) ICCPR; similarly, den Heijer, ‘Reflections on Refoulement and Collective Expulsion in the Hirsi Case’, IJRL 25 (2013), p. 265, 273–274; Moreno-Lax, ‘Hirsi Jamaa and Others v. Italy’, Human Rights Law Review 12 (2012), p. 574, 580–582; and Solomon, ‘Migrant Boats on the High Seas and Their Interception through Psychologically Coercive Measures’, Netherlands Quarterly of Human Rights 37 (2019), 36–49. 200 See the application No. 21660/18, S.S. et al. v. Italy (pending).

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Chp. 2 In a judgment of principle, the Grand Chamber of the ECtHR concluded that the 39a rejection of an application for a humanitarian visa in an embassy abroad cannot be considered an exercise of state jurisdiction. To be sure, it may find an exercise of jurisdiction by consular agents in ‘exceptional circumstances’, for instance when nationals seek diplomatic protection or family members seek an entry visa.201 However, the involvement of domestic authorities or the risk of inhumane or degrading treatment in themselves were not considered sufficient to justify such an exception.202 In a statement of principle, the Grand Chamber emphasised the generic character of the verdict: ‘The Court considers that to find otherwise would amount to enshrining a near‐ universal application of the Convention … and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment… The individual in question could create a jurisdictional link by submitting an application and thus give rise, in certain scenarios, to an obligation under Article 3 which would not otherwise exist.’203 The judgment came as a disappointment for those who had promoted different forms of joint or functional jurisdiction to overcome the territorial underpinning of established jurisdictional control standards.204 Apparently, judges at the Court in Strasbourg are not willing to embark upon extensive extraterritorial scrutiny. Contrary to the ECHR, the Refugee Convention does not contain an explicit 40 provision on territorial scope. The prohibition of refoulement was originally meant, by state parties, to apply within the territory, although there is growing support to extend its reach to rejection at the border and – notwithstanding the position of the US Supreme Court – extraterritorial de facto control over persons or territory (mirroring the ECtHR case law).205 Similarly, proposal have been put forward to use the doctrinal concept of positive obligations to limit state discretion further, possibly on the basis of other multilateral human rights instruments not subject to the jurisdictional benchmark.206 When it comes to legal practice, however, the position of the European Court of Human Rights and its ‘primarily territorial’ notion of jurisdiction remain crucial. It entails that visa requirements and carrier sanctions cannot be held liable for violations of non-refoulement obligations (see Meloni, Regulation (EC) No 810/2009, Article 1 MN 11). Important uncertainties exist when it comes to the territorial scope of the Charter 41 of Fundamental Rights. On the one hand, it can be argued that it emulates the jurisdictional threshold of Article 1 ECHR in instances of extraterritorial state action, or that at least some guarantees, such as the prohibition of refoulement or the right to asylum (see Thym, Legal Framework for EU Asylum Policy, MN 55-60a), should be interpreted in line with the legal material they were meant to reinforce.207 On the other hand, the open formulation in Article 51(1) about the Charter being ‘addressed to the 201

See ECtHR, decision of 5 May 2020 [GC], No 3599/18, M. N. and others v. Belgium, paras 101–106. See ECtHR, decision of 5 May 2020 [GC], No 3599/18, M. N. and others v. Belgium, paras 110–123. 203 ECtHR, decision of 5 May 2020 [GC], No 3599/18, M. N. and others v. Belgium, paras 124; references omitted. 204 For further comments, see Thym, End of Human Rights Dynamism?, p. 584–588. 205 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. 206 See Spijkerboer, ‘Stretching the Limits’, in: Maes et al., External Dimensions, p. 387, 394–402; and, for the International Covenant on Economic, Social and Cultural Rights, Pijnenburg, At the Frontiers of State Responsibility. Socio-Economic Rights and Cooperation on Migration (Intersentia, 2021). 207 See Article 52(3), (4) CFR; Law, ‘Humanitarian Admission and the Charter of Fundamental Rights’, in: Foblets/Leboeuf, Humanitarian Admission, p. 77, 97–109; and Herdegen, ‘Grundrechte der Euro202

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institutions’ and applying to the Member States ‘when implementing Union law’ could be read as an implicit statement about extraterritorial scope, also considering that the Court of Justice has previously found secondary legislation to reach beyond the external borders.208 Arguably, one reason for the convoluted reasoning in the X & X judgment on humanitarian visas may have been a desire to evade a definite statement on these matters. For the time being, the scope of the Charter remains obscure.

3. Search and Rescue The obligation to safe life at sea is firmly embedded in international law, including in Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS), which the European Union has ratified.209 Regulatory standards were laid down by the IMO Maritime Safety Committee on the basis of the International Convention on Maritime Search and Rescue (SAR Convention),210 which specified and supplemented the general obligation to save life at sea with interstate coordination requirements and a definition of the concept of ‘distress’ or the meaning of a ‘place of safety’.211 A place of safety, where disembarkation may take place, is generally understood nowadays to require basic physical security and the fulfilment of basic human needs, including compliance with the prohibition of refoulement.212 In line with settled ECJ case law, contractual obligations of the Member States are not generally integrated into the EU legal order (see Thym, Constitutional Framework, MN 58). Nevertheless, the technical requirements mentioned above can be said to specify the obligation under Article 98 UNCLOS, which the EU must respect. Moreover, the EU institutions are bound by human rights requirements informing the meaning of ‘safety’ under the international law of the sea. 42a To apply international legal standards remains a practical and legal challenge. Firstly, it can be difficult to define the bearing of ‘safety’ in-between the law of the sea and human rights law (see Thym, Legal Framework for EU Asylum Policy, MN 56-58) and to determine whether the situation in a specific country meets these requirements. Similar problems persist with regard to the meaning of ‘distress’ and its application to the factual situation on the ground, for instance for the conditions under which rubber boats are in distress.213 Secondly, the obligation to safe life at sea does not imply a general obligation to authorise disembarkation in a specific country, for instance on grounds of geographic proximity or the flag state. Instead, international law requires 42

päischen Union’, in: Isensee/Kirchhof (ed), Handbuch des Staatsrechts, Vol. X, 3rd edn (C.F. Müller, 2012), § 211 MN 44–45. 208 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. 209 See UNCLOS of 10 December 1982 (OJ 1998 L 179/3). 210 See International Convention on Maritime Search and Rescue (SAR) of 27 April 1979, UNTS Vol. 1405, p. 118, which is binding on most Member States. 211 See Guidelines on the Treatment of Persons Rescued at Sea, Resolution MSC.167(78) of 20 May 2004, para 6.12–18. 212 See the revised Annex to the SAR Convention as amended by Resolution MSC.70(69) of 20 May 1998, which entered into force on 1 January 2000; and Resolution MSC.155(78) of 20 May 2004, which entered into force on 1 July 2006; they can be found online at https://www.imo.org/en/KnowledgeCentre/ IndexofIMOResolutions/Pages/MSC.aspx [last accessed 1 June 2021]. 213 For further comments, see Moreno-Lax, ‘Seeking Asylum in the Mediterranean’, IJRL 23 (2011), p. 174, 186–199; Papastavridis, ‘Rescuing Migrants at Sea and the Law of International Responsibility’, in: Gammeltoft-Hansen/Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation (Routledge, 2017), p. 161, 163–168; and Scovazzi, ‘Human Rights and Immigration at Sea’, in: Rubio-Marín (ed), Human Rights and Immigration (OUP, 2014), p. 212, 225–237.

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Chp. 2 states to cooperate in finding a ‘place of safety’ – an obligation of conduct, not of result.214 Private vessels cannot force states to open their ports, unless in situations of humanitarian urgency.215 The linkage between international legal obligations and EU rules on entry and border 43 controls are far from straightforward. When it comes to competences, the EU institutions lack a generic power to harmonise rules on search and rescue, which can only be dealt with indirectly, in the context of statutory prescriptions for border controls (see above MN 17a). The same applies to Frontex, which has no freestanding competence to set up search and rescue operations (see above MN 20b). The Sea Borders Regulation has been criticised for not laying down clear-cut criteria specifying the meaning of basic concepts of international law or filling existing lacunae, such as a coordinated mechanism for disembarkation (see Ryan, Regulation (EU) 656/2014, Article 1 MN 3–4).216 Moreover, Member States have repeatedly been accused of hindering effective of search and rescue by not opening their ports, thus using the abstract definitions and regulatory lacunae in the international legal framework to advance the securitarian control agenda.217

4. Detention As a matter of principle, it is beyond doubt that the right to liberty is firmly 44 embedded in the EU legal order and can be invoked by third country nationals to challenge detention. Constitutional standards for detention emanate from Article 5 ECHR and Article 6 of the Charter, which should usually be interpreted in parallel (see Thym, Constitutional Framework, MN 48), even though judges in Luxembourg have occasionally emphasised the autonomy of Union law.218 A first area of potential differences concerns the concept of detention, for which the ECtHR requires a certain level of intensity, which short periods of non-admission, for instance at airports, do not necessarily satisfy.219 The Grand Chamber concluded that asylum seekers in a Hungarian transit zone had not been detained, since they could have left towards Serbia.220 By contrast, the ECJ came to a different conclusion without specifying whether that result concerned general human rights requirements or stricter statutory standards.221 A second area of potential differences concerns justification requirements for detention, since the EU Charter does not emulate detailed prescriptions in 214 See van Berckel Smit, ‘Taking Onboard the Issue of Disembarkation’, EJML 22 (2020), p. 492–517; and Trevisanut, ‘Search and Rescue Operations in the Mediterranean. Factor of Cooperation or Conflict?’, The International Journal of Marine and Coastal Law 25 (2010), p. 524–543. 215 See Talmon, ‘Private Seenotrettung und das Völkerrecht’, Juristenzeitung (2019), p. 802, 805–807. 216 See den Heijer, ‘Frontex and the Shifting Approaches to Boat Migration in the European Union. A Legal Analysis’, in: Zaiotti (ed), Externalizing Migration Management (Routledge, 2016), p. 53, 54–66; and Koka/Veshi, ‘Irregular Migration by Sea. Interception and Rescue Interventions in Light of International Law and the EU Sea Borders Regulation’, EJML 21 (2019), p. 26, 43–48. 217 Generally, see Mann, ‘Maritime Legal Black Holes. Migration and Rightlessness in International Law’, European Journal of International Law 29 (2018), p. 347–372. 218 See ECJ, N, C-601/15 PPU, EU:C:2016:84, paras 44–47; and ECJ, K, C-18/16, EU:C:2017:680, paras 32, 50–52, which recognised the need for coherence, while emphasising the autonomy of Union law. 219 For general principles guiding the case law, see ECtHR, judgment of 21 November 2019 [GC], No 47287/15, Ilias & Ahmed v. Hungary, paras 211–218; and ECtHR, judgment of 25 June 1996, No 19776/92, Amuur v. France, paras 38–49 distinguishing between mere ‘restrictions’ and more extensive ‘deprivations’ of liberty with only the latter amounting to ‘detention.’ 220 See ECtHR, judgment of 21 November 2019 [GC], No 47287/15, Ilias & Ahmed v. Hungary, paras 219–249. 221 See ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, paras 216–225; generally, on the lack of attention, on the part of the ECJ, to the human rights framework in the field of detention, see Molnár, ‘The Place and Role of

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Article 5(1)(a)-(f) ECHR.222 It is not immediately clear whether the claim to autonomy, which permeates ECJ judgments on the justification of detention, results in higher or lower standards in comparison to the ECtHR case law; the outcome may differ depending on the legal questions involved.223 44a The principles described above extend to Article 9(1) ICCPR, in relation to which the Human Rights Committee has accepted the initial detention of asylum seekers, while insisting, like the ECtHR (see below MN 46), that detention does not become permanent.224 Non-binding recommendations put forward by the Executive Committee and by UNHCR plead for stricter requirements,225 but they are based primarily on human rights law and cannot, therefore, go beyond the above-mentioned case law. 45 In line with settled ECtHR case law, we must distinguish the detention of asylum seekers and other migrants in the context of entry controls from human rights requirements applicable to domestic deprivations of liberty of third country nationals who had previously entered a Member States, including detention for return purposes. In a judgment of principle, the Grand Chamber reaffirmed that the more generous criteria for entry controls pursuant to first limb of Article 5(1)(f) ECHR also apply when someone files an application for asylum at the border: ‘the first limb of Article 5 para 1(f) permits the detention of an asylum-seeker or other immigrant prior to the State’s grant of authorisation to enter.’226 In these cases, the ECtHR does not require a proportionality assessment to be carried out, but applies a more generous arbitrariness yardstick, including the option of judicial review by courts,227 even though it can be difficult to discern practical differences between the necessary proportionality and arbitrariness assessment. 45a It is not immediately clear whether and, if so, to what extent the ECJ projects the position of the ECtHR on the interpretation of Article 6 CFR. In a series of judgments on entry cases, it emphasised the need for a proportionality assessment without specifying whether that result rested on statutory prescriptions in Articles 8–9 Reception Conditions Directive 2013/33/EU or concerned fundamental rights as International Human Rights Law in the EU Return Directive and in the Related CJEU Case-Law’, in: Carrera/den Hertog/Panizzon/Kostakopoulou, EU External Migration Policies, p. 105, 113–116. 222 See Mancano, Deprivation of Liberty, p. 181–182. 223 For an assessment of the first cases, see Monina, ‘”Judging” the Grounds for Detention of Asylum Seekers. Discrepancies between EU Law and the ECHR’, in: Crescenzi/Forastiero/Palmisano (eds), Asylum and the EU Charter of Fundamental Rights (Editoriale Scientifica, 2018), p. 151, 156–161; Carlier/Lebœuf, ‘Droit européen des migrations’, Journal de droit européen (2018), p. 98, 99–101; and De Coninck, ‘Rétention de demandeurs d’asile dans l’Union européenne et instruments parallèles de protection des droits fondamentaux’, Cahiers de droit européen 52 (2017), p. 83, 101–103, 107–111. 224 See Human Rights Committee, views of 26 July 2013, No 2094/2011, M.M.M. et al. v. Australia, Doc. CCPR/C/108/D/2094/2011, No 9.3+4 for detention lasting several years. 225 Cf. ExCom Conclusion No 44 (XXXVII), Detention of Refugees and Asylum-Seekers (1986), para b which states that detention may be resorted to only on grounds prescribed by law to verify identity and in the context of unlawful entry; and the generous interpretation by UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012, paras 22–28, 34 et seq., which the ECtHR had implicitly rejected in the Saadi case. 226 ECtHR, judgment of 29 January 2008, No 13229/03, Saadi v. the United Kingdom, paras 64–67 referring to ExCom Conclusion No 44 (XXXVII): Detention of Refugees and Asylum-Seekers (1986); the general principles of the ECtHR case law were summarised in ECtHR, judgment of 22 September 2015, No 62116/12, Nabil et al. v. Hungary, paras 26–35; the condemnation of Italy for holding asylum seekers in detention on Lampedusa by ECtHR, judgment of 12 December 2016 [GC], No 16483/12, Khlaifia et al. v. Italy, paras 88–108 does not contradict this finding, since the ECtHR sanctioned the absence of a legal basis in domestic law. 227 See ECtHR, judgment of 29 January 2008, No 13229/03, Saadi v. the United Kingdom, paras 67–75; for details, see Bossuyt, Strasbourg et les demandeurs d’asile (Bruylant, 2010), p. 153–158; and, for a critical view, Cornelisse, Immigration Detention and Human Rights (Martinus Nijhoff, 2010), p. 275–310; and Costello, The Human Rights of Migrants and Refugees in European Law (OUP, 2015), p. 285–293.

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Chp. 2 such.228 Doctrinally, the question is not straightforward to answer as well.229 If later developments confirmed the potential need for a proportionality assessment in entry cases under the Charter, the legislature was obliged to respect that prescription when changing rules on the detention of asylum seekers at hotspots or in transit centres at the external borders.230 In line with settled case law, the proportionality or arbitrariness standard (see above 46 MN 45–45a) obliges states to avoid lengthy detention, in particular when procedures for ascertaining entry conditions or terminating irregular stay are blocked; detention must not be a permanent.231 It is not immediately clear, however, to what extent the human rightsbased proportionality test requires states to consider alternatives to detention in each individual case, mirroring statutory obligations in Article 8 Reception Conditions Directive and Article 15 Return Directive (see Tsourdi, Directive 2013/33/EU, Article 8 MN 9–13, 33; and Mananashvili/Moraru, Directive 2018/115/EU, Article 15 MN 39–49).232 In any case, states are obliged to differentiate between different categories of people, mirroring the individualised outlook of any proportionality assessment (see Thym, Constitutional Framework, MN 24–26). The deprivation of liberty of third country nationals who have been expelled after a criminal conviction is a different matter than the detention of asylum seekers.233 Vulnerable groups require special treatment, even though the ECtHR confirmed that families with (young) children or unaccompanied minors can be detained as a matter of principle.234 With regard to the detention of asylum seekers and children, the international legal practice promotes the ‘last resort’235 yardstick, which indicates a particularly strict proportionality assessment. 228 See ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, paras 249–266; and ECJ, N, C-601/15 PPU, EU:C:2016:84, paras 47, 54–57, 60 in scenarios concerning the first limb of Art. 5(1)(f) ECHR, in relation to which ECtHR, judgment of 23 July 2013, No 42337/12, Suso Musa v. Malta, para 96 and the case law cited therein limited itself to an arbitrariness test; the ECJ did not mention or discuss the divergence. 229 While Article 52(3) CFR argues for an incorporation of the requirements of the ECtHR case law into the interpretation of the Charter, Article 52(1) CFR can be read to require a proportionality assessment in all scenarios, including where the ECtHR does not require such. 230 On the debate, which intensified in late 2020, see Cornelisse, ‘Territory, Procedures and Rights. Border Procedures in European Asylum Law’, Refugee Survey Quarterly 35 (2016), p. 74–90. 231 In this sense, see ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, para 264; ECtHR, judgment of 10 April 2018, No 75157/14, Bistieva et al. v. Poland; ECtHR, judgment of 24 June 2008, Nos 29787/03 & 29810/03, Riad & Idiab v. Belgium, para 68; and ECtHR, judgment of 25 June 1996, No 19776/92, Amuur v. France, para 43; see also den Heijer, Europe and Extraterritorial Asylum (Hart, 2012), p. 274–279. 232 Even if one supported this conclusion for the regular proportionality assessment, it would not necessarily apply to entry cases in line of the more generous ECtHR case law; see above MN 45–45a; ECtHR, judgment of 26 March 2020, No 23685/14, Bilalova and others v. Russia, paras 78–81 considered the question of alternatives as one element amongst others. 233 Generally, on different categories in secondary legislation, Mancano, Deprivation of Liberty, chs 9–11; on the concept and effects of ‘administrative’ detention for non-punitive purposes, see Leerkes/ Broeders, ‘Deportable and Not So Deportable’, in: Anderson/Gibney/Paoletti (eds), The Social, Political and Historical Contours of Deportation (Springer, 2013), p. 79–104. 234 In accordance the ECtHR, the legality of the detention of asylum seekers will take the circumstances of the individual case and the conditions at the detention centre into account; cf. ECtHR, judgment of 26 March 2020, No 23685/14, Bilalova and others v. Russia, paras 45–46; and ECtHR, judgment of 19 January 2010, No 41442/07, Muskhadzhiyeva et al. v. Belgium, paras 55–63. 235 Cf. Recital No 20 and Article 11(2) Reception Conditions Directive 2013/33/EU; Article 17(1) Return Directive 2008/115/EC; the UNHCR Guidelines, ibid., Nos 28 and 51; Article 37 Convention on the Rights of the Child; ECtHR, judgment of 19 November 2012, Nos 39472/07 & 39474/07, Popov v. France, paras 119, 141; Committee of Ministers of the Council of Europe: Twenty Guidelines on Forced Return, 4 May 2005, Guidelines 6 and 11; by contrast, the non-binding Global Compact for Safe, Orderly and Regular Migration, UNGV-Res. 73/195 of 19 December 2018, No 29 uses the formula indiscriminately, not only for specific groups.

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Chapter 3. Visa Code Regulation (EC) No 810/2009 Select Bibliography: Carrera/et al, ‘EU-Morocco Cooperation on Readmission, Borders and Protection: A model to follow?’, CEPS Paper in Liberty and Security in Europe No 87 (2016), available at: https://www.ceps. eu/wp-content/uploads/2016/01/EU-Morocco Cooperation Liberty and Security in Europe.pdf [last accessed 1 April 2021]; Czaika/de Haas, ‘The Effect of Visas on Migration Processes’, IM Rev. 51 (2017), p. 893–926; den Heijer, ‘Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights’, EJML 10 (2008), p. 277–314; 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 2021]; Hathaway, The Rights of Refugees under International Law (CUP, 2005); Jensen, ‘Humanitarian Visas: Option or Obligations?’, CEPS Paper in Liberty and Security in Europe No 68 (2014), available at: http://www.ceps.eu/book/humanitarian-visas-option-or-obligation [last accessed 06 April 2021]; Lauterpacht/Bethlehem, ‘The scope and content of the principle of non-refoulement’, in: Feller/Türk/Nicholson (eds), Refugee Protection in International Law (CUP, 2003), p. 87–177; Meloni, Visa Policy within the European Union Structure (Springer, 2006); Meloni, ‘The Community Code on Visas: Harmonization at last?’, EL Rev 34 (2009), p. 671–695; Meloni, ‘EU visa policy: What kind of solidarity?’ Maastricht Journal of European and Comparative Law 24 (2017) p. 646–666; Migration Law Clinic, University of Amsterdam, Access to Legal Remedies under the Visa Code in the Case of Representation Agreements (2018), available at: https://migrationlawclinic.files.wordpress.com/2018/06/2018-03-29-expert-opinion-mlc. pdf [last accessed 6 April 2021]; Moreno-Lax, Accessing Asylum in Europe (OUP, 2017); Noll, ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’, IJRL 17 (2005) p. 542–573; Peers, ‘The Visa Code’, in: Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law (Text and Commentary), 2nd revised edn, Vol. 1: Visas and Border Controls (Brill Nijhoff, 2012); Sanchez-Barrueco, ‘Business as usual? Mapping outsourcing practices in Schengen visa processing’, JEMS 44 (2018) p. 382–400; Thym, ‘A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases’, EJML 21 (2019), p. 166–193; Tittel-Mosser, Implementing EU Mobility Partnerships. Putting Soft Law into Practice (Routledge, 2020). Note that the literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the author(s) and a short title only.

Consolidated text: 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; as amended by Commission Regulation (EU) No 977/2011, Official Journal L 258, 4.10.2011, p. 9–11; Regulation (EU) No 154/2012, Official Journal L 58, 29.2.2012, p. 3–4; Regulation (EU) No 610/2013, Official Journal L 182, 29.6.2013, p. 1–18; Regulation (EU) 2016/399, Official Journal L 77, 23.3.2016, p. 1–52; Regulation (EU) 2019/1155, Official Journal L 188, 12.7.2019, p. 25–54; and as corrected by Official Journal L 284, 12.11.2018, p. 38–38 and Official Journal L 20, 24.1.2020, p. 25–25; the legislative text that follows does not yet include the amendments brought about by Regulation (EU) 2021/1134 amending Regulations (EC) No 767/2008 for the purpose of reforming the Visa Information System (OJ 2021 L 248/11). 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, 84

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Art. 1

Having regard to the proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty(1), Whereas: […] HAVE ADOPTED THIS REGULATION:

TITLE I GENERAL PROVISIONS Article 1 Objective and scope 1. This Regulation establishes the procedures and conditions for issuing visas for 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(2) 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. 4. When applying this Regulation, Member States shall act in full compliance with Union law, including the Charter of Fundamental Rights of the European Union. In accordance with the general principles of Union law, decisions on applications under this Regulation shall be taken on an individual basis. Content I. Drafting history and subject-matter ........................................................... II. Amendments.................................................................................................... 1. Abandoned elements from the 2014 recast proposal......................... 2. New elements introduced by amending Regulation (EU) 2019/1155 .....................................................................................................

mn. 1 5 6 8

(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 81, 21.3.2001, p. 1.

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Chp. 3 Art. 1

Visa Code Regulation (EC) No 810/2009

III. Territorial application .................................................................................... IV. Scope .................................................................................................................. 1. Length of stay .............................................................................................. 2. Third country nationals covered by the Visa List Regulation (EU) 2018/1806 ..................................................................................................... 3. Third country nationals covered by the Free Movement Directive 2004/38/EC................................................................................................... 4. Third country nationals covered by Visa Facilitation Agreements 5. List of nationalities subject to airport transit visas............................. 6. Compliance with EU law and the CFR .................................................

9 10 10 13 15 16 18 19

I. Drafting history and subject-matter Article 1 establishes the objective and scope of the Visa Code. Accordingly, the Visa Code establishes the procedures and conditions for issuing visas for intended stays (including transit) in the Member States not exceeding 90 days in any 180-day period. These short-stay visas are commonly known as Schengen visas. Article 1 states that the Visa Code applies to any third country national who under the Visa List Regulation (EU) 2018/1806 requires a visa to cross the external borders of the Member States. However, the scope of application of the Visa Code is not as straightforward as this provision suggests. In fact, Article 1(2)(a) and (b) acknowledges the existence of different rules for certain categories of third country nationals including family members of EU nationals who are covered by the Free Movement Directive 2004/38/ EC. Moreover, different rules apply to certain third country nationals by virtue of visa facilitation agreements between their state of nationality and the EU. Furthermore, the Schengen Borders Code Regulation (EU) 2016/399 includes rules on visa requirements in relation to the crossing of the external border by third country nationals who are holders of residence permits issued by the Member States. The Visa List Regulation (EU) 2018/1806 and the Visa Code do not include these specific rules but may contain only general references to some of them. The result is a rather fragmented and complex picture not conducive to legal certainty. The Visa Code also 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 The Visa Code was adopted in 2009 but cooperation on visa policy between the Member States of the EU has a long history dating back to the 1980s when it took place intergovernmentally within the two parallel frameworks of the ‘Trevi’ Group and the 1985 Schengen Agreement. In the latter context, cooperation on visa policy was clearly anchored to the objective of abolishing internal frontier controls on the movement of persons, as a compensatory measure. That cooperation 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’ consular authorities. The Common Consular Instructions were pub1

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lished for the first time in 1999. They can be considered the precursor to the Visa Code, except their legal nature was unclear.1 In parallel to these developments, the Treaty of Maastricht, agreed in 1992, 3 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 Eventually the Treaty of Amsterdam agreed in 1997 established Community competence for visa, asylum and immigration policies with a view to the progressive establishment of the ‘area of freedom, security and justice’, 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 for the adoption of these measures. The Treaty of Lisbon, in line with its aim to reaffirm the autonomy of the area of freedom, security and justice and fully extend the supranational legal method to the fields of border controls, asylum and immigration (see Thym, Constitutional Framework, MN 3; and Legal Framework for Entry and Border Controls, MN 3), streamlined the legal basis for visa policy in one single article providing for the adoption, in accordance with the ordinary legislative procedure, of measures concerning ‘a common policy on visas and other short-stay residence permits’ (Article 77(2)(a) TFEU). The Visa Code was adopted in July 2009 after more than two years of negotiations 4 under the provisions of the Treaty of Amsterdam, specifically Article 62(2)(b)(ii) TEC on the procedures and conditions for issuing visas and Article 62(2)(a)(c) TEC on standards and procedures for carrying out checks at the external borders. 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, as provided by Article 58. The Visa Code 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 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’ (see Recital 3). The Visa Code replaced provisions on 1 Article 56 of the Visa Code repealed the Common Consular Instructions (SCH/Com-ex (99) 13) and Annex XIII provided a correlation table. See also ECJ, Commission v. Council, C-257/01, EU:C:2005:25. For the history of cooperation on visas, see Meloni, Visa Policy, p. 43 et seqq. 2 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 See Meloni, Visa Policy, p. 85 et seqq.

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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 Article 56). It 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 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 MN 7–9). 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 Visa Code 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 Visa Code, visa issuing remains a complex matter as the Visa Code interlocks with an increasing number of legal instruments.10 To fully comprehend the Visa Code it is therefore necessary to constantly reposition it within the wider context of the EU’s fast-developing external border control system and area of freedom, security and justice. Furthermore, while the original objective of the Visa Code to provide harmonization of the Member States’ visa issuing practices continues to be to some extent elusive,11 the further development of the Code is pulled by different ambitions, for it to reflect a wide range of EU interests and policy objectives and for it to effectively prioritise security.

II. Amendments 5

Attempts to reform the Visa Code began in 2014 with a Commission proposal to recast the Code following an evaluation of its implementation.12 The 2014 recast proposal focused on the introduction of visa facilitations to foster travel and on a harmonised implementation of the common rules. However, no agreement could be reached between the European Parliament and the Council, which found themselves at opposite poles during the negotiations in relation to both the Commission proposal and their own amendments. The Commission eventually withdrew the proposal in 2018 in light of the emergence, since 2014, of greater security and migratory challenges which 7

See Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Identification System (VIS). Commission Decision, C(2010) 1620 final, as amended. 9 Commission Decision, C(2020) 1764 final. 10 These include the Visa List Regulation (EU) 2018/1806; the Schengen Borders Code Regulation (EU) 2016/399; Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks; Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS); the Free Movement Directive 2004/38/EC; the Return Directive 2008/115/EC; Regulation (EU) 2017/2226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES); Regulation (EU) 2019/817 (OJ 2019 L135/27) on interoperability between EU information systems in the field of borders and visa; and visa facilitation agreements between the EU and third countries, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/ visa-policy/index_en.htm [last accessed 12 January 2021]. 11 Commission Report, COM(2020) 779 final, p. 8. 12 Commission Proposal, COM(2014) 164 final; Commission Staff Working Document, SWD(2014) 101 final. Prior to this, the Visa Code was substantially amended twice: by Regulation (EU) No 154/2012 (OJ 2012 L 58/3) on exceptions to airport transit visa requirements, and by Regulation (EU) No 610/2013 (OJ 2013 L 182/1) on the length of stay under a visa. 8

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made its approach redundant. In 2018 the Commission introduced a new proposal for a regulation to amend the Visa Code, taking into account the results of the negotiations on the 2014 recast proposal and new elements advanced in the 2017 Commission Communication on the Delivery of the European Agenda on Migration relating to the role that visa policy could play in supporting readmission goals.13 The proposal was adopted in 2019 as amending Regulation 2019/1155.14

1. Abandoned elements from the 2014 recast proposal The most innovative provisions of the 2014 recast proposal were abandoned by 6 amending Regulation (EU) 2019/1155. These included a set of visa facilitations for third country nationals who are close relatives of EU nationals, effectively incorporating the visa-issuing rules of the Free Movement Directive 2004/38/EC in the Visa Code and broadening such rules to cover also extended family members and close relatives of EU nationals outside the scope of the Directive.15 This was meant to address the confusion resulting from the dispersion of visa rules in different legal instruments and also to achieve the equal treatment of EU citizens, in relation to visa facilitations for their third country national family members, irrespective of the exercise of free movement rights. This element of the 2014 recast proposal encountered opposition in the Council stemming from concerns over illegal immigration.16 Moreover, visa facilitations for third country nationals who are close relatives of EU nationals (as well as visa facilitations for close relatives of third country nationals legally residing in the EU, which were also included in the 2014 recast proposal) are generally included in visa facilitation agreements concluded by the EU with third countries in exchange for the conclusion of readmission agreements, and as such provide EU leverage for readmission purposes.17 In fact, amending Regulation (EU) 2019/1155 removed the reference to family members of citizens of the Union and of third-country nationals legally residing in the Member States from Article 24 of the Visa Code on multiple-entry visas, despite opposition from the European Parliament. According to Recital 11 of the amending Regulation this is justified on the ground that multiple-entry visas ‘should not be limited to specific travel purposes or categories of applicants’, although the Recital goes on to state that ‘Member States should have particular regard for persons travelling for the purpose of exercising their profession …’. A further abandoned element of the 2014 proposal, which appeared, in a more 7 restricted version, also in the 2018 proposal, related to the possibility for Member States to set up specific temporary schemes to issue visas at the external border to promote tourism.18 Finally, the Commission had included in the 2014 proposal mandatory consular representation between the Member States in order to ensure consular coverage, which found support from the European Parliament but was rejected by the Council as unacceptable.19 Member States were concerned that it would put a disproportionate burden on Member States with large consular networks.20 The approach 13

Commission Proposal, COM(2018) 252 final. Regulation (EU) 2019/1155 (OJ 2019 L 188/25) amending the Visa Code. 15 Draft Articles 8(3)-(4), 13(3), 14(3)(f)-(g) and 20(3)-(4), Commission Proposal, COM(2014) 164 final. 16 Council doc. 6093/15 of 13 February 2015, p. 3–4. 17 See, for example, Articles 4–5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 18 Draft Article 33, Commission Proposal, COM(2014) 164 final; draft Article 36a, Commission Proposal, COM(2018) 252 final. 19 Draft Articles 5(2) and 38(3), Commission Proposal, COM(2014) 164 final; Council doc. 15130/15 of 13 January 2016, p. 12. 20 Commission Staff Working Document, SWD(2018) 77 final, p. 8. 14

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taken by amending Regulation 2019/1155 is instead to recognise the Member States’ widespread practice of relying on external service providers (see Articles 8(10), 40(3) and 43), which was envisaged only as a last resort measure in the original Visa Code.

2. New elements introduced by amending Regulation (EU) 2019/1155 8

Consistently with the Visa List Regulation (EU) 2018/1816, amending Regulation EU 2019/1155 acknowledges, in its Recitals, the relevance of visa policy for several different EU objectives and policy fields and the need for consistency. In particular, it mandates the achievement of a better balance between migration and security concerns, economic considerations and general external relations. Whether the Visa Code, following amendment, achieves such a balance remains questionable. Among the several changes introduced, the Visa Code now contains provisions to adapt its application (as concerns the visa fee, visa processing times, required documentary evidence from visa applicants and multiple-entry visas) depending on whether the country of nationality of the visa applicant cooperates with the Member States on readmission (see Article 25a). Departing from the original proposal, envisaging only the possibility of punitive measures against visa applicants from third countries deemed uncooperative, the Visa Code includes both negative and positive conditionality, in the form of the possibility of facilitations in case of cooperative countries, as a result of insistence from the European Parliament and a Franco-German initiative.21 Using visa policy as leverage for readmission vis-à-vis third countries is a longstanding objective of the EU which also features in the New Pact on Migration and Asylum,22 and these provisions bring the Visa Code in line with the Visa List Regulation (EU) 2018/1806 which contains a suspension mechanism.23 A further significant change following amendment of the Visa Code is the introduction of rules on the mandatory issuing of multiple-entry visas with a long validity according to a ‘cascade’ system, with certain safeguards (see Article 24). Similar rules were already contained in the 2014 recast proposal. Their objective is to lessen the administrative burden on consulates, facilitate bona fide regular travel and establish a harmonised approach. Although the original Visa Code contained provisions on the mandatory issuing of multiple-entry visas, their formulation was unclear, with the result that Member States’ practices varied widely.24 Further changes to the Visa Code include an increase in the visa fee and the possibility of electronic visa applications.

III. Territorial application 9

The Visa Code does not apply to Ireland (and formerly the United Kingdom) by virtue of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union attached to the Treaties. Any participation, which is unlikely, would be subject to a unanimous decision of the Council in accordance with Article 4 of the Protocol.25 The Visa Code applies to Denmark under international law in accordance with Protocol (No 22) 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, 21

Council doc. 8526/1/18 Rev 1 of 4 May 2018. Commission Communication, COM(2020) 609 final, p. 21 and 24. 23 Article 8 Visa List Regulation (EU) 2018/1806. 24 Commission Staff Working Document, SWD(2018) 77 final, p. 13 and 18. 25 See ECJ, United Kingdom v. Council, C-77/05, EU:C:2007:803. 22

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application and development of the Schengen acquis (see 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. Thus, the term ‘Member State’ in the Visa Code refers to those Member States applying the Schengen acquis in full and the associated states and the term ‘territory of the Member States’ refer to the territory of these Member States.26

IV. Scope 1. Length of stay The Visa Code covers visas for intended stays (including transit) in the Member 10 States ‘not exceeding 90 days in any 180-day period’.27 The validity of the visa is a distinct concept from the length of stay, with multiple-entry visas having a period of validity of up to 5 years (see Article 24 MN 1 and 3–4). The Visa Code contains provisions which make it possible in exceptional circumstances for a visa holder to obtain an extension of the length of her stay (and/or validity of her visa), or for a visa applicant to obtain a limited territorial validity visa when she had already stayed in the Schengen territory for 90 days in a 180-day period (see Article 33 and Article 25(1)(b)). While formerly the legal basis for the Visa Code, former Article 62(2)(a)(b) TEC, related to ‘visas for intended stay of no more than three months’, the current legal basis, Article 77(2)(a) TFEU, offers more flexibility by referring to ‘visas and other short-stay residence permits’ (see Thym, Legal Framework for Entry and Border Controls, MN 12). Indeed, the Commission proposed a ‘touring visa’ in 2014 covering a stay in two or more Member States for a period lasting longer than 90 days but not exceeding 1 year, provided that the visa holder did not intend to stay in the same Member State for longer than 90 days.28 However, the proposal was withdrawn in 2018 in light of opposition from some Member States which doubted its necessity and legal basis and feared possible abuse.29 Currently, visas for entry and residence for periods exceeding 90 days fall outside the scope of the Visa Code, with one exception that will be considered below. While there are no general EU rules on conditions of entry and residence for stays longer than 90 days, there are a number of sectorial directives (see Part C Immigration). In the case of X and X, concerning the applicability of the CFR to applications for 11 limited territorial validity visas under the Visa Code lodged by a Syrian family at the Belgian embassy in Beirut for the purpose of entering Belgium to claim asylum, the ECJ stated that such visa applications fall outside the scope of the Visa Code since the Visa Code solely concerns visas issued for intended stays not exceeding 90 days.30 Furthermore, given that the EU legislature has not adopted any measures on long-stay visas and 26

See, for example, ECJ, Vethanayagam, C-680/17, EU:C:2019:627, paras 15 and 60. The term ‘90 days in any 180 days’ was introduced by an amendment following the ECJ judgment in Bot. Prior to this, the length of the permitted stay was defined as ‘not exceeding three months in any six months period’. See ECJ, Bot, C-241/05, EU:C:2006:634, paras 33 and 42; Regulation (EU) No 610/2013 (OJ 2013 L 182/1) amending the Visa Code; Commission Proposal, COM(2014) 163 final. Cf. local border traffic permits under Regulation (EC) No 1931/2006 (OJ 2007 L 29/3) on local border traffic, for which the 3 month limit relates only to uninterrupted stays as per ECJ, Shomodi, C-254/11, EU: C:2013:182. 28 Commission Proposal, COM(2014) 163 final. 29 Commission Staff Working Document, SWD(2018) 77 final, p. 8. 30 ECJ, X and X, C-638/16 PPU, EU:C:2017:173. 27

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residence permits on humanitarian grounds under Article 79(2)(a) TFEU, the Court concluded that the visa applications at issue currently fall solely within the scope of national law, to the effect that the CFR is inapplicable.31 Following the judgement, the European Parliament withdrew its amendment for the inclusion of provisions on humanitarian visas in the Visa Code in connection with the 2014 recast proposal. Similarly, state practice, which was to issue limited territorial validity visas in certain circumstances for stays longer than 90 days, including for family reunification and to allow the submission of asylum claims in specific cases, has been discontinued, with national long-stay visas being issued instead.32 12 However, there appears to be a case where the Visa Code applies at least partly to intended stays exceeding 90 days. This relates to visas issued to third country nationals who are family members of EU nationals falling within the scope of the Free Movement Directive 2004/38/EC. Independently of how long a third country national falling within this category intends to stay in the relevant Member State, under the Directive, she may only be required to hold an entry visa in accordance with the Visa List Regulation (EU) 2018/1806. Accordingly, the Visa Handbook instructs consular authorities that third country nationals covered by the Free Movement Directive 2004/38/EC are not required to prove an intention to leave the territory of the Member States before the expiry of the visa when they apply for a short-stay visa.33 This position follows from the judgments of the ECJ in Commission v. Spain and MRAX.34 In Commission v. Spain, in particular, the ECJ clarified that ‘entry visa’ in the former Free Movement Directives35 meant a shortstay visa in accordance with the former Visa List Regulation (EC) No 539/2001 and not a long-stay visa as argued by the Spanish government. The Court accepted the Commission’s argument that a different interpretation would result in subjecting third country nationals within the scope of the former Free Movement Directives to immigration procedures before entry into a Member State which would constitute a breach of the provisions of the Directives and undermine their objective of eliminating obstacles to the exercise of fundamental freedoms guaranteed by the Treaties. The same interpretation has not been extended by the Member States and the Commission to the Family Reunification Directive 2003/86/EC with regard to visas for family reunification issued to family members of third country nationals legally residing in the Member States, which pursues a different objective than the Free Movement Directive 2004/38/EC (see Thym, Constitutional Framework, MN 6).36 The term ‘visas’ in Article 13 of the Family Reunification Directive 2003/86/EC is interpreted by the Member States and the Commission as longstay visas. Guidance on the application of the Directive issued by the Commission states that ‘since the purpose of stay of family reunification is long term, the visa issued should not be a short-stay visa’.37 A Member State is however obliged, once the application for 31 ECJ, X and X, C-638/16 PPU, EU:C:2017:173, para 44 Cf. decisions on long-stay visas or residence permits falling under the sectorial directives (see Part C Immigration), as per, for example, ECJ, Konsul Rzeczypospolitej Polskiej w N., C-949/19, EU:C:2021:186, paras 34–35 and 40–44. 32 See ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 50–51. 33 Commission Decision, C(2010) 1620 final, as amended, Part III, para 4.5. 34 ECJ, Commission v. Spain, C-157/03, EU:C:2005:225; ECJ, MRAX, C-459/99, EU:C:2002:461, para 56. 35 Former Directive 68/360/EEC (OJ 1968 L 257/13) on movement for workers; former Directive 73/ 148/EEC (OJ 1973 L 172/14) on movement for nationals of the Member States with regard to establishment; former Directive 90/365/EEC (OJ 1990 L 180/28) on the right of residence. 36 On the scope for analogous interpretation see, Thym, ‘EU Migration Policy and its Constitutional Rationale: A Cosmopolitan Outlook’, CMLR 50 (2013), p. 709–736; Wiesbrock, ‘Granting Citizenshiprelated Rights to Third-Country Nationals: An Alternative to the Full Extension of European Union Citizenship?’, EJML 14 (2012), p. 63–94. 37 Commission Communication, COM(2014) 210 final, p. 19.

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family reunification has been accepted, to grant family members ‘every facility for obtaining the requisite visas’.

2. Third country nationals covered by the Visa List Regulation (EU) 2018/1806 The Visa Code applies to third country nationals who under the Visa List Regulation 13 (EU) 2018/1806 require a visa to cross the external borders of the Member States. The Visa List Regulation (EU) 2018/1806 lists the nationalities requiring short-stay visas (the black list) and those which are visa exempt (the white list), and provides for some mandatory and discretionary exceptions/exemptions. However, the legal position is not as straightforward as the provisions appear. For example, while the Visa List Regulation (EU) 2018/1806 lists Turkey among the countries whose nationals require a visa to cross the external borders of the Member States, some Turkish nationals do not require visas to enter some Member 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 cannot be 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. This is so as EU international treaties have pre-eminence over EU secondary legislation.38 Commission proposals to include a reference to the Soysal and Savatli judgment in the former Visa List Regulation (EC) No 539/2001 were however unsuccessful. 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.39 It is also to be noted that while third country nationals in possession of a residence 14 permit or a long-stay visa issued by a Member State are not exempt from the visa requirement under the Visa List Regulation (EU) 2018/1806, under the Schengen Borders Code Regulation (EU) 2016/399 they are not required to hold a visa when crossing the external border, since the two documents are considered as equivalent.40 In 2005 the Commission remarked that internal security and intelligence communities had identified the lack of efficient control over this category of third country nationals as a shortcoming.41 Consequently, the scope of the VIS has recently been extended to include data on long-stay visa and residence permit applicants and holders.42 With regard to third country nationals who are family members of EU nationals covered by the Free Movement Directive 2004/38/EC, Article 5(2) of the Directive provides that 38 ECJ, Soysal and Savatli, C-228/06, EU:C:2009:101, para 59. For an analysis of the practical effect of the judgment see Groenendijk/Guild, Visa Policy; Commission Guidelines, C(2009) 7376 final. 39 ECJ, Demirkan, C-221/11, EU:C:2013:583. 40 Article 6(1)(b) Schengen Borders Code Regulation (EU) 2016/399. See also ECJ, Kqiku, C-139/08, EU:C:2009:230; Regulation (EC) No 265/2010 (OJ 2010 L 85/1) on free movement for holders of longstay visas; Regulation (EC) No 693/2003 (OJ 2003 L 99/8) on a Facilitated Transit Document (FTD) and Facilitated Rail Transit Document (FRTD) providing that these documents have the same value as (transit) visas for the purpose of crossing the external border. Cf. local border traffic permits under Regulation (EC) No 1931/2006 (OJ 2007 L 29/3) on local border traffic, whose holders benefit from a visa exemption under the Visa List Regulation (EU) 2018/1806. 41 Commission Communication, COM(2005) 597 final, para 4.7. 42 Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/ 2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System.

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they must be exempt from the visa requirement when in possession of the residence card envisaged by Article 10 of the Directive.43

3. Third country nationals covered by the Free Movement Directive 2004/38/EC 15

Article 1(2) states that the Visa Code applies without prejudice to the free movement 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, in accordance with the Visa List Regulation (EU) 2018/1806 or, in the case of Ireland (and formerly the United Kingdom), 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’.44 In the light of the objective of the Directive, the ECJ has interpreted these provisions to the effect that family members may be entitled to be issued with a visa at the external border (see Article 35 MN 2) and may not be refused a visa or entry by a Member State on the sole ground of a SIS alert issued by another Member State (see Article 32 MN 4 and 8).45 They are also entitled under the Directive to enhanced procedural guarantees (see Article 32 MN 9).46 It is worth noting that apart from the general reference in Article 1(2)(a) and specific references in Article 3(5)(d) on exemption from airport transit visas and in the visa application form contained in Annex 1, the Visa Code 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 Code and the rules applicable under the Directive. Thus, for example, the provisions on the visa fee in the Code do not include among the categories exempted from the visa fee family members of EU citizens covered by the Directive (see Article 16 MN 2). The two instruments have been kept separate because of their different legal bases.47 In practical terms, the difference in legal basis means that the Directive is applicable to Ireland (and formerly the United Kingdom), while the Visa Code is not.48 Conversely, the Visa Handbook, which is non-legally binding, contains a whole part devoted to third country nationals covered by the Directive.49

4. Third country nationals covered by Visa Facilitation Agreements 16

Recital 26 of the Visa Code provides that visa facilitation agreements between the EU and third countries may derogate from the Visa Code. As a matter of EU law, EU international agreements may have pre-eminence over EU secondary legislation, 43

See for example ECJ, McCarthy and Others, C-202/13, EU:C:2014:2450. Article 5(2) Free Movement Directive 2004/38/EC. 45 Respectively, ECJ, MRAX, C-459/99, EU:C:2002:461, paras 60–61; ECJ, Commission v. Spain, C-503/ 03, EU:C:2006:74, paras 41 and 53. 46 Articles 30–33 Free Movement Directive 2004/38/EC. 47 In particular, as explained above, attempts by the Commission to include in the Visa Code the rules under the Directive were unsuccessful. See Commission Proposal, COM(2014) 164 final, draft Articles 8 (4), 13(3), 14(3)(g) and 20(3)-(4); Council doc. 6093/15 of 13 February 2015, p. 4. 48 On the other hand, the Free Movement Directive 2004/38/EC applies to Lichtenstein, Iceland and Norway by virtue of the EEA Agreement (OJ 1994 L 1/3) and has been interpreted consistently with ECJ case law by the EFTA Court notwithstanding the different principles underpinning the EEA Agreement and the EU Treaties, see, for example, EFTA Court, Campbell v. The Norwegian Government, E-4/19, Judgment of 13 May 2020. Switzerland, on the other hand, is not bound by the Directive but has concluded with the EU an Agreement on Free Movement of Persons (OJ 2002 L 114/6). 49 Commission Decision, C(2010) 1620 final, as amended, Part III. 44

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particularly if they have direct effect.50 Secondary legislation must accordingly, as far as possible, be interpreted consistently with those agreements.51 The EU has concluded visa facilitation agreements with a number of third countries, in some cases as a first step towards visa-free treatment.52 These standard agreements provide that they are applicable insofar as there is no visa-free treatment, so the agreements with Moldova and Ukraine, which recently obtained visa-free status, for example, are still in force. The EU’s approach has been to conclude these agreements in exchange for the conclusion of readmission agreements. Accordingly, they contain a reference to irregular immigration, security and readmission in their preamble, a clause whereby their entry into force follows the entry into force of the relevant readmission agreement and a suspension clause.53 Visa facilitation agreements provide for visa facilitations, on a reciprocal basis, for 17 citizens of the relevant third country and for EU citizens travelling for specific purposes and falling within specific categories including close relatives, business people, journalists, students, representatives of civil society organizations, people travelling for medical reasons etc. (although some third countries, such as Armenia, exempt EU citizens from visa requirements altogether). The visa facilitations relate to supporting document requirements, multiple-entry visas and visa fees. Some facilitations, such as those relating to the length of the issuing procedure, apply to all nationals independently of the purpose of travel.54 Visa facilitation agreements also 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.55 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.56 It is worth noting that visa facilitation agreements also contain provisions in relation to the territorial validity of visas which are broadly formulated. Article 11 of the EU-Armenia Visa Facilitation Agreement, for example, provides that, subject to national security and the rules on limited territorial validity visas, ‘citizens of Armenian shall be entitled to travel within the territory of the Member States on equal basis with citizens of the Union’.57 This suggests that it may be difficult to apply to them territorial travel restrictions when these are not also applicable to EU citizens. This can be contrasted with the definition of uniform visa in the Visa Code as ‘a visa valid for the entire territory of the Member States’ and with Article 19(1) of the Schengen Implementing Convention which states that aliens who hold uniform visas ‘may move freely within the territories of all the Contracting Parties … provided that they fulfil the entry conditions’ in the Schengen Borders Code Regulation (EU) 2016/399. Visa facilitation agreements concluded by the EU do not apply to Ireland (and formerly the United Kingdom), Denmark, Lichtenstein, Switzerland, Iceland and Norway. Bilateral agreements have been concluded

50

See for example ECJ, Intertanko and Others, C-308/06, EU:C:2008:312, paras 42–43. See for example ECJ, Commission v. Germany, C-61/94, EU:C:1996:313, para 52. 52 A list can be found on: https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/ visa-policy_en [last accessed 06 April 2021]. 53 See for examples Articles 2, 14(2) and 14 (5) EU-Belarus Visa Facilitation Agreement (OJ 2020 L 180/3). 54 See, for example, Articles 5–9 of the EU-Belarus Visa Facilitation Agreement (OJ 2020 L 180/3). 55 See for example Article 1, Agreement amending the EC-Moldova Visa Facilitation Agreement (OJ 2013 L 168/3). 56 See for example Article 2 of the EU-Belarus Visa Facilitation Agreement (OJ 2020 L 180/3). 57 EU-Armenia Visa Facilitation Agreement (OJ 2013 L 289/2). 51

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between some of these countries and the third countries concerned.58 It seems the case that Ireland (and formerly the United Kingdom) 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.59

5. List of nationalities subject to airport transit visas 18

The Visa Code also covers the list of third countries whose nationals require airport 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 this list in the Visa Code, rather than in the Visa List Regulation (EU) No 2018/1806, can be traced back to the ECJ judgment in Commission v. Council on airport transit visas where the ECJ excluded the possibility that such a list could be covered by former Article 100c TEC (see above Article 1 MN 3).60

6. Compliance with EU law and the CFR Article 1(4) of the Visa Code was introduced by amending Regulation (EU) 2019/ 1155 on the insistence of the European Parliament. It underlines that the Member States when implementing the Visa Code must act in conformity with EU law and the CFR. The European Parliament insisted on including also a reference to relevant international law, but this did not ultimately find its way into the final text of the amending Regulation.61 Although the Schengen associated states are not bound by the CFR, the ECJ has emphasized that they are party to the ECHR and that Schengen acquis association agreements provide that Schengen cooperation is based on the principle of respect for human rights.62 It remains true that there may be inconsistencies in the level of protection offered by the ECHR and the CFR. An example relates to the right to an effective remedy, in view that Article 6 ECHR is not applicable in immigration cases.63 Further references to fundamental rights instruments, including the ECHR and the CRC, are found specifically in Article 13 in relation to the collection of biometric identifiers from visa applicants. Furthermore, Article 43(9) reiterates the Member States’ responsibility for compliance with data protection rules in the context of cooperation with external service providers. Article 1(4) also reiterates that, in accordance with the general principles of EU law, decisions on visa applications must be taken on an individual basis. This provision reflects the nature of the right to a visa that is established in the Visa Code and related procedural safeguards under EU law including in relation to the principle of good administration and the exercise of the right to an effective remedy under Article 47 CFR (see Article 32).64 20 Article 1(4) is different from the corresponding articles in the Schengen Borders Code Regulation (EU) 2016/399. Article 3 of the Schengen Borders Code (EU) 2016/399 reiterates that the Code applies without prejudice to the rights of refugees and persons requesting international protection. In the same way, Article 4 of the Schengen Borders 19

58 For the list, see the Visa Handbook, Commission Decision, C(2010) 1620 final, as amended, Part I, para 5. 59 ECJ, Commission v. Council, 22/70, EU:C:1971:32. 60 ECJ, Commission v. Council, C-170/96, EU:C:1998:219. 61 Recital 26, on the other hand, provides that the Visa Code respects fundamental rights and observes the principles recognised in particular by the ECHR and the CFR. 62 ECJ, Vethanayagam, C-680/17, EU:C:2019:627, paras 78–88. 63 On this, see Migration Law Clinic, Access to Legal Remedies, para 6.3. 64 See for example ECJ, PI, C‐230/18, EU:C:2019:383, para 57.

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Code Regulation (EU) 2016/399 restates that when applying the Code, Member States must act in full compliance with relevant Union law, including the CFR, relevant international law, including the Geneva Convention, obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. The difference between the articles of the Visa Code and the Schengen Borders Code Regulation (EU) 2016/399 reflect the fact that while it is generally accepted by the Member States that the obligation of non-refoulement under Article 33(1) 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’. Further, in M. N. and Others v. Belgium, the ECtHR found that the lodging of humanitarian visa applications in a Belgian embassy did not bring the visa applicants within the jurisdiction of Belgium for the purpose of Article 1 ECHR (see below Article 25 MN 5).65

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) an intended stay on the territory of the Member States not exceeding 90 days in any 180-day period; or (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(2); 7. ‘recognised travel document’ means a travel document recognised by one or more Member States for the purpose of crossing the external borders and affixing a visa pursuant to Decision No 1105/2011/EU of the European Parliament and of the Council(3); 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 65

ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 110–126. OJ L 164, 14.7.1995, p. 1. (3) Decision No 1105/2011/EU of the European Parliament and of the Council of 25 October 2011 on the list of travel documents which entitle the holder to cross the external borders and which may be endorsed with a visa and on setting up a mechanism for establishing this list (OJ L 287, 4.11.2011, p. 9). (2)

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for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form(4); 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); 12. ‘seafarer’ means any person who is employed, engaged or works in any capacity on board a ship in maritime navigation or a ship navigating in international inland waters; 13. ‘electronic signature’ means an electronic signature as defined in point (10) of Article 3 of Regulation (EU) No 910/2014 of the European Parliament and of the Council(5).

I. Types of visas 1

After defining the term ‘visa’, Article 2 defines the three different types of visas envisaged by the Visa Code. When a visa applicant fulfils the conditions in Article 32 of the Visa Code, she will be issued with a ‘uniform visa’ which under Article 2 means a visa ‘valid for the entire territory of the Member States’. In this context, Article 19(1) of the Schengen Implementing Convention provides that aliens who hold uniform visas ‘may move freely within the territories of all the Contracting Parties … provided that they fulfil the entry conditions’ in the Schengen Borders Code Regulation (EU) 2016/399. However, a uniform visa does not exactly allow its holder to enter the Schengen area from any Member State and move freely within it in all cases. A uniform visa is issued for an authorised stay on the basis of information provided by the visa applicant and verified by national authorities. Deviations from the authorised stay in terms of travel itinerary are accepted by national authorities if justified.66 However, if they lead to very clear evidence that the visa was obtained fraudulently, the visa may be annulled in accordance with Article 34 and the Returns Directive 2008/115/EC becomes applicable (see Article 34 MN 1). The second type of visa established by the Visa Code is ‘a visa with limited territorial validity’ which is defined as a visa ‘valid for the territory of one or more Member States but not all Member States’. This type of visa is issued under Article 25. Finally, the Visa Code covers ‘airport transit visas’ which are visas valid for transit through the international transit areas of one or more airports of the Member States’ and which are issued in accordance with Articles 3 and 26 of the Visa Code.

(4)

OJ L 53, 23.2.2002, p. 4. Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73). 66 Multiple-entry visas offer a certain degree of flexibility. Thus, the Visa Handbook provides that ‘travelling for the purpose of tourism on a valid multiple-entry visa applied for the purpose of business cannot be considered abuse and neither can travelling to other Member States than the issuing Member State, if the visa was first used in accordance with the intention and main destination as stated at the time of application’, Commission Decision, C(2010) 1620 final, as amended, Part II.6.1. The situation is more problematic in the case of single-entry visas. (5)

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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. 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, or holding a valid residence permit for one or more of the overseas countries and territories of the Kingdom of the Netherlands (Aruba, Curaçao, Sint Maarten, Bonaire, Sint Eustatius and Saba); (c) third-country nationals holding a valid visa for a Member State which does not take part in the adoption of this Regulation, or 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, or holders of a valid visa for one or more of the overseas countries and territories of the Kingdom of the Netherlands (Aruba, Curaçao, Sint Maarten, Bonaire, Sint Eustatius and Saba), 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.

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I. Scope and drafting history............................................................................ II. Procedure and conditions for unilateral imposition of airport transit visas by the Member States and additions to the common list ........... III. Categories exempted from airport transit visas .......................................

mn. 1 2 3

I. Scope and drafting history 1

Article 3(1) establishes an obligation for nationals of third countries listed in Annex 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 3).67

II. Procedure and conditions for unilateral imposition of airport transit visas by the Member States and additions to the common list 2

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, and national decisions on imposing airport transit visas could be challenged on the basis that such a criterion is not met.68 The Article also establishes the procedure that Member States must follow when they decide to unilaterally introduce airport transit visas in terms of notifications to the Commission, and the possibility of adding the third countries concerned to the common list following an annual review of the notifications. The Visa Code is silent in relation to the factors that such review should take into account apart from a general reference to combating illegal immigration in Recital 5. Currently, there are approximately 35 third countries whose nationals are subject to airport transit visas by one or more Member States. With its 2014 recast proposal, the Commission attempted to introduce more stringent conditions for unilateral action by the Member States including criteria resembling those used in the suspension mechanism of the Visa List Regulation (EU) 2018/1806 and time limitations.69 However, these proposals were unsuccessful and were excluded from the Commission 2018 proposal leading to amending Regulation (EU) 2019/1155 which introduced no change.

67 The Joint Action was repealed by the Visa Code. The legal basis of the Joint Action was terminated and re-enacted in a significantly different form by all Member States. As such, and in the absence of any evidence of an intention to the contrary, it could be argued that the Joint Action, no longer binds Ireland (and formerly the United Kingdom). 68 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 255–256. 69 Draft Article 3(3), Commission Proposal, COM(2014) 164 final.

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III. Categories exempted from airport transit visas Article 3(5) stipulates the categories of third country nationals who are exempted 3 from airport transit visas. Article 3(5)(b) and (c), introduced through an amendment,70 makes provision for airport transit visa exemption for, inter alia, holders of visas or residence permits issued by Ireland (and formerly the United Kingdom) or by those Member States which are not yet applying the Regulation, namely Cyprus, Romania, Bulgaria and Croatia (see above Article 1 MN 9). Amending Regulation (EU) 2019/1155 has added holders of residence permits or visas for one of the overseas countries and territories of the Kingdom of the Netherlands. Commission proposals to further include holders of service, official or special passports were unsuccessful.71

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. 1a. By way of derogation from paragraph 1, Member States may decide that applications are examined and decided on by central authorities. Member States shall ensure that those authorities have sufficient knowledge of local circumstances of the country where the application is lodged in order to assess the migratory and security risk, as well as sufficient knowledge of the language to analyse documents, and that consulates are involved, where necessary, to conduct additional examination and interviews. 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(1) establishes the general rule that applications should be examined and 1 decided by consulates. Article 4(1a) was inserted by amending Regulation (EU) 2019/ 1155 and establishes that by way of derogation, it is also possible for central authorities 70 71

Regulation (EU) No 154/2012 (OJ 2012 L 58/3). Draft Article 3(8), Commission Proposal, COM(2014) 164 final.

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to decide and examine applications, provided certain safeguards are in place (see also Article 38 MN 1). This provision reflects the fact that in some Member States central authorities are responsible for refusing visas and may further reflect practices of centralising the provision of certain consular services.72 Article 4(2) provides that by way of derogation applications may be examined and decided by borders authorities in accordance with Article 35 on issuing visas at the external borders and Article 36 on issuing visas to seafarers in transit at the external border. Article 4(5) refers to the priorconsultation (see Article 22) and ex-post notification (see Article 31) procedures.

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); (b) if the visit includes more than one destination, or if several separate visits are to be carried out within a period of two months, the Member State whose territory constitutes the main destination of the visit(s) in terms of the length of stay, counted in days, or the 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 mn. I. Criteria to determine the Member State responsible for processing a visa application ........................................................................ II. Consular coverage and proposals for mandatory representation ........

72

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On this trend, see Commission Staff Working Document, SWD(2018) 77 final, p. 72.

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I. Criteria to determine the Member State responsible for processing a visa application Article 5(1), (2) and (3) establishes the rules to determine which one of the Member 1 State is responsible for examining and deciding on a given visa application. Different rules are provided depending on whether the purpose of the visa is for stay, transit or airport transit. If the visa applicant intends to visit (or transit) through only one Member State, only that Member State will be competent to process her visa application. If a visa applicant intends to visit more than one Member State, the competent Member State will be the one of main destination. Main destination is defined in terms of length of stay or purpose of the visit. Amending Regulation (EU) 2019/1155 inserted the provision that the length of stay is to be counted in days with a view to addressing the problem of visa shopping. According to the Commission, 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.73 While the Commission proposed to remove the purpose of the journey as a criterion to determine the Member State of main destination and leave only the length of stay, with a view to enhancing clarity, the Council decided for its retention.74 Article 5(1)(b) is a new provision introduced by amending Regulation (EU) 2019/1155, according to which the Member State of main destination will also be responsible for processing the visa application of travellers who are to carry out several unconnected visits to different Member States within a period of two months. The purpose of this provision is to facilitate travel and address a possible unwillingness by consulates to issue multipleentry visas.75 When the Member State of main destination of the visit cannot be determined (and in cases of transit or airport transit through more than one Member State), the Member State competent to examine and decide on the visa application will be the Member State of first entry. It is worth noting that the competent Member State may be represented by another Member State under a representation agreement whereby the visa application is examined and decided by the latter Member State on behalf of the competent Member State (see Article 8).

II. Consular coverage and proposals for mandatory representation Article 5(4) provides that the Member States ‘shall cooperate’ to prevent a situation 2 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. In this context, it is to be noted that under Article 6 the general rule is that a visa applicant has no choice but to apply for a visa at the consulate of the competent Member State in whose jurisdiction she legally resides. In this light, the Visa Code envisages two ways to ensure appropriate consular coverage by the Member States: consular representation and cooperation with an external service provider, i.e. outsourcing (see Article 8). In relation to representation, however, Article 8(5) and (6), 73

Commission Staff Working Document, SWD(2014) 101, p. 5. Commission Proposal, COM(2018) 252 final, p. 7; draft Article 5(1)(b), Commission Proposal, COM (2014) 164 final. 75 Commission Proposal, COM(2018) 252 final, p. 7; draft Article 5(1)(b), Commission Proposal, COM (2014) 164 final. 74

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consistently with the wording of Article 5(4), envisages only soft obligations by stating that Member States which have no consular presence in a third country or region/area ‘shall endeavour’ to conclude representation arrangements with Member States that have consulates there. For this reason, the Commission proposed in its 2014 recast proposal to change the rules for determining the Member State competent to process a visa application to the effect that in certain circumstances visa applicants could lodge their application at the consulate of any Member State.76 While the 2014 proposal was eventually abandoned, the European Parliament unsuccessfully attempted to introduce these provisions via amendments to the 2018 Commission proposal leading to amending Regulation 2019/1155. The Member States’ position is that the principle of mandatory representation is unacceptable and that consular coverage should be achieved by bilateral arrangements. Some Member States also expressed concerns about the lack of clarity on how to determine responsibility for examining asylum applications from holders of visas issued through the proposed mandatory representation system.77 Under Article 12(2) Dublin III Regulation (EU) No 604/2013 when an applicant for international protection has a visa, the Member State that issued the visa is responsible for examining her application for international protection, unless the visa is issued on behalf of another Member State under a representation arrangement under Article 8 of the Visa Code, whereby the represented Member State will be responsible.

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. 1

Article 6 establishes the general rule that it is the consulate, of the competent Member State (see Article 5 MN 1), in the country of residence of the applicant which shall examine and decide on the visa application. This is so as such consulate is considered to be the best placed to examine any risk of irregular migration. Article 6 provides for some flexibility by stating that a consulate of the competent Member State in a country where the visa applicant is legally present may examine and decide on an application if the applicant provides justification for lodging her application with that consulate. This gives the possibility, for example, to visitors to Ireland and the United Kingdom, to apply for a uniform visa there if they want to extend their visit to one or more Member States. Under Article 18, if the consulate is not competent, it shall, without delay, return the application form and any documents submitted, reimburse the visa fee, and indicate which consulate is competent.

76 Commission Staff Working Document, SWD(2014) 101 final, p. 5, 30–34; draft Article 5(2), Commission Proposal, COM(2014) 164 final. 77 Council doc. 12046/14 of 25 July 2014, p. 10.

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Chp. 3

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). Article 7 covers the rare case where a third country national is legally present in a 1 Member State which takes part in the Schengen acquis without a document entitling her to free circulation (e. g. a person whose asylum application is being examined). Such a person, if required to hold a visa in order to travel to a different Member State under the Visa List Regulation (EU) 2018/1806, is entitled to apply at the consulate of the competent Member State in the Member State where she is legally present. In the case of third country nationals within the scope of the Free Movement Directive 2004/38/EC, this is possible irrespectively of whether they are legally or irregularly present.78

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 and deciding on applications 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. 3. Where the representation is limited in accordance with the second sentence of paragraph 1, the collection and the transmission of 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. That arrangement: (a) shall specify the duration of the representation, if only temporary, and the procedures for its termination; (b) may, in particular where 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. 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.

78

See for example ECJ, Metock, C-127/08, EU:C:2008:449, para 67.

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Chp. 3 Art. 8

Visa Code Regulation (EC) No 810/2009

7. The represented Member State shall notify the Commission of the representation arrangements or the termination of those arrangements at the latest 20 calendar days before they enter into force or are terminated, except in cases of force majeure. 8. The consulate of the representing Member State shall, at the same time as the notification referred to in paragraph 7 takes place, inform both the consulates of other Member States and the Union delegation in the jurisdiction concerned about the representation arrangements or the termination of such arrangements. 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. 10. If a Member State is neither present nor represented in the third country where the applicant is to lodge the application, that Member State shall endeavour to cooperate with an external service provider, in accordance with Article 43, in that third country. 11. Where a consulate of a Member State in a given location experiences a prolonged technical force majeure, that Member State shall seek temporary representation by another Member State in that location for all or some categories of applicants. Content I. Drafting history ............................................................................................... II. Representation and limited territorial validity (LTV) visas .................. III. Representation and appeal rights ................................................................

mn. 1 3 4

I. Drafting history 1

Article 8 establishes rules on representation. Representation arrangements between the Member States are contemplated by the Visa Code as a way to ensure consular coverage, alongside cooperation by the Member States with external service providers, envisaged in Article 8(10) (see Article 5 MN 2, Article 40 and Article 43). Consular coverage by the Member States decreased by 24 % between 2014 and 2018, with an increase in representation arrangements of 3 %. However, the so called ‘blank spots’ where a Member State offers no visa service decreased from 900 in 2014 to 750 in 2018. This is predominantly the result of an exponential growth in cooperation between Member States and external service providers, which increased by 840 % from 2014 to 2018 in terms of locations covered.79 Reflecting the Member States’ widespread practice of outsourcing, amending Regulation (EU) 2019/1155 has inserted new Article 8(10) whereby Member States shall endeavour to cooperate with an external service provider in third countries where they are neither present nor represented by another Member State. Article 40(3) has also been amended to delete the reference to cooperation with an external service provider ‘as a last resort’ measure. At the same time, Article 17(5) has been amended to remove the Member States’ obligation to maintain the possibility for applicants to lodge applications directly at their consulates when they are cooperating

79

106

Commission Staff Working Document, SWD(2018) 77 final, p. 8.

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Art. 8

Chp. 3

with an external service provider. This possibility is now at Member States’ discretion (see Article 17 MN 1–2). With regard to representation agreements, Article 8 has also undergone important 2 changes following amending Regulation (EU) 2019/1155. Before the amendments, the general rule under Article 8 was that final decisions refusing a visa were to be taken by the represented Member State. Only by way of derogation, could a representation arrangement authorise the representing Member State to refuse visas on behalf of the represented Member State. Accordingly, in cases where the representing Member State contemplated a negative decision on a visa application it would refer the application to the represented Member State for a decision. The Commission already proposed to remove this requirement in its 2014 recast proposal on the ground that it rendered ‘the system inefficient’ and was ‘inconsistent with a common visa policy’.80 Article 8 now provides that, unless the representation arrangements is limited to collection of applications and biometrics, the representing Member State will be fully responsible for the processing of visa applications on behalf of the represented Member States, and thus will also refuse visas on behalf of the represented Member State. The possibility of prior consultation of the represented Member State for certain categories of third country nationals has also been removed.81

II. Representation and limited territorial validity (LTV) visas The former general rule whereby, in the context of representation arrangements, final 3 decisions refusing a visa were to be taken by the represented Member State was important for individuals. It allowed the represented Member State, in cases where the visa applicant did not fulfil the conditions for a uniform visa in Article 32(1), to consider granting an LTV visa instead on ‘humanitarian grounds, for reasons of national interest or because of international obligations’ under Article 25(1). On the other hand, it is difficult to see how the representing Member State when refusing a uniform visa on behalf of the represented Member State could be in a position to evaluate whether an LTV visa should be issued on behalf of the representing Member State. This is particularly so given that the principle of mutual recognition under the Visa Code, implemented through instruments such as the SIS and the prior consultation procedure, focuses on excluding third country nationals. Indeed, some representation agreements expressly state that the representing state is not authorised to issue LTV visas under Article 25(1). However, reflecting that LTV visas are often accessed through special channels, some representation arrangements also provide that in exceptional cases when the represented Member State is interested in issuing an LTV visa under Article 25(1) it may authorised the representing Member State to that effect.82 While it may be difficult to argue that the Visa Code establishes a right to an LTV visa under 80

Commission Staff Working Document, SWD(2014) 101 final, p. 31. Proposals to this effect firstly appeared in the 2014 recast proposal, Commission Proposal, COM (2014) 164 final. 82 See for example the reciprocal representation arrangements between the Czech Republic and Switzerland and between the Czech Republic and Lithuania (2015), available at: https://www.mzv.cz/ jnp/en/information_for_aliens/short_stay_visa/representation_in_issuance_of_the/representation_arrangements_for_schengen.html [last accessed 6 April 2021]; Implementing Arrangement to the Agreement between the Government of the Republic of Estonia and the Government of the Republic of Hungary on the mutual representation by their diplomatic and consular missions in processing visas and collecting biometric data, of 21 November 2007, available at: https://vm.ee/sites/default/files/content-editors/legal/ ungari_rakenduslepingu_terviktekst.pdf [last accessed 6 April 2021]. 81

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Visa Code Regulation (EC) No 810/2009

Article 25, which representation arrangements may undermine, it remains the case that representation arrangements may have the effect of restricting the Member States’ discretion under the Visa Code to exceptionally issue LTV visas under Article 25.

III. Representation and appeal rights 4

In Vethanayagam, the ECJ, had to decide which Member State had jurisdiction to hear appeals against decisions refusing a visa taken by the representing Member State on behalf of the represented Member State, and whether the consular representation system was consistent with the fundamental right of effective judicial protection in Article 47 CFR. The Court found that when the representing Member State is authorised to refuse a visa on behalf of the represented Member State under a representation agreement, the representing Member State is considered to take the final decision on the visa application for the purpose of appeals under Article 32(2) of the Visa Code.83 The Court found this system consistent with Article 47 CFR since the representing Member State is bound to uphold a right to an effective remedy under Article 47 CFR in the context of appeals under the Visa Code. According to the Court, this remains the case for Schengen associated states which although not bound by the CFR are bound by the ECHR and required, by Schengen acquis association agreements, to respect the rights of the Convention. The Court did however not address the issue that Article 6 ECHR does not apply in immigration cases. Furthermore, as judicial review of visa refusal decisions concerns not only questions of law but also questions of fact,84 commentators have doubted whether the courts of the representing Member State have sufficient insight into the situation in the represented Member State to be able to provide effective legal protection. Moreover, the system may exacerbate the geographical, linguistic and other barriers that visa applicants face when exercising their rights of appeal, particularly as it may have the effect of practically barring visa applicants from relying on their sponsors’ assistance.85

CHAPTER II Application Article 9 Practical modalities for lodging an application 1. Applications shall be lodged no more than six months, and for seafarers in the performance of their duties no more than nine months, before the start of the intended visit, and, as a rule, no later than 15 calendar days before the start of the intended visit. In justified individual cases of urgency, the consulate or the central authorities may allow the lodging of applications later than 15 calendar days before the start of the intended visit. 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. 83

ECJ, Vethanayagam, C-680/17, EU:C:2019:627, paras 72–73. ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, paras 48–49. 85 For a full analysis see Migration Law Clinic, Access to Legal Remedies. 84

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Chp. 3

Art. 9

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. Without prejudice to Article 13, applications may be lodged: (a) by the applicant; (b) by an accredited commercial intermediary; (c) by a professional, cultural, sports or educational association or institution on behalf of its members. 5. An applicant shall not be required to appear in person at more than one location in order to lodge an application. Content I. Timeframe for lodging a visa application ................................................. II. The requirement to obtain an appointment............................................. III. Who can lodge an application on behalf of the applicant and the one-stop principle ...........................................................................................

mn. 2 3 4

Article 9 establishes some of the requirements relating to the practical submission of 1 the visa application. Fulfilment of some of these requirements, such as the timeframe for lodging a visa application, is necessary in principle for the application to be considered admissible under Article 19, without prejudice to overriding instruments such as the Free Movement Directive 2004/38/EC.

I. Timeframe for lodging a visa application Following amending Regulation (EU) 2019/1155, the timeframe for submitting a visa 2 application has been extended, to provide more flexibility to visa applicants, and further defined.86 Applications can be lodged up to six months before the intended stay (formerly three months), with special provisions applicable to seafarers. Furthermore, a rule has been introduced whereby applications must in principle not be submitted later than 15 days before the start of the intended visit, reflecting the current maximum processing time of 15 days in Article 23. On the insistence of the European Parliament, the possibility of an exception to the latter rule has been introduced for ‘justified individual cases of urgency’, but with no reference to ‘professional grounds’ or ‘humanitarian reasons’ as the European Parliament would have preferred. This exception is in line with Article 19(4) which states that by way of derogation Member States can treat applications submitted outside the timeframe envisaged by Article 9 as admissible on humanitarian grounds, for reasons of national interest or because of international obligations.

II. The requirement to obtain an appointment As a crowd control measure, Article 9(2) provides that applicants may be required to 3 obtain an appointment for lodging an application which shall ‘as a rule’ take place within two weeks from the day of request. There have been cases where Member States experienced difficulties in adhering to this time limit, which in the past led the 86 These changes were already envisaged in the 2014 Commission recast proposal, see draft Article 8(1), Commission Proposal, COM(2014) 164 final.

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Chp. 3 Art. 9

Visa Code Regulation (EC) No 810/2009

Commission to informally investigate thirteen Member States for violation of the rule.87 ‘In justified cases of urgency’, which is left undefined in the Article, the Member States ‘may’ allow applicants to lodge their applications without appointment or an appointment shall be given immediately.88 Some Member States have established fast-track procedures for justified cases of urgency and for certain categories of applicants such as business persons or seafarers,89 but Commission proposals to reformulate this provision to substitute Member States’ discretion with a legal requirement have been unsuccessful.90 The requirement to obtain an appointment is not applicable to third country national who are 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’. It is to be noted that visa facilitation agreements between the EU and third countries may also include rules regarding the requirement to obtain an appointment.91

III. Who can lodge an application on behalf of the applicant and the one-stop principle 4

Article 9(4) identifies who is entitled to lodge applications. Following amending Regulation (EU) 2019/1155, it provides that professional, cultural, sports or educational associations or institutions may lodge visa applications on behalf of their members. Member States’ cooperation with commercial intermediaries for the lodging of applications is regulated by Article 45 and involves an accreditation and monitoring system. On the other hand, the Visa Code does not define the associations or institutions envisaged by Article 9(4)(c) in any detail.92 Although commercial intermediaries and associations/institutions may submit applications on behalf of visa applicants, this is without prejudice to Article 13 whereby visa applicants will be required to appear in person for the collection of their biometric identifiers. Unlike external service providers and honorary consuls, commercial intermediaries are not authorised to collect biometric identifiers on behalf of the Member States (Article 45(1)). Amending Regulation (EU) 2019/1155 has also removed the reference to Articles 42 (honorary consuls) and 43 (external service providers) from Article 9 to clearly differentiate between external service providers and honorary consuls, on the one hand, which act on behalf of the Member States in collecting applications, and the entities listed in Article 9(4), on the other hand, which act on behalf of the visa applicant. Furthermore, it has inserted the so-called one-stop principle in Article 9, which was previously contained in Article 40(4), whereby an applicant cannot be required to appear in person at more than one location to lodge an application. Accordingly, an applicant cannot be required, for example, to attend an external service provider to submit her application and a consulate to have her 87 See, for example, Council doc. 13589/20 of 2 December 2020, p. 3; Commission Staff Working Document, SWD(2014) 101 final, p. 8. 88 Some guidance on ‘justified cases of urgency’ is provided in the Visa Handbook, Commission Decision, C(2010) 1620 final, as amended, Part II para 3.2.1. 89 Visa Handbook, Commission Decision, C(2010) 1620 final, as amended, Part II para 3.2.3. See also below Article 43 MN 2 on external service providers’ VIP services. 90 Draft Article 8(5), Commission Proposal, COM(2014) 164 final. 91 Some visa facilitation agreements provide similar rules as the Visa Code. See, for example, Article 7(3) EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 92 Cf. Annex XI on the issuing of visas to members of the Olympic family and provisions in some visa facilitation agreements such as Article 4 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49).

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Art. 10

Chp. 3

biometric identifiers taken. In the past, the Commission investigated informally one Member State which followed such a practice.

Article 10 General rules for lodging an application 1. Applicants shall appear in person when lodging an application for the collection of fingerprints, in accordance with Article 13(2) and (3) and point (b) of Article 13(7). Without prejudice to the first sentence of this paragraph and to Article 45, applicants may lodge their applications electronically, where available. 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; (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. Article 10, like Article 9, lists the requirements that an applicant has to satisfy when 1 lodging a visa application in terms of presenting an application form, a travel document, a photograph, allowing the collection of her fingerprints, paying the visa fee, providing supporting documents, and producing proof of possession of travel medical insurance. Each of these requirements is further defined in the Visa Code. Fulfilment of these requirements (except for the provision of supporting documents and proof of travel medical insurance) will be necessary in principle for the admissibility of the visa application in accordance with Article 19. In the context of reforming the VIS, in view of establishing interoperability of databases,93 Article 10 has recently been amended to the effect that the applicant should also allow for her facial image to be taken live at the time of the application.94

I. No requirement to appear in person (except for collection of biometrics) and e-visas Amending Regulation (EU) 2019/1155 has removed from Article 10(1) the general 2 requirement for applicants to appear in person at the premises of the consulate or an external service provider when lodging an application. According to the Commission, 93 Regulation (EU) 2019/817 (OJ 2019 L 135/27) on interoperability between information systems in the field of borders and visas. 94 Article 2(1)(b) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System.

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Chp. 3 Art. 11

Visa Code Regulation (EC) No 810/2009

following a public consultation, the requirement was time consuming and costly for applicants, and it did not provide any added value in terms of the detection of irregular migrants, in a situation where decision-making on visas is increasingly a paper procedure involving no or little contact between consular authorities and applicants.95 Furthermore, under Article 21(8) it is open to national authorities to carry out an interview with a visa applicant and request further documents in justified cases. Accordingly, applicants are now required to appear in person, at the consulate or the external service provider, only for the collection of their biometric identifiers in accordance with Article 13. Amending Regulation (EU) 2019/1155 has also inserted a reference in Article 10(1) to the possibility of lodging visa applications electronically where available. This was at the insistence of the European Parliament and reflects the fact that e-visas are already provided by some Member States. E-visas are considered cost-efficient and a procedural facilitation for both applicants and consulates. However, states tend to limit their use for citizens of selected countries due to security concerns and other reasons.96 The European Parliament was unsuccessful in its attempt to insert an obligation for the Commission to present an e-visa proposal by 2025, and in practice harmonization may be a long-time off, with some Member States preferring to wait until the Entry/Exit System (EES)97 and the European Travel Information and Authorisation System (ETIAS)98 are in place.99

Article 11 Application form 1. Each applicant shall submit a manually or electronically completed application form, as set out in Annex I. The application form shall be signed. It may be signed manually or, where electronic signature is recognised by the Member State competent for examining and deciding on an application, electronically. 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. 1a. Where the applicant signs the application form electronically, the electronic signature shall be a qualified electronic signature, within the meaning of point (12) of Article 3 of Regulation (EU) No 910/2014. 1b. The content of the electronic version of the application form, if applicable, shall be as set out in Annex I. 2. Consulates shall make the application form widely available and easily accessible to applicants free of charge. 3. The form shall, as a minimum, be available in the following languages: (a) the official language(s) of the Member State for which a visa is requested or of the representing Member State; and (b) the official language(s) of the host country. In addition to the language(s) referred to in point (a), the form may be made available in any other official language(s) of the institutions of the Union. 95 Commission Staff Working Document, SWD(2014) 101 final, p. 9. See also draft Article 9, Commission Proposal, COM(2014) 164 final. 96 Commission Staff Working Document, SWD(2018) 77 final, p. 81. 97 Regulation (EU) 2017/226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES). 98 Regulation (EU) 2018/1240 (OJ 2018 L 236/1) establishing a European Travel Information and Authorisation System (ETIAS). 99 Commission Staff Working Document, SWD(2018) 77 final, p. 50.

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Art. 12

Chp. 3

4. If the official language(s) of the host country is/are not integrated into the form, a translation 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.

I. Definition of valid travel document for purposes of application admissibility and examination Article 12 clarifies requirements relating to the travel document that a visa applicant 1 must present when lodging an application under Article 10(3) and which is necessary in principle for the application to be admissible under Article 19. Article 12 does not provide a definition of a ‘valid travel document’ but establishes requirements including in relation to the length of validity of the document, which is relevant for return purposes, and the minimum number of blank pages, which are required for affixing the visa and stamping the passport. According to the Visa Handbook, Article 12 is not concerned with the genuineness of the travel document. The Visa Handbook instructs consular authorities that when they detect a forged travel document at the moment of the submission of the visa application they should consider the application as admissible and refuse the visa, whereby the refusal will be recorded in the VIS. In this context, both Article 32(1) on visa refusal and related Article 21(3) on verification of entry conditions include presentation of a false, counterfeit or forged travel document, respectively, as a reason for, or a check to be carried out in relation to, refusing a visa. It is unclear whether the term ‘valid travel document’ in Article 12 should be 2 interpreted as requiring that the travel document is a ‘recognised travel document’, which is defined in Article 2(7) as ‘a travel document recognised by one or more Member States for the purpose of crossing the external borders and affixing visas’. The list of such travel documents is drawn pursuant to Decision 1105/2011/EU.100 The Visa Handbook seems to adopt this position as it contemplates the inadmissibility of the visa application in cases where the travel document is not recognised by any of the Member

100 OJ 2011 L 287/9. This has replaced the Schengen manual of documents to which a visa may be affixed, SCH/Com-ex (98)56 (OJ 2000 L 239/207).

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Chp. 3 Art. 13

Visa Code Regulation (EC) No 810/2009

States.101 The temporal validity and recognised status of the travel document will also be considered during the examination of the visa application under Article 21, since Article 21(1) refers to Article 6(1) of the Schengen Borders Code Regulation (EU) 2016/399 which establishes as an entry condition ‘possession of a valid travel document entitling the holder to cross the border’ and provides rules in relation to the temporal validity of the document. Moreover, such an examination will make it possible to decide whether a limited territorial validity visa has to be issued, in accordance with Article 25(1) or (3). However, under Article 21(3)(a) the emphasis of the examination is on the authenticity of the travel document, since that is the only reason in relation to the travel document which requires visa refusal under Article 32 (see Article 25 MN 1).102 The list of recognised travel documents is now incorporated in the VIS to enable automatic verification.103

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 specifi101

Commission Decision, C(2010) 1620 final, as amended, Part II, para 3.1.4. ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 35. 103 Article 1(6) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 102

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cations on the standards for biometric features related to the development of the Visa Information System(6). 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 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 CFR.......................................

mn. 2 3

Article 13 relates to the requirement that a visa applicant has to satisfy, under 1 Article 10, in relation to the collection of her biometric identifiers, fulfilment of which is in principle necessary for the visa application to be considered admissible under Article 19. Once the application is considered admissible, the consulate or central authorities, will create an application file in the VIS containing the biometric identifiers of the applicant and other information relating to the application in accordance with Article 19(2). Through this application file, authorities will carry out searches in the VIS (and through the VIS) in view of verifying, in accordance with Article 21, whether the applicant fulfils the entry conditions of the Schengen Borders Code Regulation (EU) 2016/399. The application file is generally retained for five years.104 In the context of reforming the VIS, several important changes have recently been introduced. In relation

(6) 104

OJ L 267, 27.9.2006, p. 41. Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS), Article 23.

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to Article 13 specifically, an amendment has been introduced to provide for the collection of collect the facial image of the applicant taken live at the time of the application.105

I. Exemptions 2

It is worth noting that third country national family members of EU citizens covered by the Free Movement Directive 2004/38/EC are not included among the categories exempted from the requirement to have their biometric identifiers collected and stored in the VIS. Nevertheless, the operation of the VIS is without prejudice to the Free Movement Directive 2004/38/EC.106 In the context of reforming the VIS, following a number of studies between 2013 and 2017 on the correlation between age and fingerprint quality, Article 13 has recently been amended to exempt persons over the age of 75 from the obligation to provide fingerprints and to lower the fingerprinting age from the current 12 to 6 years, which is also seen as a contribution to facilitating the fight against the trafficking of children. This is a laudable objective but the extent to which it is solidly supported by data, and thus pursued in a proportionate way, is questionable.107 A new exempted category has also been introduced, namely persons who are required to appear as witness before international courts in the Member States and who would be put in serious danger if they had to appear in person to lodge the visa application.108

II. Biometric identifiers and Articles 7 and 8 CFR 3

Biometric identifiers must be collected, stored and used in accordance with the ECHR, the CFR and the CRC. Detailed rules on the use of the VIS by visa authorities are contained in the VIS Regulation which also establishes the rights and remedies available to individuals.109 In the context of establishing interoperability between information systems in the area of freedom, security and justice, the VIS has been significantly reformed recently.110 While the legality of both the Visa Code, in relation 105 Furthermore, carriers’ access to a restricted ‘OK/NOT OK’ version of the VIS (a ‘carrier gateway’) has also been introduced. See Article 1(3) and (44) and Article 4 Regulation 2021/1134 (OJ 2021 L 248/ 11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 106 Recital 53 and Article 1(11) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 107 According to data published by the Commission, 22 % of all victims of trafficking in 2017 and 2018 were children, of which 74 % were EU citizens, see European Commission, Fact Page on Trafficking in Human Beings (October 2020), available at: https://ec.europa.eu/anti-trafficking/sites/default/files/third_progress_report_factsheet.pdf [last accessed 5 May 2021]. 108 Article 2(2)(c) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 109 Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS), Chapters II and VI. 110 Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/ 2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System.

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to the collection of biometrics and other information belonging to visa applicants, and the VIS Regulation,111 in relation to the storing and use of such biometrics and information, has not been challenged, there have been challenges, under Articles 7 and 8 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 under Articles 7 and 8 CFR on the basis that the Regulation obliges individuals applying for a passport to provide fingerprints which are stored in that passport.112 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 necessary to achieve their general objective. The Court however noted that the EU passports Regulation 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.113 The scope of the VIS, on the other hand, is broader as data are stored centrally and 4 law enforcement authorities have access to it.114 Following the ECJ judgment in Digital Rights Ireland on the validity of the Data Retention Directive,115 it is clear that the VIS, 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.116 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.117 In this respect, the reform of the VIS, within the context of establishing interoperability between information systems, creates further challenges. Among the most significant changes introduced is a substantial extension of the personal scope of the VIS which would come to include data on longstay visa and residence permit applicants and holders (see Article 1 MN 14), further undermining the proportionality of the system from the perspective of the rights to respect for private life and the protection of personal data.118 Interoperability, in the 111

Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS). Regulation (EC) No 2252/2004 (OJ 2004 L 385/1) on passports issued by Member States. 113 ECJ, Schwarz, C-291/12, EU:C:2013:670. 114 See Council Decision 2008/633/JHA (OJ 2008 L 218/129). 115 Former Directive 2006/24/EC (OJ 2006 L 105/54) on data retention; ECJ, Digital Rights Ireland, C-293/12, EU:C:2014:238. 116 Council doc. 9009/14 of 5 May 2014, para 20, p. 8. 117 ECJ, Digital Rights Ireland, C-293/12, EU:C:2014:238, paras 56–66. See also ECJ, Tele2 Sverige, C-203/15, EU:C:2016:970, paras 102, 105–110. 118 Article 1(2)(b). Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. The Commission estimates that the number of people whose data will be stored in the different interoperable IT systems is approximately 218 million, see Commission Staff Working Document, SWD(2017) 473, p. 8. 112

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form of the VIS automatically querying other databases in the field of justice and home affairs (and vice versa), is also problematic in relation to limiting access rights and the purpose limitation principle. Furthermore, supported by statistics extracted from the VIS and the EES and information from Member States, the system would devise watchlists and specific risk indicators against which to screen applicants which are based on potentially discriminatory categories.119

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 may be requested from the applicant in order to verify the fulfilment of the conditions listed in paragraphs 1 and 2 is set out in Annex II. 4. Member States may require applicants to present proof of sponsorship or of private accommodation, or of both, by completing a form drawn up by each Member State. That form shall indicate in particular: (a) whether its purpose is proof of sponsorship or of private accommodation, or of both; (b) whether the sponsor or inviting person is an individual, a company or an organisation; (c) the identity and contact details of the sponsor or inviting person; (d) the identity data (name and surname, date of birth, place of birth and nationality) of the applicant(s); (e) the address of the accommodation; (f) the length and purpose of the stay; 119 Article 1(11) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. See for example Article 63 Regulation (EU) 2017/226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES). For an analysis, see Vavoula, ‘The “Puzzle” of EU Large-Scale Information Systems for Third-Country Nationals: Surveillance of Movement and Its Challenges for Privacy and Personal Data Protection’, EL Rev. 45 (2020), p. 348–372.

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(g) possible family ties with the sponsor or inviting person; (h) the information required pursuant to Article 37(1) of the VIS Regulation. 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 Union. A specimen of the form shall be sent to the Commission. 5. Consulates shall, within local Schengen cooperation, assess the implementation of the conditions laid down in paragraph 1, to take account of local circumstances, and of migratory and security risks. 5a. Where necessary in order to take account of local circumstances as referred to in Article 48, the Commission shall by means of implementing acts adopt a harmonised list of supporting documents to be used in each jurisdiction. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 52(2). 6. The requirements of paragraph 1 of this Article may be waived in the case of an applicant known to the consulate or the central authorities for his integrity and reliability, in particular as regards the lawful use of previous visas, if there is no doubt that he will fulfil the requirements of Article 6(1) of Regulation (EU) 2016/ 399 of the European Parliament and of the Council(7) at the time of the crossing of the external borders of the Member States. Content I. Harmonization of supporting documents................................................. II. Proof of sponsorship and/or private accommodation ........................... III. Discretionary waivers and obligations under the Free movement Directive 2004/38/EC .....................................................................................

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Following from the requirement in Article 10(3)(f), Article 14(1) and (2) provides 1 that an applicant for a uniform visa shall present supporting documents.120 These are documents relating to the purpose of the journey, accommodation during the stay, sufficient means of subsistence and intention to leave the territory of the Member States before the expiry of the visa. Unlike most of the other requirements listed in Article 10, presentation of supporting documents is not a condition for the admissibility of the application under Article 19. Supporting documents corroborate the information which is provided by the applicant in the application form envisaged by Article 10(3)(a) and Article 11 and are important in the examination of the visa application by national authorities under Article 21.

I. Harmonization of supporting documents There is no formal substantive harmonization of the supporting documents that a visa 2 applicant must present. This position is 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 can however cause uncertainty, unequal treatment of applicants and visa shopping. To attenuate this, the Visa Code (7) 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 L 77, 23.3.2016, p. 1). 120 Visa facilitations agreements may contain provisions on this matter. See, for example, Article 4 EUAzerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53).

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contains in Annex II a non-exhaustive list of supporting documents which may be required by consulates. Attempts by the Commission to make this list exhaustive have been unsuccessful.121 The Visa Handbook also provides for detailed guidelines.122 Most importantly, Article 14(5) and (5a) contemplates the gradual adoption by the Commission, following ground work within the context of local Schengen cooperation, of legally binding implementing acts establishing harmonized lists of supporting documents to be used in each jurisdiction. Up to 2014, progress on this front was assessed as limited by the Commission, reporting among the reasons ‘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’.123 However, since 2014, there has been a steady progress in the Commission’s adoption of implementing acts, although monitoring in the context of the Schengen evaluation mechanism still reveals, as a recurring deficiency, divergences in the practical implementation of the harmonised lists.124

II. Proof of sponsorship and/or private accommodation 3

Under Article 14(4), the Member States may also require applicants to present proof of sponsorship or of private accommodation, or both, by completing a form which must meet a number of minimum requirements. Practices among the Member States may vary in this respect, and it appears that some Member States have used the forms explicitly to impose the financial risks of an extended stay on the signee of the form, or commit the signee to cover costs of a possible overstay. Also, while the information provided in the form is inserted in the VIS, many Member States did not inform the signee of this as required.125

III. Discretionary waivers and obligations under the Free movement Directive 2004/38/EC 4

Under Article 14(6), the consulate or central authorities may waive requirements in relation to supporting documents in the case of an applicant known to them for her ‘integrity and reliability’. There is no detailed definition of this term apart from a reference to the lawful use of previous visas. In the context of the issuing of multipleentry visas under Article 24(2), on the other hand, the same term is defined by reference to further factors. As a result of the subjectivity of this notion, the provision has been of little practical benefit to individuals and has not been conducive to a harmonised approach. Accordingly, the Commission in 2014 proposed the introduction of the notion of ‘VIS registered regular traveller’ who would be exempted from presenting

121

Commission Proposal, COM(2014) 164 final, draft Article 51(2). Commission Decision, C(2010) 1620 final, as amended, Part II, para 5. 123 Commission Staff Working Document, SWD(2014) 101 final, p. 12–13. The list of implementing decisions is published on: http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/borders-andvisas/visa-policy/index_en.htm [last accessed 20 April 2021]. 124 Commission Staff Working Document, SWD(2018) 77 final, p. 72; Commission Report, COM (2020) 779 final, p. 8–9. 125 Article 37 Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS); Commission Staff Working Document, SWD(2014) 101 final, p. 14. 122

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certain supporting documents.126 This was however rejected by the Member States which opposed any ‘automaticity’ in issuing visas to this category.127 Under the conditionality mechanism in Article 25a, Article 14(6) will not be applicable to applicants or category of applicants who are nationals of a third country that is considered not to be cooperating sufficiently on readmission. Consistently with the general approach in the Visa Code (Article 1 MN 15), Article 14 is silent on the position in relation to third country nationals who are covered by the Free Movement Directive 2004/38/EC. The Visa Handbook clarifies that they may only be required to present documents establishing that they are beneficiaries of the Directive.128

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 multiple-entry visa 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. 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. 126

Draft Article 13 Commission Proposal, COM(2014) 164 final. Council doc. 6093/15 of 13 February 2015, p. 3. 128 Commission Decision, C(2010) 1620 final, as amended, Part III, para 3.6. 127

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Visa Code Regulation (EC) No 810/2009

Following from Article 10(3)(g), Article 15 regulates the visa applicant’s obligation to prove possession of adequate and valid travel medical insurance. Unlike most of the requirements listed in Article 10, proof of possession of travel medical insurance is not a condition for the admissibility of the application under Article 19. It is however a condition for granting a uniform visa under Article 32 and it will be considered during the examination of the visa application under Article 21. The requirement of travel medical insurance was introduced for visa applicants in October 2004 on the initiative of Greece. In 2014 the Commission, supported by the European Parliament, unsuccessfully proposed to remove this requirement because it considered it disproportionate and because it is not an entry condition under the Schengen Borders Code Regulation (EU) 2016/399. According to the Commission, possession of travel medical insurance is therefore not verified at the border with the effect that a visa holder may cancel the travel medical insurance once the visa is obtained.129 Indeed, the practice of not checking travel medical insurance at the border is arguably in line with the legislative framework. Article 7(1) of the Schengen Borders Code Regulation (EU) 2016/399 establishes a proportionality requirement for border controls.130 Furthermore, although proof of possession of travel medical insurance is a condition for issuing a uniform visa under Article 32, revocation of the visa is mandatory under Article 34 only for the issuing Member State and ‘where it becomes evident’ that the conditions for issuing the visa are no longer met.

Article 16 Visa fee 1. Applicants shall pay a visa fee of EUR 80. 2. Children from the age of six years and below the age of 12 years shall pay a visa fee of EUR 40. 2a. A visa fee of EUR 120 or EUR 160 shall apply if an implementing decision is adopted by the Council under point (b) of Article 25a(5). This provision shall not apply to children below the age of 12 years. 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, as defined in point (2) of Article 3 of Directive (EU) 2016/801 of the European Parliament and of the Council(8), travelling for the purpose of carrying out scientific research or participating in a scientific seminar or conference; (d) representatives of non-profit organisations aged 25 years or less participating in seminars, conferences, sports, cultural or educational events organised by nonprofit organisations. 129 Commission Staff Working Document, SWD(2014) 101 final, p. 15. Some Member States expressed opposition ‘because of large numbers of medical bills left unpaid by third country nationals in the Member States’, see Council doc. 6093/15 of 13 February 2015, p. 3. 130 See ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, paras 8 and 55. (8) 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 L 132, 21.5.2016, p. 21).

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5. The visa fee may be waived for: (a) children from the age of six years and below the age of 18 years; (b) holders of diplomatic and service passports; (c) participants in seminars, conferences, sports, cultural or educational events organised by non-profit organisations, aged 25 years or less. 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, interests in the field of foreign policy, development policy and other areas of vital public interest, or for humanitarian reasons or because of international obligations. 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 the 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 it shall be ensured under local Schengen cooperation that similar fees are charged. 8. The applicant shall be given a receipt for the visa fee paid. 9. The Commission shall assess the need to revise the amount of the visa fees set out in paragraphs 1, 2 and 2a of this Article every three years, taking into account objective criteria, such as the general Union-wide inflation rate as published by Eurostat, and the weighted average of the salaries of Member States’ civil servants. On the basis of those assessments, the Commission shall adopt, where appropriate, delegated acts in accordance with Article 51a concerning the amendment of this Regulation as regards the amount of the visa fees. Content I. Amount of the visa fee .................................................................................. II. Waivers..............................................................................................................

mn. 2 3

Following from Article 10(3)(e), Article 16 establishes rules on the collection of the 1 visa fee. Collection of the visa fee is in principle a condition for the admissibility of the visa application under Article 19, without prejudice to the Free Movement Directive 2004/38/EC and visa facilitation agreements between the EU and third countries.

I. Amount of the visa fee Following amending Regulation 2019/1155, the visa fee has increased from EUR 60 to 2 EUR 80, and from EUR 35 to EUR 40 for children aged 6 to 11. This is to ensure that the visa fee covers the administrative costs of issuing a visa as far as possible, particularly in a situation where there have been significant cuts to the financial resources available to consulates. It is believed that, given the visa fees applied by third countries which are comparable to the EU, the increase should not lead to a reduction of travel.131 Amending Regulation (EU) 2019/1155 has also introduced in Article 16(9) a power for the Commission to revise the amount of the visa fee using the procedure in Article 51a. The lack of such specific procedure was identified as the reason why the visa fee had not been raised 131

Commission Staff Working Document, SWD(2018) 77 final, p. 12 and 34.

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since 2006.132 Article 16(2a) provides that the visa fee can be increased to EUR 120 or 160 in relation to specific nationalities or categories of individuals from a specific third country as a result of a Council implementing decision adopted under the conditionality mechanism in Article 25a. This would be a last resort measure against a non-cooperative third country when more lenient measures are ineffective. In relation to countries with which the EU has visa facilitation agreements, it would be necessary for the EU to invoke the suspension clause in the agreement before being able to implement such punitive measures (see Article 1 MN 16). The conditionality mechanism in Article 25a also creates the possibility for the Council, in case a third country is considered cooperative in the field of readmission, to adopt an implementing decision to reduce the visa fee for nationals of that country to EUR 60. Article 16 is without prejudice to visa facilitation agreements which provide for a visa fee of EUR 35 and the Free Movement Directive 2004/38/EC by virtue of which no visa fee is applicable to third country nationals who are family members of EU citizens falling within the scope of the Directive.133

II. Waivers 3

Article 16(4) lists the categories for which the visa fee shall be waived. The European Parliament unsuccessfully attempted to raise the age of children exempted from the visa fee from 6 to 12 years. This would have created consistency between the Visa Code and visa facilitation agreements and possibly impacted on EU leverage (see Article 1 MN 6).134 In relation to the category of representatives of non-profit organizations, it is to be noted that under the Visa Handbook, national authorities are instructed that the non-profit organisation must be ‘officially registered’ as such. Similarly, in relation to representatives of civil society organizations, for which there is a full waiver of the visa fee under visa facilitation agreements, visa facilitation agreements provide that a ‘certificate on establishment of such organization from the relevant register issued by a state authority’ must be provided. This has the effect of excluding human rights NGOs from countries that proscribe them, such as Russia,135 from benefiting from the waiver and it is hardly in line with the EU Guidelines on Human Rights Defenders as amended in 2008.136 It is to be noted that visa facilitation agreements provide visa fee waivers for further categories of individuals including close relatives of nationals of the contracting parties, children under the age of 12, pensioners, journalists, persons with disabilities, persons in urgent need of medical treatments, etc.137 Article 16 also provides for discretionary visa fee waivers in relation to specific categories of individuals. In this context, with the last amendment of the Visa Code, the European Parliament was successful in raising the age of children who could benefit from the waiver from 12 to 18 years. It was, on the other hand, unsuccessful in including applicants for limited territorial validity visas as a further category. However, under Article 19(4), it is possible for the competent consulate, as a derogation from the general rule, to consider an application for which the visa fee has not been collected as admissible on humanitarian grounds, for reasons of national interest or because of 132

Commission Staff Working Document, SWD(2018) 77 final, p. 17. See for example Article 6 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 134 The Commission in its 2014 recast proposal also unsuccessfully attempted to extend the categories entitled to a visa fee waiver, see draft Article 14(3), Commission Proposal, COM(2014) 164 final; Council doc. 6093/15 of 13 February 2015, p. 3. 135 Lipman, ‘At the Turning Point of Repression. Why there are more and more “undesirable elements” in Russia’, Russian Politics and Law 54 (2016), p. 341, 344–347. 136 Council doc. 16332/2/08 REV 2 of 10 June 2009, para 14. 137 See for example Article 6 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 133

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Chp. 3

Art. 17

international obligations. Furthermore, Article 16(6) provides a less defined case when the Member States may waive the visa fee.

Article 17 Service fee 1. A 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). 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). 4a. By way of derogation from paragraph 4, the service fee shall, in principle, not exceed 80 EUR in third countries where the competent Member State has no consulate for the purpose of collecting applications and is not represented by another Member State. 4b. In exceptional circumstances where the amount referred to in paragraph 4a is not sufficient to provide a full service, a higher service fee of up to a maximum of 120 EUR may be charged. In such a case, the Member State concerned shall notify the Commission of its intention to allow for a higher service fee to be charged, at the latest three months before the start of its implementation. The notification shall specify the grounds for the determination of the level of the service fee, in particular the detailed costs leading to the determination of a higher amount. 5. The Member State concerned may maintain the possibility for all applicants to lodge their applications directly at its consulates or at the consulate of a Member State with which it has a representation arrangement, in accordance with Article 8. Content I. Amount of the service fee............................................................................. II. Direct access to consulates and limited territorial validity (LTV) visas ....................................................................................................................

mn. 1 2

I. Amount of the service fee In accordance with Articles 8(10), 40(3) and Articles 43, a Member State can 1 cooperate with an external service provider to provide information to and collect applications from visa applicants on its behalf. Such cooperation is widespread (see Article 43 MN 1). Article 17 accordingly establishes rules with regard to the service fee that external service providers can charge visa applicants. Amending Regulation (EU) 2019/1155 has introduced some derogations to the general rule that the service fee should not exceed half of the amount of the visa fee, with the effect that the service fee can reach EUR 80 and in exceptional circumstances EUR 120.138 In theory, a visa applicant could avoid the service fee by not relying on the services of the external 138 Under visa facilitation agreements, the service charge cannot exceed EUR 30, with the Member States and the relevant third country obliged to maintain the possibility for all applicants to lodge their

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Chp. 3 Art. 18

Visa Code Regulation (EC) No 810/2009

service provider and lodging her application directly at the competent consulate. In this context, amending Regulation (EU) 2019/1155 has introduced important changes. It has removed the obligation in Article 17(5) for the Member States to maintain the possibility for all applicants to lodge their applications directly at their consulates, and replaced it with a discretion. Prior to this amendment, there had been numerous complaints to the Commission about Member States’ violation of this rule.139 With regard to third country nationals who are family members of EU citizens covered by the Free Movement Directive 2004/38/EC, visas must be issued free of charge and the Member States remain obliged to grant direct access to their consulates.

II. Direct access to consulates and limited territorial validity (LTV) visas 2

The removal of the Member States’ obligation to maintain direct access to consulates has also been criticized on the ground that in practice it makes it more difficult for applicants to apply for LTV visas and for the Member States to exercise their discretion, as a derogation from the general rules, to consider visa applications that are inadmissible as admissible under Article 19(4) and to grant LTV visas exceptionally to applicants that do not fulfil the conditions for a uniform visa (see Article 25 MN 1–2).140 This is linked to the practice of some external service providers to refuse to collect and transmit to consulates visa applications which are considered incomplete, thus precluding such applications from reaching and being considered by consulates (see Article 43 MN 2).141

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 or the central authorities of the competent Member State 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), applications directly at their consulates, see, for example, Article 6(3) of the EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 139 Commission Staff Working Document, SWD(2014) 101 final, p. 34. 140 See Jensen, Humanitarian Visas, p. 26. 141 See, for example, Commission Staff Working Document, SWD(2014) 101 final, p. 34.

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Chp. 3

Art. 19

– the biometric data of the applicant have been collected, and – the visa fee has been collected. 2. Where the competent consulate or the central authorities of the competent Member State find that the conditions referred to in paragraph 1 have been fulfilled, the application shall be admissible and the consulate or the central authorities 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 Article 6(1), Article 7 and points (5) and (6) of Article 9 of the VIS Regulation. 3. Where the competent consulate or the central authorities of the competent Member State find that the conditions referred to in paragraph 1 have not been fulfilled, the application shall be inadmissible and the consulate or central authorities 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 from paragraph 3, an application that does not meet the requirements set out in paragraph 1 may be considered admissible on humanitarian grounds, for reasons of national interest or because of international obligations. Content I. The notion of admissibility........................................................................... II. The right of appeal ......................................................................................... III. Derogations from admissibility requirements and limited territorial validity (LTV) visas ........................................................................................

mn. 1 2 3

I. The notion of admissibility Article 19(1) provides the conditions for a visa application to be considered admis- 1 sible for examination. These conditions reflect the general rules and modalities for lodging an application in Articles 9 and 10, except as regards supporting documents and proof of travel medical insurance which are not required for admissibility but must be included with the application and will be considered at the examination stage (see Article 14 MN 1 and Article 15 MN 1). 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.142 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 are differences between the Member States as to which documents they require from applicants (see Article 14 MN 2).143 Once the 142 See, for example, Zampagni, ‘Unpacking the Schengen Visa Regime. A Study on Bureaucrats and Discretion in an Italian Consulate’, Journal of Borderlands Studies 31 (2016), p. 251, 259. 143 Commission Staff Working Document, SWD(2014) 101 final, p. 18; Commission Staff Working Document, SWD(2018) 77 final, p. 72; Commission Report, COM(2020) 779 final, p. 9.

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Chp. 3 Art. 19

Visa Code Regulation (EC) No 810/2009

application is admissible, an application file is created in the VIS and the application is examined in accordance with Articles 21 and 22.

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 very first proposal for a Visa Code, the Commission excluded the right of appeal expressly for inadmissible applications. However, this position is questionable, particularly in light of the confusion surrounding the practical application of admissibility (see MN 1). The position has been criticized and has caused some problems for some Member States.144 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’.145

III. Derogations from admissibility requirements and limited territorial validity (LTV) visas 3

Article 19(4) establishes, by way of derogation, that an application that does not meet the general admissibility requirements ‘may’ be considered admissible ‘on humanitarian grounds, for reasons of national interest or because of international obligations’. The reference to international obligations has been introduced by amending Regulation (EU) 2019/1155 on the insistence of the European Parliament, and results in consistency between Article 19(4) and Article 25(1)(a) on the issuing of LTV visas. Article 19 (4) can act as a conduit for the application of Article 25(1)(a) which provides that LTV visas ‘shall be issued exceptionally’ to applicants who do not fulfil the entry conditions in the Schengen Borders Code Regulation (EU) 2016/399, and hence the conditions for a uniform visa 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’.146 These provisions mirror Article 6(5)(c) of the Schengen Borders Code Regulation (EU) 2016/399 which states that third country nationals who do not fulfil one or more of 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. Article 19(4) provides only for a discretion to treat an inadmissible application as admissible, while Article 25(1) is more ambiguous in its formulation in terms of the degree of discretion that it provides (see Article 25 MN 5).

144

See Meloni, The Community Code, p. 692. 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. 146 See Jensen, Humanitarian Visas, p. 18. 145

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Art. 21

Chp. 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 or the central authorities 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 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, covering the period of the intended stay, or, if a multiple-entry visa is applied for, the period of the first intended visit. 4. The consulate or the central authorities 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.

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Chp. 3 Art. 21

Visa Code Regulation (EC) No 810/2009

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 or the central authorities 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 or the central authorities may in justified cases carry out an interview with the applicant 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 reformed VIS ........................................................................................... III. The possibility of an interview ....................................................................

mn. 1 2 3

I. General scope 1

Once an application is considered admissible in accordance with Article 19, it is examined in accordance with Articles 21 and 22 with a view to establishing whether the applicant fulfils the entry conditions set out in the Schengen Borders Code Regulation (EU) 2016/399 and adopting a decision to either issue a uniform visa (Article 24), a limited territorial validity visa (Article 25) or refuse a visa (Article 32). 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 6). 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. 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. 130

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Art. 21

Chp. 3

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’.147 It is therefore apparent that Article 21 is not intended to establish the conditions for issuing a visa but rather sets out the various checks and assessments that need to be carried out by the competent national authorities to establish that the grounds for visa refusal under Article 32 do not arise. Thus, the relationship between Articles 21 and 32 of the Visa Code is similar to the relationship between Articles 8 and 6 of the Schengen Borders Code Regulation (EU) 2016/399 as clarified by the ECJ in Air Baltic Corporation.148 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 applications.149 This wide discretion has implications for the scope of the judicial review required in the context of the appeal provided for in Article 32(3) of the Visa Code (see Article 32 MN 6–8). In the case of third country nationals who are family members of EU citizens exercising the right of free movement, the grounds for exclusion under the Free Movement Directive 2004/38/EC are very narrow and this will be reflected in the verifications that will be carried out during the examination of their applications (see Article 1 MN 15 and Article 14 MN 4).

II. The reformed VIS As part of the examination of the visa application, Article 21(2) provides that, in 2 respect of each application, the VIS, which is interoperable with the EES,150 is to be consulted for the purpose of checking any previous applications (the visa history of the applicant) and examining the application. In this context, Article 21(9) states that a previous visa refusal, which will be revealed by the VIS, shall not lead to an automatic refusal of a new application. Interoperability between EU information systems in the field of justice and home affairs affects the operation of the VIS in the context of Article 21. For the purpose of carrying out the verifications of the entry conditions in Article 21(1), the authenticity of the travel document as per Article 21(3)(a), the existence of alerts in the SIS and national databases as per Article 21(3)(c) and (d), and compliance with the maximum duration of the authorised stay under Article 21(4), authorities will take into account the result of verifications of hits resulting from a query launched by the VIS, using the European Search Portal, in the EU and Interpol information systems. Furthermore, authorities will also take into account watchlists and hits against specific risk indicators (see Article 13 MN 4).151 Currently, the Visa Handbook provides for consulates to ‘define “profiles” of applicants presenting a 147

ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 27–28, 31–32. ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para. 45. 149 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 56–63; El Hassani, C‐403/16, EU:C:2017:960, para 36. 150 Article 8 Regulation (EU) 2017/2226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES); Articles 17a-19a Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS). 151 Article 2(3) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 148

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Chp. 3 Art. 22

Visa Code Regulation (EC) No 810/2009

specific risk’, according to local conditions and circumstances relating to political instability, high level of unemployment and wide-spread poverty and/or based on the stability of the applicant’s socio-economic situation (see also Article 48 MN 1).152 Under Article 39(3) consular authorities must, however, respect the principle of non-discrimination.

III. The possibility of an interview 3

Article 21(8) states that ‘in justified cases’, which, according to the Visa Handbook, includes cases when the examination of the visa application ‘does not allow for taking a final decision’,153 consulates or central authorities ‘may’ carry out an interview with the applicant and request additional documents, including remotely according to Recital 20 of amending Regulation (EU) 2019/1155. Under the Visa Code and as clarified by the ECJ in Koushkaki,154 it is the visa applicant’s responsibility to provide the relevant supporting documents to demonstrate that she meets the entry conditions of the Schengen Borders Code Regulation (EU) 2016/399. 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 applicant the right to be heard before the visa was refused under the Regulation constituted a violation of procedural rules.155

Article 22 Prior consultation of central authorities of other Member States 1. On the grounds of a threat to public policy, internal security, international relations or public health, 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 as soon as possible, but not later than seven calendar days after being consulted. The absence of a reply within that 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 for prior consultation, as a rule, at the latest 25 calendar days before it becomes applicable. That information shall also be given under local Schengen cooperation in the jurisdiction concerned. 4. The Commission shall inform Member States of such notifications. 152

Commission Decision, C(2010) 1620 final, as amended, Part II, para 6.13. Commission Decision, C(2010) 1620 final, as amended, Part II, para 6.11. 154 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 71–72. 155 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 31 March 2021]. 153

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Art. 22

Chp. 3

Content I. General scope................................................................................................... II. Appeals against visa refusal following prior consultation .....................

mn. 1 2

I. General scope As part of the visa application examination, central authorities may be required to 1 consult the central authorities of other Member States in accordance with Article 22. These provisions on prior consultation were carried over from the Common Consular Instructions (see above Article 1 MN 2) with the difference that Article 22 has shortened the deadline for a reply to a consultation to seven calendar days and that 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.156 Prior consultation is currently required in relation to nationals of approximately 40 countries. In some cases, it relates only to holders of certain official passports or to specific categories of individuals identified by age and gender,157 with consular authorities bound nevertheless to respect the principle of non-discrimination while performing their tasks.158 The Commission reported in 2014 that the hit rate of such consultation was extremely low and that it was rare for visas to be refused as a result of prior consultation.159 Amending Regulation (EU) 2019/1155 has introduced a reference in Article 22(1) to ‘a threat to public policy, internal security, international relations or public health’ as the grounds for requiring prior consultation. This further clarifies that the purpose of prior consultation is to verify that the visa applicant ‘is not considered to be a threat to public policy, internal security or public health … or to the international relations of any of the Member States …’, which is a ground for visa refusal under Article 32(1)(a) (vi). However, in case of objections made by a Member State under prior consultation to the issuing of a uniform visa or in case of urgency precluding prior consultation from being carried out, the Member State examining the visa application can issue a limited territorial validity visa in accordance with Article 25(1). This is however generally excluded in cases of representation (see Article 8 MN 3). Prior consultation is carried out in accordance with the VIS Regulation, through the VISMail communication network.160

II. Appeals against visa refusal following prior consultation As mentioned above, prior consultation is a mutual recognition tool, which assists in 2 verifying that a visa applicant ‘is not considered to be a threat to public policy, internal security or public health … or to the international relations of any of the Member 156 Annex 16 to the Visa Code Handbook, available at: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/borders-and-visas/visa-policy/docs/prior_consultation_en.pdf [last accessed 13 April 2021]. 157 Commission Staff Working Document, SWD(2014) 101 final, p. 20. 158 See Article 39(3); Article 21 CFR and, for example, ECJ, Mangold, C-144/04, EU:C:205:709. 159 Commission Staff Working Document, SWD(2014) 101 final, p. 20. 160 Article 1(16) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System.

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Chp. 3 Art. 22

Visa Code Regulation (EC) No 810/2009

States…’, which is a ground for visa refusal under Article 32(1)(a)(vi). In this context, the Visa Handbook provides that the consulted Member State should ‘signal the precise reason for the negative reply’ to the consultation, listing the possible reasons as: ‘security’, ‘health’, and ‘international relations’, which are however not further defined. In the case of an objection by the consulted Member State based on one of these grounds, the consulting Member State will refuse the uniform visa, but may exceptionally decide to grant a limited territorial validity visa under Article 25(1). The visa refusal decision is communicated to the applicant via the standard form for notification and motivation of visa refusal annexed to the Visa Code. This form allows national authorities to tick-off pre-defined statements of reasons and is therefore highly problematic from the point of view of the right of appeal against a visa refusal decision in Article 32(2). Under the form, the Member State refusing the visa following an objection raised by another Member State during prior consultation will tick as the reason for the refusal that the visa applicant is a threat to either public policy/internal security, public health or the international relations of one or more Member States, without being expressly required to provide any further information. In this context, as Peers points out, it is difficult to see how the Member State refusing the visa, following prior consultation, can satisfy the obligation to give reasons for the visa refusal decision required by Article 32(2). 3 This issue was considered by the ECJ in the joined cases of R.N.N.S. and K.A.161 In the case, visa applicants were refused visas following objections raised during prior consultation. The applicants were notified of the visa refusal decisions via the standard form where the reason ticked was ‘one or more Member State(s) consider you to be a threat to public policy, internal security, public health … or the international relations of one or more of the Member States’. No information was provided with regard to which Member State objected to the issuing of the visas and why, with the Visa Code not expressly requiring it, and the applicants were not aware of the existence of any decisions concerning them in relation to public policy, internal security, public health or the international relations of any of the Member States. Under the national law of the Member State that adopted the visa refusal decision, it was not possible for the visa applicant to challenge the decision as to its substance, with the expectation that the applicant would bring proceedings before the courts of the Member State that raised the objection instead, but whose identity and reasons remained undisclosed. In this context, the visa applicants argued that they were deprived of effective judicial protection. 4 As a starting point, the ECJ clarified that EU (i.e. mutually recognised) exclusion decisions must be justified to be in conformity with the general principle of good administration and the right to an effective remedy in Article 47 CFR. Although the Court distinguished between, on the one hand, the final decision refusing a visa, whose legality will be examined by the courts of the Member State which adopted that decision in accordance with Article 32(3), and, on the other hand, the objection to the issuing of a visa raised by another Member State in the context of prior consultation, whose merits are to be reviewed by the courts of that Member State,162 it clarified the requirements imposed by the right of appeal in Article 32(3) of the Visa Code interpreted in light of Article 47 CFR. In accordance with Article 47 CFR, the visa applicant ‘must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, …‘so as to make it possible for him or her to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction, and in order to put the latter fully in a 161 162

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Art. 23

Chp. 3

position in which it may carry out the review of the lawfulness of the national decision in question’.163 This translates into an obligation for the national authorities adopting the visa refusal decision to indicate, in the section of the standard form entitled ‘Remarks’, the identity of the Member State that objected to the issuing of the visa, the specific ground for refusal based on that objection, and the essence of the reasons for the objection.164 Furthermore, the authorities of the Member State responsible for the visa refusal decision must indicate which authority of the Member State that raised the objection to the issuing of the visa the visa applicant can contact to ascertain the remedies available.165 With regard to the scope of the review under Article 32(3) of the Visa Code, which extends to ascertaining whether the decision is based on a sufficiently solid factual basis,166 the national courts of the Member State responsible for adopting the visa refusal decision must be able to check whether the applicant was correctly identified as the subject of the objection at issue, and that procedural guarantees, such as the obligation to state reasons, were respected.167 The Court went, however, a step further, attending to the issue of the difficulties involved in challenging two different decisions in two different Member States. It stated that, without prejudice to the principle of national procedural autonomy, ‘it is for the Member State which adopts a final decision refusing a visa to establish procedural rules which help to ensure that the rights of defence and the right to an effective remedy of visa applicants are guaranteed, such as a request for information to the competent authorities of the Member States that objected to the issuing of a visa, the possibility for those authorities to intervene in the appeal procedure under Article 32(3) of the Visa Code or any other mechanism ensuring that the appeal brought by those applicants cannot be dismissed definitively without their having had the practical possibility of exercising their rights’.168

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 45 calendar days in individual cases, notably when further scrutiny of the application is needed. 2a. Applications shall be decided on without delay in justified individual cases of urgency. 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; (ba) issue an airport transit visa in accordance with Article 26; or (c) refuse a visa in accordance with Article 32. The fact that fingerprinting is physically impossible, in accordance with Article 13 (7)(b), shall not influence the issuing or refusal of a visa.

163

ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 43. ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 46. 165 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 52. 166 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, paras 48–49; ECJ, Fahimian, C‐544/15, EU:C:2017:255, paras 45–46. 167 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 51. 168 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 54. 164

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Chp. 3 Art. 23

Visa Code Regulation (EC) No 810/2009 Content

I. Time limits ....................................................................................................... II. Possible decisions and the right of appeal ................................................

mn. 1 2

I. Time limits 1

Article 23(1) establishes a general time limit of 15 days for national authorities to reach a decision on a visa application once it is considered admissible under Article 19. The Commission and the European Parliament have so far been unsuccessful in their attempts to introduce a shorter time limit. According to the Commission, most decisions are taken in 5 days and some Member States use short decision making times as a deliberate means of attracting travellers, causing visa shopping.169 By virtue of the conditionality mechanism in Article 25a, introduced to further strengthen the legal link between visa policy and cooperation on readmission by third countries, the application of the 15 day time limit can be temporarily suspended in relation to applicants or categories of applicants who are nationals of countries which are considered as uncooperative in the field of readmission, in accordance with a Council implementing decision adopted under Article 25a(5)(a). The conditionality mechanism in Article 25a also creates the possibility for the Council, in the case a third country is considered cooperative in the field of readmission, to adopt an implementing decision to reduce the time limit for decisions to 10 days. Article 23(2), providing for an extension of the time limit, is relevant in cases subject to prior consultation in accordance with Article 22. Article 23(2a), on expediting ‘justified individual cases of urgency’, has been introduced by amending Regulation (EU) 2019/1155. It is vague and accordingly its practical significance for individuals may be limited. Article 23 is without prejudice to visa facilitation agreements between the EU and third countries which normally provide for a shorter time limit to decide on applications.170 It is also without prejudice to the Free Movement Directive 2008/34/EC, with Article 5(2) of the Directive providing that visas to third country nationals family members must be issued ‘as soon as possible and on the basis of an accelerated procedure’.

II. Possible decisions and the right of appeal 2

Article 23(4) envisages four possible decisions on a visa application. The use of 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’.171

169

Commission Proposal, COM(2018) 252 final, p. 10. See for example Article 7 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 171 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 261, footnote 97. 170

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Art. 24

Chp. 3

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. Without prejudice to point (a) of Article 12, the period of validity of a visa for one entry shall include a ‘period of grace’ of 15 calendar 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. Provided that the applicant fulfils the entry conditions set out in point (a) and points (c) to (e) of Article 6(1) of Regulation (EU) 2016/399, multiple-entry visas with a long validity shall be issued for the following validity periods, unless the validity of the visa would exceed that of the travel document: (a) for a validity period of one year, provided that the applicant has obtained and lawfully used three visas within the previous two years; (b) for a validity period of two years, provided that the applicant has obtained and lawfully used a previous multiple-entry visa valid for one year within the previous two years; (c) for a validity period of five years, provided that the applicant has obtained and lawfully used a previous multiple-entry visa valid for two years within the previous three years. Airport transit visas and visas with limited territorial validity issued in accordance with Article 25(1) shall not be taken into account for the issuing of multiple-entry visas. 2a. By way of derogation from paragraph 2, the validity period of the visa issued may be shortened in individual cases where there is reasonable doubt that the entry conditions will be met for the entire period. 2b. By way of derogation from paragraph 2, consulates shall, within local Schengen cooperation, assess whether the rules on the issuing of the multiple-entry visas set out in paragraph 2 need to be adapted to take account of local circumstances, and of migratory and security risks, in view of the adoption of more favourable or more restrictive rules in accordance with paragraph 2 d. 2c. Without prejudice to paragraph 2, a multiple-entry visa valid for up to five years may be issued to applicants who prove the need or justify their intention to travel frequently or regularly, provided that they prove their integrity and reliability, in particular the lawful use of previous visas, their economic situation in the country of origin and their genuine intention to leave the territory of the Member States before the expiry of the visa for which they have applied. 2d. Where necessary, on the basis of the assessment referred to in paragraph 2b of this Article, the Commission shall, by means of implementing acts, adopt the rules regarding the conditions for the issuing of multiple-entry visas laid down in paragraph 2 of this Article, to be applied in each jurisdiction in order to take account of local circumstances, of the migratory and security risks, and of the Union’s overall relations with the third country in question. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 52(2). Meloni

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Chp. 3 Art. 24

Visa Code Regulation (EC) No 810/2009

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. Content I. Length of the authorised stay and period of validity of the visa ......... II. Overstay ............................................................................................................ III. Multiple-entry visas........................................................................................

mn. 1 2 3

I. Length of the authorised stay and period of validity of the visa 1

When, following the examination of the visa application in accordance with Article 21, and, where applicable, Article 22, the decision is taken to issue a uniform visa, as envisaged in Article 23(4)(a), Article 24 regulates the period of validity of the visa and the length of the authorised stay. As seen above (see Article 1 MN 10–12), the length of stay cannot exceed 90 days in any 180-day period, with Article 33 providing for the possibility of an extension in limited unforeseen circumstances.172 This is a maximum limit and in practice the authorised length of stay (and validity of the visa) in any given case will reflect the purpose of the journey and the applicant’s profile as revealed by the visa application examination so that it can be significantly shorter than 90 days. In the case of single-entry uniform visas, in particular, the length of the authorised stay and the validity of the visa will strictly reflect the purpose of the visit. The period of validity of the visa is a separate concept from the length of stay. The validity of a single-entry visa will reflect the length of the authorised stay plus a 15 day ‘period of grace’, which is meant to give the visa holder some flexibility in case minor changes to her travel plan become necessary, but it is open to the Member States not to grant the 15 days for reasons of public policy or because of the international relations of any of the Member States. Visas allowing for multiple entries, on the other hand, will have a period of validity of one, two or five years. The percentage of multiple-entry visas in relation to the total number of uniform visas issued by the Member States has steadily grown to 60 %, with most multiple-entry visas issued under the provisions of visa facilitation agreements.173 So far, there have been wide variations among the Member States as to the percentage of multiple-entry visas issued, and a tendency to issue multiple-entry visas with a period of validity not exceeding one year.174

II. Overstay 2

In case an individual overstays the authorised stay in her visa, the Return Directive 2008/115/EC becomes applicable. According to the Return Handbook, when a significant overstay is detected during exit controls, a Member State may, subject to a case-bycase assessment and the principle of proportionality, launch a return decision and, in 172 An extension is granted where the visa holder is within the territory of the Member States, but it is also possible for consulates to issue a new visa to an applicant who has already used a visa for a stay of 90 days within the relevant 180 day period under Article 25(1)(b). 173 See for example Article 5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 174 Commission Report, COM(2020) 779 final, p. 8; Staff Working Document, SWD(2018) 77 final, p. 14. The Commission publishes annual statistics but there is no specific data on the exact length of validity of the multiple-entry visas issued, see https://ec.europa.eu/home-affairs/what-we-do/policies/ borders-and-visas/visa-policy_en#stats [last accessed 5 May 2021].

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certain circumstances, an entry ban procedure. According to the Handbook, it is possible for a Member State to launch the procedure once knowledge of the overstay is acquired and complete it ‘in absentia’ if national law so allows provided that the national procedure complies with the right to be heard and the right to a fair trial, including the right to a hearing. The issuing of an entry ban in these circumstances is however a narrow discretion which is subject to the principles mentioned above and which should be exercised in accordance with the general objective of promoting voluntary departure.175 Entry bans will be recorded in the SIS, but even in cases where no action is taken by national authorities, overstays and deviations from the authorised stay, in terms of the Member State from where the individual leaves the EU, will be captured by the EES.176 In light of the interoperability between the EES and the VIS, this information will become the ‘visa history’ of the individual which is examined by national authorities on the occasion of new visa applications.177

III. Multiple-entry visas Article 24(2) provides for the mandatory issuing of multiple-entry visas with a long 3 validity according to a ‘cascade’ system, with some safeguards, which are subject to a narrow interpretation (Article 24(2a)), and the possibility of adapting the rules in each jurisdiction to take into account local circumstances (Article 24(2b) and (2d)). These new rules are among the most significant amendments introduced by Regulation (EU) 2019/1155. The Commission had supported their introduction since its 2014 recast proposal with a view to lessening the administrative burden on consulates by reducing the number of applications to be processed, facilitating bona fide regular travel and preventing visa-shopping as it results from the lack of a uniform approach to the issuing of multiple-entry visas. Multiple-entry visas may contribute to reduce the effect that visa policy has of decreasing the outflows of migrants,178 contrary to the perception of consulates that visas with a long validity increase migratory risk.179 Prior to these amendments, the Visa Code already contained provisions on the mandatory issuing of multiple-entry visas but these were considered largely ineffective by the Commission as a result of their unclear formulation.180 The old provisions are nevertheless preserved in Article 24(2c) and provide cases of possible eligibility for multiple-entry visas in addition to those established by Article 24(2). Some changes have however been introduced. In particular, Article 24(2c) no longer establishes an obligation to issue multiple-entry visas but rather a discretion. This and the imprecise formulation of the provision means that it will continue to be of little practical benefit to individuals and not conducive to a harmonised approach. Moreover, Article 24(2c) no longer refers to family members of EU citizens, family members of third country nationals legally 175

Commission Recommendation, C(2017) 6505 final, paras 5.1 and 11.3–4. Under Article 12 Regulation (EU) 2017/226 (OJ 2017 L 327/20) establishing an entry/exit system (EES), the EES automatically generates a list of overstayers (persons for whom there is no exit data following the date of expiry of their authorised stay) available to the competent national authorities to enable them to adopt appropriate measures, with the data retained for 5 years. See also Article 16 of the EES Regulation on information included in the EES individual file. 177 Article 8 Regulation (EU) 2017/2226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES); Articles 17a-19a Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS). 178 For an analysis of the effect of visa policy on migratory flows, see Czaika/de Haas, The Effect of Visas. 179 Commission Staff Working Document, SWD(2018) 77 final, p. 14. 180 Commission Staff Working Document, SWD(2018) 77 final, p. 13 and 18. 176

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Chp. 3 Art. 25

Visa Code Regulation (EC) No 810/2009

residing in the Member States, representatives of civil society organizations, etc. as specific categories of third country nationals that should benefit from multiple-entry visas, which had been the only clear aspect of the provision. As mentioned above (see Article 1 MN 6), this has been justified on the ground that multiple-entry visas ‘should not be limited to specific travel purposes or categories of applicants’, although Member States are expected to ‘have particular regard for persons travelling for the purpose of exercising their profession such as business people, seafarers, artists and athletes’.181 Visa facilitation agreements between the EU and third countries cover the specific categories previously included in Article 24(2c), as well as additional categories, providing, inter alia, for more generous rules on multiple-entry visas than the Visa Code.182 4 By virtue of the conditionality mechanism in Article 25a, introduced to further strengthen the legal link between visa policy and cooperation on readmission by third countries, the application of Article 24(2) and (2c) can be temporarily suspended in relation to applicants or categories of applicants who are nationals of countries which are considered as uncooperative in the field of readmission, in accordance with a Council implementing decision adopted under Article 25a(5)(a). The conditionality mechanism in Article 25a also creates the possibility for the Council, in the case a third country is considered as cooperating sufficiently in the field of readmission, to adopt an implementing decision whereby applicants or categories of applicants who are nationals of that country will benefit from an increase in the period of validity of multiple-entry visas under Article 24(2).

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 (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 181 182

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Art. 25

Chp. 3

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.

Scope .................................................................................................................. Rights of appeal............................................................................................... Does Article 25 establish an obligation to issue LTV visas?................. Statistics on LTV visas...................................................................................

mn. 1 4 5 6

I. Scope As seen above, once the examination of the visa application under Article 21, and 1 where applicable Article 22, is completed, Article 23 envisages four possible decisions, including the issuing of a limited territorial validity (LTV) visa under Article 25, defined in Article 2 as ‘a visa valid for the territory of one or more Member States but not all Member States’. One question that arises is whether Article 25(1), in light of the use of the term ‘shall’, has the effect of precluding the Member States from issuing uniform visas in all the cases that it lists. As Peers points out, such an interpretation is possible only if the cases listed in Article 25(1) correspond to the grounds for visa refusal in Article 32(1), since the ECJ has clarified, in Koushkaki, that the grounds for refusing a visa in Article 32(1) are exhaustive to the effect that no further grounds can be added.183 This interpretation is supported by the reference in Article 32(1) to Article 25(1). Accordingly, the purpose of Article 25(1) appears to be to establish derogations from Article 32(1). Article 25(1)(a)(i) provides for the issuing of an LTV visa when the entry conditions in Article 6 of the Schengen Borders Code Regulation (EU) 2016/399 are not fulfilled, with such entry conditions corresponding to the grounds for visa refusal under Article 32(1). Article 6(1)(a) of the Schengen Borders Code Regulation (EU) 2016/399 establishes, however, additional requirements in relation to the temporal validity of the travel document which are not mentioned in Article 32(1), but which are set out in Article 12 and constitute conditions for the admissibility of the visa application under Article 19. In this context, the situation is unclear in relation to the case of an application that is inadmissible, because the visa applicant’s travel document does not meet the temporal validity requirements in Article 12, but is nevertheless considered admissible under Article 19(4) on humanitarian grounds, for reasons of national interest or because of international obligations.184 The Visa Code is not clear as to whether a uniform visa or an LTV visa should be issued in these circumstances. The uncertainty results from the fact that the only ground for refusing a uniform visa in 183 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum, p. 251, 261. ECJ, Koushkaki, C-84/12, EU:C:2013:862. 184 As regards entry in such circumstances, see Article 6(5)(c) of the Schengen Borders Code Regulation (EU) 2016/399.

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Chp. 3 Art. 25

Visa Code Regulation (EC) No 810/2009

relation to the applicant’s travel document which is mentioned in Article 32 relates to the document’s genuineness, as emphasized by the ECJ in Air Baltic Corporation.185 Indeed, although Article 21, on verification of entry conditions, provides that it shall be ascertained whether the applicant fulfils the entry conditions set out in Article 6 of the Schengen Borders Code Regulation (EU) 2016/399, the Article only specifically refers, in relation to the travel document of the visa applicant, to an examination of its genuineness. On the other hand, Article 24, on determining the period of validity of a uniform visa and the length of the authorised stay in any given case, refers to the obligation for the visa applicant to satisfy all entry conditions in the Schengen Borders Code Regulation (EU) 2016/399, including those in Article 6(1)(a) in order to be issued with a multiple-entry visa. In the same way, Article 35, on the issuing of visas at the border, establishes that visas may be issued at the border provided, inter alia, that the applicant fulfils the entry conditions in Article 6 of the Schengen Borders Code Regulation (EU) 2016/399. 2 Article 25(1)(a)(ii) cover cases where a visa would be refused under Article 32(i)(a) (vi) on the ground that the visa applicant is considered a threat to a fundamental interest of a Member State. This is so as the purpose of prior consultation under Article 22 is to establish that a visa applicant is not considered to be a threat to public policy, internal security or public health or to the international relations of any Member State (see Article 22 MN 1). In this context, Article 25(1)(a)(iii) is more problematic as it covers circumstances where prior consultation is not carried out because of urgency so that, strictly speaking, the visa applicant cannot be considered a threat to a Member State as required by Article 32(i)(a)(vi). In this context, it needs to be clarified that, consistently with the interpretation of the purpose of Article 21 by the ECJ in Koushkaki (see Article 21 MN 1), prior consultation under Article 22 is a means to establish whether a ground for visa refusal exists and not, in itself, a condition for issuing a uniform visa. However, in order to avoid a situation where Article 22 is devoid of meaning and given that the Visa Code pursues, inter alia, security objectives and, for this purpose, leaves to the Member States a wide discretion in assessing whether a third country national poses a threat,186 it could be argued that Article 32(i)(a)(vi) requires that for a uniform visa to be issued prior consultation, when required, is carried out. In this context, Article 25(1)(a)(iii) provides some flexibility by stating that, when prior consultation is not possible, an LTV visa is to be issued providing the relevant conditions are met. Article 25(1)(b) covers visa refusal, under Article 32(1)(a)(iv), in the case of a visa applicant who has already stayed for 90 days in a given 180-day period. Although the general purpose of Article 25(1) is to establish derogations from Article 32(1), Article 25(1) does not expressly provide for the issuing of an LTV visa in the case when a uniform visa is refused, in accordance with Article 32(1)(a)(vii), because the visa applicant does not provide proof of holding travel medical insurance. This is the result of the fact that Article 25(1)(a)(1) refers to the entry conditions in the Schengen Borders Code Regulation (EU) 2016/399, which do not include travel medical insurance, rather than the conditions for refusing a visa in Article 32 (see MN 1). The situation is the same for LTV visas issued at the border under Article 35(4). On the other hand, travel medical insurance may be waived in case of (uniform) visas issued at the border under Article 35(2). Furthermore, Article 15(3) establishes travel medical insurance requirements specifically in relation to LTV visas covering the territory of more than one Member State. 185 186

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LTV visas issued under Article 25(1) are normally valid for the territory of the issuing 3 Member State only. Article 25(4) and 5 provides for data relating to LTV visas to be entered into the VIS and for information to be exchanged through the VISMail communication network in accordance with Article 10(da) and Article 16(3) of the VIS Regulation.187 Article 25(3) provides rules for the issuing of LTV visas in cases where a travel document is not recognised by one or more Member States. Article 2(7) defines ‘recognised travel document’, and the list of such documents is drawn pursuant to Decision 1105/2011/EU (see Article 12 MN 2). The list is incorporated in the VIS to enable automatic verification.188 Recital 30 of the Visa Code clarifies that the conditions governing the issue of visas do not affect the rules currently governing recognition of the validity of travel documents.

II. Rights of appeal On the basis of Article 23, it is unclear whether an applicant who is refused a uniform 4 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, from the perspective of Article 47 CFR, 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 and a consequent right to an LTV visa.

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 5 MN 6) can be applied by analogy to Article 25(1), particularly in light of the use of the term ‘shall’, to the effect that applicants who satisfy the relevant conditions for the issuing of LTV visas in Article 25(1) are entitled to such visas.189 The purpose of Article 25(1) appears to be to regulate derogations by the Member States from Article 32(1) and the term ‘exceptionally’, in this context, may be taken to refer to the obligation to approach derogations narrowly. Subject to the requirement of a narrow approach, the conditions for issuing an LTV visa in Article 25(1) are vaguely formulated and appear to leave a high degree of discretion to the Member States, by providing that LTV visas shall be issued ‘when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. The result is that it would be extremely difficult for an individual to challenge a decision to refuse an LTV visa, particularly when no procedural shortcomings are evident. However, as Peers points out, the situation is different when international obligations are involved as ‘arguably, the binding nature of the relevant international obligations, … override[s] the discretion 187

Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS). See Article 1(6) and (11) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/ 633/JHA, for the purpose of reforming the Visa Information System. 189 Peers, ‘External processing of applications for international protection in the EU’, EU Law Analysis Blog of 24 April 2014, available at: http://eulawanalysis.blogspot.co.uk/2014/04/last-autumns-huge-lossof-lives-near.html [last accessed 06 April 2021]; Jensen, Humanitarian Visas, p. 16–17; ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 47–55. 188

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suggested by the words “considers it necessary”’.190 In this context, it is recognised that while 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.191 Before the judgements of the ECtHR in M. N. and Others v. Belgium and the ECJ in X and X (see Article 1 MN 11), in the context of the use of visas as an interdiction measure, a question which emerged with particular force was whether the prohibition of refoulement in instruments such as the Geneva Convention, the ECHR and the CFR was applicable to such extraterritorial settings as the issuing of visas, in which case LTV visas could be used by the Member States to fulfil such obligations.192 In M. N. and Others v. Belgium, the ECtHR was called to clarify whether Belgium was in breach of Article 3 ECHR by refusing humanitarian visas to a family from Syria who intended to enter Belgium to claim asylum. The ECtHR found that in the circumstances of the case Belgium did not exercise jurisdiction over the visa applicants within the meaning of Article 1 ECHR and could therefore not be held liable for acts or omissions allegedly constituting a breach of the Convention. The Court reiterated that jurisdiction within the meaning of Article 1 ECHR is primarily territorial. While jurisdiction may exceptionally be exercised extraterritorially, that requires a finding that the state has in the circumstances of the case exercised a certain degree of authority or control over the individuals concerned.193 This was found by the Court not to be so in relation to the visa refusal decision in the case.194 Furthermore, the Court found that there was no other ‘jurisdictional link’ between the applicants and Belgium as it could have resulted if the applicants had pre-existing ties of family or private life with Belgium.195 In such a situation, the general impression is that LTV visas are generally accessible by individuals only through special channels controlled by the Member States (see Article 8 MN 3).

IV. Statistics on LTV visas 6

No comprehensive statistics are available on the number of LTV visas issued for the period since the Visa Code entered into force. Generally, the number of LTV visas 190 Peers, ‘External processing of applications for international protection in the EU’, EU Law Analysis Blog of 24 April 2014, available at: http://eulawanalysis.blogspot.co.uk/2014/04/last-autumns-huge-lossof-lives-near.html [last accessed 06 April 2021]; Jensen, Humanitarian Visas, p. 20. 191 For an overview of the international obligations in the context of visas, see Meloni, Visa Policy, p. 7–24. 192 This question has been considered in great depth by scholars. See for example Noll, Seeking Asylum; Goodwin-Gill/McAdam, The Refugee, p. 244–252; Lauterpacht/Bethlehem, in Feller/Türk/Nicholson (eds), Refugee Protection, p. 109–128; Hathaway, The Rights of Refugees, p. 160–171; den Heijer, Europe and Extraterritorial Asylum, p. 120–141; 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. 315–364; Moreno Lax, Accessing Asylum, p. 247–394. On national courts’ attitudes 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. On domestic cases relating to visa/entry refusal interfering with ECHR’s rights see, for example, 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; UK Supreme Court, Judgment of 12 November 2014, R (Lord Carlile of Berriew) v. Secretary of State for the Home Department [2014] UKSC 60; and UK Supreme Court, Judgment of 26 February 2021, R (Begum) v. Secretary of State for the Home Department [2021] UKSC 7. 193 ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 98–108. 194 ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 118–119. 195 ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 109 and 115.

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issued by the Member States is very low, with 0.76 % visa applicants receiving LTV visa in 2019.196 LTV visas are issued primarily to bypass the prior consultation procedure in Article 22.197 However, before the ECJ judgment in X and X (Article 1 MN 11), some Member States also used to issue LTV visas to family members who did not meet the legal requirements for family reunion and to asylum seekers in certain circumstances,198 with 16 Member States having available Schengen visas for such humanitarian purposes.199

Article 25a Cooperation on readmission 1. Depending on the level of cooperation of a third country with Member States on the readmission of irregular migrants, assessed on the basis of relevant and objective data, Article 14(6), Article 16(1), point (b) of Article 16(5), Article 23(1), and Article 24(2) and (2c) shall not apply to applicants or categories of applicants who are nationals of a third country that is considered not to be cooperating sufficiently, in accordance with this Article. 2. The Commission shall regularly assess, at least once a year, third countries’ cooperation with regard to readmission, taking account, in particular, of the following indicators: (a) the number of return decisions issued to persons from the third country in question, illegally staying on the territory of the Member States; (b) the number of actual forced returns of persons issued with return decisions as a percentage of the number of return decisions issued to nationals of the third country in question including, where appropriate, on the basis of Union or bilateral readmission agreements, the number of third country nationals who have transited through the territory of the third country in question; (c) the number of readmission requests per Member State accepted by the third country as a percentage of the number of such requests submitted to it; (d) the level of practical cooperation with regard to return in the different stages of the return procedure, such as: (i) assistance provided in the identification of persons illegally staying on the territory of the Member States and in the timely issuance of travel documents; (ii) acceptance of the European travel document for the return of illegally staying third-country nationals or laissez-passer; (iii) acceptance of the readmission of persons who are to be legally returned to their country; (iv) acceptance of return flights and operations. Such an assessment shall be based on the use of reliable data provided by Member States, as well as by Union institutions, bodies, offices and agencies. The Commission shall regularly, at least once a year, report its assessment to the Council.

196 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 2021]. 197 Commission Staff Working Document, SWD(2014) 101 final, p. 24; Meloni, The Community Code, p. 684. 198 See ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 50–51. 199 Jensen, Humanitarian Visas, p. 6.

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3. A Member State may also notify the Commission if it is confronted with substantial and persisting practical problems in the cooperation with a third country in the readmission of irregular migrants on the basis of the same indicators as those listed in paragraph 2. The Commission shall immediately inform the European Parliament and the Council of the notification. 4. The Commission shall examine any notification made pursuant to paragraph 3 within a period of one month. The Commission shall inform the European Parliament and the Council of the results of its examination. 5. Where, on the basis of the analysis referred to in paragraphs 2 and 4, and taking into account the steps taken by the Commission to improve the level of cooperation of the third country concerned in the field of readmission and the Union’s overall relations with that third country, including in the field of migration, the Commission considers that a country is not cooperating sufficiently and that action is therefore needed, or where, within 12 months, a simple majority of Member States have notified the Commission in accordance with paragraph 3, the Commission, while continuing its efforts to improve the cooperation with the third country concerned, shall submit a proposal to the Council to adopt: (a) an implementing decision temporarily suspending the application of any one or more of Article 14(6), point (b) of Article 16(5), Article 23(1), or Article 24(2) and (2c), to all nationals of the third country concerned or to certain categories thereof; (b) where, following an assessment by the Commission, the measures applied in accordance with the implementing decision referred to in point (a) of this paragraph are considered ineffective, an implementing decision applying, on a gradual basis, one of the visa fees set out in Article 16(2a) to all nationals of the third country concerned or to certain categories thereof. 6. The Commission shall continuously assess and report on the basis of the indicators set out in paragraph 2 whether substantial and sustained improvement in the cooperation with the third country concerned on readmission of irregular migrants can be established and, taking also account of the Union’s overall relations with that third country, may submit a proposal to the Council to repeal or amend the implementing decisions referred to in paragraph 5. 7. At the latest six months after the entry into force of the implementing decisions referred to in paragraph 5, the Commission shall report to the European Parliament and to the Council on progress achieved in that third country’s cooperation on readmission. 8. Where, on the basis of the analysis referred to in paragraph 2 and taking account of the Union’s overall relations with the third country concerned, especially in cooperation in the field of readmission, the Commission considers that the third country concerned is cooperating sufficiently, it may submit a proposal to the Council to adopt an implementing decision concerning applicants or categories of applicants who are nationals of that third country and who apply for a visa on the territory of that third country, providing for one or more of the following: (a) reduction of the visa fee referred to in Article 16(1) to EUR 60; (b) reduction of the time within which decisions on an application referred to in Article 23(1) are to be made to 10 days; (c) increase in the period of validity of multiple-entry visas under Article 24(2). That implementing decision shall apply for a maximum of one year. It may be renewed.

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I. Drafting history and objectives Article 25a provides a ‘legal link’ between visa policy and readmission by establishing 1 a mechanism through which visa procedures may be adapted, though a Council’s decision, in response to the level of cooperation by third countries in the field of readmission. The idea of using visa policy to exert pressure on third countries to cooperate on migration management, effectively externalising migration control to some extent, has been around for a long time at EU level.200 Some of the Member States themselves have experienced such pressure from third countries including the United States and Canada.201 Evidently, conditionality is inherent in the EU visa policy at a very basic level in light of the criteria for adopting the ‘black’ and ‘white’ lists under the Visa List Regulation (EU) 2018/1806. However, over time, the EU has attempted to develop conditionality in the field of visa policy into more articulate forms. Thus, it has concluded several visa facilitation agreements with third countries in exchange for the conclusion of readmission agreements, has established visa liberalization roadmaps, action plans and ‘visa dialogues’ with several third countries, and has adopted the suspension mechanism in Article 8 of the Visa List Regulation (EU) 2018/1806, which has contributed to pave the way politically for visa free status for countries such as Ukraine and Moldova.202 With the objective of achieving an effective common policy on return acquiring 2 increasing prominence,203 and the necessity to secure readmission by third countries for this purpose,204 the EU has been considering further ways to exert pressure on third countries to cooperate on readmission, through measures in the field of visa policy and other policy fields.205 In May 2017 the Council adopted the so called ‘visa policy toolbox’. This was a mechanism led by COREPER to coordinate the Member States’ discretion under the Visa Code so that it would be used in a way to incentivise third countries to cooperate on readmission. Accordingly, it established some indicators to measure cooperation, which were very similar to those in Article 25a, and a set of measures that the Member States would take incrementally in relation to non-cooperative third countries, starting with suspending the visa waiver or visa fee waiver for holders of diplomatic passports, and continuing with measures of general application such as reducing the opening hours of the visa sections of consulates or closing them altogether, including external service providers, increasing the number of supporting documents required or varying the length of validity of multiple-entry visas.206 It is unclear to what extent the ‘visa policy toolbox’ was a response to the unwillingness of some third countries to conclude readmission agreements with the EU in exchange for visa facilitation agreements. Progress in negotiations with countries in the southern 200

Meloni, Visa Policy, p. 179–183. Commission Communication, COM(2017) 227 final, p. 4; Meloni, EU Visa Policy, p. 657–661. 202 Meloni, EU Visa Policy, p. 654–657; on the wider context of mobility partnerships and the subsequent Mobility Partnership Framework, see Tittel-Mosser, Implementing EU Mobility. 203 Commission Communication, COM(2020) 609 final, para 2.5. 204 See Commission Communication, COM(2020) 609 final, para 6.5; Commission Communication, COM(2021) 56 final. 205 See draft Article 7 proposal for an Asylum and Migration Management Regulation, COM(2020) 610 final, whereby the assessment under Article 25a could also contribute to the process of identifying incentives in policy areas beyond visas to improve cooperation on readmission. 206 See Council doc. 9097/17 of 12 May 2017; Council doc. 9097/1/17 REV 1 of 19 May 2017, available at: https://www.statewatch.org/media/documents/news/2017/jul/eu-council-diplomstic-visas-redmin-9097rev-1-17.pdf [last accessed 1 April 2021]. 201

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neighbourhood, such as Morocco, Tunisia and Jordan, has been limited, as these countries consider that readmission agreements are not in their interest and that the visa facilitations offered by the EU are not substantial enough to justify concessions in this area.207 The ‘visa policy toolbox’ was used only once against a third country in September 2017. Arguably, it is doubtful whether the mechanism was compatible with the Visa Code, but also whether it was capable of bringing about effective coordination of the Member States’ practices. 3 In the context of the Commission 2014 recast proposal, the Council proposed to give the ‘visa policy toolbox’ a legal basis in the Visa Code. Subsequently, amending Regulation (EU) 2019/1155 introduced Article 25a, with some variations from the original proposal following a Franco-German initiative.208 Article 25a establishes a central role for the Council. Accordingly, it is the Council rather than the Commission that will adopt the relevant implementing decisions, in accordance with Article 291(2) TFEU, on account of the sensitive political nature of the measures in question and their horizontal implications for the Member States and the Union, particularly in terms of external relations and the functioning of the Schengen area.209 Similarly, under Article 25a(5), a simple majority of the Member States may trigger a Commission proposal for a Council implementing decision. A second change from the original proposal, which was also supported by the European Parliament, is the possibility of introducing visa facilitations for nationals of third countries which are considered cooperative under Article 25a(8). Article 25a(2) establishes indicators to assess the level of cooperation in readmission by third countries. These are very similar to the indicators that were envisaged by the ‘visa policy toolbox’. The EU’s overall relations with the third country, including in the field of migration, will also be taken into account under Article 25a(5). However, these indicators are very vague. Unlike in the case of the indicators used in the suspension mechanism of the Visa List Regulation (EU) 2018/1806, there are no numerical benchmarks, including for the quantitative indicators.210 It is also unclear how the data are to be collected. Furthermore, as the Commission itself has stated, in relation to the quantitative indicators, ‘those figures have to be taken with some caution as they do not reflect exclusively the willingness of third countries to cooperate on returns’. They also reflect the obstacles that the Member States encounter in carrying out returns as they result from their legal and administrative frameworks, which the Commission means to tackle in its proposals aimed at closing the ‘gaps between asylum and return procedures’.211 4 As was the case under the ‘visa policy toolbox’, Article 25a envisages the adoption of restrictive measures against nationals or categories of nationals of the third country deemed uncooperative incrementally, starting with the suspension of one or more visa facilitations in relation to supporting documents, visa fee waiver for diplomatic passports, time limits to decide on applications and multiple-entry visas, and continuing, if necessary, with a gradual increase of the visa fee. As the Commission has stated there is however ‘no hard evidence on how visa leverage can translate into better cooperation of third countries on readmission’.212 On the other hand, the use of the mechanism can have a negative impact on the EU’s image and external relations, as well as penalising 207 Commission Staff Working Document, SWD(2018) 77 final, p. 38. For an in-depth analysis see Carrera et al., EU-Morocco Cooperation. On ‘reversed conditionality’ in the case of Morocco, see also Tittel-Mosser, Implementing EU Mobility, p. 65–66, 83, 169–185. 208 Council doc. 8526/1/18 REV 1 of 4 May 2018. 209 Recital 4, Regulation (EU) 2019/1155 (OJ 2019 L 188/25). 210 See Article 8(2) and Recitals 23–24 Visa List Regulation (EU) 2018/1806. 211 Proposal for a recast return directive, COM(2018) 634 final, and amended proposal for an asylum procedures regulation, COM(2020) 611 final. 212 Commission Staff Working Document, SWD(2018) 77 final, p. 31.

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individuals. In this context, it is believed that the negative incentives will have a deterrent effect and will thus be applied in a limited number of cases.213 Moreover, the EU aims to coordinate more effectively positive and negative incentives in additional policy areas, such as development cooperation, trade, investments and education, particularly within the context of the existing partnerships – a move which has given rise to some concerns relating to the effect of diverting policy objectives.214 The Commission presented its first systematic assessment of cooperation with third countries on readmission in February 2021, focusing on 39 visa-bound countries, selected on the basis of over 1,000 return decisions issued by Member States to their nationals in 2018. The assessment considers return data provided by Member States and Eurostat for 2019 and information extracted from Member States through a questionnaire on cooperation including the ‘bureaucratic obstacles’ that Member States face in relation to identification procedures, the issuing of travel documents, acceptance of returns by charter flights, refusals of non-voluntary returnees, etc. In this context, where applicable, the report assesses the effectiveness of EU readmission agreements, bilateral readmission arrangements, Readmission Case Management Systems (RCMSs), which are electronic platforms funded by the EU in third countries to assist with identification, including by comparing biometric data, and from which travel documents can be printed directly, and European Return and Migration Liaison Officers (EURLOs).215 As a result of this first assessment, the Commission has identified over 13 countries with which cooperation is poor, and in relation to which a series of steps will be taken in accordance with Article 25a.216 Following the Commission report, the Presidency invited the Member States to debate the establishment of a list of non-cooperative third countries. In this context, some Member States had wished for clearer conclusions from the Commission on which third countries assessed should be considered as not cooperating sufficiently. In fact, different Member States have proposed different criteria to determine which third countries should be further examined, including relevance for frontline Member States, significance of case load, non-cooperation on forced returns, and past failed attempts to improve cooperation. The Presidency also invited the Member States to agree on a deadline for the period during which the Commission should attempt to improve the level of cooperation of the third countries on the list, which Article 25a does not provide for.217

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.

213

Commission Staff Working Document, SWD(2018) 77 final, p. 38. See draft Article 7 proposed Asylum and Migration Management Regulation, COM (2020)610 final; Commission Communication, COM(2020) 609 final, para 6.5; Commission Staff Working Document, SWD(2018) 77 final, p. 26; Commission Communication, COM(2016) 385 final. 215 Commission Report, COM(2021) 55 final, available at: https://www.statewatch.org/media/2297/eucom-readmission-report-on-cooperation-restricted-com-2021-55-final.pdf [last accessed 13 April 2021]. 216 Commission Communication, COM(2021) 56 final, p. 10. 217 Council doc. 6583/21 of 5 March 2021, available at: https://www.statewatch.org/media/2298/eucouncil-readmission-assessment-presidency-discussion-paper-6583-21.pdf [last accessed 13 April 2021]. 214

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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.

Article 27 Filling in the visa sticker […]

Article 28 Invalidation of a completed visa sticker […]

Article 29 Affixing a visa sticker […]

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. Border controls however must be proportionate to the objectives pursued under Article 7(1) and Recital 7 of the Schengen Borders Code Regulation (EU) 2016/399.218 Moreover, under Article 34(4) failure to produce 218

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See ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 55.

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one or more supporting documents at the border shall not automatically lead to a decision to annul or revoke a visa.

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 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 at the latest 25 calendar days before it becomes applicable. That information shall also be given under local Schengen cooperation in the jurisdiction concerned. 3. The Commission shall inform Member States of such notifications. Article 31 establishes the ‘ex-post notification’ procedure. Under this procedure 1 individual Member States may require to be informed about visas issued to nationals of specific third countries or to specific categories of such nationals. This procedure can therefore be seen as an alternative to the prior consultation procedure under Article 22, where Member States are consulted before a visa is issued. It was expected that the ex-post notification procedure would eventually supplant the prior consultation procedure, but this has not happened. Currently, there are 65 third countries on the ex-post notification list, involving exchange of information on an extremely high number of visas.219 The Commission points out that, while the consequences of expost notification are not settled by the Visa Code (unlike for prior consultation), it appears that following ex-post notification some Member States tend to annul or revoke visas issued by other Member States.220 Article 16 of the VIS Regulation (EC) No 767/2008 has recently been amended to provide for the use of VISMail to transmit information under this procedure.221

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; (iia) does not provide justification for the purpose and conditions of the intended airport transit; (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

219 The list is available at: https://ec.europa.eu/home-affairs/sites/default/files/e-library/documents/ policies/borders-and-visas/visa-policy/docs/201712_ex_post_information_en.pdf [last accessed 13 April 2021]. 220 Commission Staff Working Document, SWD(2014) 101 final, p. 21. 221 Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS).

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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 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 in the language of the Member State that has taken the final decision on the application and another official language of the institutions of the Union. 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. 5. Information on a refused visa shall be entered into the VIS in accordance with Article 12 of the VIS Regulation. Content I. Grounds for visa refusal ................................................................................ 1. Derogations under Article 25(1) and human rights obligations ..... 2. Differences between the grounds for visa refusal and the entry conditions under the Schengen Borders Code..................................... 3. SIS alerts and public policy and internal security as grounds for exclusion ....................................................................................................... II. The right to a visa and discretion in the factual assessment................ III. Notification of visa refusal and the right of appeal ................................

1

mn. 2 2 3 4 6 7

Once a visa application is considered admissible under Article 19, it will be examined in accordance with Article 21, and Article 22 when applicable, in view of reaching one of the decisions listed in Article 23(4). Article 32 regulates the decision to refuse the visa.

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I. Grounds for visa refusal 1. Derogations under Article 25(1) and human rights obligations Article 32(1) lists the grounds under which uniform visa ‘shall’ be refused by the 2 competent authorities of the Member States (see Article 35 in relation to refusing visas at the external border). Article 32(1) is without prejudice to Article 25(1) whereby limited territorial validity visas can be issued by the Member States exceptionally in certain situations (see Article 25 MN 1–2). In the light of the ECJ judgement in X and X v. Belgium (see Article 1 MN 11) and the ECtHR judgement in M. N. and Others v. Belgium (see Article 25 MN 5) in particular, the circumstances where human rights obligations require a Member State to issue a visa to an individual appear very limited.222

2. Differences between the grounds for visa refusal and the entry conditions under the Schengen Borders Code While the grounds for refusing a visa in Article 32(1) echo the entry conditions listed 3 in Article 6(1) of the Schengen Borders Code Regulation (EU) 2016/399, there is no reference in Article 32(1) to possession of a ‘valid travel document’, as envisaged by Article 6(1) of the Schengen Borders Code Regulation (EU) 2016/399, but rather Article 32(1)(a)(i) focuses exclusively on the genuineness of the travel document.223 Possession of a valid travel document, which is defined in Article 12, is treated by the Visa Code as one of the conditions for the visa application to be considered admissible in the first place under Article 19 (see Article 25 MN 1). Furthermore, the Visa Code includes lack of proof of holding travel medical insurance as a ground for visa refusal. However, proof of holding travel medical insurance is not a requirement for entry under the Schengen Borders Code Regulation (EU) 2016/399 and, according to the Commission, it is not checked at the external border (see Article 15 MN 1 and Article 25 MN 2).

3. SIS alerts and public policy and internal security as grounds for exclusion Article 32(1)(a)(v) and (vi) establishes two grounds for visa refusal which are 4 particularly relevant for the implementation of the principle of mutual recognition of the Member States’ decisions to exclude third country nationals from their territories based on public policy and internal security. Article 32(1)(a)(v) requires visa refusal when an applicant is the subject of a SIS alert for refusing entry. Under Article 24 of the Regulation on the use of the SIS in border checks,224 the Member States are required to enter alerts in the SIS for the purpose of refusing entry to a third country national in two situations. The first situation is when a national decision to refuse entry has been taken, following an individual assessment, on the ground that the presence of the third country national on the national territory poses a threat to public policy, public security or national security. This situation arises in three sets of circumstances: where a third country national has been convicted of an offence carrying a penalty of deprivation of liberty of at least one year; where there are serious grounds for believing that she has 222 See also ECtHR, Judgment of 2 February 2010, No 964/07, Dalea v. France, where a claim that exclusion from the Member States resulting from a SIS alert constituted an interference with private life was considered inadmissible, with the ECtHR further remarking that in the area of entry regulation, States have a broad margin of appreciation in taking measures to secure protection against arbitrariness. 223 ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 35. 224 Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks.

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committed a serious criminal offence or clear indications of an intention to do so; and finally, under Article 24(2)(c), where a third country national has circumvented, or attempted to, Union or national law relating to entry and stay. The second situation where a Member State is required to enter an alert in the SIS, under Article 24(1)(b) of the Regulation on the use of the SIS in border checks,225 is when an entry ban has been issued to a third country national in accordance with the Return Directive 2008/115/ EC.226 Furthermore, under Article 25 of the Regulation on the use of the SIS in border checks, alerts in the SIS must also be entered by the Member State holding the Presidency of the Council to give effect to entry/visa sanctions adopted under the Common Foreign and Security Policy.227 While the grounds for entering SIS alerts appear vague and very broad, such alerts and the underlying decisions must observe fundamental rights, be based on an individual assessment, comply with the principle of proportionality and satisfy procedural safeguards including the right to be given reasons for the decision and the right to be heard which may be subject to limitations (see below MN 8).228 5 Article 32(1)(a)(vi) appears to cover cases which are outside the scope of Article 32(1) (a)(v) and it is implemented through the prior consultation procedure in Article 22 (and the ex-post notification procedure in Article 31). The meaning of ‘a threat to public policy’ or ‘internal security’ as a ground to exclude third country nationals under various EU instruments regulating entry and stay in the Member States has gradually been clarified by the ECJ.229 According to the Court, although the Member States essentially remain free to determine their public policy and internal security needs, in the European context, such needs cannot be determined unilaterally.230 On the other hand, the Court has provided no uniform interpretation of these concepts under the various EU instruments, but rather has construed them under each instrument taking into account the wording of the relevant provisions, the context, the objectives of the instrument and the degree to which the instrument concerns the fundamental rights of third country nationals.231 Within the contexts of the Return Directive 2008/115/EC, the former Asylum Qualification Directive 2004/83/EC and the Asylum Reception Conditions Directive 2013/33/EU, ‘a threat to public policy’ or ‘internal security’ have been interpreted by the ECJ by analogy with similar provisions in the Free Movement 225

Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks. The relationship between Article 24(2)(c) and Article 24(1)(b) of Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks, is unclear. Arguably, the former is meant to cover cases outside the scope of the Return Directive 2008/115/EC by virtue of Article 2(2) of the Directive or because there is no ‘illegal stay’. This could be the case, for example, when the third country national is not within the Member State’s territory. Indeed, the Visa Handbook II for the administrative management of visa processing and local Schengen cooperation recommends the use of the SIS, as opposed to reliance on ‘local’ visa bans, when a Member State wishes to prevent the issuing of a visa to a given third country national, Commission Implementing Decision, C(2020) 1764 final para 1.2. Under Article 3 Regulation (EU) 2018/1860 (OJ 2018 L 312/1) on the use of the SIS for returns, return decisions are also generally recorded in the SIS. 227 Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks. In this context, see the EU global human rights sanctions regime, particularly Article 2 of Council Decision (CFSP) 2020/ 1999 (OJ 2020 L 410/I/13) on restrictive measures against serious human rights violations. 228 See, in particular, Articles 21 and 24(1)(a) Regulation (EU) 2018/1861 (OJ 2018 L 312/14) on SIS in the field of border checks; Recital 6 Return Directive 2008/115/EC; ECJ, Boudjlida, C-249/13, EU: C:2014:2431, paras 40 and 43; ECJ, G & R, C-383/13, EU:C:2013:533, paras 33 and 38. 229 See, for example, Thym, A Bird’s Eye, p. 179–183. 230 See, for example, ECJ, Zh. and O., C-554/13, EU:C:2015:377, para 48. 231 See, for example, ECJ, Zh. and O., C-554/13, EU:C:2015:377, paras 42, 47–48; ECJ, T., C-373/13, EU: C:2015:413, para 58; ECJ, N., C-601/15 PPU, EU:C:2016:84, para 49; ECJ, E.P., C-380/18, EU: C:2019:1071, para 31. 226

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Directive 2004/38/EC.232 Accordingly, these concepts are interpreted narrowly, requiring an individual assessment and conformity with the principle of proportionality. A Member State is therefore obliged to carry out a case-by-case assessment and establish whether the third country national’s personal conduct poses a genuine, present risk and sufficiently serious threat affecting one of the fundamental interests of society. Thus, ‘the fact that a third-country national is suspected, or has been criminally convicted of an act punishable as a criminal offence under national law cannot, in itself, justify a finding that that national poses a risk to public policy’.233 On the other hand, in the context of exclusion of a third country national under the Schengen Borders Code Regulation (EU) 2016/399 and the former Students Directive 2004/114/EC, the concepts of a threat to public policy or internal security have been interpreted more broadly by the ECJ. Thus, it is possible for national authorities, under the Directive, to refuse a visa to an applicant when she is considered a potential threat to public security following an assessment taking into account not only her personal conduct but also other elements, such as her profession.234 Similarly, national authorities, under the Schengen Borders Code Regulation (EU) 2016/399, can justify exclusion of a third country national on public policy grounds when she is suspected of having committed a criminal offence. This is subject however to the principle of proportionality whereby the offence of which the third country national is suspected must be sufficiently serious and the evidence on the basis of which she is suspected must be consistent, objective and specific.235 As the ECJ stated, the wide discretion that is accorded to the Member States in the factual assessment of the case means that the judicial review of the assessment is limited to the absence of manifest error, and compliance with procedural safeguards (see below MN 8).236

II. The right to a visa and discretion in the factual assessment In Koushkaki, the ECJ held that the grounds for refusing a uniform visa in Article 32(1) 6 are exhaustive to the effect that if none of them applies to a visa applicant she will be entitled to a uniform visa.237 The Court reached the same conclusion in relation to rights of entry under the Schengen Borders Code Regulation (EU) 2016/399 and the former Student Directive 2004/114/EC.238 Given that the wording of Article 32(1) is inconclusive, the Court based its finding on the context of the provision and the objectives of the Visa Code. In relation to the context of the provision, the Court considered that the grounds for visa refusal listed both in the standard form for notifying applicants of visa refusal in Annex IV and in the VIS application file, are the same as those in Article 32(1). 232 See respectively ECJ, Zh. and O., C-554/13, EU:C:2015:377; ECJ, E, C-240/17, EU:C:2018:8; ECJ, T., C-373/13, EU:C:2015:413; ECJ, N., C-601/15 PPU, EU:C:2016:84; ECJ, Gaydarov, C-430/10, EU: C:2011:749. 233 See, for example, ECJ, Zh. and O., C-554/13, EU:C:2015:377, para 50. 234 ECJ, Fahimian, C-544/15, EU:C:2017:255, para 40. 235 ECJ, E.P., C-380/18, EU:C:2019:1071, paras 46–49. In this context, the Court referred, in para 37, both to Article 21 of the Visa Code which accords a wide discretion to national authorities in the examination of a visa application, and in para 41, to Article 24(2) of Regulation No 1987/2006 (OJ 2006 L 381/1) on the SIS II envisaging a SIS alert in cases where there are serious grounds for believing that a third country national has committed a serious criminal offence. 236 ECJ, Fahimian, C-544/15, EU:C:2017:255, para 46. 237 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 55. 238 Respectively, ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 62; ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, para 27.

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Furthermore, Article 34 allows revocation or annulment of a uniform visa by a Member State other than the Member State that issued the visa, presupposing that the conditions for issuing a uniform visa are harmonised. The Court also emphasised that the objectives of the Visa Code, including establishing the conditions for issuing uniform visas, facilitating legitimate travel, preventing visa shopping and avoiding the unequal treatment of visa applicants, would be undermined if the grounds for visa refusal were not exhaustive.239 However, although national authorities cannot refuse a visa to an applicant unless one of the grounds for refusal listed in Article 32(1) is applicable,240 the Court stressed that the assessment of the individual position of a visa applicant, with a view to determining whether there is a ground for visa refusal, 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’.241 Accordingly, the competent authorities have a wide discretion in this respect as apparent from the 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’.242 This wide discretion means that judicial review of the visa refusal decision is limited to the absence of manifest error, as far as the assessment is concerned, and compliance with procedural requirements.

III. Notification of visa refusal and the right of appeal 7

The right of appeal against decisions to refuse a visa and the relating right to be notified of the grounds for such decisions in Article 32(2) and (3) were among the most significant innovations originally introduced by the Visa Code.243 They extend to annulment and revocation decisions under 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 4). By virtue of Article 58, these provisions became effective one year after the entry into force of the Visa Code as several Member States needed a transitional period to introduce the necessary domestic changes. Reflecting the principle of national procedural autonomy, Article 32(3) provides that the right of appeal is to be exercised in accordance with national law. National arrangements are however subject to the principles of equivalence and effectiveness and, given that the Visa Code establishes an individual right to a visa when the relevant conditions are fulfilled, to Article 47 CFR on the right to an effective remedy and a fair trial.244 Since Article 47 CFR establishes that everyone is entitled to a hearing by an independent and impartial tribunal, the ECJ has held that Article 32(3) requires that the proceedings applicable in cases of visa refusal must, at a certain stage, guarantee a judicial appeal.245 The ECJ has 239

ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 34–55. ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 55. 241 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 56. 242 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 61. 243 Meloni, The Community Code, p. 690–695. 244 See ECJ, El-Hassani, C-403/16, EU:C:2017:960, para 35–38. On judicial protection as a general principle of EU law see ECJ, Panayotova and Others, C-327/02, EU:C:2004:718. 245 ECJ, El-Hassani, C-403/16, EU:C:2017:960; ECJ, Commission v. Slovak Republic, C-614/18, EU: C:2019:142. In 2013, the Commission initiated formal infringement proceedings against five Member 240

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also confirmed that the personal scope of the right of appeal is not a matter for national law, as it is expressly determined by Article 32(3). Accordingly, only applicants who are refused a visa have a right of appeal.246 Sponsors do not have a right of appeal, although the Visa Code does not preclude national law from authorising the sponsor to intervene in the appeal procedure or allowing the visa applicant to appoint a third party to represent her in court proceedings.247 The ECJ has also confirmed that appeals are conducted against the Member State that has taken the final decision on the application. In cases involving representation, this mean the representing Member State (see Article 8 MN 4).248 With regard to the scope of the review under Article 32(3) of the Visa Code, while it 8 extends to ascertaining whether the decision has a factual basis, given the wide discretion accorded to the Member States in assessing whether an applicant fulfils the conditions for a uniform visa, it is limited to the absence of manifest error. However, the scope of the review also concerns compliance with procedural guarantees, including the obligation to state the reasons for the decision.249 In this respect, the national authorities are required to give a statement of reasons which is sufficient to enable the national court to ascertain whether the factual and legal elements necessary for the exercise of power are fulfilled, and enable the applicant, as well as to defend her rights, ‘to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction’.250 In this context, Recital 15 of amending Regulation (EU) 2019/1155 provides that the notification of the refusal should include detailed information on the reasons for the decision and on the appeal procedure. It also provides that during the appeal procedure, the applicant should be given access to all relevant information on her case, in accordance with national law.251 Article 37(3), as amended, provides that visa applicants’ files are to be kept at least until the end of the appeal procedure. The information on reasons may however be limited where national law provides for restrictions to the right to information to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.252 In such circumstances, whether denial of access to information may constitute an infringement of the rights of the defence and the right to effective judicial protection will depend on the specific circumstances of the case, including the nature of the act in question, the context of its adoption and the legal rules governing

States which did not provide access to a judicial body or had problematic short deadlines or very high fees to lodge an appeal, see Fundamental Rights Agency, Annual Report 2013, p. 70; Fundamental Rights Agency, Annual Report 2012, p. 91–92. 246 In this context, see also ECJ, Mohamad Zakaria, C-23/12, EU:C:2013:24, para 40 (see Article 39 MN 1). 247 ECJ, Vethanayagam, C-680/17, EU:C:2019:627, paras 46–56. 248 ECJ, Vethanayagam, C-680/17, EU:C:2019:627. 249 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, paras 48–51; ECJ, Fahimian, C‐544/15, EU:C:2017:255, paras 45–46. 250 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 43. 251 See also ECJ, YS and Others, C-141/12, EU:C:2014:2081, paras 48 and 57–59. 252 See, for example, Article 12 Return Directive 2008/115/EC; Article 52(2) Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks; and generally Article 23 Regulation (EU) 2016/679 (OJ 2016 L 119/1) on general data protection. The SIS II Supervision Coordination Group reported that the majority of countries do not provide reasons of refusal of SIS access requests, see SIS II Supervision Coordination Group, Report on the exercise of the rights of the data subject in the Schengen Information System (SIS), October 2014, p. 9. See also Commission Report, COM(2020) 779 final, p. 14, where the effective exercise of data subject rights in relation to the SIS and VIS was found constrained by the lack of proper information.

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the matter.253 The court with jurisdiction of review, when necessary, may be able to apply techniques which accommodate legitimate security considerations, on the one hand, and, on the other hand, ‘the need to sufficiently guarantee to an individual respect for his procedural rights’, and to ensure that non-disclosure is limited to what is strictly necessary.254 Appeal rights may be particularly difficult to exercise in practice in cases of representation between Member States (see Article 8 MN 4), and when the visa refusal decision by a Member State is the result of a prior decision to exclude the visa applicant adopted by another Member State, as in cases of prior consultation (see Article 22 MN 2–4) and SIS alerts.255 In this context, the ECJ has clarified some procedural requirements that the Member State formally responsible for refusing the visa must fulfil in order to safeguard the applicant’s rights of defence and to an effective remedy (see Article 22 MN 4).256 9 Visa refusal decisions are communicated to visa applicants via the standard form for notifying and motivating visa refusal decisions in Annex VI. This form consists of a list of pre-defined statements for visa refusal which can be ticked off by national authorities plus an ‘additional remarks’ section and a section to provide information on how the decision can be appealed. The form has been amended by Regulation (EU) 2019/115 so that the reasons for visa refusal, which are now 17, reflects more closely the grounds for refusal in Article 32(1). It remains however doubtful whether these standardised statements are sufficient to form an appeal claim or enable the visa applicant to effectively address the reasons for visa refusal in a fresh visa application. With regard to the use of the (now amended) statement in the standard form stating that ‘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, for example, 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.257 In the case of third country nationals who are family members of EU nationals covered by the Free Movement Directive 2008/34/EC, national authorities have an obligation to provide a fully reasoned refusal listing all specific factual and legal grounds.258 The requirements applicable to visa refusal decisions resulting from prior consultation have also been clarified by the ECJ (see Article 22 MN 4).259

253

ECJ, Commission and Others v. Kadi, C-584/10P, EU:C:2013:518, para 102. ECJ, Commission and Others v. Kadi, C-584/10P, EU:C:2013:518, para 125; ECJ, ZZ, C-300/11, EU: C:2013:363, paras 57 and 69. 255 In this context, Article 54 Regulation (EU) 2018/1861 (OJ 2018 L 312/14) on the SIS in the field of border checks, and Article 38 Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS) provide that a request for access to information may be submitted in any Member States. However, in relation to a SIS alert, it may be necessary for an individual to appeal the underlying decision for the data entry. 256 Furthermore, a SIS alert issued by a Member State against a third country national falling within the scope of the Free Movement Directive 2004/38/EC cannot per se justify the exclusion of such third country national by another Member State, see ECJ, Commission v. Spain, C-503/03, EU:C:2006:74, paras 41 and 53. With regard to prior consultation, see ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU: C:2020:951, para 54. 257 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. 258 Article 30 Free Movement Directive 2004/38/EC; see Visa Handbook, Commission Decision, C (2010) 1620 final, as amended, Part III, para 3.9. 259 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, paras 46 and 52. 254

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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. 7. Information on an extended visa shall be entered into the VIS in accordance with Article 14 of the VIS Regulation. Content I. Scope .................................................................................................................. 1. Extension beyond the maximum 90 days ............................................. 2. Mandatory and discretionary extensions .............................................. 3. Change of status under EU law ..............................................................

mn. 1 2 3 4

I. Scope Article 33 provides rules whereby national authorities ‘shall’ or ‘may’ in certain circum- 1 stances extend the period of validity of a visa and/or the length of the authorised stay. Article 33 applies to situations where a visa holder is within the territory of a Member State. The authorities competent to extend the visa are the authorities of the Member State on whose territory the visa holder is present. Under Article 33(3), generally, the territorial validity of the extended visa will remain the same as that of the original visa, with the Visa Handbook envisaging the possibility of limiting it but not of extending it.260 The provision also implies that the rules on extension apply also to limited territorial validity visas. Apart from fulfilling the conditions in Article 33(1), the visa holder will still have to fulfil the conditions for a visa in Article 32 or Article 25 for an extension. In line with proportion260

Commission Decision, C(2010) 1620 final, as amended, Part V, para 1.5.

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ality, the Visa Handbook presupposes that this is the case by instructing consulates to verify specifically only the conditions relating to sufficient means of subsistence, proof of travel medical insurance and the temporal validity of the travel document, and expressly excluding a repeat of the prior consultation procedure.261

1. Extension beyond the maximum 90 days 2

It is unclear whether Article 33 allows an extension having the effect of prolonging the stay of the visa holder beyond the maximum 90 days in the relevant 180-day period (see Article 1 MN 10–12). The Visa Handbook does not exclude such a possibility by stating that ‘generally, the extension of a visa should not result in a total stay going beyond 90 days in any 180-day period’.262 Furthermore, Article 25(1)(b) provides for the issuing of a limited territorial validity visa, exceptionally, to a visa applicant who has already stayed in the Schengen territory for 90 days during the relevant 180-day period. Third country nationals who do not require Schengen visas under the Visa List Regulation (EU) 2018/1806 are also able to extend their stay beyond the 90-day period in a specific Member State when there is a visa-waiver agreement between that Member State and their country of nationality.263

2. Mandatory and discretionary extensions 3

Under Article 33(1), an extension of the visa is mandatory and free of charge in cases where a visa holder cannot leave the Schengen territory because of force majeure or humanitarian reasons. These terms are defined in the Visa Handbook as covering cases of ‘last minute change of flight schedule by airline’ or ‘sudden serious illness of the person concerned…or sudden serious illness or death of a close relative living in a Member State’.264 On the basis of the judgment of the ECJ in Koushkaki (see above Article 32 MN 6),265 it could be argued that a visa holder has a right to an extension of her visa when these conditions are fulfilled, although Article 33 does not expressly confer a right of appeal against a decision refusing an extension, unlike Article 34 in cases of annulment and revocation of the visa. 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 Visa Code.266

3. Change of status under EU law 4

The sectorial directives establishing rules on conditions of entry and residence for stay exceeding 90 days for certain categories of third country nationals (see Part C Immigration), provide that an application for admission shall, as a general rule, be submitted when the third country national is residing outside the territory of the relevant Member State or is already residing in that Member State. By way of derogation, a Member State may however accept applications from third country nationals who are legally present in its 261

Commission Decision, C(2010) 1620 final, as amended, Part V, paras 1.8 and 1.4. Commission Decision, C(2010) 1620 final, as amended, Part V, para 1.6. 263 Article 20(2) Schengen Implementing Convention (as amended). For a list of the agreements see: https://www.etiasvisa.com/etias-news/eu-bilateral-visa-waiver-agreements [last accessed 10 April 2021]. 264 Commission Decision, C(2010) 1620 final, as amended, Part V, para 1.1. 265 ECJ, Koushkaki, C-84/12, EU:C:2013:862. 266 Commission Decision, C(2010) 1620 final, as amended, Part V, para 1.1. 262

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territory.267 This suggests that only in limited circumstances Schengen visa holders in the territory of a Member State will be allowed to effectively change their status by applying for admission under one of the directives. However, a 2014 Commission Communication on the implementation of the Blue Card Directive 2009/50/EC reported that, with the exclusion of eight Member States, Member States applied the derogation allowing applications when the applicant does not have a valid residence permit but is legally present in the territory of the Member States.268 Accordingly, the Commission proposal for a new Blue Card Directive provided that applications shall be considered ‘either when the third country national concerned is residing outside the territory of the Member State … or when he or she is already legally present in the territory of that Member State’. However, following negotiations between the institutions, the Council agreed a draft compromise package which reverts back to the original wording of the provision.269

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. 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. 267 See Article 7(4) Students and Researchers Directive (EU) 2016/801; Article 10(3) Blue Card Directive 2009/50/EC; Article 5(3) Family Reunification Directive 2003/86/EC; Article 4(1) Single Permit Directive 2011/98/EU. 268 Commission Communication, COM(2014) 287 final, p. 9. 269 Commission Proposal, COM(2016) 378 final, draft Article 9; Council doc. 9042/21 of 21 May 2021, draft Article 10.

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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. Under Article 34(1) of the Visa Code, a visa is to be annulled where there are ‘serious grounds for believing that the visa was fraudulently obtained’. Unjustified deviations from the authorised stay in terms of travel itinerary (see Article 2 MN 1 and Article 24 MN 2) or the taking up of unauthorised employment could constitute such grounds. However, under Article 34(4) failure to produce one or more supporting documents at the border shall not automatically lead to a decision to annul or revoke a visa. Moreover, a high threshold has been applied by some national courts 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.270 Following annulment of the visa, the Returns Directive 2008/115/EC may become applicable,271 with the possibility of an entry ban accompanying a return decision. On the other hand, annulment or revocation of a visa is not a precondition for the visa holder’s stay to be treated as illegal for the purpose of criminal proceedings for assisting illegal immigration. In the case of Vo, the ECJ clarified that the Visa Code does not preclude criminal prosecution for assisting illegal immigration in a situation where the visas obtained fraudulently by those smuggled had not been annulled.272 2 Annulment is mandatory for the Member State that issued the visa and discretionary for other Member States, with an obligation to inform the Member State that issued the visa in case of annulment. In Air Baltic Corporation, the ECJ clarified that the grounds for annulling or revoking a visa under Article 34 are the same as those for visa refusal under Article 32 (and Article 35 in case of visas issued at the border) and are accordingly exhaustive, as clarified by the Court in Koushkaki.273 In Air Baltic Corporation, the Court clarified that 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 the Court indicated, the only ground for annulling a visa which directly concerns the travel document is, pursuant to Article 32(1)(a)(i), the situation in which the travel document presented at the time when the visa was issued was false, counterfeit or forged.274 Article 34(6) and (7) provides for an individual right to be notified of the reasons for visa annulment or revocation and for a right of appeal against such decisions (see above Article 32 MN 7–9). 1

270 Germany, Higher Administrative Court of Saxony, 3rd Senate, 3 B 151/12t, OVG Saxony, cited in Fundamental Rights Agency, Annual Report 2012, p. 94. 271 Under Article 2(2)(a) of the Directive, Member States may decide not to apply the Directive in cases of refusal of entry at the border. 272 ECJ, Vo, C-83/12 PPU, EU:C:2012:202. 273 ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155; ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 42–43. 274 ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 35.

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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; (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. Article 35 is drafted so as to establish a general obligation for the Member States 1 to refuse uniform visas at the external border when Article 35(6) applies, and a discretion to issue such visas under Article 35(1). 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’, however, suggest that the Member States retain discretion to issue uniform visas when these conditions are fulfilled. Furthermore, the condition in Article 35(1)(b) is vague, while the term ‘unforeseeable and imperative reasons’ seems to establish a high threshold. Still, applicants who are Meloni

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refused a visa at the external border have a right to be notified of the reasons for the decision and a right of appeal under Article 35(7). 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) or when the condition in Article 35(1) (b) is not fulfilled by the applicant. However, by virtue of Article 35(2) the requirement, in Article 32(1), that an applicant must be in possession of travel medical insurance may be waived when travel medical insurance is not available at that border crossing point or for humanitarian reasons. Article 35(4) and (5) provides for the possibility for the Member States to issue limited territorial validity visas at the border in accordance with Article 25(1)(a) (but not Article 25(1)(b)) to applicants who do not fulfil the entry conditions in Article 6(1) of the Schengen Borders Code Regulation (EU) 2016/399 (see Article 25 MN 1–2). However, with regard to applicants who are subject to prior consultation in particular, although the issuing of limited territorial validity visas remains exceptionally possible in accordance with Article 25(1)(a), the general rule is that they should not be issued with a visa at the external border. Non-refoulment obligations will also be applicable in relation to third country nationals at the EU external border. 2 Third country nationals who are family members of EU citizens covered by the Free Movement Directive 2004/38/EC and who are subject to the visa obligation under the Visa List Regulation (EU) 2018/1806 will in certain circumstances be able to obtain the visa at the external border. In MRAX, the ECJ held that a third country national who is the spouse of an EU citizen falling within the scope of the Free Movement Directive 2008/34/EC cannot be sent back at the border on the sole ground that he lacks the necessary 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 …’.275 Both in its 2014 recast proposal and in its 2018 proposal for amending the Visa Code, the Commission tried to introduce provisions for specific schemes enabling Member States to issue visas at the external borders with a view to promoting short-term tourism. However, these proposals were not supported by the Council.276 In 2018 the Member States issued 66,000 uniform visas at the external border, with the Netherlands issuing most (14,000), mostly to seafarers in transit under Article 36, and Malta and Sweden issuing none.277

Article 36 Visas issued to seafarers in transit at the external border […]

275

ECJ, MRAX, C-459/99, EU:C:2002:461, para 62. Draft Article 33, Commission Proposals, COM(2014) 164 final, and draft Article 36a, Commission Proposal, COM(2018) 252 final. 277 Statistics are available at: https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/ visa-policy_en [last accessed 5 May 2021]. 276

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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. Any significant loss of blank visa stickers shall be reported to the Commission. 3. Consulates or central authorities shall keep archives of applications in paper or electronic format. Each individual file shall contain the relevant information allowing for a reconstruction, if need be, of the background for the decision taken on the application. Individual application files shall be kept for a minimum of one year from the date of the decision on the application as referred to in Article 23(1) or, in the case of appeal, until the end of the appeal procedure, whichever is the longest. If applicable, the individual electronic application files shall be kept for the period of validity of the issued visa.

Article 38 Resources for examining applications and monitoring visa procedures 1. Member States shall deploy appropriate staff in sufficient numbers in consulates to carry out the tasks relating to the examination of applications, in such a way as to ensure a reasonable and harmonised quality of service to the public. 1a. Member States shall ensure that the entire visa procedure in consulates, including the lodging and handling of applications, the printing of visa stickers and the practical cooperation with external service providers, is monitored by expatriate staff to ensure the integrity of all stages of the procedure. 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 Union and national law.

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3a. Where applications are examined and decided on by central authorities as referred to in Article 4(1a), the Member States shall provide specific training to ensure that the staff of those central authorities have sufficient and updated country-specific knowledge of local socio-economic circumstances, and complete, precise and up-to-date information on relevant Union and national law. 3b. Member States shall also ensure that consulates have sufficient and adequately trained staff for assisting the central authorities in examining and deciding on applications, notably by participating in local Schengen cooperation meetings, exchanging information with other consulates and local authorities, gathering relevant information locally on migratory risk and fraudulent practices, and conducting interviews and additional examinations. 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. 5. Member States shall ensure that a procedure is in place which allows applicants to submit complaints regarding: (a) the conduct of staff at consulates and, where applicable, of the external service providers; or (b) the application process. Consulates or central authorities shall keep a record of complaints and the followup given. Member States shall make information on the procedure provided for in this paragraph available to the public. 1

Article 37 reiterates that the Member States are responsible for organising the visa sections of their consulates. Nevertheless, Articles 37 and 38 contain some obligations for the Member States intended to ensure the quality of the visa service to the public and the integrity of the visa issuing procedure, which have been challenged by lack of resources. Article 38(1a) was introduced by amending Regulation (EU) 2019/1155 and provides an obligation for the Member States to deploy expatriate staff to monitor the visa procedure in consulates, including the practical cooperation with external service providers, to ensure the integrity of the visa issuing procedure. Article 38(3a) and (3b) has also been newly introduced, and responds to concerns that the examination of applications may not be sufficiently thorough in case of centralised decision-making.278 Generally, understaffing and lack of appropriate training have been highlighted as recurring deficiencies by Schengen evaluation reports and Local Schengen Cooperation reports, with concerns in relation to the quality and integrity of the visa examination process.279 Article 38(5) introduces a new obligation for the Member States to have in place a complaint procedure in relation to the conduct of staff at consulates and of external service providers, and in relation to the application process. In a public consultation launched by the Commission in 2013, a third of the 1,084 respondents, representing 17 nationalities, rated consular staff as not friendly. Most respondents found that external service providers were poorly informed and that they refused to accept applications for multiple-entry visas.280 In a subsequent public consultation launched by the Commission in November 2017, involving 1929 respondents from a broad range of nationalities, 23 % of the respondents thought that the visa procedure 278

Commission Report, COM(2020) 779 final, p. 9. Commission Staff Working Document, SWD(2018) 77 final, p. 12–13; Council doc. 13589/20 of 2 December 2020; Commission Report, COM(2020) 779 final, p. 9. 280 see Fundamental Rights Agency, Annual Report 2013, p. 70. 279

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had become worse in recent years, with some remarking that the process was humiliating. The length of the procedure was rated as the most difficult part of the visa application procedure by 26 % of respondents, followed by the total cost of the procedure including the visa fee (24 %) and the requirement to apply in person (24 %).281 The Commission has also received many complaints about the long waiting times for obtaining a visa especially during peak times, which are identified as resulting from consulates lacking sufficient financial and human resources, particularly following cuts and a decrease in consular coverage of 24 % between 2014 and 2018.

Article 39 Conduct of staff 1. Member States’ consulates shall ensure that applicants are received courteously. 2. Consular and central authorities’ 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 and central authorities’ 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 (see Article 21 MN 2).282 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. Under Article 38(5) the Member States have an obligation to have in place a complaint procedure in relation to the conduct of staff at consulates and of external service providers, and in relation to the application process (see above Article 38 MN 1). Furthermore, interpreting Article 39 by analogy with similar provisions in the Schengen Borders Code Regulation (EU) 2016/399, it is apparent from ECJ case law that, while the right of appeal in Article 32 relates exclusively to decisions refusing a visa and does not extend to infringements committed in the procedure leading to the adoption of a decision authorising entry, it is for Member States to provide in their domestic legal system for the appropriate legal remedies to ensure the protection of persons claiming the rights derived from Article 39 in compliance with Article 47 CFR.283

Article 40 Consular organisation and cooperation 1. Each Member State shall be responsible for organising the procedures relating to applications. 2. Member States shall: (a) equip their consulates and authorities responsible for issuing visas at the borders with the requisite material for the collection of biometric identifiers, as well as the offices of their honorary consuls, where they make use of them, to collect biometric identifiers in accordance with Article 42; 281

Commission Staff Working Document, SWD(2018) 77 final, p. 58–59. Articles 1 and 21 CFR. 283 ECJ, Mohamad Zakaria, C-23/12, EU:C:2013:24, para 40. 282

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(b) cooperate with one or more other Member States under representation arrangements or any other form of consular cooperation. 3. A Member State may also cooperate with an external service provider in accordance with Article 43. 4. Member States shall notify to the Commission their consular organisation and cooperation in each consular location. 5. In the event of termination of cooperation with other Member States, Member States shall strive to assure the continuity of full service. 1

Article 40 reiterates that each Member State is responsible for organising the procedures relating to applications. Article 40(2)(b) mandates Member States to cooperate with one or more Member States under representation arrangements or ‘any other form of consular cooperation’, unlike Article 8, regulating representation, which only establishes soft obligations (see Article 5 MN 2). Under Article 8, representation may concern the whole process of examining and deciding on applications, or may be limited to the collection of applications and biometric identifiers. Following amending Regulation (EU) 2019/1155, the term ‘any other form of consular cooperation’ has replaced the reference to co-location and common application centres, and Article 41, which specifically covered these two forms of cooperation, has been deleted. These forms of cooperation proved not to be feasible and were hardly used by the Member States which consider representation under Article 8 and cooperation with external service providers under Article 43 as the cheapest and easiest forms of cooperation.284 Indeed, Article 40 also establishes the possibility for Member States to cooperate with external service providers under Article 43. As a result of amending Regulation (EU) 2019/1155, such cooperation is not any longer treated by Article 40 as ‘a last resort’ measure.

Article 42 Recourse to honorary consuls […]

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. 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. 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 or of the central authorities. 284 Commission Proposal, COM(2018) 252 final, p. 13; Commission Staff Working Document, SWD (2014) 101 final, p. 32.

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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, in accordance with points (a) to (c) of Article 47(1), 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 or the central authorities; (d) collecting the visa fee; (e) managing the appointments for the applicant, where applicable, at the consulate or at the premises of an external service provider; (f) collecting the travel documents, including a refusal notification if applicable, from the consulate or the central authorities and returning them to the applicant. 7. When selecting an external service provider, the Member State concerned shall assess the reliability and solvency of the organisation or company and ensure that there is no conflict of interests. The assessment shall include, as appropriate, scrutiny of the necessary licences, commercial registration, statutes and bank contracts. 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. Member States shall be responsible for compliance with the rules on the protection of personal data and ensure that the external service provider is subject to monitoring by the data protection supervisory authorities pursuant to Article 51(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council(9). 10. The Member State(s) concerned shall provide training to the external service provider, corresponding to the knowledge needed to offer an appropriate service and sufficient information to applicants. 11. The Member State(s) concerned shall closely monitor the implementation of the legal instrument referred to in paragraph 2, including: (a) the general information on the criteria, conditions and procedures for applying for a visa, as set out in points (a) to (c) of Article 47(1), and the content of the application forms provided by the external service provider to applicants; (b) all the technical and organisational security measures required to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the cooperation involves the transmission of files and data to the consulate or the central authorities of the Member State(s) concerned, and all other unlawful forms of processing personal data; (c) the collection and transmission of biometric identifiers; (d) the measures taken to ensure compliance with data protection provisions. To this end, the consulate(s) or the central authorities of the Member State(s) concerned shall, on a regular basis and at least every nine months, carry out spot checks on the premises of the external service provider. Member States may agree to share the burden of this regular monitoring.

(9) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

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Chp. 3 Art. 43

Visa Code Regulation (EC) No 810/2009

11a. By 1 February each year, Member States shall report to the Commission on their cooperation with, and monitoring, as referred to in point C of Annex X, of external service providers worldwide. 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 43(1), following from Article 8(10) and Article 40(3), provides that Member States shall endeavour to cooperate with an external service provider. Such cooperation is considered indispensable by the Member States for visa processing and has grown exponentially between 2014 and 2018, with an increase of 840 % in the locations covered by external service providers, which in 2018 amounted to 1263.285 Under Article 43(2), cooperation between a Member State and an external service provider must be based on a legal agreement that fulfils the requirements set in Annex 10 relating to the activities to be performed by the external service provider, data protection, staff selection, training and conduct, as well as monitoring and inspection of the external service provider’s activities by the Member States. Article 44(7) to (11) further establishes rules in relation to the selection, training and monitoring of the external service provider by the Member State. A report under the Schengen evaluation mechanism in 2020 identified however as a recurring deficiency that the monitoring of external service providers ‘was not always adequate and contracts and practices did not always comply with legal requirements’,286 and a consensus has emerged in favour of strengthening the applicable legal framework.287 2 Article 43(6) establishes which activities can be entrusted to external service providers, including providing information to the public and collecting applications and biometrics from visa applicants. Article 43(4) and (5) reiterates that the examination of applications, interviews, the decision on applications and access to the VIS are solely for consulates or central authorities. Similarly, external service providers must not become aware of the results of applications that they deal with. However, the impact that external service providers have on visa issuing remains controversial.288 There have been, for example, many complaints of poorly informed external service provides, and of external service providers refusing to accept applications for multiple-entry visas or applications which were considered incomplete.289 This is a serious problem as it constitutes an interference with the Member States’ sole responsibility to assess visa applications and impedes the exercise of Member States’ discretion under Article 19(4) on admissibility of applications, Article 24(2c) on multiple-entry visas and Article 25(1) on limited territorial validity visas. For applicants, the situation is exacerbated by the fact that the obligation whereby the Member States had to grant direct access to consulates to visa applicants when cooperating with external service providers has been removed from the Visa Code (see Article 17 MN 2). In this context, a relating problem faced by applicants is that the service fee charged by the external service provider can make the visa application considerably more expensive. Furthermore, the legal agreement between the external service provider and the Member State may allow for the provision of additional services 1

285

Commission Staff Working Document, SWD(2018) 77 final, p. 8, 50 and 71. Commission Report, COM(2020) 779 final, p. 9. 287 Commission Staff Working Document, SWD(2018) 77 final, p. 50, 74 and 88. 288 Sanchez-Barrueco, Business as usual; Infantino, Outsourcing Border Control: Politics and Practice of Contracted Visa Policy in Morocco (Palgrave Macmillan, 2016). 289 Commission Report, SWD(2020) 327, p. 9; Commission Staff Working Document, SWD(2014) 101 final, p. 34; Fundamental Rights Agency, Annual Report 2013, p. 70. 286

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Art. 47

Chp. 3

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

Article 44 Encryption and secure transfer of data […]

Article 45 Member States’ cooperation with commercial intermediaries […]

Article 46 Compilation of statistics294 […]

Article 47 Information to the general public […] 290 Visa Code Handbook II, Commission Implementing Decision, C(2020) 1764 final, para 5.3; see also Sanchez-Barrueco, Business as usual, p. 394–395. On aggressive selling of optional services in relation to UK visas by Visa Facilitation Service (VFS), see The Independent, ‘How Home Office makes millions a week from outsourcing visas to Dubai-based firm accused of exploitation’, 19 August 2019, available at: https://www.independent.co.uk/news/uk/home-news/home-office-vfs-visas-profit-subcontracted-contractoutsourcing-premium-services-exploited-a9056446.html [last accessed 14 April 2021]. 291 Council doc. 13589/20 of 2 December 2020, p. 8. 292 See, for example, Sanchez-Burrueco, Business as usual, p. 396–397, on possible conflict of interests affecting sensitive information and accountability; Moreno-Lax, Accessing Asylum, p. 113. 293 See, for example, the Guardian, ‘Users’ data compromised after technical glitch at Home Office contractor’, 17 July 2015, available at: https://www.theguardian.com/technology/2015/jul/17/users-datacompromised-after-technical-glitch-at-home-office-contractor [last accessed 11 April 2021]; Costelloe Baker, ‘Report of the Independent Investigation: Breach of data security in VFS online UK visa application facility, operated through VFS website in India, Nigeria and Russia’, 16 July 2007, available at: https://www. statewatch.org/media/documents/news/2007/jul/uk-visa-security-report.pdf [last accessed 11 April 2021]. 294 Article 46 has been deleted by Reg 2021/1134.

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Chp. 3 Art. 48

Visa Code Regulation (EC) No 810/2009

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

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Art. 48

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4. Local Schengen cooperation meetings to deal specifically with operational issues in relation to the application of the common visa policy shall be organised regularly among Member States and the Commission. These meetings shall be convened within the jurisdiction by the Commission, unless otherwise agreed at the request of the Commission. Single-topic meetings may be organised and sub-groups set up to study specific issues within local Schengen cooperation. 5. Summary reports of local Schengen cooperation meetings shall be drawn up systematically and circulated locally. The Commission may delegate the drawing up of the reports to a Member State. The consulates of each Member State shall forward the reports to their central authorities. 6. Representatives of the consulates of Member States not applying the Community 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. 7. An annual report shall be drawn up within each jurisdiction by 31 December each year. On the basis of those reports, the Commission shall draw up an annual report on the state of local Schengen cooperation to be submitted to the European Parliament and to the Council. Local Schengen Cooperation (LSC) developed during the 1990s as a marginal and 1 voluntary intergovernmental mechanism coordinated by the Presidency of the Council to become, under the Visa Code, increasingly structured under the coordination of the Commission via Union delegations.295 The objective of LSC is to achieve a harmonised practical application of the provisions in the Visa Code taking into account local circumstances. Thus, Article 48(1a) lists the items to be produced by way of cooperation. The list of supporting documents for each jurisdiction (see Article 14 MN 2) and the local adaptation of the rules on the issuing of multiple-entry visas (see Article 24 MN 3), in particular, are to be formally adopted by the Commission through an implementing decision following a positive opinion by the Visa Committee (Article 52(2)). LSC further envisages exchange of information in relation to the matters listed in Article 48(3).296 While the Visa Handbook provides that ‘as a part of local Schengen cooperation, consulates should define “profiles” of applicants presenting a specific risk, according to local conditions and circumstances which also takes account of the general situation in the country of residence’,297 the Visa Handbook II advises against the establishment of arbitrary ‘alert or warning’ lists, following exchange of information, which could be problematic from the point of view of non-discrimination and data protection requirements, recommending consultation of the national data protection authority. The Visa Handbook II also instructs consulates to refrain from introducing local visa bans, recommending the use of the SIS instead.298

295 Fernandez, ‘Towards a EU Consular Policy’, in: Batora/Spence (eds), The European External Action Service – European Diplomacy Post Westphalia (Palgrave, 2015), p. 356. 296 Information is also to be exchanged under Article 22(3) on prior consultation and Article 31(2) on ex-post notification. 297 Commission Implementing Decision, C(2010) 1620 final, as amended, C(2014) 2727 final Part II, para 6.13. 298 See Commission Implementing Decision, C(2020) 1764 final, Part II, para 1.2.

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Chp. 3 Art. 49

Visa Code Regulation (EC) No 810/2009

TITLE VI FINAL PROVISIONS Article 49 Arrangements in relation to the Olympic Games and Paralympic Games […]

Article 51 Instructions on the practical application of this Regulation The Commission shall by means of implementing acts adopt the operational instructions on the practical application of the provisions of this Regulation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 52(2). 1

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

Article 51a Exercise of the delegation […]

Article 52 Committee procedure 1. The Commission shall be assisted by a committee (the ‘Visa Committee’). That committee shall be a committee within the meaning of Regulation (EU) No 182/ 2011 of the European Parliament and of the Council(12). 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. 1

Article 52 has been amended by Regulation (EU) 2019/1155 to take into account the adoption of Regulation (EU) No 182/2011 on mechanisms for control by Member 299 Respectively, Commission Implementing Decision, C(2010) 1620 final, as amended, and Commission Implementing Decision, C(2020) 1764 final. (12) 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 the Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

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ANNEX II

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

Article 53 Notification […]

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

Article 56 Repeals […]

Article 57 Monitoring and evaluation […]

Article 58 Entry into force […]

ANNEX I Harmonised application form […]

ANNEX II Non-exhaustive list of supporting documents […] Meloni

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Chp. 3 ANNEX III

Visa Code Regulation (EC) No 810/2009

ANNEX III UNIFORM FORMAT AND USE OF THE STAMP INDICATING THAT A VISA APPLICATION IS ADMISSIBLE […]

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 […]

ANNEX V LIST OF RESIDENCE PERMITS ENTITLING THE HOLDER TO TRANSIT THROUGH THE AIRPORTS OF MEMBER STATES WITHOUT BEING REQUIRED TO HOLD AN AIRPORT TRANSIT VISA […]

ANNEX VI STANDARD FORM FOR NOTIFYING REASONS FOR REFUSAL, ANNULMENT OR REVOCATION OF A VISA REFUSAL/ANNULMENT/REVOCATION OF VISA

(19)

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 □ □ □

examined your application; examined your visa, number: …, issued: … [date/month/year]. The visa has been re□ The visa has □ The visa has been refused been annulled voked

(19)

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No logo is required for Norway, Iceland, Liechtenstein and Switzerland.

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ANNEX VI

Chp. 3

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

1. 2.

a false/counterfeit/forged travel document was presented 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 4. □ you have not provided proof that you are in a position to lawfully acquire sufficient means of subsistence, for the duration of the intended stay or for the return to the country of origin or residence, or for the transit to a third country into which you are certain to be admitted 5. □ you have already stayed for 90 days during the current 180-day period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity 6. □ an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry by … (indication of Member State) 7. □ one or more Member States consider you to be a threat to public policy or internal security 8. □ one or more Member States consider you to be a threat to public health as defined in point (21) of Article 2 of Regulation (EU) No 2016/399 (Schengen Borders Code) 9. □ one or more Member States consider you to be a threat to their international relations 10. □ the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable 11. □ there are reasonable doubts as to the reliability of the statements made as regards … (please specify) 12. □ there are reasonable doubts as to the reliability, as to the authenticity of the supporting documents submitted or as to the veracity of their contents 13. □ there are reasonable doubts as to your intention to leave the territory of the Member States before the expiry of the visa 14. □ sufficient proof that you have not been in a position to apply for a visa in advance, justifying application for a visa at the border, was not provided 15. □ justification for the purpose and conditions of the intended airport transit was not provided 16. □ you have not provided proof of possession of adequate and valid travel medical insurance 17. □ revocation of the visa was requested by the visa holder(20). Additional remarks: … … … (20)

Revocation of a visa based on this reason is not subject to the right of appeal.

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Chp. 3 ANNEX X

Visa Code Regulation (EC) No 810/2009

… … You may appeal against the decision to refuse/annul/revoke a visa. The rules on appeal against decisions on refusal/annulment/revocation of a visa are set out in (reference to national law): … Competent authority with which an appeal may be lodged (contact details): … Information on the procedure to follow can be found at (contact details): … An appeal must be lodged within (indication of time-limit): … Date and stamp of embassy/consulate-general/consulate/of the authorities responsible for checks on persons/of other competent authorities: Signature of person concerned(21): …

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 VISAS300 […]

ANNEX XIII CORRELATION TABLE […] (21) 300

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If required by national law. Annex XII has been deleted by Reg 2021/1134.

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Chapter 4. Sea Borders Regulation (EU) No 656/2014 Select 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; Coppens, ‘Interception of Migrant Boats at Sea’, in: Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill, 2016), p. 197–221; Cusumano/Gombeer, ‘In Deep Waters: The Legal, Humanitarian and Political Implications of Closing Italian Ports to Migrant Rescuers’, Mediterranean Politics 25 (2020), p. 245–253; Den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); Den Heijer, ‘Reflections on Refoulement and Collective Expulsion in the Hirsi Case’, IJRL 25 (2013), p. 265–290; Den Heijer, ‘Frontex and the Shifting Approaches to Boat Migration in the European Union. A Legal Analysis’, in: Zaiotti (ed), Externalizing Migration Management: Europe, North America and the Spread of ‘Remote Control’ Practices (Routledge, 2016), p. 53–71; Fink, Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ under the ECHR and EU Public Liability Law (OUP, 2018); Giuffré, ‘Access to Asylum at Sea? Non-refoulement and a Comprehensive Approach to Extraterritorial Human Rights Obligations’, in: Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill, 2016); Gombeer/Fink, ‘Non-Governmental Organisations and Search and Rescue at Sea’, Maritime Safety and Security Law Journal 4 (2018), p. 1–25; Klepp, ‘A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea: A Legal Anthropological Perspective on the Humanitarian Law of the Sea,’ IJRL 23 (2011), p. 538–557; Markard, ‘A Hole of Unclear Dimensions: Reading ND and NT v. Spain’, EU Immigration and Asylum Law Blog of 1 April 2020, available at: https://eumigrationlawblog.eu/a-hole-of-unclear-dimensions-reading-nd-and-nt-v-spain/ [last accessed 6 May 2021]; 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; 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; Moreno-Lax, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control – On Public Powers, S.S. and Others v. Italy: and the “Operational Model”’, German Law Journal 21 (2020), p. 385–416; Papanicolopulu, International Law and the Protection of People at Sea (OUP, 2018); Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Hart, 2014); Papastavridis, ‘The European Convention of Human Rights and Migration at Sea: Reading the “Jurisdictional Threshold” of the Convention Under the Law of the Sea Paradigm’, German Law Journal 21 (2020), p. 417–435; Ryan, ‘Extraterritorial Immigration Control: What Role for Legal Guarantees?’, in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Brill, 2010), p. 3–38; Ryan, ‘The Migration Crisis and the European Union Border Regime’, in: Cremona/Scott (eds), EU Law Beyond EU Borders: The Extraterritorial Reach of EU Law (OUP, 2019); Scovazzi, ‘Human Rights and Immigration at Sea’, in: Rubio-Marín (ed), Human Rights and Immigration (OUP, 2014), p. 212–260; Thym, ‘The End of Human Rights Dynamism? Judgments of the ECtHR on ‘Hot Returns’ and Humanitarian Visas as a Focal Point of Contemporary European Asylum Law and Policy’, IJRL 33 (2021); 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; Trevisanut, ‘Is there a right to be rescued at sea? A constructive view’ Questions of International Law 4 (2014), p. 3–15. 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.

Ryan

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Chp. 4 Art. 1

Sea Borders Regulation (EU) No 656/2014

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 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: […] 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 ...............................................................................................

mn. 1 5 9

I. General Remarks 1

Regulation (EU) 656/2014, known as the Sea Borders Regulation, sets out a legal framework for Member States, and vessels under their command, when engaged in the surveillance of the Schengen external sea border within operations co-ordinated by (1) Position of the European Parliament of 16 April 2014 (OJ C 443 22.12.2017 p. 931) and decision of the Council of 13 May 2014.

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Art. 1

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Frontex. Its provisions cover the interception of vessels for border surveillance purposes, and associated search and rescue operations. The background to its adoption was sustained patterns of irregular migration by sea, evident since around 2000, towards southern EU states.1 These migration patterns have moreover continued, at times with increased intensity, since 2014. In the Western Mediterranean and the Atlantic, irregular migration by sea has 2 involved departures from Morocco, Senegal and Mauritius and elsewhere towards Spanish territory, to which Spain has responded through bilateral co-operation arrangements with those states, aimed at the prevention of departures.2 Since 2006, Frontex has provided support on sea migration routes from West Africa to Canary Islands (Operation Hera), and from North Africa towards Spanish Mediterranean coasts (Operation Indalo). In the Central Mediterranean, the primary focus has been on sea routes from Libya 3 and Tunisia towards Lampedusa and other Italian coasts, and Malta.3 From 2007, Frontex supported Italy in border surveillance through Operations Hermes and Aeneas. Separately, Italy operated an interception-and-return arrangement with Libya in 2009 and 2010, which was effectively declared contrary to the ECHR in Hirsi Jamaa in 2012 (see below, MN 4c). After a tragedy involving the death of an estimated 368 persons off Lampedusa on 3 October 2013, Italy introduced an extensive search and rescue operation, known as Mare Nostrum, but in October 2014, both it and the earlier Frontex missions were replaced by Frontex’s Operation Triton, focused on border surveillance off Italian coasts.4 In 2015, two further tragedies off Libya, which together saw the loss of an estimated 1200 persons, led to the deployment of an EU naval mission to disrupt migrant smuggling in international waters off Libya (EUNAVFOR Med, which operated until 2020). As these initiatives saw the arrival of over 100,000 rescued persons a year in Italy, from 2017 its Government changed tack, supporting rescue by the Libyan Coast Guard, and closing its ports to persons rescued by NGO vessels.5 Throughout, Malta has stayed outside of Frontex co-operation, in part because it refuses to accept that responsibility for a search and rescue zone, or the co-ordination of a rescue, should lead to an obligation to allow disembarkation of those rescued.6 In the Eastern Mediterranean, the primary routes of irregular migration by sea have 4 been from Turkey to Greece’s Aegean islands. Since 2006, Frontex has supported Greece in border surveillance in this area through Operation Poseidon. Here, the peak of the migration/refugee crisis saw the arrival of more than 1 million persons in total in 2015 1 On the history, 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 García Andrade, ‘Extraterritorial strategies to tackle irregular immigration by sea: A Spanish perspective’, in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Brill, 2010), p. 318–333. 3 Di Pascale, ‘Italy and Unauthorized Migration: Between State Sovereignty and Human Rights Obligations’, in: Rubio-Marín (ed), Human Rights and Immigration (OUP, 2014), p. 303–305. 4 In 2018, Frontex replaced Operation Triton with Operation Themis, with a broader law enforcement mission: information available at: https://frontex.europa.eu/we-support/main-operations/operation-themis-italy-/ [last accessed 6 May 2021]. 5 Palm, ‘The Italy-Libya Memorandum of Understanding: The baseline of a policy approach aimed at closing all doors to Europe?’, EU Immigration and Asylum Law Blog of 13 September 2017, available at: https://eumigrationlawblog.eu/the-italy-libya-memorandum-of-understanding-the-baseline-of-a-policyapproach-aimed-at-closing-all-doors-to-europe/ [last accessed 6 May 2021]; Ryan, in Cremona/Scott (eds), EU Law Beyond EU Borders, p. 206–210; Cusumano/Gombeer, In Deep Waters, p. 245–253. 6 Klepp, A Double Bind, p. 549–550; Trevisanut, Search and Rescue Operations in the Mediterranean, p. 531.

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Chp. 4 Art. 1

Sea Borders Regulation (EU) No 656/2014

and 2016. That led the EU to enter into an arrangement in 2016 with Turkey, to secure its co-operation in preventing irregular departures by sea and the readmission of asylum applicants, in exchange for support for refugees in Turkey, including some resettlement to the EU.7 Border measures in this region have attracted particular controversy, with allegations of migrants being returned to sea from Greek islands, and pushbacks by the Greek coast guard.8 Evidence of the latter in the context of Operation Poseidon during 2020 prompted a critical report by a Frontex working group, and an investigation by the European Parliament’s LIBE Committee.9 4a A more recent development has seen the introduction of maritime surveillance mission in the Black Sea, a part of a Frontex operation called ‘Focal Points’.10 This mission is in support of border surveillance by Bulgaria and Romania, and focuses on irregular sea routes from Turkey and Ukraine. 4b Member States are bound by the international law of the sea during border surveillance operations. According to recital 8 to the Regulation, the sources of such obligations include the United Nations Convention on the Law of the Sea (‘UNCLOS’), the International Convention for the Safety of Life at Sea 1974 (‘SOLAS’), the International Convention on Maritime Search and Rescue (‘SAR Convention’), the UN Migrant Smuggling Protocol, the Refugee Convention, the ECHR, the ICCPR and the UN Convention against Torture (‘CAT’). These instruments are discussed where relevant in this chapter. 4c Developments concerning irregular sea crossings, interception and rescue at the EU’s external borders have led to repeated litigation concerning the applicability of international human rights instruments on the high seas. In 2008 and 2011, the UN Committee Against Torture found Spain responsible under the CAT for the treatment of persons intercepted and/or rescued in operations at sea, once there was effective control over those persons.11 In Hirsi Jamaa in 2012, the ECtHR held that a contracting state has ‘jurisdiction’ over individuals when a state vessel either intercepts or rescues them on the high seas, as it thereby acquires de jure and de facto control over them.12 The outcome in Hirsi Jamaa was a finding that return of individuals to Libya violated the prohibition in Article 3 ECHR upon inhuman and degrading treatment and punishment, the protection against collective expulsion in Article 4 Protocol 4 ECHR, and the associated right to an effective remedy in Article 13 ECHR.13 The UN Human Rights Committee too has held that the ICCPR has extraterritorial application in relation to interception and rescue at sea. Its General Comment 36 on the right to life (2018) states that Article 6 ICCPR covers ‘persons located outside any territory effectively controlled 7 Alpes/Tunaboylu/van Liempt, Human Rights Violations by Design: EU-Turkey Statement Prioritises Returns from Greece Over Access to Asylum (Migration Policy Centre, 2017); Ryan, in Cremona/Scott (eds), EU Law Beyond EU Borders, p. 222–226. 8 See Cortinovis, Pushbacks and lack of accountability at the Greek-Turkish borders (CEPS, 2021). 9 Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea: Final Report of the Frontex Management Board Working Group (Frontex, 1 March 2021); Frontex: MEPs to investigate alleged violations of fundamental rights (European Parliament, 23 February 2021). 10 Frontex, Annual Report on the Implementation of Regulation (EU) 656/2014 (27 August 2020), p. 10. 11 UN Committee Against Torture, Decision of 21 November 2008, Communication No 323/2007, JHA v. Spain (rescue and detention) and Decision of 25 November 2011, Communication No 368/2008, Sonko v. Spain (interception, leading to loss of life). 12 ECtHR, Judgment of 23 February 2012 (GC), No 27765/09, Hirsi Jamaa and others v. Italy. See Den Heijer, Reflections, p. 265; Moreno-Lax, Hirsi Jamaa, p. 574–598, Scovazzi, in Rubio-Marín (ed), Human Rights and Immigration, p. 252–257. 13 On the implications of the ECHR for applications for asylum at sea, in the light of Hirsi, see Giuffré, in Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea, p. 262–272.

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by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner’. That position was applied in the Committee’s conclusions in 2020 on complaints against Malta and Italy arising out of the 2013 Lampedusa tragedy.14 (On the implications of the right to life for search and rescue, see further below, Article 9 MN 2a.) The full reach of European states’ obligations under international human rights, in respect of guarantees against expulsion and the right to life, remains uncertain, however.15

II. Legislative history The EU institutional process which led eventually to the Sea Borders Regulation 5 (EU) 656/2014 began with the publication of a Commission staff working document in 2007 of international law instruments relating to irregular migration by sea.16 That was followed by a call by the European Council in June 2009 for ‘clear rules of engagement’ for Frontex operations at sea.17 The first legislative result was Council Decision 2010/252/EU on sea border 6 surveillance in the context of Frontex operations, which set out binding rules in relation to interceptions, and ‘guidelines’ in relation to rescue.18 Decision 2010/252 was adopted using the comitology procedure, relying upon a power in the former Schengen Borders Code Regulation (EC) No 562/2006 to adopt ‘additional rules’ concerning border surveillance.19 Although the Decision lacked the support of the European Parliament, there was not the absolute majority necessary to veto it.20 Instead, the European Parliament challenged the legality of reliance upon Article 12(5) before the Court of Justice.21 The legal action succeeded, with the Court concluding that the rules concerning interception and rescue required political choices, and were not merely ‘additional’ within the meaning of the legislation.22 The ruling maintained the effects of Decision 2010/252 for a reasonable time until the entry into force of new rules.

14 Human Rights Committee, General Comment 36 on Article 6 ICCPR on the right to life, UN doc. CCPR/C/GC/36 (2018), para 63; Decision concerning Communication 3043/2017, AS and others v. Malta, UN doc. CCPR/C/128/D/3043/2017 (2020); Decision concerning Communication 3042/2017, AS and others v. Italy, UN doc. CCPR/C/130/D/3042/2017 (2020). 15 At the time of writing, SS and others v. Italy (Application No 21660/18) is before the ECtHR. It concerns a chaotic rescue operation off the coast of Libya in November 2017, which involved (among other actors) the Italian MRCC, an NGO vessel and a Libyan coast guard ship. The sinking of the vessel and the rescue operation together led to the deaths of at least 20 persons, while some 47 survivors were returned to Libya: see Forensic Oceanography, ‘Mare Clausum – Italy and the EU’s undeclared operation to stem migration across the Mediterranean’, May 2018, available at: https://content.forensic-architecture. org/ [last accessed 6 May 2021]. This litigation is likely to clarify the extent to which a European state has ‘jurisdiction’ under the ECHR through participation in the co-ordination of a rescue at sea and/or when it relies upon a third state’s authorities to effect interception or rescue. For an analysis of the jurisdictional issues raised by the application, see Moreno-Lax, The Architecture of Functional Jurisdiction. 16 Commission Staff Working Document, Study on the International Law Instruments in Relation to Illegal Immigration by Sea, SEC(2007) 691. 17 Brussels European Council, Presidency Conclusions (18/19 June 2009), para 37. 18 OJ 2010 L 111/20. See Moreno-Lax, The EU Regime. 19 Former Schengen Borders Code Regulation (EC) No 562/2006, Article 12(5). In the current legislation, the equivalent provision for ‘additional measures’ is in Schengen Borders Code Regulation (EU) 2016/399, Article 13(5). 20 See Den Heijer, in Zaiotti (ed), Externalizing Migration Management, p. 56. 21 See Chamon, ‘How the concept of essential elements of a legislative act continues to elude the Court: Parliament v. Council’, CML Rev. 50 (2013), p. 849–860. 22 ECJ, Parliament v. Council, C-355/10, EU:C:2012:516, para 78.

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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 is also one of the legal bases relied upon for Frontex legislation (author’s chapter on Frontex Regulation (EU) 2019/1896, Article 1 MN 13). 8 The content of the eventual Sea Borders Regulation differs from Decision 2010/252 in several respects. Because of 2011 amendments to the Frontex Regulation requiring Frontex operations to respect international obligations on search and rescue (author’s chapter on the Frontex Regulation (EU) 2019/1896, Article 3 MN 2) , the Commission proposed a Regulation which was binding in respect of both interception and rescue.23 The Commission proposal also took account of the implications of Hirsi Jamaa (above, Article 1 MN 4c) for both types of scenario.24 In the Council of Ministers, there was resistance by Mediterranean Member States to the obligatory provisions relating to rescue, as a result of which those were amended (see below, Article 9 MN 3 and 4). The European Parliament’s intervention led in particular to amendments concerning the principle of safety at sea (Article 3) and guarantees of non-refoulement (Article 4) in the compromise text.25 8a Since the Sea Borders Regulation was adopted, major reforms to Frontex legislation in 2016 and 2019 saw a substantial expansion of the Agency’s role in relation to external border control, and more extensive provision for fundamental rights (author’s chapter on Frontex Regulation (EU) No 2019/1896, Article 1 MN 11). The changes made in 2016 and 2019 have left the Sea Borders Regulation out of step with the Frontex legislation in a number of respects.26 A straightforward solution to these discrepancies would be to incorporate the principles of this Regulation into the main Frontex legislation, so that it may be updated at the same time. 7

III. Textual analysis 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’, and also included interception measures and ‘arrangements intended to address situations such as search and rescue that may arise during a sea operation’.27 That more extensive conception of ‘border surveillance’ does not cover operations whose sole or primary purpose is search and rescue, which also appear to fall outside Frontex’s remit (see chapter on Frontex Regulation (EU) 2019/1896, Article 3 MN 2). 10 Article 1 of the Regulation indicates that its scope only covers Member State activities in the context of Frontex operations. It follows that the principles in the Regulation do not apply where a host Member State engages in sea operations in parallel with, but autonomously from, a Frontex operation. (An example is the alleged practices of pushbacks by the Greek coast guard during 2020, above, MN 4.) The 9

23

Commission Proposal, COM(2013) 197, p. 5. Ibid., p. 4. 25 See below, Article 3 MN 2, and Article 4 MNs 4, 8b and 10 and associated footnotes. 26 For examples, see below, Article 1 MN 11 and 12, Article 2 MN 3, and Article 4 MN 11 and 19. 27 Commission Proposal, COM(2013) 197, pp. 4–5. 24

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Regulation is also silent as to any obligations of Member States in respect of persons rescued at sea by commercial vessels, or by vessels operated by non-governmental organisations.28 Frontex has argued that ‘it is difficult to justify’ why its operations are subject to ‘different and stricter obligations’.29 An alternative response would be to seek to extend the reach of EU regulation to other cases involving Schengen Member States (whether as flag state or coastal state). The application of the Sea Borders Regulation to Frontex may be thought to follow 11 from the references to this Regulation within the Frontex Regulation.30 To date, Frontex’s role in respect of sea border surveillance has been to make other states’ vessels and aerial surveillance assets (and related personnel) available to host Member States. Accordingly, the Sea Borders Regulation has been relevant to Frontex solely in its capacity as organiser of sea border surveillance. Frontex does have the power to own and to lease equipment, and its budget has increased in part to enable it to use those powers.31 Were it to deploy its own assets in sea border surveillance in support of a host Member State, the principles in the Regulation would have quite different implications for it, and would need to be adapted accordingly. A limitation to the scope of the Sea Borders Regulation is that it does not address the 12 possible involvement of third countries in sea border surveillance which is organised or supported by Frontex. That reflected the legal position as it stood at the time, when the governing legislation provided for Frontex to facilitate Member States’ co-operation with third countries, and made no reference to sea border surveillance in that context.32 In contrast, the current Frontex Regulation permits Frontex itself to provide technical and operational assistance to third countries, and specifically refers to border surveillance operations at sea, including the possibility of search and rescue activities arising from it.33 For coherence, the Sea Borders Regulation ought to be adapted to take account of third country involvement – e.g., by specifying mandatory provisions to be included in operational plans agreed with them.34

28 On the international law issues posed by NGO activity, see Gombeer/Fink, Non-Governmental Organisations and Search and Rescue at Sea. 29 Frontex, Annual Report on the Implementation of Regulation (EU) 656/2014 (27 August 2020), p. 11. 30 See Frontex Regulation (EU) 2019/1896, recital 21 and Articles 3(1)(b), 10(1)(i), 36(2)(e), 38(1) and 38(2). The application of the Regulation to Frontex is also assumed in a note by the European Commission, ‘The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders’ (3 March 2021), annexed to the March 2021 Final Report of the Frontex Management Board Working Group (1 March 2021). 31 Provision is made for Frontex’s to acquire or lease equipment in Frontex Regulation (EU) 2019/1896, Article 63. On its expanded budget for equipment, see Gkliati, ‘The next phase of the European Border and Coast Guard: towards operational effectiveness’, EU Law Analysis Blog of 8 October 2018, available at: http://eulawanalysis.blogspot.com/2018/10/the-next-phase-of-european-border-and.html [last accessed 6 May 2021]. 32 See former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 14. 33 See Frontex Regulation (EU) 2019/1896, Article 73. For express links between sea border surveillance and co-operation with third countries, including references to the Sea Borders Regulation, see Frontex Regulation (EU) 2019/1896, Articles 10(1)(i) and 36(2)(e). 34 Frontex has called attention to the absence of provision in the Sea Borders Regulation for a third country acting as the host state of an operation: Annual Report on the Implementation of Regulation (EU) 656/2014 (27 August 2020), p. 11.

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Sea Borders Regulation (EU) No 656/2014

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; (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 nonrefoulement; (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;

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(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) shows that the Regulation is only concerned with border surveillance operations. Frontex practice suggests that its operations at sea are very likely to take the form of ‘joint operations’ under Frontex Regulation (EU) 2019/1896 (see above, Article 1 MN 2–4a). The definition of ‘host Member State’ in Article 2(3) firstly covers states ‘in which’ a sea operation takes place, which presumably refers to operations which take place within the state’s territorial sea. The definition also covers the Member State ‘from which’ an operation is ‘launched’, which presumably refers to operations outside the host state’s territory. A similar definition, covering all types of Frontex operation, appears in Frontex Regulation (EU) 2019/1896, Article 2(20). The concept of a ‘participating Member State’, as defined in Article 2(4), refers to Member States other than the host state which contribute assets or personnel to a sea operation. A similar definition, covering all types of Frontex operation, appears in Frontex Regulation (EU) 2019/1896, Article 2(22). Article 2(4) is however outmoded, by comparison with the 2019 Regulation, in two respects. One is its reference to ‘a European Border Guard Team’, as the corresponding term in the Frontex Regulation (EU) 2019/1896 is now the ‘European Border and Coast Guard standing corps’. The other is the reference to ‘other relevant staff’ in Article 2(4), which has no counterpart in Article 2(22) of the Frontex Regulation (EU) 2019/1896, which contemplates personnel being provided by member States exclusively through the standing corps.35 The definition of a ‘participating unit’ in Article 2(5) covers Member State maritime, land or aerial units that participate in sea operations. Although the Regulation is primarily of relevance to participating vessels at sea, the obligations concerning detection (Article 5) and search and rescue (Article 9) are also relevant to aerial and landbased assets. The phrasing of Article 2(5), which implies that only Member State assets participate in Frontex operations, must be considered at odds with the provision for the acquisition and leasing of technical equipment by Frontex (above, Article 1 MN 11). Article 2 distinguishes between three types of coordination centre. The ‘International Coordination Centre’ referred to in Article 2(6) is established within the host state in order to issue directions within 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 (Frontex Regulation (EU) 2019/1896, Article 21). The ‘Rescue Coordination Centre’ referred to in Article 2(13) is the core of a state’s system for co-ordination of search and rescue operations, which are likely to be within a search and rescue zone designated for the purposes of 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 may be read with 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.’ 35 See too recital 39 to the Frontex Regulation (EU) 2019/1896: ‘Where the crew deployed with the technical equipment of a Member State originates in that Member State, it should count as part of that Member State’s contribution to the standing corps.’

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Sea Borders Regulation (EU) No 656/2014

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). A stateless vessel will not benefit from the protection of a flag state, something which will be relevant if it is suspected of being involved in irregular migration on the high seas (see further below, Article 7 MN 13). A ‘place of safety’, as defined in Article 2(12), is the place where a rescue operation terminates. It is necessary that the survivors’ safety of life not be threatened in that place, 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 2004.36 The definition of a place of safety includes the following vague formula: ‘taking into account the protection of their fundamental rights in compliance with the principle of nonrefoulement. (On the concept of non-refoulement within the Regulation, see below, Article 4 MN 1–5.) The concept of a ‘coastal Member State’ in Article 2(15) 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 that have authorised an interception under Articles 6 and 8 (below). The Regulation does not contain a definition of the term ‘Member State’. It may be presumed from recitals 21–26 to the Regulation that these are only the states bound by the Schengen acquis – i. e. the EU Member States other than Ireland, and the four associated states (Iceland, Liechtenstein, Norway and Switzerland). The Frontex Regulation does not treat Ireland as a ‘Member State’, but it appears that neither is it to be classed as a third country (author’s chapter on Frontex Regulation (EU) 2019/1896, Article 1 MN 16). By implication, the same is true of the Sea Borders Regulation. Ireland’s participation in a Frontex sea operation therefore requires authorisation by the Frontex management board (Frontex Regulation (EU) 2019/1896, Article 100(5)).

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. 1

Article 3 sets out a general principle of safety at sea during measures taken within a Frontex sea operation. 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) 36 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 Commission Proposal, COM(2013) 197, p. 6.

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and UNCLOS (see its Article 98). The principle in Article 3 covers persons rescued or intercepted, participating units, and third parties. Unlike the international law instruments referred to, It is not limited to the preservation of life, and may therefore extend to prevention of serious injury to persons, and to the prevention of loss and damage to vessels. The principle of safety in Article 3 is phrased in strict terms. The Commission 2 proposal in 2013 had provided that operational measures should not put safety ‘at risk’.37 The Parliament proposed the alternative formulation which appears in Article 3, that operational measures should ‘in all instances, ensure’ safety.38 The text of Article 3 of the Sea Borders Regulation must be considered deficient in its 3 protection of the right to life, which is guaranteed by Article 2 ECHR, Article 2 CFR and Article 6 ICCPR. The relevance of this right to states’ search and rescue operations at sea is shown by Human Rights Committee’s General Comment 36 on the right to life (2018) and by its decisions in 2020 concerning Malta and Italy arising out of the 2013 Lampedusa tragedy (see above, Article 1 MN 4c). The deficiency in Article 3 is that it covers only persons who have been or who are in the course of being ‘intercepted or rescued’, and so fails to cater for breaches of the right to life due to inaction or delay on the part of participating States and their vessels. (See further below, Article 9 MN 2a.)

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 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. 37 38

Commission Proposal, COM(2013) 197, Article 3. European Parliament report A7-0461/2013 of 18 December 2013, Amendment 22.

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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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Content I. II. III. IV. V. VI.

mn. Article 4(1): The non-refoulement principle............................................. 1 When does Article 4 apply?.......................................................................... 8 Country information...................................................................................... 9 Processing individuals.................................................................................... 12 To whom does Article 4 apply?................................................................... 17 Training............................................................................................................. 19

I. Article 4(1): The non-refoulement principle Article 4(1) sets out a general requirement of respect for the principle of nonrefoulement. This principle is set out in similar terms in recital 12 to the Regulation, with the preface that ‘This Regulation should be applied in full compliance with the principle of non-refoulement as defined in the Charter and as interpreted by the caselaw of the Court and of the European Court of Human Rights.’ A non-refoulement guarantee applicable to all Frontex activity, expressed in near-identical terms to Article 4(1), is contained Frontex Regulation (EU) 2019/1896, Article 80(2).39 Article 4(1) is primarily concerned with risks to a person within a state to which they may potentially be sent, by way of disembarkation or another form of transfer. Firstly, Article 4(1) refers to serious risks of treatment prohibited by two European fundamental rights norms – the death penalty (Article 2 ECHR and Article 2 CFR) and torture and other inhuman or degrading treatment or punishment (Article 3 ECHR and Article 4 CFR). Secondly, the list of in-state risks covered by Article 4(1) refers in a general sense to ‘persecution’. This is unusual in international law relating to asylum, where the norm is that the term persecution appears as part of the refugee definition, and not as a separate fundamental rights-based ground of protection. It 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.’40 If that is correct, the principles in the case-law of the ECtHR are relevant, including its findings that Article 2 ECHR prohibits expulsion to a country where there is a real threat to life,41 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.42 A fundamental rights-based reading of ‘persecution’ may also extend to protection against expulsion to places where armed conflict is ongoing, as defined by Article 15(c) of the Asylum Qualification Directive 2011/95/EU.43 Thirdly, the in-state risks covered by Article 4(1) include those contemplated by the prohibition on refoulement in Article 33(1) of the Refugee Convention – i. e. a threat 39 There are minor differences of phrasing between the two provisions, but these do not appear to affect the legal substance. 40 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). 41 See e. g. ECtHR, Judgment of 1 March 2005, No 39642/03, Headley v. The United Kingdom. 42 See e. g. ECtHR, Judgment of 17 January 2012, No 8139/09, Othman v. The United Kingdom (Article 6 ECHR). 43 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. The United Kingdom, para 226.

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to ‘life or freedom’ on grounds of race, religion, nationality, membership of a particular social group or political opinion.44 One difference is that here the ground of ‘sexual orientation’ has been added to the list.45 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 ‘persecution’ (above, MN 3).46 5 Article 4(1) is also concerned with the possibility of a serious risk of expulsion, removal or extradition from the state in which a person is disembarked, or to which they are transferred. In that context. the phrase ‘non-refoulement’ is to be interpreted to include all the risks listed in Article 4(1), including those deriving from fundamental rights standards and from refugee law. 6 A key fundamental right which is missing from Article 4(1) is the prohibition on collective expulsion, set out in both Article 19(1) CFR and Article 4 of ECHR Protocol 4. The prohibition on collective expulsion is though covered by recital 19 of the Sea Borders Regulation, which includes ‘protection against removal and expulsion’ – i.e., Article 19 CFR – among the fundamental rights which Member States and Frontex are to respect when applying the Regulation.47 Article 19(1) CFR is also directly binding upon Frontex, and indirectly so upon Member States participating in its operations, because ‘protection against removal and expulsion’ is among the fundamental rights in the CFR which the Frontex Regulation is stated to ‘respect’ (see Frontex Regulation (EU) 2019/1896, recital 103). The significance of this question flows from the ECHR finding in Hirsi Jamaa that the prohibition on collective expulsion in Article 4 of ECHR Protocol 4 applied to migrants intercepted or rescued at sea, who therefore had a right to individual consideration of an expulsion or transfer, separately from a claim to protection against refoulement.48 7 In ND and NT v. Spain in 2020, the ECtHR established an exception whereby a collective expulsion – i.e. one without an individual procedure – could be allowed in a situation of mass border crossing. The preconditions were that ‘the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety’ and that ‘the respondent State provided genuine and effective access to means of legal entry, in particular border procedures.’49 The ND and NT v. Spain exception does not appear readily applicable to interceptions at sea, where force is rarely used by the persons concerned, and an alternative ‘border’ procedure may be unavailable.50 44 In respect of what are here termed ‘in-country risks’, the Commission proposal only referred to the death penalty, and to torture or other inhuman or degrading treatment or punishment, which is in line with Article 19(2) CFR. That would have limited protection to fundamental rights guarantees contained in Articles 2(2) and Article 4, Protocol 13 ECHR and Article 3 ECHR. The addition of text based on the refugee definition to in-country risks was proposed in European Parliament report A7-0461/2013 of 18 December 2013), Amendment 23. 45 The addition originated in European Parliament report A7-0461/2013 of 18 December 2013, Amendment 23. 46 See Hathaway and Foster, The Law of Refugee Status, 2nd edn (CUP, 2014), p. 184 n. 12. 47 That is potentially especially significant in the case of the four Council of Europe states which are not parties to ECHR Protocol 4: Greece, Switzerland, Turkey and the United Kingdom. 48 See Den Heijer, Reflections, p. 280–285 and Moreno-Lax, Hirsi Jamaa, p. 586–589. 49 ECtHR, Judgment of 13 February 2020 (GC), Nos 8675/15 and 8697/15, ND and NT v. Spain, para 201. For a critique of the uncertain scope of the exception, see Thym, The End of Human Rights Dynamism?. 50 Markard, A Hole of Unclear Dimensions; Commission note of 3 March 2021, ‘The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders’.

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Art. 4

Chp. 4

II. When does Article 4 apply? The non-refoulement principle in Article 4(1) applies without differentiation to persons who have been intercepted, and to those who have been rescued, at sea. This is implicit in the statement in Article 4(1) that ‘no person’ shall face refoulement, and is explicit in the references to ‘intercepted or rescued person’ in Article 4(2), twice in Article 4(3), and in Article 4(5). The inclusion of both categories, without distinction, is in line with the decision in Hirsi Jamaa, where the ECtHR reasoned that, once a person was within the jurisdiction of a contracting state’s vessel, the obligations of the state did not depend upon how an operation was characterised.51 The non-refoulement principle in Article 4(1) firstly applies when the person concerned would potentially be ‘disembarked in’ a given state. While the place of disembarkation is addressed in Article 10 (below), the concept of disembarkation is not defined in the Regulation. Firstly, this will undoubtedly occur when the persons concerned have first been taken on board a unit participating in a Frontex operation. Secondly, it could cover a scenario where the persons concerned remain on board a vessel which had been intercepted, but one or more participating units take effective control of that vessel, leading it to disembark those on board in a given location.52 A third possibility which may be considered is that, within the Frontex operation, assistance is given to another state’s vessel, which takes the persons concerned on board, and disembarks them on its territory.53 Beyond situations of disembarkation, Article 4(1) covers all cases in which a person is made to go to a particular country, by being ‘forced to enter’ it, ‘conducted to’ it, or ‘otherwise handed over to the authorities’ of that country.54 The phrase ‘conducted to … a country’ arguably covers all scenarios at sea whereby a participating unit induces an intercepted vessel to return to the territorial waters of a given state. That could arise inter alia through a participating vessel’s towing the intercepted vessel, or blocking its course, or threatening the use of force unless it complies with an instruction to change course.55 The phrase ‘handed over to the authorities’ does not in terms require that a transfer takes place on the other state’s territory. Article 4(1) refers to possible disembarkation in, or other transfer to, ‘a country’, without qualification. The ‘a country’ formulation arguably covers both Schengen states 51 ECtHR, Judgment of 23 February 2012 (GC), No 27765/09, Hirsi Jamaa and others v. Italy, paras 79 and 134. 52 See ECtHR, Judgment of 29 March 2010 (GC), No 3394/03, Medvedyev v. France, para 66–67, where the arrest of a vessel and its crew on the high seas led to their being within France’s jurisdiction for the purposes of the ECHR. 53 See the observations of the Frontex Fundamental Rights Officer in Frontex, Annual Report on the Implementation of Regulation (EU) 656/2014 (27 August 2020), p. 12–13. 54 Various formulations concerning cases other than disembarkation were put forward in the legislative process: see Council doc. 5831/14 of 4 February 2014, p. 28. The Commission proposal referred only ‘handing over’; both the European Parliament and the Council of Ministers proposed the addition of ‘forced to enter’; and, the European Parliament alone proposed adding ‘conducted towards’. It should be noted that ‘conducted towards’ is broader than ‘conducted to’, in that it involves a direction of travel, rather than a destination. 55 For apparent examples of practices of this kind at the Greek-Turkish maritime border, see the Final Report of the Frontex Management Board Working Group (Frontex, 1 March 2021). There is little doubt that such practices in themselves bring a vessel within a state’s jurisdiction for the purposes of the ECHR. See for example the assumption of jurisdiction in ECtHR, Judgment of 11 January 2001, Xhavara and others v. Italy and Albania, No 39473/98, para 1; ECtHR, Judgment of 3 February 2009, Women on Waves and others v. Portugal, No 31276/05, para 43, discussed in Papanicolopulu, International Law and the Protection of People at Sea, p. 151.

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and third countries.56 The inclusion of 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 should preclude expulsion or other types of return.57 A possible objection to this interpretation is that the term ‘third countries’ is used in Article 4(2), in relation to the assessment of a country (below, MN 9–11), and in Article 4(3), in relation to the procedures to be followed by the participating vessel (below, MN 12 and 13). Differences between the scope of Article 4(1) and other parts of Article 4 are logically possible, however. 8d It follows from the place of Article 4(1) within the Regulation that its guarantee against non-refoulement applies to all operations covered by the Regulation, including interceptions and rescues which take place extraterritorially. It is now clearly established that the CAT, the ECHR and the ICCPR apply to a state’s actions on the high seas where there is control over a person (see above, Article 1 MN 4c). All three instruments imply fundamental rights-based guarantees against non-refoulement, as does the CFR.58 In contrast, there is less certainty that the guarantee against nonrefoulement in the Refugee Convention, and by extension the right of asylum in Article 18 CFR, apply extraterritorially.59 The implication of Article 4(1) of the Regulation is that both fundamental rights-based and the international refugee law-based guarantees against non-refoulement have extraterritorial effect, where a Member State acts within a Frontex operation at sea.

III. Country information The first paragraph of Article 4(2), which concerns potential disembarkation – but not other types of transfer – requires a general assessment of the fundamental rights risks referred to in Article 4(1) in the planning of sea operations. This general assessment should be ‘coordinated’ with the participating states and the Frontex executive director, should be provided for in the operational plan, and should be updated as necessary. This provision is now out-of-step with the Frontex Regulation, which places the onus of drawing up the operational plan upon the Frontex executive director, with the agreement of the host Member State (author’s chapter on Frontex Regulation (EU) 2019/1896, Article 38 MN 1). 10 The second paragraph of Article 4(2) sets out the information upon which the general assessment should be 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 requirement to rely upon a broad range of information originated in a proposal by the Parliament.60 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.61 9

56

It also includes the special case of Ireland: see above, Article 2 MN 11. See ECtHR, Judgment of 21 January 2011 (GC), No 30696/09, MSS v. Belgium and Greece; ECtHR, Judgment 4 November 2014 (GC), No 29217/12, Tarakhel v. Switzerland ; ECJ, NS and ME, C-411/10 and C-493/10, EU:C:2011:865. 58 Article 3 CAT, Articles 2 and 3 ECHR, Articles 6 and 7 ICCPR, Articles 2 and 4 CFR. 59 On the Refugee Convention, see Den Heijer, Europe and Extraterritorial Asylum, p. 122–132. 60 European Parliament report A7-0461/2013 of 18 December 2013, Amendment 24. 61 ECtHR, Judgment of 23 February 2012 (GC), No 27765/09, Hirsi Jamaa and others v. Italy, para 118. 57

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Art. 4

Chp. 4

The third paragraph of Article 4(2) prohibits both disembarkation and other types of 11 transfer when the host Member State or another participating Member State is ‘aware or ought to be aware’ that the third country in question engages in practices covered by Article 4(1).62 This provision is in line with the finding in Hirsi Jamaa that the Italian authorities ‘knew or should have known’ about the treatment irregular migrants would face if returned to Libya.63 It goes further than the provision for the general assessment in placing a duty upon the host state and participating states. The failure to refer to the ‘awareness’ of the Agency itself must now be considered out-dated, given its central role in the planning of sea operations (above, MN 9).

IV. Processing individuals The first paragraph of Article 4(3) places obligations upon participating units with 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’.64 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 between the obligation to provide information as to the ‘destination’, whereas objection is contemplated only in relation to the ‘place of disembarkation’. In order to ensure full respect for the principle of non-refoulement, if the country of disembarkation and the planned destination differ, information ought to be given in relation to both, and it ought also to be possible to object to the final destination. The second paragraph of Article 4(3) requires that further details concerning onboard procedures be provided in the operational plan. It states that ‘when 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 for these persons is to be assessed relative to the operation as a whole (a narrower interpretation), or with reference to the particular individuals facing disembarkation or transfer (a broader interpretation). The Regulation does not specify the consequences of an objection to the place of disembarkation or intended destination. Who takes the initial decision whether to proceed, and on what basis? Can the disembarkation be suspended in an individual case, pending an administrative decision by an on-shore authority? Are there to be on-shore legal remedies, with suspensory effect, if a decision to proceed is taken?65 Arguably, all these matters ought to be addressed in the legislation and the operational plan. The list in Article 4(4) of categories of person with special needs that should be addressed is similar to a more general provision in Article 80(3) of the Frontex Regulation (chapter on Frontex Regulation (EU) 2019/1896, Article 80 MN 3). A related provision is Article 4(6) of the Sea Borders Regulation, which requires participating 62 The text of Article 4(2) refers to ‘participating Member States’ in the plural, but that is assumed here to refer to them separately. 63 ECtHR, Judgment of 23 February 2012 (GC), No 27765/09, Hirsi Jamaa and others v. Italy, para 131. 64 On the limitations to this formulation, see Den Heijer, in Zaiotti (ed), Externalizing Migration Management, p. 61–62. 65 See Den Heijer, in Zaiotti (ed), Externalizing Migration Management, p. 62.

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units to ‘fully respect human dignity’. That is also stated for members of Frontex teams in Article 43(4) of Frontex Regulation (EU) 2019/1896. These principles must be thought to apply both during the conduct of an operation, and in decision-making concerning potential locations for disembarkation, or other types of transfer. 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 data exchange may validly take place are not stated, e.g., as to 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.

V. To whom does Article 4 apply? The guarantees contained in Article 4 are stated to apply to all measures taken by Member States in accordance with the Regulation (Article 4(7)). The binding effect of Article 4 in respect of a host Member State must however be considered incomplete, as it will not be applicable where it engages in sea operations in parallel with a Frontex operation (see above, Article 1 MN 10). A different issue is posed by a breach of Article 4 guarantees by a participating unit from another state, as it will typically be acting partly at the host state’s request, but under the immediate command of the participating unit’s home state. In that case, it is arguable that both states are directly responsible for any violations of fundamental rights obligation as a matter of EU law.66 18 Article 4(7) also provides that Article 4 guarantees apply to Frontex itself, in its capacity as the organiser of sea joint operations involving sea border surveillance. That result is also achieved by is the general guarantee of respect for fundamental rights by the Agency in the Frontex Regulation (author’s chapter on Frontex Regulation (EU) 2019/1896, Article 80 MN 1). 17

VI. Training 19

Article 4(8) of the Sea Borders Regulation states that border guards and other staff participating in sea operations ‘shall be trained’ in relevant provisions of fundamental rights, refugee law and the international legal regime of search and rescue. It does not however state whether the obligation to provide training lies upon the Member States or upon Frontex. Article 4(8) may though be read together with the more extensive provision for training of members of Frontex teams in Frontex Regulation (EU) 2019/1896, Article 55(2) and (4). That specifies that the Agency is to ensure that, prior to their initial deployment, all members of its teams ‘have received adequate training in relevant Union and international law, including on fundamental rights [and] access to international protection’, and including ‘search and rescue’ for those who are to participate in sea operations.67 66 See the analysis in Fink, Frontex and Human Rights, especially at p. 270–271 and 312–313. Fink argues that the position would be different under the ECHR, where only the participating state would be directly responsible for the actions of its vessel: ibid., p. 126 and 176–177. 67 Because of its references to ‘border guards’ and ‘other staff’, and the lack of clarity as to whether the Agency or the Member State is responsible for training, Article 4(5) must be considered out of date by comparison with Article 55 of Frontex Regulation (EU) 2019/1896.

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Art. 5

Chp. 4

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 The essential purpose of the provisions for detection in Article 5 is to provide a basis for interception of a vessel for border surveillance reasons (see below, Articles 6–8). Where a vessel is detected for the purposes of Article 5, the participating units are to approach it, in order to observe its identity and nationality, and to survey it at a distance. Relevant information should be passed on to the International Co-ordination Centre responsible for the operation, which is based within the host state. Under Article 5(1), detection firstly concerns vessels ‘suspected of carrying persons 2 circumventing or intending to circumvent checks at border crossing points’. The Schengen Borders Code Regulation (EU) 2016/399 is relevant in interpreting this phrase, as it defines a ‘border crossing point’ as ‘any crossing-point authorised by the competent authorities for the crossing of external borders’ (see its Article 2(8)). For this case of detection, it is not necessary that there be any suspicion of material benefit to the organisers of the vessel’s journey. That is consistent with the Facilitation Directive (EC) 2002/90, which requires Member States to provide for ‘appropriate sanctions’ in respect of persons who assist another person to enter the territory of a Member State in breach of its immigration laws, which does not make material benefit as a precondition to such sanctions.68 68 Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence (OJ 2002 L 328/17), Article 1(1)(a). Member States have a discretion not to impose sanctions where ‘the aim of the behaviour is to provide humanitarian assistance to the person concerned’: see Article 1(2) of the same instrument. For criticism of the absence of a requirement of material benefit, see Carrera et al, Fit for

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Under Article 5(1), ‘detection’ secondly covers vessels suspected of being engaged in the smuggling of migrants by sea. In that case, the definition of ‘smuggling’ in the Migrant Smuggling Protocol is relevant. It requires both a material benefit to the smuggler (its Article 3(a)), and the involvement of a criminal organisation (its Article 4). 4 It is an open question whether Article 5 provides for participating units to approach vessels operated by humanitarian NGOs engaged in rescue missions. The situation will not be migrant smuggling in the sense of the Protocol, as neither material benefit to the NGO, nor criminal organisation, will be present.69 In order to bring such vessels within Article 5, it is therefore necessary that the disembarkation of rescued persons in a place of safety involves those persons and/or the vessel’s crew in ‘circumventing or intending to circumvent’ border checks. As against that, one might argue that the humanitarian activities of rescue and disembarkation are distinct in nature from evasion of border checks. 5 There is no express limitation in Article 5 upon the state whose checks at border crossing points are at risk of being circumvented, or towards which suspected migrant smuggling is taking place. In particular, there is no requirement that it be a Schengen state – i. e. ‘detection’ could in theory relate to vessels suspected of involvement in irregular sea migration towards a third country. Where the state in question is a Schengen state, it need not be a participant in the Frontex operation. 6 Article 5 does not expressly provide for a vessel which has been detected to be approached because of a potential situation of distress. Instead, where a vessel is detected for border surveillance 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.’ Specific provision for obligations concerning search and rescue is made in Article 9 (discussed below). 3

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.

purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants (European Parliament, 2016). 69 In respect of NGOs and the Migrant Smuggling Protocol, see Coppens, in Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea, p. 203.

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Art. 6

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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. 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 ..........................................................................

mn. 1 2 7

I. International law background Article 6 is concerned with the interception of vessels in the territorial sea of the 1 Member States – i. e. the waters up to twelve nautical miles from their coasts (UNCLOS, Article 3). 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)).70 Under the Regulation, interception measures are permitted in the territorial sea where there are reasonable grounds to suspect that a vessel is carrying persons intending to circumvent checks at border crossing points, or that it is involved in migrant smuggling (see above, 70

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

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Article 5 MN 2–4). In the case of ‘circumvention’, it is not expressly stated that the border checks must be those of the state in question. That limitation does though follow from the terms of Article 21(1)(h) of UNCLOS.

II. Interception Measures The Regulation provides for interception to be authorised in two stages. The first stage of interception is addressed by Article 6(1), which provides that a participating unit ‘shall’ be authorised to take ‘one or more’ of the following measures: (a) to 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; and, (b) to 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. 3 Where evidence is found confirming the suspicion of circumvention or of migrant smuggling, the second stage of interception 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; and, (c) to conduct the vessel or persons to the host state or another participating state, ‘in accordance with the operational plan’. 4 The fact that the territorial sea has been reached in itself brings the persons on the vessel within the jurisdiction of the coastal state. They are therefore protected against refoulement by virtue of ECHR principles, the Refugee Convention, and the corresponding provisions of the CFR, reinforced by Article 4 of the Regulation (above). That is confirmed by Article 3(1) to the Asylum Procedures Directive 2013/32/EU, which states that it applies inter alia to applications for international protection made in the ‘territorial waters’ of a state.71 The ECHR and CFR prohibitions on collective expulsion also apply in such a situation (see above, Article 4 MN 6–7). If legal guarantees against refoulement and collective expulsion are not to be undermined, the participating unit ought to permit the persons on board the intercepted vessel to indicate that they wish to claim international protection, or that they should not be expelled for some other reason.72 Where such an indication is given, the possibility of an application to the coastal state ought to be ensured. 5 Where persons intercepted in the territorial sea have not claimed international protection, or that they should not be expelled for some other reason, Article 13 of the Schengen Borders Code Regulation (EU) 2016/399 provides that the procedures set out in the Return Directive 2008/115/EC are applicable.73 The latter permits the 2

71 Asylum Procedures Directive 2013/32/EU (OJ 2013 L 180/60). No express reference to the territorial sea had appeared in the former Asylum Procedures Directive 2005/85/EC (OJ 2005 L 326/13). A reference to the ‘territorial waters’ was also included in the Asylum Reception Directive 2013/33/EU (OJ 2013 L 180/96), Article 3(1), having not appeared in the former Asylum Reception Directive 2003/9/EC (OJ 2003 L 31/18). 72 The effective ness of the opportunity to access international protection is among the questions that has been raised in respect of the Greek coast guard’s operations in 2020 at the maritime border with Turkey: see the March 2021 Final Report of the Frontex Management Board Working Group (1 March 2021), p. 4. 73 See the analysis in Commission note of 3 March 2021, ‘The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders’, p. 4–5.

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disapplication of its generally applicable rules in the case of a person intercepted in connection with an irregular crossing of the external sea border.74 If the Directive is disapplied in that case, a Member State must nevertheless respect the ‘principle of non-refoulement’.75 It must also ensure treatment and protection which is ‘at least as favourable’ as that provided for in the Directive concerning the following: the use of coercive measures, the possibility to postpone removal because of a person’s physical state or mental capacity, provision of emergency health care and making special provision available for vulnerable persons during such a postponement, and the conditions of detention.76 As they arise within territorial waters, the interception measures provided for in 6 Article 6 may apply to all vessels. In the case of vessels with a flag, 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 Article 6 interception is conditional upon authorisation by the coastal state concerned. 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 (‘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 interception 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 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 may be assumed that those measures are permitted in such a situation. Within Article 6, the adjective ‘neighbouring’ is used to qualify the participating 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 conclusion is reinforced by the lack of provision within Article 6 for interception in the territorial waters of non-neighbouring, but participating, states. A lacuna in Article 6 is the lack of provision for coastal states which are third countries to authorise interception.77 This is at odds with the provisions of the current Frontex Regulation, which permit Frontex to offer technical and operational assistance to third countries, on the basis of operational plans agreed with them (see above, Article 1 MN 12).

74 Return Directive 2008/115/EC, Article 2(2)(a) and Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 13 MN 2. 75 Return Directive 2008/115/EC, Article 4(4)(b). 76 Return Directive 2008/115/EC, Article 4(4)(a), which refers to its Articles 8(4), 8(5), 9(2)(a), 14(1)(b) and (d), 16 and 17. 77 For a similar observation, see Den Heijer, in Zaiotti (ed), Externalizing Migration Management, p. 62–63.

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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 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 202

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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 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..................................................................................

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I. International law background Article 7 addresses the legal position concerning interception measures on the high seas – i. e., outside of any state’s territorial waters (see Article 6) or contiguous zone (see Article 8). On the high seas, the core international law principle is 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 states other than the flag state to board and search a vessel (the ‘right of visit’) to cases of reasonable suspicion of the following: (a) engagement in piracy, (b) engagement in the slave trade; (c) engagement in unauthorised broadcasting (provided the intercepting vessel’s state has jurisdiction); (d) being without nationality; or, (e) concealing the fact that it is of the same nationality as the intercepting vessel. A state may also consent to another state’s right of visit to vessels flying its flag, either by treaty, or in an ad hoc manner.78 Jurisdiction to take enforcement measures in respect of a vessel which has been visited requires a separate justification in international and domestic law.79 2 No reference is made in Article 110 UNCLOS to any rights to take action in respect of a vessel on the high seas which is suspected of being involved in migrant smuggling.80 In the case of vessels with a nationality, an international law basis for both the right to visit and for subsequent enforcement measures is instead provided by Article 8 of the Migrant Smuggling Protocol.81 It permits a contracting state’s to request authorisation from the flag state to board and to search (i.e. to visit) a vessel suspected of being engaged in the smuggling of migrants. If evidence is found that the vessel is engaged in the smuggling of migrants, the flag state may give authorisation to take ‘appropriate measures’. While the flag state is under an obligation to respond ‘expeditiously’ to any requests, it is not obliged to give its consent either to boarding and searching, or to enforcement measures. 2a Since 2015, an exception has been made by the UN Security Council in respect of interception measures concerning vessels with a nationality on the high seas off Libya. Firstly, as regards the right to visit, it has authorised States and regional organisations ‘to inspect … vessels that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking from Libya’, provided they ‘make good faith efforts to obtain the consent of the vessel’s flag State’.82 The key innovation in this provision is that that the flag state’s consent is not actually required.83 Secondly, as regards enforcement, the UN Security Council has authorised Member States and regional organisations to seize 1

78 The possibility of permission by treaty is provided for by Article 110 UNCLOS. In relation to ad hoc consent, see Papastavridis, The Interception of Vessels on the High Seas, 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.’ 79 Papastavridis, The Interception of Vessels on the High Seas, p. 80–81. 80 See Scovazzi, in Rubio-Marín (ed), Human Rights and Immigration, p. 216–217. 81 Ibid., p. 217–220. 82 UN Security Council Resolution 2240/2015, 9 October 2015, para 7. The authority to inspect has been granted for 12 months at a time, and has been renewed annually, most recently by UN Security Council Resolution 2546/2020, 2 October 2020. 83 Coppens, in Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea, p. 211.

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such vessels, once inspected, if it is confirmed that they are being used for migrant smuggling or human trafficking from Libya.84 The position of stateless vessels is distinct. As we have seen (above, MN 1), 3 Article 110 UNCLOS permits a right to visit a vessel to check whether it is without nationality. There is disagreement among scholars as to whether international law permits enforcement measures, such as seizure of a vessel, if it is found to be engaging in some form of illicit activity. As enforcement measures are not expressly provided for in Article 110 UNCLOS, some writers treat the case of stateless vessels as a lacuna which has not been fully addressed by international law.85 As against that, Article 8(7) of the Migrant Smuggling Protocol provides that a State ‘shall take appropriate measures in accordance with relevant domestic and international law’ where a stateless vessel is found to be engaged in the smuggling of migrants.86 It must be considered anomalous that stateless vessels could be exempt from the legal regime under the Migrant Smuggling Protocol, given that it covers a large majority of the world’s states.87 Support for that reading is provided by the UN Security Council resolution of 9 October 2015 concerning irregular migration from by sea from Libya, in which it called upon ‘Member States acting nationally or through regional organisations that are engaged in the fight against migrant smuggling and human trafficking to inspect, as permitted under international law, on the high seas off the coast of Libya, any unflagged vessels that they have reasonable grounds to believe have been, are being, or imminently will be used by organised criminal enterprises for migrant smuggling or human trafficking from Libya, including inflatable boats, rafts and dinghies.’88 It is significant that the Security Council did not adopt a specific authorisation to enable inspection (i.e., the right to visit), or the related seizure of vessels, in the case of ‘unflagged’ vessels, as had done for vessels with a nationality (above, MN 2a). From the words ‘as permitted under international law’ it considered it unnecessary to do so, as such powers already existed in the case of stateless vessels.89 The international law background explains why Articles 7(1) and 7(2) of the Regula- 4 tion provide that interception measures on the high seas must be ‘in accordance with’ the Migrant Smuggling Protocol and 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 circumvent checks at border crossing points. If an intention to circumvent alone is suspected, Article 7(14) provides for a 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).

84 UN Security Council Resolution 2240/2015, 9 October 2015, para 8. The authority to seize vessels has also been granted for 12 months at a time, and renewed annually, most recently by UN Security Council Resolution 2546/2020, 2 October 2020. 85 See Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009), p. 16–18; Papastavridis, The Interception of Vessels on the High Seas, p. 264–267; Scovazzi, in RubioMarín (ed), Human Rights and Immigration, p. 219 86 See Coppens, in Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea, p. 214. 87 As of April 2021, there were 150 parties to the MSP, including the EU. States which are not parties include Guinea-Bissau, Iceland, Ireland, Israel and Morocco. 88 UN Security Council Resolution 2240 (2015), 9 October 2015, para 5. 89 In support of the lawfulness of action in respect of stateless vessels of the high seas, see Papanicolopulu, International Law and the Protection of People at Sea, p. 134–137.

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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 2–3): (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 Co-ordination 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, 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; and, (d) conduct the vessel or persons on board to the host Member State or another participating Member State.90 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 A significant aspect of these provisions is the power given by Article 7(2)(c) to conduct persons or a vessel to a third country. As that implies ‘effective control’ over the persons concerned, in all these cases, the non-refoulement guarantees in Article 4 of the Regulation (above, Article 4 MN 1–5) will be applicable, as will be ECHR and CFR guarantees against collective expulsion (above, Article 4 MN 6 and 7).91 5

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). The absence from the Regulation of an obligation to authorise such measures must be considered surprising, not least because of the terms of Article 8 of the Migrant Smuggling Protocol (see above, MN 2). 10 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 con9

The qualification ‘neighbouring’ has been disregarded: see above, Article 6 MN 9. As regards control over a vessel, ECtHR, Judgment of 29 March 2010 (GC), No 3394/03, Medvedyev v. France, discussed in the context of border control operations in Moreno-Lax, Hirsi Jamaa, p. 202–203. 90 91

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firmed, 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 provisions of Article 7(6) are broadly in line with Article 8(2) of the Migrant Smuggling Protocol, which permits requests 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 11 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 of 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 12 Migrant Smuggling Protocol, but authorises interception measures. 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, MN 1). If a vessel is a stateless, freedom of navigation on the high seas is not protected by 13 any state. As we have seen, there is a right of visit in such circumstances under Article 110 UNCLOS (above, MN 1), but further enforcement measures depend upon the provision for ‘appropriate measures’ in Article 8(7) of the Migrant Smuggling Protocol (above, MN 2). Article 7(11) of the Regulation may 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 either 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.

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Article 8 is concerned with interception in a Member State’s contiguous zone. This is an area outside the territorial waters which extends up to 24 nautical miles from the coast (Article 33(2) UNCLOS). Within it, a state may exercise such control as is necessary both to ‘prevent’ and to ‘punish’ the infringement, in its territory and territorial sea, of its ‘customs, fiscal, immigration or sanitary laws and regulations’ (Article 33(1) UNCLOS).92 Article 8(1) extends the provision for interception measures within the territorial sea (above, Article 6 MN 2 and 3) to the contiguous zone of the host state and of other participating states.93 It refers both to circumvention of border control and migrant smuggling. It does not however go as far as UNCLOS, in that 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. The possibility to authorise interception measures under Article 8(1) is limited to ‘relevant’ laws and regulations. In the context of this Regulation, and having regard to the text of the Frontex Regulation, that term probably refers only to laws and regulations concerned with immigration and border control and cross-border crime.94 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. If coercive 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 interception in the territorial waters, the EU asylum acquis does not apply (see above, Article 6 MN 4). Article 8(2) permits interception measures in the contiguous zone of a non-participating 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 on the high seas apply (see above, Article 7 MN 4). There is no provision for interception in the contiguous zone of a third country, in parallel with the Regulation’s silence concerning interception in a third country’s territorial waters (above, Article 6 MN 10). Where suspected stateless vessels are detected in a Member State’s contiguous zone, Article 8(3) provides for the application of Article 7(11) (see above, Article 7 MN 13). Accordingly, such 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.

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For a discussion, see Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 126–127. The qualification ‘neighbouring’ has been disregarded: see above, Article 6 MN 9. 94 In relation to cross-border crime, see in particular Articles 1, 3(h) and 10(q) of Frontex Regulation (EU) 2019/1896. 93

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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: (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. (e) 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. (f) 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; Ryan

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(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. (g) While awaiting instructions from the Rescue Coordination Centre, participating units shall take all appropriate measures to ensure the safety of the persons concerned. (h) 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. (i) 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. 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 ...............................................................................................

mn. 1 3

I. International law background 1

Article 9 is concerned with rescue, and aims to ensure that vessels involved in 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.95 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 …’

2

The premise of Article 9 is that Member States and their assets are engaged in border control operations, during which a search and rescue situation arises. As such, it is not concerned with the separate duty upon coastal states to make adequate provision for search and rescue, set out in the SOLAS Convention 95 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).

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(Chapter V, Regulation 7) and Article 98(2) of UNCLOS, and taken forward by the SAR Convention (see its Annex, Chapter 2). These obligations deriving from the international law of the sea are reinforced by 2a guarantees of the right to life in international human rights law.96 The Human Rights Committee’s General Comment 36 on Article 6 ICCPR (2018) provides that States are ‘required to respect and protect the lives of … those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea.’97 In 2020, the Committee applied that principle in its conclusions on complaints against Malta and Italy arising out of the 2013 Lampedusa tragedy (above, Article 1 MN 1). In respect of Malta, it found that the events took place within its jurisdiction because they occurred within its SAR zone, and because its authorities undertook responsibility for co-ordination of rescue efforts in the particular case.98 In respect of Italy, the Committee found that the events took place within its jurisdiction because of the involvement of its SAR co-ordination centre, and the proximity of an Italian naval vessel, and went on to conclude that delays on the part of the Italian authorities amounted to a violation of Article 6.99 The reach of right to life guarantees remain to be determined: a broader view is that states are subject to a ‘due diligence’ standard whenever they are aware of a situation of distress, while a more cautious approach would require the physical presence of a state’s assets at the rescue scene.100

II. Textual analysis Under the first sentence of Article 9(1), Member States are to render assistance to 3 vessels and persons in distress at seas, and are to ensure that their participating units comply with that obligation during Frontex sea operations. This sentence shows significant changes from the version proposed by the Commission. Within the Council of Ministers, six Mediterranean Member States argued that the EU had no competence in respect of search and rescue obligations, which derived from international law, and that it was preferable for search and rescue to be addressed within Frontex operational plans.101 Although the Council Presidency disagreed as regards competence102, the objections did lead to changes in the text agreed by the Council of Ministers, many of which were then retained in the final text of the legislation.103 Among those is the first sentence of Article 9(1), where the Commission approach of placing duties directly upon participating units was replaced by two references to a

96

For a discussion, see generally Trevisanut, Is there a right to be rescued at sea?. UN doc. CCPR/C/GC/36 (30 October 2018), para 63. 98 Human Rights Committee, decision of 13 March 2020 concerning Communication 3043/2017, AS and others v. Malta, UN doc. CCPR/C/128/D/3043/2017. The application was however found inadmissible for non-exhaustion of domestic remedies. 99 Human Rights Committee, views adopted on 4 November 2020 concerning Communication 3042/ 2017, AS and others v. Italy, UN doc. CCPR/C/130/D/3042/2017. 100 See, respectively, Trevisanut, Is there a right to be rescued at sea?, p. 11–14; and Papastavridis, The European Convention on Human Rights and Migration at Sea, p. 433–434. 101 The six states were Cyprus, France, Greece, Italy, Malta and Spain. Their objections were set out in Council doc. 14612/13 of 10 October 2013. 102 See Council doc. 14753/13 of 17 October 2013. 103 The three institutions’ proposed versions of Article 9, and the compromise outcome, are set out in Council doc. 5831/14 of 4 February 2014, p. 56–63. 97

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3a

4

5

6

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Member State’s ‘obligation’, while the phrase ‘in accordance with international law and in respect of fundamental rights’ was added.104 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. To give effect to the general obligation, Article 9(2) sets out various matters concerning the response of a participating unit that are to be provided for in the operational plan. The use of the operational plan in this way was a result of the objections by six Mediterranean Member States to the original Commission proposal (above, MN 3), which would have placed obligations directly upon the participating unit.105 The list of matters to be covered in the operational plan includes an obligation upon a participating unit to promptly transmit all available information to the Rescue Coordination Centre (RCC) for the SAR zone in question, and to place itself at the disposal of that RCC (Article 9(2)(a)). If the RCC is in a third country, and does not respond, the participating unit is to contact the RCC of the operation’s host state, unless another internationally recognised RCC is better placed to co-ordinate a search and rescue (Article 9(2)(i)). The obligation to provide information to the relevant RCC, set out in the operational plan, will arise when a participating unit has ‘reason to believe’ that they are faced with a situation of uncertainty, alert or distress, as regards any vessel or person on board (Article 9(2)(a)). Definitions of phases of ‘uncertainty’, ‘alert’ and ‘distress’ are provided (Article 9(2)(c), (d) and (e)) which are taken verbatim from para 4.4 of the Annex to the SAR Convention.106 The operational plan should also place obligations upon the participating unit without instructions of the RCC. While awaiting instructions from the RCC, participating units should take all appropriate measures to ensure the safety of the persons concerned (Article 9(2)(g)). If a vessel is considered to be in a situation of uncertainty, alert or distress, but the persons on board refuse assistance, the participating unit is to inform and take instructions from the RCC, and also to survey the vessel and to take any measure necessary for the safety of the persons concerned (Article 9(2)(h)).

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);

104 Compare the proposed Article 9(1) in Commission Proposal, COM(2013) 197 with the final text of Article 9(1) set out above. 105 Compare the proposed Article 9(2) in Commission Proposal, COM(2013) 197 with the final text of Article 9(2) set out above. 106 On the link to the SAR Convention, see Commission Proposal, COM(2013) 197, p. 6.

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(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. International law background ...................................................................... II. Textual analysis ...............................................................................................

mn. 1 3

I. International law background Article 10 is concerned with disembarkation after interception or rescue. Its main 1 purpose is to identify the default state for disembarkation in different circumstances, and to ensure provision for that in the operational plan. An interception is by definition initiated by a state’s vessel, and the international law 2 assumption is that the state in question should already have made provision for disembarkation. In a rescue scenario, in contrast, any states or vessels involved have responded to a humanitarian need, and 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.107 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 107 See generally Goodwin-Gill/McAdam, The Refugee in International Law, 3rd edn (OUP, 2007), p. 277–284.

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allow disembarkation.108 In international law, a definitive default solution for disembarkation therefore remains lacking.109

II. Textual analysis In the case of interception in a Member State’s territorial sea or contiguous zone, 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 (see above, Article 6 MN 3). 4 In the case of interception on the high seas, disembarkation may either take place in 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. 5 In the case of rescue, the starting-point is similar to the 2004 amendments to the 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 when it is arranged. There are no restrictions on the state of disembarkation, other than the general limitations linked to non-refoulement (above, Article 4 MN 1–5). Crucially, 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. (Note that the amendments to the SOLAS and SAR Conventions adopted in 2004 did not specify this default solution.)110 3

Article 11 Amendment to Regulation (EC) No 2007/2004 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.

108 Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 138–142; Scovazzi, in Rubio-Marín (ed), Human Rights and Immigration, p. 230–231. Malta has not accepted these amendments: see Klepp, A Double Bind, p. 549–550; Trevisanut, Search and Rescue Operations in the Mediterranean, p. 531. 109 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, Search and Rescue Operations in the Mediterranean, p. 530. 110 See now SOLAS Convention, Chapter V, Regulation 33.1.1, SAR Convention, Annex, para 3.1.9.

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Article 12 Solidarity mechanisms 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 Report 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 Effects of Decision 2010/252/EU 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 Entry into force 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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Chapter 5. Schengen Borders Code Regulation (EU) 2016/399 Select Bibliography: Brouwer, Digital borders and real rights: effective remedies for third-country nationals in the Schengen information system, Immigration and Asylum Law and Policy in Europe, Vol. 15 (Brill Nijhoff, 2008); 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; Groenendijk/ Guild/Minderhoud (eds), In Search of Europe’s Borders (Kluwer, 2003); Montaldo, ‘The COVID-19 Emergency and the Reintroduction of Internal Border Controls in the Schengen Area: Never Let a Serious Crisis Go to Waste’, European Papers 5 (2020), p. 523–531; 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, ‘The Future of the Schengen System’, Swedish Institute for European Policy Studies, Report No 6 (2013); Progin-Theuerkauf/Zoeteweij-Turhan/Turhan, ‘Chapter 9: Smart Borders and Data Protection’, in: Tzanou (ed), Personal Data Protection and Legal Developments in the European Union (IGI Global, 2020), p. 169–201; Progin-Theuerkauf, ‘Schutz der und Zusammenarbeit an den Aussengrenzen’, in: Wollenschläger (ed), Enzyklopädie Europarecht, Vol. 10, 2nd edn (Nomos, 2020); Progin-Theuerkauf, ‘The EU Return Directive – Retour à la “case départ”?’, suigeneris (2019), p. 32–48; Thym/Bornemann, ‘Schengen and Free Movement Law during the first phase of the COVID-19 pandemic: Of symbolism, law and politics’, European Papers 5 (2020), p. 1143–1170. 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.

Consolidated text: 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) (codification) Official Journal L 77, 23.3.2016, p. 1–52; as amended by Regulation (EU) 2016/1624, Official Journal L 251, 16.9.2016, p. 1–76; Regulation (EU) 2017/458, Official Journal L 74, 18.3.2017, p. 1–7; Regulation (EU) 2019/817, Official Journal L 135, 22.5.2019, p. 27–84 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 77(2)(b) and (e) 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: […] HAVE ADOPTED THIS REGULATION:

(1) Position of the European Parliament of 2 February 2016 (not yet published in the Official Journal) and decision of the Council of 29 February 2016.

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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 Union. It lays down rules governing border control of persons crossing the external borders of the Member States of the Union. Content mn. I. General remarks .............................................................................................. 1 1. Introduction and purpose of the regulation......................................... 1 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 2016/399 ................................................... 21

I. General remarks 1. Introduction and purpose of the regulation Regulation (EU) 2016/3991 (hereinafter: the Schengen Borders Code) provides for 1 the absence of 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 controls is to help combat illegal immigration and trafficking in human beings and to protect the security of the Schengen area. Border checks carried out by one Member State at its external borders are executed on behalf of all the other Member (resp. Schengen) States, since controls at internal borders are abolished. Internal border controls may only be re-introduced exceptionally and temporarily in the event of a serious threat to the public policy or internal security in a Member State or the whole Schengen area (Articles 25–35). In that sense, the provisions on external and internal border controls are interdependent. Regulation (EU) 2016/399 entered into force on 12 April 20163 and is a development 2 of 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 repealed Regulation (EC) 562/20064, 1 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) (codification), OJ 2016 L 77/1. 2 See the definition in Article 2 (1) of Regulation 2016/399. 3 Article 45 of Regulation 2016/399 foresees the entry into force on the twentieth day following that of its publication in the Official Journal. 4 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 Regulation (EU) No 1051/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 295/1).

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which for the first time combined in one single instrument the existing rules of the acquis on border controls. Before 2006, these rules were found in the Convention implementing the Schengen Agreement (CISA), the Common Manual and a number of decisions of the Schengen Executive Committee. Regulation (EC) 562/2006 itself had been amended not less than six times5 between 2006 and 2013. Regulation (EU) 2016/ 399 codified these changes, without however modifying the content of the regulation. 3 Regulation 2016/399 is part of the European Union’s policy of external border control and management. Other important instruments in that field include: – The provisions of the CISA on border controls that are still applicable (i.e. that have not been repealed, cf. below MN 20–25); – the Practical Handbook for Border Guards (Schengen Handbook);6 – the regulation on the European Border and Coast Guard ‘FRONTEX’;7 The responsibility for the implementation of the rules laid down in Regulation 2016/ 399 lies with the Member States. Nevertheless, in order to coordinate and strengthen cooperation between the Member States, in particular with regard to Title II of Regulation 2016/399,8 FRONTEX, originally called the “European agency for the management of operational cooperation at the external borders”, was established in 2004.9 It has its seat in Warsaw, Poland.10 FRONTEX became operational on 3 October 2005.11 It was turned into the European Border and Coast Guard in 2016.12 In 2019, its mandate was again enlarged and is currently governed by Regulation (EU) 2019/ 1896, which also integrated the provisions on the European Border Surveillance System EUROSUR (and thus repealed the former EUROSUR Regulation13) – the rules on local border traffic;14 and – the regime on carrier sanctions.15 5 Regulation (EC) No 296/2008 of the European Parliament and of the Council of 11 March 2008 (OJ 2008 L 97/60); Regulation (EC) No 81/2009 of the European Parliament and of the Council of 14 January 2009 (OJ 2009 L 35/56); Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 (OJ 2009 L 243/1); Regulation (EU) No 265/2010 of the European Parliament and of the Council of 25 March 2010 (OJ 2010 L 85/1); Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182/1); Regulation (EU) No 1051/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 295/1). See also Treaty concerning the accession of the Republic of Croatia to the European Union (OJ 2012 L 112/10). 6 Commission Recommendation, C(2019) 7131 final. 7 Regulation (EU) 2019/1896 of 13 November 2019 on the European Border and Coast Guard (OJ 2019 L 295/1); completed by Regulation (EU) No 656/2014 of 15 May 2014 (Sea Borders Regulation). 8 See Article 16 and 17 Regulation 2016/399. 9 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). 10 See Article 93(5) of Regulation (EU) 2019/1896. 11 See in more detail the commentaries by Ryan on the Frontex Regulation (EU) 2019/1896 and on the Sea Borders Regulation (EU) 656/2014, in this volume. 12 Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ 2016 L 251/1). 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 2013 L 295/11). 14 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); Corrigendum in OJ 2007 L 29/3. 15 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 (OJ 2001 L 187/45); Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data

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The control of external borders and especially the combating of illegal immigration is 4 furthermore also one of the most important goals of the European Union’s visa policy.16 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 is a vital instrument being used during the examination of visa applications. The Visa Information System (hereinafter: VIS)17, which became operational in 5 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(c) and (d) 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 6 in conjunction with Article 8 Regulation 2016/399 (Article 18 VIS Regulation). Harmonized rules and procedural guarantees also apply to third-country nationals 6 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 6 Regulation 2016/399 and do not have any other right for entry, stay or residence in any Schengen state: The Return Directive 2008/115/EC18 obliges the Schengen States to issue a return decision against such individuals. If these third-country nationals 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 7 the exception of the non-European territories of France and the Netherlands.19 The United Kingdom and Ireland never opted in to the Schengen Borders Code. Since 2020 (effectively since the expiry of the transition period in 2021), the United Kingdom is no longer an EU Member State, and therefore has no perspective of joining the Schengen area, except if a new bilateral agreement is negotiated. In December 2020, Gibraltar has decided to join the Schengen area for a temporary period of up to four years. Denmark does in general not participate in the adoption of measures based on 8 Part III Title V TFEU (Article 1, 2 of Protocol No 22 on the Position of Denmark). (OJ 2004 L 61/24). On carrier sanctions see for example Rodenhäuser, ‘Another Brick in the Wall: Carrier Sanctions and the Privatization of Immigration Control’, IJRL 26 (2014), p. 223–247; Karanja, Transparency and Proportionality in the SIS and Border Control Cooperation (Brill Nijhoff, 2008), p. 369 et seqq. 16 See Thym, Legal Framework for Entry and Border Controls, MN 9–15; Lehner, ‘§ 28 Gemeinsame Visapolitik’, in: Wollenschläger (ed), Europäischer Freizügigkeitsraum – Unionsbürgerschaft und Migrationsrecht (Nomos, 2021), p. 1019 et seqq. On the interaction of these areas see also Cholewinski, in Groenendijk/Guild/Minderhoud (eds), In Search of Europe’s Borders, p. 105, 127 et seq. 17 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), last amended by Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 (OJ 2019 L 135/27). 18 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/Moraru, Return Directive 2008/115/EC, in this volume; Progin-Theuerkauf, The EU Return Directive, p. 32–48. 19 Recital 21 of Regulation 562/2006.

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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 2016/399. 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 Regulation 2016/399 is therefore not directly applicable, and the general rules on judicial protection do 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.20 9 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).21 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.22 10 Regulation 2016/399 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 Convention23 does not provide otherwise (Article 41 Regulation 2016/399).24 According to that declaration,25 the controls 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 2016/399 concerning the admissibility of controls at internal borders and within a Member State. As far as this declaration does not provide special rules, Regulation 2016/399 is also applicable to these territories. 11 By reason of their association agreements to the Schengen acquis the non-EUMember States Iceland and Norway26 as well as Switzerland27 and the Principality of Liechtenstein28 are bound by and fully applying the Schengen Borders Code Regulation.

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On the position of Denmark see also above Thym, Constitutional Framework, MN 40–41. 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, EU Justice and Home Affairs Law. Vol. 1, 4th edn (OUP, 2016), p. 88–90. 22 The list of ‘full’ Schengen States is found in the Schengen Handbook, Part One, 1. 23 OJ 2000 L 239/69. 24 See also recital 21, and already Article 138 of the Schengen Implementation Convention. 25 OJ 2000 L 239/73. 26 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). 27 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). 28 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). 21

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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 area29 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. 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).30 Regulation 2016/399 takes these protection obligations into account in several provisions:31 – Recital (36) and Article 3(b) clearly state that the provisions of Regulation 2016/399 should be applied in accordance with the Member States’ obligations as regards the rights of refugees and persons requesting international protection, in particular as regards non-refoulement. – The imposition of penalties for unauthorised crossing of the external borders in Article 5(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 6(5)(c) provides for possible derogations from the entry conditions of Article 6(1) among other reasons on grounds of international obligations or for humanitarian reasons. – Article 7(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 14(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 6 are not fulfilled. Point 12 of Part Two, Section 1 of the Schengen Handbook states very clearly that all applications for international protection at the border must be examined, 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 asylum procedures within the territory. It is questionable whether a general right of entry has to be granted to persons seeking international protection, if the conditions of Article 6 Regulation 2016/399 are not fulfilled, but the entry would be the only way 29

See below the comments on Article 6. See in more detail and with further references Epiney/Waldmann/Egbuna-Joss/Oeschger, ‘Maximen und Verfahren im regulären und beschleunigten Asylverfahren’, in: UNHCR/SFH (eds), Schweizer Asylrecht, EU-Standards und internationales Flüchtlingsrecht – Eine Vergleichsstudie (Stämpfli, 2009), p. 199–300, 203 et seqq. 31 See also point 12 of Part Two, Section 1 of the Schengen Handbook. 30

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for persons seeking international protection to ask for that protection according to the relevant European Union rules, especially the Qualification Directive32. As far as the Asylum Qualification Directive 2011/95/EU 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 the European Union’s territory. The Asylum Procedures Directive 2013/32/EU33 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/EU, emphasis added). According to Article 43 Asylum Procedures Directive, 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/EU (Article 43(1)). According to Article 43(2), Member States must ensure that a decision on the application is 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/EU. 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. 16 If persons seeking international protection are intercepted at sea outside of EU territory and therefore not able to reach the external border as defined in Article 2(2) Regulation 2016/399, Member States are nonetheless bound by international human rights law. The ECtHR has made clear that States must grant at least a provisional right of entry, for the purpose of assessing whether a person will run a risk of violation of Article 3 ECHR in case of return. The fact that they are still in international waters does not change anything. Persons are to be regarded as being within the ‘jurisdiction’ of a State within the meaning of Article 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’34 over them, irrespective of the fact that this control might be exercised on a vessel outside their territory (see Thym, Legal Framework for Entry and Border Controls, MN 38–41)35. 17 The jurisprudence of the ECJ on this issue remains somewhat unclear. In ANAFE36, 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 14 Regulation 2016/399) unless they are covered by an exception laid down in Article 6(4) Regulation 2016/399. 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 Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180/60). 34 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. 35 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. 36 ECJ, ANAFE, C-606/10, EU:C:2012:348, paras 39–41.

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Article 6(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 6(1). Even though the Court also stressed that the Schengen Borders Code is without prejudice to the rights of refugees and persons requesting international protection, in particular as regards non-refoulement (Article 3(b) Regulation 2016/399), 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 entry37. The conclusion must be drawn that neither the provisions of the Schengen Borders 18 Code nor of the Asylum Procedures Directive 2013/32/EU can be interpreted in the sense of a ‘right of entry’ in order to request international protection. However, 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 604/201338 or by examining the application themselves in 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/EU 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 19 protection used to be restricted for the areas of law covered by Title IV EC Treaty which of course also included the rules of the Schengen Borders Code. 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. Fortunately, the Treaty of Lisbon improved the judicial protection in this area. The 20 Treaty on the Functioning of the European Union (TFEU) does not contain any provision 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 2016/399 The abolition of checks at internal borders and the transfer of those checks to the 21 external borders was the main subject and purpose of the Schengen Convention of 1985 37

See Cornelisse, What’s wrong with Schengen?, p. 766. 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). 38

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(Article 17) and the Convention implementing the Schengen Agreement of 1990 (hereinafter: CISA, Title II, Article 2–8). Article 2(1) CISA 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 CISA. Article 5 CISA 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) CISA 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 CISA established an obligation of cooperation between the participating States, and Article 8 CISA 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 Manual39 detailing in its Part I the conditions for entering the Schengen area and giving practical guidance for the implementation of Article 3–5 CISA, and in Part II the carrying out of border checks at the external borders and therewith supplementing Article 6–7 CISA.40 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 CISA, the Decision of the Executive Committee establishing the Common Manual and five more decisions of the Committee.41 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.42 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 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.43 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

39 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). 40 See Peers, Key Legislative Developments, p. 324 et seqq. 41 See Peers, Key Legislative Developments, p. 324. 42 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, Commission v. Council, C-257/01, EU:C:2005:25. 43 See Commission Proposal, COM(2004) 391 final, p. 6.

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States favoured the Commission’s proposal to separate the legal instrument from the practical handbook.44 The Commission drafted and released a proposal for a regulation in May 2004.45 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 amended46 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 2005,47 and the Schengen Borders Code Regulation 562/2006 was formally adopted on 15 March 2006. Regulation 562/2006 entered into force on 13 October 2006 with the exception of 26 Article 34. Article 34 established 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 (Article 39 Regulation 562/2006): – art 2–8 CISA; – 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. Regulation 562/2006 was amended by six regulations: 27 – Regulation 296/200848 amending the existing rules on the implementing powers of the Commission; – Regulation 81/2009 regarding the use of the VIS under the Schengen Code49; – the Visa Code Regulation (EC) No 810/200950; – Regulation 265/2010 concerning the movement of persons with a long-stay visa51; – Regulation 610/201352 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 44 See Commission Proposal, COM(2004) 391 final, p. 6 et seqq.; see also Peers, Key Legislative Developments, p. 326 et seqq. 45 Commission Proposal, COM(2004) 391 final. 46 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). 47 See Peers, Key Legislative Developments, p. 329 for possible reasons for the first-reading agreement. 48 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). 49 OJ 2009 L 35/56. 50 OJ 2009 L 243/1. 51 OJ 2010 L 85/1. 52 OJ 2013 L 182/1.

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– Regulation 1015/201353 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. One of the goals when drafting what later became Regulation 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’54 with a view to ensuring an effective and harmonized implementation of the common rules on border control. In 2016, the 2006 Schengen Borders Code was recast and the modifications made by the six subsequent regulations adopted between 2008 and 2013 were codified and embedded in the text of the Borders Code. Regulation (EU) 2016/39955 entered into force on 12 April 2016.56 An updated version of the Schengen Handbook was also published in 2019.57 As mentioned before, the provisions of the Schengen Handbook are still only recommendations and not legally binding. Since its entry into force in 2016, Regulation (EU) 2016/399 was already amended three times, by the following regulations: – Regulation (EU) 2016/162458 on the European Border and Coast Guard (no longer in force, as repealed by Regulation (EU) 2019/189659); this regulation transformed FRONTEX into the European Border and Coast Guard (still called FRONTEX) and enlarged its mandate; – Regulation (EU) 2017/45860 amending Regulation (EU) 2016/399 as regards the reinforcement of checks against relevant databases at external borders; this regulation extends the obligation to carry out systematic border checks at the external land, sea, and air borders to EU citizens and persons enjoying a right to free movement in the EU (and not only to third-country nationals, as was the case before). It was argued that this was necessary, as an estimated number of 5’000 EU citizens had travelled to conflict zones and joined terrorist groups such as ISIL/Da’esh. Some of the returning foreign fighters had later been involved in terrorist attacks in Europe; the control of EU nationals at external borders was therefore considered to be important in the fight against terrorism. – Regulation (EU) 2019/81761 on establishing a framework for interoperability between EU information systems in the field of borders and visa. It aims at interconnecting the Entry Exit System (EES), the Visa Information System (VIS), the European Travel Information and Authorisation System (ETIAS) and (parts of) the Schengen Information System (SIS). The regulation, together with Regulation (EU)

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OJ 2013 L 295/1. 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 Recommendation, COM(2011) 3918 final, Commission Recommendation, COM(2012) 9330 final. 55 See above MN 1. 56 Article 45 of Regulation 2016/399. 57 Commission Recommendation, C(2019) 7131 final. See above MN 6. 58 OJ 2016 L 251/1. 59 OJ 2019 L 295/1. 60 OJ 2017 L 74/1. 61 OJ 2019 L 135/27. 54

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2019/81862 allowing the interoperability of databases in the area of police and judicial cooperation, asylum and migration (Eurodac, ECRIS-TCN and parts of SIS), is part of the EU’s plan to create Smart Borders, i.e. borders that can be better and more easily controlled by using existing and new digital systems.63 In 2017, the European Commission published a proposal64 aiming at a reform of 32 Articles 25 et seqq. of the Schengen Borders Code on the reintroduction of border controls at internal borders. The Commission namely plans to modify the deadlines foreseen in those articles. The proposal has not yet been adopted. Another amendment of the Schengen Borders Code has already been decided: The 33 launch of the European Travel Information and Authorisation System (ETIAS)65, an automated IT system created to identify security, irregular migration or high epidemic risks posed by visa-exempt visitors travelling to the Schengen States, and the EntryExit-System (EES)66, an automated IT system for registering all travelers from thirdcountries (short-stay visa holders and visa exempt travelers) each time they cross an EU external border, which are expected to be operational in 2022, will lead to a modification of the entry conditions for third-country nationals (Article 6) and the border checks that will be carried out on them (Article 8).67

Article 2 Definitions For the purposes of this Regulation the following definitions apply: 1. ‘internal borders’ means: (a) he 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;

62 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 field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 (OJ 2019 L 135/85). 63 For an in-depth discussion of interoperability see Progin-Theuerkauf/Zoeteweij-Turhan/Turhan, in Tzanou (ed), Personal Data Protection and Legal Developments in the European Union, p. 169–201. 64 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at internal borders, COM(2017) 571 final. 65 Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ 2018 L 236/1). 66 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, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011, OJ L 327, 9.12.2017, p. 20–82. See also Regulation (EU) 2017/2225 of 30 November 2017 amending Regulation (EU) 2016/399 as regards the use of the Entry/Exit System (OJ 2017 L 327/1). 67 For more information on EES and ETIAS see Progin-Theuerkauf/Zoeteweij-Turhan/Turhan, in Tzanou (ed), Personal Data Protection and Legal Developments in the European Union, p. 169–201.

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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) TFEU, and third-country 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(1) 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 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) TFEU 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 Articles 24 and 26 of Regulation (EC) No 1987/2006 of the European Parliament and of the Council(2); 8. ‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders; 9. ‘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; 10. ‘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; 11. ‘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; 12. ‘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; (1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/ EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30.4.2004, p. 77). (2) 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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Chp. 5

Art. 2

13. ‘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); 14. ‘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; 15. ‘carrier’ means any natural or legal person whose profession it is to provide transport of persons; 16. ‘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(3) 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 39, 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(4); 17. ‘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; 18. ‘pleasure boating’ means the use of pleasure boats for sporting or tourism purposes; 19. ‘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; 20. ‘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 under the international law of the sea, and who returns regularly by sea or air to the territory of the Member States; 21. ‘threat to public health’ means any disease with epidemic potential as defined by the International Health Regulations of the World Health Organization 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. II. III. IV.

General remarks .............................................................................................. Internal borders (Article 2(1)) ..................................................................... External borders (Article 2(2))..................................................................... Persons enjoying the right of free movement and third-country nationals (Article 2(5) and (6)).................................................................... V. Threat to public health (Article 2(21)) ......................................................

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(3) 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). (4) 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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Chp. 5 Art. 2

Schengen Borders Code Regulation (EU) 2016/399

I. General remarks 1

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

II. Internal borders (Article 2(1)) Article 2(1) defines ‘internal borders’ as the common borders of ‘the Member States’, thereby in principle also including the borders between Schengen States and Non-Schengen Member States.68 However, Non-Schengen Member States are not bound by Regulation 2016/399 and the obligation set up by Article 20 to abolish border checks at the internal border. According to Protocol (No 20) on the application of certain aspects of Article 26 TFEU to the United Kingdom and to Ireland (1997)69, Ireland is still entitled to maintain controls at its borders (the United Kingdom having left the European Union). Article 2(1) must therefore be interpreted as meaning only ‘the Schengen Member States’, not the EU Member States in general. 3 As the Schengen acquis has also been extended to some Non-member States (Norway, Iceland, Switzerland and Liechtenstein), border controls are also 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. 2

III. External borders (Article 2(2)) 4

External borders are defined negatively, i.a. as all borders that are not internal borders. Again, only external borders of Schengen members, not of EU members, are external borders in the sense of that provision.

IV. Persons enjoying the right of free movement and third-country nationals (Article 2(5) and (6)) 5

Article 2(5) and (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 narrower than the notion of ‘alien’ in Article 1 CISA. Article 1 CISA defined aliens as ‘any person other than a national of a Member State’, whereas ‘thirdcountry national’ in sense of Article 2 (6) of Regulation 2016/399 means any person who is not a Union citizen within the meaning of Article 20(1) TFEU and who is not covered by Article 2(5) of Regulation 2016/399, therefore excluding from the scope of the regulation all EU citizens and their family members (whatever their nationality) enjoying the right of free movement as well as third country nationals and their family 68 69

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See above Article 1 MN 7 et seqq. OJ 2006 C 321 E/196.

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Art. 2

Chp. 5

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.70 The question if a person is to be considered a third-country national under the 6 regulation is important, as several articles of Regulation 2016/399 provide for less favourable rules as far as third-country nationals are concerned (for example in Article 6 regarding entry conditions). When exactly it can be presumed that a bilateral agreement grants rights that are 7 equivalent to the free movement rights of EU citizens and their family members is difficult to determine. A decisive factor seems to be whether the agreement grants rights to the same categories of persons than EU free movement law (i.e. the fundamental freedoms and EU citizenship), including to persons not exercising any economic activity. A full equivalence is, however, not necessary. The larger definition of ‘aliens’ according to Article 1 CISA remains relevant for 8 the provisions of the CISA that are still applicable.71 According to Article 134 CISA, the CISA is, however, only applicable as far as it is in conformity with EU law, so that the exercise of the right to free movement pursuant to EU law may in no way be impeded by the provisions of the CISA that have not been repealed.

V. Threat to public health (Article 2(21)) A threat to public health is defined as ‘any disease with epidemic potential as defined 9 by the International Health Regulations of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States’. The notion of ‘public health’ was and is of particular importance in the light of the COVID-19 pandemic. It is important to note that public health is not mentioned as a reason to reintroduce border controls according to Articles 25 et seqq. of Regulation 2016/399.72 This does not mean that reasons of public health cannot justify the reintroduction of border controls at the internal borders; however, the threat must be ‘severe’, meaning that it must have a dramatic social and/or economic impact, as it was the case during the COVID-19 pandemic.73 With regard to third-country nationals entering and exiting the Schengen zone, 9a Articles 6(1)(e)) and 8 (3)(a)(vi) and (g)(ii) foresee a systematic assessment of whether they are a threat to public health. Since 2017 (Regulation 2017/458), the same applies with regard to persons enjoying the right to free movement (Article 8(2)(b) and (2a)).74 As mentioned above, ‘simple’ threats to public health can justify individual travel restrictions, but cannot justify the reintroduction of border controls under Articles 25 et seqq.

70 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). 71 For example Article 22 CISA concerning the obligation of aliens to register with the authorities. According to Article 39(1) of Regulation No 562/2006, only Articles 2–8 CISA were repealed. As Regulation 2016/399 repealed Regulation 562/2006, the other articles of the CISA are still in force. 72 See Articles 25–35 MN 11. 73 Idem. For a detailed discussion see Thym/Bornemann, Schengen and Free Movement Law, p. 1148. 74 See Article 8 MN 4 et seqq.

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Chp. 5 Art. 3 10

Schengen Borders Code Regulation (EU) 2016/399

The notion of ‘public policy or internal security’ used by Articles 25 et seqq. is not defined in Article 2.75 It is an autonomous term of EU law that has to be interpreted in the light of the case-law of the ECJ, interpreting other provisions referring to these notions.76 It can also encompass reasons of public health, but only where they have a severe impact.77

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)) ................................................................................

mn. 1 2 5

I. General remarks 1

Article 3 explicitly leaves the rights of persons enjoying the right of free movement and of refugees and 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 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 6. 3 The European Court of Justice ruled in MRAX78 in favour of a right of entry for a 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 their identity and the existence of their marriage in 2

75 See Thym/Bornemann, Schengen and Free Movement Law, p. 1148; Progin-Theuerkauf, ‘Grenzkontrollen und Einreiseverbote freizügigkeitsberechtiger Personen in Zeiten von COVID-19’, Jusletter Coronavirus-Blog of 30 April 2020, available at: https://jusletter.weblaw.ch/blog/progin.html; Montaldo, The COVID-19 Emergency, p. 523–531, 527 et seq. 76 For example Article 45(3) TFEU. 77 See Thym/Bornemann, Schengen and Free Movement Law, p. 1143, 1148. 78 ECJ, MRAX, C-459/99, EU:C:2002:461.

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Art. 4

Chp. 5

another manner, provided that they do 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-503/0379, 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 (Article 96 CISA). An ‘automatic’ refusal of entry according to Articles 5 and 15 CISA in cases of an existing alert would not be compatible with the requirements of EU law, which, according to Article 134 CISA, takes precedence over the CISA. EU law requires the authorities to examine in each case if the individual behaviour of the person concerned constitutes 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 Regulation 2016/399, considering that the requirements for an alert for the refusal of entry of a third-country national are much lower than for a refusal of entry of thirdcountry family member of a Union citizen exercising his or her right to free movement.80 In this context, it should further be recalled that, pursuant to the findings of the ECJ in the Metock case81, the right of stay of third-country nationals that are family members of a Union citizen is not (or no longer)82 dependent on a previous legal stay in the EU territory.83

III. The rights of refugees and persons requesting international protection (Article 3(b)) According to Article 3(b), the rights of refugees and persons requesting interna- 5 tional protection, in particular as regards non-refoulement, 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.84

Article 4 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’), 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. 79

ECJ, Commission v. Spain, C-503/03, EU:C:2006:74. See also Eicke, in Groenendijk/Guild/Minderhoud (eds), In Search of Europe’s Borders, p. 150, 160 et seqq. 81 ECJ, Metock, C-127/08, EU:C:2008:449. 82 See the previous different findings in the Court’s judgment in the Akrich case, ECJ, Akrich, C-109/01, EU:C:2003:491. 83 See the detailed analysis of the Metock judgment and its embedding in the previous jurisprudence of the Court in Epiney, ‘Von Akrich über Jia bis Metock: zur Anwendbarkeit der gemeinschaftlichen Regeln über den Familiennachzug – Gleichzeitig eine Anmerkung zu EuGH, Rs. C-127/08 (Metock), Urt. v. 25.7.2008’, Zeitschrift Europarecht (2008), p. 840–858. 84 See the detailed comments on Article 1 MN 15 et seqq. 80

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Chp. 5 Art. 5

Schengen Borders Code Regulation (EU) 2016/399

Article 4 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 derived from the EU Charter of Fundamental 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-refoulement85. 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)86, 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 the Schengen Borders Code 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 amendment87. 1

TITLE II EXTERNAL BORDERS CHAPTER I Crossing of external borders and conditions for entry Article 5 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 39. 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 39; (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 19 and 20 in conjunction with Annexes VI and VII. 85 On the protection of the rights of persons seeking international protection see above Article 1 MN 12–18. 86 See ECJ, Zakira, C-23/12, EU:C:2013:24. 87 ECJ, European Parliament v. Council, C-355/10, EU:C:2012:516, paras 76–77.

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Art. 5

Chp. 5

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. Those penalties shall be effective, proportionate and dissuasive. Content I. General principles on the crossing of external borders (Article 5(1)) II. Possible derogations (Article 5(2)).............................................................. III. Penalties for the illegal crossing of external borders (Article 5(3)).....

mn. 1 4 6

I. General principles on the crossing of external borders (Article 5(1)) Title II (Articles 5–21) regulates the controls at external borders. 1 Article 5 establishes that external borders may only be crossed at the designated 2 border crossing points and during the fixed opening hours (Article 5(1)). The opening hours must clearly be indicated at border crossings that are not open 24 hours a day. According to Article 39(1)(b) Regulation 2016/399, Member States have to notify 3 their border crossing points to the Commission, the information is published in the Official Journal.88 The competent national authorities have to carry out border surveillance pursuant to Article 13 in order to prevent unauthorised border crossings.

II. Possible derogations (Article 5(2)) Article 5(2) provides for derogations from Article 5(1) in the event of an unfore- 4 seen 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 was amended by Regulation 610/2013 in an attempt to clarify it, its exact meaning still remains obscure. The provision provides no further guidance on what kind of requirements are to be considered as being ‘of special 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 policy 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 5(2)(a). In situations that fall under Article 5(2)(a) and (b), Member States are also allowed to provide for derogations from the rules set out in Article 8 (border checks on persons) (Article 8(8) Regulation 2016/399).

88 The notifications can also be accessed on the website of the Directorate-General for Migration and Home Affairs https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/borders-and-visas/schengen/docs/handbook-annex_04.pdf [last accessed: 25 February 2021].

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Chp. 5 Art. 5 5

Schengen Borders Code Regulation (EU) 2016/399

It should further be noted in this context that this provision (and as a matter of fact, all provisions of Regulation 2016/399) is without prejudice to the rights of holders of local border traffic cards under Regulation 1931/2006 on local border traffic at the external borders89 and/or under bilateral agreements.90 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 5(1) Regulation 2016/399.

III. Penalties for the illegal crossing of external borders (Article 5(3)) Article 5(3) is based on the original Article 3(2) CISA and concerns the introduction of penalties for violations of Article 5(1). All Member States have introduced such penalties in the form of fines or imprisonment, except for Portugal, which only foresees an expulsion.91 For illegally present third-country nationals still subject to a return procedure, prison sentences are not compatible with the effet utile of the Return Directive 2008/115/EC92, the aim of which is to quickly return those persons. The Return Directive 2008/115/EC further obliges Member States to either issue a return decision or regularize the person found to be illegally present. An illegal stay shall not be tolerated.93 As Article 5(3) does not require the Member States to introduce prison sentences, they may comply with that obligation while observing at the same time the obligations stemming from the Return Directive 2008/115/EC. 7 It is noteworthy that Article 5(3) only concerns the ‘unauthorised crossing of an external border at places other than border crossings or at times other than the fixed opening hours’. The Schengen Boders Code does not foresee any penalties for the unauthorised crossing of internal borders, nor does it prescribe a penalty for the unauthorised crossing of an external border at a border crossing point during the fixed opening hours.94 8 Article 5(3) applies 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 person comes directly from a country where he or she was at a risk of being persecuted and presents himself or herself without delay to the authorities and gives good reasons for his or her illegal entry or presence.95 Article 31 of the Geneva Convention is rarely applicable, as applicants for international protection hardly ever arrive directly from their home countries. 6

89 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). 90 Article 40 Regulation 2016/399, and at 5.5 of Part Two, Section 1 of the Schengen Handbook. 91 See https://fra.europa.eu/sites/default/files/fra-2014-criminalisation-of-migrants-annex_en.pdf [last accessed: 25 February 2021]. 92 See Article 1 MN 6. 93 Progin-Theuerkauf, The EU Return Directive, p. 37–38, with further references also to the case-law of the ECJ. 94 ECJ, Affum, C-47/15, EU:C:2016:408, paras 89 et seq. 95 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. 6

Chp. 5

Article 6 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(5), 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. 2. 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. 3. 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 (c) is included in Annex I. 4. 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 39. 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(5) 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 L 81, 21.3.2001, p. 1).

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Chp. 5 Art. 6

Schengen Borders Code Regulation (EU) 2016/399

country national is staying with a host, may also constitute evidence of sufficient means of subsistence. 5. 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(6). 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(7), 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 6(1)) ................... 1. Possession of valid travel documents (Article 6(1)(a)) ...................... 2. Possession of a valid visa (Article 6(1)(b)) ........................................... 3. Justified purpose of stay and sufficient means of subsistence (Article 6(1)(c), (3) and (4)) .................................................................... 4. No alert in the SIS for the purposes of refusing entry (Article 6(1)(d))........................................................................................... 5. No threat to public policy, internal security, public health or international relations (Article 6(1)(e)) ................................................. IV. Derogations from the conditions of entry (Article 6(5))....................... 1. Right of transit when in possession of a residence permit or a long-stay visa (Article 6(5)(a))................................................................. 2. Issue of visa at the border (Article 6(5)(b)) ......................................... 3. Entry on humanitarian grounds, grounds of national interest or because of international obligations (Article 6 (5)(c)) .......................

mn. 1 2 6 7 8 11 17 18 22 23 25 26

(6) (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). (7) 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 (OJ L 53, 23.2.2002, p. 4).

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I. General remarks Article 6 lists the conditions of entry for third-country nationals and certain deroga- 1 tions thereof. This article is one of the key provisions of Regulation 2016/399 and sets out the conditions of entry into the Schengen area for stays not exceeding three months per six-month period.96 It will be modified when the European Travel Information and Authorisation System and the Entry-Exit-System become operational.97

II. Individual right of entry Whereas Article 5 CISA stipulated that aliens ‘may be granted entry’ if the conditions mentioned were fulfilled, Article 5 of Regulation 562/2006 was given a different wording. Article 6 of Regulation 2016/399 now states that ‘the entry conditions for third-country nationals shall be the following’. The change of wording was made at the behest of the European Parliament, as the question was raised whether Article 5 Regulation 562/2006 stipulated an individual right of entry into the Schengen area for third-country nationals, provided that all the conditions listed are fulfilled.98 The wording of Article 6 alone seems to leave no room for the construction of a right to enter. However, Article 6 needs to be read in conjunction with Article 14 of the Borders Code, according to which entry shall be refused if a third-country national does not fulfil the conditions of Article 6. In deciding if the conditions are actually fulfilled, the national authorities have a certain margin of discretion. Nevertheless, is it clear that their discretion is not unlimited: Article 14(2) Regulation 2016/399 states that a refusal of entry needs to be substantiated and authorities are bound to use the standard form in Annex V, Part B, containing an exhaustive list of reasons for refusal that is corresponding to the entry conditions set out in Article 6(1). Persons refused entry shall have the right to appeal (Article 14(3) Regulation 2016/399). The explicit possibility to appeal the refusal decision speaks clearly in favour of the conclusion that Article 6 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 6(1) should be interpreted as granting an individual right of entry if the conditions mentioned in this provision are fulfilled. It should, however, not be forgotten that no ‘right’ to be issued a visa can be deduced from the Visa Code, so that the decision to let a person enter the Schengen area still remains – at least with respect to persons who need a visa – at the discretion of the Member States99. Furthermore, the indeterminate legal notions used in Article 6 give 96 Further guidance for the application of Article 6 can be found in point 3 of Part Two, Section 1 of the Schengen Handbook. 97 See Article 1 MN 23. 98 Peers, Key Legislative Developments, p. 332. 99 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 State still have ‘a wide discretion in the examination

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the national authorities a certain margin of appreciation, even if – as argued – a right to enter has to be admitted.

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

Article 6(1) lists five conditions of entry into the Schengen area for stays of up to three months in a six month period100.

1. Possession of valid travel documents (Article 6(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.101 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 6(1)(a). According to Article 8(3)(a) Regulation 2016/399, 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 6(1)(a)(i) and (ii)).

2. Possession of a valid visa (Article 6(1)(b)) The identity of the person and the authenticity of the visa must in general be verified by consulting the VIS (Article 8(3)(b) Regulation 2016/399, unless one of the grounds of derogation from this rule apply and (Article 8(3)(c) Regulation 2016/399). 9 If the third-country national does not need a visa pursuant to Regulation 2018/1806, 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 8(3)(a)(iii) former Schengen Borders Code Regulation 562/2006). 10 Article 6(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 permit102 can either be a permit issued on the basis of EU law (as for example Free Movement Directive 2004/38/EC103, the Family Reunification Directive 2003/86/EC,104 or the Long-Term Residents’ Directive 2003/109/EC)105 or any other document issued by a Member State pursuant to national law authorizing a stay in its 8

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, Article 20– 21 MN 1. 100 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 Regulation 610/2013 (OJ 2013 L 182/1). 101 The lists have since been updated, see Regulation 2018/1806 (OJ 2018 L 303/39). 102 See the definition in Article 2(16) that refers to Regulation 1030/2002 laying down a uniform format for residence permits for third-country nationals (OJ 2002 L 157/1). 103 Directive 2004/38/EC 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). 104 Directive 2003/86/EC on the right to family reunification (OJ 2003 L251/12). 105 Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16/44).

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territory, with the exception of temporary permits that were issued pending the examination of an application for asylum or residence106 or visas issued by the Member States107. A list of the national residence permits has to be notified to the Commission pursuant to Article 39(1)(a)108.

3. Justified purpose of stay and sufficient means of subsistence (Article 6(1)(c), (3) and (4)) Article 6(1)(c) is to be read in conjunction with Article 6(3) and (4), Annex I and Article 7(3)(v) Regulation 2016/399. Even though, the 2006 Schengen Borders code defined the criteria for the assessment of sufficient means much more precisely than in Article 5 CISA and limited the discretion of the authorities in assessing the means, the specifications in Article 6(4) Regulation 2016/399 still do not guarantee a uniform application of this criterion, since the required amounts may vary considerably between the Member States (see below MN 13). Whether the conditions of Article 6(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 6(4) subpara 1). The Member States have to notify their reference amounts to the Commission (Article 5(3) subpara 2, Article 34(1))109: 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 € 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 prove 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 6(4) subpara 3 Regulation 2016/399). It is surprising that, pursuant to Article 6(1)(c) Regulation 2016/399, third-country nationals still have to justify the purpose and conditions of their intended stay: Depending on the circumstances, such an obligation may violate the private sphere of the individual and may also influence 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 seems difficult to provide actual proof for several purposes of stay. The standard of ‘proof’ should be low, in order to not render the stay practically impossible. Finally, the interests of the Member States appear to be 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

106

See Article 2(16)(b)(i) and also ECJ, ANAFE, C-606/10, EU:C:2012:348, paras 39–41. See Article 2(16)(b)(ii), referring to the uniform format laid down by Regulation 1683/9 (OJ 1995 L 164/1). 108 The notifications can be accessed on the website of the Directorate-General for Migration and Home Affairs at https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/ borders-and-visas/schengen/docs/handbook-annex_22.pdf [last accessed: 25 February 2021]. 109 A list of reference amounts can be accessed on the website of the Directorate-General for Migration and Home Affairs at https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/borders-and-visas/schengen/docs/handbook-annex_25.pdf [last accessed: 25 February 2021]. 107

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(Article 6(1)(e)). Against this background, the justification of the purpose of stay in Article 6(1)(c) should not be overly weighted.

4. No alert in the SIS for the purposes of refusing entry (Article 6(1)(d)) 17

A third-country national wanting to cross an external Schengen border must not be registered in the SIS for the purposes of refusing entry.110 It should be recalled111 that a third-country national who is married to a Union citizen may not be refused entry solely because of an SIS alert.112 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.113

5. No threat to public policy, internal security, public health or international relations (Article 6(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 6(1). 19 The original Article 5 CISA did not contain the condition that the person shall not constitute a threat to public health.114 The concept was added to the Borders Code in 2006. As mentioned before, the notion is defined in Article 2(21) Regulation 2016/ 399.115 20 As far as the notion of ‘public policy or public security’ is concerned, the ECJ has emphasized in 2019 that the concept within the meaning of Article 6 is appreciably different from the concept referred to in Free Movement Directive 2004/38/EC116 and has to be defined narrower. According to recital 6 of the code, border control should help to prevent ‘any threat’ to public policy. It is therefore already sufficient if a third country national is suspected of a criminal offence, without it having been established that his or her conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned.117 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 the notions of Article 6(1)(e) are EU law 18

110 See Articles 24 et seq. of Regulation (EC) No 1987/2006 (OJ 2006 L 381/4) on the establishment, operation and use of the second generation Schengen Information System (SIS II). A consultation procedure is foreseen by Article 25(2) CISA if an alert for the purposes of refusing entry has been issued for an alien who holds a valid residence permit issued by one of the Contracting Parties, the Contracting Party issuing the alert shall consult the Party which issued the residence permit in order to determine whether there are sufficient reasons for withdrawing the residence permit. Cf. ECJ, E, C-240/17, EU: C:2018:8. 111 See Article 3 MN 3. 112 ECJ, Commission v. Spain, C-503/03, EU:C:2006:74. 113 See also Article 25 of Regulation (EC) No 1987/2006 (OJ 2006 L 381/4) on the establishment, operation and use of the second generation Schengen Information System (SIS II). 114 See Peers, Key Legislative Developments, p. 332. 115 See Article 2 MN 9 and 10. 116 According to Article 27 of Directive 2004/38, a Union citizen and its family members are to be regarded as posing a threat to public policy only if their individual conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned, ECJ, Orfanopoulos and Oliveri, C‐482/01 and C‐493/01, EU:C:2004:262, paras 66 and 67. 117 ECJ, E.P., C-380/18, EU:C:2019:1071, paras 40 et seqq.

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notions, Member States have a certain margin of appreciation and, as a result, the application of Article 6(1)(e) may differ from one Member State to another.

IV. Derogations from the conditions of entry (Article 6(5)) Article 6(5) provides for three possible derogations from Article 6(1).

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1. Right of transit when in possession of a residence permit or a long-stay visa (Article 6(5)(a)) Third-country nationals in possession of a residence permit or a long-stay visa have 23 the right of transit through the other Schengen states in order to reach the state that issued the permit, even they do not fulfil all the conditions of Article 6(1). Article 6(5)(a) is also to be interpreted as granting individual rights to the persons 24 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 the person wants to cross. As a result, third-country nationals who hold a residence permit generally need not prove that they have sufficient means of subsistence, neither need they provide supporting documents identifying their purpose of stay.

2. Issue of visa at the border (Article 6(5)(b)) A visa can be issued at the border pursuant to the Visa Code Regulation (EC) 25 No 810/2009 to a third-country national who fulfils all the conditions in Article 6(1) with the exception of the necessary visa.

3. Entry on humanitarian grounds, grounds of national interest or because of international obligations (Article 6 (5)(c)) Third-country nationals who do not fulfil the conditions of Article 6(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. Even though Article 6(5)(c) is worded in a non-binding way (‘… may be granted …’), 27 implying a margin of discretion of the Member State concerned, it is important to emphasize that the obligations deriving from the prohibition of refoulement are of mandatory nature and in certain cases prohibit the rejection of a person at the border.118 In those cases, the simple possibility becomes an obligation.

118 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 (see above Article 1 MN 12–18).

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Chp. 5 Art. 7

Schengen Borders Code Regulation (EU) 2016/399

CHAPTER II Control of external borders and refusal of entry Article 7 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. Content I. Basic principles for the carrying out of border checks (Article 7) ...... II. Human dignity (Article 7(1))....................................................................... III. Prohibition of discrimination (Article 7(2)) .............................................

mn. 1 2 3

I. Basic principles for the carrying out of border checks (Article 7) 1

Article 7 codifies basic principles that shall be respected by the border guards when conducting border checks explained in detail in Article 8. This article was inserted at the behest of the European Parliament.119

II. Human dignity (Article 7(1)) 2

According to Article 7(1) (and in compliance with Article 1 CFR) 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.120 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 principles. In compliance with Article 47 CFR, the Member States have to provide appropriate legal remedies against alleged infringements of this provision121.

III. Prohibition of discrimination (Article 7(2)) 3

Article 7(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 7(2) is a significant improvement; the CISA and the Common Manual did not contain a similar provision. It is worth pointing out that Article 7(2) does not prohibit differential treatment on grounds of nationality. 119

See Peers, Key Legislative Developments, p. 335 with further references. See also recital 7 of Regulation 2016/399. 121 See ECJ, Zakaria, C-23/12, EU:C:2013:24, para 40. 120

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Furthermore, the national authorities generally have rather broad discretionary powers when applying EU legislation in the field of immigration and border control. The principle of non-discrimination on the grounds mentioned in Article 7(2) is 4 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 Rights122. The prohibition of discrimination on the grounds mentioned in Article 7(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 – in particular Directive 2000/43123 and Directive 2000/78124 – 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.125

Article 8 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. On entry and on exit, persons enjoying the right of free movement under Union law shall be subject to the following checks: (a) verification of the identity and the nationality of the person and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular: (1) the SIS; (2) Interpol’s Stolen and Lost Travel Documents (SLTD) database; (3) national databases containing information on stolen, misappropriated, lost and invalidated travel documents. For passports and travel documents containing a storage medium as referred to in Article 1(2) of Council Regulation (EC) No 2252/2004(8), the authenticity of the chip data shall be checked. (b) verification that a person enjoying the right of free movement under Union law is not considered to be a threat to the public policy, internal security, public health or international relations of any of the Member States, including by consulting the SIS and other relevant Union databases. This is without prejudice to the consultation of national and Interpol databases. 122

See also the comments on Article 4. Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180/22). 124 Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303/16). 125 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, ‘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, 93 et seqq. (8) Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ L 385, 29.12.2004, p. 1). 123

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Where there are doubts as to the authenticity of the travel document or the identity of its holder, at least one of the biometric identifiers integrated into the passports and travel documents issued in accordance with Regulation (EC) No 2252/ 2004 shall be verified. Where possible, such verification shall also be carried out in relation to travel documents not covered by that Regulation. 2a. Where the checks against the databases referred to in points (a) and (b) of paragraph 2 would have a disproportionate impact on the flow of traffic, a Member State may decide to carry out those checks on a targeted basis at specified border crossing points, following an assessment of the risks related to the public policy, internal security, public health or international relations of any of the Member States. The scope and duration of the temporary reduction to targeted checks against the databases shall not exceed what is strictly necessary and shall be defined in accordance with a risk assessment carried out by the Member State concerned. The risk assessment shall state the reasons for the temporary reduction to targeted checks against the databases, take into account, inter alia, the disproportionate impact on the flow of traffic and provide statistics on passengers and incidents related to cross-border crime. It shall be updated regularly. Persons who, in principle, are not subject to targeted checks against the databases, shall, as a minimum, be subject to a check with a view to establishing their identity on the basis of the production or presentation of travel documents. Such a check shall consist of a rapid and straightforward verification of the validity of the travel document for crossing the border, and of the presence of signs of falsification or counterfeiting, where appropriate by using technical devices, and, in cases where there are doubts about the travel document or where there are indications that such a person could represent a threat to the public policy, internal security, public health or international relations of the Member States, the border guard shall consult the databases referred to in points (a) and (b) of paragraph 2. The Member State concerned shall transmit its risk assessment and updates thereto to the European Border and Coast Guard Agency (‘the Agency’), established by Regulation (EU) 2016/1624 of the European Parliament and of the Council(9), without delay and shall report every six months to the Commission and to the Agency on the application of the checks against the databases carried out on a targeted basis. The Member State concerned may decide to classify the risk assessment or parts thereof. 2b. Where a Member State intends to carry out targeted checks against the databases pursuant to paragraph 2a, it shall notify the other Member States, the Agency and the Commission accordingly without delay. The Member State concerned may decide to classify the notification or parts thereof. Where the Member States, the Agency or the Commission have concerns about the intention to carry out targeted checks against the databases, they shall notify the Member State in question of those concerns without delay. The Member State in question shall take those concerns into account. 2c. The Commission shall, by 8 April 2019, transmit to the European Parliament and the Council an evaluation of the implementation and consequences of paragraph 2. (9) Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ L 251, 16.9.2016, p. 1).

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2d. With regard to air borders, paragraphs 2a and 2b shall apply for a maximum transitional period of six months from 7 April 2017. In exceptional cases, where, at a particular airport, there are specific infrastructural difficulties requiring a longer period of time for adaptations in order to allow for the carrying-out of systematic checks against the databases without having a disproportionate impact on the flow of traffic, the six-month transitional period referred to in the first subparagraph may be prolonged for that particular airport by a maximum of 18 months in accordance with the procedure specified in the third subparagraph. For that purpose, the Member State shall, at the latest three months before the expiry of the transitional period referred to in the first subparagraph, notify the Commission, the Agency and the other Member States of the specific infrastructural difficulties in the airport concerned, the envisaged measures to remedy them and the required period of time for their implementation. Where specific infrastructural difficulties requiring a longer period for adaptations exist, the Commission, within one month of receipt of the notification referred to in the third subparagraph and after consulting the Agency, shall authorise the Member State concerned to prolong the transitional period for the airport concerned and, where relevant, shall set the length of such prolongation. 2e. The checks against the databases referred to in points (a) and (b) of paragraph 2 may be carried out in advance on the basis of passenger data received in accordance with Council Directive 2004/82/EC(10) or in accordance with other Union or national law. Where those checks are carried out in advance on the basis of such passenger data, the data received in advance shall be checked at the border crossing point against the data in the travel document. The identity and the nationality of the person concerned, as well as the authenticity and the validity of the travel document for crossing the border, shall also be verified. 2 f. By way of derogation from paragraph 2, persons enjoying the right of free movement under Union law who cross the internal land borders of the Member States for which the verification in accordance with the applicable Schengen evaluation procedures has already been successfully completed, but for which the decision on the lifting of controls on their internal borders pursuant to the relevant provisions of the relevant Acts of Accession has not yet been taken, may be subject to the checks on exit referred to in paragraph 2 only on a non-systematic basis, based on a risk assessment. 3. On entry and exit, third-country nationals shall be subject to thorough checks as follows: (a) thorough checks on entry shall comprise verification of the conditions governing entry laid down in Article 6(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 of the identity and the nationality of the third-country national and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular: (1) the SIS; (2) Interpol’s SLTD database; (10) Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data (OJ L 261, 6.8.2004, p. 24).

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(3) national databases containing information on stolen, misappropriated, lost and invalidated travel documents. For passports and travel documents containing a storage medium, the authenticity of the chip data shall be checked, subject to the availability of valid certificates; (ii) verification that the travel document is accompanied, where applicable, by the requisite visa or residence permit; (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 other relevant Union databases, and the action to be performed, if any, as a result of an alert. This is without prejudice to the consultation of national and Interpol databases; (b) if the third country national holds a visa referred to in Article 6(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; (c) by way of derogation, 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 where: (i) traffic of such intensity arises that the waiting time at the border crossing point becomes excessive; (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. 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 conditions referred to in points (i), (ii) and (iii) are met; (d) the decision to consult the VIS in accordance with point (c) shall be taken by the border guard in command at the border crossing point or at a higher level. 248

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Art. 8

(e)

(f)

(g)

(h)

(i)

Chp. 5

The Member State concerned shall immediately notify the other Member States and the Commission of any such decision; each Member State shall transmit once a year a report on the application of point (c) 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 (c)(i); points (c) and (d) 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 (c) and (d), 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; thorough checks on exit shall comprise: (i) verification of the identity and the nationality of the third-country national and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular: (1) the SIS; (2) Interpol’s SLTD database; (3) national databases containing information on stolen, misappropriated, lost and invalidated travel documents. For passports and travel documents containing a storage medium, the authenticity of the chip data shall be checked, subject to the availability of valid certificates; (ii) verification that the third-country national concerned is not considered to be a threat to the public policy, internal security, public health or international relations of any of the Member States, including by consulting the SIS and other relevant Union databases. This is without prejudice to the consultation of national and Interpol databases; in addition to the checks referred to in point (g) 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; 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; (ia) the checks against the databases referred to in point (a)(i) and (vi) and point (g) may be carried out in advance on the basis of passenger data received in accordance with Directive 2004/82/EC or with other Union or national law. Where those checks are carried out in advance on the basis of such passenger data, the data received in advance shall be checked at the border crossing point against the data in the travel document. The identity and the

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Schengen Borders Code Regulation (EU) 2016/399

nationality of the person concerned, as well as the authenticity and validity of the travel document for crossing the border, shall also be verified; (ib) where there are doubts as to the authenticity of the travel document or the identity of the third-country national, the checks, where possible, shall include the verification of at least one of the biometric identifiers integrated into the travel documents. 4. Where facilities exist and if requested by the third-country national, such thorough checks shall be carried out in a private area. 4a. Where on entry or exit, consultation of the relevant databases including the multiple-identity detector through the European search portal established by Article 25(1) and Article 6(1) of Regulation (EU) 2019/817 of the European Parliament and of the Council(11)respectively results in a yellow link or detects a red link, the border guard shall consult the common identity repository established by Article 17(1) of that Regulation or SIS or both to assess the differences in the linked identity data or travel document data. The border guard shall carry out any additional verification necessary to take a decision on the status and colour of the link. In accordance with Article 69(1) of Regulation (EU) 2019/817, this paragraph shall apply as from the start of operations of the multiple-identity detector under Article 72(4) of that Regulation. 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 Article 5(2)(a) or (b) applies, Member States may also provide derogations from the rules set out in this Article. Content I. Detailed guidelines for the conduction of border checks (Article 8).. II. Checks of persons enjoying the right of free movement (Article 8(2) and (6))...................................................................................... III. Checks of third-country nationals (Article 8(3), (4)) .............................

mn. 1 4 7

(11) 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 field of borders and visa and amending Regulations (EC) No 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1726 and (EU) 2018/1861 of the European Parliament and of the Council and Council Decisions 2004/512/EC and 2008/633/JHA (OJ L 135, 22.5.2019, p. 27).

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Art. 8

Chp. 5

I. Detailed guidelines for the conduction of border checks (Article 8) Article 8 states in detail the guidelines that have to be respected by the Member 1 States when conducting border checks. In comparison to Article 6 CISA, the guidelines are much more detailed and concern partially also rather technical aspects. A lot of the rules set out in Article 8 are self-explanatory. Article 8 will be modified when the European Travel Information and Authorisation System and the Entry-Exit-System become operational.126 Until 2017, all persons – including EU citizens and their family members and other 2 persons making use of their right of free movement – had to undergo a minimum check when crossing the external borders with a view to establishing their identities (‘first-line check’), whereas third-country nationals not enjoying the right of free movement were subjected to thorough checks (‘second-line checks’). In 2017, as a reaction to so-called ‘jihad tourists’ holding the nationality of a Member State travelling back and forth from the EU to war zones and posing a threat to public policy and national security, Article 8 was modified by Regulation 2017/458.127 Since then, persons enjoying the right of free movement under Union law are also subject to systematic, thorough checks. In 2019, Article 8 was again amended by Regulation 2019/817128, the so-called 3 interoperability regulation, that allows to interconnect all relevant databases in the area of borders and visa. Whenever there is doubt about the identity of a person, meaning that the consultation of the relevant databases shows a ‘yellow link’ or a ‘red link’, the border guard shall carry out additional verifications and take a decision on the status and the colour of the link.129

II. Checks of persons enjoying the right of free movement (Article 8(2) and (6)) Since 2017, on entry and exit, persons enjoying the right of free movement undergo 4 the following controls: Their identity and nationality and the authenticity and validity of their travel documents are checked. This includes consulting databases like the SIS, Interpol’s Stolen and Lost Travel Documents (SLTD) database or national data bases. It is also verified whether a person enjoying the right of free movement is not a threat to the public policy, internal security, public health or international relations of any of the Member States, also by consulting the relevant databases like the SIS. Where the checks against the databases would have a disproportionate impact on the 5 flow of traffic, Member States may decide to carry out targeted checks, following an assessment of the risks related to public policy, internal security, public health or international relations of any of the Member States (Article 8(2a)). The scope and duration of the temporary reduction to targeted checks shall not exceed what is strictly necessary. Member States that intend to carry out targeted checks must notify the other Member States, FRONTEX and the Commission thereof (Article 8(2b)). The risk assessment and updates thereto must be transmitted to FRONTEX (Article 8(2a) subpara 4). Moreover, the Member State reports regularly to the Commission and 126

See Article 1 MN 33. See Article 1 MN 31. 128 See Article 2 MN 31. 129 For more details on interoperability, see Progin-Theuerkauf/Zoeteweij-Turhan/Turhan, in Tzanou (ed), Personal Data Protection and Legal Developments in the European Union, p. 169–201. 127

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Chp. 5 Art. 8

Schengen Borders Code Regulation (EU) 2016/399

FRONTEX. A special regime is foreseen for airports (Article 8(2d)). Checks may be carried out in advance based on Directive 2004/82/EC on the obligation of carriers to communicate passenger data (Article 8(2e)). 6 Persons who are not subject to targeted checks shall, as a minimum, be subject to a check with a view to establishing their identity. In cases where there are doubts, the border guard shall consult the relevant databases (Article 8(2a) subpara 3).

III. Checks of third-country nationals (Article 8(3), (4)) 7

8

9

10

11

On entry, third-country nationals are subject to thorough checks, comprising the verification of the entry conditions (Article 6(1)) and, where applicable, of documents authorising residence and the pursuit of a professional activity (Article 8(3)(a)). Their identity and nationality and the authenticity and validity of their travel documents are checked. All relevant databases are checked. It is also verified whether 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 (Article 8(3)(a)(vi)). On exit, thorough checks of third-country nationals comprise a verification of their identity and nationality and the authenticity and validity of their travel documents. All relevant databases are checked. It is also verified whether the person concerned is not considered to be threat to the public policy, internal security, public health or international relations of any of the Member States (Article 8(3)(g)). Additional checks may be carried out (of the visa or of the duration of stay). Where the facilities exist and if requested by the third-country national, thorough checks are carried out in a private area (Article 8(4)). According to Article 8(4a), as from the start of the multiple identity detector under Article 72(4) of Regulation 2019/817, the border guard shall consult the common identity repository established by Article 17(1) of the regulation, or SIS, or both, whenever the consultation of the relevant databases results in a so-called ‘yellow link’ or detects a ‘red link’. The border guard shall carry out additional verifications and take a decision on the status and the colour of the link. Third-country nationals subjected to a so-called ‘second-line check’ in a special location away from the location at which all persons are checked (Article 2(13)) are to be informed in writing in a language they understand or may reasonably be presumed 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 8(5)). Checks on a person enjoying the right of free movement under Union law shall be carried out in accordance with Free Movement Directive 2004/38/EC (Article 8(6)). Where Article 5(2)(a) or (b) applies, Member States may provide derogations from the rules set out in Article 8.

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Art. 10

Chp. 5

Article 9 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 11. 4. Each Member State shall transmit once a year a report on the application of this Article to the European Parliament and the Commission. In the event of exceptional and unforeseen circumstances, Article 9 allows the 1 exceptional and temporary relaxation of border checks in order to avoid excessive waiting times (Article 9(1)). Such a relaxation is only permissible if both exceptional and unforeseen circumstances exist. It can be concluded e contrario that Article 9 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 9(2)), 2 leaving the obligation to systematically stamp the travel documents according to Article 11 unaffected (Article 9(3)).

Article 10 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 8. Such lanes shall be differentiated by means of the signs bearing the indications set out in Annex III. Member States may provide separate lanes at their sea and land border crossing points and at borders between Member States which do not apply Article 22 at their common borders. The signs bearing the indications set out in Annex III shall be used if Member States provide separate lanes at those borders.

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Chp. 5 Art. 11

Schengen Borders Code Regulation (EU) 2016/399

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. Persons enjoying the right of free movement under Union law are entitled to use the lanes indicated by the sign shown in Part A (‘EU, EEA, CH’) of Annex III. They may also use the lanes indicated by the sign shown 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 shown in Part B1 (‘visa not required’) of Annex III to this Regulation. They may also use the lanes indicated by the sign shown in Part B2 (‘all passports’) of Annex III to this Regulation. All other persons shall use the lanes indicated by the sign shown in Part B2 (‘all passports’) of Annex III. The indications on the signs referred to in the first, second and third subparagraphs may be displayed in such language or languages as each Member State considers appropriate. The provision of separate lanes indicated by the sign shown 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. 1

Considering the different intensity of checks to be carried out on persons enjoying the rights of free movement laid down in EU law on the one hand and third-country nationals on the other hand (Article 8), Member States shall provide separate lanes, making use of the signs set out in Annex III. These lanes are mandatory for air borders.

Article 11 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.

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Art. 11

Chp. 5

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. 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. 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 9. Affixing entry and exit stamps is closely linked to the task of controlling short-term 1 stays in the Schengen area, in order to combat, inter alia, unauthorised crossings.130 The notion of ‘exit’ according to Article 11(1) was interpreted by the ECJ in the 2 context of seamen working on ships in European harbours:131 When a seaman who is a third-country national signs on with a ship in long-term mooring in a sea port of a State forming part of the Schengen area, for the purpose of working on board, before leaving that port on that ship, an exit stamp must, where provided for by the Schengen Borders Code, be affixed to that seaman’s travel documents not at the time of his signing on, but when the master of that ship notifies the competent national authorities of the ship’s imminent departure. The Court based its reasoning on the purpose of the examination of the entry and exit stamps on the travel document of the third-country national concerned, which is 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 Schengen area. Consequently, so as not to allow a third-country national to remain in the Schengen area beyond the maximum duration of authorised stay, a 130 131

ECJ, J. and Others, C-348/18, EU:C:2020:76, para 62. ECJ, J. and Others, C-348/18, EU:C:2020:76.

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Chp. 5 Art. 12

Schengen Borders Code Regulation (EU) 2016/399

third-country national cannot be regarded as having left the Schengen area when he or she is still on the territory of a State forming part of that area. A seaman who is still in the port can therefore not be regarded as having left the Schengen area.

Article 12 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, in Article 4(2) of the 2005 Act of Accession and in Article 4(2) of the 2011 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. 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(12) and with national law respecting that Directive. 4. The relevant provisions of paragraphs 1 and 2 shall apply mutatis mutandis in the absence of an exit stamp. Article 12 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 fulfil the conditions of maximum duration of stay (Article 12(1)). This presumption can be rebutted under certain conditions (Article 12(2)). 2 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 1

(12) 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).

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Art. 13

Chp. 5

national law. The ECJ has, however, clarified that Article 12(3) does not constitute a mandatory obligation to expel the person.132

Article 13 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 37 concerning additional measures governing surveillance. Article 13 formulates some rather broad principles for the carrying out of border 1 surveillance.133 With regards to sea border surveillance, in 2010, the Council adopted some additional rules and guidelines in the form of Council Decision 2010/252/EU. The Council based its decision on former Article 12(5) Regulation 562/2006, which provided for the possibility for additional measures to be adopted, following the so-called regulatory procedure with scrutiny, 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 grounds134. Consequently, Article 12(5) was also amended. In 2014, parts of the annulled Council Decision were integrated into the Sea Borders Regulation (EU) 565/2014135. Persons who have crossed a border illegally and who have no right to stay on the 2 territory of the Member State concerned shall be apprehended and made subject to procedures respecting the Return Directive 2008/115/EC. In that case, Member States can choose from two different procedures: They can either launch a ‘full’ return procedure in accordance with the Return Directive or may have recourse to a 132

ECJ, Garcia and Cabrera, C-261/08 and C-348/08, EU:C:2009:648. See the definition in Article 2(12). 134 ECJ, European Parliament v. Council, C-355/10, EU:C:2012:516; see Cornelisse, What’s wrong with Schengen?, p. 763–765. 135 See Ryan, Sea Borders Regulation (EU) 565/2014, in this volume. 133

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simplified national return procedure and arrangements covered by Article 2(2)(a) of the Return Directive. Article 2(2)(a) allows for the return procedure not to be applied to third country nationals 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.136 However, Article 4(4) of that Directive obliges Member States that make use of the derogation and adopt simplified national return measures instead of ‘full’ return decisions under the Directive to provide for a certain minimum level of treatment and protection, including the right to protection against refoulement.137 Where a person asks for international protection and therefore enjoys a right to remain, pending the examination of that application, return procedures must be suspended.138

Article 14 Refusal of entry 1. A third-country national who does not fulfil all the entry conditions laid down in Article 6(1) and does not belong to the categories of persons referred to in Article 6(5) 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 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. 136 It is important to note that Article 2(2) is only applicable at external borders, not at internal borders, see ECJ, Affum, C-47/15, EU:C:2016:408, para 69. Simplified procedures are therefore not permitted if a person is apprehended when illegally crossing an internal border. 137 See also European Commission, The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders, 3 March 2021, at 3.b. 138 Idem.

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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(13). 6. Detailed rules governing refusal of entry are given in Part A of Annex V. Content I. Refusal of entry (Article 14(1)).................................................................... II. Procedural guarantees if entry is refused (Article 14(2) and (3))........ 1. Substantiated decision ............................................................................... 2. Right to appeal ............................................................................................ III. Obligations of the carrier ..............................................................................

mn. 1 2 3 4 6

I. Refusal of entry (Article 14(1)) Article 14 is the correlate to Article 6 and establishes the obligation of Member States 1 to refuse entry if the conditions of the latter provision are not fulfilled (Article 14(1)). This obligation is without prejudice to special provisions in the context of the right of asylum and the prohibition of refoulement139 and for holder of national visas authorising a longer stay.140 According to Annex V, refusals of entry shall be issued at border crossing points only.141 A refusal can only take place after an evaluation of the individual situation of the third country national concerned. Entry can only be refused if the person does not fulfil the entry conditions and if he or she does not belong to the categories of persons referred to in Article 6(5) of the Schengen Borders Code.142 The Return Directive 2008/115/EC is not applicable.143

II. Procedural guarantees if entry is refused (Article 14(2) and (3)) If entry is refused, certain procedural guarantees found in Article 14(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 14(6)). The explicit inclusion of procedural guarantees in the Schengen Borders Code was an important achievement of the European Parliament during negotiations144 and a significant improvement compared to the rules contained in the CISA. The Common Manual contained rules similar to the ones codified in Article 14, but they were not legally binding.145 (13) 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). 139 See the derogation provided for in Article 6(5)(c). 140 Peers, Key Legislative Developments, p. 337 et seqq. 141 See also European Commission, The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders, 3 March 2021, at 3.b. 142 Idem. 143 However, it applies in the context of border surveillance when a person is already illegally present on the territory of a Member State, see Article 13 MN 2. 144 See Brouwer, Digital Borders, p. 290. 145 See Peers, Key Legislative Developments, p. 338 et seq.

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1. Substantiated decision 3

Article 14(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 2016/399, 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.146 This obligation also applies to airlines: The ECJ has confirmed that airlines are not attributable to the State and are therefore not allowed to refuse transport to an individual, arguing that the authorities in the country of destination will refuse entry to that person, without handing over to the person concerned a written and substantiated decision. This makes work of airlines quite difficult, as they can still be held liable by the country of destination with regard to Article 26 CISA and the Carrier Sanctions Directive147, if the person transported is effectively refused entry.

2. Right to appeal The refusal decision will take immediate effect, but according to Article 14(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.148 The appeal may only be addressed against the decision to refuse entry, and not against other alleged infringements in relation to the refusal decision.149 Based on Article 47 of the Charter on Fundamental Rights, Member States are also obliged to provide in their domestic legal system for the appropriate legal remedies to ensure the protection of persons claiming other infringements of their rights (e.g. the right to respect human dignity derived from Article 7 of the Regulation).150 5 Such an appeal will, however, have no suspensive effect (Article 14(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 they intended to cross. This is also stated in Article 14(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(2)(a) authorises the border guards to order the carrier to bring the third-

146

See Brouwer, Digital Borders, p. 290. 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 (OJ 2001 L 187/45); Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data (OJ 2004 L 61/24). See Article 1 MN 3. 148 See Brouwer, Digital Borders, p. 290. 149 ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 40, 42. 150 Idem., para 40. 147

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country national back to the third country from which he was brought without delay. This obligation is reinforced by Article 26 CISA and the Carrier Sanctions Directive.151

CHAPTER III Staff and resources for border control and cooperation between Member States Article 15 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 7 to 14, in such a way as to ensure an efficient, high and uniform level of control at their external borders.

Article 16 Implementation of control 1. The border control provided for by Articles 7 to 14 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 (‘the Agency’) established by 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 39. 3. To control borders effectively, each Member State shall ensure close and constant cooperation between its national services responsible for border control.

Article 17 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 7 to 16. They shall exchange all relevant information. 151 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 (OJ 2001 L 187/45); Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data (OJ 2004 L 61/24). See Article 1 MN 3.

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2. Operational cooperation between Member States in the field of management of external borders shall be coordinated by the Agency. 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 18 Joint control 1. Member States which do not apply Article 22 at their common land borders may, up to the date of application of that Article, jointly control those common 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 7 to 14. 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. 1

Articles 15–18 Regulation 2016/399 provide rules on the necessary staff and resources for border control (Article 15), the implementation of the controls by national border guards and the obligation of Member States to properly train them (Article 16), on the cooperation between Member States and between Member States and FRONTEX (Article 17) as well as rules on the joint 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 22 Regulation 2016/399 (Article 18).

CHAPTER IV Specific rules for border checks Article 19 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 5 and 6 and Articles 8 to 14.

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Article 20 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 5 and 6 and Articles 8 to 14. 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 39. Articles 19 and 20 contain specific rules on various types of borders and certain 1 categories of persons that are explained in greater detail in the annexes VI and VII.

CHAPTER V Specific measures in the case of serious deficiencies relating to external border control Article 21 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 Regulation (EU) No 1053/2013, 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 38(2). 2. The Commission shall inform the committee established pursuant to Article 38(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.

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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 29 of this Regulation where all the conditions for doing so are fulfilled. Article 21 was introduced as part of the so-called ‘Schengen Governance package’ in November 2013. It needs to be read in conjunction with the rules on the temporary reintroduction of internal border controls (Article 25–35). 2 If an evaluation report drawn up pursuant to Article 14 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 border management teams in accordance with the FRONTEX Regulation152 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 38 (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 29 Regulation 2016/399 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. That period may be prolonged three times.153 1

TITLE III INTERNAL BORDERS CHAPTER I Absence of border control at internal borders Article 22 Crossing internal borders Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out.

152 Regulation 2016/399 still refers to the former Frontex Regulation (EC) No 2007/2004 of 2004, which is now Frontex Regulation (EU) 2019/1896 (OJ 2019 L 295/1). 153 See in more detail the comments on Articles 25–35.

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Art. 24

Article 23 Checks within the territory The absence of border control at internal borders shall not affect: (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 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 (‘the Schengen Convention’).

Article 24 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 22) ... II. Checks within the territory of Member States (Article 23)................... 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.

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I. General principle: absence of internal border controls (Article 22) 1

Article 22 states the principle that internal borders may be crossed at any point without border checks on persons. This principle was previously codified in Article 2(1) CISA. Closely connected to the elimination of internal border controls is the obligation to remove all obstacles to traffic in Article 24.

II. Checks within the territory of Member States (Article 23) 1. Police controls The elimination of controls at internal borders does not affect the right of Member States to carry out police controls within their territory. Such controls are rather 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).154 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 shall not have effects equivalent to border checks, which is explicitly prohibited in Article 23(a). The latter provision lists the measures to be considered as non-equivalent to border checks. The list is not exhaustive. 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 compatible with Article 22, since their effect is similar to actual border controls and compromise the effectiveness of the prohibition of internal border controls. 3 The ECJ already clarified the meaning of ‘police checks which are of equivalent effects to border checks’ on several occasions. One judgment155 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 provisions did not have the same objective as border controls, but rather aimed at establishing whether the obligations to hold, carry and produce identity papers were fulfilled (see Article 23(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 23(a). 3a In another case156, the Court considered a Dutch law to be compatible 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 ECJ held that these checks, which were aimed at combatting illegal 2

154 See Epiney/Meier/Egbuna-Joss, ‘Schengen/Dublin’, in: Thürer/Weber/Portmann/Kellerhals (eds), Bilaterale Verträge I & II Schweiz – EU (Schulthess, 2007), p. 903, 927 with further references. 155 ECJ, Melki and Abdeli, C-188/10 and C-189/10, EU:C:2010:206, paras 70– 75. 156 ECJ, Adil, C-278/12, EU:C:2012:508, paras 72–87.

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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. Later, the ECJ recalled that the more extensive the evidence of the existence of a 3b possible equivalent effect, within the meaning of Article 23(a), apparent from the objective pursued by the checks carried out in a border area, from the territorial scope of those checks and from the existence of a distinction between the basis of those checks and that of those carried out in the remainder of the territory of the Member State concerned, the greater the need for strict detailed rules and limitations laying down the conditions for the exercise by the Member States of their police powers in a border area and for strict application of those detailed rules and limitations, in order not to imperil the attainment of the objective of the abolition of internal border controls.157 The framework required must be sufficiently clear and precise to enable the need for the checks and the checks actually authorised themselves to be checked.158 In a fourth case159, the Court had to verify whether identity checks carried out by the 3c German Police in the vicinity of an internal border of the Schengen area were compatible with Articles 22 and 23 of Regulation 2016/399. According to German law, these checks were possible irrespectively of the behaviour of the person concerned or of the existence of specific circumstances. The Court made clear that national law has to concretize the power of the authorities concerning the intensity, frequency and selectivity of the checks. If the checks are carried out sporadically at different times and places and as random samples, taking into account the volume of traffic, they are not ‘of equivalent effect to border checks’. Furthermore, even controls carried out by private transport undertakings fall within 4 the scope of Article 23 of Regulation 2016/399. If that were not the case, that provision could easily be circumvented and its effectiveness compromised.160 The Court argued that checks of travel documents are normally carried out by the police or similar authorities, so even if private undertakings do not have powers conferred by public law, they have to carry out those checks on the instruction and under the control of authorities which are vested with such powers. The ECJ also stated that if checks are characterised by a particularly close connection with the crossing of an internal border, like in the case at hand, they are to be considered as of an ‘effect equivalent to border checks’.161 In that case, it is also forbidden to penalise an infringement of the obligation to carry out checks, as the checks themselves are not compatible with Article 23.162

2. Checks at ports and airports, the obligation to carry papers, and the obligation of third-country nationals to report their presence Article 23(b) clarifies that the principle of absence of internal border checks on 5 persons 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 23(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 157

ECJ, A, C-9/16, EU:C:2017:483, para 40. Idem., para 41. 159 ECJ, Staatsanwaltschaft Offenburg/FU, C-554/19, EU:C:2020:439. 160 ECJ, Touring Tours and Travel, C-412/17 and C-474/17, EU:C:2018:1005, para 50. 161 Idem., para 68. 162 Idem., para 72. 158

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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 CISA (Article 21(d)).

CHAPTER II Temporary reintroduction of border control at internal borders Article 25 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 27, 28 and 29. The criteria referred to, respectively, in Articles 26 and 30 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 27, 28 or 29. 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 26 and in accordance with Article 27, 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 29, that total period may be extended to a maximum length of two years, in accordance with paragraph 1 of that Article.

Article 26 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 25 or Article 28(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 27 Procedure for the temporary reintroduction of border control at internal borders under Article 25 1. Where a Member State plans to reintroduce border control at internal borders under Article 25, 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 and with a view to consultation provided for in paragraph 5, the Commission or any other Member State may, without prejudice to Article 72 TFEU, 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 reintroProgin-Theuerkauf/Epiney

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Chp. 5 Art. 28

Schengen Borders Code Regulation (EU) 2016/399

duce 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 28 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 27(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 of this Article, 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 26, 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 27(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 25(4), the total period during which border control is reintroduced at internal borders, on the basis of the initial period under paragraph 1 of this Article and any prolongations under paragraph 3 of this Article, shall not exceed two months. 5. The Commission shall inform the European Parliament without delay of notifications made under this Article.

Article 29 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 21 of this Regulation or as a result of the non-compliance of a Member State with a Council decision referred to in Article 19(1) of Regulation (EU) 2016/1624 of the European Parliament and of

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the Council(14) 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 particular those referred to in Article 21(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 Article 27(1)(a) to (e). 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 38(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 of this Article. 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 25, 27 and 28.

(14) Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ L 251, 16.9.2016, p. 1). Note: Regulation 2016/1624 has in the meantime been repealed by Regulation 2019/1896 on the European Border and Coast Guard, OJ 2019 L 295/1.

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Chp. 5 Art. 30

Schengen Borders Code Regulation (EU) 2016/399

Article 30 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 29(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 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(15) or the European Police Office (‘Europol’), established by Decision 2009/371/JHA, 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 29(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 31 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 Article 21 and Articles 25 to 30.

(15) Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (OJ L 132, 29.5.2010, p. 11).

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Article 32 Provisions to be applied where border control is reintroduced at internal borders Where border control at internal borders is reintroduced, the relevant provisions of Title II shall apply mutatis mutandis.

Article 33 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 26, 28 and 30, 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 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 34 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 35 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 33.

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Schengen Borders Code Regulation (EU) 2016/399 Content

I. Overview ........................................................................................................... II. Background....................................................................................................... III. The rules on the temporary reintroduction of internal border controls.............................................................................................................. 1. Temporary internal border controls in the case of foreseeable events (Articles 25, 26, 27) ....................................................................... 2. Temporary internal border controls in the case of unforeseeable circumstances (Article 28) ........................................................................ 3. Temporary internal border controls in the case of exceptional circumstances (Articles 29, 30)................................................................ IV. Judicial control and the rights of Union citizens and their family members............................................................................................................

mn. 1 3 10 11 16 17 20

I. Overview Article 25 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.163 If controls are temporarily reinstated, the rules for external border control in Title II of Regulation 2016/399 apply mutatis mutandis (Article 32). However, an internal border at which border control has been reintroduced by a Member State under Article 25 of the code is not tantamount to an external border.164 The concepts of ‘internal borders’ and ‘external borders’ are mutually exclusive.165 2 Articles 25–30 contain the criteria for the temporary reintroduction as well as the corresponding procedural regulations. If there are reasons that might trigger 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 31). In principle, the public has to be informed fully of the reasons for the re-instatement of controls (Article 34), 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 33). 1

II. Background 3

In the aftermath of the 2011 ‘Arab Spring’ and the following arrival of about 30’000 Tunisian citizens in the EU, France and Italy 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 2011.166 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 163 See in this context the analysis of temporary re-instatement of internal border controls under the CISA in Groenendijk, ‘Reinstatement of Controls at the Internal Borders of Europe: Why and Against Whom’, ELJ 10 (2004), p. 150–170. 164 ECJ, Arib, C-444/17, EU:C:2019:220, para 61. This means that Article 2(2)(a) of Directive 2008/115 is not applicable, even if border controls have been reintroduced at an internal border. 165 Idem., para 62. 166 Commission Proposal, COM(2011) 559 final and COM(2011) 560 final of 16 September 2011.

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‘Schengen Governance Package’ was adopted in the form of Regulation 1051/2013 and Regulation 1053/2013167. It entered into force in November 2013, with a one-year transitional period for implementation. In 2016, Article 29 was modified by the FRONTEX Regulation.168 It was added that, 4 as a result of the non-compliance of a Member State with a Council decision referred to in Article 19(1) of the former Frontex Regulation 2016/1624 (now Article 42(1) of the Frontex Regulation (EU) 2019/1896), border control at the internal borders may also be reintroduced.169 In the autumn of 2015, during the so-called ‘refugee crisis’, more than 1 million 5 applicants for international protection arrived in the European Union. As a reaction, many Member States reintroduced border controls, in order to manage the high influx.170 In March 2016, the European Commission presented a ‘Roadmap’ for restoring a fully functioning Schengen system.171 In the Roadmap, the Commission also recalled that migratory flows cannot per se justify the reintroduction of checks at internal borders, but that the measures were nevertheless justified, necessary and proportional due to the sheer number of persons entering theses Member States.172 However, the conditions identified in the Roadmap in order to allow lifting all internal border controls and returning to a normally functioning Schengen were not fulfilled at that time. In May 2016, the Council adopted an Implementing Decision setting out a Recommendation for temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk.173 It suggested the maintenance of border controls in five Member States (Austria, Germany, Denmark, Sweden, and Finland) for a maximum period of six months, starting from the day of the adoption of the decision. This period was prolonged twice, respectively on 11 November 2016174 and on 7 February 2017175, for further periods of three months at a time. Finally, Council Implementing Decision (EU) 2017/818 of 11 May 2017 recommended the prolongation (for the third and last time) of temporary border controls for a maximum period of 6 months, again starting from the day of adoption of the decision. The maximum period for border controls based on

167 The different positions of the institution can be found in detail in Peers, The Future of Schengen, p. 30–41. 168 Regulation 2016/1624, which has in the meantime been repealed by Regulation 2019/1896 on the European Border and Coast Guard (OJ 2019 L 295/1). 169 See below the comment on Article 29 MN 16 et seqq. 170 A full list of Member States’ notifications of the temporary reintroduction of border control at internal borders pursuant to Article 25 et seq. of the Schengen Borders Code see https://ec.europa.eu/home-affairs/ sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/docs/ ms_notifications_-_reintroduction_of_border_control.pdf [last accessed 25 February 2021]. 171 See Commission Communication, Back to Schengen – A Roadmap, COM(2016) 120 final. 172 Commission 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. 173 Council Implementing Decision 2016/894 setting out a recommendation for temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk (OJ 2016 L151/8). 174 Council Implementing Decision 2016/1989 setting out a recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk (OJ 2016 L 306/13). 175 Council Implementing Decision 2017/246 setting out a recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk (OJ 2017 L 36/59).

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Schengen Borders Code Regulation (EU) 2016/399

Article 29(1) then expired on 11 November 2017.176 The Commission suggested to reinforce police controls instead of carrying out border controls.177 However, the five Member States continued their controls beyond the limits set by Article 29.178 France also carried out border controls (justified by ‘persistent terrorist threats’). 6 In September 2017, the Commission proposed a modification of the rules on the temporary reintroduction of border controls.179 The Commission argued that the rules and procedures for prolongation of temporary internal border control proved to be insufficiently adapted to address the increased threats to public policy or internal security. It therefore suggested that the time limit for temporary reintroduction of border control at internal borders for the foreseeable duration of the serious threat shall be increased up to one year (instead of six months) and that the limit for the length of prolongation periods shall be increased from up to 30 days to up to 6 months. Furthermore, a new possibility shall be introduced to extend internal border controls by a maximum period of two years where the serious threat to internal security or public policy persists beyond the one-year deadline, provided that it can be attributed to the same grounds and that commensurate exceptional national measures are taken within the territory to address the threat (such as the state of emergency). The proposal also aims at clarifying the wording determining the deadline applicable under Article 29 of the Schengen Borders Code. 7 The COVID-19 pandemic further threatened the Schengen area. In spring 2020, during the first wave of the pandemic, many Member States reintroduced border controls, mostly based on the threat to public health (which as such, is not a reason mentioned in Articles 25 et seqq., see below). Few Member States actually complied with the obligation to provide ‘all relevant data’ according to Article 27(1)(a) of Regulation 2016/399.180 On 16 March 2020, the EU Commission presented guidelines to Member States on health-related border management measures in the context of the COVID-19 emergency, being reluctant about the need for a reintroduction of border controls.181 The Member States did not follow the Commission’s arguments. Instead, upon the expiry of the deadlines foreseen in Articles 25 et seqq., they simply traded one legal basis for another. In May 2020, the Commission presented a package of guidelines and recommendations to help Member States gradually lift travel restrictions and border controls.182 Several did, but others continued to carry out controls. 8 Those who lifted controls around June 2020 again introduced border controls in 2020 and 2021, when the second wave of the pandemic hit Europe. It is still unclear whether

176 Council Implementing Decision (EU) 2017/818 of 11 May 2017 setting out a Recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk (OJ 2017 L 122/73). 177 See Commission Recommendation of 12.5.2017 on proportionate police checks and police cooperation in the Schengen area, C(2017) 3349 final. 178 See the comment on Article 29 MN 16 et seqq. 179 Commission Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at internal borders, COM(2017) 571 final. 180 See Thym/Bornemann, Schengen and Free Movement Law, p. 1148. 181 Commission, COVID-19, Guidelines for border management measures to protect health and ensure the availability of goods and essential services, C(2020) 1753 final, see https://ec.europa.eu/home-affairs/ sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20200316_covid-19-guidelines-forborder-management.pdf [last accessed 25 February 2021]. 182 Communication from the Commission Towards a phased and coordinated approach for restoring freedom of movement and lifting internal border controls – COVID-19 2020/C 169/03; C/2020/3250 (OJ 2020 C 169/30).

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these controls fully comply with the Schengen Borders Code.183 In February 2020, Belgium, Denmark, Finland, Germany, Hungary and Sweden were put on notice over their border controls.184 In recent years, there seems to be a tendency to delegate the tasks of border controls 9 (both external and internal) to private companies (i.e. coach operators or airlines).185 As far as external borders are concerned, this is explicitly foreseen by Article 26 CISA and the Carrier Sanctions Directive.186 On the contrary, the introduction of an obligation for private operators to carry out (travel document) controls for trips within the Schengen area is not permitted and would conflict with Articles 25 et seqq. of the Schengen Borders Code.187

III. The rules on the temporary reintroduction of internal border controls According to Articles 25 et seqq., three different situations may be distinguished: 10 Foreseeable events, situations requiring immediate action, and circumstances outing the overall functioning of the Schengen area at risk. According to the Commission, the periods of reintroduced border control under Articles 25 and 28 can cumulate, even with regard to the same situation (for example, the migratory pressure due to the situation at the external borders).188 Each notification is examined individually and on its own merits with the applicable deadlines applying for each particular case. If a decision on the reintroduction of border controls is based on a different ground, the deadlines start afresh. This gives Member States a huge margin of appreciation.

1. Temporary internal border controls in the case of foreseeable events (Articles 25, 26, 27) Member States may exceptionally and as a last resort reintroduce border control for 11 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, border controls may be prolonged for renewable periods of up to 30 days. The total period shall not exceed six months (Article 25(4)). Where there are exceptional circumstances as referred to in Article 29, that total period may be extended to a maximum length of two years (Article 25(4)). 183 See Thym, ‘Travel Bans in Europe: A Legal Appraisal’, Verfassungsblog of 19 March 2020, available at: https://verfassungsblog.de/travel-bans-in-europe-a-legal-appraisal/ [last accessed 25 February 2021]; van Elsuwege, ‘Lifting Travel Restrictions in the Era of COVID-19: In Search of a European Approach’, Verfassungsblog of 5 June 2020, available at: https://verfassungsblog.de/lifting-travel-restrictions-in-theera-of-covid-19-in-search-of-a-european-approach/ [last accessed 25 February 2021]; Thym/Bornemann, Schengen and Free Movement Law, p. 1147 et seqq.; Montaldo, The COVID-19 Emergency, p. 523–531. 184 See https://www.schengenvisainfo.com/news/eu-commission-urges-six-member-states-to-removesome-of-their-covid-19-border-restrictions/ [last accessed 25 February 2021]. 185 See also Progin-Theuerkauf, Schutz der und Zusammenarbeit an den Aussengrenzen, MN 123 et seqq. 186 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 (OJ 2001 L 187/45); Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data (OJ 2004 L 61/24). See Article 1 MN 3. 187 ECJ, Touring Tours and Travel, C-412/17 and C-474/17, EU:C:2018:1005. 188 See Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at internal borders, COM(2017) 571 final, p. 3.

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Chp. 5 Art. 35

Schengen Borders Code Regulation (EU) 2016/399

The substantive requirements of Article 25 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. Public health is not among the reasons that can justify the reintroduction of border controls. As references to public health are made in other articles of the Schengen Borders Code (namely in Article 6(1)(e) and Article 8(2)(b), (2a), (3)(a)(vi) and 3(g)(ii)), this omission seems to be deliberate.189 However, it is also obvious that the notion of ‘public policy’ can encompass severe threats to public health that can have a massive social and economic impact, like the Covid-19 pandemic has shown.190 On the contrary, ‘simple’ public health threats would justify only individual measures, but not the reintroduction of border controls.191 13 When deciding on the reintroduction of border controls, the Member State concerned needs to assess their proportionality in relation to the threat (Article 25(1) and 26). Border controls shall only be reintroduced as a last resort. The impact on the measures on the free movement of persons must be taken into account when making the assessment (Article 26). 14 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 27(1), (2)). Where the circumstances giving rise to the need to reintroduce border control become known less than four weeks before the planned introduction, it is not necessary to respect the four weeks. The Commission and any Member State may issue an opinion and consultation and joint meetings shall be held before the controls are introduced (Article 27(4)-(6))192. 15 Member States shall supply the information mentioned in Article 27(1)(a)-(e), including the delivery of all relevant data. 12

2. Temporary internal border controls in the case of unforeseeable circumstances (Article 28) 16

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 (Article 28(1)). If the threat persists, the period for the controls may be prolonged by periods of up to 20 days (Article 28(3)). The maximum duration is, however, limited to two months (Article 28(4)). The periods mentioned in Articles 25 and 28 can cumulate. In case of a prolongation of the controls, the criteria set out in Article 26 and the procedural provision of Articles 27(4) and (5) apply mutatis mutandis.

2. Temporary internal border controls in the case of exceptional circumstances (Articles 29, 30) 17

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 189

Thym/Bornemann, Schengen and Free Movement Law, p. 1148. A threat to public policy usually covers the ‘existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society’, cf. ECJ, Regina, C-30/77, EU:C:1977:172, para 35. Even though this definition has been developed with regard to EU citizens and the ECJ defined the notion of public order in the context of Article 6 in a narrower way (ECJ, E.P., C-380/18, EU:C:2019:1071, paras 40 et seqq.), several arguments speak in favor of the application of a higher threshold for Articles 25 et seqq. Firstly, Article 25 mentions ‘severe threats’. Secondly, border controls can only be introduced as a last resort. 191 Thym/Bornemann, Schengen and Free Movement Law, p. 1148 et seq. 192 See in more detail Pascouau, The Schengen Governance Package, p. 4. 190

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relating to external border control (Article 21) or as a result of the non-compliance of a Member State with a Council decision referred to in Article 19(1) of the Frontex Regulation 2016/1624 (now Article 42(1) of Frontex Regulation (EU) 2019/1896)193, and insofar as those circumstances constitute a serious threat to public policy or internal security within the Schengen area or parts of it, border control at internal borders may be reintroduced for a period of up to six months. The controls may be prolonged for three additional periods of up to six months, if the risk persists (Article 29 (1)). It is the Council that, based on a proposal by the Commission, recommends to reintroduce border control at all or specific parts of the internal borders of one or more Member State(s). Even if the additional periods are shorter than six months, the possibility to prolong these controls only exists three times, as the wording of Article 29(1) is clear (‘no more than three times’). The total period of border controls may then be shorter than two years. The criteria for the reintroduction of controls pursuant to Article 29 are found in 18 Article 30. When deciding on the reintroduction, the Council has to assess the proportionality of such measures, as well as alternative measures like the assistance by Union bodies and agencies such as the European Asylum and Support Office and 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.194 After the 2015/2016 refugee crisis, when the controls had been prolonged three times 19 and the limits of Article 29 were attained, the Member States simply continued to carry out border controls. It is doubtful whether this practice is compatible with the Schengen Borders Code, as the reasons given were still the same (the situation at the external borders and the secondary movements). It does not seem in line with the spirit of Schengen to simply trade one legal basis for another (e.g. Article 28 instead of Article 29), thus being able to eternally prolong border controls at the internal borders.

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 20 of measures taken in the area of freedom, justice and security can be examined by the Court of Justice. The former restriction on the Court’s jurisdiction in Article 68(2) EC Treaty195 had not allowed such an examination by the Court. It has to be stressed that even the temporary reintroduction of internal border 21 checks pursuant to Article 25 et seqq. does not affect the right of free movement of Union citizens and their family members, which already results from Article 3 Regulation 2016/399. A refusal of entry to such persons must therefore comply with the rather strict requirements of EU Law in general and with the Free Movement Directive 2004/38/EC in particular.

193

See above, MN 3. See Pascouau, The Schengen Governance Package, p. 6–7; Peers, The Future of Schengen, p. 44–45. 195 See the comments on judicial protection above, Article 1 MN 19–20. 194

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Schengen Borders Code Regulation (EU) 2016/399

TITLE IV FINAL PROVISIONS Article 36 Amendments to the Annexes […]

Article 37 Exercise of the delegation […]

Article 38 Committee procedure […]

Article 39 Notifications […]

Article 40 Local border traffic […]

Article 41 Ceuta and Melilla […]

Article 42 Notification of information by the Member States […]

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Article 43 Evaluation mechanism […]

Article 44 Repeal […]

Article 45 Entry into force […]

ANNEX I Supporting documents to verify the fulfilment of entry conditions […]

ANNEX II Registration of information […]

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

ANNEX IV Affixing stamps […]

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Chp. 5 ANNEX VI

Schengen Borders Code Regulation (EU) 2016/399

ANNEX V PART A Procedures for refusing entry at the border […]

PART B Standard form for refusal of entry at the border […]

ANNEX VI Specific rules for the various types of border and the various means of transport used for crossing the Member States’ external borders […]

ANNEX VII Special rules for certain categories of persons […]

ANNEX VIII […]

ANNEX IX Repealed Regulation with list of its successive amendments […]

ANNEX X Correlation table […]

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Chapter 6. Frontex Regulation (EU) 2019/1896 Select 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), p. 225–251; 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; Carrera/den Hertog, A European Border and Coast Guard: What’s in a Name? (Centre for European Policy Studies, March 2016); Coman-Kund, European Union Agencies as Global Actors. A Legal Study of the European Aviation Safety Agency, Frontex and Europol (Routledge, 2018); Dubout, ‘Les enjeux constitutionnels du pouvoir de substitution de l’agence Frontex’, Revue trimestrielle de droit européen (2017), p. 457–476; Fernandez, ‘The EU External Borders Policy and Frontex-Coordinated Operations at Sea: Who is in Charge? Reflections on Responsibility for Wrongful Acts’, in: Moreno-Lax/ Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill, 2016), p. 379–407; Fernandez, ‘Multi-Stakeholder Operations of Border Control Coordinated at the EU Level and the Allocation of International Responsibilities’, in: Gammeltoft-Hansen/Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation (Routledge, 2017), p. 237–271; Fernandez-Rojo, ‘The Umpteenth Reinforcement of FRONTEX’s Operational Tasks: Third Time Lucky?’, EU Law Analysis Blog of 4 June 2019, available at: http://eulawanalysis.blogspot.com/2019/06/the-umpteenth-reinforcement-offrontexs.html [last accessed 12 May 2021]; Fink, Frontex and Human Rights. Responsibility in ‘MultiActor Situations’ under the ECHR and EU Public Liability Law (OUP, 2018); Fink, ‘The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable’, German Law Journal 21 (2020), p. 532–548; Gkliati, ‘The next phase of the European Border and Coast Guard: Towards Operational Effectiveness’, EU Law Analysis Blog of 8 October 2018, available at: http://eulawanalysis.blogspot.com/ 2018/10/the-next-phase-of-european-border-and.html [last accessed 12 May 2021]; Gkliati, ‘The New European Border and Coast Guard: Do Increased Powers Come with Enhanced Accountability?’, EU Law Analysis Blog of 17 April 2019, available at: http://eulawanalysis.blogspot.com/2019/04/the-neweuropean-border-and-coast-guard.html [last accessed 12 May 2021]; Guild, ‘The Frontex Push-Back Controversy’, EU Immigration and Asylum Law Blog of 19 and 22 April 2021, available at: https:// eumigrationlawblog.eu/ [last accessed 12 May 2021]; 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; 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; Mungianu, Frontex and NonRefoulement. The International Responsibility of the EU (CUP, 2016); Neal, ‘Securitization and Risk at the EU Border: The Origins of Frontex’, JCMS 47 (2009), p. 333–356; Rijpma, The Proposal for a European Border and Coast Guard: evolution or revolution in external border management? (European Parliament, March 2016); Rijpma/Fink, ‘The Management of The European Union’s External Borders’, in: de Bruycker/Tsourdi (eds), Research Handbook on EU Asylum and Migration Law (Edward Elgar, 2021); Ryan, ‘The Migration Crisis and the European Union Border Regime’, in: Cremona/Scott (eds), EU Law Beyond EU Borders: The Extraterritorial Reach of EU Law (OUP, 2019); 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). 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.

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Frontex Regulation (EU) 2019/1896

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 Official Journal L 295, 14.11.2019, p. 1–131 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 77(2)(b) and (d) and Article 79(2)(c) 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: […] HAVE ADOPTED THIS REGULATION:

CHAPTER I EUROPEAN BORDER AND COAST GUARD Article 1 Subject matter This Regulation establishes a European Border and Coast Guard to ensure European integrated border management at the external borders with a view to managing those borders efficiently in full compliance with fundamental rights and to increasing the efficiency of the Union return policy. This Regulation addresses migratory challenges and potential future challenges and threats at the external borders. It ensures a high level of internal security within the Union in full respect of fundamental rights, while safeguarding the free movement of persons within the Union. It contributes to the detection, prevention and combating of cross-border crime at the external borders.

I. Commentary 1

An agency of the European Union concerned with the Schengen external border was first established under former Frontex Regulation (EC) No 2007/2004, with effect from 1 May 2005, with its seat is in Warsaw. It officially commenced operations on (1)

OJ C 110, 22.3.2019, p. 62. OJ C 168, 16.5.2019, p. 74. (3) Position of the European Parliament of 17 April 2019 (not yet published in the Official Journal) and decision of the Council of 8 November 2019. (2)

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3 October 2005. Its official name was initially the ‘European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union’, and became the ‘European Border and Coast Guard Agency’ with effect from 6 October 2018. Throughout, it has been known as ‘Frontex’, an abbreviation of the French term ‘frontières extérieures’.1 The establishment of Frontex reflected the shared concern of Member States and of the EU to ensure effective controls at the common external border, in a context of open internal borders within the Schengen zone.2 Among the EU institutions, the startingpoint was 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.’3 That was followed by a Commission Communication of 7 May 2002, which recommended the establishment of an external borders practitioners common unit, aimed at operational co-operation, and a European Corps of Border Guards.4 The first of those found favour with the Member States, and became the core of the Commission proposal which led to the 2004 Frontex Regulation, published on 20 November 2003.5 Under the 2004 Regulation, Frontex’s role was carefully limited by describing it as the management of operational cooperation. It was explicit that ‘the responsibility for the control and surveillance of external borders lies with the Member States’.6 Accordingly, the detail of the legislation was built upon a model of support by the Agency for individual Member States exercising their powers at the external border. If a Member State faced particular pressures at external borders, they could request that Frontex initiate a joint operation, which would involve personnel and other assets provided by other Member States.7 Other tasks provided for in the legislation included risk analyses concerning the external border, and support for Member States in organising joint return flights for the respect of the expulsion of third country nationals without immigration status.8 The first amendments to the Frontex Regulation were made by Regulation 863/2007 concerning rapid border intervention teams.9 The broad purpose of that Regulation was to permit a Member State facing ‘extreme difficulties’ at its border to have rapid assistance, via Frontex, from other Member States’ border officials. The concept of a ‘rapid border intervention’ remains one of the forms of available Frontex support under the most recent legislation (see below, Article 37 MN 2). A second set of amendments was made by Regulation (EU) 1168/2011.10 The Commission proposal on which it was based had been published in February 2010.11 1 See Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law (Text and Commentary). Vol 1: Visas and Border Controls (Martinus Nijhoff, 2012), p. 119, and Regulation (EU) 2019/1896, recital 3. 2 Neal, Securitization and Risk at the EU Border; Baldaccini, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 230–232. 3 Presidency Conclusions, European Council, Laeken, 14–15 December 2001 (SN 300/1/01 Rev 1), para 42. 4 Commission Communication, Towards Integrated Management of the External Borders of the Member States of the European Union, COM(2002) 233, paras 28–51. 5 Commission Proposal, COM(2003) 687. 6 Former Frontex Regulation (EC) 2007/2004, Article 1(2). 7 Former Frontex Regulation (EC) 2007/2004, Article 3. 8 Former Frontex Regulation (EC) 2007/2004, Articles 4 and 9. 9 OJ 2007 L 199/30, based on COM(2006) 401. 10 Regulation (EU) No 1168/2011 (OJ 2011 L 304/1) establishing a European Agency for the Management of Operational Cooperation at the External Borders. For a discussion of the legal position in the light of the 2011 amendments, see Mungianu, Frontex and Non-Refoulement, p. 31–47; Trevisanut, Which Borders for the EU Immigration Policy?, p. 117–122. 11 See Commission Propoal, COM(2010) 61.

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The events of the Arab Spring in 2011 led the European Council to call for rapid agreement on the Regulation, and the final text was approved in October that year.12 These amendments began a shift away from the exclusive responsibility of Member States for the external border. The Member States’ personnel provided via Frontex for operations were described as ‘European Border Guard teams’.13 Frontex risk analysis expressly covered Member States’ capacity, and as the objective situation the external border.14 Frontex acquired powers to coordinate and organise joint returns, if so requested by Member States.15 Provision was made for it to enter working arrangements with third countries, in order to facilitate Member State co-operation.16 The 2011 amendments also began the development of the fundamental rights mechanisms applicable to Frontex (see below, MN 11). 6 More profound changes to Frontex’s role followed the intensification of the migration crisis in 2015–2016. In the aftermath of two tragedies off Libya in April 2015, which saw the loss of an estimated 1200 persons, the Commission called for ‘reflections’ on the implications of ‘shared responsibility’ concerning the external border.17 The rise in irregular sea arrivals in the Eastern Mediterranean in the summer of 2015 prompted a more ambitious proposal to develop Frontex ‘into a fully operational European border and coast guard system’.18 The corresponding legislative proposal appeared in December 2015, and was followed by the adoption of legislation in September 2016.19 7 The European Border and Coast Guard Regulation 2016 redefined the relationship of Frontex to the Member States in key respects.20 Re-naming Frontex as the ‘European Border and Coast Guard Agency’ implied a more central role for it than the previous ‘coordination’ of Member State action.21 Together, Frontex and the national authorities were defined as the European Border and Coast Guard, with ‘shared’ responsibility for the external border, aimed at ‘European integrated border management’.22 Frontex’s role in respect of returns was enhanced by enabling it to participate in all aspects of the preparation and implementation of return decisions taken by Member States.23 Frontex’s powers over Member States were expanded through vulnerability assessments, which could lead to binding recommendations to Member States.24 Related to that, where the situation at the external border control jeopardised the Schengen zone, the Council acquired a power to require Frontex to prepare an operational plan, 12 European Council, Extraordinary European Council: Declaration (EUCO 7/1/11, 11 March 2011), para 10. 13 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 1a(1a). 14 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 4. 15 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 9(1). 16 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 14. 17 Commission Communication, A European Agenda on Migration, COM(2015) 240, at 17. 18 State of the Union speech to the European Parliament by President of European Commission, JeanClaude Juncker, 9 September 2015. 19 See European Council meeting (15 October 2015) – Conclusions, EUCO 26/15, 16 October 2015, para 2(h); Commission Proposal, COM(2015) 671; and former Frontex Regulation (EU) 2016/1624 of the European Parliament and of the Council on the European Border and Coast Guard (OJ 2016 L 251/1). 20 See generally: Carrera/den Hertog, A European Border and Coast Guard, and Rijpma, The Proposal for a European Border and Coast Guard. On the significance of the 2016 Regulation, see Dubout, Les enjeux constitutionnels, p. 457–462 and Ryan, in Cremona/Scott, EU Law Beyond EU Borders, p. 212–214. 21 Former Frontex Regulation (EU) 2016/1624, recital 11 and Article 6. 22 Former Frontex Regulation (EU) 2016/1624, Articles 3, 4 and 5. The corresponding provisions in the current legislation are Articles 4, 7 and 3, respectively (see below). 23 Former Frontex Regulation (EU) 2016/1624, Articles 27–33. The corresponding provisions in the current legislation are Articles 48–53 (see below). 24 Former Frontex Regulation (EU) 2016/1624, Article 13. For the corresponding provision in the current legislation, see below, Article 32.

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which the Member State concerned was obliged to implement.25 Moreover, the 2016 Regulation further enhanced Frontex’s role in relation to third states, including by providing for the deployment of Frontex teams to the territory of such states.26 Against a background of growing demands upon the Agency after the height of the migration crisis, and substantial increases in its financial resources, further changes to the Agency’s mandate and governing provisions were made by Regulation 2019/ 1896.27 Its key reform was provision for the Agency to have a ‘standing corps’ of operational staff, to number 10,000 officers by 2027, made up of 3,000 of the Agency’s own staff, 1,500 Member State staff on long-term deployment and 5,500 Member State staff on short-term deployment (see below, Article 5 MN 2). At the operational level, Frontex’s initial focus was upon preventing irregular migration to Member States, through border checks upon travel by air, land and sea, and border surveillance at land and sea borders.28 From the outset, it has also sought to promote returns to third countries of persons without immigration status in Schengen states. Since 2005, its mandate and operations have become more extensive, now extending to include responses to serious cross-border criminal activity, coast guard functions, information sharing and combatting document fraud. In line with its enhanced mandate and range of activity, its budget has grown significantly since 2010, from 93 million euro in 2010 to 460 million euro in 2020, with further increases planned for the 2021–2027 budgetary period.29 A controversial aspect of Frontex’s activity has been its involvement in border surveillance at sea in the Mediterranean and on routes to the Canary Islands, continuously since 2006/2007. Amendments to the Frontex Regulation in 2011 clarified that it could participate in such surveillance operations, and that these might lead to the rescue of persons in distress at sea.30 The legal rules governing Member States when participating in operations are the subject of separate legislation (see author’s chapter on Sea Borders Regulation (EU) No 656/2014).31 Since 2005, there has been recurrent discussion of whether Frontex’s systems are adequate to ensure respect for fundamental rights.32 That concern led to a strengthening of the fundamental rights provisions relating to Frontex in 2011. Frontex became subject to a series of obligations to comply with fundamental rights and international law in carrying out its tasks.33 Institutional arrangements were also put in place, 25 Former Frontex Regulation (EU) 2016/1624, Article 19. For the corresponding provision in the current legislation, see below, Article 42. 26 Former Frontex Regulation (EU) 2016/1624, Article 54. For the corresponding provisions in the current legislation, see below, Articles 73 and 74. 27 See Gkliati, The next phase of the European Border and Coast Guard; Gkliati, The New European Border and Coast Guard; Fernandez-Rojo, The Umpteenth Reinforcement of FRONTEX’s Operational Tasks. 28 For an overview of Frontex operations, see Fink, Frontex and Human Rights, p.35–45. Detailed information may be obtained from Frontex annual activity reports since 2006, available at https://frontex. europa.eu/about-frontex/key-documents/. 29 Rijpma/Fink, in de Bruycker/Tsourdi (eds), Research Handbook on EU Asylum and Migration Law, observe that the budgetary ‘envelope’ for Frontex is 5.148 million euro for 2021–2027. 30 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 2(1)(da). 31 From a legal perspective, a single instrument appears desirable, to incorporate the rules on sea border surveillance into the Frontex legislation, so as to avoid discrepancies between them (discussed in author’s chapter on Sea Borders Regulation (EU) No 656/2014, Article 1 MN 8a). 32 For early examples, see Baldaccini, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control; Guild/Carrera/den Hertog/Parkin, Implementation of the EU Charter of Fundamental Rights; Carrera/ den Hertog/Parkin, The Peculiar Nature of EU Home Affairs Agencies in Migration Control. 33 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation (EU) No 1168/2011, Articles 1(2), 2a, 5, 9 and 14. In the current legislation, this obligation is stated in general terms: see below, Article 80 MN 1.

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requiring it to develop and to implement a fundamental rights strategy, to establish a Fundamental Rights Consultative Forum, and to appoint a Fundamental Rights officer.34 To these, the 2016 Regulation added provision for forced return monitors and for a complaints mechanism for those alleging a breach of fundamental rights during a Frontex operation.35 The main innovation in this area made by the 2019 Regulation was the introduction of fundamental rights monitoring for all Frontex border and returns activity (see below, Article 110 MN 1–3). 12 In contexts where Frontex operates, the attribution of legal responsibility for operational activity is a problematic subject.36 Despite the evolution of the Frontex legislation, the model upon which it is based remains support to a host state by Frontex and participating states. In particular, it is usually the host state that requests support (see below, Articles 36, 40 and 43), it must agree to the operational plan (see below, Article 38(2)), and it is responsible for issuing instructions to members of Frontex teams (see below, Article 43 MN 1). In line with that model, the Regulation makes the host state liable for the actions of members of teams within Frontex operations (see below, Article 84(1)). As against that, Frontex may be thought to have responsibility in its organisational capacity, including because the executive director is the author of operational plans (see below, Article 38(2)), and has the power to suspend or to terminate operations (see below, Article 46). Participating states too will retain legal responsibility, due to their command of their large assets (ships, aircrafts, etc) deployed within Frontex operations.37 Moreover, both Frontex and participating states are potentially responsible for the actions of their officials, as is reflected in the provisions concerning civil liability within teams, and the complaints mechanism (see below, Articles 84 and 111, respectively). An especially problematic aspect of attribution of responsibility is that it may be uncertain whether specific actions by host state officials and assets arise within a Frontex operation, or rather autonomously from it (i.e. in parallel).38 13 Three legal bases in the Treaties were relied upon to adopt the 2016 and 2019 Regulations: Article 77(2)(b) TFEU, which permits measures concerning checks at the external border; Article 77(2)(d) TFEU, which permits measures concerning ‘the gradual establishment of an integrated management system for external borders’; and, Article 79(2)(c), which permits measures inter alia concerning ‘removal and repatriation of persons residing without authorisation’. The competence in respect of the integrated management of external borders was inserted into the Treaties by the Treaty of Lisbon in 2009.39 An express reference to a power concerning removal had not been included in the 2004 Regulation or the 2011 amendments, and reflects the enhanced role of Frontex in respect of returns in 2016 and 2019 (see below, Article 48 MN 1). The 2004 and 2011 versions of the Regulation had however been based upon an EU competence to ‘ensure administrative cooperation’ between Member States, and between them and 34 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation (EU) No 1168/2011, Article 26a. For the corresponding provisions in the current legislation, see below, Articles 80(1), 108 and 109. 35 Former Frontex Regulation (EU) 2016/1624, Articles 29 and 72. For the corresponding provisions in the current legislation, see below, Articles 52 and 111. 36 On responsibility, see generally, Fernandez, in Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea; Fernandez, in Gammeltoft-Hansen/Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation; Fink, The Action for Damages; Fink, Frontex and Human Rights, Chapter 3 and 4. 37 For a discussion of the retention of command powers over large assets by participating states, see Fink, Frontex and Human Rights, p. 69–70 and 270–271. 38 For a discussion in respect of sea border surveillance, see author’s chapter on Sea Borders Regulation (EU) No 656/2014, Article 1 MN 10. 39 On the legislative power concerning integrated border management, see Mungianu, Frontex, p. 365–367 and Thym, Legal Framework for Entry and Border Controls, MN 19.

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the Commission (previously Article 66 TEC, now Article 74 TFEU).40 The absence of any reference to that legal basis in 2016 and 2019 reflects the evolution of Frontex beyond merely co-ordinating Member State operations (above, MN 5 and 6). The Frontex Regulation is self-evidently a measure building on the Schengen acquis.41 Accordingly, it applies to the 25 EU Member States which are currently bound by the Schengen acquis as a matter of EU law. It applies to Spain’s territories of Ceuta and Melilla, but not to territories outside Europe belonging to France or the Netherlands.42 The Frontex Regulation applies to Denmark on an international law basis, in line with the Protocol No. 22 to the TEU on the position of Denmark, as a result of its agreement to be bound.43 Denmark is to be understood as a Member State for the purposes of the Regulation.44 Iceland, Liechtenstein, Norway and Switzerland, which are Schengen states outside the EU, participate fully in Frontex.45 It is implicit that these are all ‘Member States’ for the purposes of the Regulation.46 The Frontex Regulation does not ordinarily apply to Ireland, as it is outside the Schengen zone.47 The Regulation provides for Ireland to be invited to meetings of the management board (below, Article 104(4)). Article 70 (not discussed in this chapter) makes provision for Frontex to facilitate co-operation within its remit between the Schengen states and Ireland, for agreements with Ireland concerning the exchange of ‘situational’ information within EUROSUR, and for Frontex support to Ireland in connection with joint return operations. The Frontex management board also has the power to authorise Ireland to participate in (other) ‘specific activities’, at its request (below, Article 100(5)). The express provision for Ireland in the Regulation implies that, despite not being a Member State, it is not to be considered a third country either.48 Previously, the United Kingdom was in the same position as Ireland in respect of Frontex. Under provision made for the United Kingdom in the 2019 Regulation, any special arrangements only applied until the end of the Brexit transition period (i.e., 31 December 2020).49 As no agreement concerning Frontex was reached in the context of the United Kingdom’s withdrawal from the EU, it is now a ‘third country’ for the purposes of the Regulation. A difficulty which remains concerns the position of Gibraltar, which is a British overseas territory. When the United Kingdom and Gibraltar were within the EU, but outside the Schengen zone, Article 70(8) of the Regulation suspended the application of the Frontex Regulation, to avoid controls on the Gibraltar-Spain frontier. A formal agreement between the United Kingdom, Spain and the EU appears necessary in order to remove any need for border controls at that frontier. 40 On the legislative power concerning administrative co-operation, see Mungianu, Frontex, p. 367–369. 41 ECJ, UK v. Council, C-77/05,EU:C:2007:803. 42 In respect of all these territories, see Schengen Borders Code Regulation (EU) 2016/399, recital 37. For a discussion of Ceuta and Melilla, see Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 1 MN 10. 43 See Frontex Regulation (EU) 2019/1896, Recital 125 and Council doc. 5854/20 of 6 February 2020 concerning its agreement. 44 Denmark is included in Annexes II, III and IV concerning commitments to the standing corps. 45 Frontex Regulation (EU) 2019/1896, Recitals 121, 122 and 123. 46 These states are included in Annexes II, III and IV concerning commitments to the standing corps. 47 Regulation (EU) 2019/1896, Recital 127. 48 This is evidenced by the separate provision in Article 70 of the Regulation for co-operation with Ireland, and in its Article 71 for co-operation with third countries. 49 Frontex Regulation (EU) 2019/1896, Article 104(3) and 124(3).

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Article 2 Definitions For the purposes of this Regulation, the following definitions apply: (1) ‘external borders’ means external borders as defined in point 2 of Article 2 of Regulation (EU) 2016/399; (2) ‘border crossing point’ means border crossing point as defined in point 8 of Article 2 of Regulation (EU) 2016/399; (3) ‘border control’ means border control as defined in point 10 of Article 2 of Regulation (EU) 2016/399; (4) ‘border checks’ means border checks as defined in point 11 of Article 2 of Regulation (EU) 2016/399; (5) ‘border surveillance’ means border surveillance as defined in point 12 of Article 2 of Regulation (EU) 2016/399; (6) ‘air border surveillance’ means the surveillance of any flight of a manned or unmanned aircraft and its passengers or cargo to or from the territory of the Member States which is not an internal flight as defined in point 3 of Article 2 of Regulation (EU) 2016/399; (7) ‘situational awareness’ means the ability to monitor, detect, identify, track and understand illegal cross-border activities in order to find reasoned grounds for reaction measures on the basis of combining new information with existing knowledge, and to be better able to reduce the loss of lives of migrants at, along or in the proximity of the external borders; (8) ‘reaction capability’ means the ability to perform actions aimed at countering illegal cross-border activities at, along or in the proximity of the external borders, including the means and timelines to react adequately; (9) ‘EUROSUR’ means the framework for information exchange and cooperation between the Member States and the European Border and Coast Guard Agency; (10) ‘situational picture’ means an aggregation of geo-referenced near-real-time data and information received from different authorities, sensors, platforms and other sources which is transmitted across secured communication and information channels and can be processed and selectively displayed and shared with other relevant authorities in order to achieve situational awareness and support the reaction capability at, along or in the proximity of the external borders and the pre-frontier area; (11) ‘external border section’ means the whole or a part of the external border of a Member State, as defined by national law or as determined by the national coordination centre or any other responsible national authority; (12) ‘cross-border crime’ means any serious crime with a cross-border dimension that is committed or attempted at, along or in the proximity of the external borders; (13) ‘pre-frontier area’ means the geographical area beyond the external borders which is relevant for managing the external borders through risk analysis and situational awareness; (14) ‘incident’ means a situation relating to illegal immigration, cross-border crime, or a risk to the lives of migrants at, along or in the proximity of, the external borders; (15) ‘statutory staff’ means staff employed by the European Border and Coast Guard Agency in accordance with the Staff Regulations of Officials of the 290

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European Union (the ‘Staff Regulations’) and the Conditions of Employment of Other Servants of the Union (the ‘Conditions of Employment’) laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68(34); ‘operational staff’ means border guards, return escorts, return specialists and other relevant staff constituting the European Border and Coast Guard standing corps in accordance with the four categories set out in Article 54(1), acting as members of the teams having executive powers, where applicable, and the statutory staff responsible for the functioning of the European Travel Information and Authorisation System (ETIAS) Central Unit that are not deployable as members of the teams; ‘member of the teams’ means a member of the European Border and Coast Guard standing corps deployed through border management teams, and return teams; ‘border management teams’ means teams formed from the European Border and Coast Guard standing corps to be deployed during joint operations at the external borders and rapid border interventions in Member States and third countries; ‘migration management support teams’ means teams of experts which provide technical and operational reinforcement to Member States, including at hotspot areas, composed of operational staff, experts from the European Asylum Support Office (EASO) and Europol and, where relevant, experts from the European Union Agency for Fundamental Rights (FRA), other Union bodies, offices and agencies and Member States; ‘host Member State’ means a Member State in which a joint operation or a rapid border intervention, a return operation or a return intervention takes place, or from which it is launched, or in which a migration management support team is deployed; ‘home Member State’ means the Member State from which a staff member is deployed or seconded to the European Border and Coast Guard standing corps; ‘participating Member State’ means a Member State which participates in a joint operation, rapid border intervention, return operation, return intervention or in a deployment of a migration management support team, by providing technical equipment or staff of the European Border and Coast Guard standing corps, as well as a Member State which participates in return operations or return interventions by providing technical equipment or staff, but which is not a host Member State; ‘hotspot area’ means an area created at the request of the host Member State in which the host Member State, the Commission, relevant Union agencies and participating Member States cooperate, with the aim of managing an existing or potential disproportionate migratory challenge characterised by a significant increase in the number of migrants arriving at the external borders; ‘return’ means return as defined in point 3 of Article 3 of Directive 2008/ 115/EC; ‘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 that respects Directive 2008/115/EC; OJ L 56, 4.3.1968, p. 1.

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(26) ‘returnee’ means an illegally staying third-country national who is the subject of an enforceable return decision; (27) ‘return operation’ means an operation that is organised or coordinated by the European Border and Coast Guard Agency and involves technical and operational reinforcement provided to one or more Member States under which returnees from one or more Member States are returned, either on a forced or voluntary basis, irrespective of the means of transport; (28) ‘return intervention’ means an activity of the European Border and Coast Guard Agency providing Member States with enhanced technical and operational assistance consisting of the deployment of return teams and the organisation of return operations; (29) ‘return teams’ means teams formed from the European Border and Coast Guard standing corps to be deployed during return operations, return interventions in Member States or other operational activities linked to the implementation of return-related tasks; (30) ‘immigration liaison officer’ means immigration liaison officer as defined in point 1 of Article 2 of Regulation (EU) 2019/1240 of the European Parliament and of the Council(35).

I. Commentary In Article 2, definitions concerning borders cross-refer to the Schengen Borders Code Regulation (EU) 2016/399. This must be considered an improvement on the 2004 and 2011 versions of the Frontex Regulation, which contained no cross-reference to the former Schengen Borders Code Regulation (EC) No 562/2006. It follows from Article 2(1) that the concept of ‘external borders’ is to be understood as follows: ‘“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’ (see Schengen Borders Code Regulation (EU) 2016/399, Article 2(2)). It follows that Frontex’s border-related mandate is linked to entry from third countries, and does not cover entry from Schengen states. That is the case even if border controls apply to travel from certain Schengen states, whether because the abolition of internal borders has not been applied to them50, or because of the temporary re-introduction of internal border controls (see Schengen Borders Code Regulation (EU) 2016/399, Articles 25–30). 2 The concepts of ‘border crossing point’, ‘border checks’, border surveillance’ and ‘border control’ at the external border are all defined by cross-reference to the Schengen Borders Code Regulation (EU) 2016/399. A ‘border crossing point’ is ‘any crossing-point authorised by the competent authorities for the crossing of external borders’ (Schengen Borders Code Regulation (EU) 2016/399, Article 2(8)). ‘Border checks’ are ‘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’ (Schengen Borders Code Regulation (EU) 2016/ 399, Article 2(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’ (Schengen 1

(35) Regulation (EU) 2019/1240 of the European Parliament and of the Council of 20 June 2019 on the creation of a European network of immigration liaison officers (OJ L 198, 25.7.2019, p. 88). 50 At the time of writing, the Member States in question are Bulgaria, Croatia, Cyprus and Romania.

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Borders Code Regulation (EU) 2016/399, Article 2(12)). Finally, the concept of ‘border control’ covers both border checks and border surveillance (see Schengen Borders Code Regulation (EU) 2016/399, Article 2(8)).51 An ‘incident’ is defined in Article 2(14) of the Regulation, as ‘a situation relating to illegal immigration, cross-border crime, or a risk to the lives of migrants at, along or in the proximity of, the external borders’. This should be read together with Article 25(3) of the Regulation (not discussed in this chapter), which provides that national coordination centres for external border control are to assign an ‘impact level’ (‘low’, ‘medium’, ‘high’ and ‘very high’), to each incident, and are to ‘share’ all incidents with Frontex. Article 2 is noteworthy for its classification of different categories of personnel involved in the work of Frontex. ‘Statutory staff’ are those employed by the Agency in accordance with the EU Regulations (see Article 2(15)). According to Article 2(16), ‘operational staff’ firstly include members of Frontex ‘standing corps’ acting within ‘teams’, who may or may not be the Agency’s statutory staff, because of the way the standing corps is formed (see below, Article 5 MN 2). ‘Operational staff’ also include certain statutory staff responsible for the European Travel Information and Authorisation System (ETIAS) Central Unit. The definitions in Article 2 also show that the Regulation provides for different types of ‘team’. Under Article 2(17), the concept of a ‘member of a team’ firstly covers ‘border management teams’, who are involved in joint operations and rapid interventions at the external borders or in third countries (see Article 2(18), and below, Article 37). Secondly, it covers ‘migration management support teams, made up of experts who provide technical and operational reinforcement to Member States when processing migrants, typically in ‘hotspot areas’ (see Article 2(23) and below, Article 40 MN 1–3). Thirdly, it covers ‘return teams’, who are involved in supporting the return of irregular migrants from Member States (see Article 2(29) and below, Articles 50 and 53). The classification of states in Article 2 is also significant. A host Member State is a state ‘in which’ Frontex operations take place or ‘from which’ they are launched (Article 2(20)), the latter of which is presumably intended to cover both border surveillance at sea, and return operations run by Frontex. A participating Member State is another Member State which participates in a Frontex operations by providing technical equipment and/or staff (Article 2(22). Linked to that, the home Member State is any Member State whose staff member is deployed within or seconded to the Frontex standing corps (Article 2(21)). The concept of ‘return’ is defined by cross-reference to Return Directive 2008/115/ EC, something which was not done in the 2004 and 2011 versions of Frontex legislation (see Article 2(24)). A ‘return’ is therefore ‘the process of a third-country national going back – whether in voluntary compliance with an obligation to return, or enforced – (i) to his or her country of origin, (ii) to a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or (iii) to another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted’ (see Return Directive 2008/ 115/EC, Article 3(3)). The concept of a ‘return decision’ is defined in the same terms as in Return Directive 2008/115/EC, Article 3(4) as ‘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’. The difference is that in this Regulation, it is stated that 51 In the Schengen Borders Code Regulation (EU) 2016/399, the term ‘border control’ also appears to cover controls at internal borders, where those have been reintroduced, but that does not seem relevant to the interpretation of the Frontex Regulation.

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such a decision must be one which ‘respects Directive 2008/115/EC’. That has the significant implication that Frontex may not lawfully support return decisions which do not comply with that Directive. (See Lutz, Return Directive 2008/115/EC, Article 3 MN 14–17.) 9 Article 2 does not contain a definition of the concept of ‘fundamental rights’, even though that term is used extensively in the Regulation. Instead, reference may be made to recital 103 to the Regulation, according to which ‘This Regulation respects the fundamental rights and observes the principles recognised by Articles 2 and 6 TEU and by the Charter of Fundamental Rights of the European Union (‘the Charter’), in particular respect for human dignity, the right to life, the prohibition of torture and 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 of access to documents, the right to asylum and to protection against removal and expulsion, non-refoulement, non-discrimination and the rights of the child.’ 10

The Regulation makes repeated reference to the terms ‘Union law’ and ‘international law’ – sometimes with the qualification ‘relevant’. Neither Article 2 nor the recitals provides a clear indication of how these terms are to be interpreted, especially as to the norms or principles which may potentially apply.52 In this regard, a particular grey area concerns the applicability of the ECHR, which is referred to only four times in the Regulation-twice in respect of Member State obligations- and twice in Annex V concerning the use of force by statutory staff.53 It is true that the content of the ECHR is likely to be reflected in the EU’s own CFR. Nevertheless, given the centrality of the jurisprudence of the ECtHR to the regulation of Member State border control practices, it is regrettable that the Regulation fails to identify the ECHR expressly as ‘relevant international law’ for Frontex and the Member States.

Article 3 European integrated border management 1. European integrated border management shall consist of the following components: (a) border control, including measures to facilitate legitimate border crossings and, where appropriate: measures related to the prevention and detection of crossborder crime at the external borders, in particular migrant smuggling, trafficking in human beings, and terrorism; and mechanisms and procedures for the identification of vulnerable persons and unaccompanied minors, and for the identification of persons who are in need of international protection or wish to apply for such protection, the provision of information to such persons, and the referral of such persons; (b) search and rescue operations for persons in distress at sea launched and carried out in accordance with Regulation (EU) No 656/2014 and with international 52 By way of illustration, Article 36(2) permits the Agency to provide support to Member States at the external borders, and provides it is ‘acting in accordance with the relevant Union and international law, including the principle of non-refoulement’. No indication is given of any other norms or principles which apply. 53 See recital 20, Article 72(3) in respect of Member States, and Annex V, paras 3 and 4 in respect of the use of force by statutory staff.

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law, taking place in situations which may arise during border surveillance operations at sea; (c) analysis of the risks for internal security and analysis of the threats that may affect the functioning or security of the external borders; (d) information exchange and cooperation between Member States in the areas covered by this Regulation, as well as information exchange and cooperation between Member States and the European Border and Coast Guard Agency, including the support coordinated by the European Border and Coast Guard Agency; (e) inter-agency cooperation among the national authorities in each Member State which are responsible for border control or for other tasks carried out at the border, as well as between authorities responsible for return in each Member State, including the regular exchange of information through existing information exchange tools, including, where appropriate, cooperation with national bodies in charge of protecting fundamental rights; (f) cooperation among the relevant Union institutions, bodies, offices and agencies in the areas covered by this Regulation, including through regular exchange of information; (g) cooperation with third countries in the areas covered by this Regulation, focusing in particular on neighbouring third countries and on those third countries which have been identified through risk analysis as being countries of origin or transit for illegal immigration; (h) technical and operational measures within the Schengen area which are related to border control and designed to address illegal immigration and to counter cross-border crime better; (i) the return of third-country nationals who are the subject of return decisions issued by a Member State; (j) the use of state-of-the-art technology including large-scale information systems; (k) a quality control mechanism, in particular the Schengen evaluation mechanism, the vulnerability assessment and possible national mechanisms, to ensure the implementation of Union law in the area of border management; (l) solidarity mechanisms, in particular Union funding instruments. 2. Fundamental rights, education and training, as well as research and innovation shall be overarching components in the implementation of European integrated border management.

I. Commentary The concept of ‘European integrated border management’ was introduced into 1 Article 77 TFEU by the Treaty of Lisbon in 2009 (see above, Article 1 MN 13), and into Frontex legislation in 2016. It may be understood as a general statement of the types of activity which Frontex may engage in. As such, it includes provision for border control and surveillance, risk analysis, information exchange, the promotion of co-operation between Member States, between EU bodies and with third countries, returns, and solidarity mechanisms. The phrasing of the provision for search and rescue of those in distress at sea in 2 Article 3(1)(b) implies that this will only arise in the context of border surveillance operations. Search and rescue is not therefore presented, even potentially, as a freestanding activity in which Frontex may engage. Nevertheless, where search and rescue Ryan

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operations occur, they are to comply with the Sea Borders Regulation (EU) 656/2014, and with international law obligations. (See generally the author’s chapter on the Sea Borders Regulation (EU) 656/2014.) 3 There is more extensive recognition for international protection and fundamental rights in the 2019 version than previously. Whereas in Article 4(1) of former Frontex Regulation (EU) 2016/1624, border control was stated to include referral of persons ‘in need of, or wishing to apply for, international protection’, Article 3(1) adds references to identification of such persons, and to provision of information to them. The second paragraph of Article 3(2) is new, and includes ‘fundamental rights’ among the ‘overarching components’ of the implementation of European integrated border management.

Article 4 European Border and Coast Guard The national authorities of Member States responsible for border management, including coast guards to the extent that they carry out border control tasks, the national authorities responsible for return and the European Border and Coast Guard Agency (‘the Agency’) shall constitute the European Border and Coast Guard.

I. Commentary 1

A clause defining the ‘European Border and Coast Guard’ as made up of the Agency and the national authorities was first included in the 2016 Regulation, and is illustrative of a shift towards a more centralised approach. By comparison, the 2004 and 2011 versions of the Frontex Regulation had presented Frontex as primarily concerned with ‘coordination’ of Member State activities. One detail of note is that the 2019 text places the national authorities first, and the Agency second, whereas in Article 3 of the 2016 Regulation, it was the other way round. (See further the discussion of ‘shared responsibility’ below, Article 7.)

Article 5 European Border and Coast Guard Agency 1. The Agency shall be governed by this Regulation. 2. The Agency shall include the European Border and Coast Guard standing corps (‘the standing corps’) referred to in Article 54 with a capacity of up to 10 000 operational staff in accordance with Annex I. 3. To ensure coherent European integrated border management, the Agency shall facilitate and render more effective the application of Union measures relating to the management of the external borders, in particular Regulation (EU) 2016/399, and of Union measures relating to return. 4. The Agency shall contribute to the continuous and uniform application of Union law, including the Union acquis on fundamental rights, in particular the Charter of Fundamental Rights of the European Union (‘the Charter’), at external borders. Its contribution shall include the exchange of good practices.

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I. Commentary Article 5(1), which provides that Frontex is ‘governed’ by the Regulation, is stronger 1 than the equivalent provision in the former Frontex Regulation (EU) 2016/1624, which had stated that Frontex ‘activities shall be based on this Regulation’.54 It may be read together with Article 93(1) of the Regulation, which gives a legal basis to Frontex, and states that ‘the Agency shall be a body of the Union’ and ‘shall have legal personality’. The statement in Article 5(2) that the Agency ‘shall include’ the standing corps is 2 significant, as it means that the obligations upon the Agency apply to all members of the standing corps, whether they are Frontex statutory staff or provided by the Member States. Under Article 54 of the Regulation (not discussed in this chapter), the standing corps is to be composed of four categories of operational staff: – 1: Frontex statutory staff (see above, Article 2 MN 4) – 2: Staff on long-term secondment from Member States to the Agency (see Article 56, not discussed in this chapter) – 3: Staff provided for short-term deployment by Member States (see Article 57, not discussed in this chapter) – 4: A rapid reaction reserve, consisting of Member State staff (see Article 58, not discussed in this chapter). The number in each category for years from 2021 onwards is set out in Annex I to the Regulation, with the number in the second, third and fourth categories to be made available by each Member State given in Annexes II, III and IV to the Regulation, respectively.55 According to the Annexes, in 2027 there are to be 3,000 statutory staff, 1,500 officials on long-term secondment from Member States, and 5,500 officials available for short-term deployment, and there is no longer to be a rapid reaction reserve. Article 5(3) indicates that one of Frontex’s roles is to ‘facilitate and render more effective 3 the application of’ EU measures relating to external borders, expressly including the Schengen Borders Code Regulation (EU) 2016/399, and EU measures relating to return, presumably including Return Directive 2008/115/EC. In a similar vein, Article 5(4) provides for Frontex to contribute to the ‘continuous and uniform application’ of EU law, including EU acquis on fundamental rights, and in particular the CFR. These provisions expressly concerning the application of EU law relate to what has been termed a ‘supervisory role’ for Frontex in respect of Member States’ compliance with EU law obligations.56 While their full meaning remains uncertain, they potentially open a space for Frontex oversight of Member State respect for fundamental rights in their external border and return actions, even when they are not acting within Frontex operations (see above, Article 1 MN 12).

Article 6 Accountability The Agency shall be accountable to the European Parliament and to the Council in accordance with this Regulation. 54

Former Frontex Regulation (EU) 2016/1624, Article 5(1). The Annexes are not discussed in this chapter. 56 Rijpma, The Proposal for a European Border and Coast Guard, p 14–15; Rijpma/Fink, The Management of the European Union’s External Borders. 55

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I. Commentary Express provision to the effect that Frontex is accountable to the European Parliament and Council of Ministers dates from the 2016 Regulation, when it was stated in identical terms to the current Article 6. Accountability in this context must be understood to refer essentially to oversight of the activities of Frontex by other institutions. Under the terms of the Regulation, this is a task generally shared by the European Parliament, Council of Ministers and the European Commission. In particular, Frontex risk analyses, vulnerability assessments, evaluation reports on returns, reports on capabilities, information about co-operation with third countries, and its annual activity reports, are shared with all three institutions.57 2 The obligations upon the Frontex executive director under Article 106(2) of the Regulation are central to the oversight of the Agency. Either the European Parliament or the Council may invite the executive director to report on Frontex activities and tasks. The European Parliament may request a statement from the executive director, and individual MEPs may address questions to the executive director to which they are obliged to respond in writing within 15 calendar days. More generally, the executive director is to ‘report regularly’ to the ‘appropriate bodies and committees’ of the European Parliament. 1

Article 7 Shared responsibility 1. The European Border and Coast Guard shall implement European integrated border management as a shared responsibility of the Agency and of the national authorities responsible for border management, including coast guards to the extent that they carry out maritime border surveillance operations and any other border control tasks. Member States shall retain primary responsibility for the management of their sections of the external borders. 2. The Agency shall provide technical and operational assistance in the implementation of measures relating to return as referred to in Article 48 of this Regulation, upon request of the Member State concerned or on its own initiative and with the agreement of the Member State concerned. Member States shall retain sole responsibility for issuing return decisions and for adopting the measures pertaining to the detention of returnees in accordance with Directive 2008/115/EC. 3. Member States shall ensure the management of their external borders and the enforcement of return decisions, in close cooperation with the Agency, in their own interests and in the common interest of all Member States in full compliance with Union law, including respect for fundamental rights, and in accordance with the multiannual strategic policy cycle for European integrated border management referred to in Article 8. 4. The Agency shall support the application of Union measures relating to the management of the external borders and the enforcement of return decisions by reinforcing, assessing and coordinating the actions of Member States and by providing technical and operational assistance in the implementation of those measures and in return matters. The Agency shall not support any measures or be 57

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involved in any activities related to controls at internal borders. The Agency shall be fully responsible and accountable for any decision it takes and for any activity for which it is solely responsible under this Regulation. 5. Member States may cooperate at an operational level with other Member States or third countries, where such cooperation is compatible with the tasks 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 that operational cooperation with other Member States or third countries at the external borders and in the field of return. The executive director shall inform the management board of such matters on a regular basis and at least once a year.

I. Commentary Specific provision concerning ‘shared responsibility’ between Frontex and the Member States was first made in the 2016 Regulation.58 The amended text in Article 7 carefully demarcates the respective roles of the Member States and the Agency in respect of border surveillance and returns, so as to recognise both the formal and operational priority of the Member States, and a central role for the Agency in setting priorities, providing support, and oversight. Article 7(1) of the current Regulation states that Member States ‘retain primary responsibility for the management of their sections of the external borders’. The notion of primary responsibility for the external borders may be contrasted with the statement in Article 1(1) of the 2004 legislation that ‘the responsibility for the control and surveillance of external borders lies with the Member States’, which suggested exclusive responsibility. The difference between primacy and exclusivity is crucial, as it confers legitimacy upon initiatives taken by the Agency, and implies that weight may be accorded to interests other than those of the given Member State. The separate provision for returns in Article 7(2) is significant, as it reflects the growing provision for Frontex activity in that field since the 2004 Regulation (see below, Article 48 MN 1). Paradoxically, that may also be the reason why it was thought necessary to state for the first time in the 2019 Regulation that Member States ‘retain sole responsibility for issuing return decisions’, and for detention related to returns, while the Agency’s role is ‘assistance in implementation’. The opening words of Article 7(3) provide that Member States are to ‘ensure’ the ‘management’ of their external borders and the ‘enforcement’ of return decisions. This passage assumes that there are obligations upon Member States concerning effective control of external borders, and the making of returns. As regards the external border, Article 15 of the Schengen Borders Code Regulation (EU) 2016/399 contains a general obligation upon Member States to ‘deploy appropriate staff and resources in sufficient numbers to carry out border control at the external borders … in such a way as to ensure an efficient, high and uniform level of control at their external borders.’ Reference may also be made to specific duties upon Member States in that Regulation, including to make border checks, to stamp travel documents at exit and entry, to engage in border surveillance, and to refuse entry to persons who are not eligible.59 As regards returns, Article 6 of the Return Directive 2008/115/EC 58 See former Frontex Regulation (EU) 2016/1624, Article 5, which drew upon statements previously in Article 1 and 2 of former Frontex Regulation (EC) 2007/2004. 59 Schengen Borders Code Regulation (EU) 2016/399, Articles 8, 11, 13 and 14.

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provides that Member States ‘shall issue a return decision to any third country national staying illegally on their territory’, while Article 8 of the same legislation sets out the default proposition that ‘Member States shall take all necessary measures to enforce the return decision’. 5 Article 7(3) goes on to list various constraints upon Member States in relation to the external border and returns. Member State are to act ‘in close cooperation with the Agency’. Significantly, they should act both in ‘their own interests’ and ‘in the common interest of all Member States’. They are to act in compliance with the common border strategy (see below, Article 8). Finally, they are to respect EU law and fundamental rights. 6 At the same time, Article 7(4) delimits the role of Frontex.60 It is to ‘support’ both EU measures relating to the management of the external borders and the enforcement of (Member State) return decisions. That involves its ‘reinforcing, assessing and coordinating the actions of Member States’ and also ‘technical and operational assistance’. The Agency is expressly precluded from any support or activity relating to internal border controls.61 7 Article 7(5) provides that Member States may cooperate at an operational level with other Member States or with third countries. Member States must however refrain from activity which ‘could jeopardise the functioning of the Agency or the attainment of its objectives,’ and are to report to the Agency. A version of this provision has been included in the Frontex Regulation since 2004.62 One innovation in the 2019 Regulation is that it is no longer stated that such co-operation may ‘continue’ – i.e. the text admits of the possibility of new co-operation. It should be noted that this clause permits Schengen Member States to co-operate inter alia with the United Kingdom, in relation to external borders and returns (see above, Article 1 MN 17). Further provisions in relation to third countries are contained in Article 72, below.

Article 8 Multiannual strategic policy cycle for European integrated border management […]

Article 9 Integrated planning […]

60

Article 7(4) is a more elaborate version of former Frontex Regulation (EU) 2016/1624, Article 5(3). There was no equivalent statement in former Frontex Regulation (EU) 2016/1624. 62 Former Frontex Regulation (EC) 2007/2004, Article 2(2) and former Frontex Regulation (EU) 2016/ 1624, Article 8(2). 61

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CHAPTER II FUNCTIONING OF THE EUROPEAN BORDER AND COAST GUARD SECTION 1 Tasks of the European Border and Coast Guard Agency Article 10 Tasks of the European Border and Coast Guard Agency 1. The Agency shall perform the following tasks: (a) monitor migratory flows and carry out risk analysis as regards all aspects of integrated border management; (b) monitor the operational needs of Member States related to the implementation of returns, including by collecting operational data; (c) carry out vulnerability assessments, including assessments of the capacity and readiness of Member States to face threats and challenges at the external borders; (d) monitor the management of the external borders through liaison officers of the Agency in Member States; (e) monitor compliance with fundamental rights in all of its activities at the external borders and in return operations; (f) support the development and operation of EUROSUR; (g) assist Member States in circumstances requiring increased technical and operational assistance at the external borders by coordinating and organising joint operations, taking into account that some situations may involve humanitarian emergencies and rescue at sea in accordance with Union and international law; (h) assist Member States in circumstances requiring increased technical and operational assistance at the external borders by launching rapid border interventions at the external borders of those Member States facing specific and disproportionate challenges, taking into account that some situations may involve humanitarian emergencies and rescue at sea in accordance with Union and international law; (i) provide technical and operational assistance to Member States and third countries in accordance with Regulation (EU) No 656/2014 and international law, in support of search and rescue operations for persons in distress at sea which may arise during border surveillance operations at sea; (j) deploy the standing corps in the framework of border management teams, migration management support teams and return teams (collectively referred to as ‘teams’) during joint operations, as well as in rapid border interventions, return operations and return interventions; (k) set up a technical equipment pool, including a rapid reaction equipment pool, to be deployed in joint operations, in rapid border interventions and in the framework of migration management support teams, as well as in return operations and return interventions; (l) develop and manage, with the support of an internal quality control mechanism, its own human and technical capabilities to contribute to the standing

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(m) (i) (ii)

(n)

(o) (p) (q)

(r)

(s)

(t)

(u)

(v)

(w)

(x)

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corps, including to the recruitment and training of the members of its staff acting as members of the teams, and the technical equipment pool; within the framework of the migration management support teams at hotspot areas: deploy operational staff and technical equipment to provide assistance in screening, debriefing, identification and fingerprinting; establish a procedure for referring and providing initial information to persons who are in need of international protection or wish to apply for such protection, including a procedure for the identification of vulnerable groups, in cooperation with EASO and competent national authorities; provide assistance at all stages of the return process without entering into the merits of return decisions, which remain the sole responsibility of the Member States, assist with the coordination and organisation of return operations and provide technical and operational support to implement the obligation to return returnees and technical and operational support to return operations and interventions, including in circumstances requiring increased assistance; set up a pool of forced-return monitors; deploy return teams during return interventions; within the respective mandates of the agencies concerned, cooperate with Europol and Eurojust and provide support to Member States in circumstances requiring increased technical and operational assistance at the external borders in the fight against cross-border crime and terrorism; cooperate with EASO within their respective mandates, in particular to facilitate measures in cases where third-country nationals whose applications for international protection have been rejected by means of a final decision are subject to return; cooperate with the FRA, within their respective mandates, in order to ensure the continuous and uniform application of the Union acquis on fundamental rights; cooperate with the European Fisheries Control Agency (EFCA) and the European Maritime Safety Agency (EMSA), within their respective mandates, in order to support national authorities carrying out coast guard functions, as set out in Article 69, including the saving of lives at sea, by providing services, information, equipment and training, as well as by coordinating multipurpose operations; cooperate with third countries in relation to the areas covered by this Regulation, including through the possible operational deployment of border management teams in third countries; assist Member States and third countries in the context of technical and operational cooperation between them in the matters covered by this Regulation; assist Member States and third countries in the training of national border guards, other relevant staff and experts on return, including through the establishment of common training standards and programmes, including on fundamental rights; participate in the development and management of research and innovation activities relevant for the control of the external borders, including the use of advanced surveillance technology, and develop its own pilot projects, where necessary, for the carrying out of activities as provided for in this Regulation; develop technical standards for information exchange; Ryan

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(z)

support the development of technical standards for equipment in the area of border control and return, including for the interconnection of systems and networks, and support, as appropriate, the development of common minimum standards for external border surveillance, in line with the respective competences of the Member States and of the Commission; (aa) establish and maintain the communication network referred to in Article 14; (ab) develop and operate, in accordance with Regulation (EU) 2018/1725, information systems that enable swift and reliable exchanges of information regarding emerging risks in the management of the external borders, illegal immigration and return, in close cooperation with the Commission, Union bodies, offices and agencies as well as the European Migration Network established by Council Decision 2008/381/EC(36); (ac) provide the necessary assistance for the development of a common informationsharing environment, including interoperability of systems, as appropriate; (ad) follow high standards for border management allowing for transparency and public scrutiny in full respect of the applicable law and ensuring respect for, and protection and promotion of, fundamental rights; (ae) manage and operate the False and Authentic Documents Online system referred to in Article 79 and support the Member States by facilitating the detection of document fraud; (af) fulfil the tasks and obligations entrusted to the Agency under Regulation (EU) 2018/1240 of the European Parliament and of the Council(37) and ensure the setting up and operation of the ETIAS Central Unit in accordance with Article 7 of that Regulation; (ag) assist Member States in facilitating persons to cross the external borders. 2. The Agency shall communicate on matters falling within its mandate. It shall provide the public with accurate, detailed, timely and comprehensive information about its activities. Such communication shall not be detrimental to the tasks referred to in paragraph 1 of this Article, and in particular shall not reveal operational information which, if made public, would jeopardise attainment of the objective of operations. The Agency shall communicate without prejudice to Article 92 and in accordance with relevant communication and dissemination plans adopted by the management board and in close cooperation, where appropriate, with other bodies, offices and agencies.

I. Commentary The progressive acquisition by Frontex of an enhanced mandate (see above, Article 1 1 MN 4–8), is reflected in the list of its tasks set out in legislation. The length of this has grown steadily, from six in the 2004 Regulation, to eleven in 2011, 21 in 2016 and now 33 in 2019. The current list of tasks in Article 10(1) may be grouped as follows: – Monitoring and assessment in relation to the external borders (points (a) to (f)); – Assistance to Member States at the external borders, including processing ‘hotspots’ (points (g) to (m)); (36) Council Decision 2008/381/EC of 14 May 2008 establishing a European Migration Network (OJ L 131, 21.5.2008, p. 7). (37) Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ L 236, 19.9.2018, p. 1).

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

SECTION 2 Information exchange and cooperation Article 11 Duty to cooperate in good faith The Agency, the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks, and the national authorities responsible for return shall be subject to a duty to cooperate in good faith and an obligation to exchange information.

I. Commentary 1

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

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

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Art. 18

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Article 12 Obligation to exchange information […]

Article 13 National contact points […]

Article 14 Communication network […]

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

Article 16 Technical standards for information exchange […]

Article 17 Information assurance […]

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

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Chp. 6 Art. 19

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

I. Commentary 1

Eurosur is a system for the sharing of border surveillance information and the coordination of border surveillance between the Member States, and between them and Frontex. It was established by Regulation 1052/2013/EU, and became operational on 2 December 2013.65 From the outset, Frontex was responsible for establishing and maintaining the Eurosur communication network, and for developing what are termed ‘situational pictures’ within it. The 2019 Regulation has now incorporated the provisions relating to Eurosur, primarily in Articles 18–28 of the Regulation.

Article 19 Scope of EUROSUR 1. EUROSUR shall be used for border checks at authorised border crossing points and for external land, sea and air border surveillance, including the monitoring, detection, identification, tracking, prevention and interception of unauthorised border crossings for the purpose of detecting, preventing and combating illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants. 2. EUROSUR shall not be used for any legal or administrative measure taken once the competent authorities of a Member State have intercepted cross-border criminal activities or unauthorised crossings by persons of the external borders.

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

65 Regulation (EU) 1052/2013 (OJ 2013 L 295/11) establishing the European Border Surveillance System (Eurosur). 66 Regulation (EU) 1052/2013, Article 2(1). 67 Regulation (EU) 1052/2013, Article 2(2). 68 Regulation (EU) 1052/2013, Article 2(1) and 2(3).

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Art. 26

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Article 20 EUROSUR components […]

Article 21 National coordination centres […]

Article 22 EUROSUR Handbook […]

Article 23 Monitoring of EUROSUR […]

SECTION 4 Situational awareness Article 24 Situational pictures […]

Article 25 National situational pictures […]

Article 26 European situational picture […]

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Article 27 Specific situational pictures […]

Article 28 EUROSUR fusion services […]

SECTION 5 Risk analysis Article 29 Risk analysis 1. The Agency shall monitor migratory flows towards the Union, and within the Union in terms of migratory trends, volume and routes, and other trends or possible challenges at the external borders and with regard to return. For that purpose, the Agency shall, by a decision of the management board based on a proposal from the executive director, establish a common integrated risk analysis model, which shall be applied by the Agency and the Member States. The common integrated risk analysis model shall be established and updated, where needed, on the basis of the outcome of the evaluation of the implementation of the multiannual strategic policy cycle for European integrated border management referred to in Article 8(7). 2. The Agency shall prepare general annual risk analyses, which shall be submitted to the European Parliament, to the Council and to the Commission applying the security rules adopted in accordance with Article 92, and tailored risk analyses for operational activities. Every two years, the Agency, in close consultation with the Member States, shall prepare and submit to the European Parliament, to the Council and to the Commission a strategic risk analysis for European integrated border management. Such strategic risk analyses shall be taken into account for the preparation of the multiannual strategic policy cycle for European integrated border management. The Agency shall prepare such general annual risk analyses and strategic risk analyses on the basis of information received, including from the Member States. Personal data shall be anonymised in the results of such risk analyses. 3. The risk analyses referred to in paragraph 2 shall cover all aspects relevant to European integrated border management with a view to developing a pre-warning mechanism. 4. The Agency shall publish comprehensive information on the common integrated risk analysis model. 5. Member States shall provide the Agency with all necessary information regarding the situation, trends and possible threats at the external borders and

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

I. Commentary Risk analysis has been a central feature of Frontex tasks and activities ever since the 1 2004 Regulation.69 In the current Regulation, the risks to be assessed are listed as (i) ‘migratory flows’ both towards and within the Union, (ii) ‘other trends or possible challenges at the external borders’ and (iii) ‘other trends or possible challenges … with regard to return’. Since 2011, risk analysis has been linked to assessments of the capacity of Member States, which are now termed ‘vulnerability assessments’ (see below, Article 32). Under Article 29(4), Frontex is obliged to publish ‘comprehensive information’ on its overall risk model.70

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

Article 31 Agency liaison officers in Member States 1. The Agency shall ensure the regular monitoring of all Member States’ management of the external borders and return through liaison officers of the Agency. The Agency may decide that a liaison officer covers up to four Member States which are geographically close to each other. 69

Former Frontex Regulation (EC) 2007/2004, Article 4. Frontex publishes an annual risk analysis, the most recent of which at the time of writing was for 2020, available at: https://frontex.europa.eu/publications/frontex-releases-risk-analysis-for-2020-vp0TZ7 [last accessed 12 May 2021]. 70

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

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Art. 32

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

I. Commentary The greater role conferred upon Frontex by the 2016 Regulation (above, Article 1 1 MN 7) included provision for it to appoint liaison officers for the Member States. Initially, the core role of these liaison officers was stated to be ‘regular monitoring of … Member States’ management of the external borders’.71 Article 31 retains that provision, while extending their remit to return. A liaison officer may cover up to four Member States, provided they are ‘geographically close’. The Frontex executive director designates liaison officers from among the 2 statutory staff (see above, Article 2 MN 4). The nature and terms of the deployment, including the Member State or region to which they will be deployed, are subject to the approval of the management board. The precise location of deployment is determined jointly by the executive director and the Member State concerned. It is expressly stated in Article 31(7) that liaison officers ‘shall take instructions only from the Agency’. It is evident from the list of their tasks in Article 31(3) that the role of liaison officer 3 is potentially a sensitive one. They assist in collecting information for risk analyses and vulnerability assessments (points (b) and (c)). They monitor Member State measures at the external border (points (d) and (j)) and in respect of return (point (k)). They promote compliance with EU law, including respect for fundamental rights (point (e)), and cooperate with the Frontex fundamental rights officer (point (f)). They also report ‘regularly and directly’ to the Frontex executive director concerning the situation at the external borders, Member State capacity, and return operations (point (i)). If the reports of the liaison officer raise ‘concerns’, the executive director is to inform the Member State concerned (Article 31(4)).

Article 32 Vulnerability assessment 1. The Agency shall establish a common vulnerability assessment methodology by decision of the management board, on the basis of a proposal from the executive director prepared in close cooperation with the Member States and the Commission. 71

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

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Chp. 6 Art. 32

Frontex Regulation (EU) 2019/1896

That methodology shall include objective criteria against which the Agency shall carry out the vulnerability assessment, the frequency of such assessments, how consecutive vulnerability assessments are to be carried out, and arrangements for an effective system for monitoring the implementation of recommendations of the executive director as referred to in paragraph 7. 2. The Agency shall monitor and assess the availability of the technical equipment, systems, capabilities, resources, infrastructure and adequately skilled and trained staff of Member States necessary for border control as referred to in point (a) of Article 3(1). In that context, the Agency shall assess the national capability development plans referred to in Article 9(4) as regards the capacity to perform border control taking into account the fact that some national capabilities may be partially used for purposes other than border control. For future planning, the Agency shall carry out such monitoring and assessment as a preventive measure on the basis of the risk analyses prepared in accordance with Article 29(2). The Agency shall carry out such monitoring and assessment at least once a year, unless the executive director, on the basis of risk analysis or a previous vulnerability assessment, decides otherwise. In any event, each Member State shall be subject to monitoring and assessment at least once every three years. 3. Without prejudice to Article 9, Member States shall, at the request of the Agency, provide information as regards technical equipment, staff and, to the extent possible, the financial resources available at national level to carry out border control. Member States shall also provide information on their contingency plans on border management at the Agency’s request. 4. The aim of the vulnerability assessment is for the Agency: to assess the capacity and readiness of Member States to face present and upcoming challenges at the external borders; to identify, especially for those Member States facing specific and disproportionate challenges, possible immediate consequences at the external borders and subsequent consequences on the functioning of the Schengen area; to assess their capacity to contribute to the standing corps and to the technical equipment pool, including the rapid reaction equipment pool; and to assess the hosting capacity of Member States with regard to support from the European Border and Coast Guard in line with Article 9(3). That assessment shall be without prejudice to the Schengen evaluation mechanism. 5. In the vulnerability assessment, the Agency shall assess, in qualitative and quantitative terms, the Member States’ capacity to carry out all border management tasks, including their capacity to deal with the potential arrival of large numbers of persons on their territory. 6. The preliminary results of the vulnerability assessment shall be submitted to the Member States concerned. The Member States concerned may comment on that assessment. 7. Where necessary, the executive director, in consultation with the Member State concerned, shall make a recommendation setting out the necessary measures to be taken by the Member State concerned and the time limit within which such measures are to be implemented. The executive director shall invite the Member States concerned to take the necessary measures on the basis of an action plan developed by the Member State in consultation with the executive director. 8. The executive director shall base the measures to be recommended to the Member States concerned on the results of the vulnerability assessment, taking into account the Agency’s risk analysis, the comments of the Member State concerned and the results of the Schengen evaluation mechanism. 312

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

I. Commentary Vulnerability assessments were introduced by the 2016 Regulation, and are central 1 to Frontex’s supervision of Member States.72 The purposes of these assessments are (i) to assess the ‘capacity and readiness’ of a Member State to face challenges at the external borders; (ii) to identify challenges at the external borders, and possible consequences for the Schengen area; (iii) to assess the Member State’s capacity to contribute personnel to the standing corps and technical equipment; and, (iv) to assess the Member State’s ‘hosting capacity’ for support from Frontex (Article 32(4)). Vulnerability assessments normally take place annually, but the executive director 2 may defer the assessment of a given Member State for no more than an additional two years (Article 32(2). Preliminary vulnerability assessments are shared with the Member State concerned, which may respond to them (Article 32(6)). Vulnerability assessments 72

Former Frontex Regulation (EU) 2016/1624, Article 13.

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Chp. 6 Art. 33

Frontex Regulation (EU) 2019/1896

may lead to recommendations by the Frontex executive director to the Member State concerned, which the Member State is to implement based on an action plan on which the executive director is consulted (Article 32(7)). If the Member State does not implement the necessary measures within a specified time limit, the matter is referred to the Frontex management board, which may make the measures binding upon the Member State (Article 32(10)). Further non-compliance by the Member State may lead to the management board’s notifying the Council and the Commission, which may use their powers in cases requiring urgent action to authorise intervention by Frontex (see Article 32(10) and below, Article 42). 3 The system of vulnerability assessments overlaps in part with evaluations of compliance with Schengen acquis.73 Schengen evaluations are led by the Commission, with Frontex having observer status within them, and may lead to remedial action being recommended to a Member State by the Council of Ministers, on a proposal from the Commission.74 Of particular relevance here is the provision in the Schengen Borders Code for cases where a Schengen evaluation finds that a Member State is ‘seriously neglecting its obligations’ in respect of external border control. In that case, the Commission may recommend, by means of an implementing act, that the Member State take specific measures, including initiating the deployment of Frontex teams.75 Article 33 of the Frontex Regulation (not discussed here) provides for the Commission and Frontex to maximise the ‘synergies’ between these two processes, and to avoid duplication of efforts by Member States. 4 The far-reaching consequences which may flow from vulnerability assessments and from Schengen evaluations in respect of the external border mean that these mechanisms are politically significant for Member States.76 They each show the limitations of the notion of shared responsibility (see above, Article 7), in that Member States retain legal and factual responsibility for external border control, while potentially being the subject of negative assessments for it. A sign of the sensitivity of these questions can be seen in the negotiations which led to the former Frontex Regulation (EU) 2016/ 1624 on the predecessor provision to the current Article 32. The Commission’s proposal that the Frontex executive director’s recommendations after a vulnerability assessment would have been binding in themselves was rejected by the Council of Ministers, which inserted the current provision whereby binding effect is contingent upon a decision of the management board.77

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

73 Regulation (EU) 1053/2013 (OJ 2013 L 295/27) establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis. 74 Regulation (EU) 1053/2013, Article 15. 75 Schengen Borders Code Regulation (EU) 2016/399, Article 21(1). In serious cases, the Council of Ministers may recommend, on a Commission proposal, the temporary re-introduction of internal border controls by certain Member States: see Regulation (EU) 2016/399, Article 21(3), 29 and 30, discussed by Ryan, in Cremona/Scott, EU Law Beyond EU Borders, p. 215. 76 See Dubout, Les enjeux constitutionnels, p. 458. 77 See Council doc. 7649/16 of 8 April 2016, Article 12, and discussion in Rijpma, The Proposal for a European Border and Coast Guard, p. 14–15.

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Art. 34

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Article 34 Attribution of impact levels to external border sections 1. On the basis of the Agency’s risk analysis and vulnerability assessment and in agreement with the Member State concerned, the Agency shall attribute the following impact levels to each external border section or change such levels: (a) low impact level where the incidents related to illegal immigration or crossborder crime occurring at the relevant border section have an insignificant impact on border security; (b) medium impact level where the incidents related to illegal immigration or crossborder crime occurring at the relevant border section have a moderate impact on border security; (c) high impact level where the incidents related to illegal immigration or crossborder crime occurring at the relevant border section have a significant impact on border security. 2. In order to swiftly address a crisis situation at a particular external border section, where the Agency’s risk analysis shows that incidents related to illegal immigration or cross-border crime occurring at the relevant external border section have a decisive impact on border security to such an extent that they risk jeopardising the functioning of the Schengen area, the Agency shall, in agreement with the Member State concerned, temporarily attribute a ‘critical’ impact level to that external border section. 3. Where there is no agreement between the Member State concerned and the Agency on the attribution of an impact level to an external border section, the impact level that was previously attributed to that border section shall remain unchanged. 4. The national coordination centre shall constantly assess in close cooperation with other competent national authorities whether there is a need to change the impact level of any of the external border sections by taking into account the information contained in the national situational picture and inform the Agency accordingly. 5. The Agency shall indicate the impact levels attributed to the external border sections in the European situational picture.

I. Commentary The purpose of Article 34 is to set out four impact levels which are attributed to 1 sections of the external border. These are defined by reference to the extent of the impact that ‘incidents’ related to illegal immigration or cross-border crime have upon what is termed ‘border security’. The four levels are described as ‘low’, ‘medium’, ‘high’ and ‘critical’. In particular, a ‘high’ level corresponds to incidents having ‘a significant impact on border security’, and a ‘critical’ level to incidents having ‘a decisive impact on border security to such an extent that they risk jeopardising the functioning of the Schengen area’. The impact levels are in principle determined by Frontex, on the basis of its risk 2 analysis and vulnerability assessments. The agreement of the Member State concerned is required both for an initial assessment in respect of a given border section, and for any changes to it. The consequences of attribution of a given level to a section of the external border are addressed in Article 35, discussed below. Ryan

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Chp. 6 Art. 35

Frontex Regulation (EU) 2019/1896

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

I. Commentary 1

The purpose of Article 35 is to indicate the consequences of the impact level determinations in Article 34 for Member State authorities and for Frontex. These may be summarised as follows: 316

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Art. 36

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

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

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Chp. 6 Art. 37

Frontex Regulation (EU) 2019/1896

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

I. Commentary Article 36 is a broad enabling provision, which permits Member States to request assistance in relation to external border control, and permits Frontex to provide such assistance. While there is no apparent threshold to such a request, when read together with Article 35 (above), it appears that only if a ‘high’ or ‘critical’ impact level is attributed to the external border section will Frontex support normally be available. 2 It is stated in Article 36(1) that a Member State’s request should be for assistance in ‘implementing its obligations with regard to external border control’. While the precise nature of the ‘obligations’ referred to in Article 36(1) is not defined, they presumably refer to border checks and surveillance in respect of the Schengen external border under the Schengen Borders Code Regulation (EU) 2016/399 (see above, Article 2 MN 2). The use of the word ‘obligations’ may be traced back to the 2004 Regulation, when they referred to ‘control and surveillance of external borders’.78 3 Article 36(2) is open-ended as to the form of Frontex intervention through which support may be provided, including (a) a joint operation, (b) a rapid intervention, (c) coordination of activities involving third countries, and (d) the deployment of migrant management support teams. The reference in (e) to assistance for search and rescue is not free-standing, however, but rather depends on one of the first three forms of assistance being provided. Under Article 36(3), the Agency also has flexibility as regards financing or co-financing of the activities concerned. 1

Article 37 Initiating joint operations and rapid border interventions at the external borders 1. A Member State may request that the Agency launch joint operations to face upcoming challenges, including illegal immigration, present or future threats at its external borders or cross-border crime, or provide increased technical and operational assistance when implementing its obligations with regard to external border control. As part of such a request, a Member State may also indicate the profiles of operational staff needed for the joint operation in question, including those staff having executive powers, as applicable. 2. At the request of a Member State faced with a situation of specific and disproportionate challenges, especially the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of that Member State without authorisation, the Agency may deploy a rapid border intervention for a limited period of time on the territory of that host Member State. 3. The executive director shall evaluate, approve and coordinate proposals made by Member States for joint operations or rapid border interventions. Joint operations and rapid border interventions shall be preceded by a thorough reliable and up-to-date risk analysis, thereby enabling the Agency to set an order of priority for the proposed joint operations and rapid border interventions, taking into account 78

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Art. 38

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

I. Commentary Article 37(1) contains the legal basis for Frontex interventions known as joint 1 operations, which have been provided for in Frontex legislation since 2004.79 As the term is not defined in the Regulation, and was not defined in earlier legislation, the essence of a joint operation is to be discerned from the provision for operational plans in such cases (see below, Article 38). One question which neither Article 37 nor 38 resolves is what makes an operation a ‘joint’ one. Under the 2004 Regulation, when Frontex was tasked solely with coordination, that would necessarily have arisen from the participation of more than one Member State. Now that Frontex has its own standing corps, however, it is conceivable that a ‘joint’ operation could be solely between it and a host Member State. Article 37(2) provides the legal basis for Frontex interventions known as rapid 2 interventions. These were first provided for in Regulation (EC) 863/2007 concerning rapid border intervention teams (see above, Article 1 MN 4). The substantive precondition is ‘specific and disproportionate challenges’, for which the only example given is the arrival at the external borders of a large number of third-country nationals attempting to enter the given Member State without authorisation. Unlike joint operations, rapid interventions are to take place for only a ‘limited period of time’, and are limited to the territory of the Member State making the request. (The procedure for launching a rapid border intervention, set out in Article 39 of the Regulation, is not covered in this chapter.)

Article 38 Operational plans for joint operations 1. In preparation of a joint operation the executive director, in cooperation with the host Member State, shall draw up a list of technical equipment, staff and profiles of staff needed, including those staff having executive powers, as applicable, to be authorised in accordance with Article 82(2). That list shall be drawn up taking into account the host Member State’s available resources and the host Member State’s request under Article 37. On the basis of those elements, the Agency shall define a package of technical and operational reinforcement as well as capacity-building activities to be included in the operational plan. 2. The executive director shall draw up an operational plan for joint operations at the external borders. The executive director and the host Member State, in close and timely consultation with the participating Member States, shall agree 79 Former Frontex Regulation (EC) 2007/2004, Article 3. That Article also referred to ‘pilot projects’, which are now provided for under ‘research and innovation’: see Article 66(4) of the Regulation (not discussed in this chapter).

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Chp. 6 Art. 38

Frontex Regulation (EU) 2019/1896

on the operational plan detailing the organisational and procedural aspects of the joint operation. 3. The operational plan shall be binding on the Agency, the host Member State and the participating Member States. It shall cover all aspects considered necessary for carrying out the joint operation, including the following: (a) description of the situation, with modus operandi and objectives of the deployment, including the operational aim; (b) the estimated time that the joint operation is expected to last in order to achieve its objectives; (c) the geographical area where the joint operation will take place; (d) a description of the tasks, including those requiring executive powers, responsibilities, including with regard to the respect for fundamental rights and data protection requirements, and special instructions for the teams, including on permissible consultation of databases and permissible 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 members of the teams and the Agency, in particular the names and ranks of those border guards who are in command during the period of deployment, and the place of the members of the teams in the chain of command; (g) the technical equipment to be deployed during the joint operation, including specific requirements such as conditions for use, requested crew, transport and other logistics, and financial provisions; (h) detailed provisions on immediate incident reporting by the Agency to the management board and to relevant national authorities; (i) a reporting and evaluation scheme containing benchmarks for the evaluation report, including with regard to the protection of fundamental rights, and final date of submission of the final evaluation report; (j) regarding sea operations, specific information on the application of the relevant jurisdiction and applicable law in the geographical area where the joint operation takes place, including references to national, international and Union law regarding interception, rescue at sea and disembarkation; in that regard the operational plan shall be established in accordance with Regulation (EU) No 656/2014; (k) the terms of cooperation with third countries, other Union bodies, offices and agencies or international organisations; (l) general instructions on how to ensure the safeguarding of fundamental rights during the operational activity of the Agency; (m) procedures whereby persons in need of international protection, victims of trafficking in human beings, unaccompanied minors and persons in a vulnerable situation are directed to the competent national authorities for appropriate assistance; (n) procedures setting out a mechanism to receive and transmit to the Agency complaints against any person participating in an operational activity of the Agency, including border guards or other relevant staff of the host Member State and members of the teams, alleging breaches of fundamental rights in the context of their participation in an operational activity of the Agency; (o) logistical arrangements, including information on working conditions and the environment of the areas in which the joint operation is to take place. 320

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Art. 38

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4. Any amendments to or adaptations of the operational plan shall require the agreement of the executive director and the host Member State, after consultation of the participating Member States. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States. 5. This Article shall apply mutatis mutandis to all operations of the Agency.

I. Commentary Article 38 concerns the operational plans for joint operations.80 It was first included in Frontex legislation in 2011, drawing upon a similar provision in respect of rapid interventions in Regulation 863/2007.81 Frontex’s executive director drafts the operational plan, which is agreed between the executive director and the host Member State, after consultation with the participating Member States (Article 38(2)). Amendments or adaptations to the operational plan are agreed by the executive director and the host Member State, again in consultation with the participating states (Article 38(4)). The operational plan is stated to be ‘binding’ on all of the Agency, the host Member State, and the participating states (Article 38(3)). The operational plan is to provide for the ‘organisational and procedural aspects of the joint operation’ (Article 38(2)). The main details to be specified are set out in Article 38(3). Many of these concern the scope of the operation: a description of the situation, the modus operandi, the objectives of the deployment, the operational aim, the time the operation is expected to last, and its geographical area. Others concern the personnel involved in the operation: their tasks and responsibilities, their composition, ‘command and control’ arrangements, and the terms of co-operation with third countries, other EU bodies and international organisations. The operational plan is also to include provision for the immediate reporting of incidents by the Agency to the management board and to relevant national authorities.82 The operational plan is to make provision for fundamental rights guarantees. The description of responsibilities is to include provision for fundamental rights and data protection (Article 38(3)(d)). The plan should have a reporting and evaluation scheme, including with regard to fundamental rights (Article 38(3)(i)). It should include general instructions on the safeguarding of fundamental rights during operations (Article 38(3)(l)). It should include procedures for persons in need of international protection, victims of human trafficking, unaccompanied minors, and persons in a vulnerable situation, to be directed to the competent national authorities (Article 38(3)(m)). In addition, the plan should specify a mechanism for transmission to the Agency of complaints alleging breaches of fundamental rights by persons participating in operations (Article 38(3)(n); on the complaints mechanism, see below, Article 111). In the case of operations at sea, Article 38(3)(j) requires that the operational plan include information about ‘the relevant jurisdiction and applicable law’ in the geographical area in question. This information is to include reference to international and EU law on interception, rescue and disembarkation. (See author’s chapter on the Sea Borders Regulation (EU) 656/2014.) 80 For a discussion of the content of actual operational plans, see Fink, Frontex and Human Rights, p. 59–61. 81 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/211, Articles 3a and 10. Compare Regulation (EC) 863/2007, Article 8 e. 82 On the meaning of ‘incident’, see above, Article 2 MN 3. For a discussion of Frontex arrangements relating to the reporting of incidents through the Joint Operations Reporting Application (‘JORA’), see Fink, Frontex and Human Rights, p. 72–73.

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Chp. 6 Art. 39 5

Frontex Regulation (EU) 2019/1896

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

Article 39 Procedure for launching a rapid border intervention […]

Article 40 Migration management support teams 1. Where a Member State faces disproportionate migratory challenges at particular hotspot areas of its external borders characterised by large inward mixed migratory flows, that Member State may request technical and operational reinforcement by migration management support teams composed of experts from relevant Union bodies, offices and agencies that shall operate in accordance with their mandates. That Member State shall submit a request for reinforcement and an assessment of its needs to the Commission. On the basis of that assessment of needs, the Commission shall transmit the request, as appropriate, to the Agency, to EASO, to Europol and to other relevant Union bodies, offices and agencies. 2. The relevant Union bodies, offices and agencies shall examine, in accordance with their respective mandates, the Member State’s request for reinforcement and the assessment of its needs for the purpose of defining a comprehensive reinforcement package consisting of various activities coordinated by the relevant Union bodies, offices and agencies, to be agreed upon by the Member State concerned. The Commission shall coordinate that process. 3. The Commission, in cooperation with the host Member State and the relevant Union bodies, offices and agencies in accordance with their respective mandates, shall establish the terms of cooperation at the hotspot area and shall be responsible for the coordination of the activities of the migration management support teams. 4. The technical and operational reinforcement provided, with full respect for fundamental rights, by the standing corps in the framework of migration management support teams may include the provision of: (a) assistance, with full respect for fundamental rights, in the screening of thirdcountry nationals arriving at the external borders, including the identification, registration, and debriefing of those third-country nationals and, where requested by the Member State, the fingerprinting of third-country nationals and providing information regarding the purpose of these procedures; (b) initial information to persons who wish to apply for international protection and the referral of those persons to the competent national authorities of the Member State concerned or to the experts deployed by EASO; 322

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Art. 41

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

I. Commentary The term ‘migration management support teams’ is defined in Article 2(19) of the 1 Frontex Regulation to mean ‘teams of experts’ who provide ‘technical and operational reinforcement to Member States, including at hotspot areas’.83 Since 2015, several such ‘hotspots’ have been established in Greece and Italy, at the initiative of the Commission.84 The concept of a ‘migration management support team’ was then introduced to Frontex legislation in 2016. In practice, the experts assist the host Member State with initial screening of persons who cross the external border by irregular means (including identification, interviews and the taking of fingerprints), decision-making on the admissibility and the merits of international protection claims, and decision-making concerning return of individuals to a state of nationality or third state.85 These teams are composed in particular of Frontex ‘operational staff’ (above, Article 2 2 MN 4), experts from the European Asylum Support Office and Europol, and may involve the participation of experts of the European Union Agency for Fundamental Rights and of other EU and Member State bodies. Unlike the other forms of Frontex intervention provided for in the Regulation, a 3 Member State request for a migration management support team is addressed to the Commission.86 The Commission is responsible for consultation with Frontex, EASO, Europol and any other EU agencies concerned, for ‘establish[ing] the terms of cooperation’ at the hotspot, and for coordination of the activity of the team (Article 40(3)). For the Agency, Article 40 provides a mandate for participation, including for the involvement of members of its standing corps in assistance with screening, international protection decisions and return.

Article 41 Proposed actions at the external borders 1. On the basis of the results of the vulnerability assessment or where a critical impact level is attributed to one or more external border sections and taking into account the relevant elements in the Member State’s contingency plans, the Agency’s 83 The term ‘hotspot area’ is defined in Article 2(23) as an ‘area created at the request of the host Member State’, where various States and agencies co-operate ‘with the aim of managing an existing or potential disproportionate migration challenge characterised by a significant increase in the number of migrants arriving at the external borders.’ 84 The ‘hotspot’ approach was first proposed by the Commission in: A European Agenda on Migration, COM(2015) 240, p. 6. 85 For a description, see Luyten/Orav, ‘Hotspots at EU external borders: State of play’ (European Parliamentary Research Service, September 2020). 86 The Commission proposal which led to the 2016 Regulation had proposed that these requests too should be transmitted to the Agency: COM(2015) 671, Article 17, but that was changed in the legislative process. For a contemporary critique of giving Frontex responsibility for hotspots and related teams, see Rijpma, The Proposal for a European Border and Coast Guard, p. 19–20.

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risk analysis and the analysis layer of the European situational picture, the executive director shall recommend to the Member State concerned to request that the Agency initiate, carry out or adjust joint operations, rapid border interventions or any other relevant actions by the Agency as set out in Article 36. 2. The Member State concerned shall respond to the recommendation of the executive director referred to in paragraph 1 within six working days. In the event of a negative response to the recommendation, the Member State shall also provide the justifications underlying that response. The executive director shall notify the management board and the Commission without delay about the recommended actions and the justifications for the negative response, with a view to assessing whether urgent action may be required in accordance with Article 42.

I. Commentary Article 41 permits Frontex to recommend that a Member State request its assistance. Provision on this subject is a significant element of the relationship between the Agency and Member States, and has changed on each occasion the Frontex legislation has been amended. Article 3 of the original 2004 Regulation conferred a power upon Frontex to ‘launch initiatives’ for joint operations, with the agreement of the host Member State(s) concerned.87 In 2011, that text was changed to provide that Frontex could ‘initiate and carry out’ such operations, with the agreement of the host Member State.88 The 2016 Regulation adopted a new approach, providing that the executive director could recommend to a Member State that it ‘initiate and carry out’ joint operations or rapid border interventions.89 That has been modified in the current Frontex Regulation to a recommendation that the Member State request assistance. 2 An executive director recommendation to a Member State is based upon the outcome of a vulnerability assessment (above, Article 32), or the attribution of a ‘critical impact level’ to a section of the external border (above, Articles 35 and 36). In those circumstances, before taking any other steps, the executive director must recommend that the Member State request the Agency to ‘initiate, carry out or adjust’ joint operations, rapid border interventions, or other actions. The Member State is to respond within six days. The outcome is then reported to the management board, in order to assess whether to trigger the process for making action by the Member State obligatory on the grounds that urgent action is necessary (see below, Article 42). 1

Article 42 Situation at the external borders requiring urgent action 1. Where external border control is rendered ineffective to such an extent that it risks jeopardising the functioning of the Schengen area because: (a) a Member State does not implement the necessary measures in accordance with a decision of the management board referred to in Article 32(10); or (b) a Member State facing specific and disproportionate challenges at the external borders has either not requested sufficient support from the Agency under 87 Former Frontex Regulation (EC) 2007/2004, Article 3(1), which also referred to what are termed pilot projects. 88 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 3(1). 89 Regulation (EU) 2016/1624, Article 15(4).

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

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9. In accordance with Article 57 and, where relevant, Article 39, the Member States shall make available the operational staff determined by the executive director in accordance with paragraph 4 of this Article. 10. The Commission shall monitor the implementation of the measures identified in the Council decision referred to in paragraph 1 and the actions that the Agency takes for that purpose. If the Member State concerned does not comply with the Council decision referred to in paragraph 1 of this Article within 30 days and does not cooperate with the Agency in accordance with to paragraph 8 of this Article, the Commission may trigger the procedure provided for in Article 29 of Regulation (EU) 2016/399.

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

90 91

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

Article 43 Instructions to the teams 1. During the deployment of border management teams, return teams and migration management support teams, the host Member State or, in the case of cooperation with a third country in accordance with a status agreement, the third country concerned, shall issue instructions to the teams in accordance with the operational plan. 2. The Agency, through its coordinating officer, may communicate its views to the host Member State on the instructions given to the teams. In that case, the host Member State shall take those views into consideration and follow them to the extent possible. 3. In cases where the instructions issued to the teams are not in compliance with the operational plan, the coordinating officer shall immediately report to the executive director, who may, if appropriate, take action in accordance with Article 46(3). 4. Members of the teams shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights, including access to asylum procedures and human dignity, and shall pay particular attention to vulnerable persons. Any measures taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures. While performing their tasks and exercising their powers, they shall not discriminate against persons on the basis of any grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation in line with Article 21 of the Charter. 5. Members of the teams who are not statutory staff shall remain subject to the disciplinary measures of their home Member State. The home Member State shall provide for appropriate disciplinary or other measures in accordance with its national law regarding violations of fundamental rights or international protection obligations in the course of any operational activity by the Agency. 6. Statutory staff deployed as members of the teams shall be subject to disciplinary measures as provided for in the Staff Regulations and the Conditions of Employment and measures of a disciplinary nature provided for in the supervisory mechanism referred to in point (a) of Article 55(5).

I. Commentary Article 43(1) provides that, during deployment, it is the responsibility of the host 1 state to give instructions to team members. The ‘teams’ in question include border 92

Commission Proposal, COM(2015) 471, Article 18. Council doc. 7649/16 of 8 April 2016, Article 18. In support for the approach of the Council of Ministers, see Rijpma, The Proposal for a European Border and Coast Guard, p. 18. 93

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

Article 44 Coordinating officer 1. The Agency shall ensure the operational implementation of all the organisational aspects of joint operations, pilot projects or rapid border interventions, including the presence of statutory staff. 2. Without prejudice to Article 60, the executive director shall appoint one or more experts from the statutory staff to be deployed as a coordinating officer for each joint operation or rapid border intervention. The executive director shall notify the host Member State of the appointment. 3. The coordinating officer shall act on behalf of the Agency in all aspects of the deployment of the teams. The role of the coordinating officer shall be to foster cooperation and coordination among host and participating Member States. At least one fundamental rights monitor shall assist and advise the coordinating officer. In particular, the coordinating officer shall: (a) act as an interface between the Agency, the host Member State and the members of the teams, providing assistance, on behalf of the Agency, on all issues relating to the conditions of the deployment to the teams; (b) monitor the correct implementation of the operational plan, including, in cooperation with the fundamental rights monitors, as regards the protection of fundamental rights and report to the executive director on this; (c) act on behalf of the Agency in all aspects of the deployment of the teams and report to the Agency on all those aspects; (d) report to the executive director where the instructions issued to the teams by the host Member States are not in compliance with the operational plan, in particular as regards fundamental rights and, where appropriate, suggest that the executive director consider taking a decision in accordance with Article 46. 94

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

I. Commentary Unlike the more general role of Agency liaison officer (above, Article 31), there is a 1 coordinating officer for each joint operation or rapid border intervention. The coordinating officer is appointed from among the Frontex statutory staff (above, Article 2 MN 4). They act on behalf of the Agency in connection with the deployment of teams, and are to ‘foster cooperation and coordination’ among host and participating Member States, including team members (Article 44(3)). The co-ordinating officer’s role includes monitoring compliance with the operational plan (Article 44(3)(b)). They report to the executive director where instructions to teams are not compliant with the operational plan, and may ‘suggest’ to the executive director the suspension or termination of Frontex activities (Article 44(3)(d); see further below, Article 46).

Article 45 Costs […]

Article 46 Decisions to suspend, terminate or not launch activities 1. The executive director shall terminate any activity of the Agency if the conditions to conduct those activities are no longer fulfilled. The executive director shall inform the Member State concerned prior to such termination. 2. The Member States participating in an operational activity by the Agency may request that the executive director terminate that operational activity. The executive director shall inform the management board of such request. 3. The executive director may, after informing the Member State concerned, withdraw the financing of an activity or suspend or terminate it if the operational plan is not respected by the host Member State. 4. The executive director shall, after consulting the fundamental rights officer and informing the Member State concerned, withdraw the financing for any activity by the Agency, or suspend or terminate any activity by the Agency, in whole or in part, if he or she considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist. 5. The executive director shall, after consulting the fundamental rights officer, decide not to launch any activity by the Agency where he or she considers that there would already be serious reasons at the beginning of the activity to suspend or terminate it because it could lead to violations of fundamental rights or international protection obligations of a serious nature. The executive director shall inform the Member State concerned of that decision. 6. The decisions referred to in paragraphs 4 and 5 shall be based on duly justified grounds. When taking such decisions, the executive director shall take into account Ryan

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

I. Commentary Provision for the suspension or termination of Frontex activities was first introduced into Frontex legislation in 2011, when it concerned joint operations.95 A more elaborate provision was included in the 2016 Regulation, for all forms of Frontex operation, and was the subject of only minor changes in 2019.96 2 The use of the word ‘shall’ in Article 46(1) implies that the Frontex executive director is obliged to terminate activities if ‘the conditions’ for them are no longer fulfilled. The meaning of ‘conditions’ is undefined, however. It presumably includes a fundamental change in the objective situation, as regards the external border, demands for processing at a hotspot, or returns from a Member State. What of the withdrawal of support by a host Member State? Although the Regulation does not contain a power of termination by a host state, its approval is highly likely to be a ‘condition’, in that without it Frontex activity would struggle for effectiveness. 3 Article 46(2) states that the Member States participating in an operational activity may request that the executive director terminate it. The precise meaning of this provision is uncertain, however. Firstly, are ‘the Member States participating’ to be understood as the ‘participating states’ (see above, Article 2(22)), so that they do not include the host state? Secondly, assuming that is the case, must all participating states make the request, or may they do so individually? Thirdly, what is the effect of a request? Article 46(2) provides only that the executive director is to inform the management board. It may be that termination under Article 46(1) should occur, either because the participating states persuade the executive director that termination is justified by a change in the objective ‘conditions’, or because their own withdrawal of support amount to such a change. If that is not the case, however, there is no clear power in the Regulation to terminate an activity. In particular, the ‘functions’ of the management board (see below, Article 100), do not expressly refer to Article 46, while its general power to ‘decide on any … matter where provided for in this Regulation’ (Article 100 (2)(ae)) may not apply, in the absence of an identifiable decision to be taken. 4 Under Article 46(3), the executive director may withdraw the financing of an activity, or suspend or terminate an activity, if the host Member State does not respect the operational plan. An important guarantee relating to fundamental rights within the Regulation is that the executive director is obliged to take one of those steps – though potentially only ‘in part’ – if they consider that violations of fundamental rights or international protection obligations are occurring which are ‘of a serious nature’ or are ‘likely to persist’ (Article 46(4)). This duty is phrased in the present tense (‘there are’), which leaves open the question whether previous violations of a serious 1

95 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 3(1a). The legislation also referred to pilot projects. 96 See former Frontex Regulation (EU) 2016/1624, Article 25.

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nature would be sufficient to trigger this duty. A further extension, in Article 46(5), obliges the executive director not to launch an activity, if they consider that to do so could lead to fundamental rights or international protection violations ‘of a serious nature’. The powers in Article 46(4) and 46(5) are to be exercised after consulting the Agency’s fundamental rights officer (below, Article 109).

Article 47 Evaluation of activities […]

SECTION 8 Action by the Agency in the area of return Article 48 Return 1. Without entering into the merits of return decisions, which remain the sole responsibility of the Member States, and in accordance with the respect for fundamental rights, general principles of Union law and international law, including international protection, the respect for the principle of non-refoulement and children’s rights, with regard to return, the Agency shall: (a) provide technical and operational assistance to Member States in the area of return, including in: (i) the collection of information necessary for issuing return decisions, the identification of third-country nationals subject to return procedures and other prereturn, return-related and post-arrival and post-return activities of the Member States, to achieve an integrated system of return management among competent authorities of the Member States, with the participation of relevant authorities of third countries and other relevant stakeholders; (ii) the acquisition of travel documents, including by means of consular cooperation, without disclosing information relating to the fact that an application for international protection has been made or any other information that is not necessary for the purpose of the return; (iii) the organisation and coordination of return operations and provide assistance in relation to voluntary returns in cooperation with the Member States; (iv) assisted voluntary returns from the Member States, providing assistance to returnees during the pre-return, return-related and post-arrival and post-return phases, taking into account the needs of vulnerable persons; (b) provide technical and operational assistance to Member States experiencing challenges with regard to their return systems; (c) develop, in consultation with the fundamental rights officer, a non-binding reference model for national IT systems for return case management which describes the structure of such systems, as well as provide technical and operational assistance to Member States in developing such systems compatible with the model; Ryan

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(d) operate and further develop an integrated return management platform and a communication infrastructure that enables the linking of the return management systems of the Member States with the platform for the purpose of exchanging data and information, including the automated transmission of statistical data, and provide technical and operational assistance to Member States in connecting to the communication infrastructure; (e) organise, promote and coordinate activities enabling the exchange of information and the identification and pooling of best practices in return matters between the Member States; (f) finance or co-finance from its budget, in accordance with the financial rules applicable to the Agency, the operations, interventions and activities referred to in this Chapter, including reimbursing the costs incurred for the necessary adaptation of the national IT systems for return case management for the purpose of ensuring secure communication to the integrated return management platform. 2. The technical and operational assistance referred to in point (b) of paragraph 1 shall include activities to help Member States carry out return procedures by the competent national authorities by providing, in particular: (a) interpreting services; (b) practical information, including the analysis of such information, and recommendations by the Agency on third countries of return relevant for the implementation of this Regulation, in cooperation, where appropriate, with other Union bodies, offices and agencies, in particular EASO; (c) advice on the implementation and management of return procedures in compliance with Directive 2008/115/EC; (d) advice on and assistance in the implementation of measures taken by Member States in compliance with Directive 2008/115/EC and international law that are necessary to ensure the availability of returnees for return purposes and to prevent returnees from absconding and advice on and assistance in relation to alternatives to detention; (e) equipment, resources and expertise for the implementation of return decisions and for the identification of third-country nationals. 3. The Agency shall aim at building synergies and connecting Union-funded networks and programmes in the field of return in close cooperation with the Commission and with the support of relevant stakeholders, including the European Migration Network.

I. Commentary 1

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

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operational assistance to Member States experiencing particular challenges with regard to their return systems’, to organise return operations for a single Member State, and to arrange a ‘return intervention’ to assist a state in processing and implementing returns.99 The current Regulation permits the Agency to provide technical and operational assistance to Member States in all circumstances, in addition to cases of ‘particular challenges’ (Article 48(1)(a) and (b)). The Regulation draws a distinction between ‘return operations’ and ‘return interven- 2 tions’. ‘Return operations’ are concerned with the actual transfer of individuals to other states. That can be seen from the definition of ‘return operation’ in Article 2(27) of the Regulation as ‘an operation that is organised or coordinated by the … Agency … under which returnees from one or more Member States are returned, either on a forced or voluntary basis, irrespective of the means of transport’. The detailed provisions concerning return operations are in Article 50 of the Regulation (not discussed in this chapter). In contrast, ‘return interventions’ are concerned with in-country processing of 3 individuals who may potentially be returned to another state. That can be seen from Article 53(1) of the Regulation, according to which ‘Such intervention may consist in the deployment of return teams to the host Member State providing assistance in the implementation of return procedures and the organisation of return operations from the host Member State’.100 The detailed provisions concerning return interventions are in Article 53 of the Regulation (not discussed in this chapter). Article 48(1) makes clear that the Agency and its officials should not enter into the 4 merits of return decisions, which ‘remain the sole responsibility of the Member States’. Similar statements appear in Articles 10(1)(n) and 50(1) of the Regulation. This provision is linked to the requirement for the Agency’s return activities to comply with the Return Directive 2008/115/EC (above, Article 2 MN 8), which envisages decisions by Member States.

Article 49 Information exchange systems and management of return […]

Article 50 Return operations […]

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

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with Article 8(6) of Directive 2008/115/EC and who have been trained in accordance with Article 62 of this Regulation. 2. The management board shall, on the basis of a proposal from the executive director, determine the profile and the number of forced-return monitors to be made available to that pool. The same procedure shall apply with regard to any subsequent changes in the profile and overall numbers. Member States shall be responsible for contributing to the pool by nominating forced-return monitors corresponding to the defined profile, without prejudice to the independence of those monitors under national law, where national law so provides. The Agency shall also contribute fundamental rights monitors as referred to in Article 110 to the pool. Forced-return monitors with specific expertise in child protection shall be included in the pool. 3. Member States’ contribution of forced-return monitors to return operations and interventions for the following year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the forced-return monitors available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. Such a request shall be made at least 21 working days before the intended deployment, or five working days in the case of a rapid return intervention. 4. The Agency shall make the forced-return monitors available upon request to participating Member States to monitor, on their behalf, the correct implementation of the return operations and return interventions throughout their duration. It shall make available forced-return monitors with specific expertise in child protection for any return operation involving children. 5. Forced-return monitors shall remain subject to the disciplinary measures of their home Member State in the course of a return operation or return intervention. Statutory staff deployed as forced-return monitors shall be subject to the disciplinary measures provided for in the Staff Regulations and the Conditions of Employment.

I. Commentary Article 51 makes provision for forced-return monitors to be made available to Member States to monitor the correct implementation of return operations and return interventions. These arrangements are linked to Article 8(6) of the Return Directive 2008/115/EC, which requires that Member States have a ‘forced-return monitoring system’. In line with that requirement, the statement in Article 51(4) that monitoring is ‘on their behalf’ refers to the Member States. The implication is that this form of monitoring is not conducted on behalf of the Agency. 2 Frontex constitutes a pool of forced-return monitors, to which Member States nominate experts (Article 51(2)). The monitors may then be assigned to monitor Agency-supported return operations and return interventions in other Member States. The Agency’s fundamental rights monitors (below, Article 110) may be deployed for this purpose. 1

Article 52 Return teams […] 334

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Art. 59

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Article 53 Return interventions […]

SECTION 9 Capabilities Article 54 European Border and Coast Guard standing corps […]

Article 55 Statutory staff in the standing corps […]

Article 56 Member States’ participation in the standing corps through long-term secondment […]

Article 57 Member States’ participation in the standing corps through short-term deployments […]

Article 58 Member States’ participation in the standing corps through the reserve for rapid reaction […]

Article 59 Review of the standing corps […] Ryan

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Chp. 6 Art. 60

Frontex Regulation (EU) 2019/1896

Article 60 Antenna offices […]

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

Article 62 Training 1. The Agency shall, taking into account the capability roadmap referred to in Article 9(8), where available, and in cooperation with the appropriate training entities of the Member States, and, where appropriate, EASO, FRA, the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) and the European Union Agency for Law Enforcement Training (CEPOL), develop specific training tools, including specific training in the protection of children and other persons in a vulnerable situation. Training content shall take into account relevant research outcomes and best practices. The Agency shall provide border guards, return specialists, return escorts and other relevant staff who are members of the standing corps as well as forced-return monitors and fundamental rights monitors with specialised training relevant to their tasks and powers. The Agency shall conduct regular exercises with those border guards and other members of the teams in accordance with the specialised training schedule referred to in the annual work programme of the Agency. 2. The Agency shall ensure that, in addition to the training referred to in Article 55(3), all statutory staff to be deployed as members of the teams have received adequate training in relevant Union and international law, including on fundamental rights, access to international protection, guidelines for the purpose of identifying persons seeking protection and directing them towards the appropriate procedures, guidelines for addressing the special needs of children, including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent medical assistance and other particularly vulnerable persons, and, where it is intended that they participate in sea operations, search and rescue, prior to their initial deployment in operational activities organised by the Agency. Such training shall also cover the use of force in accordance with Annex V. 3. For the purpose of paragraph 2, the Agency, on the basis of agreements with selected Member States, shall implement the necessary training programmes in those Member States’ specialised institutions for training and education, including the Agency’s partnership academies in Member States. The Agency shall ensure that the training follows the common core curricula, is harmonised and fosters mutual understanding and a common culture based on the values enshrined in the Treaties. The Agency shall cover the full cost of training. 336

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

I. Commentary Article 62 is concerned with the training of officials who may be deployed by 1 Frontex within its operations. It covers all staff who are members of the standing corps (above, Article 5 MN 2), forced-return monitors (above, Article 51) and fundamental

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Chp. 6 Art. 63

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rights monitors (below, Article 110). All of these should have ‘specialised training relevant to their tasks and powers’. 2 All statutory staff (above, Article 2 MN 4) who are to be deployed in teams (above, Article 2 MN 5) are to receive training in ‘relevant Union and international law’ prior to their initial deployment (Article 62(2)).101 That training is to include the following: fundamental rights; access to international protection; the identification of persons seeking protection; the special needs of children, victims of trafficking in human beings, persons in need of urgent medical assistance and other vulnerable person; the use of force (see Annex V to the Regulation, not discussed this Chapter); and, if they are to participate in sea operations, search and rescue. 3 The training obligations in Article 62(1) and (2) do not cover officials of host Member States involved in external border control, processing or return of migrants, but who are not deployed by Frontex. The position of host state officials is addressed indirectly through a Frontex task of assisting Member States and third countries in the training of national border guards, other relevant staff, and experts on return, which may involve the establishment of common training standards and programmes, including on fundamental rights’ (see above, Article 10(1)(w)). That is taken forward by Article 62(6), which obliges Frontex to develop ‘common core curricula for the training of border guards’ and to provide training at European level for the instructors of the Member State border guards, including on fundamental rights, access to international protection and relevant maritime law.

Article 63 Acquisition or leasing of technical equipment […]

Article 64 Technical equipment pool […]

Article 65 Reporting on the Agency’s capabilities […]

Article 66 Research and innovation […]

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

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

SECTION 11 Cooperation Article 68 Cooperation of the Agency with Union institutions, bodies, offices, agencies, and […]

Article 69 European cooperation on coast guard functions […]

Article 70 Cooperation with Ireland and the United Kingdom […]

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

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Frontex Regulation (EU) 2019/1896

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

I. Commentary Article 71 contains framework provisions permitting the Member States and Frontex to cooperate with third countries.102 According to Article 71(1), such co-operation is to be for the purpose of European integrated border management (see above, Article 3(1)(g)). The reference to ‘migration policy’ in Article 71(1) may be taken to refer to the role of border management in upholding EU migration policy.103 2 Article 71(2) enables Frontex to provide technical and operational assistance to third countries. It is stated that that should be ‘within the framework of’ the EU’s external action policy of the Union, including as regards protection of fundamental rights, protection of personal data and the principle of non-refoulement. This formulation leaves it uncertain whether any of those principles is a legal limit upon the states with which the Agency may co-operate, or the forms that co-operation may take. 3 Article 71(3) requires the Agency and Member States to comply with Union law in any co-operation with third countries, including where that cooperation takes place on those states’ territories. For this purpose, it is stated that EU law includes ‘norms and standards which form part of the Union acquis’. That may be taken to imply that rules which apply to the EU Member States concerning external borders and return also apply to arrangements with third countries. Greater detail is provided for Member States in Article 72(3), and for the Agency in Article 73(2) (both discussed below). 1

Article 72 Cooperation of Member States with third countries 1. Member States may cooperate at an operational level with one or more third countries in relation to the areas covered by this Regulation. Such cooperation may include the exchange of information and may take place on the basis of bilateral or multilateral agreements, other forms of arrangements, or through regional networks established on the basis of those agreements. 2. When concluding the bilateral and multilateral agreements referred to in paragraph 1 of this Article, Member States may include provisions concerning the exchange of information and cooperation for the purposes of EUROSUR in accordance with Articles 75 and 89. 3. The bilateral and multilateral agreements and other forms of arrangements referred to in paragraph 1 shall comply with Union and international law on fundamental rights and on international protection, including the Charter, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the 1951 Convention relating to the Status of Refugees, the 1967 Protocol thereto, and in particular the principle of non-refoulement. When implementing such agreements and arrangements, Member States shall assess and take into account the general situation in the third country on a regular basis, and shall have regard to Article 8. 102 103

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

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

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

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Frontex Regulation (EU) 2019/1896

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

I. Commentary 1

Article 73(1) permits Frontex to co-operate with the relevant authorities in third countries, in order to fulfil its ‘tasks’ (see above, Article 10). By virtue of Article 73(4), that co-operation may take place under ‘working arrangements’ with those authorities, although that does not appear to be mandatory (‘where available’).105 Before the Frontex management board may approve any such working arrangements, the European Commission agreement must be notified and give its 105 On working arrangements, see generally Coman-Kund, European Union Agencies as Global Actors, p. 178–193.

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Art. 74

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prior approval, and the European Parliament is to be provided with ‘detailed information’ (see below, Article 76(4)).106 Article 73 sets out legal and fundamental rights constraints upon the Agency in its 2 co-operation with the authorities of third countries. Article 73(1) repeats the statement in Article 71(3) (above) that it is to comply with EU law, ‘including norms and standards which form part of the Union acquis’. Article 73(2) then gives a list of specific obligations of relevance, which is similar to the list applicable to Member States in Article 72(3). These include protection of fundamental rights and personal data, the principle of non-refoulement, the prohibition of arbitrary detention, and the prohibition of torture and inhuman or degrading treatment or punishment. Article 73(3) makes status agreements with third countries obligatory where mem- 3 bers of the Frontex standing corps are deployed to a third country where they will exercise executive powers (see below, Article 74). A status agreement is it cover inter alia the scope of the operation, provisions on civil and criminal liability, the tasks and powers of the members of the teams, the establishment of antenna offices, respect for fundamental rights and a complaints mechanism relating to those. Provision is made in Article 76(1) of the Regulation for a model status agreement to be drawn up by the Commission.107 These agreements are concluded on behalf of the Union by the Council of Ministers under Article 218 TFEU.108

Article 74 Technical and operational assistance provided by the Agency to third countries 1. The Agency may coordinate operational cooperation between Member States and third countries and provide technical and operational assistance to third countries in the context of European integrated border management. 2. The Agency may carry out actions related to European integrated border management on the territory of a third country subject to the agreement of that third country. 3. Operations on the territory of a third country shall be included in the annual work programme adopted by the management board in accordance with Article 102, and shall be carried out on the basis of an operational plan agreed between the Agency and the third country concerned and in consultation with the participating Member States. Where a Member State or Member States neighbour the third country or border the operational area of the third country, the operational plan and any amendments thereto shall be subject to the agreement of that Member State or those Member States. Articles 38, 43, 46, 47 and 54 to 57 shall apply mutatis mutandis to deployments in third countries. 4. The executive director shall ensure the security of the staff deployed in third countries. 106 As of May 2021, the Frontex website recorded working arrangements with authorities in 18 states or territories: Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Canada, Cape Verde, North Macedonia, Georgia, Kosovo, Moldova, Montenegro, Nigeria, Russian, Serbia, Turkey, Ukraine and the USA, available at: https://frontex.europa.eu/we-build/other-partners-and-projects/non-eu-countries [last accessed 12 May 2021]. 107 The model status agreement, based on the 2016 Frontex Regulation, is in COM(2016) 747. 108 The first such agreement to be published is that with Albania (OJ 2019 L 46/3). Agreements have also be concluded with Montenegro (text in Council doc. 6847/1/19 of 19 May 2020) and Serbia (text in Council doc. 15581/1/18 of 19 May 2020).

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

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

109 110

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Art. 76

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

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

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

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Chp. 6 Art. 77

Frontex Regulation (EU) 2019/1896

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

Article 77 Liaison officers in third countries […]

Article 78 Observers participating in the Agency’s activities […]

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

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

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

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

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

Article 81 Code of conduct 1. The Agency shall, in cooperation with the consultative forum, draw up and further develop a code of conduct which shall apply to all border control operations coordinated by the Agency and all persons participating in the activities of the Agency. The code of conduct shall lay down procedures intended to guarantee the principles of the rule of law and respect for fundamental rights with particular focus on vulnerable persons, including children, unaccompanied minors and other persons in a vulnerable situation, as well as on persons seeking international protection. 2. The Agency shall, in cooperation with the consultative forum, draw up and further develop a code of conduct for return operations and return interventions, which shall apply during all return operations and return interventions coordinated or organised by the Agency. That code of conduct shall describe common standardised procedures to simplify the organisation of return operations and return interventions, and shall assure return in a humane manner and with full respect for fundamental rights, in particular the principles of human dignity, the prohibition of torture and of inhuman or degrading treatment or punishment, the right to liberty and security and the right to the protection of personal data and non-discrimination. 3. The code of conduct for return shall in particular pay attention to the obligation of Member States to provide for an effective forced-return monitoring system as set out in Article 8(6) of Directive 2008/115/EC and to the fundamental rights strategy.

I. Commentary 1

Article 81 requires Frontex to have two Codes of Conduct.113 Article 81(1) provides for a general code of conduct for all persons participating in the activities of the Agency, including in border control. That code is intended to guarantee the rule of law, and respect for fundamental rights, with a particular focus on vulnerable persons. Article 81(2) provides for a specific code of conduct for Agency return operations and return interventions. That code is to ensure return in a humane manner with full respect for fundamental rights, including human dignity, the prohibition of torture and inhuman or degrading treatment or punishment, the rights to liberty and security, the protection of personal data and non-discrimination. The codes are to be drawn up and developed in co-operation with the Consultative Forum on fundamental rights matters (see below, Article 108).

Article 82 Tasks and powers of the members of the teams 1. Members of the teams shall have the capacity to perform tasks and exercise powers for border control and return as well as those which are necessary for the 113 At the time of writing, the two Codes of Conduct may be accessed at: https://frontex.europa.eu/ about-frontex/key-documents/?category=code-of-conduct [last accessed 12 May 2021].

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

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

I. Commentary 1

Article 82(1) provides that members of Frontex teams shall have the capacity to perform certain ‘tasks and powers’. The term ‘members of the teams’ applies to all forms of Frontex intervention in support of Member States (see above, Article 2 MN 5). The reference to ‘tasks and powers’ has two distinct aspects. Firstly, members of Frontex teams are to have tasks and to exercise powers for border control and return. Secondly, they are to have the tasks and powers ‘which are necessary for the realisation of the objectives of’ the Sea Borders Regulation (EU) 656/2014, the Schengen Borders Code Regulation (EU) 2016/399, and the Return Directive 2008/115/EC. This separation 350

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implies that the border and return tasks and powers of Frontex team members may exceed those necessary for implementation of the EU legislation. The statement in Article 82(2) requiring the host Member State’s authorisation for the performance of tasks and the exercise of powers was added in 2019.114 It leads to potentially complex legal questions. May the host state’s authorisation be given generally (e.g. through legislation), or must it be done for each operation? If the latter, is the requirement of host state authorisation additional to its agreement to the operational plan (see above, Article 38), or may authorisation be conferred through the operational plan? In any event, may a host Member State revoke or suspend authorisation after an operation has commenced, and, if so, are their limits on its powers to do so? Article 82(2) and (3) each refer to legal obligations that must be respected by members of teams, but in different terms. The focus of Article 82(2) is on the conferral of tasks and powers, which is stated to be ‘subject to … applicable Union, national or international law’, including the Sea Borders Regulation (EU) 656/2014. The focus of Article 82(3) is upon the actions of members of teams, which ‘shall fully ensure respect for fundamental rights and shall comply with Union and international law and the national law of the host Member State’. The meaning of ‘fundamental rights’ in the Regulation is discussed above (see Article 2 MN 9). On the lack of clarity concerning the meaning of EU law and international law obligations, see above, Article 2 MN 10. Article 82(4) requires that members of Frontex teams perform tasks and exercise powers only under instructions from and in the presence of officials of the host state. The requirement as regards ‘presence’ only applies ‘as a general rule’, however – i.e., there may be exceptions.115 It is provided in Article 82(4) that the host Member State may ‘authorise members of the teams to act on its behalf’. Under Article 82(5), the host Member State may report incidents related to noncompliance with the operational plan, including in relation to fundamental rights, by members of Frontex teams. This is done via the Frontex co-ordinating officer, and may lead to disciplinary action (see above, Article 43). It should be noted that this provision is discretionary – i.e. there is no stated duty upon the host Member State to report these incidents. Article 82(6) is concerned with identification by members of Frontex teams. As regards uniforms, the default position is that Frontex statutory staff wear a Frontex uniform, while those seconded or deployed by Member States wear their home state uniform. A decision of the management board may indicate staff profiles where the obligation to wear a uniform does not apply. All members of Frontex teams are to ‘wear visible personal identification’ and a blue Frontex armband. Finally, members of teams should carry an accreditation document – the details of which are specified in Article 83 of the Regulation (below) – to enable them to identify themselves to the authorities of the host state.116 Articles 82(7) and (8) set out the legal regime in relation to service weapons. For a member of a team who is seconded or deployed from a Member State, the ability to carry service weapons, ammunition and equipment depends upon their home state law, while, for statutory Frontex staff, it depends on the authorisation of the executive 114

Compare former Frontex Regulation (EU) 2016/1624, Article 40. Article 82(4) provides that the rules are ‘without prejudice’ to Article 95(1) concerning Frontex statutory staff, presumably because Frontex retains authority over those staff. 116 The original version of this provision stated that the accreditation document should also be presented to ‘citizens’ of the host State: former Frontex Regulation (EC) 2007/2004, Article 10(4), as amended by Regulation (EC) 863/2007. That disappeared in Article 40 of former Frontex Regulation (EU) 2016/1624. 115

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director (Article 82(7)). The host state may prohibit certain service weapons, ammunition and equipment, provided its law applies the same prohibition to its own officials involved in border control or returns (Article 82(8)). 8 Article 82(8) and (9) each address the use of force by members of teams, including the use of service weapons, etc. Under Article 82(8), the use of force is permitted only with the consent both of the host state, and of either the home state for those seconded or deployed, or of the Agency for statutory staff. Moreover, the use of force should take place only in accordance with the host state’s law. The default position is that force should be used only in the presence of home state border officials. The host state may though authorise the use of force without the presence of its border guards, with the consent of the home Member State or the Agency (as the case may be). Article 82(9) provides that service weapons, etc., may be used in legitimate self-defence, and in legitimate defence of members of the teams or of other persons, in accordance with host state law, and ‘relevant principles’ of international human rights law and the CFR. 9 Article 82(10) is concerned with access to databases by members of teams. The host state shall authorise members of the teams to consult Union databases in fulfilling operational aims. The list of EU databases to which this relates is not stated in the Regulation, but probably means Eurodac, the Schengen Information System, the Visa Information System and the European Criminal Records Information System.117 In addition, the host State may authorise members of the teams to consult its national databases for the same purpose. 10 Article 82(11) concerns decisions to refuse entry under Article 14 of the Schengen Borders Code Regulation (EU) 2016/399, or to refuse a visa applied for at the border under Article 35 of the Visa Code Regulation (EC) No 810/2009. These decisions must be taken by the host state’s own border officials, except where members of the teams have been authorised by the host Member State to act on its behalf.118 As Article 82(11) refers only to negative decisions, it appears permissible for a member of a Frontex team to permit an individual to enter under the Schengen Borders Code Regulation (EU) 2016/399 without specific authorisation from the host state. Allegations of non-respect for fundamental rights by members of teams in the context of Frontex operations may be made through its complaints mechanism (see below, Article 111).

Article 83 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 Union to the members of the teams for the purpose of identifying them and as proof of the holder’s rights to perform tasks and exercise powers as referred to in Article 82. That document shall include the following features of each member of the teams: (a) name and nationality; (b) rank or job title; 117 For a discussion of current and future EU immigration and criminal law databases, see Thym, Legal Framework for Entry and Border Controls, MN 17b; Vavoula, ‘Consultation of EU Immigration Databases for Law Enforcement Purposes: a Privacy and Data Protection Assessment’, EJML 22 (2020), p. 139–177. 118 The possibility to authorise negative decisions by members of Frontex teams was introduced by Regulation 2016/1624, Article 40(9).

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

I. Commentary Article 83 provides further detail concerning the accreditation document referred to 1 in Article 82(6) of the Regulation (above). This is to be issued to members of teams by Frontex, in cooperation with the host Member State. It is to be in an official language of the host Member State119 and another official language of the EU institutions. The document is to refer to the official’s name and nationality120, and their rank or job title, and is to include a recent digitised photograph. The document should also specify the ‘tasks authorised to be performed’ during the deployment, which may be taken to refer to the category of team member, rather than to the operation as a whole.

Article 84 Civil liability of the members of the team 1. Without prejudice to Article 95, where members of the teams are operating in a host Member State, that Member State shall be liable in accordance with its national law for any damage caused by them during their operations. 2. Where such damage is caused by the gross negligence or wilful misconduct of the members of the teams seconded or deployed by the Member States, the host Member State may request the home Member State to reimburse it for any sums that the host Member State has paid to the injured parties or persons entitled to receive such sums on behalf of the injured parties. Where such damage is caused by gross negligence or wilful misconduct by the statutory staff, the host Member State may request the Agency to reimburse it for any sums that the host Member State has paid to the injured parties or persons entitled to receive such sums on behalf of the injured parties. This shall be without prejudice to any action before the Court of Justice of the European Union (the ‘Court of Justice’) against the Agency in accordance with Article 98. 3. Without prejudice to the exercise of its rights vis-à-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, or between a Member State and the Agency, relating to the application of paragraphs 2 and 3 of this Article which cannot be resolved by negotiations between them shall be submitted by them to the Court of Justice. 5. Without prejudice to the exercise of its rights vis-à-vis third parties, the Agency shall bear the costs of damage to its equipment during deployment, except in cases of gross negligence or wilful misconduct. Article 83 says ‘the official language’, although in several Member 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. 119 120

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Chp. 6 Art. 85

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

Article 85 Criminal liability of the members of the teams Without prejudice to Article 95, during a joint operation, pilot project, migration management support team deployment, rapid border intervention, return operation or return intervention, members of the teams in the territory of the host Member State, including statutory staff, shall be treated in the same way as officials of the host Member State with regard to any criminal offences that might be committed against them or by them.

I. Commentary 1

Article 85 provides that the criminal law of a host Member State applies fully to the members of Frontex teams. This is the case both for offences they may commit, and for offences potentially committed against them. The reference to Article 95 is to the Staff Regulations governing the position of Agency statutory staff (above, Article 2 MN 4), and leaves open the possibility of sanctions within the employment relationship arising out of the same actions. 121

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

Article 87 Purposes of processing of personal data […]

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

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

Article 90 Processing of operational personal data […]

Article 91 Data retention […]

Article 92 Security rules on the protection of classified information and sensitive non-classified information […]

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Chp. 6 Art. 93

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SECTION 3 General framework and organisation of the Agency Article 93 Legal status and location 1. The Agency shall be a body of the Union. It shall have legal personality. 2. In each of the Member States, the Agency shall enjoy the most extensive legal capacity accorded to legal persons under their laws. It may, in particular, acquire or dispose of movable and immovable property and may be party to legal proceedings. 3. The Agency shall be independent in implementing its technical and operational mandate. 4. The Agency shall be represented by its executive director. 5. The seat of the Agency shall be Warsaw, Poland.

I. Commentary The provisions concerning Frontex’s legal status and location, now in Article 93, have remained largely unchanged since the 2004 Regulation.122 Initially, its seat was left to be decided by unanimity on the Council of Ministers, and Warsaw was formally designated on 26 April 2005.123 2 In the light of debates concerning the accountability of the Agency, the provision in Article 93(3) for its independence ‘in implementing its technical and operational mandate’ is significant. This provision gives a high degree of autonomy to the management board – which is dominated by the Member States (see below, Article 101) – and to the executive director. In particular, it rules out the possibility of either positive or negative instructions emanating from the Commission, Council of Ministers or European Parliament. 1

Article 94 Headquarters agreement […]

Article 95 Staff […]

122 Compare former Frontex Regulation (EC) 2007/2004, Article 15 and former Frontex Regulation (EU) 2016/1624, Article 56 with the current text. 123 Council Decision 2005/358/EC (OJ L 114, 4.5.2005), p. 13.

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Article 96 Privileges and immunities […]

Article 97 Liability 1. Without prejudice to Articles 84 and 85, the Agency shall be liable for any activities it has undertaken in accordance with this Regulation. 2. The contractual liability of the Agency shall be governed by the law applicable to the contract in question. 3. The Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Agency. 4. In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its staff in the performance of their duties, including those related to the use of executive powers. 5. The Court of Justice shall have jurisdiction in disputes relating to compensation for the damage referred to in paragraph 4. 6. The personal liability of statutory staff towards the Agency shall be governed by the provisions laid down in the Staff Regulations and Conditions of Employment applicable to them.

I. Commentary Article 97 provides in a straightforward manner for the contractual and non- 1 contractual liability of the Agency, and for the personal liability of statutory staff to the Agency. The provision for non-contractual liability could in principle be used for claims relating to fundamental rights against the Agency or its officials, which would be brought to the Court of Justice under Article 340 TFEU.124

Article 98 Actions before the Court of Justice […]

Article 99 Administrative and management structure of the Agency […]

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

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Chp. 6 Art. 100

Frontex Regulation (EU) 2019/1896

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

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Art. 100

Chp. 6

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

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Chp. 6 Art. 100

Frontex Regulation (EU) 2019/1896

5. Should Ireland or the United Kingdom request to participate in specific activities, the management board shall decide thereon. The management board shall take its decisions on a case-by-case basis. In its decisions, the management board shall consider whether the participation of Ireland or the United Kingdom contributes to the achievement of the activity in question. The decisions shall set out the financial contribution of Ireland or the United Kingdom to the activity for which the request for participation has been made. 6. The management board shall forward annually to the European Parliament and to the Council (‘the budgetary authority’) any information relevant to the outcome of the evaluation procedures conducted by the Agency. 7. The management board may establish an executive board composed of up to four representatives of the management board, including its chairperson, and a representative of the Commission, to assist it and the executive director with regard to the preparation of the decisions, programmes and activities to be adopted by the management board and to take certain provisional, urgent decisions on behalf of the management board when necessary. The executive board shall not take decisions that must be passed by a majority of two thirds of the management board. The management board may delegate certain clearly defined tasks to the executive board, in particular where this improves the efficiency of the Agency. It may not delegate to the executive board tasks related to decisions that must be passed by a majority of two thirds of the management board. 8. The management board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 of the Conditions of Employment, delegating relevant appointing-authority powers to the executive director and setting out the conditions under which this delegation of powers can be suspended. The executive director shall be authorised to sub-delegate those powers. Where exceptional circumstances so require, the management board may by way of a decision temporarily suspend the delegation of the appointing-authority powers to the executive director and those sub-delegated by the latter. It may then exercise them itself or delegate them to one of its members or to a statutory staff member other than the executive director.

I. Commentary The role and powers of the Frontex management board are set out in Article 100. Its role is to be ‘responsible for taking the strategic decisions of the Agency’ (Article 100 (1)). Its main powers are listed in Article 100(2). Among those, its strategic powers include the adoption of a technical and operational strategy for European integrated border management, and a multi-annual programming document (points (h) and (k)). It is also responsible for the adoption of Frontex’s annual activity report, for the adoption of Frontex’s annual budget, and for Frontex’s staffing policy (points (j), (m) and (p)). The management board may also advise the executive director on any matter related to the development of external border operations, and on research and training (Article 100(4)). 2 Article 100 covers the relationship between the management board and the executive director and their deputies. The management board may exercise disciplinary authority over the executive director and – in consultation with the executive director – the deputy executive directors (Article 100(2)(n)). Powers of appointment and dismissal are covered below, in Article 107. 1

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Art. 101

Chp. 6

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

Article 101 Composition of the management board 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, each with a right to vote. To this effect, each Member State shall appoint a member of the management board as well as an alternate who will represent the member in his or her absence. The Commission shall appoint two members and two alternates. The duration of the terms of office shall be four years. The terms of office shall be extendable. 2. The management board members shall be appointed on the basis of the degree of their relevant high-level experience, their expertise in the field of operational cooperation on border management and return, and their relevant managerial, administrative and budgetary skills. Member States and the Commission shall aim to achieve a gender-balanced representation on the management board. 3. Countries associated with the implementation, application and development of the Schengen acquis shall participate in the Agency. They shall each have one representative and one alternate on the management board. The arrangements developed under the relevant provisions of their association agreements that specify the nature and extent of, and the detailed rules for, the participation by those countries in the work of the Agency, including provisions on financial contributions and staff, shall apply.

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

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Chp. 6 Art. 102

Frontex Regulation (EU) 2019/1896

Article 102 Multiannual programming and annual work programmes […]

Article 103 Chair of the management board […]

Article 104 Meetings of the management board 1. Meetings of the management board shall be convened by its chairperson. 2. The executive director shall take part in the deliberations without the right to vote. 3. The management board shall hold at least two ordinary meetings a year. In addition, it shall meet at the initiative of the chairperson, at the request of the Commission, or at the request of at least one third of the members of the management board. Where necessary, the management board may hold joint meetings with the management boards of EASO and Europol. 4. Ireland shall be invited to attend the meetings of the management board. 5. The United Kingdom shall be invited to attend meetings of the management board that take place before the day on which the Treaties cease to apply to the United Kingdom pursuant to Article 50(3) TEU. 6. Representatives of EASO and Europol shall be invited to attend the meetings of the management board. A representative of FRA shall be invited to attend meetings of the management board where points relevant to the protection of fundamental rights are on the agenda. 7. The chairperson of the management board may also invite an expert of the European Parliament to attend the meetings of the management board. The management board may also invite representatives of other relevant Union institutions, bodies, offices and agencies. The management board may invite, in accordance with its rules of procedure, any other person whose opinion may be of interest to attend its meetings as an observer. 8. The members of the management board may, subject to the provisions of its rules of procedure, be assisted by advisers or experts. 9. The secretariat for the management board shall be provided by the Agency.

I. Commentary 1

Article 104, which governs the meetings of the management board, makes provision for attendance by other individuals and representatives, without a vote. There are firstly a number of obligatory provisions: the executive director shall take part in the deliberations; Ireland shall be invited to attend; representatives of EASO and Europol shall be invited to attend; and, a representative of the Fundamental Rights Agency shall 362

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Art. 106

Chp. 6

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

Article 105 Voting […]

Article 106 Functions and powers of the executive director 1. The Agency shall be managed by its executive director, who shall be completely independent in the performance of his or her duties. Without prejudice to the respective competencies of the Union institutions and the management board, the executive director shall neither seek nor take instructions from any government or from any other body. 2. The European Parliament or the Council may invite the executive director to report on the carrying out of his or her tasks. This includes reporting on the activities of the Agency, the implementation and monitoring of the fundamental rights strategy, the annual activity report of the Agency for the previous year, the work programme for the following year and the Agency’s multiannual programming and any other matter related to the activities of the Agency. The executive director shall also make a statement before the European Parliament, if requested, and shall answer in writing any question put forward by a Member of the European Parliament within 15 calendar days from receipt of such question. The executive director shall report regularly to the appropriate bodies and committees of the European Parliament. 3. Except where specific deadlines are provided for in this Regulation, the executive director shall ensure that reports are transmitted to the European Parliament, to the Council and to the Commission as soon as possible, and in any event within six months of the end of the reporting period, unless the executive director duly justifies a delay in writing. 4. The executive director shall be responsible for the preparation and implementation of the strategic decisions taken by the management board and for the taking of decisions related to the operational activities of the Agency in accordance with this Regulation. The executive director shall have the following functions and powers: (a) to propose, prepare and implement the strategic decisions and programmes and activities adopted by the management board within the limits set out in this Regulation, its implementing rules and any applicable law; 125 According to the management board minutes, a representative of the FRA attended four of six meetings held in 2020. 126 According to the management board minutes, a representative of the European Parliament staff attended three of six meetings held in 2020; a representative of EU-LISA (which manages the EU immigration databases) attended three meetings; and the two co-chairs of the Frontex Fundamental Rights Consultative Forum (see below, Article 108) attended one meeting.

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Chp. 6 Art. 106

Frontex Regulation (EU) 2019/1896

(b) to take all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the day-to-day administration and functioning of the Agency in accordance with this Regulation; (c) to prepare each year the draft single programming document and to submit it to the management board for endorsement before that draft is sent to the European Parliament, to the Council and to the Commission by 31 January; (d) to prepare each year the annual activity report on the Agency’s activities and submit it to the management board; (e) to draw up a draft statement of estimates of the revenues and expenditure of the Agency as part of the single programming document pursuant to Article 115 (3), and implement the budget pursuant to Article 116(1); (f) to delegate his or her powers to other statutory staff members subject to rules to be adopted in accordance with point (o) of Article 100(2); (g) to adopt a recommendation on measures in accordance with Article 32(7), including decisions proposing that Member States initiate and carry out joint operations, rapid border interventions or other actions referred to in Article 36(2); (h) to evaluate, approve and coordinate proposals made by Member States for joint operations or rapid border interventions in accordance with Article 37(3); (i) to evaluate, approve and coordinate requests made by Member States for return operations and return interventions in accordance with Articles 50 and 53; (j) to ensure the implementation of the operational plans referred to in Article 38, Article 42 and Article 53(3); (k) to ensure the implementation of the Council decision referred to in Article 42(1); (l) to withdraw financing of activities in accordance with Article 46; (m) to assess, prior to any operational activity of the Agency, whether there are violations of fundamental rights or international protection obligations that are of a serious nature or are likely to persist in accordance with Article 46(4) and (5); (n) to evaluate the results of activities in accordance with Article 47; (o) to identify the minimum number of items of technical equipment required to meet the Agency’s needs, in particular as regards carrying out joint operations, migration management support team deployments, rapid border interventions, return operations and return interventions, in accordance with Article 64(6); (p) to propose the establishment of antenna offices or the prolongation of the duration of their operation in accordance with Article 60(5); (q) to appoint the heads of the antenna offices in accordance with Article 60(4); (r) to prepare an action plan following up on the conclusions of internal or external audit reports and evaluations, as well as on investigations by OLAF, and to report on progress to the Commission twice a year and to the management board on a regular basis; (s) to protect the financial interests of the Union by applying preventive measures against fraud, corruption and any other illegal activities by means of effective checks and, if irregularities are detected, by recovering amounts that were wrongly paid and, where appropriate, imposing effective, proportionate and dissuasive administrative and financial penalties; (t) to prepare an anti-fraud strategy for the Agency and present it to the management board for approval. 5. The executive director shall be accountable for his or her activities to the management board. 6. The executive director shall be the legal representative of the Agency. 364

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Art. 107

Chp. 6

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

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

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Chp. 6 Art. 107

Frontex Regulation (EU) 2019/1896

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

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

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Art. 108

Chp. 6

Article 108 Consultative forum 1. A consultative forum shall be established by the Agency to assist it by providing independent advice in fundamental rights matters. The executive director and the management board, in coordination with the fundamental rights officer, may consult the consultative forum on any matter related to fundamental rights. 2. The Agency shall invite EASO, FRA, the United Nations High Commissioner for Refugees and other relevant organisations to participate in the consultative forum. On the basis of a proposal from the fundamental rights officer that was made after consulting the executive director, the management board shall decide on the composition of the consultative forum and the terms of the transmission of information to the consultative forum. The consultative forum shall, after consulting the management board and the executive director, define its working methods and set up its work programme. 3. The consultative forum shall be consulted on the further development and implementation of the fundamental rights strategy, on the functioning of the complaints mechanism, on codes of conduct and on the common core curricula. The Agency shall inform the consultative forum of the follow-up to its recommendations. 4. The consultative forum shall prepare an annual report of its activities. That report shall be made publicly available. 5. Without prejudice to the tasks of the fundamental rights officer, the consultative forum shall be provided with effective access in a timely and effective manner to all information concerning the respect for fundamental rights, including by carrying out on-the-spot visits to joint operations or rapid border interventions subject to the agreement of the host Member State or the third country, as applicable, to hotspot areas and to return operations and return interventions, including in third countries. Where the host Member State does not agree to an on-the-spot visit by the consultative forum to a joint operation or to a rapid border intervention carried out on its territory, it shall provide the Agency with duly justified reasons in writing.

I. Commentary Article 108 contains the provisions governing the consultative forum, which Frontex 1 is required to establish in order to provide it with independent advice on fundamental rights matters. The consultative forum was one of the fundamental rights-related innovations made in 2011 (see above, Article 1 MN 11).127 Most of the current provisions date from a separate provision concerning the consultative forum included in the 2016 Regulation.128 Under Article 108(2), Frontex is required to invite EASO, the EU Fundamental 2 Rights Agency, the UNHCR and ‘other relevant organisations’ to participate in the consultative forum. The decision on its actual composition is taken by the management 127 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation (EU) No 1168/2011, Article 26a(2). 128 Former Frontex Regulation (EU) 2016/1624, Article 70.

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Chp. 6 Art. 109

Frontex Regulation (EU) 2019/1896

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

Article 109 Fundamental rights officer 1. A fundamental rights officer shall be appointed by the management board on the basis of a list of three candidates, after consultation with the consultative forum. The fundamental rights officer shall have the necessary qualifications, expert knowledge and professional experience in the field of fundamental rights. 2. The fundamental rights officer shall perform the following tasks: (a) contributing to the Agency’s fundamental rights strategy and the corresponding action plan, including by issuing recommendations for improving them; (b) monitoring the Agency’s compliance with fundamental rights, including by conducting investigations into any of its activities; (c) promoting the Agency’s respect of fundamental rights; (d) advising the Agency where he or she deems it necessary or where requested on any activity of the Agency without delaying those activities; (e) providing opinions on the operational plans drawn up for the operational activities of the Agency, on pilot projects and on technical assistance projects in third countries; (f) providing opinions on working arrangements; (g) carrying out on-the-spot visits to any joint operation, rapid border intervention, pilot project, migration management support team deployment, return operation or return intervention, including in third countries; (h) providing the secretariat of the consultative forum; 129 Frontex Consultative Forum on Fundamental Rights, Programme of Work 2021, p. 2. The international organisations are the Office of the UN High Commissioner for Human Rights, the Council of Europe, the International Organisation for Migration, and the Organisation for Security and Cooperation in Europe. The non-governmental organisations are Amnesty International, the Churches’ Commission for Migrants in Europe, the International Commission of Jurists, the Jesuit Refugee Service, the Red Cross and Save the Children.

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Art. 109

Chp. 6

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

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Article 109 makes provision for the Frontex fundamental rights officer. This position was one of the fundamental rights-related innovations made in 2011 (above, Article 1 MN 11).130 Although a separate article concerning the fundamental rights officer was included in the 2016 Regulation, most of the detail – including concerning their tasks and autonomy – was introduced in the 2019 version.131 The fundamental rights officer is to have the necessary qualifications, knowledge and professional experience in the field of fundamental rights. They are appointed by the management board, after consultation with the Consultative Forum, on the basis of a list of three candidates drawn up by the management board. The provisions of Frontex legislation concerning the tasks of the fundamental rights officer have evolved considerably over time. In 2011, it was stated that they would report on a regular basis to the management board and the consultative forum. The 2016 Regulation retained that provision, with an obligation to ‘co-operate’ with the consultative forum, rather than to report to it. The 2016 Regulation added the specific tasks of contributing to the Agency’s fundamental rights strategy, monitoring its compliance with fundamental rights, and promoting its respect of fundamental rights, and provided for the fundamental rights officer to be consulted on operational plans. All of the 2016 provisions appear in the current version, with the modifications that contributing to the fundamental rights strategy includes issuing recommendations for improvement, and that ‘monitoring … compliance’ includes conducting investigations into any Frontex activities. Moreover, new specific tasks were added, including advising Frontex on any activity; providing opinions on working arrangements with third countries; carrying out on-the-spot visits; informing the executive director of possible violations of fundamental rights during Frontex activities; and, managing the fundamental rights monitors (see below, Article 110). Prior to the 2019 Regulation, the fundamental rights officer was obliged to report to the management board about its activities and the complaints mechanism. A summary of that information was then included in Frontex’s annual report.132 The 2019 Regulation introduced a new provision for the fundamental rights officer to publish their own annual reports concerning their own activities, and on the extent to which the activities of the Agency respect fundamental rights. Those reports are to include information on the complaints mechanism, and on the implementation of the fundamental rights strategy. The 2019 Regulation strengthened the provisions to guarantee the autonomous role of the fundamental rights officer. The 2011 and 2016 legislation had simply stated that the fundamental rights officer was ‘independent in the performance of [their] duties’. The current Regulation adds that the Agency shall ensure that the fundamental rights officer is ‘able to act autonomously’ and has ‘sufficient and adequate human and financial resources’ at their disposal (Article 109(5)). The introduction in 2019 of provision for a deputy to be appointed (Article 109(6)), and for fundamental rights monitors (below, Article 110), are likely to enhance the effective capacity of the fundamental rights officer. 130 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation (EU) No 1168/2011, Article 26a(3). 131 Former Frontex Regulation (EU) 2006/1624, Article 71. 132 See most recently, Frontex, Consolidated Annual Activity Report: 2019, p. 72–77.

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Article 110 Fundamental rights monitors 1. Fundamental rights monitors, employed as statutory staff, shall constantly assess the fundamental rights compliance of operational activities, provide advice and assistance in that regard and contribute to the promotion of fundamental rights as part of European integrated border management. 2. Fundamental rights monitors shall have the following tasks: (a) monitoring compliance with fundamental rights and providing advice and assistance on fundamental rights in the preparation, conduct and evaluation of the operational activities of the Agency which the fundamental rights officer has assigned to them to monitor; (b) acting as forced-return monitors; (c) contributing to the training activities of the Agency on fundamental rights as provided for in Article 62, including by providing training on fundamental rights. For the purposes of point (a) of the first subparagraph, fundamental rights monitors shall, in particular: (a) follow the preparation of operational plans and report to the fundamental rights officer to enable him or her to fulfil his or her tasks as provided for in point(e) of Article 109(2); (b) conduct visits, including long-term visits, where operational activities take place; (c) cooperate and liaise with the coordinating officer as provided for in Article 44 and provide advice and assistance to him or her; (d) inform the coordinating officer and report to the fundamental rights officer on any concerns related to possible violation of fundamental rights within the Agency’s operational activities; and (e) contribute to the evaluation of activities as referred to in Article 47. 3. Without prejudice to paragraph 4, the fundamental rights officer shall assign at least one fundamental rights monitor to each operation. The fundamental rights officer may also decide to assign fundamental rights monitors to monitor any other operational activity he or she considers relevant. Fundamental rights monitors shall have access to all areas in which the operational activity of the Agency takes place and to all its documents relevant for the implementation of that activity. 4. Fundamental rights monitors may be nominated by the fundamental rights officer as forced-return monitors for the pool referred to in Article 51. Where fundamental rights monitors act as forced-return monitors, Article 50(5) and Article 51 shall apply, mutatis mutandis. 5. The fundamental rights officer shall appoint the fundamental rights monitors and they shall be under his or her hierarchical supervision. Fundamental rights monitors shall be independent in the performance of their duties. When present in an operational area, fundamental rights monitors shall wear insignia that clearly allow for their identification as fundamental rights monitors. 6. The Agency shall ensure that by 5 December 2020 at least 40 fundamental rights monitors are recruited by the Agency. The executive director shall assess on an annual basis whether the number of fundamental rights monitors needs to be increased in consultation with the fundamental rights officer. Following that assessRyan

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

I. Commentary Fundamental rights monitors were an innovation in the 2019 legislation.133 At least one monitor is attached to each Frontex operation, and they may be assigned to other activities (Article 110(3)). They are appointed and managed by the Frontex fundamental rights officer, while being independent in the performance of their duties (Article 110(5)). A total of forty monitors are to be appointed (see Article 110(6)). 2 The core tasks of fundamental rights monitors are to monitor compliance with fundamental rights, and to provide advice and assistance on fundamental rights, in relation to the operational activity they have been assigned to monitor (Article 110(2)(a)). The monitors are to follow the preparation of operational plans, and to report to the fundamental rights officer to assist with their input into these plans (above, Article 109(2)(e)). At the implementation stage, the monitors are to engage in visits to the sites of operational activities, and to advise and assist the coordinating officer (see above, Article 44). If they have concerns as to possible violations of fundamental rights within operational activities, they should inform the coordinating officer and report to the Frontex fundamental rights officer. Finally, they contribute to the evaluation of the activities in question. 3 Fundamental rights monitors are to have access to all areas in which Frontex activity takes place, and to all relevant documents concerning implementation (Article 110(4)). When present in an operational area, they are to wear insignia that clearly allow their identification (Article 110(5)). Fundamental rights monitors may be nominated to act as forced-return monitors (see above, Article 51). They may also be expected to contribute to Frontex training activities concerning fundamental rights (above, Article 62). 1

Article 111 Complaints mechanism 1. The Agency shall, in cooperation with the fundamental rights officer, take the necessary measures to set up and further develop an independent and effective complaints mechanism in accordance with this Article to monitor and ensure respect for fundamental rights in all the activities of the Agency. 133 A separate article on the subject emerged in the ‘trilogue’ process, having not featured in COM (2018) 631 or in the amendments proposed by the Council of Ministers or the European Parliament’s LIBE committee.

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

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fundamental rights officer within a determined time period as to the findings and follow-up to the complaint, and, if necessary, at regular intervals thereafter. The Agency shall follow up on the matter if no report is received from the relevant Member State. Where the relevant Member State, within the determined time period, does not report back or provides only an inconclusive response, the fundamental rights officer shall inform the executive director and the management board. 8. Where a member of the teams is found to have violated fundamental rights or international protection obligations, the Agency shall request that the Member State remove that member immediately from the activity of the Agency or the standing corps. 9. The fundamental rights officer shall include information on the complaints mechanism in his or her annual report, as referred to in Article 109(4), including specific references to the Agency’s and Member States’ findings and the follow-up to complaints. 10. The fundamental rights officer shall, in accordance with paragraphs 1 to 9 and after consulting the consultative forum, draw up a standardised complaint form requiring detailed and specific information concerning the alleged breach of fundamental rights. The fundamental rights officer shall also draw up any further detailed rules as necessary. The fundamental rights officer shall submit that form and such further detailed rules to the executive director and to the management board. The Agency shall ensure that information about the possibility and procedure for making a complaint is readily available, including for vulnerable persons. The standardised complaint form shall be made available on the Agency’s website and in hardcopy during all activities of the Agency in languages that third-country nationals understand or are reasonably believed to understand. The standardised complaint form shall be easily accessible, including on mobile devices. The Agency shall ensure that further guidance and assistance on the complaints procedure is provided to complainants. Complaints shall be considered by the fundamental rights officer even when they have not been submitted in the standardised complaint form. 11. Any personal data contained in a complaint shall be handled and processed by the Agency, including the fundamental rights officer, in accordance with Regulation (EU) 2018/1725 and by Member States in accordance with Regulation (EU) 2016/679 and Directive (EU) 2016/680. Where a complainant submits a complaint, that complainant shall be understood to consent to the processing of his or her personal data by the Agency and the fundamental rights officer within the meaning of point (d) of Article 5(1) of Regulation (EU) 2018/1725. In order to safeguard the interests of the complainants, complaints shall be dealt with confidentially by the fundamental rights officer in accordance with national and Union law unless the complainant explicitly waives his or her right to confidentiality. When complainants waive their right to confidentiality, it shall be understood that they consent to the fundamental rights officer or the Agency disclosing their identity to the competent authorities or bodies in relation to the matter under complaint, where necessary.

I. Commentary 1

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

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tion of a complaints mechanism, centred on the Frontex fundamental rights officer, had been recommended by the European Ombudsman in November 2013, and had been supported by the European Parliament in December 2015.134 These were the background to the Commission’s proposal for a complaints mechanism, and its inclusion within the Frontex Regulation of 2016.135 Adjustments made in the 2019 Regulation enhanced the role of the fundamental rights officer, including the power to make recommendations to the executive director in respect of statutory staff, and to monitor follow-up by both the executive director and home Member States (see below, MN 7 and 8). The complaints mechanism is essentially an administrative process, which is not intended to replace administrative or judicial remedies (see recital 104 to the Regulation). According to Article 111(4), the fundamental rights officer is responsible for handling complaints in accordance with the right of good administration. In practice, fundamental rights officer’s core role is to register complaints and to forward them either to the Frontex executive director or to the relevant Member State, to be addressed by them. According to Article 111(2), the scope of the complaints mechanism covers any person who is directly affected by the actions or failure to act of ‘staff involved in’ a Frontex operation, and who considers that their fundamental rights have been breached ‘due to’ those actions or that failure to act.136 The range of ‘fundamental rights’ at issue is not defined, but reference be made to recital 103 for a list of the main rights potentially at issue (see above, Article 2 MN 9).137 There are difficult questions concerning the personnel who the subject of complaints through their involvement in an operation may be. The mechanism undoubtedly covers statutory staff who are members of the standing corps (see Article 2 MN 4). It could also be interpreted to include co-ordinating officers, forced-return monitors, and fundamental rights monitors (see above, Articles 44, 51 and 110). In respect of Member State officials, Article 111(7) implies that the mechanism relates only to ‘members of the teams’ (see above, Article 2 MN 5). As such, it does not apply to officials issuing instructions, either from a host state (above, Article 43), or potentially their home state. Nor does it apply to host state officials who are present in the same operational area, and/or engaged in the same activity, but in parallel to the Frontex operation. Under Article 111(2), the mechanism is concerned with the actions or omissions of individual officials within operations. It does not therefore provide a route to complain about policy, strategic or operational choices made by the Agency and the member states. That limitation is reinforced by the requirement in Article 111(3) that, in order to be admissible, a complaint must involve ‘concrete’ fundamental rights violations. As regards procedures, complaints may be made by a third party on behalf of an individual who falls within the scope set out above (Article 111(2)).138 It also stated that 134 European Ombudsman recommendation of 12 November 2013 arising out of own-initiative inquiry OI/5/2012/BEH-MHZ; European Parliament resolution, Special report of the European Ombudsman in own-initiative inquiry concerning Frontex, 2 December 2015, OJ 2017 C 399/2. 135 Commission Proposal, COM(2015) 671, p. 7; former Frontex Regulation (EU) 2016/1624, Article 72. 136 Reference to omissions was added in 2019. 137 Frontex publishes its own list, as an Appendix to its ‘Rules on the Complaints Mechanism’, available at https://frontex.europa.eu/assets/Key_Documents/Complaints/Appendix_-_List_of_FR_in_Charter.pdf [last accessed 12 May 2021]. 138 The Frontex Consultative Forum has criticised the lack of provision for anonymous complaints: see Annual Report 2016, p. 21 and Annual Report 2017, p. 22.

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a complaint is to be made in writing. Further details as regards complaints are provided in Article 111(10). The fundamental rights officer is to draw up a complaints form, and any further rules, which they submit to the executive director and management board.139 The Agency is to ensure that the complaint form is available on its website – including for mobile devices – and in hardcopy during its activities, and in languages that third-country nationals understand or are reasonably believed to understand. Use of the complaints form is not obligatory, however, as the fundamental rights officer is to consider a complaint in any event. 7 Article 111(4) makes provision concerning the admissibility and registration of complaints. In deciding on admissibility, the fundamental rights officer will presumably apply the requirement of an individual victim in Article 111(2), and the principle set out in Article 111(3) that complaints are admissible only if they are substantiated and involve ‘concrete’ fundamental rights violations. All complaints which are deemed admissible are registered, and are referred to the executive director. Those which concern members of teams seconded or deployed by a home Member State are sent to that state, including ‘the relevant authority or body competent for fundamental rights’.140 Under Article 111(5), the individual is informed of the outcome of the admissibility stage in writing, and any decision must be ‘reasoned’. The Agency is to provide ‘an appropriate procedure’ where a complaint is declared inadmissible, and the fundamental rights officer is to reassess the complaint if new evidence is submitted.141 8 Article 111(6) provides for registered complaints concerning Frontex staff.142 Whereas in the 2016 Regulation the fundamental rights officer simply referred the complaint to the executive director, a change made in 2019 provides that they ‘shall recommend appropriate follow-up’, which may include disciplinary measures and referral for civil or criminal justice proceedings. The executive director ‘shall ensure the appropriate follow-up’, which may be taken to mean that it is the Agency which takes decisions concerning individuals. The executive director is to report back to the fundamental rights officer concerning findings and follow-up, within a ‘determined timeframe’ and then at ‘regular intervals’.143 9 Article 111(7) contains the provisions on registered complaints concerning members of teams who are officials of Member States. In those cases, the fundamental rights officer transmits complaints to the home Member State concerned – which may be either the host state or a participating state – but there is no provision for a recommendation to be made. The home Member State is to ‘ensure appropriate follow-up’, potentially including disciplinary measures, referral for civil or criminal proceedings, and other measures in accordance with national law. The Member State is to report back to the fundamental rights officer concerning findings and follow-up, 139 The ‘Rules on the Complaints Mechanism’ were adopted by a decision of the executive director on 6 October 2016, and are published at: https://frontex.europa.eu/assets/Key_Documents/Complaints/Annex_1_-_Frontexs_rules_on_the_complaints_mechanism.pdf [last accessed 12 May 2021]. 140 Read literally, Article 111(4) implies that all complaints concerning Member State officers should be sent to that state, including those deemed inadmissible and so not registered. As against that reading, the admissibility stage is presumably designed as a filter for Member State officers too, and Article 111(7), which concerns transmission to Member States, refers only to ‘registered’ complaints. 141 These provisions concerning a procedure, and for reassessment, were added in 2019. They are also stated to apply where a complaint is deemed ‘unfounded’. It is unclear what that refers to, however, given that not being ‘substantiated’ is a ground of inadmissibility within Article 111. 142 As of early 2021, no complaints had been received in respect of Frontex staff: see European Ombudsman, ‘Report on the meeting of the European Ombudsman’s inquiry team with FRONTEX representatives’ (document dated 23 March 2021), para 31. 143 The Frontex Consultative Forum has criticised the lack of provision for a maximum time-limit in the complaints mechanism: see its Annual Report 2016, p. 20 and Annual Report 2017, p. 22.

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within an unspecified ‘determined time-period’ and then at ‘regular intervals’.144 If the Member State makes no report, it is stated that ‘the Agency shall follow up on the matter’, which presumably means taking it up with the State concerned.145 In addition, if the Member State does not report back within the time-period, or provides ‘an inconclusive response’, the fundamental rights officer shall inform the executive director and the management board.146 Article 111(8) provides that, where a member of a team is found to have violated fundamental rights or international protection obligations, Frontex shall request that the Member State immediately remove that officer from Frontex activity. In the 2019 version of this provision, Frontex is obliged to make this request, whereas in the 2016 Regulation it merely had a power to do so. It must be considered anomalous that the Member State is not under an obligation to withdraw the officer concerned. Finally, Article 111(9) makes provision for reporting on the complaints mechanism by the fundamental rights officer within their published annual report (above, Article 109(4)). The information in the report should include specific references to the findings and follow-up by the Agency or the Member State, as the case may be. This arrangement dates from the 2019 Regulation, and replaced the previous provision for the fundamental rights officer to report to the executive director and to the management board, and for Frontex to include information on the complaints mechanism in its annual report, without any requirement to give specific information.147 Commentators have expressed concerns concerning the adequacy and effectiveness of the complaints mechanism. In part, these refer to the design of the mechanism as it stands, such as the lack of provision for anonymous complaints, the lack of detail concerning timescales, and the absence of an appeal against decision of the executive director in respect of statutory staff.148 A further issue which may be highlighted is the lack of integration between the complaints mechanism and the Regulation’s provisions on non-contractual liability (see above, Article 84 MN 1 and 2 and Article 97 MN 1). If the host Member State is liable for damage to individuals under Article 84, why does the complaints mechanism focus on referral to the home state of state officials (which may not be the same) or to Frontex for its statutory staff? Should not the complaints mechanism make provision for informing the complainant in a concrete manner about possible avenues for civil remedies? A further set of criticisms concern the inherent limitations of the complaints mechanism. One weakness is that it is as an administrative process within Frontex, which lacks independence, and does not ensure a legal remedy for individuals.149 Another is that it unsuited to providing a remedy in respect of fundamental rights breaches by home state officials outside of Frontex operations, though in parallel with them.150 144

See Frontex Consultative Forum, Annual Report 2016, p. 20 and Annual Report 2017, p. 22. The phrase ‘follow up on the matter’ cannot mean that the Agency is to deal with any complaint itself, as it has no disciplinary powers in relation to officers of Member States. 146 The two provisions in Article 111(7) concerning consequences where there is either no report, or an inadequate one – the first dating from 2016, the other from 2019 – do not fit well together. It would be more logical if the fundamental rights officer referred either type of matter to the executive director and management board, who would then decide how to respond to the Member State concerned. 147 Former Frontex Regulation (EU) 2016/1624, Article 72(9). 148 See Jones/Kilpatrick/Gklaiti, Deportation Union: Rights, Accountability, and the EU’s Push to Increased Forced Removals (Statewatch, 2020), p. 52–54. 149 See Guild, The Frontex Push-Back Controversy. 150 For example, see Complaints 2017–0007, 2017–0008 and 2017–0009, summarised in ‘Complaints Mechanism: Fundamental Rights Officer Report: Reporting period 6 October 2016–31 December 2017’, annexed to letter from Frontex to European Ombudsman, 29 January 2021, available at https://www. 145

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Article 112 Interparliamentary cooperation […]

Article 113 Language arrangements […]

Article 114 Transparency and communication 1. The Agency shall be subject to Regulation (EC) No 1049/2001 when handling applications for access to documents held by it. 2. The Agency shall communicate on matters falling within the scope of its tasks on its own initiative. It shall make public relevant information, including the annual activity report, the annual work programme, the code of conduct, strategic risk analyses, and comprehensive information on past and current joint operations, rapid border interventions, pilot projects, technical assistance projects with third countries, migration management support team deployments, return operations or return interventions, including in third countries, and working arrangements, and shall ensure, without prejudice to Article 92, in particular that the public and any interested party are rapidly given objective, detailed, comprehensive, reliable and easily understandable information with regard to its work. It shall do so without revealing operational information which, if made public, would jeopardise attainment of the objectives of operations. 3. The management board shall lay down the practical arrangements for the application of paragraphs 1 and 2. 4. Any natural or legal person shall be entitled to address written correspondence to the Agency in any of the official languages of the Union. He or she shall have the right to receive an answer in the same language. 5. Decisions taken by the Agency pursuant to Article 8 of Regulation (EC) No 1049/2001 may give rise to a complaint being lodged with the European Ombudsman or to an action before the Court of Justice, under the conditions laid down in Articles 228 and 263 TFEU respectively.

I. Commentary 1

Article 114(1) extends the arrangements for access to documents in Regulation (EC) No 1049/2001 to Frontex. By virtue of Article 114(5), complaints may be made to the European Ombudsman or the Court of Justice in respect of decisions of the Agency concerning requests for access to documents. ombudsman.europa.eu/en/correspondence/en/137728 [last accessed 12 May 2021]. These complaints that Polish border guards had refused to allow applications for international protection were declared inadmissible, with the comment that ‘In Frontex operational area, but no apparent deployed officers’ presence or involvement’.

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There have been several examples of complaints to the European Ombudsman 2 relating to the process of access to Frontex documents. In 2019, the Ombudsman welcomed a Frontex decision to deliver requested documents electronically free of charge, and recommended that Frontex find a means to redact electronic documents that did not necessitate the use of paper copies.151 In 2021, a complaint to the Ombudsman concerning the lack of a public register of documents led to a Frontex commitment to introduce one by 2022.152 At the time of writing, a complaint concerning Frontex’s use of an online portal to manage requests is ongoing.153 Other complaints have concerned Frontex refusals to release documents relating to 3 specific operations. In one case, Frontex’s difficulty in correctly identifying serious incident reports in respect of operations in Bulgaria led the Ombudsman to a series recommendations concerning their recording and disclosure practices.154 Complaints against unsuccessful requests for information about vessels deployed during Frontex operations in the Mediterranean have though been rejected, as both the European Ombudsman and the General Court have concluded that these refusals fall within the ‘public security’ exception in Article 4(1)(a) of Regulation 1049/2001.155

SECTION 4 Financial requirements Article 115 Budget […]

Article 116 Implementation and control of the budget […]

Article 117 Combating fraud […] 151 European Ombudsman case 1808/2018/FP, decision of 7 May 2019, available at: https://www. ombudsman.europa.eu/en/decision/en/113546 [last accessed 12 May 2021]. 152 European Ombudsman case 2273/2019/MIG, decision of 3 February 2021, available at: https://www. ombudsman.europa.eu/en/decision/en/137721 [last accessed 12 May 2021]. 153 European Ombudsman case 1261/2020/MAS, opened on 10 October 2020, details at: https://www. ombudsman.europa.eu/en/case/en/57481 [last accessed 12 May 2021]. 154 European Ombudsman case 1616/2016, decision of 17 November 2017, available at: https://www. ombudsman.europa.eu/en/solution/en/86210 [last accessed 12 May 2021]. 155 European Ombudsman case 1767/2017/KM, decision of 31 October 2017, available at: https://www. ombudsman.europa.eu/en/decision/en/85292; European Ombudsman case 1328/2017/EIS, decision of 23 November 2017, available at: https://www.ombudsman.europa.eu/en/decision/en/86680; European Ombudsman case 233/2021/OAM, decision of 30 March 2021, available at: https://www.ombudsman. europa.eu/en/case/en/58688 [last accessed 12 May 2021]; General Court, Izuzquiza and Semsrott v. Frontex, T-31/18, EU:T:2019:815.

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Chp. 6 Art. 118

Frontex Regulation (EU) 2019/1896

Article 118 Prevention of conflicts of interest […]

Article 119 Administrative inquiries […]

Article 120 Financial provision […]

Article 121 Evaluation […]

CHAPTER V FINAL PROVISIONS Article 122 Committee procedure […]

Article 123 Repeal and transitional provisions […|

Article 124 Entry into force and applicability […]

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ANNEX VI

Chp. 6

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

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

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

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

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

ANNEX VI Correlation Table […]

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PART C SECONDARY LEGISLATION ON IMMIGRATION Chapter 7. Legal Framework for EU Immigration Policy Select Bibliography: Azoulai/de Vries (eds), EU Migration Law (OUP, 2014); Bast/von Harbou/Wessels, Human Rights Challenges to European Migration Policy (REMAP), 29 October 2020; Berneri, Family Reunification in the EU (Hart, 2017); Billet, ‘EC Readmission Agreements’, EJML 12 (2010), p. 45–79; Boeles/den Heijer/Lodder/Wouters, European Migration Law, 2nd edn (Intersentia, 2014); Coleman, European Readmission Policy (Martinus Nijhoff, 2008); Bribosia, ‘Les Politiques d’intégration de l’Union européenne et des États Membres à l’épreuve du principe de non-discrimination’, in: Pascouau/Strik (eds), Which Integration Policies for Migrants? (Wolf, 2012), p. 51–81; Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009); Funke, ‘Primärrechtliche Grundlagen’, in: Wollenschläger, Enzyklopädie Europarecht, Band X, § 16; Kotzur, ‘Articles 77–80 TFEU’, in: Geiger/Kahn/Kotzur (eds), European Union Treaties (C.H. Beck/Hart, 2014); García Andrade, ‘EU External Competences in the Field of Migration’, CML Rev. 55 (2018), p. 157–183; Goodwin-Gill/Weckel (eds), Migration & Refugee Protection in the 21st Century. Legal Aspects (Martinus Nijhoff, 2015); Groenendijk, ‘Citizens and Third Country Nationals’, in: Carlier/Guild (eds), L’avenir de la libre circulation des personnes dans 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); Hinterberger, Regularisierungen irregulär aufhältiger Migrantinnen und Migranten (Nomos, 2020); Icard (ed), Les flux migratoires au sein de l’Union européenne (Bruylant, 2018); Iglesias Sánchez, ‘Constitutional Identity and Integration. EU Citizenship and the Emergence of a Supranational Alienage Law’, GLJ 18 (2017), p. 1797–1822; Iglesias Sánchez, ‘Fundamental Rights Protection for Third Country Nationals and Citizens of the Union’, EJML 15 (2013), p. 137–153; Jesse, The Civic Citizens of Europe. The Legal Potential for Immigrant Integration in the EU, Belgium, Germany and the United Kingdom (Brill/Nijhoff, 2017); Klarmann, Illegalisierte Migration. Die (De-)Konstruktion migrationsspezifischer Illegalitäten im Unionsrecht (Nomos, 2021); Kugelmann, ‘Einwanderungs- und Asylrecht’, in: Schulze/Zuleeg/Kadelbach (eds), Europarecht. Handbuch für die deutsche Rechtspraxis, 3rd edn (Nomos, 2015), § 41; Labayle, ‘L’espace de liberté, sécurité et justice dans la Constitution pour l’Europe’, Revue trimestrielle de droit européen 41 (2005), p. 437–472; McCormack-George, ‘Equal Treatment of Third-Country Nationals in the European Union’, EJML 21 (2019), p. 53–82; Mourão Permoser, ‘Redefining Membership’, Journal of Ethnic and Migration Studies 43 (2017), p. 2536–2555; Müller-Graff, ‘Article 79 TFEU’, in: Pechstein/Nowak/Häde (eds), Frankfurter Kommentar (Mohr Siebeck, 2017); Peers, EU Justice and Home Affairs Law. Vol. 1, 4th edn (OUP, 2016); Ripoll Servent/Trauner (eds), The Routledge Handbook of Justice and Home Affairs Research (Routledge, 2018); 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, ‘A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases’, EJML 21 (2019), p. 166–193; Thym/Zoeteweij-Turhan (eds), Rights of Third Country Nationals under EU Association Agreements (Martinus Nijhoff, 2015); Thym (ed), Questioning EU Citizenship (Bloomsbury/Hart, 2017); Weiß, Articles 77–80 TFEU, in: Streinz (ed), EUV/AEUV. Kommentar, 3rd edn (C.H. Beck, 2018); Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff, 2010); Wilderspin, ‘Articles 77–80 TFEU’, in: Kellerbauer/Klamert/Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), p. 802–851; Wilsher, ‘Economic Migration into the European Union: Standing at the Crossroads’, Yearbook of European Law 21 (2002), p. 163–193; Wollenschläger (ed), Enzyklopädie Europarecht, Band X, 2nd edn (Nomos, 2021). 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.

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Chp. 7

Legal Framework for EU Immigration Policy 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 Management (Article 79(1) TFEU) .................................... 2. Scope of EU Competences (Article 79(2) TFEU) ............................... a) Entry and Residence............................................................................. b) Rights of Migrants and Free Movement.......................................... c) Illegal Migration .................................................................................... d) Trafficking in Human Beings............................................................. 3. Readmission Agreements (Article 79(3) TFEU).................................. 4. National Integration Policies (Article 79(4) TFEU) ........................... 5. Access to the Labour Market (Article 79(5) TFEU)........................... III. Overarching Principles .................................................................................. 1. Free Movement of Union Citizens ......................................................... 2. Third Country Nationals .......................................................................... 3. Equal Treatment ......................................................................................... 4. ‘Public Policy’ Exception........................................................................... 5. Migrant Integration.................................................................................... 6. Prohibition of Abuse.................................................................................. IV. Human Rights and International Law ....................................................... 1. ECHR and the Charter.............................................................................. a) Private and Family Life........................................................................ b) Rights of the Child................................................................................ 2. International Agreements .........................................................................

mn. 1 1 5 6 6 9 11 17 19 21 22 24 26 27a 28 33 37 42a 43 48 50 51 52 56 59

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

The original Schengen Agreements contained corollary rules on short-term stays (see Thym, Legal Framework for Entry and Border Controls, MN 3, 18), thus not affecting national competencies towards third country nationals. The Commission was unsuccessful in getting a foot in the door of immigration policy during the 1970s and 1980s after the end of the so-called ‘guest worker’ programme.1 This changed when the Treaty of Maastricht designated immigration policy a matter of common interest, thereby signalling the start of gradual harmonisation.2 On the basis of intergovernmental decision-making procedures under the Treaty of Maastricht (see Thym, Constitutional Framework, MN 2), Member States agreed on a number of joint positions and draft conventions which did not become binding law but paved the way for the later adoption of legislation after the introduction of a more robust Treaty foundation by the Treaty 1 See Berlinghoff, Die Bundesrepublik und die Europäisierung der Migrationspolitik seit den späten 1960er Jahren’, in: Oltmer (ed), Handbuch Staat und Migration in Deutschland seit dem 17. Jahrhundert (De Gruyter, 2015), p. 931, 958–964; Member States successfully challenged the co-ordination mechanism initiated by Commission Decision 85/381/EC of 8 July 1985 setting up a prior communication and consultation procedure on migration policies in relation to non-member countries (OJ 1985 L 217/25) in ECJ, Germany, France, the Netherlands, Denmark and the United Kingdom v. Commission, 281/85, 283/ 85–285/85 & 287/85, EU:C:1987:351; other initiates on legal and illegal migration like Commission Proposal, COM(78)86 or Commission Communication, COM (85)48 were not adopted or fell on deaf ears; on further comments, see Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), p. 3–16. 2 See 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.

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Chp. 7 of Amsterdam.3 Decision-making procedures were gradually aligned with the orthodoxy of supranationalism in a process which came full circle when the Treaty of Lisbon introduced the present Article 79 TFEU in line with the contents of the erstwhile Constitutional Treaty, which had never entered into force (see Thym, Constitutional Framework, MN 3–4). From today’s perspective, Article 79 TFEU provides for a comprehensive shared competence of the Union for most questions relating to the entry and stay of foreigners (see below MN 11). Political agreement on new instruments for legal migration proofed difficult to 2 reach – in contrast to asylum and entry and border controls with regard to which the Schengen Agreements, the Dublin Convention and the Refugee Convention established a solid foundation for substantive policy harmonisation. Even negotiations on family reunion were cumbersome (see Bornemann/Arévalo, Directive 2003/86/EC, Article 1 MN 2–13) despite the human rights framework under Article 8 ECHR (see below MN 52–58). By contrast, an agreement on the ‘fight against illegal migration’ was comparatively easy to reach, not least through the adoption of the Return Directive. In contrast to the predominantly restrictive national practices in the field of economic migration at the time, the Commission boldly proposed a ‘proactive immigration policy’ based on the assumption that ‘the existing “zero” immigration policies which have dominated thinking over the past 30 years are no longer appropriate.’4 A proposal for a directive on economic migration met with stiff resistance in the Council and was abandoned after some initial discussions at working group level.5 It was not until a couple of years later that the Commission, after an extensive consultation process, readdressed the issue in a policy plan on legal migration,6 which laid the basis for a sectoral approach to economic migration with specific directives on individual aspects.7 These instruments were eventually agreed upon after prolonged debates and will be discussed in detail in this Commentary: the Blue Card Directive, the Seasonal Workers Directive, the ICT Directive, the Single Permit Directive and the Students and Researchers Directive, which was recast during 2016 in a single instrument merging two earlier directives. At the time of the Stockholm Programme, the Commission reactivated its ambition 3 when it suggested the future adoption of an immigration code to streamline existing legislation and to overcome the piecemeal approach – an idea that was rejected by the Member States in the Council.8 The final Stockholm Programme called for a ‘consolidation of all legislation in the area of immigration’9 as a compromise formula, even though the idea seems to have been buried by the Commission for the time being due to lack of 3

See Hailbronner, Immigration and Asylum, p. 260–288. Commission Communication, COM(2000) 757, p. 13 (first quote) and p. 6 (second quote). 5 See Commission Proposal, COM(2001) 386 and Council doc. 11803/01 of 12 September 2001; on the course and the context of inter-institutional debates, see Mourão Permoser, Redefining Membership, p. 2547–2549; Wilsher, Economic Migration, p. 172–183; and Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), ch. 5. 6 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. 7 The Commission Communication, COM(2005) 669, p. 5–8 announced policy initiatives on a general framework directive as well as for sectoral proposals on highly skilled workers (the later Blue Card), seasonal workers, intra-corporate transferees and trainees. 8 Contrast the Commission Communications, COM(2009) 262, p. 25, and COM(2010) 171, p. 7 with the Council Conclusions, Council doc. 9935/10 of 19 May 2010 (adopted by the JHA Council on 3 June 2010); on the political context, see Kostakopoulou et al., ‘EU Migration Law’, in: Arcarazo/Murphy (eds), EU Security, p. 129, 132–134; and Carrera, ‘The Impact of the Treaty of Lisbon over EU Policies on Migration, Asylum and Borders’, in: Guild/Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012), p. 229, 241–242. 9 See European Council, The final Stockholm Programme (OJ 2010 C 115/1), p. 30. 4

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Legal Framework for EU Immigration Policy

political support.10 Later political guidelines by the European Council were decidedly vague (see Thym, Constitutional Framework, MN 8–9). In recent years, border controls and asylum were the focus of attention, thus leaving not much political appetite for reform in the field of immigration policy with the exception of Commission Proposals for a revision of the Blue Card Directive and the Return Directive, of which only the former had been agreed upon politically at the time of writing (see Herzog-Schmidt/ Lehner, Directive 2009/50/EC, Article 1 MN 4; and Lutz, Directive 2008/115/EC, Article 1 MN 23b). An update of the Long-Term Residents Directive and the Single Permit Directive was promised for the end of 2021.11 Moreover, one hears that the Commission refrained from proposing a revision of the Family Reunification Directive, in particular, since it does not want to give Member States an opportunity to insist on stricter rules during the legislative process.12 Is not unproblematic from the perspective of democratic theory, if statutory legislation is effectively set in stone. 4 Political disagreement over the direction of immigration policy should not come as a great surprise. With regard to legal migration, the Treaty framework, with its collection of diverse and occasionally contradictory policy objectives, established no clear political guidance on the course of action to be pursued by the legislature (see Thym, Constitutional Framework, MN 5–7). There were, and sometimes continue to be, protracted disputes at EU level about the desirability of joint policies and the scope of supranational competences (see below MN 24–27).13 The underlying reason may be the absence of a basic agreement about the conceptual underpinning of legal migration, which generally pursues diverse and potentially contradictory policy objectives that can be difficult to reconcile.14 The Commission could not convince Member States to follow its essentially market-driven approach to labour migration (see above MN 3) and to promote a rightsbased approach to social integration (see below MN 44).15 By contrast, cooperation was comparatively straightforward in the field of illegal migration, not least as a result of the initial predominance of domestic interior ministries in justice and home affairs – a process that has been described and criticised as ‘securisation’ by academic experts (see Thym, Legal Framework for Entry and Border Controls, MN 3). This is symbolised by the prominent role of the Treaty objective, enshrined in to Article 79(1) TFEU, to adopt ‘enhanced measures [to prevent and] to combat illegal migration.’

2. Territorial Scope (Member State Participation) 5

The EU immigration measures are subject to country-specific opt-outs for Ireland and Denmark as well as the United Kingdom before Brexit. The abstract rules guiding these arrangements are described in the introductory chapter to this commentary (see Thym, Constitutional Framework, MN 38–45). It was demonstrated that the overall 10 For a proposal, see Peers, ‘An EU Immigration Code’, EJML 14 (2012), p. 33–61; for later support, see European Parliament Resolution on new avenues for legal labour migration, P9_TA(2021)0260 of 20 May 2021, No 32–33. 11 See Commission Communication, COM(2020) 609, p. 26. 12 Various national governments, not least the Netherlands, have called upon the Commission to table a proposal for a reform of the Family Reunification Directive over the years. 13 See also Ryan, ‘The European Union and Labour Migration’, in: Toner et al. (eds), Whose Freedom, Security and Justice? (Hart, 2007), p. 489, 490–496. 14 See Castles/de Haas/Miller, The Age of Migration, 6th edn (Red Globe Press, 2020), chs 10 et seq.; and Hampshire, The Politics of Immigration. Contradictions of the Liberal State (Polity, 2013). 15 On different policy visions in the EU debate, see Thym, 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.

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

Denmark

United Kingdom (before Brexit)

Schengen?16

Family Reunification Directive 2003/86/EC

no

no

no

no

Long-Term Residents 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

former Students Directive 2004/114/EC

no

no

no

no

former Researchers Directive 2005/71/EC

yes

no

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

Students and Researchers Directive (EU) 2016/801

no

no

no

no

Instrument

Participation in immigration law instruments commented upon in this volume. 16 Does the measure build upon the Schengen acquis? If yes, it is subject to the opt-out arrangements in the Schengen Protocol described by Thym, Constitutional Framework, MN 41, 44.

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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 Management (Article 79(1) TFEU) 6

The EU Treaty takes up, in Article 79(1) TFEU, the objective of ensuring an ‘efficient17 management of migration flows’, thereby reiterating a demand that was common among politicians across Europe when the European Convention proposed the new text that later found its way into the Treaty of Lisbon (see Thym, Constitutional Framework, MN 4, 13). Article 78(2)(g) TFEU indicates that the rationale applies to asylum policy as well when it calls for ‘partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum’. Of course, the objective remains counter-factual, since public authorities will never be in full control. Nonetheless, EU Treaties strive for regulatory leverage, reflecting Europe’s wider ‘social 17 While the English language version employs the process-oriented term ‘efficient’ (not the outcomeoriented word ‘effective’), other language versions, which are equally valid, 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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Chp. 7 model’ of active state involvement in social and economic policy.18 Under the umbrella of efficient migration management, Article 79(1) TFEU brings together diverse and potentially contradictory objectives, ranging from ‘enhanced [!] measures to combat illegal migration’19 [French: lutte renforcée; German: verstärkte Bekämpfung] to ‘fair treatment’ of third country nationals (see below MN 8).20 They must be accommodated with the EU’s general Treaty objectives enshrined in Article 3 TEU and, in the case of cooperation with third countries, foreign policy objectives under Article 21 TEU (see below MN 23). In legal and interdisciplinary debates, there is widespread agreement that the concept 6a of ‘migration management’ signals the reorientation of migration law and policy within Europe and beyond. States no longer concentrate on law enforcement at the point of border controls, instead embarking on cooperation with countries of origin or transit, private actors and international organisations.21 It combines, in this respect, acknowledgement that public authorities will never be able to factually control events on the ground fully, while striving for regulatory leverage nevertheless.22 The management concept has been criticised for depoliticising public discourse through the use of technical language, thereby shielding policy developments from public scrutiny and criticism;23 moreover, the focus on seemingly flawless ideas such as ‘triple-win’ or ‘circular migration’ can hide dilemmas and conflicts of interest any external action on migration will almost inevitably be confronted with.24 The rise of the management paradigm coincided with the reorientation of the international debate in the early 2000s when academic and political actors supported a positive nexus between migration and development, thus emphasising that well-managed migration can be beneficial to receiving and sending states.25 The objective of efficient management ‘at all stages’ indicates that the EU Treaties 7 do not conceive of cross-border movements as a simple one-step settlement that instantly results in full membership. EU primary law specifies, rather, that the legal dimension of migrants’ biographies can be described as a process of legal status change (see Thym, Legal Framework for EU Asylum Policy, MN 37–39). Depending on the circumstances of the individual case, EU law can provide for ‘short-stay residence 18 See Castles, ‘The Factors that Make and Unmake Migration Policies’, IM Rev. 38 (2004), p. 852–884; and Hollifield, ‘The Emerging Migration State’, IM Rev. 38 (2006), p. 885, 894–899. 19 On the European debate in the 1990s and early 2000s, from which the objective emerged, see Klarmann, Illegalisierte Migration, ch. 4.1.2+3; and Hinterberger, Regularisierungen, p. 143–145, 164–165. 20 Kostakopoulou/Acosta Arcarazo/Munk, ‘EU Migration Law. The Opportunities and Challenges Ahead’, in: Acosta Arcarazo/Murphy (eds), EU Security and Justice Law (Hart, 2014), p. 128, 133 report that the Member States symbolically insisted on replacing the Commission’s emphasis on ‘fair’ treatment with calls for ‘well-managed’ migration. 21 See Taylor, ‘From Border Control to Migration Management’, Social Policy & Administration 39 (2005), p. 563–586; Spijkerboer, ‘Changing Paradigms in Migration Law Research’, in: Grütter/Mantu/ Minderhoud (eds), Migration on the Move (Brill, 2017), p. 13, 15–18; and Thym, Constitutional Rationale, p. 721–723. 22 See Pina-Delgado, ‘The Current International Legal Framework of Economic Migration Management’, in: Goodwin-Gill/Weckel, 21st Century, p. 127–165. 23 See Učakar, ‘The Rhetoric of European Migration Policy and Its Role in Criminalization of Migration’, in: Kogovšek Šalamon (ed), Causes and Consequences of Migrant Criminalization (Springer, 2020), p. 91, 96–97; and Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011), p. 6–12. 24 See Geiger/Pécoud, ‘The Politics of International Migration Management’, in: ibid. (eds), The Politics of International Migration Management (Palgrave Macmillan, 2010), p. 1, 11–16. 25 See de Haas, ‘Migration and Development. A Theoretical Perspective’, IM Rev. 44 (2010), p. 227–264; and Chetail, ‘Paradigm and Paradox of the Migration-Development Nexus’, German Yearbook of International Law 52 (2008), p. 183–215.

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

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

As a shared competence, legislation on immigration policy must comply with the principles of subsidiarity and proportionality, which oblige the EU legislature only to pursue initiatives that cannot be sufficiently achieved at the national level and remain limited, in terms of regulatory intensity, to what is necessary to achieve jointly.29 However, when assessing specific proposals, it should be acknowledged that the farreaching Treaty objective of a ‘common immigration policy’ capable of managing migration flows efficiently ‘at all stages’ requires a certain generosity in the application of the principles of subsidiarity and proportionality; the EU institutions benefit from a margin of appreciating when deciding on the suitability of new proposals.30 Assessment of specific scenarios will usually depend on the contents and purpose of supranational measures. In the field of economic migration, for instance, the continued discrepancies 26

The ordinary legislative procedure applies to all aspects of Article 77–79 TFEU. Article 79(1) TFEU; similarly, Article 67(2) TFEU. 28 See Thym, Constitutional Rationale, p. 721–723; and Thym, ‘Citizens and Foreigners in EU Law’, ELJ 22 (2016), p. 296, 306–311; see also Vanheule, ‘The Multifaceted Role of Law in the Development of European Asylum and Migration Policy’, in: Gortázar/Parra/Segaert/Timmermann (eds), European Migration and Asylum Policies: Coherence or Contradiction? (Bruylant, 2012), p. 89, 92–96. 29 See Article 5(3), (4) TEU. 30 Similarly, see Labayle, L’espace, p. 463; Wilderspin, Article 79 TFEU, para 6; Peers, EU Justice, p. 328; ter Steeg, Einwanderungskonzept, p. 454; and Kugelmann, Einwanderungs- und Asylrecht, para 113. 27

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

Article 79(1), (2)(b), (4) and (5) TFEU. Müller-Graff, Article 79 TFEU, para 1 suggests otherwise, but does not explain how his position relates to the rather unambiguous wording not covering Union citizens. 33 In practice, the Family Reunification Directive, in particular, does not extend to the entry of family members of Union citizens; see Bornemann/Arévalo, Directive 2003/86/EC Article 3 MN 14. 32

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legislative competence for economic migration as a matter of principle.34 It follows from the broad designation of ‘conditions’ and ‘standards’ that Article 79(2)(a) TFEU supports rules on the revocation of residence permits, including expulsion on public policy grounds (see below 42a-42d). Once a residence permit has been revoked, measures against ‘illegal immigration and unauthorised residence’ under Article 79(2)(c) TFEU can be instigated (see below MN 19). 13 Rules on asylum are covered by Article 78 TFEU as lex specialis, while ‘complementary’ humanitarian residence permits for those who do not qualify for asylum or subsidiary protection in line with legislation on the basis of Article 78(2)(a), (b) TFEU can come within the reach of Article 79 TFEU.It is not easy to clearly delineate Articles 78 and 79 TFEU in such cases, since complementary protection usually covers diverse elements ranging from considerations that could be covered by a revision of subsidiary protection status35 to humanitarian motives not linked to the situation in countries of origin, which are covered by Article 79(2)(a) TFEU.36 There are, at present, multiple and highly diverse national regimes for those who do not receive international protection in line with the Asylum Qualification Directive 2011/95/EU because their asylum application is rejected.37 These rules could be harmonised on the basis of Article 79(2)(a) TFEU as a matter of principle. 13a In addition to rules on complementary humanitarian residence statuses, the EU holds the power to adopt legislation on the regularisation of unauthorised residence on the basis of Article 79(2)(a) TFEU.38 At present, there is a patchwork of national schemes of wither permanent or temporary character, which apply diverse criteria and which are not always represented as a regularisation instrument officially.39 Nevertheless, the diversity of national schemes need not indicate the need for EU action, since there may be good reasons of distinct domestic immigration rules or socio-economic contextual factors why approaches differ. The principle of subsidiarity argues for a careful assessment of the necessity of a pan-European legalisation scheme, even if it does not usually prevent legislation as a result of legislative discretion (see above MN 9). Attempts by the Commission to carefully get a foot in the door of regularisation was met with resistance by Member States in the Council.40 We cannot expect far-reaching political initiatives in the near future. 34 Cf. the proposal for 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/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, 764; as well as Peers, EU Justice, p. 328–329; and Weiß, Article 79 TFEU, para 3. 35 Note that the notion of ‘subsidiary protection’ in Article 79(2)(b) TFEU is an autonomous Treaty concept that does not prevent the legislature from changing the statutory requirements for subsidiary protection in the present Article 15 Asylum Qualification Directive 2011/95/EU; see Thym, Legal Framework for EU Asylum Policy, MN 20. 36 For further reflection, see Schieber, Komplementärer Schutz (Nomos, 2013), p. 298–314; in practice, both legal bases can be used in parallel if the contents and purpose of the legal instrument has a mixed centre of gravity; the ordinary legislative procedure applies to both legal basis. 37 See comparative study by the European Migration Network, Comparative Overview of National Protection Statuses in the European Union (EU) and Norway, Synthesis Report, May 2020; and Schieber, Komplementärer Schutz (Nomos, 2013), ch. 3. 38 For further comments, see Hinterberger, Regularisierungen, p. 173–184; similarly as here, see Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011), p. 146–147. 39 For comparative studies, see Hinterberger, Regularisierungen, ch. 4; Heegaard Bausager/Köpfli Møller/Ardittis, Situation of Third-Country Nationals Pending Postponed Return/Removal, Commission doc. HOME/2010/RFXX/PR/1001 of March 2013, p. 68–73; and De Bruycker (ed), Les régularisations des étrangers illégaux dans l’Union européenne (Bruylant, 2000). 40 See Lutz, ‘Non-Removable Returnees under Union Law. Status Quo and Possible Developments’, EJML 20 (2018), p. 28, 46–50.

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

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Controls, MN 15). The same applies to the adoption of negotiating positions in treaty bodies established on the basis of such agreements in line with Article 218(8)(1), (9) TFEU.48 In line with settled case law, the ECJ may interpret such agreements, since they are an integral part of Union law.49 Corresponding privileges for nationals of specific countries under association agreements or pre-existing bilateral treaties of the Member States are usually protected in EU legislation by means of explicit provisions on more generous national treatment (see Thym, Constitutional Framework, MN 28–33), which are declaratory in nature insofar as rules in international agreements are directly applicable under the conditions set out in ECJ case law (see Thym, Constitutional Framework, MN 59–63). 15a Article 79(2)(a) TFEU can cover international agreements or informal cooperation frameworks on legal migration, which do not qualify as an association agreement (see above MN 15) and whose centre of gravity concerns migration. By contrast, corollary provisions on migration in broader agreements whose main contents and purpose is not migration are governed by Treaty provisions on external relations (see Thym, Legal Framework for Entry and Border Controls, MN 28a-28b). Against this background, it was not convincing from a legal perspective that the Council decided to ratify the broad association agreement with Ukraine not solely on the basis of Article 217 TFEU, but additionally under reference to Article 79(2)(b) TFEU for a specific provision on migrants’ rights during periods of legal residence (see below MN 17a).50 Insofar as the EU institutions opted for a formalisation of mobility partnerships, including meaningful channels of entry (see below MN 63), they could be based on Article 79(2)(a) TFEU under the condition that they respect the limits prescribed by Article 79(5) TFEU (see below MN 26–27),51 while support for migrants abroad will usually be covered by development policy.52 It should be noted that any activation of the shared competence of Article 79(2)(a) TFEU, for instance with regard to novel legal pathways, remains a political choice primary law does not pre-empt.53 If the EU does not activate shared implied external powers, Member States can join forces with the institutions by means of mixed agreements. In any case, informal cooperation frameworks require a legal basis despite not being legally binding and are subject to institutional constraints (see Thym, Legal Framework for Entry and Border Controls, MN 29). It is irrelevant for the delimitation of legal bases that Article 79 TFEU, unlike other competences enshrined 48 Cf. ECJ, C-81/13, United Kingdom v. Council, EU:C:2014:2449, para 66; this entails, by way of example, that agreement on a negotiating position in a treaty body will not require, unlike the adoption of directives on the same matter, the consent of the European Parliament. 49 Settled case law in line with ECJ, Demirel, 12/86, EU:C:1987:400, para 9. 50 Cf. Decision 2014/295/EU (OJ 2014 L 161/1) on the basis of Article 217 TFEU; and Decision 2014/ 668/EU (OJ 2014 L 278/1) on the basis of Article 79(2) TTFEU specifically with regard to Article 17 of the agreement; by contrast, the Commission Proposal, COM(2013) 290 had proposed a uniform legal basis; Bosse-Platière/Flaesch-Mougin, ‘Action extérieure de l’Union europeenne’, Revue trimestrielle de droit européen (2018), p. 197–230 report that the Council wanted to circumvent a veto option. 51 Article 79(2)(a) TFEU with its reference to ‘conditions of entry and residence’ is broad enough to cover non-legislative initiatives, for instance a first admission schemes for specific countries, also considering that the term ‘measure’ is not confined, in line with comments above MN 9, to instruments on legislative harmonisation; the situation was different before the entry into force of the Treaty of Lisbon, when the institutions were rightly sceptical about supranational competences for mobility partnerships; on the necessary respect for Article 79(5) TFEU and a restrictive interpretation of the latter, see De Bruycker, ‘L’émergence d’une politique européenne d’immigration’, in: Carlier (ed), L’étranger face au droit (Bruylant, 2010), p. 351, 354–355; see also Iglesias Sánchez, ‘Migration Agreements between the European Union and Third States’, in: Goodwin-Gill/Weckel, 21st Century, p. 167–194. 52 On the institutional practice, see García Andrade, EU External Competences, p. 178–182. 53 Such shared external powers must be distinguished from exclusive implied powers under Article 3(2) TEU and ECJ case law; see Thym, Legal Framework for Entry and Border Controls, MN 28 a.

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Chp. 7 in primary law, entails that Member States with an opt-out do not participate (see Thym, Constitutional Framework, MN 39a). Article 79(2)(a) TFEU states that the EU legislature may adopt measures with 16 ‘standards on the issue’ of residence permits, thereby indicating that EU legislation can embrace rules on administrative procedure and judicial protection which, as leges speciales, supplant the principle of national procedural autonomy that applies in the absence of statutory prescriptions (see Thym, Constitutional Framework, MN 34–37). Notwithstanding the respect for national specificities and the principle of subsidiarity (see above MN 9), the Single Permit Directive 2011/98/EU and corresponding provisions in other directives demonstrate on legal migration the relevance of procedural requirements for immigration practice. When the Treaty explicitly refers to the delivery of residence permits ‘by Member States,’ it reaffirms that supranational rules on immigration should be implemented at domestic level as a matter of principle (see Thym, Legal Framework for Entry and Border Controls, MN 8). Like in the case of other legal bases, Article 79(2)(a) TFEU allows for legislation on supranational databases (see Thym, Legal Framework for Entry and Border Controls, MN 10a, 17b), which need to comply with data protection standards (see Thym, Constitutional Framework, MN 37 f). b) Rights of Migrants and Free Movement. Article 79(2)(b) TFEU54 concerns the 17 rights of third country nationals during periods of legal residence in accordance with the legislation.55 In practice, legislation will often be based upon part A and B jointly, since most instruments regulate residence conditions and rights together.56 The unspecific wording used in the Treaty indicates that the legislature has broad discretion when deciding which rights should be harmonised and it can lay down distinct categories of rights for various status groups (see below MN 40a).57 In doing so, it can opt for an approximation with the status of Union citizens, in particular for long-term residents, but is not legally obliged to do so (see below MN 33–36). It can also prescribe the degree of social rights in relation to social assistance or social security58 as well as statutory guarantees on equal treatment (see below MN 41), including on working conditions.59 The competence also covers access to the labour market by those who have been admitted for purposes other than economic migration, such as students or family members, while first admission for economic purposes is covered by Article 79 (2)(a) TFEU (see above MN 12). The general scheme of the EU Treaties suggests that, like naturalisation (see above MN 14), political rights of foreigners, including the 54 In contrast to the earlier situation, the Treaty of Lisbon clarified that rights during periods of legal residence can be harmonised; see Toner, ‘The Lisbon Treaty and the Future of European Immigration and Asylum Law’, in: Azoulai/De Vries (eds), EU Migration Law, p. 14, 25. 55 While the general scheme of Article 79 TFEU may be read to signal that legislation on the basis of Article 79(2)(b) TFEU concerns primarily periods of legal residence under legislation adopted on the basis of Article 79(2)(a) TFEU, there is nothing in the wording of the former provision indicating that the EU cannot adopt rules on the rights of third country nationals residing legally on grounds of domestic law beyond the scope of supranational legislation on first admission ratione personae. 56 Such dual legal basis is unproblematic if, like in the instant case, the same decision-making procedure applies. 57 Similarly, see Müller-Graff, Article 79 TFEU, para 25. 58 Declaration No 22 (OJ 2007 C 306/258) promises that in relation to country-specific financial and other impacts ‘the interests of that Member State will be duly taken into account.’ 59 Wilderspin, Article 79 TFEU, para 21 rightly notes that this does not contradict the unanimity requirement under Article 153(1)(g) TFEU provided that the centre of gravity of supranational legislation is immigration status, not social rights; it should be noted that the guarantee of equal treatment with nationals does not prevent Member States from changing the level of protection for everyone; see Thym, ‘Towards “Real” Citizenship?’, in: Adams et al. (eds), Judging Europe’s Judges (Hart, 2013), p. 155, 162.

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

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Chp. 7 rules exist under the Students and Researchers Directive (see Lehner/Gies, Directive (EU) 2016/801, Articles 27–32).66 Express reference to ‘conditions’ in the Treaty text accentuates the absence of a constitutional guarantee of free movement for third country nationals (see below MN 35). It remains the decision of the legislature to decide whether and under which conditions intra-European mobility shall be allowed. It should be remembered, moreover, that the asymmetric geographic scope of the EU immigration acquis (see above MN 5) entails that statutory mobility guarantees do not extend to all Member States, i. e. Ireland and Denmark are usually excluded, as was the United Kingdom before Brexit. c) Illegal Migration. Notwithstanding repeated criticism, Article 79(1) TFEU obliges 19 the EU institutions to adopt ‘enhanced measures to combat illegal immigration’ (emphasis added), thereby reiterating a policy priority that has defined EU action ever since the Tampere Programme (see above MN 6). Corresponding measures can include both legislation and operative instruments of an executive or financial nature (see above MN 9).67 The wording leaves no doubt that the Treaty can include both the prevention of ‘illegal immigration’ (entry) and the termination of ‘unauthorised residence’. While Article 79(2)(a) TFEU covers the termination of legal residence status (see above MN 12), Article 79(2)(c) TFEU applies to those entering or residing without authorisation, either because they never had a residence permit or because it was revoked or expired.68 The latter scenario is better known under the notion of ‘overstayers’, designating people who do not leave EU territory after the expiration of their residence permit. The well-known Return Directive 2008/115/EC is by far not the only EU instrument concerning illegal immigration and unauthorised residence.69 Article 79(2)(c) TFEU embraces domestic measures to counter illegal residence, such as the contents of the Employer Sanctions Directive 2009/52/EC, which contributes to the overall objective of both ‘fair treatment’ and ‘enhanced measures to combat illegal migration’ enshrined in Article 79(1) TFEU (see above MN 6, 8).70 By contrast, instruments related to border controls are covered by Article 77 TFEU (see Thym, Legal Framework for Entry and Border Controls, MN 16–17). The express reference to ‘removal and repatriation’ clarifies, in contrast to earlier 20 formulations,71 that rules on deportation and pre-removal detention are covered by Article 79(2)(c) TFEU, which served as the central legal basis for the Return Directive. Of course, these rules have to comply with human rights (see Thym, Legal Framework for Entry and Border Controls, MN 16–17). They will be discussed in detail in the section on the Return Directive (see Mananashvili/Moraru, Directive 2008/115/EC, Article 15–17). In light of the open character of the term ‘measure’ (see above MN 9), the competence covers operative or financial support for national return policies, for instance on the basis of the former Asylum, Migration and Integration Fund72 or the Frontex Regulation (see Ryan, Regulation (EU) 2019/1896, Articles 48–53). In light of the Treaty objective of efficient migration management ‘at all stages’ (see above MN 7), Article 79(2)(c) TFEU covers support for return operations and other measures to 66 For an overview, see Iglesias Sánchez, ‘Free Movement of Third Country Nationals in the European Union?’, ELJ 15 (2009), p. 791–805. 67 Similarly, see Kotzur, Article 79 TFEU, para 5; and Peers, EU Justice, p. 450–451. 68 See Peers, EU Justice, p. 450–451. 69 For an overview, see Klarmann, Illegalisierte Migration, ch. 5; and Menezes Queiroz, Illegally Staying in the EU. An Analysis of Illegality in EU Migration Law (Bloomsbury/Hart, 2018), ch. 3. 70 See Müller-Graff, Article 79 TFEU, para 33–35. 71 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. 72 Cf. Regulation (EU) No 516/2014 (OJ 2014 L 150/168), which expired in 2020.

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prevent or react to irregular movements in third states, in particular neighbouring countries, whenever there is a linkage with migratory movements towards the European Union, since measures to combat illegal immigration under Article 79 TFEU are not confined to the wider border are, unlike for Article 77 TFEU (see Thym, Legal Framework for Entry and Border Controls, MN 16–17). Article 79(2)(c) TFEU finally permits databases (see Thym, Legal Framework for Entry and Border Controls, MN 10a, 17b), which need to comply with data protection standards (see Thym, Constitutional Framework, MN 37 f). 21

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

3. Readmission Agreements (Article 79(3) TFEU) 22

Efficient and effective migration management often depends upon the cooperation of third states, in particular in so far as removals and repatriation are concerned. Notwithstanding the obligation under customary international law to enable the return of nationals,76 practical cooperation is often flawed and presents a major reason for the mismatch between enforceable return decisions and actual returns77 – a discrepancy that readmission agreements with rules and procedures for effective cooperation are meant to counter. Previous uncertainties over the existence and scope of corresponding EU competences were remedied by the introduction of an express legal base78 73 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 June 2021]. 74 Similarly, Peers, EU Justice, p. 451–452. 75 See Klarmann, Illegalisierte Migration, ch. 5.4.; Učakar, ‘The Rhetoric of European Migration Policy and Its Role in Criminalization of Migration’, in: Kogovšek Šalamon (ed), Causes and Consequences of Migrant Criminalization (Springer, 2020), p. 91, 102–105; and Moreno-Lax, ‘The EU Humanitarian Border and the Securitization of Human Rights’, Journal of Common Market Studies 56 (2018), p. 119, 121–122. 76 See Hailbronner, ‘Readmission Agreements and the Obligation on States under Public International Law to Readmit their own and foreign Nationals’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg Journal of International Law 57 (1997), p. 1, 2–5; and Coleman, Readmission Policy, ch. 2. 77 Cf. the Commission Communication, COM(2014) 199. 78 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 more recent ECJ case law on external competences, which was, however, less developed at the time of the Treaty of Lisbon; cf. Muzak,

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Chp. 7 designating a shared competence79 in Article 79(3) TFEU by the Lisbon Treaty. The codification of the so-called ERTA doctrine in Article 3(2) TFEU does not change this conclusion, since the Return Directive regulates the conditions for removals, not cooperation with third states and corresponding practical arrangements.80 The procedure for the negotiation and conclusion of EU readmission agreements follows Article 218 TFEU, which requires the consent of the European Parliament.81 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.82 A dominant feature of cooperation with third states on return in recent years has 22a been the proliferation of informal cooperation frameworks, which cannot be classified as an agreement under public international law, but are covered by Article 79(3) TFEU nevertheless a maiorem ad minus. Similar mechanisms with varying degrees of detail and political commitment were agreed upon with many third states.83 Reasons for the switch towards informality are manifold: they include swift action instead of lengthy ratification, the predominantly operational character of any return policy,84 political preference for executive action instead of parliamentary involvement and public scrutiny as well as public opinion in partner countries, not least in Africa, where cooperation with European states in the field of return is often highly unpopular.85 While informal cooperation frameworks are not legally binding, individuals can invoke Article 79 TFEU, in: Mayer/Stöger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 141th edn, 2012), para 23; see also Neframi, ‘L’aspect externe de l’espace de liberté, de sécurité et de justice’, in: Flaesch-Mougin/Rossi (eds), La dimension extérieure de l’espace de liberté, de sécurité et de justice de l’Union européenne après le Traité de Lisbonne (Bruylant, 2013), p. 509, 518–520. 79 The shared character flows from the formulation ‘may’ (French: peut, German: kann) and the absence of readmission agreements from the list of exclusive powers in Article 3(1) TEU; see Wilderspin, Article 79 TFEU, para 31; Müller-Graff, Article 79 TFEU, para 39; Iglesias Sánchez, ‘Migration Agreements between the European Union and Third States’, in: Goodwin-Gill/Weckel, 21st Century, p. 167, 176–177; Billet, Readmission, p. 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. 80 The different regulatory focus of the rules in the Return Directive 2008/115/EC and readmission agreements implies that there is no pre-emptive effect resulting in external exclusivity in line with ECJ case law; see García Andrade, EU External Competences, p. 169–173; and Billet, Readmission, p. 60–63; against Van Vooren, ‘The Principle of Pre-emption after Opinion 1/2003 and Coherence in EU Readmission Policy’, in: Cremona/Monar/Poli (eds), The External Dimension of the European Union’s Area of Freedom, Security and Justice (Lang, 2011), p. 163, 176–183. 81 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, Readmission, p. 63–65. 82 In line with ECJ case law, the adoption of a negotiation mandate pre-empts the conclusion of bilateral treaties; see Thym, Legal Framework for Entry and Border Controls, MN 14; and Billet, Readmission, p. 60–63. 83 See Eisele, The Return Directive 2008/115/EC. European Implementation Assessment, PE 642.840, June 2020, p. 135–264, including a valuable overview of existing bilateral and supranational schemes of an informal character on p. 243–264; see also Cassarino, Informalizing EU Readmission Policy, in: Ripoll Servent/Trauner, Routledge Handbook, p. 83–98. 84 Note that countries of origin are obliged to take back own nationals anyway (see above MN 22), i.e. formal readmission agreements do not create such a legal obligation in the first place, but rather aim at rendering it effective in practice; that objective can similarly be achieved by means of informal arrangements provided that they work in practice, something also binding agreement cannot guarantee. 85 See Cassarino, Informalizing EU Readmission Policy, in: Ripoll Servent/Trauner, Routledge Handbook, p. 83, 90–93; and Sachverständigenrat deutscher Stiftungen für Integration und Migration (SVR), Gemeinsam gestalten. Migration aus Afrika nach Europa, Jahresgutachten 2020, p. 169–171, available online at https://www.svr-migration.de/jahresgutachten [last accessed 1 June 2021].

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

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

Article 79(4) TFEU covers incentives and support for national integration policies ‘excluding any harmonisation of the laws and regulations of the Member States.’ Corresponding formulations have been 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 legislation.88 Article 79(4) TFEU should be classified, therefore, as a support and coordination competence in line with Article 2(5) TFEU.89 The introduction of the new and restrictively formulated provision in Article 79(4) TFEU responded to years of sometimes protracted disputes about the permissibility of an autonomous EU integration policy.90 This resulted, among other things, in the adoption of the Common Basic Principles (CBP) for immigrant integration policy as a resolution of the Council together with representatives of the governments to emphasise the limited scope of EU competences.91 Today, such complex 86 On the objectives of external action, see Article 21 TEU; on the necessary policy coherence, see Neframi, ‘L’aspect externe de l’espace de liberté, de sécurité et de justice’, in: Flaesch-Mougin/Rossi (eds), La dimension extérieure de l’espace de liberté, de sécurité et de justice de l’Union européenne après le Traité de Lisbonne (Bruylant, 2013), p. 509, 525–531; and Kotzur, Article 77 TFEU, para 10. 87 See García Andrade, EU External Competences, p. 178–182. 88 See, by way of example, Articles 165(4), 166(4), 167(5) and 168(5) TFEU. 89 See Müller-Graff, Article 79 TFEU, para 43. 90 See Carrera, In Search, ch. 3. 91 Cf. Council doc. 14615/04 of 19 November 2004.

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Chp. 7 constructions are no longer necessary, since Article 79(4) TFEU provides for an unequivocal supranational competence, which, however, excludes harmonisation.92 Measures that can be adopted on this basis include soft law measures, institutional arrangements such as contact points, as well as funding, including the former Asylum, Migration and Integration Fund.93 These must comply with the principle of subsidiarity (see above MN 9). It should be noted that the prohibition of harmonisation concerns measures adopted 25 on this basis only; Article 79(4) TFEU does not prevent recourse to other legal bases– as the ECJ decided in other scenarios concerning the delimitation of legal bases, some of which excluded harmonisation.94 The same applies to the interaction of Article 79(4) TFEU and more specific legal bases, such as Article 79(2)(a), (b) TFEU, which apply whenever the centre of gravity of an instrument concerns first admission or rights of migrants residing legally. These abstract considerations entail that EU legislation can include rules on immigrant integration, such as the requirement for integration measures in Article 7(2) Family Reunification Directive 2003/86/EC.95 Moreover, the broad meaning of the term ‘integration’ in EU immigration law indicates that provisions that are not officially designated as integration instruments can also have a profound impact upon immigrant integration, such as economic self-sufficiency requirements, statutory equal treatment provisions or labour market access (see below MN 44a). In light of the principle of subsidiarity (see above MN 9), it is questionable whether the EU has the competence to prescribe in depth the contents of national integration measures, such as the curriculum of integration courses.96

5. Access to the Labour Market (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.97 While some commentators rejected the existence of a supranational competence,98 others claimed that the Treaty provisions on social policy should be activated.99 This debate became moot when the 92 Nonetheless, the Council and the Representatives of the Governments of the Member States continued to adopt jointly the Conclusions on the Integration of Third Country Nationals Legally Residing in the EU, Council doc. 9905/1/14 of 26 May 2014. 93 See Adam/Thym, ‘Integration’, in: De Bruycker/De Somer/De Brouwer (eds), From Tampere 20 to Tampere 2.0. Towards a new European consensus on migration (EPC, 2019), p. 73, 76–77; and Regulation (EU) No 516/2014 (OJ 2014 L 150/168), which expired in 2020. 94 See ECJ, Hungary & Poland v. European Parliament & Council, C-620/18 & C-626/18, EU: C:2020:1001, paras 65–69, 77–85; and ECJ, Germany v. Council & European Parliament, C-376/98, EU: C:2000:544, para 77–79. 95 Wilderspin, Article 79 TFEU, para 34 questions the correct delimitation of legal bases, if we conceive the Family Reunification Directive and the Long-Term Residents Directive to be directed at promoting migrant integration, even though that description in the case law may be simplistic; see Thym, LongTerm Residents Directive 2003/109/EC, Article 1, MN 16–17. 96 See Hailbronner, Immigration and Asylum, p. 89–90; and ter Steeg, Einwanderungskonzept, p. 464–564. 97 Discussions were further complicated by an opening clause in Article 63 EC Treaty as amended by the Treaty of Amsterdam of 2 October 1997 (OJ 1997 C 340/173), which was discontinued by the Treaty of Lisbon. 98 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, ‘Europäische Einwanderungspolitik: Grundlagen und aktuelle Entscheidungen’, Zeitschrift für Europarechtliche Studien 2004, p. 11, 19–23; more generous was ter Steeg, Einwanderungskonzept, p. 326–333. 99 See Brinkmann, ‘ The Immigration and Asylum Agenda’, ELJ 10 (2004), p. 182, 187–188; and Guild and Peers, ‘Out of the Ghetto?’ in: ibid/Rogers (eds), EU Immigration and Asylum Law. Text and Commentary (Martinus Nijhoff, Leiden 2006), p. 81, 101–104.

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Lisbon Treaty stated explicitly that the EU legislature can establish rules on economic migration subject to the caveat in Article 79(5) TFEU (see above MN 12). The latter provision was introduced by the Presidium of the European Convention drafting the erstwhile Constitutional Treaty which later became the Treaty of Amsterdam to appease concerns among political actors within Germany that the EU would interfere with labour migration policies, which were the object of heated domestic political battles in the EU’s biggest Member State at the time.100 It should be noted that the scepticism about EU involvement in labour migration can be traced back to legal battles over the scope of Community competences in the 1980s.101 It is clear from the wording of the latter provision that the exemption concerns only third country nationals ‘coming from third countries … in order to seek work’ and therefore does not encompass the labour market access of those who are admitted for other purposes, such as family members or students (see above MN 17). Article 79(5) TFEU concerns national rules on economic migration sensu stricto, i. e. admission of the highly qualified, seasonal workers or other foreigners seeking employment.102 It covers those seeking work in the same way as it concerns third country nationals who already have a job offer when applying for entry,103 provided they come from outside the European Union. Mobility within the single market is not affected due to the clear wording.104 27 A comparison of the different language versions of Article 79(5) TFEU shows that the exemption concerns national rules ‘to determine volumes of admission’ (French: fixer les volumes d’entrée; German: wie viele … einreisen dürfen) without indicating precisely how volumes of admissions are to be determined at the national level. Some argue that it should be understood to cover domestic ‘quota schemes’ for workers only.105 In light of the general wording and the interpretative principle of effet utile (see Thym, Constitutional Framework, MN 16) such narrow interpretation does not convince, since it would render the provision effectively meaningless for Member States without immigration quotas.106 It should be read, instead, to require the EU legislature to allow a certain flexibility for Member States in the regulating economic migration. EU directives can establish individual rights (see Thym, Constitutional Framework, MN 15), but the conditions for the existence of these rights prescribed in EU legislation should provide some leeway for Member States to influence the volumes of admission through national immigration law. Directives can, for instance, allow Member States to apply labour market tests, quota systems or similar requirements.107 Notwithstanding these doctrinal effects, Article 79(5) TFEU 100

See Niemann, Explaining Decisions in the European Union (CUP, 2006), p. 252–257–259. See ECJ, Germany, France, the Netherlands, Denmark and the United Kingdom v. Commission, 281/85, 283/85–285/85 & 287/85, EU:C:1987:351. 102 Similarly, see Peers, EU Justice, p. 330–331; Progin-Theuerkauf, ‘Artikel 77 AEUV’, in: von der Groeben/Schwarze/Hatje (eds), Europäisches Unionsrecht, Vol. 2, 7th edn (Nomos, 2015), para 36; and 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, 764. 103 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. 104 See Wilderspin, Article 79 TFEU, para 72. 105 See Peers, EU Justice, p. 330–331; Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011), p. 149–153; and Weiß, Article 79 TFEU, para 48. 106 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, which insisted on the introduction of the caveat, was considering the introduction of a domestic quota at the time of debates in the European Convention, which first drafted today’s Article 79(5) TFEU, although the project was abandoned later. 107 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. 101

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

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

1. Free Movement of Union Citizens The emergence of distinct Treaty regimes for Union citizens and third country 28 nationals was a gradual process. Originally, the Treaty of Rome knew neither ‘third country nationals’ nor ‘Union citizens’, but only ‘workers.’109 It would be wrong, however, to assume that the founding fathers of the European project wanted to establish universal free movement irrespective of nationality. During negotiations, there was agreement that only nationals of Member States should be covered; an explicit nationality clause was discarded in reaction to Franco-Italian disputes over the status of workers from Algeria and German concerns about nationals from communist East Germany.110 As a result, immigration law towards third country nationals remained a ‘sovereign’ prerogative of the Member States until the Schengen cooperation and the Treaty of Maastricht brought it within the ambit of the EU institutions (see above MN 1). At the time of the Maastricht Treaty, the introduction of distinct Treaty regimes for the new category of ‘Union citizenship’111 and so-called ‘nationals of third countries’112 was a parallel development. 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 constitu108 See Iglesias Sánchez, ‘Migration Agreements between the European Union and Third States’, in: Goodwin-Gill/Weckel, 21st Century, p. 167, 171–173. 109 Cf. Groenendijk, ‘Categorizing Human Beings in EU Migration Law’, in: Bonjour/Rea/Jacobs (eds), The Others in Europe (Institut d’études européennes, 2011), p. 21, 25–31. 110 See the historic study by Goedings, Labor Migration in an Integrating Europe (SDU Uitgevers, 2005), p. 128–135; against this background, the accusation that the limitation of the free movement of workers to Union citizens was the result of ‘revisionist interpretation’ ignores the historic context; see, however, Guild/Peers, ‘Out of the Ghetto?’, in: ibid./Rogers (eds), EU Immigration and Asylum Law. Text and Commentary (Martinus Nijhoff, Leiden 2006), p. 81, 114. 111 Union citizenship was first introduced by Article 8 EC Treaty as amended by the Treaty of Maastricht (OJ 1992 C 224/36). 112 Article K.1 EU Treaty, ibid.; the formulation ‘nationals of third countries’ was gradually replaced by third country nationals.

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tional cleavage at the heart of the European project in so far as it designates a basic distinction between the free movement rights of Union citizens and the absence of corresponding guarantees for third country nationals enshrined at Treaty level (see below MN 33–36). In a supranational legal order based on the rule of law, such constitutional distinction matters, since Treaty guarantees must be respected by the EU legislature; the ECJ can enforce the free movement rights of Union citizens against the opposition of the Member States.113 It is well known that judges in Luxembourg regularly had recourse to the constitutional guarantee of free movement114 and the subsequent introduction of Union citizenship115 to enhance citizens’ rights by means of dynamic interpretation, even though judges have emphasised the outer limits of free movement and equal treatment in recent years.116 Corresponding free movement case law concerns the status of workers, the self-employed, service recipients, students and other Union citizens with sufficient resources.117 Secondary legislation with detailed rules can be found in the Citizenship Directive 2004/38/EC, Regulation (EU) No 492/2011 on the freedom of movement for workers and the Social Security Coordination Regulation (EC) No 883/2004.118 30 It is settled case law that the application of free movement rights requires a crossborder element as a matter of principle. Union citizens living in the state of which they have the nationality cannot usually rely on the fundamental freedoms; to do so requires them to move to another Member State or to have lived there for an extended period.119 This requirement of a cross-border element entails that purely internal situations are not covered by the free movement guarantees for Union citizens.120 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.121 Free movement experts rightly complain that corresponding case law is highly complex122 – and some have argued that the purely internal rule should be abandoned so as to abolish the phenomenon of reverse discrimination.123 The ECJ has, rightly in my view,124 not 113 On the ambiguous relationship between policy developments and the ECJ case law in practice, see Thym, ‘The Evolution of Citizens’ Rights in Light of the EU’s Constitutional Development’, in: Thym, Questioning EU Citizenship, p. 111–134; and Dougan, ‘The Bubble that Burst’, in: Adams et al. (eds), Judging Europe’s Judges (Hart, 2013), p. 127, 145–153. 114 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. 115 Cf. ECJ, Baumbast & R, C-413/99, EU:C:2002:493, paras 81–82. 116 See in particular ECJ, Dano, C-333/13, EU:C:2014:2358; ECJ, Alimanovic, C-67/14, EU:C:2015:597; Nic Shuibhne, ‘Limits Rising, Duties Ascending’, CML Rev. 52 (2015), p. 889–937; and Azoulai, ‘Transfiguring European Citizenship’, in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2017), p. 178–203. 117 For an overview, see Boeles/den Heijer/Lodder/Wouters, European Migration Law, ch. 2; and any textbook on EU law. 118 See the section on abbreviations and Regulation (EU) No 492/2011 (OJ 2011 L 141/1). 119 In situations, in which the cross-border element is not evident, one has to assess, in line with ECJ case law, whether national rules in question amount to a ‘restriction’ of free movement rights; see ECJ, O. & B., C-456/12, EU:C:2014:135, paras 37–54. 120 Settled case law since ECJ, Uecker & Jacquet, C-64 & 65/96, EU:C:1997:285, paras 23–24. 121 See O’Leary, ‘The Past, Present and Future of the Purely Internal Rule in EU Law’, in: Dougan et al. (eds), Empowerment and Disempowerment of the European Citizen (Hart, 2012), p. 36–71. 122 The complexity can be explained, in part at least, with procedural uncertainties, see Iglesias Sánchez, ‘Purely Internal Situations and the Limits of EU Law’, EuConst 14 (2018), p. 7–36. 123 Cf. Tryfonidou, Reverse Discrimination in EC Law (Kluwer, 2009), ch. 4; and Nic Shuibhne, ‘Free movement of persons and the wholly internal rule: time to move on?’, CML Rev. 39 (2002), p. 731, 741–760. 124 See Thym, ‘Frontiers of Citizenship’, in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2017), p. 705, 719–722.

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Chp. 7 followed the argument.125 It should be noted, however, that the purely internal rule applies to the Treaty-based fundamental freedoms only; secondary legislation usually covers internal questions without a cross-border element,126 including directives and regulations on border controls, visa, asylum and immigration (see below MN 33c). Whenever free movement rules do not apply and if there is no secondary legislation, national constitutions and the European Convention on Human Rights may be relied upon. Unfortunately, the overall picture is blurred by a grey area of overlap between rules 31 for Union citizens and third country nationals, since family members of Union citizens with the nationality of a third state can rely indirectly on the free movement provisions in certain circumstances,127 for instance when an Italian national is married to a Tunisian with whom she lives in France. Although the EU Treaties do not mention family members from third states explicitly, they benefit from specific rights in secondary legislation and ECJ case law.128 The Court of Justice consistently interprets the free movement guarantees of Union citizens to embrace spouses and other family members by means of a legal reflex in the form of ‘derived rights’129 whenever the denial of family reunion can be construed as a restriction to the free movement of Union citizens. In a series of judgments in the 2000s, judges in Luxembourg increased the level of protection;130 this process culminated in the Ruiz Zambrano judgment and follow-up rulings that seemed to considerably enhance the level of protection at first, although the ECJ later clarified that it concerned mainly third country national family members of minor Union citizens.131 In cases of conflict, the rights of third country national family members of Union citizens prevail over national immigration law or secondary EU legislation, since they emanate, in the form of derived rights, from constitutional free movement guarantees enshrined at Treaty level.132 This is particularly relevant for entry rules and visa requirements (see Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 3). A specific scenario of overlap between citizens’ rights and the immigration status of 31a third country nationals concerns posted workers who are sent by their employer to carry out a service abroad on a temporary basis. The ECJ holds the freedom to provide 125 In addition to the case law on the fundamental freedoms, it did not consider reverse discrimination to be incompatible with the principle of equality, since ‘since no discrimination can arise in legal situations which are not comparable’; see ECJ, Mura, 22/77, EU:C:1977:154, para 9. 126 By ways of example, most directives on consumer or environmental protection cover purely internal and cross-border elements. 127 See Berneri, Family Reunification, ch. 3; and Thym, ‘Family as Link’, in: Verschueren (ed), Residence, Employment and Social Rights of Mobile Persons. On How EU Law Defines where they Belong (Intersentia, 2016), p. 11–38. 128 See, in particular, today’s Articles 5 to 18 Citizenship Directive 2004/38/EC; and Article 10 Regulation (EU) No 492/2011 (OJ 2011 L 141/1). 129 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. 130 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. 131 The consequences of ECJ, Ruiz Zambrano, C-34/09, EU:C:2011:124 were watered down considerably in follow-up rulings; see ECJ, Dereci et al., C-256/11, EU:C:2011:734; and ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776; for further comments, see Berneri, Family Reunification, ch. 4; Reynolds, ‘Exploring the “Intrinsic Connection” between Free Movement and the Genuine Enjoyment Test’, E.L. Rev. 38 (2013), p. 376–392; and Thym, ‘Family as Link’, in: Verschueren (ed), Residence, Employment and Social Rights of Mobile Persons. On How EU Law Defines where they Belong (Intersentia, 2016), p. 11, 25–28. 132 The precedence of free movement law over the legislative border control regime is recognised in the ECJ case law, see Thym, Legal Framework for Entry and Border Controls, MN 16.

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services in the internal market encompasses the permission to send employees across borders to perform a contract, irrespective of whether the posted workers are Union citizens or not.133 An example are Ukrainians working for a Polish company which signed a contract to perform plumbing work at a construction site in Sweden. In practice, the case law means that Member States cannot apply regular immigration laws to posted workers, insofar as the freedom to provide services under Article 56 TFEU requires them to authorise the entry and stay of the foreign workers. The rules on posted workers under internal market law had consequences the presence of natural persons abroad under Mode IV of the GATS did not have due to explicit exceptions enshrined in world trade law (see Thym, Legal Framework for Entry and Border Controls, MN 28b). Over the past three decades, there have been repeated legal and political disputes over the authority of receiving states to regulate the status of posted workers in terms of working conditions, social benefits and social security, which are usually higher in countries of destination than in countries of origin of the service provider.134 The EU legislature laid down uniform standards in the Posted Workers Directive 96/71/EC, which was updated last in 2018135 – again after heated political controversies.136 There is no directly comparable regime for service provision by companies from third states (as opposed to the posting of third country nationals within the EU’s single market), even though debates on seasonal workers and intracorporate transferees follow similar patterns. 32 In recent judgments, the ECJ confirmed that we have to distinguish carefully, in cases of overlap, between the derived rights of third country national family members of Union citizens (see above MN 30–31a) and EU immigration and asylum instruments.137 The official reasoning listed the Citizenship Directive 2004/38/EC and immigration instruments in parallel, thereby indicating that the Family Reunification Directive 2003/ 86/EC and the Long-Term Residents Directive 2003/109/EC present an alternative frame of reference.138 Judges have emphasised, moreover, that immigration instruments can be scrutinised in the light of human rights, which, in the EU context, are bound to follow the established case law of the ECtHR on the European Convention (see Thym, Constitutional Framework, MN 48). This reference to immigration law and human rights within the area of freedom, security and justice takes centre stage in cases not involving family members of Union citizens. In such ‘pure’ immigration scenarios, the intricate demarcation between citizens’ rights and the human rights of foreigners, is 133 See ECJ, Vander Elst, C-43/93, EU:C:1994:310, paras 18 et seq.; note that the freedom to provide services under Article 56 TFEU concerns temporary service provision as opposed to permanent establishment under Article 49 TFEU, to which the rules on posted workers do not apply directly. 134 Receiving states insisted on respect for domestic rules to prevent what they described as ‘social dumping’, while service providers (and their home states) favoured the application of their domestic rules; on underlying disputes, see ECJ, Arblade, C-369 & 376/96, EU:C:1999:575; Giesen, ‘Posting. Social Protection of Workers vs. Fundamental Freedoms?’, CML Rev. 40 (2003), p. 143–158; and Mussche/Lens, ‘The ECJ’s Construction of an EU Mobility Regime’, Journal of Common Market Studies 57 (2019), p. 1247–1261. 135 Cf. Directive (EU) 2018/957 (OJ 2018 L 173/16). 136 See Zahn, ‘Revision of the Posted Workers Directive. A Europeanisation Perspective’, The Cambridge Yearbook of European Legal Studies 19 (2017), p. 187–210; and on earlier debates Barnard, ‘Social Policy and the Shifting Sands of the Constitutional Order. The Case of Posted Workers’, in: Arnull/ Barnard/Dougan/Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Hart, 2011), p. 321–340. 137 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. 138 See, in particular, ECJ, Dereci et al., C-256/11, EU:C:2011:734, paras 71–72; ECJ, Iida, C-40/11, EU: C:2012:2405, paras 78–81; ECJ, K.A. et al., C-82/16, EU:C:2018:308, paras 44–46, 98–107; see also Thym, Constitutional Rationale, p. 714–716.

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

2. 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 Thym, Constitutional Framework, MN 5–7). The Treaty regime for justice and home affairs differs markedly from rules for Union citizens, since third country nationals cannot invoke far-reaching mobility guarantees with constitutional status in the EU Treaties (see above MN 29). In the words of the Court: Union citizens ‘enjoy a status and rights entirely different from those’ of third country nationals.139 The particularity of immigration and asylum law does not imply, however, that third country nationals have no constitutional assurances on their side. Third country nationals can invoke human rights, including the EU Charter (see below MN 51–58; and Thym, Constitutional Framework, MN 46 et seq.), which generally takes pride in presenting itself as an avantgarde catalogue.140 When it comes to migration, however, the fundamental rights in the Charter principally reaffirm existing guarantees under the ECHR,141 in the light of which the ECJ interprets statutory rules on immigration (see Thym, Constitutional Framework, MN 14). That is not to say that there are no limits, but the Charter does not generally pre-empt policy choices, especially when compared to the extensive guarantees of Union citizens to free movement and equal treatment. The legal differentiation between the EU’s internal free movement regime and 33a immigration and asylum law towards third country nationals can be construed in different ways from a theoretical perspective. Firstly, experts of EU law and policy, in particular, have traditionally emphasised the role of EU integration in overcoming the closed nation state, thereby rejecting traditional notions of unfettered state discretion over the entry and stay of foreigners. Against this background, it was expected that EU institutions would replicate the historic mission of taming the nation state by advancing the rights of third country nationals when the legislature started harmonising immigration and asylum laws (see above MN 1–3).142 Union citizenship was perceived, in other words, as a model to transform prevailing conceptions of citizenship, in line with the initial enthusiasm for globalisation.143 Secondly, the vision of Europe as a postnational 139 ECJ, Ordre des barreaux francophones et germanophone et el., C-718/19, EU:C:2021:505, para 53; see also ECJ, Belgischer Staat, C-930/19, EU:C:2021:657, paras 71–76. 140 Recital 4 emphasises that the Charter strengthens the protection of fundamental rights ‘in the light of changes in society, social progress and scientific and technological developments’; by way of illustration, see the prohibition of reproductive cloning in Art. 3(2)(d) or equal treatment of gays and lesbians in Art. 21(1). 141 For an overview, see Sadowski, ‘A Safe Harbour or a Sinking Ship?’, European Journal of Legal Studies 11 (2019), p. 29–64; Ippolito, ‘Migration and Asylum Cases before the Court of Justice of the European Union. Putting the EU Charter of Fundamental Rights to Text?’, EJML 17 (2015), p. 1–38; Groß, ‘Migrationsrelevante Freiheitsrechte der EU-Grundrechtecharta’, Zeitschrift für Ausländerrecht (2013), p. 106–110; and Wiesbrock, Legal Migration, p. 208–229. 142 By way of example, see Guild, The Legal Elements of European Identity (Kluwer, 2004); Wiesbrock, ‘Granting Citizenship-Related Rights to Third-Country Nationals’, EJML 14 (2012), p. 63–94; and Jesse, ‘“Disrupting and Annoying”. EU Citizenship and EU Migration Law Destroying Old Habits of National Migration Policy Making’, in: de Visser/van der Mei (eds), The Treaty on European Union 1993–2013 (Intersentia, 2013), p. 407–428. 143 See Soysal, Limits of Citizenship. Migrants and Postnational Membership in Europe (University of Chicago Press, 1994), p. 145–151; Sassen, Losing Control? Sovereignty in an Age of Globalization (Columbia UP, 1996), p. 88–99; Kostakopoulou, The Future Governance of Citizenship (CUP, 2008); and Maas, ‘Migrant, States and EU Citizenship’s Unfulfilled Promise’, Citizenship Studies 12 (2008), p. 583–596.

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avant-garde had always contrasted with conventional intergovernmental accounts of the integration process emphasising the role of national governments in promoting state interests via supranational decision-making.144 Arguably, intergovernmentalism has gained ground in recent years compared to the situation after the end of the Cold War,145 also reflecting the changing geopolitical environment.146 Thirdly, there is an external perspective, since the EU’s double-pronged approach to cross-border movements by Union citizens and third country nationals coincides with the postcolonial critique of the European project as an exclusionary undertaking, which, in an extreme variant, was presented by critics as a racist categorisation continuing earlier forms of colonial domination and exclusion.147 33b In practice, statutory requirements enshrined in secondary legislation are often much more relevant than abstract human rights guarantees, not least since the EU legislature can establish individual rights to entry in secondary legislation even if the fundamental rights in the Charter or the ECHR do not mandate that outcome (see Thym, Constitutional Framework, MN 15). In the field of legal migration, individual rights have been recognised explicitly by the ECJ for family reunification,148 students,149 visas150 and with regard to long-term residents.151 It should be noted that the scope of statutory rights is determined in the legislative process; they are subject to the conditions and criteria laid down in secondary legislation. Corresponding provisions will be discussed in detail in the different chapters to this Commentary. In contrast to rules on Union citizens, legislation on third country nationals does not emanate from a holistic policy vision;152 we are confronted with a patchwork of sector-specific rules, not least in the field of legal migration (see above MN 3) and with regard to social integration (see below MN 44). The idea of an overarching immigration code seems to have been abandoned for the time being (see above MN 3). On the whole, EU immigration laws occupy a middle ground between the theoretical visions for immigration law described above (see MN 33a), with secondary legislation and ECJ rulings fluctuating between a dynamic approach to migrants’ rights and deference to the public policy objectives153 – an intermediate position I have described elsewhere as the ‘cosmopolitan 144 See Milward, The European Rescue of the Nation State, 2nd edn (Routledge, 2000); and Moravcsik, The Choice for Europe (Ithaka Press, 1998). 145 See Thym/Bornemann, ‘Malaise and Recovery of the Schengen Area and Free Movement Rules during the COVID-19 Pandemic’, European Papers 5 (2020), 1143, 1151–1156; and Borg/Diez, ‘Postmodern EU?’, JCMSt. 54 (2016), p. 136–151. 146 Generally see Skordas, ‘The European Union as Post-National Realist Power’, in: Blockmans/ Koutrakos (eds), Research Handbook on the EU’s Common Foreign and Security Policy (Elgar, 2018), p. 394–444. 147 See Thym, ‘Deciphering the Role of Migration Law in the Social Construction of “Otherness”’, in: Jesse (ed), European Societies, Migration, and the Law. The ‘Others’ amongst ‘Us’ (CUP, 2020), p. 323, 347–349; and the classic critique of Balibar, We, the People of Europe? Reflections on Transnational Citizenship (Princeton UP, 2003); see also Kinvall, ‘The Postcolonial Has Moved into Europe. Bordering, Security and Ethno-Cultural Belonging’, Journal of Common Market Studies 54 (2016), p. 152–168. 148 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, paras 59–60. 149 See ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 23–27 with regard to the former Students Directive 2014/114/EC. 150 See, indirectly, ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 54–55. 151 See ECJ, Commission v. the Netherlands, C-508/10, EU:C:2012:243, para 68. 152 See Iglesias Sánchez, Constitutional Identity, p. 1803–1805; for an overview, see Eisele, The External Dimension of the EU’s Migration Policy. Different Legal Positions of Third-Country Nationals in the EU: A Comparative Perspective (Brill/Nijhoff, 2014); and Tewocht, Drittstaatsangehörige im europäischen Migrationsrecht (Nomos, 2016), p. 273–407. 153 See Strumia, ‘European Citizenship and EU Immigration’, ELJ 22 (2016), p. 417, 421–437; and Acosta Arcarazo/Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’, Journal of Common Market Studies 51 (2013), p. 179–193.

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Chp. 7 outlook’ of EU migration law.154 The situation in slightly different in the field of asylum, where EU action is subject to much criticism (see Thym, Legal Framework for EU Asylum Policy, MN 4–5). Secondary legislation on border controls, visas, immigration and asylum – like most 33c other directives or regulations adopted by the EU institutions – usually applies to socalled purely internal situations, when third country nationals live and reside in one Member State. In contrast to the Treaty-based fundamental freedoms of Union citizens (see above MN 30), secondary legislation does not require a cross-border element. This entails, coincidentally, that the Charter of Fundamental Rights can have a wider scope of application for third country nationals than for Union citizens,155 even if the level of protection generally remains lower. Closer inspection of the novel human rights guarantees in the Charter that transcend 34 the guarantees in the ECHR (see Thym, Constitutional Framework, MN 48–50) demonstrates that they do not, in contrast to the fundamental freedoms of Union citizens, establish an individual right with constitutional status to enter EU territory in the first place.156 This was reaffirmed for the protection of private and family life under Article 8 ECHR and Article 7 EU Charter by the case law of the ECtHR, which the ECJ integrated in the EU legal order (see below MN 52–52a). With regard to economic migration, Article 15 of the Charter reiterates the constitutional distinction between third country nationals and Union citizens in terms of access to the labour market. It starts with a reminder of citizens’ rights to free movement under Article 15(2) CFR157 and continues by reaffirming the absence of a generic right to enter EU territory for economic purposes without state authorisation: ‘Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.’158 This sounds progressive, but the substance is meagre given that equal working conditions for legally resident third country nationals are politically uncontroversial in today’s Europe (see Iglesias Sánchez, Directive 2011/98/EU, Article 12 MN 16–17), even though important deficits can exist in practice with regard to foreigners staying both legally or illegally (see Schierle, Employers Sanctions Directive 2009/52/EC, Article 1 MN 6–7). The EU institutions retain a principled discretion over whether and, if so, under which conditions to grant individual statutory rights for economic and other purposes (see above MN 33b). Within the limits prescribed by human rights, the choice whether entry doors for purposes of legal migration shall be ‘open’ or ‘closed’ rests with the political process. The interpretation of corresponding statutory guarantees depends on the contents and context of the legislative instrument in question; there is no general assumption that they should be interpreted in parallel to the free movement guarantees of Union citizens (see Thym, Constitutional Framework, MN 15). In a similar vein, the Charter differentiates cross-border mobility within the Eur- 35 opean Union once a third country national was admitted to the EU territory, for instance when a Moroccan national residing in Spain wants to take up employment in Belgium. While Union citizens benefit from extensive free movement in such scenar154 See Thym, ‘Citizens and Foreigners in EU Law’, ELJ 22 (2016), p. 296–316; and Thym, Constitutional Rationale, p. 725–735. 155 See Iglesias Sánchez, ‘The Constitutional Status of Foreigners and EU Citizens’, in: Thym (ed), Questioning EU Citizenship, p. 243, 257–264. 156 See Iglesias Sánchez, Fundamental Rights, p. 138–148; and Thym, Constitutional Rationale, p. 718–721. 157 Articles 52(2), (7) CFR and the official Explanations (OJ 2007 C 303/17), p. 23 confirm that the provision is to be interpreted in line with Articles 45, 49, 56 TFEU. 158 Article 15(3) CFR; emphasis added.

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ios,159 Article 45(2) of the Charter states that similar rights ‘may be granted’ to third country nationals in accordance with the Treaties,160 thereby emphasising that the scope of intra-European mobility is determined in the legislative process (see above MN 17–18).161 The legislature may opt for a generous statutory mobility regime for third country nationals within the EU, but it is not constitutionally obliged to do so. In practice, it laid down comparatively generous rules on temporary free travel within the Schengen area (see Thym, Legal Framework for Entry and Border Controls, MN 18), while the statutory regime for access to the labour market of other Member States remains scattered (see above MN 18). 36 It is well known among experts of EU migration law that the European Council in Tampere in 1999 called upon EU institutions to adopt a ‘vigorous integration policy was to aim at granting [third country nationals] rights and obligations comparable to those of EU citizens,’162 while it similarly requested external border controls to ‘stop illegal immigration.’163 More specifically, long-term residents ‘should be granted … a set of uniform rights which are as near as possible to those enjoyed by EU citizens.’164 From a legal perspective, the relevance of these statements should not be overstated. Firstly, the political commitment of the heads of state or government is not legally binding (see Thym, Constitutional Framework, MN 8–9). Secondly, the original enthusiasm of the Tampere guidelines, which expired in 2004, gave way to more restrictive terminology in later strategic guidelines, particularly in the successor programme adopted in The Hague.165 Thirdly, similar formulations were not elevated to Treaty level when the European Convention drafted the new objectives for immigration policy which are enshrined in today’s Article 79(1) TFEU and which call, in more abstract terms, for the ‘fair treatment’ of third country nationals, which leaves the legislature much discretion (see Thym, Constitutional Framework, MN 7). Finally, the outcome of the legislative process often resulted in nuanced provisions, which stayed short of the original enthusiasm among heads of state or government. For legal analyses, the prescription in secondary legislation as well Treaty provisions, including the Charter of Fundamental Rights, are the central point of reference, not the political commitment for the 1999–2004 period.

3. Equal Treatment 37

Within the EU legal order, non-discrimination on grounds of nationality constitutes a central axis underlying the dynamic ECJ case law on the single market and Union citizenship. Although the wording of Article 18 TFEU does not specify expressly that it applies to Union citizens only, it is settled ECJ case law that Article 18 TFEU cannot be 159 This is confirmed by Article 45(1) CFR, which has to be interpreted in line with the fundamental freedoms in accordance with Article 52(2), (7) CFR and the official explanations (OJ 2007 C 303/17), p. 29. 160 Wilderspin, Article 79 TFEU, para 19 rightly points out contra Peers/Moreno-Lax/Garlick/Guild, EU Immigration and Asylum Law (Text and Commentary), Vol. 3: EU Asylum Law, 2nd edn (Brill Nijhoff, 2015), p. 297 that the power to legislate emanates from Article 79(2) TFEU, not the Charter itself. 161 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 Sánchez, Free Movement, p. 789–800, also for international human rights law that only guarantees free movement within (not: between) states, Iglesias Sánchez, Free Movement, p. 794–796. 162 European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, para 18. 163 Ibid., para 3. 164 Ibid., para 21. 165 See Murphy/Acosta Arcarazo, ‘Rethinking Europe’s Freedom, Security and Justice’, in: ibid. (eds), EU Security, p. 1, 4–9.

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

166 ECJ, Vatsouras & Koupatantze, C-22/08 & C-23/08, EU:C:2009:344, para 52; and ECJ, EU-Canada CETA-Agreement, Opinion 1/17, EU:C:2019:341, paras 168–170; see also ECJ, Khalil, C-95/99–98/99 & C-180/99, EU:C:2001:532, para 40. 167 See ECJ, Belgischer Staat, C-930/19, EU:C:2021:657, paras 50–51, referring to the Official Explanations (OJ 2007 C 303/17), p. 24, which inform the interpretation of the Charter in accordance with Article 52(2) and (7) CFR. 168 See, by way of example, Hublet, ‘The Scope of Article 12 of the Treaty of the European Communities vis-à-vis Third country Nationals: Evolution at Last?’, ELJ 15 (2009), p. 757, 761–774; McCormackGeorge, Equal Treatment, p. 57–60; and de Waele, ‘The Ever-Evolving Concept of EU Citizenship’, in: Talani (ed), Globalisation, Migration and the Future of Europe. Insiders and Outsiders (Routledge, 2011), p. 191, 197–202. 169 See the argument by Iglesias Sánchez, Constitutional Identity, p. 1798–1807 and 1804–1820. 170 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; see above MN 37. 171 See Wiesbrock, Legal Migration, p. 226–229. 172 Cf. Additional Protocol No 12, European Treaty Series No 177, adopted 4 November 2010, entered into force 1 April 2005, which is binding for less than half of the members of the Council of Europe. 173 See ECJ, X, Y & Z, C-199/12–C-201/12, EU:C:2013:720, para 54. 174 See Bell, ‘Article 20 (Equality before the Law)’, in: Peers/Hervey/Kenner/Ward (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 563–578; and Bribosia, Les politiques d’intégration, p. 55–61. 175 See Friðriksdóttir, What Happened to Equality? The Construction of the Right to Equal Treatment of Third country Nationals in European Union Law on Labour Migration (Brill/Nijhoff, 2017), ch. 2, whose claim on p. 324–326 that EU immigration law violates international obligations remains superficial.

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Legal Framework for EU Immigration Policy

Notwithstanding widespread preoccupation of the theoretical debate on migration with equal treatment,176 the case law of the ECtHR and the ECJ remains patchy. It does not replicate the dynamism of the citizenship model and has occasionally signalled a certain reluctance to challenge migration law – notwithstanding the prediction by academic commentators that Articles 20 and 21 of the Charter would turn out to be crucial constitutional yardsticks.177 To be sure, judges in Strasbourg maintain to this date that only ‘very weighty reasons’ can justify unequal treatment based on nationality,178 although the doctrinal effects of this statement were watered down in later rulings (see below MN 39–40). On several occasions, the ECJ confirmed the unequal treatment of nationals and foreigners by emphasising that the situation was not comparable and did not require, as a result, a justification in the first place.179 Doing so mirrors the Aristotelian formula that only similar situations require equal treatment and builds upon case law on other domains of Union law, but it considerably reduced the significance of the human right to equal treatment nonetheless.180 Along similar lines, judges in Strasbourg recognised in line with the ECJ (see above MN 37), that the legal status of Union citizens cannot be compared to immigration rules for third country nationals, since ‘the Union forms a special legal order, which has, moreover, established its own citizenship.’181 39 A specific line of the ECtHR case law censured domestic legislation limiting access to social benefits for legally resident migrants.182 While initial judgments had signalled an intense level of scrutiny, based on the ‘very weighty reasons’ formula (see above MN 38a), we may conclude, with the wisdom of hindsight, that they concerned primarily social security contributions or social assistance of a generic nature, such as child benefits.183 By contrast, the ECtHR reaffirmed in follow-up cases that Member States retain a margin of appreciation, in particular for migrants with a temporary or

38a

176 By way of example, see Fine, ‘Immigration and Discrimination’, in: ibid./Ypi (eds), Migration in Political Theory (OUP, 2016), p. 125–150. 177 See McCormack-George, Equal Treatment, p. 68–81; Iglesias Sánchez, Fundamental Rights, p. 137–153; Hublet, ‘Some Foreigners More Equal than Others under EU Law’, in: Bonjour/Rea/Jacobs (eds), The Others in Europe (Institut d’études européennes, 2011), p. 63, 72–74; Bribosia, Les politiques d’intégration, p. 54–61; and Wiesbrock, ‘Granting Citizenship-related Rights to Third country Nationals’, EJML 14 (2012), p. 63, 80–82. 178 ECtHR, judgment of 16 Sep 1996, No 17371/90, Gaygusuz v. Austria, para 42. 179 This conclusion was reached for integration measures by ECJ, P & S, C-579/13, EU:C:2015:369, paras 39–43; for residence requirements of beneficiaries of international protection by ECJ, Alo & Osso, C-443/14 & C-444/14, EU:C:2016:127, paras 54, 59; for autonomous residence permits of family members by ECJ, Belgischer Staat, C-930/19, EU:C:2021:657, paras 57–76; and for pre-removal detention by ECJ, Ordre des barreaux francophones et germanophone et el., C-718/19, EU:C:2021:505, para 65; beyond the sphere of migration, ECJ, EU-Canada CETA-Agreement, Opinion 1/17, EU:C:2019:341, paras 177 et seq.; for comments, see Thym, ‘Towards a Contextual Conception of Social Integration in EU Immigration Law’, EJML 18 (2016), p. 89, 104–105. 180 See Iglesias Sánchez, Constitutional Identity, p. 1818–1820; Jesse, ‘Integration Measures, Integration Exams, and Immigration Control’, CML Rev. 53 (2016), p. 1065, 1079–1080; and De Vries, ‘The Integration Exception’, in: Thym, Questioning EU Citizenship, p. 267, 282–284; as well as Craig, EU Administrative Law, 3rd edn (OUP, 2018), p. 577–578 for the other areas of EU law. 181 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. 182 For an overview, see Dembour, When Humans Become Migrants (OUP, 2015), ch. 8; and Minderhoud, ‘Social Security Rights of Third Country Nationals’, Journal of Social Security Law 17 (2010), p. 227–239. 183 Cf. ECtHR, judgment of 16 September 1996, No 17371/90, Gaygusuz v. Austria noting that contributions-based benefits can be covered by the right to property under Article 1 Additional Protocol No. 1; and ECtHR, judgment of 8 April 2013, No 17120/09, Dhabi v. Italy, paras 45–54.

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Chp. 7 precarious residence status.184 It recognised that states ‘may have legitimate reasons for curtailing the use of resource‐hungry public services … by short‐term and illegal immigrants, who, as a rule, do not contribute to their funding’185, in particular health care, social housing or broader welfare. In a series of decisions, the ECtHR confirmed that those staying illegally can be excluded from social benefits,186 although the precise contours of the case law can be difficult to decipher, in particular when it comes to core benefits whose denial may give rise to a claim under Article 3 ECHR (see Thym, Legal Framework for EU Asylum Policy, MN 57a-57b). In an important judgment of principle, the ECtHR recognised that ‘immigration 40 status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice.’187 That may sound innocent but has important constitutional implications, since it indicates a lower level of scrutiny, thereby making it easier for governments to justify unequal treatment in comparison to more suspicious forms of unequal treatment based, for instance, on gender or race.188 That being said, human rights standards for the unequal treatment of different categories of third country nationals in the assorted migration law instruments are crucial, since they constitute an alternative benchmark to the direct comparison with national or Union citizens, which judges are hesitant to call into question (see above MN 38, 38a). It is well established in the international practice and comparative constitutional law to compare the treatment of different status groups within migration law.189 The lower level of scrutiny inherent in the rejection of migration status as an immutable characteristic does not absolve states from the need to demonstrate legitimate reasons and to comply with the principle of proportionality. The human right to equal treatment can be relied upon to challenge differential 40a treatment of different migrant categories within immigration law, such as asymmetric provisions for those with refugee status and subsidiary protection or the distinct treatment of different countries of origin. Again, it remains difficult to distil clear patterns from the case law as to when judges accept an objective and reasonable justification.190 While the ECtHR rejected justification at times,191 it recognised, on other occasions, legitimate 184 See ECtHR, judgment of 30 September 2003, No 40892/98, Koua Poirrez v. France, paras 46–49; and ECtHR, judgment of 21 June 2011, No 5335/05, Ponomaryovi et al. v. Bulgaria, paras 52–55 after having reaffirmed the ‘weighty reasons’ formula. 185 ECtHR, judgment of 21 Jun 2011, No 5335/05, Ponomaryovi et al. v. Bulgaria, para 54; and ECtHR, judgment of 27 November 2011, No 56328/07, Bah v. the United Kingdom, paras 47, 49; on the constitutional background, see Croon-Gestefeld, Reconceptualising European Equality Law. A Comparative Institutional Analysis (Hart, 2017), ch. 4. 186 See ECtHR, decision of 15 January 2019, No 37115/11, Yeshtla v. the Netherlands; and the parallel decisions in Said (No 34299/14); Heerawi (No 36558/14); Aghmadi (Nos 70475/14 & 70530/14); and A.D. (No 71815/14 & 71827/14); for comments, see Cousins, ‘The European Convention on Human Rights and Residence Requirement for the Purposes of Social Assistance Benefits’, EJML 21 (2019), p. 541, 544–547. 187 ECtHR, judgment of 27 November 2011, No 56328/07, Bah v. the United Kingdom, para 47. 188 See ECtHR, judgment of 27 November 2011, No 56328/07, Bah v. the United Kingdom, paras 45, 47; and the overview by Harris/O’Boyle/Bates/Buckley, Law of the European Convention on Human Rights, 4th edn (OUP, 2018), p. 776–790; see also Groenendijk, Third Country Nationals, p. 81–82. 189 For a comparative overview, see Saroléa, Droits de l’homme et migrations (Bruylant, 2006), p. 483–598; for international practice, see Ippolito, ‘Le migrant confronté aux discriminations selon l’origine’, in: Goodwin-Gill/Weckel, 21st Century, p. 245–263; and Vandenhole, Non-Discrimination and Equality in the View of the UN Treaty Bodies (Intersentia, 2005), p. 92–95. 190 For rich analyses, see Bribosia, Les politiques d’intégration, p. 55–61; 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, 36–41. 191 See ECtHR, judgment of 6 November 2012, No 22341/09, Hode & Abdi v. the United Kingdom, paras 42–56, while noting, in para 47, that strict scrutiny was justified by the involuntary nature of the flight of refugees and those with subsidiary protection.

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Legal Framework for EU Immigration Policy

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.’192 The Grand Chamber also found the condition of inter-state reciprocity to justify unequal access in cross-border scenarios when states grant nationals reciprocal privileges.193 Similarly, the ECJ rejected domestic rules differentiating between refugees status and subsidiary protection in scenarios where secondary legislation signalling equal treatment overlapped with human rights,194 while concluding with regard to asylum seekers ‘that the nationality of the applicant for asylum is an element which may be taken into consideration to justify the prioritised or accelerated processing of an asylum application.’195 Hesitation on the part of judges can be interpreted as an attempt not to curtail legislative choices, which may grant equal treatment in the absence of a constitutional prescription to do so.196 41 Secondary legislation on legal migration embraces intricate statutory guarantees for equal treatment, 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. They will be discussed in the chapters to this Commentary, highlighting the idiosyncratic nature of the provisions, whose scope varies considerably. Each instrument states to which areas it does (not) apply.197 The ECJ emphasised in an early judgment that it stands ready to scrutinise potential exceptions in light of human rights.198 However, later judicial practice did not take up this position of principle, which does not come as a surprise considering that human rights do not necessarily command equal outcomes (see above MN 38–40a). Instead, the ECJ concentrates on the statutory interpretation in light of the wording, general scheme or the telos of the equal treatment provisions in secondary legislation. In doing so, judgments emphasised that exceptions to the equal treatment have to be interpreted strictly and that derogations have to be states clearly in domestic laws;199 it remains nebulous, however, how the clear statement requirement can be fulfilled for pre-existing laws (see Thym, Long-Term Residents Directive 2003/ 109/EC, Article 11 MN 3a). The ECJ also accepts the idea that Member States can justify unequal treatment whenever situations are not comparable even in the absence of an explicit exception in secondary legislation, although the practice is not uniform in this respect and tends to reject the argument with regard to the facts at

192 ECtHR, judgment of 25 March 2013, No 38590/10, Biao v. Denmark, para 94 (overturned on other grounds by the Grand Chamber later) reiterating an argument that had been originally put forward in ECtHR, judgment of 28 May 1985, Nos. 9214/80 et al., Abdulaziz, Cabakes & Balkandali v. the United Kingdom, para 88. 193 See ECtHR, judgment of 16 March 2010 [GC], No. 42184/05, Carson et al. v. the United Kingdom, para 88. 194 See ECJ, Alo & Osso, C-443/14 & C-444/14, EU:C:2016:127, paras 54–63 with regard to Article 33 Asylum Qualification Directive 2011/95/EU; and ECJ, Ayubi, C-713/17, EU:C:2018:929, paras 19–34 for Article 29 Asylum Qualification Directive. 195 ECJ, D. & A., C-175/11, EU:C:2013:45, para 73; see also AG Kokott, K & A, C-153/14, EU: C:2015:186, para 20. 196 See Muir, EU Equality Law. The First Fundamental Rights Policy of the EU (OUP, 2018), ch. 4. 197 For an overview, see Verschueren, ‘Employment and Social Security Rights of Third-Country Labour Migrants under EU Law’, EJML 18 (2016), p. 373, 380–398; and Brinkmann, ‘Gleichbehandlung von Drittstaatsangehörigen nach den EU-Migrationsrichtlinien’, in: Beichel-Benedetti/Janda (eds), Hohenheimer Horizonte. Festschrift für Klaus Barwig (Nomos, 2018), p. 101, 104–111. 198 Cf. ECJ, Kamberaj, C-571/10, EU:C:2012:233, paras 76–81; later judgments did not follow that model when, for instance, ECJ, Martinez Silva, C-449/16, EU:C:2017:485, para 29 oblige Member States to lay down exceptions explicitly in domestic law without indicating scrutiny in light of human rights. 199 See ECJ, Kamberaj, C-571/10, EU:C:2012:233; paras 86–87; and ECJ, Istituto Nazionale della Previdenza Sociale, C-303/19, EU:C:2020:958, para 23.

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Chp. 7 hand.200 That option of justification extends to scenarios in which the Refugee Convention prescribes domestic treatment,201 whose meaning is, somewhat surprisingly, not discussed extensively in the academic literature insofar as optional justification is concerned.202 It is well known that Union law played a crucial role in advancing non-discrimina- 41a tion policies in the Member States by means of 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.203 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.204 By contrast, the Anti-Discrimination Directives – unlike the Charter of Fundamental Rights – do not apply directly to immigration law sensu stricto, as explicitly laid down in an express exemption that 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.’205 In other words, immigration law is not subject to the Anti-Discrimination Directives, which, nevertheless, are an important factor influencing migrant integration in terms of equal treatment in diverse areas, such as employment law, social housing, education and other public services.206 Generosity on the past of judges could possibly by overcome if applicants 42 succeeded in branding distinctions among status groups as (in)direct race discrimination, which has long been recognised as a suspect ground requiring strict scrutiny. The argument had been brought forward repeatedly, taking up the rich American tradition on racial equality.207 A classic example is the distinction between the ‘white’ and ‘black list’ of countries on visa requirements for short term visits to the Schengen area laid down in the annexes to Visa List Regulation (EU) 2018/1806.208 The criticism has not been taken up by the ECtHR and the ECJ in judgment on similar scenarios: differential treatment of different countries of origin does not constitute discrimination on grounds of race or ethnic origin.209 Similarly, the International 200 See ECJ, Ayubi, C-713/17, EU:C:2018:929, paras 30–34; and ECJ, Istituto Nazionale della Previdenza Sociale, C-303/19, EU:C:2020:958, paras 32–35. 201 See ECJ, Alo & Osso, C-443/14 & C-444/14, EU:C:2016:127, paras 55–64 with regard to Article 33 Asylum Qualification Directive 2011/95/EU, which corresponds to Article 23 Refugee Convention. 202 Cf. Hathaway, The Rights of Refugees under International Law (CUP, 2005), p. 234–236; and Lester, ‘Article 23’, in: Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees. A Commentary (OUP, 2011), MN 38; see also Carlier, ‘Droit d’asile et des réfugiés: de la protection aux droits’, Recueil des cours 332 (2007), p. 9, 270–287. 203 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). 204 See Muir, EU Equality Law. The First Fundamental Rights Policy of the EU (OUP, 2018), ch. 5; and Guild, The Legal Elements of European Identity (Kluwer, 2004), ch. 11. 205 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); see also ECJ, Land Oberösterreich, C-94/20, EU:C:2021:477, paras 51–53. 206 See Muir, ‘Enhancing the Protection of Third Country Nationals against Discrimination’, Maastricht Journal of European and Comparative Law 18 (2011), p. 136, 147–155. 207 See Dembour, ‘Still Silencing the Racism Suffered by Migrants…’, EJML 11 (2009), p. 221–234; and Benedí Lahuerta, ‘Race Equality and Third Country Nationals’, ELJ 15 (2009), p. 738–756. 208 See Heijer den, ‘Visas and Non-Discrimination’, EJML 20 (2018), p. 470–489; and Bast/von Harbou/ Wessels, Human Rights Challenges, sect. 4.2. 209 See ECtHR, judgment of 28 May 1985, Nos. 9214/80 et al., Abdulaziz, Cabakes & Balkandali v. the United Kingdom, paras 85–86 ; ECJ, Kamberaj, C-571/10, EU:C:2012:233, paras 48–50; and the multiple other judgments mentioned previously which did not even consider the argument.

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Legal Framework for EU Immigration Policy

Court of Justice rejected a more generous interpretation of the Committee on the Elimination of All Forms of Racial Discrimination when it found expulsions of and travel restrictions for certain nationalities not to amount to direct or indirect discrimination on grounds of ethnic origin or race.210 Judges in Europe seem to prefer the more flexible general equal treatment standards instead,211 possibly reflecting the specific European experience.212 In two judgments concerning immigration law and financial services, the ECJ refused to classify reliance on the place of birth or language requirements as indirect racial discrimination incompatible with the Racial Equality Directive 2000/43/EC or the prohibition of discrimination in Article 21 of the Charter.213 That conclusion about the relative unimportance of discrimination on grounds of race and ethnic original for EU migration law was not fundamentally reversed by the Biao judgment, in which the Grand Chamber of the ECtHR concluded that distinct family reunification rules for Danish citizens who had been naturalised as opposed to other nationals amounted to discrimination on grounds of ethnic origin, since the government had relied on ‘speculative arguments’ and ‘prevailing social prejudice.’214 That verdict was representative of the European approach insofar as ECtHR and ECJ judgments on racial discrimination tend to focus on the intention behind unequal treatment rather than its effects, as the post-colonial and feminist critique would hold215 (and judges do themselves in other respects216). For the time being, the case law does not to treat migration status as an immutable (racial) characteristic warranting strict scrutiny (see above MN 40–40a).

4. ‘Public Policy’ Exception 42a

The ‘public policy’ exception is a core component of EU immigration and asylum legislation. It features prominently in most legislative instruments, allowing Member States to refuse or withdraw a residence permit even if the other requirements are met (by way of example see Article 5(1)(f) and Article 9(3)(a) Blue Card Directive 2008/50/ EC as well as Article 24(1) Asylum Qualification Directive 2011/95/EU). These provisions did not come out of the blue. The ‘public policy’ (or: ‘public order’217) exception had been well established long before the justice and home affairs instruments were adopted. It has been an essential component of free movement in the single market ever since the Treaty of Rome. There is, hence, a body of settled case law on the abstract meaning of ‘public policy’ and its application to Union citizens under Articles 21, 45, 49 and 62 TFEU and the Free Movement Directive 2004/38/EC. Interpretation of the 210 See IGH, judgment of 4.2.2021, No. 172, ICJ Reports 2021, forthcoming, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), paras 71-105, 109–113. 211 Cf. Bribosia, Les politiques d’intégration, p. 61–64. 212 For contextual reasons, see Möschel, Law, Lawyers and Race. Critical Race Theory from the United States to Europe (Routledge, 2014), p. 81–109. 213 See ECJ, Jyske Finans, C-668/15, EU:C:2017:278, paras 17–21; and ECJ, Land Oberösterreich, C-94/ 20, EU:C:2021:477, paras 55–56, 63; for a critical position, see Atrey, ‘Race Discrimination in EU law after Jyske Finans’, CML Rev. 55 (2018), p. 625, 634–639. 214 ECtHR, judgment of 24 May 2016, No 38590/10, Biao v. Denmark, paras 125–126; for comments, see De Vries, ‘Rewriting Abdulaziz’, EJML 18 (2016), p. 467–479. 215 See Fredman, ‘Substantive Equality Revisited’, ICON 14 (2016), p. 712–738; and McColgan, Discrimination, Equality and the Law (Hart, 2016), ch 1 216 See Barskanmaz, Recht und Rassismus. Das menschenrechtliche Verbot der Diskriminierung aufgrund der Rasse (Springer, 2019), chs 9–11. 217 The French notion of ‘ordre public’ was not uniformly translated in free movement and migration law throughout the decades.

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Chp. 7 ‘public policy’ exception raised the question to what extent similar provisions in different fields of Union law have to be interpreted in a parallel manner (see Thym, Constitutional Framework, MN 18). While the issue caused some controversy, both during the legislative process218 and with regard to judicial interpretation,219 the ECJ gradually developed a common line. In essence, the ECJ opted for a mixed solution. It referred to the definition of public 42b policy in the context of the single market and Union citizenship, thereby highlighting the uniform meaning of ‘public policy’ in the supranational legal order as starting point of the interpretative exercise.220 On one occasion it stated generically that ‘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.’221 Closer inspection demonstrates, however, that the Court’s position is less straightforward than the idea of parallel interpretation suggests. The underlying argument is explained best under recourse to the Ziebell judgment, in which judges found statutory prescriptions in the Citizenship Directive 2004/38/EC not to be applicable to similarly worded provisions regarding Turkish nationals (see below MN 60); Union citizenship transcends the supposedly purely economic rationale of the association agreement, thereby discontinuing the parallelism which had defined much of the previous case law on Turkish nationals.222 In other words, similar or identical terminology can be given a distinct interpretation in light of other criteria.223 concepts may overlap to start with but allow for differentiation in the interpretative exercise. The initial case law on border controls, visa, immigration and asylum policy 42c remained ambiguous, until the Court of Justice developed a general pattern (see below MN 42d).224 In T., it recognised that the rationale of the public security exception in the Qualification Directive differed from the Citizenship Directive, without, however, deducting any consequences from that distinction in the cast at hand.225 By contrast, the ECJ appeared to advance parallel interpretation in three judgments concerning the Return Directive insisting on an individualised assessment, although the precise implications were not discussed besides some indications that rules for Union citizens may be stricter.226 This line of imprecise verdicts was followed in a judgment on the 218 Particularly controversial were the provisions on long-term residents, for which the Commission had originally proposed language mirroring the rules on Union citizens only to be opposed by the Council; see Thym, Long-Term Residents Directive 2003/109/EC, Article 6 MN 3–4. 219 See Eisele, ‘Public Security and Admission to the EU of Foreign Students’, CML Rev. 55 (2018), p. 279, 288–293; and on domestic standards beforehand Schmid-Drüner, Der Begriff der öffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewählter EU-Mitgliedstaaten (Nomos, 2007). 220 On the detention of asylum seekers see ECJ, N, C-601/15 PPU, EU:C:2016:84, paras 66–67; on returns ECJ, Zh. & O., C-554/13, EU:C:2015:377, para 50; ECJ, E, C-240/17, EU:C:2018:8, paras 48–49; on students ECJ, Fahimian, C-544/15, EU:C:2017:255, para 39. 221 ECJ, T., C-373/13, EU:C:2015:413, paras 77–78. 222 See ECJ, Ziebell, C-371/08, EU:C:2011:809, paras 60–73; similarly on ‘passive’ service recipients, ECJ, Demirkan, C-221/11, EU:C:2013:583; see also Thym, ‘Constitutional Foundations of the Judgments on the EEC-Turkey Association Agreement’, in: Thym/Zoeteweij-Turhan, Rights of Third Country Nationals, p. 13, 16–24. 223 In relation to Turkish nationals, this followed a well-established pattern of the case law on the use of terminology in international agreements ever since ECJ, Polydor, 270/80, EU:C:1982:43, paras 15–18. 224 Judgments defining abstract standards were delivered a less than a year after the publication of Thym, Bird’s Eye View, p. 179–183, which had shown the horizontal fuzziness of the Court’s approach and made a proposal how to rationalise the case law. 225 See ECJ, T., C-373/13, EU:C:2015:413, paras 77–79 under reference to a recital that membership in a terrorist organisation is sufficient to meet the ‘public policy’ threshold, which – unlike the recital – requires an individualised assessment for Union citizens. 226 See ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:511, paras 42–44; and ECJ, E, C-240/17, EU: C:2018:8, paras 48–49 stating that the individualised assessment could consider criminal behaviour which

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withdrawal of long-term resident status. In two short paragraphs, a small chamber of three judges, in López Pastuzano, referred to the Ziebell judgment, which had distinguished the status of Turkish nationals from citizens’ rights, without stating as to when the public policy formula can be applied in a differentiated manner.227 In a remarkable sign to the contrary, the Grand Chamber granted national authorities wide discretion when rejecting student visas in sensitive areas related to terrorism. The Fahimian judgment defined ‘public security’ under recourse to citizenship case law and commanded an individualised assessment, while stating – in direct contrast to Article 27(2) Citizenship Directive 2004/38/EC – that the latter need not be based on the personal conduct of the applicant.228 The divergence from the freedom-enhancing rationale of the citizenship case law was reinforced by another Grand Chamber judgment in Rendón Marín, decided a few months earlier, which had elevated the obligation to consider personal conduct to the rank of primary law for the purposes of Union citizenship.229 Migration law towards third country nationals differs. 42d In December 2019, the ECJ adopted a generic position on how to combine a uniform meaning of the ‘public policy’ exception with sector-specific outcomes in two cases concerning the Schengen Borders Code and the Family Reunification Directive. Mirroring the line of argument in the Ziebell judgment (see above MN 42b), judges emphasised that the meaning of ‘public policy’ shall have a parallel meaning for Union citizens and third country nationals to start with, even though the interpretative exercise may support differentiated outcomes.230 In order to determine the legislation-specific meaning, the ECJ considers it ‘necessary … to take into account the wording of th [e] provision, its context and the objectives pursued by the legislation of which it forms part.’231 We need to assess, in other words, the abstract concept of ‘public policy’ in light of interpretative criteria, which generally define the ECJ’s approach to statutory interpretation (see Thym, Constitutional Framework, MN 10). The different chapters to this Commentary will consider the exact meaning of the legislation-specific ‘public policy’ exception.

5. Migrant Integration 43

The EU legislature holds the competence to incorporate rules on the integration of migrants into host societies in secondary legislation (see above MN 25). Moreover, the EU institutions have agreed, together with Member States, on several instruments promoting national integration policies, amongst others through the Common Basic Principles for Immigrant Integration Policy (see above MN 24). The meaning and purpose of integration policies was discussed controversially at the national and the had not yet resulted in a verdict, unlike in free movement cases; as well as ECJ, K.A. et al., C-82/16, EU: C:2018:308, paras 90–94 regarding third country national family members of Union citizens, in relation to which judges found an entry ban under the Return Directive not to automatically justify the rejection of a residence permit, since citizens’ rights ‘must be interpreted strictly’. 227 ECJ, López Pastuzano, C-636/16, EU:C:2017:949, paras 26–27 followed Union citizenship by prohibiting automatic rejection based on criminal convictions, while emphasising that the individualised assessment follows Art. 12.3 Directive 2003/109/EC, which is based on ECtHR case law, not the ECJ’s citizenship rulings. 228 ECJ, Fahimian, C-544/15, EU:C:2017:255, paras 40, 44–46 together with a partial reversal of the burden of proof and an obligation (!) of domestic courts to limit judicial review to manifest errors. 229 See ECJ, Rendón Marín, C-165/14, EU:C:2016:675, paras 81–87 for situations when the Citizenship Directive does not apply; and Neuvonen, ‘EU Citizenship and its “Very Specific” Essence: Rendón Marin and CS’, CML Rev. 54 (2017), p. 1201, 1215–1216. 230 See ECJ, E.P., C-380/18, EU:C:2019:1071, paras 29–32. 231 ECJ, E.P., C-380/18, EU:C:2019:1071, para 33; and the parallel judgment ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, paras 53–55.

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Chp. 7 European level during the first phase of legislative harmonisation and continues to be a bone of contention (see below MN 44). EU primary law does not opt for a distinct integration concept for third country nationals. In particular, it does not oblige the legislature to follow the model of Union citizenship when adopting rules for third country nationals (see above MN 33–36). The inherent thematic breadth of the concept of migrant integration, which may concern diverse policy fields such as the labour market, education or culture,232 requires political choices about the relative weight of different aspects (see above MN 4). 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 not to lay down detailed benchmarks in EU legislation (see above MN 7) or to limit supranational legislation to abstract prescriptions, thereby allowing Member States to decide upon appropriate standards domestically. Among experts of immigration and asylum law, there was a widespread assumption 44 that the European Union would replicate, with regard to third country nationals, the historic model of cross-border mobility and equal treatment for Union citizens (see above MN 33a), in line with the initial political commitment by heads of state or government at the European Council in Tampere (see above MN 36). During the legislative debate, a different mindset started dominating the agenda. Member States in the Council watered down initial Commission proposals. The EU legislature introduced stricter conditions for residence permits, including optional integration requirements,233 notably in the Family Reunification Directive (see Bornemann/Klarmann, Directive 2003/86/EC, Article 7 MN 22–29) and the Long-Term Residents Directive (see Thym, Directive 2003/109/EC, Article 5 MN 13–17). Ever since the mid2000s, there was a seemingly ubiquitous trend in the domestic immigration laws of many Member States towards the proliferation of different versions of integration requirements, including citizenship tests and pre-departure language requirements,234 of which EU legislation formed an integral part. Generally speaking, we may distinguish between ‘implicit’ and ‘explicit’ integration 44a provisions.235 While implicit integration requirements do not use the term ‘integration’, they are a traditional component of domestic immigration laws, which rely on proxies for migrant integration, such as economic self-sufficiency, the length of stay or the absence of extensive criminal convictions. Moreover, most directives on legal migration and beneficiaries of international protection guarantee equal treatment in diverse domains for those covered by their scope, thereby complementing restrictive integration requirements with supportive guarantees (see above MN 39). These ‘implicit’ integration provisions are less controversial. By contrast, ‘explicit’ rules that employ the term ‘integration’ were highly contentious during the legislative process and continue dominating many domestic and supranational debates, in particular when it comes to language requirements. 232 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), p. 145, 151–162. 233 For an overview, see Mourão Permoser, Redefining Membership, p. 2543–2545; and Carrera, In Search, ch. 4. 234 See Goodman, Immigration and Membership Politics in Western Europe (CUP, 2014); Jesse, Civic Citizens, ch. 3; the contributions to Guild/Groenendijk/Carrera (eds), Illiberal Liberal States. Immigration, Citizenship and Integration in the EU (Ashgate, 2009); and Joppke, ‘Comparative Citizenship. A Restrictive Turn in Europe?’, Journal of Law and Ethics of Human Rights 2 (2008), p. 1–41. 235 See Adam/Thym, ‘Integration’, in: De Bruycker/De Somer/De Brouwer (eds), From Tampere 20 to Tampere 2.0. Towards a new European consensus on migration (EPC, 2019), p. 73, 75; and Jesse, Civic Citizens, chs 4–9.

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At an analytical level, we may distinguish three approaches to migrant integration, which accentuate distinct features for analytical purposes, while overlapping in practice.236 Firstly, the historic model of immigrant assimilation to the structural specificities and the way of live of host societies,237 which, in the European context, often coincided with statist conceptions of ethno-cultural closure. Secondly, a rights-based approach concentrating on equal treatment as an end in itself irrespective of the actual degree of social integration, mirroring the traditional emphasis on domestic treatment in the legislation and the case law on Union citizenship (see above MN 28), in relation to which the ECJ has recently emphasised broader elements of social affiliation transcending the traditional residence-based model.238 Thirdly, an intermediate position emphasised the significance of social affiliation in law and practice beyond abstract equal treatment. Knowledge of the language of the host society can be perceived, for instance, as a catalyst for wider social affiliation. This threefold pattern differs from many legal accounts, which often present integration requirements as a proxy for classic nationalism and ethno-cultural closure,239 even though social affiliation should not be confused with assimilation. European societies change in response to migration; integration is a ‘continuous two-way process of mutual accommodation, not a static outcome.’240 It is possible to defend explicit and implicit integration requirements as instruments for the normative reconfiguration of European societies, which accept and welcome migrants as equal members of society partaking in the constant reconstruction of collective identities.241 46 In its case law on Article 8 ECHR (see below MN 52–56), the ECtHR has accentuated the significance of social integration in recent years, emphasising that the ‘solidity of social, cultural and family ties with the host country and with the country of [origin]’242 influences the proportionality assessment. It put this position into effect on numerous occasions and in parallel to the emerging debate about migrant integration at national and European level, thereby highlighting that human rights law can embrace social affiliation (see above MN 45) in terms of language skills, education or economic activity as an integral part of the proportionality assessment.243 To do so did not 45

236 Generally, see Groenendijk, ‘Legal Concepts of Integration in EU Migration Law’, EJML 6 (2004), p. 111–126; Motomura, Americans in Waiting. The Lost Story of Immigration and Citizenship in the United States (OUP, 2006); and Song, ‘Three Models of Civic Solidarity’, in: Smith (ed), Citizenship, Borders, and Human Needs (University of Pennsylvania Press, 2011), p. 192–207. 237 The concept was dominant in the US integration literature until the 1960s; see Gordon, Assimilation in American Life. The Role of Race, Religion, and National Origins (OUP, 1964). 238 See Thym, ‘The Evolution of Citizens’ Rights in Light of the EU’s Constitutional Development’, in: Thym, Questioning EU Citizenship, p. 111–134; Thym, ‘The Elusive Limits of Solidarity’, CML Rev. 52 (2015), p. 17, 34–39; and Barbou des Places, ‘The Integrated Person in EU Law’, in: Azoulai et al. (eds), Constructing the Person (Hart, 2016), p. 179–202. 239 Cf. Jesse, Civic Citizens, ch. 2; 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; Farahat, Progressive Inklusion (Springer, 2014), ch. 4; Carrera, In Search, p. 440–448; and Kostakopoulou/Carrera/Jesse, ‘Doing and Deserving’, in: Guild et al. (eds), Illiberal Liberal States (Ashgate, 2009), p. 167, 179–186. 240 See the Common Basic Principle No 1 for Immigrant Integration Policy, Council doc. 14615/04 of 19 November 2004. 241 Cf. Joppke, Citizenship and Immigration (Polity Press, 2010), ch. 4; Waldron, ‘What Respect is Owed to Illusions about Immigration and Culture?’, NYU School of Law Public Law Research Paper No. 16–49/2016; Scheffler, ‘Immigration and the Significance of Culture’, Philosophy & Public Affairs 35 (2007), p. 3–125; Thym, ‘Citizens and Foreigners in EU Law’, ELJ 22 (2016), p. 296, 313–315. 242 ECtHR, judgment of 18 October 2006 [GC], No 46410/99, Üner v. the Netherlands, para 58; see also ECtHR, judgment of 23 June 2008 [GC], No 1638/03, Maslov v. Austria, para 71. 243 See Thym, Residence as de facto Citizenship?, p. 138–143; Hilbrink, Adjudicating the Public Interest (Vrije Universiteit Amsterdam, 2017); and Murphy, ‘The Concept of Integration in the Jurisprudence of the European Court of Human Rights’, EJML 12 (2010), p. 23, 27–31.

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Chp. 7 dismantle the protective credentials of the earlier jurisprudence. States have to justify their decisions on a case-by-case basis and judges may still find a violation. Nevertheless, the case law reconfirms that the gradual reconfiguration of the predominant normative benchmark for migrant integration towards social affiliation.244 In its first judgment on the Family Reunification Directive, the ECJ noted that ‘the 47 concept of integration is not defined’ in the Directive and must be applied, nonetheless, by Member States in conformity with human rights245 – a statement that was perceived as a move towards the equality-based perception of integration (see above MN 45).246 Nevertheless, later developments pointed in a different direction. In two seminal judgments, the ECJ embraced a broader conceptualisation of migrant integration by stating, in the context of both the Long-Term Residents Directive and the Family Reunification Directive, that the acquisition of language skills (if necessary by means of a mandatory test) ‘greatly facilitates communication [between migrants and the host society] … 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.’247 Other judgments have reinforced the trend towards social affiliation.248 That is not to say, crucially, that Member States can do as they please. Overall, the case law fluctuates between different conceptualisations of the integration yardstick.249 For instance, judges obliged Member States to introduce a hardship clause in national legislation that allows for exceptions from mandatory language tests in light of individual circumstances, such as age, level of education, health or the availability of language courses.250 In a symbolically important judgment on the relocation of asylum seekers, the ECJ highlighted that ‘considerations relating to the ethnic origin of applicants for international protection cannot be taken into account since they are clearly contrary to EU law and, in particular, to Article 21 [of the Charter].’251 This reaffirms earlier findings that social affiliation need not be equated with nationalistic closure (see above MN 45), since it can be combined with a rejection of harmful xenophobia.252

6. Prohibition of 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.253 244 See Thym, ‘Supranational Courts in Europe. A Moderately Communitarian Turn in the Case Law on Immigration and Citizenship’, JEMS 47 (2021), sect. II.2 (forthcoming). 245 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, para 70. 246 See Iglesias Sánchez, Constitutional Identity, p. 1807–1814. 247 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 did 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; for further comments, see Thym, ‘Towards a Contextual Conception of Social Integration’, EJML 18 (2016), p. 89–111. 248 See De Vries, ‘The Integration Exception. A New Limit to Social Rights of Third-Country Nationals in EU Law?’, in: Thym, Questioning EU Citizenship, p. 267–286. 249 See also Lang, ‘Social Integration. The Different Paradigms for EU Citizens and Third Country Nationals’, European Papers 3 (2018), p. 663–692. 250 See ECJ, K & A, C-153/14, EU:C:2015:453, paras 56 et seq. 251 ECJ, Slovak Republic & Hungary v. Council, C-643/15 & C-647/15, EU:C:2017:631, para 305. 252 Similarly, see Barbou des Places, ‘L’empreinte des nationalismes sur le droit de l’immigration de l’Union européenne’, Revue trimestrielle de droit européen (2018), p. 725, 730–734. 253 See Azoulai, ‘Le droit européen de l’immigration, une analyse existentielle’, Revue trimestrielle de droit européen (2018), p. 519, 528–529; and Moreno-Lax, Accessing Asylum in Europe (OUP, 2017), pp. 461–478

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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 general principle of abuse has a more specific meaning in the EU context. In contrast to frequent political usage, the legal concept of abuse does not concern unsuccessful claims. It has a more defined meaning and narrower field of application. It was developed by the ECJ in the field of tax law and with regard to economic market regulation as an unwritten general principle of Union law.254 This case law built on wider notions of ‘abuse’ well-known in many civil law jurisdictions; it can be compared to common law-style ‘estoppel’. It applies in scenarios in which state authorities would normally be required to accept the conduct of individuals. As a legal argument, abuse authorises Member States to sanction behaviour formally observing the conditions laid down in EU law.255 While it extends to immigration and asylum law as a matter of principle, detailed statutory prescriptions entail a lesser relevance of general principles to fill statutory lacunae. 49 The underlying rationale is simple, even though it can be notoriously difficult to operationalise: those abusing a right are barred from invoking a guarantee that would normally apply. In the case law of the ECJ, such negative consequences ‘require, first, a combination of objective circumstances in which, despite formal observance of the conditions in secondary legislation, the purpose 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.’256 Practical difficulties in applying the ‘abuse’ benchmark stem from the inherent vagueness what kind of behaviour contradicts the objective of a rule whose requirements have been formally met.257 It 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.258 In a case on secondary movements, the ECJ found explicitly that – notwithstanding the wider political usage of the term ‘abuse’ – the legal principle does not apply to the detriment of those using an option explicitly given to them by Union law in full awareness of seemingly ‘abusive’ practices. It is not legally abusive to file multiple asylum claims, to delay an application or to appeal against a negative decision even if the probability of success is small.259 Domestic authorities can sanction non-cooperation or reject applications under the conditions put forward in secondary legislation, but that does not render the individual behaviour legally ‘abusive’.

254 See Vogenauer, ‘An Emerging General Principle of EU Law’, in: de la Feria/ibid. (eds), Prohibition of Abuse of Law (Hart, 2011), p. 521–572. 255 Note that Article 17 ECHR has a limited scope regarding antidemocratic behaviour; the narrow reach of that provision need not prevent recourse to general principles which are unwritten in most domestic legal orders and supranational EU law. 256 ECJ, O. & B., C-456/12, EU:C:2014:135, para 58 in a case concerning Union citizenship; 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. 257 See Vogenauer, ibid., p. 530–545; and Guski, ‘The Re‐Entry Paradox’, ELJ 24 (2018), p. 422, 427–430. 258 See ECJ, McCarthy et al., C-202/13, EU:C:2014:2450, paras 52–57 in a case concerning Article 35 Citizenship Directive 2004/38/EC. 259 See ECJ, The International Protection Appeals Tribunal et al., C-322/19 & C-385/19, EU:C:2021:11, paras 86–93.

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Chp. 7 IV. Human Rights and International Law EU immigration law is firmly embedded in the constitutional framework of the EU 50 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, with regard to validity or where it is interpreted in conformity with human rights. While the EU institutions must respect the Charter always, the Member States are bound only when implementing Union law (see Thym, Constitutional Framework, MN 47–48). With regard to specific legal questions, 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 in all scenarios (see Thym, Constitutional Framework, 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 Thym, Constitutional Framework, MN 45–55). On the basis of these general principles, this section concentrates on the human rights dimension of EU instruments on immigration discussed in this chapter. Other chapters elaborate on the human rights requirements for entry and border controls, including extraterritorial jurisdiction and detention (see Thym, Legal Framework for Entry and Border Controls, MN 32–46) and asylum policy, in particular non-refoulement obligations (see Thym, Legal Framework for EU Asylum Policy, MN 47–63a). Procedural guarantees, including data protection, are an overarching theme (see Thym, Constitutional Framework, MN 37–37 f).

1. ECHR and the Charter In comparison to asylum, there are few human rights constraints for legal migra- 51 tion; first entry for purposes of legal migration is an area of largely unfettered state discretion (see Thym, Legal Framework for Entry and Border Controls, MN 32–34). While the right to private and family life exercises some constraints (see below MN 52), Article 15(3) of the Charter indirectly reaffirms that access to the labour market is not significantly affected by the human rights, since the Charter pledges as equal working conditions only to those ‘who are authorised to work’ (see above MN 34). This underscores a general finding. In the field of legal migration, those residing in Europe can invoke more rights than third country nationals seeking entry: 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 (see above MN 37–42). Civil rights, such as freedom of expression, are typically available to everybody irrespective of residence status. 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 Thym, Constitutional Framework, MN 50). a) Private and Family Life. Article 8 ECHR, which corresponds to Article 7 of the 52 Charter,260 is the most important human 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 260

On parallel interpretation, see ECJ, McB., C-400/10 PPU, EU:C:2010:582, para 53.

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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 on the doctrine of positive obligations to request state action in support of the individual.261 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). Following the assumption that states have ‘as a matter of well-established international law … [the right] to control the entry, residence and expulsion of aliens’ (see Thym, Legal Framework for Entry and Border Controls, MN 32), it does not come as a surprise that judges in Strasbourg have been reluctant to deduce admission rights from Article 8 ECHR. Most claims have been dismissed, 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.’262 To this date, only a handful of applications claiming admission for purposes of family reunification , which had not been resolved domestically on the basis of national rules or the Family Reunification Directive 2003/86/EC,263 have been successful.264 52a When applying Article 8 ECHR to admission cases, the ECtHR has recourse to a set of abstract criteria whose application will vary according to the particular circumstances of the persons involved and the general interest.265 Judges will consider the degree of connections with the countries in which family members are living and whether family unity was discontinued as a conscious decision.266 In situations of ‘insurmountable obstacles’ or ‘major impediments’ to unite the family in a third state, the ECtHR is more inclined to favour family reunification,267 especially to the benefit of refugees,268 even though judges have accepted situations in which families were refused reunification, also when young children were involved.269 In addition to public interests

261 It should be noted, however, that the ECtHR is not always consistent in distinguishing between negative interferences and positive obligations; 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. 262 Settled case law, ever since 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. 263 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. 264 See in particular ECtHR, judgment of 21 December 2000, No 31465/96, Şen v. the Netherlands; ECtHR, judgment of 1 December 2005, No 60665/00, Tuquabo-Tekle et al. v. Netherlands; ECtHR, judgment of 14 June 2011, No 38058/09, Osman v. Denmark; and ECtHR, judgment of 8 November 2016, No 56971/10, El Ghatet v. Switzerland, paras 48–53. 265 See ECtHR, judgment of 3 October 2014 [GC], No 12738/10, Jeunesse v. the Netherlands, paras 100–105; and ECtHR, decision of 8 March 2016, No 25960/13, I.A. A. et al. v. the United Kingdom, paras 38–41. 266 See ECtHR, judgment of 8 November 2016, No 56971/10, El Ghatet v. Switzerland, para 45. 267 See ECtHR, judgment of 1 December 2005, No 60665/00, Tuquabo-Tekle et al. v. Netherlands, para 44; and Czech, ‘Das Recht auf Familienzusammenführung nach Art. 8 EMRK in der Rechtsprechung des EGMR’, Europäische Grundrechte-Zeitschrift (2017), p. 229, 232–236. 268 See ECtHR, judgment of 10 July 2014, No 2260/10, Tanda-Muzinga v. France, paras 69, 74–76. 269 Cf. ECtHR, judgment of 30 July 2013, No 948/12, Berisha v. Switzerland; 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.

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Chp. 7 like income requirements or security concerns after criminal behaviour,270 the ECtHR emphasised the best interests of the child as an integral part of the balancing exercise (see below MN 56–58) with a particular focus on the age, the situation in countries of origin and the degree of dependency on parents.271 On the whole, it is difficult to discern clear patterns from the case law besides the trend to find a human right to family reunification only in exceptional scenarios (see above MN 52).272 The ECJ integrated the position of the ECtHR into the EU legal order, which, nonetheless, establishes a higher level of protection on the basis of statutory guarantees in the Family Reunification Directive (see below MN 55).273 Protection against expulsion of foreigners residing in Europe continues to be the 53 backbone of the ECtHR’s immigration case law, although it 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.274 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.’ The ECtHR developed a set of criteria guiding the proportionality assessment and requires states to strike a fair balance on the basis of: 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 (see below MN 55); 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.275 If a foreigner was born in the host country or moved there in his young childhood, the Court limits its assessment to first three criteria, thereby effectively extending the degree of protection.276 In assessing specific scenarios, the Member

270 See Hilbrink, Adjudicating the Public Interest. A Systematic Content Analysis of Strasbourg and Luxembourg Case Law on Legal Restrictions to Immigration and Free Movement (Vrije Universiteit Amsterdam, 2017), p. 259–276. 271 For family reunification, see ECtHR, decision of 8 March 2016, No 25960/13, I.A. A. et al. v. the United Kingdom, para 41. 272 For an overview of the case law, see Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 223–229; Thym, Stellungnahme für die Öffentliche Anhörung des Hauptausschusses des Deutschen Bundestags am 29. Januar 2018 über den Gesetzentwurf zur Verlängerung der Aussetzung des Familiennachzugs zu subsidiär Schutzberechtigten, January 2018, p. 12–14, available online at https://www. bundestag.de/resource/blob/539614/3a1d2cf2de82889630a518e5952ffbf3/prof–dr–daniel-thym-data.pdf [accessed 1 June 2021]; and Czech, ‘Das Recht auf Familienzusammenführung nach Art. 8 EMRK in der Rechtsprechung des EGMR’, Europäische Grundrechte-Zeitschrift (2017), p. 229, 231–240. 273 That outcome was not surprising in light of Article 52(3) of the Charter; see Thym, Constitutional Framework, MN 48; nevertheless, academics had hoped for a higher degree of protection; see DabrowskaKlosinska, ‘The Right to Family Reunion vs Integration Conditions for Third Country Nationals. The CJEU’s Approach and the Road Not Taken’, EJML 20 (2018), p. 251, 279–282. 274 See ECtHR, judgment of 21 June 1988, No 10730/84, Berrehab v. the Netherlands. 275 Settled case law since ECtHR, judgment of 2 August 2001, No 54273/00, Boultif v. Switzerland, para 48 with ECtHR, judgment of 18 October 2006 [GC], No 46410/99, Üner v. the Netherlands, paras 57–58 and ECtHR, judgment of 28 June 2011, No 55597/09, Nunez v. Norway, 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. 276 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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States benefit from a certain margin of appreciation. Again, the ECJ orientates itself at the position of the ECtHR.277 54 Although residence security was a driving force behind the case law, even foreigners who have been living in a country since early childhood are not immune from deportation;278 only naturalisation brings about an absolute protection against expulsion for settled migrants.279 In the 2000s, the ECtHR embarked on a doctrinal differentiation. While the early case law had protected foreigners against expulsion on the basis of family life with a view to ties with parents, siblings or other family members,280 judges limited the protective reach of Article 8 ECHR to the ‘nuclear family’ in regular circumstances, thereby embracing a narrow understanding of family life also towards migrants who might come from a cultural context where broader perceptions exist.281 International human rights bodies may promote a wider understanding, which, however, will not usually supplant hard obligations under European human rights law (see Thym, Constitutional Framework, MN 54–54a). The narrow approach to family life was combined with a novel protection of long-term residence status under the heading of ‘private life’ irrespective of relations with family members.282 The ECtHR assumed that ‘the network of personal, social and economic relations that make up the private life of every human being’283 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).284 54a Even though the statist prerogative to control the entry, residence and expulsion of aliens serves as the starting point for the case law (see above MN 52), protection of private and family life under Article 8 ECHR can bring about a human right to regularise illegal stay ‘in exceptional circumstances.’285 Like in the case of first admission, only a handful of judgments obliged states to regularise illegal stay.286 More recently, judges in Strasbourg emphasised that ‘factors of immigration control (for example, a history of breaches of immigration law)’287 influence the proportionality 277 By way of example, see ECJ, CS, C-304/14, EU:C:2016:674, paras 48–49; and AG Mengozzi, Y.Z. et al., C-557/17, EU:C:2018:820, para 32 and footnotes 32–34. 278 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. 279 See ECtHR, judgment of 23 June 2008 [GC], No 1638/03, Maslov v. Austria, para 74; ECJ, Demirci et al., EU:C:2015:8, para 54; and Thym, Residence as de facto Citizenship?, p. 138–143. 280 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/den Heijer/Lodder/Wouters, European Migration Law, p. 202–222. 281 For a critical inspection, see Desmond, ‘The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?’, EJIL 29 (2018), p. 261, 265–270; and Lambert, ‘Family Unity in Migration Law’, in: Chetail/Baulez (eds), Research Handbook on International Law and Migration (Elgar, 2014), p. 194, 200–204. 282 On the original twist in the case law, see Thym, ‘Respect for Private and Family Life under Article 8 ECHR in Immigration Cases’, International and Comparative Law Quarterly 57 (2008), p. 87, 95–102. 283 ECtHR, judgment of 9 October 2003 [GC], No 48321/99, Slivenko et al. v. Latvia, para 97. 284 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. 285 ECtHR, judgment of 28 June 2011, No 55597/09, Nunez v. Norway, para 83. 286 For an overview, see Thym, Residence as de facto Citizenship?, p. 117–120; and, thereafter, ECtHR, judgment of 3 October 2014 [GC], No 12738/10, Jeunesse v. the Netherlands, paras 113 et seq.; ECtHR, judgment of 28 July 2020, No 25402/14, Pormes v. the Netherlands, paras 51 et seq.; and ECtHR, judgment of 26 April 2018, No 63311/14, Hoti v. Croatia, paras 109 et seq. in a case involving special circumstances related to the break-up of the former Yugoslavia. 287 ECtHR, judgment of 3 October 2014 [GC], No 12738/10, Jeunesse v. the Netherlands, para 107.

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Chp. 7 assessment. Similarly, the ECJ concluded in a case concerning the association agreement with Turkey (see below MN 60) that the objective of effective migration management, enshrined in Article 79(1) TFEU (see above MN 6), argues against family reunification.288 In practice, human rights requirements for the regularisation of illegal stay concern primarily domestic law, since the Union legislature has not adopted legislation on the matter so far, even though it could potentially do so on the basis of Article 79(2) (a) TFEU (see above MN 13a). Article 8 ECHR can be relied upon to challenge the validity of EU legislation or 55 national implementing measures (see 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 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 Thym, Constitutional Framework, 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 Bornemann/Klarmann, 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). b) Rights of the Child. The EU institutions must respect the UN Convention on the 56 Rights of the Child, even though the European Union is no state party to the Convention, which, however, was ratified by all Member States (see Thym, Constitutional Framework, MN 54). The Convention is particularly relevant for refugee law and can have an impact on other instruments, since it lays down the abstract obligations that ‘the best interests of the child shall be a primary consideration’289 in all actions relating to children. Notwithstanding the vast amount of literature, notably on unaccompanied minors and refugee law,290 the provision has gained comparatively little relevance in practice as a legal yardstick prescribing specific outcomes of the political debate. A main reason for the relative weight of the best interests-formula is the case law of the ECtHR, which had considered the position of children early on under the heading of private and family live (see above MN 52–53). What is more, the ECtHR integrated the best interests of the child into the interpretation of Article 8 ECHR,291 thus preventing the emergence of a separate body of human rights case law on the rights of the child it did not control directly. The wording of the Convention on the Rights of the Child was carefully drafted to 57 ensure that the best interests of the child, which are ‘a’ (not: the) ‘primary’ (not: paramount) consideration (French: ‘doit être une considération primordiale’), can be balanced with countervailing interests.292 Along these lines, the ECtHR recognised in a 288

See ECJ, Tekdemir, C-652/15, EU:C:2017:239, paras 35–39. Article 3(1) CRC. 290 See, amongst many, the contributions to Sedmak/Sauer/Gornik (eds), Unaccompanied Children in European Migration and Asylum Practices. In Whose Best Interests? (Routledge, 2017); Crock/Benson (eds), Protecting Migrant Children. In Search of Best Practice (Elgar, 2018); and Arnold, Children’s Rights and Refugee Law (Routledge, 2018). 291 Cf. the dynamic interpretation of Art. 8 ECHR in light of a broader consensus in public international law by 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 – und seine strukturellen Grenzen’, in: Müller-Graff et al. (eds), Europäisches Recht zwischen Bewährung und Bewahrung (Nomos, 2011), p. 58, 74–77. 292 See Detrick et al., The United Nations Convention on the Rights of the Child. A Guide to the travaux préparatoires (Martinus Nijhoff, 1992), p. 131–140; van Bueren, The International Law on the Rights of 289

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first admission case (see above MN 52–52a) that the best interests of the child ‘cannot be a “trump card” which requires the admission of all children who would be better off living in a Contracting State.’293 An overall assessment of the case law demonstrates that the ECtHR takes the Convention on the Rights of the Child seriously, but does not necessarily prioritise the position of migrants in the balancing exercise.294 A specific expression of this general finding is the case law on immigration detention of minors, which can be compatible with human rights law as a ‘last resort’ (see Thym, Legal Framework for Entry and Border Controls, MN 46). 58 Against the background of the relative weight of the best interests of the child in the ECtHR case law, it does not come as a great surprise that Article 24 of the Charter did not radically reverse the overall picture. Judges emphasised on a couple of occasions that the best interests of the child have to be balanced against countervailing interests,295 thus confirming the ECtHR’s position that the best interests do not constitute a ‘trump card’ (see above MN 57). Nevertheless, Article 24 of the Charter holds the potential for surprise effects in future. During the first ten year after the entry into force of the Charter, the provision was mentioned by the ECJ on various occasions, even though it often remained unclear to what extent it had a decisive impact on the outcome of the case. Many rulings mentioned Article 24 of the Charter as one argument amongst others without explaining to what extent the verdict depended on human rights arguments or questions of statutory interpretation.296 On the whole, the jurisprudence lacks clarity.297 On at least one occasion, however, it brought about potentially farreaching implications when the ECJ held that return decisions cannot be delivered to unaccompanied minors without a reasonable prospect of deportation (see Lutz, Return Directive 2008/115/EC, Article 6 MN 32a).

2. International Agreements 59

In contrast to Article 78(1) TFEU on asylum (cf. Thym, Legal Framework for Asylum Policy, MN 8–11), the Treaty base for immigration law does not specify that policy instruments must be compatible with international treaties. This can be explained with the absence of far-reaching obligations apart from the ECHR, which the EU is bound to respect via parallel interpretation of the 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 constituthe Child (Martinus Nijhoff, 1998), p. 45–51; and the stricter formulation in the previous, non-binding Declaration on the Rights of the Child, UN General Assembly Resolution 1386 (XIV) of 20 November 1959; by contrast, the unofficial German language version can easily be misunderstood. 293 ECtHR, decision of 8 March 2016, No 25960/13, I.A. A. et al. v. the United Kingdom, para 46. 294 See Smyth, ‘The Best Interests of the Child in the Expulsion and First-Entry Jurisprudence of the European Court of Human Rights’, EJML 17 (2015), p. 70–103. 295 See ECJ, E, C-635/17, EU:C:2019:192, paras 56–67; and ECJ, SM, C-129/18, EU:C:2019:248, paras 62, 66–68. 296 See ECJ, Haqbin, C-233/18, EU:C:2019:956, paras 53–55; ECJ, MA et al., C-648/11, EU:C:2013:367, paras 57–60; ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776, paras 76–80; and ECJ, Belgischer Staat, C-133/19, C-136/19 & C-137/19, EU:C:2020:577, paras 32–36 stated that a different outcome would be incompatible with human rights, without, however, giving detailed reasons and without delineating the argument from other statutory considerations put forward in paras 25, 36–44 to justify that outcome. 297 See Klaassen/Rodrigues, ‘The Best Interests of the Child in EU Family Reunification Law’, EJML 19 (2017), p. 191–218; similarly on other areas of EU law, Lamont, ‘Article 24’, in: Peers/Hervey/Kenner/ Ward (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 661–692; by contrast, Article 24 of the Charter played a prominent role in child abduction cases; see Bartolini, ‘In the Name of the Best Interests of the Child. The Principle of Mutual Trust in Child Abduction Cases’, CML Rev. 56 (2019), p. 91–119.

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Chp. 7 tional considerations render international legal standards directly applicable within the EU legal order. It is explained elsewhere that, on this basis, most international human rights instruments such as the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child can be invoked, while the UN Convention on Migrant Workers and some ILO conventions concerning migrant workers cannot be relied upon due to an insufficient number of ratifications by the Member States (see Thym, Constitutional Framework, MN 55). In addition, several conventions concluded within the framework of the Council of Europe retain a limited relevance in relation to the nationals of selected third states to which the agreements continue to apply (see Thym, Constitutional Framework, MN 59). Before the adoption of secondary legislation on immigration, the EU (or rather its 60 predecessor, the EEC) had concluded a number of association agreements with third states, among which the Ankara Agreement of 1963 with Turkey and follow-up documents gained considerable prominence as a result of dynamic ECJ case law approximating the status of Turkish nationals to that of Union citizens.298 Like other international treaties concluded by the EU, association agreements can be directly applicable in the EU legal order under the conditions put forward by the ECJ (see Thym, Constitutional Framework, MN 56–57). When analysing the impact of the EU-Turkey association acquis, it is important to realise that orientation at single market rules followed the express desire of the parties to consider the free movement regime for Union citizens as a model (see Thym, Constitutional Framework, MN 19). From the perspective of the EU Treaties, the institutions benefit from a principled discretion when drafting secondary legislation or international treaties within the limits prescribed by human rights (see above MN 33). The negotiating partners define the contents of international agreements. In the case of Turkey, Norway, Iceland, Lichtenstein, Switzerland and some corollary aspects of the agreements with Mediterranean countries,299 internal rules were replicated externally to some extent at least. In other scenarios, distinct policy objectives supplanted the orientation at the internal market and free movement. The arrangements with the United Kingdom after Brexit establish a two-tier system 61 for UK nationals and Union citizens residing in the territory of the other party and do not foresee even rudimentary rules on asylum (see Thym, Constitutional Framework, MN 45a). A decisive moment was 31 December 2020 when free movement came to an end with the expiration of the transitional period came. The Withdrawal Agreement contains detailed guarantees to protect the acquired rights of those who moved to the other party before 2021; they retain their legal status under the Free Movement Directive 2004/38/EC as a matter principle, although domestic rules may apply to certain questions such as future family reunification or expulsion from 2021 onwards.300 These provisions are directly effective and shall be interpreted in light of EU law, including ‘due regard’ to ECJ judgments rendered after the end of the transitional period; judges in Luxembourg 298 For an overview, see Boeles/den Heijer/Lodder/Wouters, 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. 299 For an overview of different agreements and their impact upon EU migration law, see the contributions to Thym/Zoeteweij-Turhan, Rights of Third Country Nationals; and Lorenzmeier, ‘Assoziierungsfreizügigkeit (Türkei, Balkan, Ukraine, Mittelmeer) und EFTA/EWR’, in: Wollenschläger, Enzyklopädie Europarecht X, § 12. 300 See Articles 9–38 Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community of 24 January 2020 (OJ 2020 L 29/7), which entered into force on 1 February 2020 (OJ 2020 L 29/189); and Dougan, ‘So Long, Farewell, auf Wiedersehen, Goodbye: The UK’S Withdrawal Package’, CML Rev. 57 (2020), p. 631, 667–675.

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will have jurisdiction to answer preliminary references from British courts on the chapter on ‘citizens’ rights’ for another 8 years.301 By contrast, the status of UK and EU nationals moving to the territory of the other party from 2021 onwards is essentially governed by domestic law, including secondary legislation on third country nationals such as the Blue Card Directive 2009/50/EC or the Single Permit Directive 2011/98/EU (for British nationals moving to the European Union). The Trade and Cooperation Agreement does not provide for free movement; it did not even realise the original intention, set out in the political declaration on the future relationship, to consider rules on the entry and stay for selected purposes such as research or study.302 There are, however, complex guarantees on social security coordination for persons (not only nationals) ‘legally residing’ on the territory of the other party insofar as a cross-border situation exists.303 Social security coordination applies after admission in accordance with domestic laws, for instance when Polish workers are admitted to the UK or when British pensioners move to Spain. They have no right to do so under the Trade and Cooperation Agreement, which governs social security matters nonetheless. Moreover, the parties note that visa-free travel for ‘shortterm visits’ existed when the agreement was signed, though they do not commit to retain the status quo indefinitely.304 Narrowly defined guarantees also exist for the entry and temporary stay of natural persons for business purposes, in particular service provision.305 The Trade and Cooperation Agreement states explicitly that its provisions are not directly applicable and need not be interpreted in light of ECJ case law, although the situation is different for social security coordination.306 This implies, in line with ECJ case law, that British citizens can only rely on the latter in domestic courts of the Member States (see Thym, Constitutional Framework, MN 57). 62 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 accession candidates nowadays contain only narrow and cautiously drafted rules on migrant workers.307 This new approach to association agreements reflects a change of perspective. Rules on workers no longer follow the single-market paradigm, but mirror migration-related objectives of the area of freedom, security and justice, including effective migration management and the prevention of or fight against illegal migration (see above MN 6).308 For countries without an accession perspective, rules on crossborder movements of workers had always been limited and have been absorbed, in 301

See Articles 4 and 158 ibid. See Nos 48–57 (Revised) Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland (OJ 2019 C 384I/178). 303 See Articles 488–491 Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, of 30 December 2020 (OJ 2021 L 149/10), provisionally applied 1 January 2021 (OJ 2021 L 1/1), entered into force 1 May 2021 (OJ 2021 L 149/2560). 304 Article 492 ibid. only establishes a procedure for prior notification. 305 See the narrow definition of the situations covered in Articles 140–145 ibid. 306 Articles 4–5 ibid.; and Article SSC.67 Protocol on Social Security Coordination (OJ 2021 L 149/ 2292). 307 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); or Article 14–19 of the Association Agreement with Ukraine of 21 March and 27 June 2014 (OJ 2014 L 161/3), which entered into force on 1 September 2017. 308 See Thym, ‘Constitutional Foundations of the Judgments on the EEC-Turkey Association Agreement’, in: Thym/Zoeteweij-Turhan, Rights of Third Country Nationals, p. 13, 33–34; and Wolff/Pawlak, ‘The Southern Mediterranean’, in: Ripoll Servent/Trauner, Routledge Handbook, p. 310–322. 302

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Chp. 7 recent years, by provisions focusing on migration control and social policy, for instance in negotiations with African states.309 As a result, the practical impact of more recent international agreements on EU immigration law and the corresponding room for manoeuvre of the ECJ is limited. Rules on migration in association agreements concluded by the EU are complemen- 63 ted by so-called ‘mobility partnerships’ that have been agreed upon with several third countries, such as Georgia and Morocco, as laboratories for future cooperation, including migration control and potential routes for legal migration (although few opportunities have surfaced so far).310 In relations with other third states, the EU institutions developed ‘common agendas on migration and mobility’ or informal cooperation frameworks, which foresee no channels for legal entry.311 From a doctrinal perspective, mobility partnerships, common agendas or other cooperation frameworks are soft law instruments, which are deliberately loosely knit and evade legal commitments (see Thym, Legal Framework for Entry and Border Controls, MN 28–29). It is to be expected that various forms of, predominantly informal, cooperation frameworks will continue to play an important role in the future. They can be based on Article 79(2) TFEU insofar as legal migration is concerned (see above MN 15a). It is to be seen to what extent these future arrangements will include legal channels for entry (see above MN 15), thereby complementing the legally binding readmission agreements (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).312 The dependence of successful negotiations on mutually beneficial arrangements illustrates a general point: the content and reach of association agreements, bilateral treaties or information cooperation frameworks depends on the outcome of diplomatic negotiations. 309 See Devisscher, ‘Legal Migration in the Relationship between the European Union and ACP Countries’, EJML 13 (2011), p. 53, 81–93. 310 See Reslow, ‘Making and Implementing Multi-Actor EU External Migration Policy’, in: Carrera/den Hertog/Panizzon/Kostakopoulou (eds), EU External Migration Policies in an Era of Global Mobilities (Brill, 2019), p. 277–298; and 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, 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. 311 See the Commission Communication, COM(2016) 385; Kaltenborn, ‘Externe Dimensionen der EUMigrationspolitik’, in: Wollenschläger, Enzyklopädie Europarecht X, § 27 paras 11–23; and García Andrade/Martín/Mananashvili, EU Cooperation with Third Countries in the Field of Migration, Study, DG for Internal Policies, Policy Department C, European Parliament, PE 536.469, 2015, p. 23–63. 312 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, 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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Chapter 8. Family Reunification Directive 2003/86/EC Select Bibliography: Boeles/den Heijer/Lodder/Wouters, European Migration Law, 2nd edn (Intersentia, 2014); 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 (2010), p. 299–318; Brinkmann, ‘The Transposition of the Family Reunification Directive in Germany’, in: Böcker/Havinga et al. (eds), Migration Law and Sociology of Law (Wolf Legal Publishers, 2008), p. 35–41; Dąbrowska-Kłosińska, The Right to Family Reunion vs Integration Conditions for Third-Country Nationals, EJML 20 (2018), 251–288; de Hart, ‘The Europeanization of Love. The Marriage of Convenience in European Migration Law’, EJML 19 (2017), p. 281–306; Dienelt, Auswirkungen der Familienzusammenführungsrichtlinie auf das AufenthG unter Berücksichtigung des 2. Änderungsgesetzes (e-book, 2006); Ecker, Familienzusammenführung (Österreich, 2008); European Migration Network, Synthesis Report on Family Reunification (European Commission, 2006); Groenendijk, ‘Family Reunification as a Right under Community Law’, EJML 8 (2006), p. 215–230; Groenendijk, ‘Pre-departure Integration Strategies in the European Union: Integration or Immigration Policy?’, EJML 13 (2011), p. 1–30; Groenendijk/Strick, ‘Family Reunification in Germany, Netherlands and the EU since 2000’, in: Beichel-Benedetti/Janda (eds), Hohenheimer Horizonte (Nomos, 2018), p. 355–381; 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 4 February 2021]; GöbelZimmermann, ‘Verfassungswidrige Hürden für den Ehegattennachzug nach dem Richtlinienumsetzungsgesetz’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2008), p. 169–176; Guèvremont, Vers un traitement équitable des étrangers extracommunautaires en séjour régulier (Wöhrmann Printing Service, 2009); Hailbronner, ‘Die Neuregelung des Ehrgattennachzugs in Kreuzfeuer des Verfassungs- und Europarechts’, Zeitschrift für das Gesamte Familienrecht (2008), p. 1583–1589; Hailbronner, ‘Die Richtlinie zur Familienzusammenführung’, Zeitschrift für das Gesamte Familienrecht (2005), p. 1–8; Hauschild, ‘Neues europäisches Einwanderungsrecht: Das Recht auf Familienzusammenführung’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2003), p. 266–273; Klassen, The right to family unification. Between migration control and human rights (Leiden University Repository, 2015); Labayle/Pascouau, Directive 2003/86/EC on the Right to Family Reunification Synthesis Report (Odysseus Network, 2008), available at: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/pdf/ general/odysseus_2003_86_family_reunification_national_reports_en.pdf [last accessed 4 March 2021]; González Pascual/Torres Pérez (eds), The Right to Family Life in the European Union (Routledge, 2017); Langenfeld/Mohsen, ‘Die neue EG-Richtlinie zum Familiennachzug und ihre Einordnung in das Völkerrecht’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2003), p. 398–404; Markard/Truchseß, ‘Neuregelung des Ehegattennachzugs im Aufenthaltsgesetz’, Neue Zeitschrift für Verwaltungsrecht (2007), p. 1025–1028; Michalowski/Walter, ‘Family Reunification between EC Law and National Integration Policy’, in: Böcker/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. Volume I: EU Immigration and Asylum law, 4th edn (OUP, 2016); 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 edn (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; Walter, Familienzusammenführung in Europa (Nomos, 2009); Wiesbrock, Legal migration to the EU (Brill Nijhoff, 2010); Wray/Agoston/Hutton, ‘A Family Resemblance? The Regulation of Marriage Migration in Europe’, EJML 16 (2014), p. 209–247. 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.

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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 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), 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: […] 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.

mn. 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 (1)

OJ C 116 E, 26.4.2000, p. 66, and OJ C 62 E, 27.2.2001, p. 99. OJ C 135, 7.5.2001, p. 174. (3) OJ C 204, 18.7.2000, p. 40. (4) OJ C 73, 26.3.2003, p. 16. 1 Oosterom-Staples, The Family Reunification Directive, p. 451. 2 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. (2)

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reproduction of the Directive’s title. Rather, it clarifies the scope of application ratione personae. Therefore, it may serve as a source of interpretation for the Directive.

II. Drafting history of the Directive and of Article 1 Council Directive 2003/86/EC on the Right to Family Reunification was adopted by the Council of the European Union on 22 September 2003. The Directive was not the first attempt to harmonise national law on family reunion. The aim to harmonise this field of migration policy has been on the European political agenda since 1991. Following a request from the Luxembourg European Council of June 1991, the Ministers responsible for immigration presented a report on immigration and asylum which was approved by the Maastricht European Council of December 1991.4 The report included a work programme which envisaged inter alia measures on harmonisation of policies on admission for purposes such as family reunion and formation, as well as harmonisation of legal provisions governing persons authorized to reside.5 In 1992 a draft resolution was presented by the Portuguese Presidency which, according to the delegations, appeared too binding.6 3 In June 1993, the Ministers adopted a Resolution on the harmonisation of national policies on family reunification (hereinafter: Resolution).7 This ‘soft law’ instrument contained a number of principles that were intended to govern national policies on family reunification (para.5 of the Resolution), i. e. family members eligible for admission and conditions for entry and residence. The Resolution concerned family reunification of third-country nationals residing in the territory of the Member States with a view to permanent or long-term residence (Principle 1 of the Resolution) and thus factored out EU citizens and their family members. In contrast to Directive 2003/86/EC, the Resolution did not apply to refugees. The Resolution inspired the general scheme of the Directive by laying down that Member States ‘will normally grant admission’ to the family members of third-country nationals eligible for reunification (Principle 8 of the Resolution). It moreover listed conditions to this end, including an undefined waiting period (‘certain period of time’), public policy exceptions, and economic requirements were included. 4 The Amsterdam Treaty of 19978 transferred competences in the field of immigration and asylum to the European Community (see Thym, Constitutional Framework, MN 2 et seq.). In particular, Article 63(1) No 3(a) TEC (now Article 79(2)(a) TFEU) empowered the Council to ‘adopt measures on immigration policy [such as…] conditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion’.9 The Directive is based on this provision. The words ‘family reunion’ as mentioned in Article 63(1) No 3(a) TEC and ‘family reunification’ mentioned in the Directive’s title are used interchangeably in EU law and hereinafter and do not diverge in substance. Unlike most other competences in migration and asylum law at that time, 2

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. 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 October 1997, entry into force on 1 May 1999. 9 Emphasis added.

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the competence for the regulation of family reunification was not limited to harmonising at the level of minimum standards.10 For creating a body of secondary law in the area of freedom, security and justice, the Amsterdam Treaty stipulated a five-year deadline starting with the entry into force of the Amsterdam Treaty on 1 May 1999 and ending on 30 April 2004 (Article 63(1) TEC). However, according to Article 63(4) TEC, the five-year period was not applicable to measures pursuant to Article 63(1) No 3(a) TEC, the provision that included a competence for family reunification. Thus, primary law did not require the Council to adopt secondary law in the field of family reunification within the five-year period. Nevertheless, shortly after the Amsterdam Treaty entered into force on 1 May 1999, the European Council held a special meeting in Tampere (Finland) on 15/16 October 1999 to set guidelines for the implementation of the powers and competences introduced by the Amsterdam Treaty and in order to prepare the development of the Union into an area of freedom, security and justice.11 The Tampere European Council concluded that the EU ‘must ensure fair treatment of third country nationals who reside legally on the territory of its Member States [and that a …] more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens.’12 Shortly after, on 1 December 1999, the Commission presented a first proposal on a Directive on family reunification.13 As the Commission explained at the time, it deemed it necessary to allow third-country nationals residing lawfully in the territory of the Member States to have the right to family reunification subject to certain conditions in order to attain the objectives of Tampere.14 Recital 3 of the Directive still refers to the goals of Tampere. The legislative process leading up to the adoption of the Directive turned out to be difficult. The Economic and Social Committee15 and the Committee of the Regions16 were consulted and the European Parliament approved the first proposal subject to 17 amendments.17 The most important suggestion was to exclude persons enjoying subsidiary forms of protection from the personal scope of application, a suggestion which has left this group without an EU law based right to family reunification.18 Following the consultation of the European Parliament on 10 October 2000 the European Commission presented a second, modified proposal,19 which took up most of the European Parliament’s suggestions, such as the exclusion of persons enjoying

10

See Article 63(1) No 1(b)–(d) TEC. Tampere European Council, Conclusion of the Presidency No 18, available at: https://www.europarl. europa.eu/summits/tam_en.htm [last accessed 30 November 2020]. 12 Tampere European Council, Conclusion of the Presidency No 18, available at: https://www.europarl. europa.eu/summits/tam_en.htm [last accessed 30 November 2020]. 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, The Family Reunification Directive, p. 451, 455. 19 Commission Proposal, COM(2000) 624 final; see Cholewinski, ‘Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right’, EJML 4 (2002), p. 271–290. 11

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subsidiary protection.20 However, it did not yet follow the suggestion of the European Parliament’s Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs to include a general derogation clause allowing for more favourable arrangements to be maintained (cf. Article 3(5)).21 The Commission argued at the time that it was not compatible with the objective of aligning national legislation.22 The second proposal was discussed intensely in the Council. Diverging opinions and interests of the Member States23 made it unlikely that such a proposal would ever find the necessary unanimous vote (Article 67(1) TEC). Recognising these difficulties, the European Council of Laeken on 14/15 December 2001 concluded that a true common asylum and immigration policy implied the establishment of common standards on procedures for asylum, reception and family reunification24 and asked the Council to submit, by 30 April 2002, an amended proposal concerning family reunification.25 9 In response to the Council’s request, the Commission adopted a third proposal on 2 May 2002.26 The third proposal included considerable amendments. It was much less ambitious concerning the amount of harmonisation than the previous two proposals. Provisions allowing for derogations27 and optional clauses28 were introduced to gain agreement by all Member States.29 Derogation clauses concerned the eligibility of minor children over the age of 12 which may be made dependent on an integration condition and a waiting period of up to three years from submitting an application for reasons of national reception capacity.30 The proposal was discussed and amended in the Council. At its meeting of 27 February 2003 the Council reached a political compromise on the third proposal.31 The Directive was formally adopted on 22 September 2003 and entered into force on 3 October 2003, the day of its publication in the Official Journal of the European Union (Article 21 of the Directive). 10 Especially with a view to the more generous approach of the first and second proposal, the final Directive has been criticised for harmonising minimum standards only.32 In support of this critique, reference can be made to Article 3(4) and (5) of the 20 See Commission Proposal, COM(2000) 624 final, Explanatory Memorandum, p. 2; see in detail: Oosterom-Staples, The Family Reunification Directive, p. 451, 455. 21 European Parliament doc. A5/2000/201 of 6 September 2000, amendment 9. See also Report of the Committee on Citizens’ Freedoms and Rights, A5–201/2000 of 17 July 2000, p. 9, amendment 9. 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. 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, The Family Reunification Directive, p. 451.

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Directive which enable the Member States to adopt more favourable provisions, showing that a higher level of protection can be afforded in national legislation.33 Those provisions were indeed introduced to compensate for the deletion of several more favourable provisions in the course of the negotiations.34 The Directive had to be transposed into national law by the Member States – except for 11 the United Kingdom, Ireland and Denmark, which are not bound by the Directive35 – by 3 October 2005 (Article 20(1) of the Directive). On the date of expiration of the implementation period, the Commission reported that only six Member States had notified their implementing measures to the Commission.36 In October 2008, the European Commission released a report to the Council and the European Parliament on the application of the Directive.37 The report revealed several fields of incorrect transposition or misapplication of the Directive.38 The Commission recognised that due to the lowlevel binding character and corresponding discretion of Member States, the Directive’s impact on harmonisation in the field of family reunification remains rather limited.39 In the Stockholm Programme, the Commission called for an ‘evaluation and, where necessary, review of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, taking into account the importance of integration measures’.40 In reaction to these deficits, the Commission issued a Green Paper in 201141 which initiated a broad public consultation on the future of the right to family reunification.42 The public hearing came to the conclusion that the Directive should not be re-opened, but that the Commission should ensure the full implementation of the existing rules by opening infringement procedures where necessary and produce guidelines on identified issues.43 It did so in April 2014,44 when it published guidelines to ensure a more coherent application of the Directive. This guidance for application is non-binding but may act as a point of reference for the interpretation of the Directive. The ECJ has decided a number of cases concerning the Directive.45 Initially, a 12 relevant case for the overall understanding and interpretation of the Directive resulted from a claim for annulment launched two months after the Directive entered into force by the European Parliament, pursuant to Article 230 TEC (now Article 263 TFEU) before the ECJ.46 The Parliament sought annulment of three provisions of the Directive: the third subparagraph of Article 4(1), Article 4(6) and Article 8. The Parliament argued that these provisions, which allow for derogation from the principle of family reunifica33

Oosterom-Staples, The Family Reunification Directive, p. 451. 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 3 March 2021]. 37 Commission Report, COM(2008) 610 final. 38 Commission Report, COM(2008) 610 final, p. 14. 39 Ibid., p. 14. 40 Commission Communication, COM(2009) 262/4, p. 30, the so-called ‘Stockholm Program’. 41 Commission Green Paper, COM(2011) 735 final. 42 Commission Report, Summary of Stakeholder Responses to the Green Paper on the right to family reunification, 11 May 2012, available at: https://www.eesc.europa.eu/en/documents/summary-stakeholderresponses-green-paper-right-family-reunification-third-country-nationals [last accessed 1 February 2021]. 43 Commission Communication, COM(2014) 210 final, p. 2. 44 Ibid. 45 For an overview of ECJ case law regarding family reunification in general, see De Winter/Fink, ‘Precedent and fundamental rights in the CJEU’s case law on family reunification immigration’, in: 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. 46 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429. 34

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tion in the Directive, were inconsistent with ‘fundamental rights, including the right to family life and the right not to be discriminated against … .’47 Whereas Advocate General Kokott48 had found Article 8 of the Directive to be incompatible with human rights, the ECJ dismissed the entire application on 27 June 2006.49 It emphasised that Article 8 ECHR and other instruments of international law, such as the Convention on the Rights of the Child50 and Article 7 CFR51 do not grant a right to enter and reside in a particular country for the purpose of family reunification.52 The ECJ stressed that States enjoy a ‘margin of appreciation’ when they examine applications for family reunification53 although Article 8 ECHR in each case calls for a balancing of interests of the third-country nationals concerned and those of the host State.54 This may result in a positive obligation to grant entry to a person. According to the Court, the Directive – by actually granting a right to family reunification in Article 4(1) – goes beyond previously existing fundamental rights.55 The ECJ held that the contested provisions merely preserved the Member States’ margin of appreciation and that Article 5(5) (best interest of minor children) as well as Article 17 ensure that in each case the relevant competing interests are weighed. 13 On 29 December 2008, in Chakroun, the Court expressed itself on two questions regarding the resources requirement stipulated under Article 7(1)(c) and the definition of ‘family’ under Article 2(d) (see in detail below Article 7 MN 12 et seq. and Article 2 MN 17).56 The Court emphasised that ‘the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof’.57 This frames the interpretation of the entire Directive and allegedly influences the test of proportionality of restrictive national measures,58 which must be interpreted restrictively.59 14 The drafting history of Article 1 reveals some moderate changes. The wording was changed from ‘to establish a right to family reunification’ (first and second proposal)60 to ‘determine the conditions in which the right to family reunification may be exercised’ (third proposal)61 and ‘to determine the conditions for the exercise of the right to family 47

ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 30. AG Kokott, Parliament v. Council, C-540/03, EU:C:2005:517. 49 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429. 50 Ibid., para 57. 51 Ibid., para 58. 52 Ibid., para 59. 53 Ibid., para 62. 54 The Court’s argumentation with human rights provisions shows that these instruments clearly influence the Court’s understanding of the right to family reunification, see Lawson, ‘Family Reunification and the Union’s Charter of Fundamental Rights, Judgment of 27 June 2006, Case C-540/03, Parliament v. Council’, EuConst 3 (2007), p. 324, 333. 55 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 60. 56 Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 29 December 2008, ECJ, Chakroun, C-578/08, EU:C:2010:117. 57 Ibid., para 43. 58 Hardy, ‘The Objective of Directive 2003/86 Is to Promote the Family Reunification of Third Country Nationals’, EJML 14 (2012), p. 439, 443. ‘The individual analysis has thus become a condition of substance, more than of procedure.’ (p. 444). 59 This follows directly from the Chakroun judgment, see Wiesbrock, ‘The Right to Family Reunification of Third-Country Nationals under EU Law – Is Directive 2003/86/EC in compliance with the ECHR?’ (Case Note on Rhimou Chakroun), EuConst 6 (2010), p. 462, 474. 60 Commission Proposal, COM(1999) 638 final, Article 1 and Commission Proposal, COM(2000) 624 final, Article 1. 61 Commission Proposal, COM(2002) 225 final, Article 1, emphasis added. 48

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reunification’62 (Article 1 of the Directive). Apart from minor language revisions, there was only one major amendment to Article 1. Whereas the first proposal included family reunification to citizens of the Union who do not exercise their right to free movement,63 this group is excluded from the scope of the Directive. There is accordingly no mention thereof in Article 1, reflecting the limitation in personal scope as provided for in Article 3(3) of the Directive. The Commission had originally suggested applying the Directive also to immobile Union citizens, who were excluded from the scope of the Free Movement Directive 2004/38/EC. However, during the negotiations on the Free Movement Directive 2003/86/EC, Germany made clear that it was concerned about such a wide scope of application and the Commission agreed to make family reunification of this group of persons the object of a separate proposal64 which, however, to date has not been adopted.

III. Structure of the Directive The Directive contains 22 articles and is structured into eight chapters. Due to many 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, it provides for the conditions of entry, stay and termination of stay of third-country nationals who are family members of third-country national legal residents in the Member States. Chapters III (Article 5) and IV (Article 6) list the conditions that must be satisfied in order to qualify for family reunification under the Directive. Chapter V (Articles 9–12: family reunification of refugees) of the Directive sets up 16 preferential rules where the sponsor is a refugee. These provisions are mainly derogations creating more favourable provisions for family reunification of refugees, taking account of their particular situation. The idea to create a separate chapter for refugees was only realised in the third proposal. The first two proposals foresaw specific provisions for refugees within the respective provisions. The change of structure was not entirely coherent, as can be seen in the second subparagraph of Article 7(2) of the Directive, which exempts refugees and their family members from integration measures. In addition, the Asylum Qualification Directive 2011/95/EU65 needs to be taken into account. Article 23 of the Asylum Qualification Directive 2011/95/EU obliges Member States to particularly preserve family unity of refugees. The interplay of both Directives – Asylum Qualification Directive 2011/95/EU and Directive 2003/86/EC – is partly contentious and will be dealt with below (see below Article 9–12 MN 4). Chapter VI of the Directive (Articles 13–15) provides for specific rights for family 17 members once they are admitted to the territory. They relate to education, vocational guidance and employment.66 Chapter VII of the Directive (Articles 16–18) stipulates specific sanctions. The reasons for rejection, withdrawal or refusal to renew as stipulated by Article 17 of the Directive originate from the ECtHR’s case law on Article 8 ECHR.67 62

Emphasis added. Commission Proposal, COM(1999) 638 final, Article 1. 64 Commission Proposal, COM(2002) 225 final, p. 5. 65 OJ 2002 L 304/12. 66 Article 14(1) of the Family Reunification Directive 2003/86/EC. 67 Groenendijk, A Right under Community Law, 219. 63

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

IV. Protection of family life under human rights law The Directives’ interpretation and application is strongly influenced by the jurisprudence of the ECtHR, since the ECHR protects the right to family life in Article 8 thereof (for an overview, see Thym, Legal Framework for EU Immigration Policy, MN 52 et seq.). Recital 2 of the Directive reiterates that measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in instruments of international law. Accordingly, the ECJ ruled that ‘the provisions of the Directive … must be interpreted … in the light of the right to respect for family life enshrined in … the ECHR’.68 The content of Article 8 ECHR therefore significantly shapes the requirements of the Directive and its application. Article 8 ECHR affords an individual ‘the right to respect for his private and family life’. Even though the EU is not yet bound by the ECHR in its own right, Union law reproduces Article 8 ECHR in the corresponding provision of the CFR, namely, in Article 7 thereof. Pursuant to Article 52(3) CFR, the two provisions shall have the same ‘meaning and scope’.69 In addition, another Fundamental Rights instrument that exerts the Convention on the Rights of the Child. 19 In its first judgment on the Directive in the case Parliament v. Council, the ECJ has extensively referred to the ECtHR’s jurisprudence on Article 8 ECHR in deciding whether the contested provisions of the Directive were in line with fundamental principles of EU law (see below, interpretation of Articles 4 and Article 17).70 The obligations stemming from Article 8 ECHR are of paramount importance in this regard, since they need to be respected by the Member States when they decide on entry, residence but also termination of residence of third-country nationals when implementing the Directive. 20 In the jurisprudence of the ECtHR, the term ‘family’ is conceptualised in broad terms. It pivots on the existence of real connections of close personal ties and thus includes both formal and informal relationships alike, such as non-married stable partnerships or religious marriages.71 The ECtHR has equally recognised stable relationships of same-sex couples to fall under Article 8 ECHR.72 Family ties between parents and children exist from the moment of birth and may cease to exist in exceptional circumstances.73 Extended family members may fall within the scope of Article 8 ECHR where factors of dependence substantiate the existence of family ties.74 21 With regard to the question whether Article 8 ECHR entails a right to family reunification in the sense of allowing a person entry to a Member State, the ECtHR only had to decide on a few cases75 and has repeatedly ruled that Article 8 ECHR does 18

68

ECJ, Chakroun, C-578/08, EU:C:2010:117, para 44. Article 52(3) CFR. 70 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 52 et seq. 71 ECtHR, Judgment of 2 November 2009, No 3976/05, Şerife Yiğit v. Turkey, paras 93 to 98, referring to the Turkish imam nikah. 72 ECtHR, Judgment of 23 February 2016, No 68453/13, Pajić v. Croatia, para 64. 73 Costello, Groenendijk et al., Realising the right to family reunification of refugees in Europe. Issue paper published by the Council of Europe Commissioner for Human Rights, p. 15, with further references. 74 ECtHR, Judgment of 18 November 2014, No 5049/12, Senchishak v. Finland, para 55. 75 ECtHR, Judgment of 28 May 1985, No 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v. 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, Gül v. Switzerland; Judgment of 69

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not grant a direct right to family reunification. As a general starting point the Court considers that Article 8 ECHR does not impose ‘on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory’76 and that ‘a State has the right to control the entry of non-nationals into its territory’.77 Therefore the ‘right’ to family reunification is only an indirect one,78 following from positive obligations ‘inherent in effective “respect” for family life’ (see Thym, Legal Framework for EU Immigration Policy, MN 52, with further references).79 According to the established case law of the ECtHR the extent of a State’s obligation 22 to admit relatives of settled immigrants to its territory will vary according to the particular circumstances of the individual involved and the general interest of the receiving society as a whole in controlling immigration.80 In order to determine whether these circumstances require the admission of a person seeking family reunification, the ECtHR originally applied a so-called elsewhere approach which considered whether family life could be developed abroad or granting family reunification was the only way to develop family life.81 In subsequent case law, the ECtHR seems to have modified the very strict application of that approach. In the Şen case of 2001, the Court, for the first time, obliged a State to grant family reunification to a child – in the case a nine-year old daughter – in light of positive obligations coming from Article 8 ECHR.82 The Court ruled that given the circumstances of the case, especially with regard to her young age, the fact that both parents were legally residing in the Netherlands for a number of years and that two more children were born and raised in the Netherlands, admission of the child was the most adequate means to develop family life with her parents.83 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 approach84 is an open question, even though there are indications that the ECtHR did not intend to depart from its established standards.85

21 December 2001, No 31465/96, Şen 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. 76 ECtHR, Judgment of 19 February 1996, No 23218/94, Gül v. Switzerland, para 38; ECtHR, Judgment of 14 June 2011, No 38058/09, Biao v. Denmark, para 53; ECtHR, Judgment of 3 October 2014, Jeunesse v. The Netherlands, No 12738/10, para 107. 77 Seminally, ECtHR, Judgment of 28 May 1985, No 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v. The United Kingdom, para 67. 78 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. 79 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. 80 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, Gül v. Switzerland, para 38; ECtHR, Judgment of 8 March 2016, No 25960/13, I.A. A. et al. v. the United Kingdom, paras 39 et seq. 81 ECtHR, Judgment of 19 February 1996, No 23218/94, Gül v. Switzerland, para 39. 82 ECtHR, Judgment of 21 December 2001, No 31465/96, Şen v. The Netherlands, para 41. 83 ECtHR, Judgment of 21 December 2001, No 31465/96, Şen v. The Netherlands, para 40; ECtHR, Judgment of 1 December 2005, No 60665/00, Tuquabo-Thekle v. The Netherlands, para 47. 84 See Wiesbrock, Legal migration, p. 518. 85 ECtHR, Judgment of 3 October 2014, Jeunesse v. The Netherlands, No 12738/10, para 122.

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

86 See also Spijkerboer, ‘Structural Instability: Strasbourg Case Law on Children’s Family Reunion’, EJML 11 (2009), p. 271, 272. 87 ECtHR, Judgment of 30 July 2013, No 948/12, Berisha v. Switzerland, para 50. 88 Ibid., para 51. 89 Ibid., para 56. 90 ECtHR, Judgment of 14 June 2011, No 38058/09, Osman v. Denmark, para 65. 91 ECtHR, Judgment of 31 July 2008, No 265/07, Darren Omoregie and Others v. Norway. 92 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; ECtHR, Judgment of 8 March 2016, No 25960/13, I.A. A. et al. v. the United Kingdom, paras 38 to 41.

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

V. The right to family reunification under the Directive According to Article 1, the purpose of the Directive is ‘to determine the conditions for 26 the exercise of the right to family reunification’94 whereas the first proposal contained the words ‘establishing a right to family reunification’.95 This change in Article 1 led to the question whether the Directive still entails a right to family reunification. However, the Directive’s title as well as Article 4 which obliges Member States to ‘authorise the entry and residence’ of certain family members indicate that the Directive continues to regulate a right to family reunification.96 The existence of this right was expressly confirmed by the ECJ in Parliament v. Council, where the Court reiterated that the Directive goes beyond other legal provisions by imposing precise positive obligations, with corresponding clearly defined individual rights, on the Member States.97 Thus, the Directive, for the first time, sets up a Union wide right to family 27 reunification, which has, as a consequence, in some Member States led to the introduction of a detailed set of rules on family reunification.98 By imposing precise positive obligations on Member States with corresponding clearly defined individual rights to family reunification in Article 4(1) ‘without being left a margin of appreciation’ for the Member States, the Directive goes beyond the rights conferred to third-country nationals by Article 8 ECHR.99 It must be added, in this regard, however, that it does not establish an absolute right, since family reunification is subject to the practical and procedural conditions determined by the Directive.100 To the extent of those standards, the Directive precludes Member States from adopting unilateral policies on thirdcountry national’s family reunification.101

Article 2 For the purposes of this Directive: (a) “third country 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; 93

ECtHR, Judgment of 4 December 2012, No 47017/09, Butt v. Norway, para 82. Emphasis added. 95 Commission Proposal COM(1999) 638 final, Article 1, emphasis added. 96 See Boeles/den Heijer et al., European Migration Law, p. 129. 97 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429. 98 Commission Report, COM(2008) 610 final, p. 14. 99 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 60. 100 Commission Proposal, COM(1999) 638 final, p. 11. 101 Commission Report, COM(2008) 610 final, p. 2. 94

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(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) 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)) .........................................................

mn. 1 4 6 12 14 18 19

I. General remarks and drafting history Article 2 contains six definitions of the Directive’s most important terms. These definitions concern terms used in one or several provisions of the Directive. The same regulation technique is used in other Directives.102 Article 2 aims at ensuring that these terms are interpreted identically by national law wherever they appear in the Directive. Thus, Article 2 instructs the Member States’ correct implementation of the Directive. Consequently, these definitions do not have a regulatory effect of their own and Member States are not required to explicitly transpose them into national law. 2 Article 2 largely corresponds to the original proposal of the Commission, albeit with two major changes: First, the definition of a ‘person enjoying subsidiary protection’ in the initial proposal was deleted in the second proposal. The change is a consequence of the fact that – following the suggestions of the European Parliament during the negotiations – these persons are no longer included in the personal scope of application of the Directive. Second, unlike the three previous proposals, the final Directive contains a definition for ‘unaccompanied minor’ (Article 2(e)). Furthermore, Union citizens were excluded during the course of negotiations of the Directive from the definitions of Article 2(c) and (d) to bring to conformity the definitions with the exclusion of this group of persons from the scope of application (cf. Article 3(3) of the Directive). 3 Some of the definitions, in particular the definition of ‘refugee’ (Article 2(b)) differ from those given to the same terms in other Directives.103 This is partly due to the fact 1

(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. 103 See the definition of ‘refugee’ in Article 2(d) of the Asylum Qualification Directive 2011/95/EU. 102

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

II. Third country national (Article 2(a)) Article 2(a) defines the term ‘third country national’ as any person who is not an EU 4 citizen under Article 17(1) TEC (now Article 20(1) TFEU). Thus, Union citizens, including citizens of EU Member States not bound by the Directive,104 are excluded. It is not required that the third-country national, in particular the sponsor (Article 2(c)), has moved from one Member State to another to benefit from the Directive.105 The Directive also applies to third country national sponsors who are long-term residents according to the Long-Term Residents Directive 2003/109/EC,106 since that Directive does not provide for special rules on family reunification.107 Exceptionally, the LongTerm Residents Directive 2003/109/EC contains special rules 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).108 In comparing Article 2(a) with (b) and (f) thereof, it can be noticed that the latter 5 provisions explicitly refer to third country nationals and stateless persons, to the end that it may be questioned whether the Directive may equally benefit stateless persons, as they are not third country nationals sensu stricto. By definition, these persons do not possess the nationality of any third country. Contrary to the definition of the previous proposals, the third proposal explicitly included stateless persons in the definition of third-country nationals.109 Article 2(a) – unlike the third proposal – does not explicitly refer to the New York Convention Relating to the Status of Stateless Persons of 28 September 1954. It is unclear why this clause was later deleted. Nonetheless, the drafting history of the Directive rallies for an extensive interpretation of the term ‘third country national’ in this regard. The definition in Article 2(a) corresponds to the initial and the second proposal thereof, with regard to which the Commission had commented that the negative definition of ‘not a citizen of the Union’ should be understood in line with the New York Convention of 28 September 1954 to include stateless persons.110 In presenting the third proposal, the Commission accordingly reiterated that the term ‘third country national’ should extend to stateless persons, even though this was ‘only implicit in the original proposal’.111 This supports a wide reading of Article 2(a) of the 104

Denmark, Ireland and the United Kingdom, see recitals 17 and 18 of the Directive. Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 98. 106 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16/44). 107 Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 98. 108 Thym, Long-Term Residents Directive 2003/109/EC, Article 16 MN 1 et seq. 109 Commission Proposal, COM(2002) 225 final, p. 14, Article 2(a). 110 Commission Proposal, COM(1999) 638 final, p. 11. 111 Commission Proposal, COM(2002) 225 final, p. 5; Commission Proposal, COM(1999) 638 final, p. 11. 105

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

III. Refugee (Article 2(b)) 6

7

8

9

10

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 1A(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.113 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.114 Article 2(b) does not explicitly refer to the former Asylum Qualification Directive 2004/83/EC (or its 2011 recast115), since the latter had not yet been adopted at the time of the Family Reunification Directive. Due to the missing reference to the (former) Asylum Qualification Directive, it is unclear whether Article 2(b) can be interpreted as referring to Article 1 of the Geneva Convention as interpreted by the Asylum Qualification Directive 2011/95/EU.116 The Asylum Qualification Directive 2011/95/EU spells out a uniform definition for the qualification as a refugee, which inter alia establishes uniform grounds for exclusion from being a refugee. In this vein, the Qualification Directive interprets Article 1F of the Geneva Convention, which obliges Member States to recognise, in certain circumstances, that third country nationals do not qualify as refugees. Persons to whom one of the exclusionary grounds of Article 12 Asylum Qualification Directive 2011/95/EU apply cannot therefore be considered refugees, neither in the Qualification Directive, nor in the context of Directive 2003/86/EC, regardless of the fact that the latter makes reference merely to the Geneva Convention. Alternative kinds of protection, such as subsidiary protection as provided for by the Asylum Qualification Directive 2011/95/EU, temporary protection under the Temporary Protection Directive 2001/55/EC or other protection schemes according to national law do not fall under the notion of ‘refugee’ mentioned in Article 2(b). 112

Commission Proposal, COM(1999) 638 final, p. 11. 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. 114 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. 115 Asylum Qualification Directive 2011/95/EU. 116 Or the corresponding definition in Article 2(g) Asylum Procedures Directive 2013/32/EU. 113

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

IV. Sponsor (Article 2(c)) Article 2(c) describes the term ‘sponsor’ as ‘a third country national residing lawfully 12 in a Member State and applying or whose family members apply for family reunification to be joined with him/her’.117 Instead of the term ‘sponsor’, the first proposal used the term ‘applicant’ as meaning ‘a third-country national residing lawfully in a Member State or a citizen of the Union and applying to be joined by members of his family’.118 Whereas the right of citizens of the Union and their family members to move and reside freely within the EU was regulated by the Free Movement Directive 2004/38/EC,119 the initial proposal covered Union citizens who have not exercised their right to free movement.120 Following the exclusion of this group from the scope of application of the Directive, Union citizens are no longer mentioned in Article 2(c). The sponsor must be ‘residing lawfully’ in a Member State. The prerequisite of 13 ‘lawful residence’ is defined more precisely in Article 3(1) and (2) of the Directive (see below Article 3 MN 4 et seq.). The wording of Article 2(c) indicates that the requirement of a residence permit with a validity of one year applies regardless of the reasons for which the third-country national’s residence was authorised. It is equally irrelevant whether the sponsor had been unlawfully resident prior to the lawful residence. Reasons for lawful residence include employment, exercise of a self-employed activity, studies, non-gainful activity, granting of refugee status.121 Even the enjoyment of temporary and subsidiary kinds of protection may qualify for lawful residence,122 although in that case the scope of application is limited by Article 3(2) and (3) of the Directive (see below Article 3 MN 10 et seq.).

V. Family reunification (Article 2(d)) ‘Family reunification’ is defined by Article 2(d) as ‘the entry into and residence in a 14 Member State by family members of a third-country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident’s entry’.123 In principle, the Directive provides for a right of third-country nationals legally residing in one of the Member States to be joined by their family members. However, during the negotiations concerning the 117

Emphasis added. Commission Proposal, 119 OJ 2004 L 229/35. 120 Commission Proposal, 121 Commission Proposal, 122 Commission Proposal, 123 Emphasis added. 118

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

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Directive, this right has been made subject to several derogations allowing Member States to restrict family reunification. 15 Whereas the first two proposals stipulated that family reunification pertained to entry and residence by family members both ‘in order to form or preserve the family unit’, Article 2(d) only mentions the preservation of the family unit.124 The third proposal deleted the words ‘to form’ in Article 2(d). However, the Commission emphasised that this was a formal change only and did not imply any substantial change.125 In line with this view, Article 2(d) clarifies that the Directive applies ‘whether the family relationship arose before or after the resident’s entry’. In contrast, the Directive stipulates that family relationships may be restricted with a view to those which predate the sponsor’s entry where the sponsor is a refugee (Article 9(2)). This implies e contrario that, in general, the concept of family reunification includes the two situations of family reunification mentioned above. The date of marriage – before or after the sponsor has taken up residence – is irrelevant. 16 The question, whether Article 2(d) precludes Member States when applying the Directive from distinguishing between family relationships that arose before or after the sponsor’s entry and applying different conditions to both groups has been decided by the ECJ in Chakroun.126 The referring Dutch court asked whether such distinction is permissible under the Directive with regard to the resources requirement stipulated under Article 7(1)(c).127 The ECJ has answered in the negative, pointing to the wording of Article 2(d) of the Directive, which ‘defines family reunification without drawing any distinction based on the time of marriage of the spouses, since it states that that reunification must be understood as meaning the entry into and residence in the host Member State by family members of a third-country national residing lawfully in that Member State in order to preserve the family unit, ‘whether the family relationship arose before or after the resident’s entry’.128 17 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, Article 2 MN 15 et seq.) is that in those cases the marriage is concluded abroad, so that the family exists when the sponsor or his family members apply for reunification. In the case discussed here, however, the family does not exist, since a marriage is yet to be formed in the receiving country where the sponsor resides. The legal situation of persons wishing to enter the territory of a Member State in order to contract a marriage is not within the scope of the Directive.129 The Commission has specified that this situation remains subject to national law.130 Insofar, the provision corresponds to the scope of application of ‘family’ in Article 8 ECHR which requires an existing family.131 The ECtHR has stated repeatedly that Article 8 ECHR does not include a guarantee on

124

Emphasis added. Commission Proposal, COM(2002) 225 final, p. 5. 126 ECJ, Chakroun, C-578/08, EU:C:2010:117. 127 ECJ, Chakroun, C-578/08, EU:C:2010:117. 128 ECJ, Chakroun, C-578/08, EU:C:2010:117. 129 Commission Proposal, COM(1999) 638 final, p. 12. 130 Commission Proposal, COM(1999) 638 final, p. 12. 131 Grabenwarter, European Convention on Human Rights. Commentary (Beck, 2014), p. 193; Russo, in: Pettiti/Decaux/Imbert (eds), La Convention Européenne des Droits de l’Homme (Economia, 1999), Art. 8 § 1, p. 316. 125

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family formation.132 Family formation is not part of the right to respect for family life (Article 8 ECHR), but of the right to marry (Article 12 ECHR).133

VI. Residence permit (Article 2(e)) Article 2(e) establishes the formal requirements of a residence title by referring to 18 Article 1(2)(a) of Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third country nationals.134 The Regulation stipulates that certain titles may not be regarded as residence permits and therefore cannot be considered for the purpose of Article 2(e) either. Thus, visa and permits that are issued for the duration of application procedures on asylum etc. may not be considered residence permits (Article 1(2)(a)) under Regulation (EC) No 1030/ 2002).135 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, namely one to which Article 2(e) refers. The definition of Article 2(e) is further relevant for Article 13(2), which specifies that Member States are to grant a family member a residence permit which is in conformity with Article 2(e).

VII. Unaccompanied minor (Article 2(f)) The definition of the term ‘unaccompanied minor’ was introduced in the Directive 19 during the final round of negotiations in the Council.136 The definition is relevant for Article 10(3) of the Directive, which includes specific rules for unaccompanied minor refugees, such as the right to be joined by their parents. Thus, the purpose of distinguishing unaccompanied minors from other persons is to grant them – given their specific needs and their vulnerability137 – additional rights stipulated in Article 10(3) of the Directive.138 The right to be joined by the parents is based on Article 22(2) of the Convention of the United Nations Convention on the Rights of the Child of 1989,139 which obliges the States Parties ‘to provide, as they consider appropriate, co-operation in any effort by the United Nations … to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family.’ The definition corresponds to the wording in other Directives on asylum issues.140 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 countries141 which establishes guidelines for the treatment of unaccompanied minors, with regard to matters such as the conditions for their reception, 132 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. 133 Grabenwarter, European Convention on Human Rights. Commentary (Beck, 2014), p. 193. 134 OJ 2002 L 157/1. 135 Dienelt, Auswirkungen auf das AufenthG, p. 57. 136 See Commission Proposal, COM(2002) 225 final, which did not yet contain such a provision. 137 Commission Proposal, COM(1999) 638 final, p. 16. 138 For this effect, see ECJ, A & S, C-550/16, EU:C:2018:248, paras 34 et seq. 139 See explanation of the Commission in Commission Proposal, COM(1999) 638, p. 16. 140 See Article 2(h) of the Asylum Reception Directive 2013/32/EU; Article 2(l) of the Asylum Qualification Directive 2011/95/EU; Article 2(f) of the Temporary Protection Directive 2001/55/EC. 141 OJ 1997 C 221/3.

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stay and return and – in the case of asylum seekers – the handling of applicable procedures (Article 1(3) of the Resolution). 21 According to the definition of Article 2(f), the age of majority is 18 years, which in 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 cannot unilaterally set an age of majority below 18 years.142 In A & S, the Court decided that a person who was below the age of 18 at the time of entry into the territory of a Member State is to be considered a ‘minor’ for the purpose of Article 2(f), even if – during the process of application for international protection – the person attains the age of majority.143 22 According to the definition given in Article 2(f), a minor is regarded as ‘unaccompanied’ in case (s)he has entered a Member State’s territory ‘unaccompanied by an adult responsible by law or custom, and for as long as [(s)he is …] not effectively taken into the care of such a person, or [is …] left unaccompanied after he or she entered the territory of the Member States.’144 This wording does not specify whether the determination of an adult responsible refers to the ‘law and custom’ of the country of origin or, conversely, of the Member State. However, the purpose of Article 2(f) is to establish a privileged scheme for unaccompanied minors, which argues in favour of an interpretation that pertains to the law and custom of the country of origin. Otherwise, the Member State of destination could, by recognising the status of an adult responsible, limit the application of Article 2(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 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;

ECJ, A & S, C-550/16, EU:C:2018:248, para 42. ECJ, A & S, C-550/16, EU:C:2018:248, para 64; see similarly, ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, EU:C:2020:577, para 44. 144 Emphasis added. See equally, ECJ, A & S, C-550/16, EU:C:2018:248, para 38. 142 143

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(b) the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987 and the European Convention on the legal status of migrant 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.

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))...................................................................................................................... VI. More favourable provisions in national law (Article 3(5)) ...................

mn. 1 3 10 14 15 18

I. General remarks, structure and drafting history Article 3(1)–(3) concern the scope of application of the Directive ratione personae. 1 Whereas Article 3(1) specifies requirements for the sponsor and the family members, Article 3(2)–(3) exclude certain groups of persons from the personal scope of application of the Directive. Article 3(4)–(5) contain rules on the relationship with international agreements and national law. Although the general structure of Article 3 has remained untouched, the provision 2 has experienced three major changes during the negotiation process. Firstly, persons enjoying subsidiary forms of protection were deleted from the scope of application. The second major change was that EU citizens have been completely excluded from the scope of application of the Directive (Article 3(3)). Finally, the third proposal, following Germany’s request, inserted an additional condition in Article 3(1): It requires the sponsor to have ‘reasonable prospects of obtaining the right of permanent residence’.145

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.146 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 a third-country national mentioned in Article 2(a) includes all third-country nationals irrespective of the reasons for their residence.147 However, third-country nationals legally residing in a Member State are eligible sponsors only if they fulfil additional requirements for the type of residence permit according to Article 3(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 145 Commission Proposal, COM(2002) 225 final, p. 5, see Boeles/den Heijer et al., European Migration Law, p. 133. 146 Labayle/Pascouau, Synthesis Report, p. 36. 147 Commission Proposal, COM(1999) 638 final, explanations on Article 3, p. 12.

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more’, Member States are free to require a period of validity of more than one year. However, the period required cannot exceed two years. This follows from Article 8(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.’148 If the qualifying period was longer, the right to family reunification would be devoid of substance.149 Pursuant to the definition of ‘residence title’ in Article 2(e), certain titles, such as visas (Article 1(2)(a) of Regulation (EC) No 1030/2002) may be considered as insufficient to prove that the one-year requirement is fulfilled. Third-country nationals residing in a Member State and holding a residence permit valid for less than a year are not entitled to family reunification, as may be the case for temporary or seasonal workers.150 5 Second, the sponsor must have reasonable prospect of obtaining the right of permanent residence (Article 3(1)). According to the Commission the requirement exempts sponsors from family reunification who have a temporary residence permit without the possibility of renewal.151 In particular, the exclusion applies to au pairs, exchange and placement students.152 Seasonal workers and temporary workers are also excluded.153 The Directive does not prevent Member States from granting them family reunification under national law.154 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.155 Sponsors holding a Blue Card are not required to fulfil the requirement of a reasonable prospect.156 Several Member States refrain from imposing on potential sponsors a requirement of a ‘reasonable prospect’,157 thus utilising the possibility to adopt more favourable provisions in national law (see Article 3 MN 19 et seq.). 6 The prospect required must be ‘reasonable’. It is not entirely clear what this means, as emphasised by several Member States during the stakeholder process following the Commission Green Paper on the right to family reunification.158 In order to asses a sponsor’s reasonable prospects, Member States should examine the prospect of obtaining the right to permanent residence ‘on a case-by-case basis taking into account the individual circumstances, such as the nature and type of residence permit, the administrative practice, and other relevant factors related to the sponsor’s situation.’159 This test pivots on a prognosis of whether the sponsor will prospectively meet the criteria for long term residence in the future, which may afford Member States a margin of appreciation.160 The fact that additional conditions can be imposed with regard to integration, 148

Emphasis added. Commission Proposal, COM(1999) 638 final, explanations on Article 10, p. 18. 150 See Boeles/den Heijer et al., European Migration Law, p. 134. 151 Commission Proposal, COM(2002) 225 final, p. 5. 152 Commission Proposal, COM(2002) 225 final, p. 5. 153 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. 154 Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 36. 155 Peers/Guild et al, EU Immigration Law, p. 250. 156 Boeles/den Heijer et al., European Migration Law, p. 134. 157 See Commission Report, COM(2019) 162 final, p. 2. 158 8 Member States do not apply this criterion in their national law due to its unclarity: Commission, Summary of Stakeholder Responses to the Green Paper on the Right to Family Reunification, 11 May 2012, p. 6, available at: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-is-new/public-consultation/2012/pdf/0023/summary_of_stakeholder_responses_en.pdf [last accessed 4 March 2021]. 159 Commission Communication, COM(2014) 210 final, p. 4. 160 Ibid. 149

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housing and means of subsistence in order to qualify for obtaining a permanent residence permit does therefore not exclude the application of the Directive. It is questionable under which conditions residence permits issued for a specified 7 renewable period of time qualify under the Directive as a ‘reasonable prospect of obtaining the right of permanent residence’. Immigration laws of EU Member States differ substantially with regard to the type and purpose of renewable residence permits. Some Member States provide for renewable residence permits which may eventually become permanent. Some Member States distinguish between immigrant status and status of limited residence. The requirement of a reasonable prospect of obtaining the right of permanent residence permit cannot be interpreted in a very formal and restrictive way as covering only residence permits which under national law provide for a type of ‘immigrant status’. Since the clause is intended to exclude residence permits issued for a specific purpose and limited time period, a sponsor will routinely fall within the scope of the Directive if (s)he holds a permit that – given regular circumstances – may be renewed and eventually transformed into a permanent residence permit. In contrast, residence permits which do not, by their very nature, allow for prolongation or renewability, will usually not support the conclusion that a person has a reasonable prospect of obtaining the right of permanent residence,161 even if an applicant ‘changes tracks’, from one type of residence authorisation to another, granted for a different purpose. Nonetheless, the repeated issuing of these formally nonrenewable extensions with the sole intention of thwarting a person’s ‘reasonable prospects’ to permanent residence would undermine the objective of the Directive.162 In that regard, Peers notes that the question of renewability should take into account, where relevant, whether other EU legislation163 provides for the residence permit to be renewed.164 Some Member States authorise family reunification where the sponsor has a temporary residence permit subject to a minimum period of residence.165 Even if the sponsor does not have the opportunity in this situation to prove her or his reasonable prospect of obtaining a permanent residence permit, this approach does not appear to violate Article 3(1).166 Article 8(1) explicitly permits Member States to require of third country nationals a minimum period of stay before allowing for family reunification, which renders such a national practice in line with the Directive. On the other hand, a sponsor may not rely upon the Directive if the individual 8 situation is subject to national rules which permit the competent authorities to terminate or refuse renewal of a residence permit. Such a decision may be based on public order considerations,167 or the failure to comply with the terms of a residence permit, or where the original purpose of a residence permit has ceased to exist. With regard to the family members of a sponsor, Article 3(1) specifies that they must 9 be ‘third country nationals of whatever status’. Their legal status in the Member State is thus irrelevant. Family members may reside in the Member State for other reasons than family reunification.168 Therefore, the Directive is also applicable to those family members who are asylum-seekers, who have received a negative decision concerning an 161

Commission Communication, COM(2014) 210 final, p. 4. Commission Communication, COM(2014) 210 final, p. 4, 5. 163 For example the Blue Card Directive 2009/50/EC, the former Researchers Directive 2005/71/EC or the Asylum Qualification Directive 2011/95/EU. 164 Peers/Guild et al, EU Immigration Law, p. 252. 165 As practiced in some Member States, Commission Report, COM(2008) 610 final, p. 4. 166 Peers argues that this practice is ‘objectionable’, Peers/Guild et al, EU Immigration Law, p. 250. 167 Whose application is subject to the proportionality assessment; ECJ, G.S., C-381/18 & 382/18, EU: C:2019:1072, para 64. 168 Commission Proposal, COM(1999) 638 final, p. 13. 162

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

III. Non-application (Article 3(2)) Article 3(2) excludes certain groups of persons from being sponsors. The first category are asylum seekers, i.e. applicants for international protection before a final decision on their application has been made (Article 3(2)(a)). The limitation is a result of the ‘reasonable prospects for residence’ criterion, as stipulated in Article 3(1).170 Accordingly, the Directive is applicable in accordance with Article 9 to refugees.171 11 The second category concerns persons residing in a Member State on the basis of 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.172 Beneficiaries of temporary protection have a right to family reunification according to Article 15 of that Directive under the condition that the family member is either him- or herself a beneficiary of temporary protection of a Member State or still in need of it.173 12 The third category concerns persons enjoying subsidiary forms of protection. Whereas the original Commission proposal had included this group of persons, it was excluded from the scope of the Directive following the European Parliament recommendation.174 Subsidiary protection may be ‘protection in accordance with international obligations, national legislation or the practice of the Member States’ (Article 3(2)(c)). Like in the case of persons enjoying temporary protection, applicants who await their decision on such status are equally excluded (Article 3(2)(c)). In E., the ECJ clarified that the Directive likewise excludes sponsors residing on the basis of a subsidiary form of protection where a Member State has rendered the provisions of the Directive applicable to them by virtue of domestic law.175 13 The rights connected to the status of subsidiary protection were subsequently regulated by the former Asylum Qualification Directive 2004/83/EC and its 2011 Recast.176 The Commission had submitted earlier that this Directive should allow for family reunification.177 However, the Asylum Qualification Directive 2011/95/EU does not foresee a right to family reunification, but only the right to ‘family unity’ (Article 23(1) thereof), particularly concerning persons already present in one of the Member States.178 Accordingly, refugees may benefit from family reunification, since they fall within the scope of application of the Family Reunification Directive 2003/86/EC, whereas beneficiaries of subsidiary protection are excluded therefrom (see below Articles 9–12 MN 5). Thus, the current legal framework of Union law does not afford family reunification to beneficiaries of subsidiary protection. 10

169 Commission Proposal, COM(1999) 638 final, p. 13, unlike the in Article 3(2)(b) of the Directive, which only applies to the sponsor, not the family member. 170 Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 106; Boeles/ den Heijer et al., European Migration Law, p. 132. 171 Boeles/den Heijer et al., European Migration Law, p. 132. 172 OJ 2001 L 212/12. 173 See Skordas, Temporary Protection Directive 2001/55/EC, Article 15 MN 13, in this volume. 174 OJ 2000 C 135/75 and Commission Proposal, COM(2000) 624 final, p. 2. 175 ECJ, E, C-635/17, EU:C:2019:192, paras 33 et seq. 176 See Article 18 in conjunction with Article 15. 177 Commission Proposal, COM(2000) 624 final, p. 3. 178 Walter, Familienzusammenführung, p. 175.

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IV. Union citizens (Article 3(3)) Article 3(3) excludes Union citizens from the scope of application. The first 14 proposal only excluded family members of Union citizens exercising their right to free movement of persons from the scope of application.179 Family reunification to those EU citizens today is regulated in the Free Movement Directive 2004/38/EC.180 By contrast, the first proposals on the Family Reunification Directive 2003/86/EC explicitly included family reunification to non-mobile Union citizens, i. e. EU citizens who have not exercised the right of free movement. The reason underlying this rule was that norms on free movement of the EC-Treaty are not applicable to this group of Union citizens.181 Although the Commission’s proposal to include family reunification to EU citizens was welcomed for the reason that it would have put to an end situations of so-called ‘reverse discrimination’,182 Germany vehemently opposed this. It argued that such a provision would have extended family reunification to ethnic Germans (so-called ‘Aussiedler’) and naturalized Germans.183 The Netherland’s government was similarly sceptical, wishing to maintain restrictive rules regarding its own nationals.184 After non-mobile Union citizens were exempted from the scope of the Directive, the Commission indicated that another legislative instrument should be adopted to that end, which has not been achieved. Accordingly, family reunification of this group is still subject to national law.185 Where a Member State decides, by virtue of national law, to apply the Directive to Union citizens who have not exercised their right to free movement, the Court exercises jurisdiction pursuant to Article 267 TFEU for the purpose of ensuring a uniform interpretation of its provisions, even if applied in national law.186 Whereas some Member States apply the Directive to dual nationals, Article 3(3) is unclear in this respect.187 However, in line with the objective of the Directive, it should be presumed that this provision should be interpreted to cover dual nationals who hold the nationality of one Member State.

V. More favourable provisions in international agreements (Article 3(4)) Article 3(4) provides for the applicability of more favourable provisions in interna- 15 tional agreements concerning family reunification. According to Article 3(4), the 179

Commission Proposal, COM(1999) 638 final, Article 3(3). 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’. 181 ECJ, Carpenter, C-60/00, EU:C:2002:434, paras 37 et seq. 182 Boeles, ‘Directive on Family Reunification: Are the Dilemmas Resolved?’, EJML 3 (2001), p. 61, 63. 183 Hauschild, Neues Einwanderungsrecht, p. 269; Council doc. 11524/00 of 4 January 2001, p. 3. 184 Council doc. 5682/01 of 31 January 2001, p. 5; Walter, Familienzusammenführung, p. 271 and 274; Groenendijk/Fernhout et al., The Family Reunification Directive, p. 12. 185 On the different rules applying to the different categories of persons, and the implicit fragmentation of family reunification rights, see Staver, ‘Free Movement and the Fragmentation’, EJML 15 (2013), p. 69–89. 186 ECJ, C and A, C-257/17, EU:C:2018:876, para 32. 187 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 11. 180

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Directive does not interfere with a Member State’s obligations under the agreements and treaties mentioned in that provision.188 These are, first of all, ‘bilateral and multilateral agreements between the Community or the Community and its Member States, on the one hand, and third countries, on the other’ (Article 3(4)(a)). Furthermore, more favourable provisions can be contained in the specified multilateral agreements mentioned: the Agreement creating the European Economic Area of 1992, the Association Agreement with Turkey of 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.189 Article 3(4) (a) is not limited to existing agreements, but relates to agreements that may be concluded in the future, as harmonisation in this field is not comprehensive.190 According to Article 3(4)(b), the Directive is also without prejudice to ‘the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987191 and the European Convention on the legal status of migrant workers of 24 November 1977’. Article 3(4)(b) only applies to Member States bound by those agreements.192 16 The European Social Charter of 1961193 has been ratified by 27 States and the Revised European Social Charter has been ratified by 34 States, with all EU Member States having ratified one or the other.194 The scope of application of the European Social Charter is limited to nationals of the Contracting States and recognised refugees, regardless of their nationality.195 Article 19 of the European Social Charter regulates the right of migrant workers and their families to protection and assistance. In particular, it is provided that with a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake ‘to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory’196 (Article 19(6) European Social Charter). The provision does not entail a direct right to family reunification.197 However, the Committee of Independent Experts has interpreted Article 19(6) European Social Charter broadly, frequently interpreting the duty to ‘facilitate … the reunion’ as an obligation to assist migrant workers and their families by creating the conditions which make family reunion possible.198 The validity of restrictions will be evaluated in the light of Article 19(6) European Social Charter.

188

Emphasised by the ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 107. Boeles/den Heijer et al., European Migration Law, p. 133, note 335. 190 Commission Proposal, COM(2002) 225 final, p. 5. 191 As Ecker, Familienzusammenführung, 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 2 December 2020]. 192 Ecker, Familienzusammenführung, p. 74. 193 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 it, available at: http://www.coe.int/t/dghl/monitoring/ socialcharter/Presentation/TreatiesIndex_en.asp [last accessed 2 December 2020]. 194 State of ratifications as of 3 December 2020, available at: http://www.coe.int/t/dghl/monitoring/ socialcharter/Presentation/Overview_en.asp [last accessed 3 December 2020]. 195 Para 1 and 2 of the Attachment to the Charter; Walter, Familienzusammenführung, p. 92. 196 Emphasis added. 197 Walter, Familienzusammenführung, p. 96. 198 Cholewinski, Migrant Workers in International Human Rights Law. Their Protection in Countries of Employment (OUP, 1997), p. 344. 189

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The European Convention on the legal status of migrant workers199 of 1977 has been 17 ratified by eleven State Parties, thereof only six EU Member States.200 Four EU Member States have signed but not ratified the Convention.201 The Convention only applies to citizens of member states of the Council of Europe which are party to the Convention. Article 12(1) of the Convention specifically deals with family reunion and authorises the spouse and the unmarried minor dependent children of a migrant worker to join her or him, provided the sponsor is lawfully employed in the territory of a Contracting Party and given that these family members are dependent on the migrant worker. However, this ‘entitlement’ is subject to some important caveats; the migrant worker shall must be able to provide for ‘housing considered as normal for national workers in the region where the migrant worker is employed’ (Article 12(1), first sentence of the Convention). This provision is less restrictive than Article 7 (1)(a) of the Directive, since it does not require housing ‘for a comparable family), and the receiving country may render the authorization of family reunification ‘conditional upon a waiting period which shall not exceed twelve months’ (Article 12(1) thereof, second sentence). This waiting period is significantly shorter than the optional two-year waiting period mentioned in Article 8(1) of the Directive. Member States bound by the Convention are limited to the twelve-months waiting period by virtue of Article 3(4)(b) of the Directive. However, a State Party also bound by the Directive may not rely upon less favourable provisions of the Convention. For example, according to Article 12(2) of the Convention, any State may make family reunification ‘conditional upon the migrant worker having steady resources sufficient to meet the needs of the family’, which implies wider state discretion and therefore seems less favourable than the Directive – specifically, Article 7(1)(c) which only allows Member States to require ‘stable and regular resources which are sufficient to maintain himself/ herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned.’ The Convention also permits a State Party to temporarily derogate from the obligation of family reunification ‘for one or more parts of its territory’ (Article 12(3) of the Convention) which is not allowed under the Directive.

VI. More favourable provisions in national law (Article 3(5)) Article 3(5) allows for the ‘the possibility for the Member States to adopt or maintain 18 more favourable provisions’ in their national law.202 This is one of the most controversial provisions of the Directive, even though it has not been discussed in the Commission’s Guidance for Application. The purpose of this provision is to compensate for the fact that the Directive must be considered as only a first step on the way to full harmonisation.203 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 199 European Convention on the legal status of migrant workers, ETS No 93, entry into force on 1 May 1993, available at: http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=093&CM=4& CL=ENG [last accessd 3 December 2020]. 200 France, Italy, the Netherlands, Portugal, Spain and Sweden. The non-EU State Parties 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 3 December 2020]. 201 Germany, Greece and Luxemburg signed the Convention in 1977, Belgium in 1978, all without subsequent ratification thereof. 202 See Thym, Constitutional Framework, MN 28 et seq. on the role and interpretation of clauses on more favourable national provisions. 203 Commission Proposal, COM(2002) 225 final, p. 2, 6; see equally Boeles/den Heijer et al., European Migration Law, p. 133.

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national arrangements to be maintained – was first proposed by the European Parliament, the Commission rejected it arguing that it compromised harmonisation.204 19 The term ‘more favourable provisions’ implies that Article 3(5) may not be used to lower national standards concerning family reunification. Against this background, it could be questioned whether this provision may be read in a way that would allow an extension of the personal scope of application of the Directive. In C and A, the ECJ clarified that Member States, once they decide to apply the provisions of the Directive to family members of EU citizens who have not exercised their right to free movement, they act by virtue of national law.205 The same argument featured in TB, where the Court ruled that the Directive allows Member States latitude in determining which family members of a refugee may qualify for family reunification, but only on the condition that these family members are ‘dependent’ on the refugee.206 In in this regard, the Court added that this finding is ‘without prejudice to the possibility for Member States, under Article 3(5) of [the Family Reunification Directive], to confer a right of entry and residence under more favourable conditions, on the basis of their national law alone.’207 This suggests that the Court does not permit an artificial inflation of the personal scope of the Directive by virtue of the ‘more favourable’ provision. Rather, it explicates that, doctrinally, more beneficial treatment of those third-country nationals who fall outside the personal scope of the Directive are put to practice by virtue of national law.

CHAPTER II Family members Article 4 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 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.

204

Commission Proposal, COM(2000) 624 final, Explanatory Memorandum on amendment 9, p. 4. ECJ, C. and A., C-257/17, EU:C:2018:876, para 31. 206 ECJ, TB, C-519/18, EU:C:2019:1070, paras 40 et seq. 207 ECJ, TB, C-519/18, EU:C:2019:1070, para 43, emphasis added. 205

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

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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)).........................

25 31 38 40 45 48

I. General remarks and drafting history Article 4 concerns the personal scope of application of the family members that are eligible for family reunification. Particular rules apply to refugees according to Article 10 (see below Articles 9–12 MN 8 et seq). 2 The Article was changed significantly during the negotiation process. The first proposal followed the conclusions of the European Council of Tampere that the rights of thirdcountry nationals should be aligned to those of Union citizens.208 The draft directive covered a large scope of family members embracing the nuclear family but also unmarried partners if the legislation of the Member State treated their situation corresponding to that of married couples209, relatives in the ascending line of the sponsor or his spouse or unmarried partner210, and adult children who are objectively unable to provide for their own needs due to reasons of state of health.211 The proposal was opposed by Member States. The Commission, in reaction to the concerns of Member States, considered it impossible to reach a consensus on the obligation to allow entry and residence beyond the nuclear family.212 The third proposal which largely corresponds to the final Directive limited the categories of family members who are entitled to family reunification to the nuclear family, i. e. the spouse and minor children.213 To compensate for these restrictions, a number of optional provisions were introduced in Article 4(2) and (3) that enable Member States to grant family reunification to family members beyond the nuclear family.214 Furthermore, two provisions were inserted which allow restriction of family reunification of minor children above 12 years of age for the purpose of integration (Article 4(1) third subparagraph) and above 15 years of age for purposes of migration management (Article 4(6)). Article 4(4), which was already contained in the original proposal, restricts family reunification for spouses to one in case of a polygamous marriage. Article 4(5) contains an optional provision enabling the Member States to further restrict family reunification by requiring a minimum age for spouses. 1

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

Article 4(1) determines that members of the nuclear family, i. e. the spouse and minor children, are entitled to family reunification. This provision ‘imposes precise positive obligations, with corresponding clearly defined individual rights, on the Member States, 208 Tampere European Council, Conclusion of the Presidency No 18, available at: http://www.europarl. europa.eu/summits/tam_de.htm [last accessed 1 February 2021]. 209 Commission Proposal, COM(1999) 638 final, p. 26, Article 5(1)(a). 210 Commission Proposal, COM(1999) 638 final, p. 26, Article 5(1)(d). 211 Commission Proposal, COM(1999) 638 final, p. 26, Article 5(1)(e). 212 Commission Proposal, COM(2002) 225 final, p. 6. 213 See recital 9 of Directive 2003/86/EC. 214 See Article 4(2) and (3) of Directive 2003/86/EC.

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

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

2. Minor unmarried children (Article (4)(1)(b)-(d) and the second subparagraph) The first subparagraph of Article 4(1)(b)-(d) grant minor children a right to family 6 reunification in case they fulfil the requirements stipulated by the Directive. Children must be minor and unmarried to be eligible (second subparagraph of Article 4(1)). 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 thus, by definition, not regarded as being dependent on the parents’ care. Children are minor if they are below the age of majority laid down by national law in 7 the Member State (second subparagraph of Article 4(1)). The provision refers to the legal age of majority stipulated by the civil law of the Member States, this being 18 in all Member States.218 The second subparagraph of Article 4(1)) prevents Member States from applying a different age of majority to cases of family reunification and migration law in general. According to the Commission, the provision aims at avoiding differences 215 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 60; equally, ECJ, O and Others, C-256/11 and C-357/11, EU:C:2012:776, para 70; ECJ, E, C-635/17, EU:C:2019:192, para 46. 216 For the question whether family formation is included in the scope of application of the Directive, see above Article 2 MN 17 et seq. 217 Stalford, ‘Concepts of Family Under EU Law – Lessons from the ECHR’, International Journal of Law, Policy and the Family, 16 (2002), p. 410–434, and seminally, ECtHR, Judgment of 28 May 1985, Nos 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v. the United Kingdom, para 63; ECtHR, Judgment of 2 November 2009, No 3976/05, Şerife Yiğit v. Turkey, paras 93 to 98, referring to the Turkish imam nikah. 218 See the Fundamental Rights Agency’s survey ‘Mapping minimum age requirements concerning the rights of the child in the EU, available at: https://fra.europa.eu/en/publication/2017/mapping-minimumage-requirements-concerning-rights-child-eu [last accessed 23 January 2021].

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between the regular age of majority in civil law and the age required for children in order to be eligible for family reunification.219 Thus, it guarantees that Member States do not introduce an age of majority which is below the ordinary age of majority in order to restrict family reunification. 8 Member States are allowed to introduce an age limit below the age of majority under an optional clause: The first case is mentioned in the third subparagraph of Article 4(1) and concerns minor children above 12 years of age (see below Article 4 MN 20 et seq.), the other one is regulated in Article 4(6) and concerns minor children above 15 years of age (see below Article 4 MN 48 et seq.). Both options are subject to a standstill clause whereby Member States are prevented from introducing new restrictions as of the date of implementation, i. e. 3 October 2005. 9 In addition to the requirements of being minor and unmarried, Article 4(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/her spouse – (lit. b), the sponsor only (lit. c), or the sponsor’s spouse only (lit. d). 10 Member States are obliged to authorise entry and residence of minor children. Against this background, the ECJ had to clarify at which point in time the condition of minority should be determined in the application procedure.220 Whereas the Directive acknowledges that Member States may determine the age of majority in their national laws, it does not specify the point in time to be taken into account in order to assess that a person is indeed a minor for the purpose of the Directive.221 As Advocate General Hogan explicated in that case, Member States administrations would not be compelled to treat applications of minors as a matter of priority and with the urgency necessary if, by delaying the decision, they could effectively bar an applicant from family reunification, if the person, in the meantime, attains majority.222 Instead, the determination whether a person is a minor must refer to her or his age at the time the application for family reunification is lodged with the competent authorities.223 The date of submission is the point of reference for determining whether the applicant constitutes a ‘minor’. The Court added that the same conclusions apply to a situation where the applicant attains majority in the course of court proceedings for the purpose of judicial review.224 11

a) Minor children of the sponsor and his/her spouse (lit. b). Minor children of the sponsor and his or her spouse are eligible for family reunification according to Article 4(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 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), this provision does not contain an element of dependency. It reflects the ECtHR’s jurisprudence on Article 8 ECHR (see above, Article 1 MN 18 et seq.), according to which the natural family bonds between minor children and their parents will only be presumed to have ceased in the most exceptional cases. Therefore, in case of Article 4(1)(b) an element of dependency must not be demonstrated. 219

Commission Proposal, COM(1999) 638, p. 15. ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, 221 ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, 222 ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, 223 ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, 224 ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, 220

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Adopted children are eligible for family reunification in three different cases under 12 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 to recognise a decision of adoption. Member States are not obliged to recognise a decision issued by the country of origin and not falling under category two or three. However, due consideration must be given to the provision of Article 4(1)(b). Thus, as it explicitly aims at including adopted children, a national decision on recognition of adoption must not be arbitrary. International obligations on recognition of an adoption may stem from Article 21 of 13 the UN Convention on the Rights of the Child225 (CRC). The Convention is binding on all Member States.226 Article 21 CRC specifies that the states parties must ensure that the best interest of the child be the paramount consideration, the adoption must be exclusively authorised by the competent authorities (Article 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 Cooperation in Respect of Intercountry Adoption227 which operates through a system of national central authorities in the countries of origin and of destination. According to Article 23(1) of the Hague Convention, an adoption certified by the competent authority of the state of the adoption and made in accordance with the Convention shall be recognised in the other contracting states. b) Minor children of the sponsor (lit. c). In case the minor child seeking reunifica- 14 tion is that of the sponsor only, the sponsor must have custody over the child, and it must be dependent on him or her (first sentence of Article 4(1)(c)). Both terms are not defined in the Directive and require further interpretation. In the EU Member States, various concepts of custody prevail.228 Since the Directive does not refer to national law, the concept has its own independent meaning in EU law. A comparison of the first and second sentence of Article (4)(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 appears to be of the opinion that the best interest of the child is sufficiently safeguarded. In order to interpret the term, one may refer to the definition of ‘rights of custody’ given in Article 2 no 9 of Regulation (EC) No 2201/2003.229 According to that provision, rights of custody shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child’s 225 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 [last accessed 23 January 2021]. 226 See http://indicators.ohchr.org/ [last accessed 23 January 2021]. 227 Full text in English available at: http://www.hcch.net/index_en.php?act=conventions.text&cid=69 [last accessed 23 January 2021]. 228 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 accessed 23 January 2021]. 229 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); for this conclusion, see Commission Communication, COM(2014) 210 final, p. 5.

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place of residence.230 Thus, a person does not have sole custody where another person has substantial rights or obligations for co-decision relating to the care of the child, for example in relation to issues of the place of residence, school or education or health care of the child.231 This also follows from the definition of ‘shared custody’ as custody that is to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.232 15 The term ‘dependent’ has its own autonomous meaning in EU law.233 In TB, the Court explored the meaning of that term, drawing notable inspiration from its case-law regarding free movement law of EU citizens and their family members. Dependency accordingly results from a factual situation in which that material support for the family member is provided by the holder of the right of residence.234 The Court added that, in order to establish such a dependence, the Member State must assess the financial and social conditions of the family member that must put her or him in a position where (s) he cannot support herself or himself. The dependent person must be in need for material support in the state of origin or at her current place of stay when (s)he applies for family reunification.235 The specific situation of dependent family members of refugees was equally addressed in this regard (see Articles 9–12 MN 10).236 16 The second sentence of Article 4(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.237 In this case, Member States may grant entry and residence only if the other person sharing custody has given his or her prior consent. In such a situation, a child has generally no right to family reunification. Granting of family reunification is in the discretion of the Member States.238 17

c) Minor children of the sponsor’s spouse (lit. d). Article 4(1)(d) entitles the minor 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).

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See also the definition in Commission Communication, COM(2014) 210 final, p. 5. As established by the German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 7 March 2009, case No 1 C 17/08, Neue Zeitschrift für Verwaltungsrecht (2010), p. 262, 263. 232 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). 233 ECJ, TB, C-519/18, EU:C:2019:1070, para 44. 234 ECJ, TB, C-519/18, EU:C:2019:1070, para 47. 235 ECJ, TB, C-519/18, EU:C:2019:1070, para 48. 236 ECJ, TB, C-519/18, EU:C:2019:1070, paras 50 et seq. 237 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). 238 German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 7 March 2009, case no 1 C 17/08, Neue Zeitschrift für Verwaltungsrecht, p. 262, 263. 231

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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 inserted by the third proposal COM(2002) 225239 and was one of the key questions of the negotiations on the Directive. The provision was inserted to meet German requests and reflects a provision in German immigration law at the time which set the age limit, however, at 16.240 According to the third subparagraph of Article 4(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 condition must be provided for by national law or regulation at the date of implementation of the Directive, which was 3 October 2005 according to Article 20(1) of the Directive. Therefore, the standstill clause restrains Member States from making use of this restriction by introducing a condition for integration dependent on a certain age limit after 3 October 2005. Integration conditions or the change of age limits for existing integration conditions that are introduced after this date constitute a breach of the Directive. As a consequence of the standstill clause, Germany is the only Member State which was able to make use of the option by keeping its pre-existing legislation which set an age limit at 16 years.241 Concerning children below 12 years of age, Member States were not and are not allowed to introduce any condition for integration. Recital 12, which was inserted into the Preamble of the Directive in relation to the third subparagraph of Article 4(1), acknowledges that this possible limitation is intended to reflect the children’s capacity for integration at early ages and shall ensure that they acquire the necessary education and language skills in school. In other words, the provision seeks to motivate parents to unify with their children as early as possible in order to foster the children’s integration into the receiving society, which is considered easier at early ages. As an argumentum e contrario, the reunification of children below 12 may not be restricted for purposes of integration. Such a distinction between children under and above the age of 12 may be drawn, as confirmed by the ECJ.242 Member States may refuse entry and residence if the condition for integration is not met since the third subparagraph of Article 4(1) explicitly states that Member States may verify that the person meets this requirement ‘before authorising entry and residence’.243 However, it is unclear what may constitute a ‘condition for integration’ in the sense of the third subparagraph of Article 4(1). The term ‘condition’ implies that 239

Commission Proposal, COM(2002) 225 final, p. 6. Section 20(2) No 2 Gesetz über die Einreise und den von Ausländern im Bundesgebiet of 9 July 1990 (Ausländergesetz), BGBl. I 1990, p. 1354. 241 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). 242 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 75. 243 Emphasis added. 240

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non-compliance categorically excludes family reunification. Thus, the condition for integration is a pre-condition which must be met before entry and residence is authorised.244 Furthermore, the term ‘condition’ may be interpreted to allow Member States stricter requirements than the requirement to ‘comply with integration measures’ mentioned in the second subparagraph of Article 7(2), based on which Member States may require family members to comply with measures demonstrating the ability and their willingness to integrate prior to or after arrival.245 22 The German legal framework that compelled the incorporation of Article 4(1), third subparagraph in the first place requires the minor to demonstrate language skills before entry. Since Article 4(1) entails, in principle, a right to family reunification for minor children, it is questionable which level of language skills may be required in this regard. The German Federal Ministry of the Interior consider language skills corresponding to level C1 of the Common European Framework of Reference for Languages (CEFR) as sufficient.246 Proof shall be furnished by means of a certificate of a suitable foreign or national entity.247 Thus, a condition of integration may take the form of a language test requiring language skills at level C1 CEFR or an equivalent integration test. The compatibility of this relatively high threshold with the Directive may be called into question. With a view to civic integration tests on the language and society, the Court has emphasised that such tests must be assessed in the light of the proportionality principle.248 In analogy, this requirement should equally apply in respect to Article 4(1), third subparagraph. Accordingly, German authorities should adjust the level of the language test to ‘a basic level’, and, in any case, ensure that individual circumstances may be taken into account.249 23 The condition may only be required where the child ‘arrives independently from the rest of his/her family’ (third subparagraph of Article 4(1)). This requirement was inserted on the initiative of France.250 It is questionable whether ‘independent arrival’ may be interpreted as merely relating to the factual arrival of a child separate from the rest of its family, or, as a situation in which a child is going to live separately from his/ her family in the host country. 24 The ECJ ruled that the third subparagraph of Article 4(1) is in compliance with Article 8 ECHR.251 Its reasoning regarding the standstill clause highlighted that Member States cannot employ an unspecified concept of integration, but must apply the condition for integration provided for by their legislation existing on the date of implementation of the Directive. Moreover, according to the Court, this provision does not permit or encourage any mode of implementation that would be contrary to the right to respect for family life.252 On that note, however, the Court reiterated that Member States are, in exercising the margin of appreciation afforded to them by virtue of Article 8 ECHR, to take due account of the interests and factors mentioned in Articles 5(5) and Article 17 of the Directive, the principles of Community law and the case law of the ECtHR on Article 8 ECHR.253 By upholding the legality of the 244

Commission Communication, COM(2014) 210 final, p. 15. Ibid. 246 No 32.2.1. and 32.2.2. of the General Instructions to the Residence Act. 247 No 32.2.2. of the General Instructions to the Residence Act. 248 ECJ, K., C-484/17, EU:C:2018:878, para 21. 249 ECJ, K., C-484/17, EU:C:2018:878, para 22. 250 See Council doc. 6585/03 of 25 February 2003, p. 4: ‘D maintained a scrutiny reservation concerning the words “and arrives independently from the rest of his/her family”, which have been added following a suggestion from F.’ 251 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429. 252 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, paras 60, 70 et seq. 253 Boeles/den Heijer et al., European Migration Law, p. 137. 245

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Family Reunification Directive, in this vein, the Court effectively passed the buck of safeguarding fundamental rights to the implementation stage at national level.254

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.’ This factors out simple practices of authorities, administrative guidelines or instructions. In contrast, reference to law or regulation principally tasks the national legislature or, as the case may be, government. Article 4(2) in the English version stipulates that entry and residence may be granted ‘pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV’.255 The fact that Article 4(2) explicitly mentions ‘Chapter IV’ begs the question whether compliance with the requirements mentioned in Chapter IV is sufficient or whether other conditions of the Directive, such as those regulated in Chapters 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’. However, no conclusion can be drawn from this wording, since the French, Italian and Spanish versions correspond to the English version.256 This suggests that the provision must be interpreted as meaning that the requirements mentioned in Chapter IV must be fulfilled together with other conditions of the Directive. Family members whose family reunification may be authorized under Article 4(2) are therefore not exempt from the general conditions of the Directive.257 The Commission draws the same conclusion, noting that, where a Member State has opted to authorise family reunification of any of the family members listed in Article 4(2), the Directive is fully applicable.258 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 neither grandparents nor uncles and aunts.259 Reunification of these family members is further restricted by two additional requirements listed in Article 4(2)(a). First, they must be dependent on the sponsor or his or her spouse; second, they must not enjoy proper family support in the country of origin. The term ‘dependent’ can be

254

Similarly, Dąbrowska-Kłosińska, Right vs. Integration Conditions, p. 265. Emphasis added. 256 French: ‘au titre de la présente directive, sous réserve du respect des conditions définies au chapitre IV’; Italian: ‘In virtù 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 …’. 257 Ecker, Familienzusammenführung, p. 77. 258 Commission Communication, COM(2014) 210 final, p. 6. The same is said to apply to the optional provisions in Article 4(3). 259 Commission Proposal, COM(2002) 225 final, p. 6. 255

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

IV. Optional admission of unmarried and registered partners (Article 4(3)) 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 partnerships are a category in their own right in Sweden, with specific characteristics.262 Both must be third-country nationals and the admission must be provided for by law or regulation. Some Member States allow for non-married partners to be reunified, such as Ireland, the Netherland or Slovenia, whereas registered partnership is accepted to that end by others, including Belgium, Spain, Italy and Lithuania. No family reunification is granted to non-married partners inter alia in Germany or Poland.263 32 An unmarried partner is eligible for family reunification if he or she ‘is in a duly attested stable long-term relationship with the sponsor’ (Article 4(3)). The element ‘with the sponsor’ suggests that the relationship must be exclusive. The elements of ‘stability’ and ‘long-term’ are not specified in the Directive. Both requirements aim at distinguishing family-like relationships from relationships of convenience. ‘Stability’ 31

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Commission Communication, COM(2014) 210 final, p. 7. Council doc. 6450/01 of 6 March 2001, p. 8, note 1. 262 Council doc. 11330/01 of 2 August 2001, p. 2. 263 This overview is derived from a 2017 study carried out by the European Migration Network, EMN Synthesis Report for the EMN Focussed Study 2016, Family Reunification of Third-Country Nationals in the EU plus Norway: National Practices, Migrapol EMN (Doc. 382), p. 21. 261

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

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

Council doc. 10922/01 of 20 July 2001, p. 3, emphasis added. Council doc. 5682/01 of 31 January 2001, p. 7, Article 5 No 1(a): ‘… living in a duly proven durable relationship’, emphasis added. 266 See Council doc. 10842/01 of 12 July 2001, p. 2. 267 Council doc. 14272/02 of 26 November 2002, p. 7; Walter, Familienzusammenführung, p. 225, note 971. 265

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

VI. Polygamous marriages (Article 4(4)) In the event of a polygamous marriage, the first subparagraph of Article 4(4) excludes a further spouse from family reunification ‘where the sponsor already has a spouse living with him in the territory of the Member State’. The provision was already contained in the first proposal269 and is mandatory.270 Member States are not allowed to grant family reunification to a further spouse in such an event. The preparatory Council documents suggest that this provision is deliberately addressed to female spouses only, who may empirically form the large majority of cases in this regard.271 As the wording of the provision indicates, ‘where a sponsor already has a spouse living with him [emphasis added]’ Member States are barred from granting family reunification.272 Accordingly, it may be concluded that the Directive prevents Member States from authorising family reunification of female spouses in polygamous marriages, without however ruling out the comparable albeit more rare case of polyandry. The provision is intended to reflect the consideration that polygamous marriages are generally not compatible with the fundamental principles of the Member States’ legal orders.273 As such, it is set in sharp relief that the provision does not preclude polygamous marriages of one female spouse with several male persons.274 The prohibition applies irrespective of whether polygamous marriages are recognised as existing under civil law aspects by the national legal order of the country of origin or even under international private law of the Member State. 41 The wording requires that the spouse is ‘living’ in a marital 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 40

268 The question whether Article 17 comprises a right to entry and residence will be discussed below, see below Article 17, MN 4. 269 Commission Proposal, COM(1999) 638 final, Article 5(2). 270 Ecker, Familienzusammenführung, p. 83. 271 Council doc. 6450/01 of 6 March 2001, p. 9, note. 1. 272 In most language versions, the male version of the word ‘spouse’ is used, but may generically relate to male and female spouses alike, for instance the French version of ‘un conjoint’, the Polish ‘małżonek’, or the Dutch ‘echtgenoot’ and the German ‘Ehegatte’. The Romanian language version, in contrast, refers explicitly to the female version of the term, namely, ‘soţie’ which translates as wife. 273 Boeles/den Heijer et al., European Migration Law, p. 136. 274 For a more general critique of the appropriateness of EU law provisions on polygamous marriages, see Stybnarova, ‘Teleology Behind the Prohibition of Recognition of Polygamous Marriages Under the EU Family Reunification Directive: A Critique of Rule Effectiveness’, Journal of Muslim Minority Affairs 40 (2020), p. 104–116, 109.

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the rights of women and children living in a polygamous household. Recital 11 points to such rights stating that ‘the right to family reunification should be exercised in proper compliance with the values and principles recognised by the Member States, in particular with respect to the rights of women and of children; such compliance justifies the possible taking of restrictive measures against applications for family reunification of polygamous households.’ The fact that the sponsor is living in a Member State with another person who is not his spouse is irrelevant provided the spouse is intending to join the family. A right to family reunion requires an existing family relationship. Therefore, the mere formal status as a spouse is not sufficient to establish a right to residence unless the residence permit is for the purpose of family reunification. By analogy to Article 4(4), Member States may not grant family reunification to an 42 unmarried or registered partner where a spouse is already living in the Member State with the sponsor. Since the purpose of Article 4(4) is to protect fundamental rights of women and children living in polygamous households in the Member States (cf. recital 11), the prohibition of family reunification must equally apply if a ‘quasipolygamous household’ would otherwise be established by unmarried or unregistered partners. Family reunification of an unmarried or registered partner therefore must be excluded where an unmarried or registered partner is already living in the Member State with the sponsor (see above, Article 4 MN 40). The children of a further spouse to whom the first subparagraph of Article 4(1) 43 applies are not excluded from family reunification. They may be granted family reunification on the basis of Article 4(1)(c). By admitting in a polygamous marriage one spouse and children for family reunification, Article 4(4) accepts to a certain extent the consequences of a lawfully concluded polygamous marriage.275 This acceptance is based upon the assumption that an absolute prohibition of family reunification would have the effect of depriving the sponsor residing in a Member State of the possibility of leading a normal family life.276 By way of derogation from Article 4(1)(c), according to the second subparagraph of 44 Article 4(4) Member States may limit the family reunification of minor children of a further spouse and the sponsor. However, the best interest of the child may require a Member State to authorize entry and residence of children of another spouse, although the Directive, unlike the first proposal, does no longer contain an explicit clause stating that ‘the entry and residence of children of another spouse shall be authorised if the best interests of the child so require.’277 According to the Commission a child’s interest was meant to prevail over other considerations, for instance where the biological mother had died.278 Instead, Articles 5(5) and 17 of the Directive oblige the Member States to consider a child’s best interest in the same way (see below, Article 5 MN 21). The best interest of the child will regularly require family reunification where the spouse is not able to care for the child or where the spouse has died.279

VII. Minimum age for spouses (Article 4(5)) Article 4(5) stipulates that Member States may on an optional basis require one or 45 both spouses to have a minimum age which may not exceed 21 years. The provision 275

See Boeles/den Heijer et al., European Migration Law, p. 136. Commission Proposal, COM(1999) 638 final, p. 15, explanations on Article 4. 277 Art. 5(2) of Commission Proposal, COM(1999) 638 final. 278 Commission Proposal, COM(1999) 638 final, p. 15, explanations on Article 4, emphasis added. 279 Dienelt, Auswirkungen auf das AufenthG, p. 70. 276

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was introduced on a Dutch initiative.280 Unlike other restrictive provisions281, Article 4(5) is not subject to a standstill clause and a number of Member States have made use of this provision.282 Both Austria and the Netherlands maintain a minimum age requirement for spouses of 21 years.283 While Germany and the UK require a spouse to be 18 years of age, Ireland and Portugal have no such requirement.284 Denmark, which is not bound by the Directive, applies an age limit of 24. Article 4(5) authorises Member States to introduce a minimum age ‘in order to ensure better integration and to prevent forced marriages’.285 The Directive itself lacks a clear definition of the term ‘integration’. However, Article 4(5) does not require that Member States must show a real prospect of integration improvement to make use of Article 4(5). By legislative definition, it is assumed that the introduction of a minimum age serves the purpose of integration as laid down in recitals 4 and 15, preventing forced marriages. This assumption must be taken as granted until the Directive is amended on the basis of an evaluation report.286 Whether a minimum age for spouses does in fact contribute to achieving the purpose of the Directive with respect to integration and prevention of forced marriages has always been a matter of controversy in Member States.287 46 It is questionable at what point in time the condition of a minimum age must be fulfilled. The ECJ ruled in Noorzia that a provision in Austrian law demanding the sponsor and his or her spouse to have attained the minimum age of 21 years by the date when the application is lodged does not violate Article 4(5).288 It argued that, by not defining when the minimum age condition must be satisfied, the Directive leaves to the Member States a margin of discretion; subject to the requirement not to undermine the effectiveness of EU law. Accordingly, Member States may not use their discretion to impair the right to family reunification, render it excessively difficult or undermine the purpose of preventing forced marriages.289 However, the Commission argues that it is sufficient if this condition is fulfilled at the moment of family reunion and not when the application is submitted.290 With a view to the purpose of the provision, namely the prevention of forced marriages, both options appear to fall within the margin of discretion mentioned in Noorzia.291 280

Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 108. See the third subparagraph of Article 4(1) and Article 4(6) of the Directive. 282 See Labayle/Pascouau, Synthesis Report, p. 44. 283 Strik and others, Family Reunification: a barrier or facilitator of integration? A comparative study (Wolf Legal Publishers, 2013), p. 8. 284 Ibid. 285 Emphasis added. 286 See Article 19 of the Directive. 287 See for instance Groenendijk, ‘Rechtliche Konzepte der Integration im EG-Migrationsrecht’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2004), p. 123–130; Groenendijk, A Right under Community Law, p. 220; Kingreen, ‘Verfassungsfragen des Ehegatten- und Familiennachzugs im Aufenthaltsrecht’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2007), p. 13; Hailbronner, Richtlinie zur Familienzusammenführung, p. 1; Tewocht, Der Schutz von Ehe und Familie im Ausländer- und Asylrecht (Universität Halle-Wittenberg, 2008), p. 20. 288 ECJ, Noorzia, C-388/13, EU:C:2014:2092. 289 Ibid., paras 14, 16. Criticism may be levelled at this interpretation by way of reference to the very wording of Article 4(5) which requires that the spouse should be at the minimum age ‘before the spouse is able to join’ the sponsor. In this regard, the spouse is only able to join the sponsor once a positive decision on the application has been adopted, as AG Mengozzi had argued, see on this point, Milios, ‘Family Reunification for Third-Country Nationals: Minimum Age for Spouses, Integration Measures and the Application of the Individual Assessment. Comments on Noorzia and Dogan’, EMIL 17 (2015), p.127–146, 132. 290 Commission Communication, COM(2014) 210 final, p. 8. 291 ECJ, Noorzia, C-388/13, EU:C:2014:2092, para 14. 281

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Article 4(5) does not explicitly provide for an obligation of Member States to make an 47 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.292 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 spouses293 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.’294 This specific statement is clearly limited to a very specific derogation power laid down in the Directive.

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 48 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.295 Austria, however, did not make use of Article 4(6). The age limit of 15 years was only applied with respect 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. The standstill clause stipulates that the derogation must have been provided for by 49 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).296 Only Denmark, which is not bound by the Directive, has introduced an age limit according to Article 4(6) since 7 June 2004.297 The second sentence of Article 4(6) contains a derogation from the first sentence of 50 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. Rather, the obligatory wording is to 292 Peers argues that even though it might be argued that the best interest of a child may rally against admission of a spouse, there is a strong argument that it is in the best interest of the child to grow up in a complete family (referring to Article 24(3) of the EU Charter), Peers/Guild et al, EU Immigration Law, p. 255. 293 Article 4(4) has not been made the subject of the action of Parliament. 294 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 87. 295 Note of the Presidency to the Council, Council doc. 6585/03 of 25 February 2003, p. 9, note. 3. 296 Labayle/Pascouau, Synthesis Report, 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. 297 Labayle/Pascouau, Synthesis Report, p. 57.

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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. 51 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.’298

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 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.

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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.

mn. 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 Time periods and form of the decision (Article 5(4))............................ 16 Best interest of minor children (Article 5(5)) .......................................... 21

I. General remarks and drafting history Whereas Article 5 governs the procedure for family reunification,299 it does not 1 provide for full procedural harmonisation.300 The provision is therefore geared towards the effective application of the Directive’s rights. Article 5 was discussed intensely in the Council and repeatedly amended during the 2 negotiations. Member States were primarily concerned with the administrative burdens of the draft directive. The discussion centred on the question which persons should be required to submit an application (Article 5(1)), the possibility of applying from abroad (Article 5(3)) and the applicable time periods (Article 5(4)). The Commission’s initial proposal to prescribe a six months’ time limit301 was extended to nine months302 with an option for further extra time in exceptional circumstances.303

II. The modalities of the application (Article 5(1)) Article 5(1) defines who can apply for family reunification. The provision stipulates 3 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 299

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. 301 Commission Proposal, COM(1999) 638 final, Article 7(3). 302 This time frame was introduced by the third proposal, COM(2002) 225 final, Article 5(4). 303 Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(4). 300

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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.304 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 (s)he, being resident, will find it easiest to handle the administrative formalities as (s)he will be familiar with the language of the country and the practices of national administrative authorities.’305 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.306 5 The Directive does not describe detailed procedural requirements, whether an applicant has to appear before the authorities in person and whether (s)he may be represented in the proceedings. It is also left to the Member States to lay down rules determining the competent authority to decide on an application for family reunification (embassy, consulate, immigration 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.307 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 disproportionate administrative difficulties, it is within the national discretion to regulate the details of administrative procedure and internal participation of different authorities. 6 The Directive does not make provision for administrative fees. Fees are usually 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.308 The objective and effectiveness of the Directive309 as well as general principles of Union law may limit Member States’ discretion in determining the amount of fees charged.310 Accordingly, fees charged 304 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). 305 Commission Proposal, COM(1999) 638 final, p. 16. 306 Ecker, Familienzusammenführung, p. 223, note 669. 307 See third proposal, Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(3). These matters form part of Member States’ principled procedural and institutional autonomy, see Thym, Constitutional Framework, MN 36–37 e. 308 Fees range from 50 € to 150 €, depending on the arrangements of the respective Member State, Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 11. 309 For that effect, ECJ, E, C-635/17, EU:C:2019:192, para 53. 310 See Thym, Long-Term Residents Directive, Article 5 MN 19.

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must be proportionate. Some Member States have therefore exempted or made special provisions for children and/or persons in need of protection and in particular distressing circumstances,311 as is encouraged by the Commission.312

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 falls, in principle, into the sphere of Member States’ procedural autonomy, the ECJ inferred from the Directive and from general principles of Union law and the CFR several limits thereto.313 In E., the Court accordingly emphasised that the competent national authorities have a margin of discretion in the examination whether a family relationship in fact exists, adding however that this leeway is limited, inter alia by Article 7 CFR, which recognises the right to respect for private and family life.314 Accordingly, national competent authorities’ discretion is bound in this respect to carry out ‘a balanced and reasonable assessment of all the interests at play’,315 which must rest on a case-by-case assessment.316 For that purpose, the sponsor and the family member are obliged to accompany an 8 application inter alia by documentary evidence of the family relationship.317 Applicants are thus under an obligation to cooperate.318 They must submit supporting documents or certificates, inter alia testifying to ‘[the applicants’] identity, the existence of their family relationship and the grounds justifying their application, which amounts to supplying, as far as possible, the required supporting documents and, where appropriate, the explanations and information requested’.319 An application for family reunification must therefore, in principle, be substantiated by ‘all the evidence relevant to the assessment’.320 Where no documentary evidence can be produced, the second subparagraph of 9 Article 5(2) proffers Member States two options for acquiring the information needed. In the first place, Member States may carry out interviews with the sponsor and/or his/ her family member in order to verify that a family relationship exists, provided this is ‘appropriate’. The Court implicitly accepted the appropriateness of an interview where the applicants are asked to explain the reasons for which they are incapable of providing evidence.321 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 option to carry out interviews has been used by most Member States.322

311

Groenendijk/Fernhout et al., The Family Reunification Directive, p. 48. Commission Communication, COM(2014) 210 final, p. 9. 313 See Iglesias Sánchez/Carr, ‘The right to family life in the EU Charter of Fundamental Rights’, in: González Pascual/Torres Pérez (eds), Right to Family Life, p. 40–66. 314 ECJ, E, C-635/17, EU:C:2019:192, paras 52 et seq. 315 ECJ, E, C-635/17, EU:C:2019:192, para 57. 316 ECJ, E, C-635/17, EU:C:2019:192, para 58. 317 ECJ, E, C-635/17, EU:C:2019:192, para 60. 318 ECJ, E, C-635/17, EU:C:2019:192, paras 61 et seq. 319 ECJ, E, C-635/17, EU:C:2019:192, para 61. 320 ECJ, E, C-635/17, EU:C:2019:192, para 62. 321 ECJ, E, C-635/17, EU:C:2019:192, para 62. 322 See Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 11. 312

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In the second place, Article 5(2) allows the authorities ‘to conduct other investigations that are found to be necessary’. Such an investigation might for example concern DNA testing or interviews with other persons. The term ‘may’ implies that the competent national authority has a margin of discretion 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. The requirement to carry out a case-by-case assessment precludes an administrative practice requiring DNA testing in all cases of family reunification of minor children.323 10 Concerning unmarried partners, the third subparagraph of Article 5(2) establishes that ‘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.’324 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.325

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.326 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 Member States’ practice. All EU Member States with few exceptions require applications to be submitted before entry.327 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 with 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. 13 Although the Directive generally deals with issuing a residence permit for a family member residing abroad for the purpose of family reunification in its territory,328 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 11

323 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 (2013), p. 183–202. 324 Emphasis added. 325 Commission Communication, COM(2014) 210 final, p. 9. 326 Third proposal, Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(2). 327 Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 10. 328 See Article 2(d) of the Directive.

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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 14 appropriate 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. 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.329 The Commission report implies that the possibility to always permit in-country applications is ruled out by this provision.330 Under specific conditions, derogation from the principle of application abroad may 15 be required on human rights grounds as incorporated into the Directive in Article 5(5) and Article 17.331 In particular, the best interest of the child (Article 5(5), see below MN 21) may require the acceptance of the application in the Member State.

V. Time periods and form of the decision (Article 5(4)) The first subparagraph of Article 5(4) obliges Member States to give written notifica- 16 tion 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, whilst ensuring fairness and transparency, in order to offer appropriate legal certainty to those concerned’.332 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.333 According to the second subparagraph of Article 5(4), the time limit may be extended 17 ‘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 may. When deciding upon an extension of the deadline, account must be taken of the fact 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 national immigration authority must demonstrate that the complexity of a particular case amounts to

329

See Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(3). 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 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. 331 For an obligation to make an exception under art. 8 ECHR see Austrian Constitutional Court of 18 October 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. 332 Emphasis added. 333 Commission Communication, COM(2014) 210 final, p. 10. 330

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exceptional circumstances.334 There is no final deadline in this case, but it should be kept to a strict minimum necessary to reach the decision.335 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, it is for the Member State to ensure an effective procedure in such cases.336 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. 19 In X, the ECJ was asked whether an implicit acceptance scheme was in conformity with the Directive.337 In the case, Belgium had set up a legal framework pursuant to which a national immigration authority would be obliged to award a residence permit if, after six months of the date the application was lodged, it had failed to finalise the application’s examination.338 Whereas the Court emphasised that Member States may establish schemes that establish implicit acceptance of applications, these legal arrangements must no impair the effectiveness of Union law.339 On the one hand, the Court acknowledged that such a provision pursues the objective of the Directive, namely the promotion of family reunification. On the other hand, in pursuing that objective, Member States must not pre-empt the substantive conditions that it entails.340 This holds true, in particular, with a view to the procedural requirements that applications for family reunification must be accompanied by documentary evidence or by other evidence, which is for the competent national authorities to examine.341 Delays in administrative processing may therefore not automatically cater to a positive decision of family reunification; such a legal design would impair the effectiveness of the Directive and be contrary to its objectives.342 20 Notification of the administrative decision must be in writing (first subparagraph of 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 to effectively exercise his/her right of legal challenge under Article 18.

VI. Best interest of minor children (Article 5(5)) 21

Article 5(5) obliges Member States to take into account the best interests of minor children. This requirement affects the interpretation of the provisions of the Directive.343 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 334 Commission Communication, COM(2014) 210 final, p. 10, with examples of such exceptional complexity. 335 Ibid. 336 See recital 13. 337 ECJ, X, C-706/18, EU:C:2019:993. 338 ECJ, X, C-706/18, EU:C:2019:993, para 25. 339 ECJ, X, C-706/18, EU:C:2019:993, para 26. 340 ECJ, X, C-706/18, EU:C:2019:993, para 27. 341 ECJ, X, C-706/18, EU:C:2019:993, paras 30 et seq. 342 ECJ, X, C-706/18, EU:C:2019:993, paras 34 et seq. 343 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 to 90.

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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’.344 The UN Convention on the Rights of the Child of 20 November 1989345 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.346 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 determine in accordance with applicable law and procedures that such separation is necessary for the best interests of the child.347 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.348 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. This requirement of international law is reproduced in Article 24(2) CFR. In O & S, 22 the Court emphasised that national immigration authorities must make a balanced and reasonable assessment of all interest in play, and that, in the context of that balancing effort, they must particularly take account of the interest of the children concerned.349 This reference does not specify the relative weight to the interest of children in the context of that assessment of all interest in play. Accordingly, the Court of Justice may develop further guidance, derived from Article 24(2) CFR.350

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.

344

See Groenendijk/Fernhout et al., The Family Reunification Directive, p. 54. The Convention entered into force on 2 September 1990, see Perruchoud/Tomolovà, Compendium of international migration law instruments (T.M.C. Asser Press, 2007), p. 78. 346 See Article 3(2) of the Convention. 347 Inter alia ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776, para 76. 348 Concerning the requirement of treating the applications of minors with as a matter of priority and with the urgency necessary, ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, EU:C:2020:577, para 37. 349 ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776, para 81. 350 See Klassen/Rodrigues, ‘The Best Interest of the Child in EU Family Reunification Law: A Plea for More Guidance on the Role of Article 24(2) Charter’, EJML 19 (2017), p. 191–218. 345

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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 mn. I. General remarks .............................................................................................. 1 II. Drafting history ............................................................................................... 2 III. Public policy, security and health ............................................................... 3 1. Public policy and security......................................................................... 4 2. Public health ................................................................................................ 16

I. General remarks 1

Article 6 provides for restrictions of family reunification on grounds of public order, security and health. While the terms of ‘public order’ and ‘security’ are used in a variety of legislative acts the ECJ considers it ‘necessary … to take into account the wording of that provision, its context and the objectives pursued by the legislation of which it forms part.’351 This results in a ‘mixed solution’ that emphasizes the uniform meaning of the terms in the supranational legal order on the one hand, while leaving room for deviations in specific context on the other hand.352 From the objective of the Directive to promote family reunification and to grant protection to third-country nationals which is implemented by imposing precise positive obligations on the member states, the ECJ concludes that the stipulations in Article 6(1) and (2) ‘must be interpreted strictly and the leeway given to the Member States must not be used by them in a manner which would undermine the objective and effectiveness of the directive’.353

II. Drafting history 2

During the negotiations, the provision was changed several times. The Commission originally suggested a paragraph according to which ‘[T]he grounds of public policy or domestic security must be based exclusively on the personal conduct of the family member concerned.’354 This restriction was deleted during the final negotiations in the Council.355

III. Public policy, security and health 3

Article 6(1) allows Member States to reject a family member’s application for entry 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 ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, paras 53–55. See Thym, Legal Framework for EU Immigration Policy, MN 42 b. 353 ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 62. 354 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. 355 See still Commission Proposal, COM(2002) 225 final, Article 6 (3). 351 352

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therefore only specifies the minimum conditions which a national competence norm must fulfil.356 As a general rule, when a residence permit has been granted or renewed although the competent authority was aware of the existence of such grounds, this reason may not be invoked as a ground for withdrawal or refusal to prolong a residence permit.

1. Public policy and security Starting point for the interpretation of the terms ‘public policy’ and ‘public security’ 4 is the settled case-law on EU citizens that a person only poses a to public policy ‘if their individual conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned.’357 In addition to this general assessment, it is necessary to take the wording of the provisions, its context and the objectives of the Directive into account in order to define the specific scope of the concept of ‘grounds of public policy’, within the meaning of Article 6(1) and (2). The concept of public policy always requires more than a mere infringement of the 5 law.358 Generally a ‘present and sufficiently serious threat affecting one of the fundamental interests of the society’ is necessary.359 The requirement of a ‘present’ threat in the context of EU citizens in Article 27(2) of Free Movement Directive 2004/38/EC may be changed to a ‘potential’ threat when it comes to the admission of a third country national, leading to a wider range of aspects that may be taken into account (e.g. personality, integration, political, social and economic situation of a country) when assessing the relevant facts.360 However, it is crucial that the decision is ‘based on a sufficiently solid factual basis’.361 In addition, as a matter of principle, economic considerations are not allowed when deciding on restrictive measures on grounds of public order and public security.362 This general assessment has to be complemented with the specific wording of the provision, its context and origin, as well as the objectives of the Directive in order to address some specific issues. The wording of Article 6(1) and (2) differs from that in Article 27(2) Free Movement 6 Directive 2004/38/EC, since it does not expressly require the personal conduct of the individual concerned to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society for the purpose of regarding that individual as a threat to public policy. This is also reflected in the origins of the provision. The requirement that the grounds of public policy may be based exclusively on the personal conduct of the family member concerned was discussed during the drafting process but ultimately not adopted.363

356 Dienelt, ‘Der ordre public-Vorbehalt in der Familienzusammenführungsrichtlinie’, Informationsbrief Ausländerrecht (2005), p. 445, 446; Schmid-Drüner, Der Begriff der öffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewählter EU-Mitgliedstaaten (Nomos, 2007), p. 397. 357 ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 53. 358 See already ECJ, Bouchereau, C-30/77, EU:C:1977:172, para 35. Equally, Chlebny, ‘Public Order, National Security and the Rights of Third-Country Nationals in Immigration Cases’, EJML 20 (2018), p. 115–134, 120 et seq. 359 ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 53. 360 With regard to the former Students Directive, ECJ, Fahimian, C-544/15, EU:C:2017:255, para 40. 361 ECJ, Fahimian, C-544/15, EU:C:2017:255, para 43. 362 See Article 6(2) Long-Term Residents Directive 2003/109/EC and Article 27(1) Citizenship Directive 2004/38/EC. 363 See ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 59.

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As far as the context is concerned, recital 14 stipulates that ‘the notion of public policy may cover a conviction for committing a serious crime’. This led the ECJ to assume ‘that the mere existence of such a conviction could suffice to establish that there is a threat to public policy, within the meaning of the directive, without it being necessary to establish a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned.’364 Since the competent authorities can establish that a third-country national is a threat to public policy in reliance solely upon the fact that that national has been convicted of a criminal offence the principle of proportionality requires that ‘that offence is so serious, or of such a type, that it is necessary to rule out residence of that national on the territory of the Member State concerned.365 Furthermore, the word ‘may’ 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.366 This interpretation is supported by the fourth sentence of recital 14 which explicitly considers belonging to a terrorist association as sufficient.367 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.368 In summary, a conviction is not necessary, but if there is a conviction, this alone may be sufficient to consider a third country national to pose such a threat.369 8 The fourth sentence of recital 14 clarifies that 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 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.370 9 According to the established case law of the ECJ, the concept of public security under Union law covers both internal and external security.371 However, the term ‘public security’ does not cover threats to international relations. 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.’372 7

ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 58 (emphasis added). ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 66 (emphasis added). 366 Oosterom-Staples, The Family Reunification Directive, p. 451, 482. 367 Oosterom-Staples, The Family Reunification Directive, p. 451, 482 with reference to the term ‘may’ and to the fourth sentence of recital 14. 368 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 28 for Austria, Belgium, Germany and Latvia. 369 Bornemann, ‘Threats to public security in EU immigration law: Finding the right discretion’, European Law Blog of 6 January 2020, available at: https://europeanlawblog.eu/2020/01/06/threats-topublic-security-in-eu-immigration-law-finding-the-right-discretion/ [last accessed 4 March 2021]. 370 For Union citizens the ECJ already in 1974 has decided ‘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’, ECJ, Van Duyn v. Home Office, C-41/74, EU:C:1974:133, emphasis added, para 17; Schmid-Drüner, Der Begriff der öffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewählter EU-Mitgliedstaaten (Nomos, 2007), p. 401. 371 ECJ, Tsakouridis, C‐145/09, EU:C:2010:708, para 43. 372 Council doc. 14272/02 of 26 November 2002, p. 11, note 2, emphasis added. 364 365

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The distinction within Article 6 between rejection of an application for entry and 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 seems to exclude 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).373 ‘The relevant decision’ mentioned in Article 6(2), therefore, refers only to the withdrawal and refusal to renew a residence permit.374 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.375 Thus, regardless of the differentiation between Article 6(1) and (2) the competent authorities have always to take into consideration the nature and solidity of the person’s family relationships, the duration of residence in the Member State and the existence of family, cultural and social ties with the country of origin.376 However, the principle of proportionality applicable to infringements of individual rights does not require the exact same standards of examination with regard to a rejection on the one side and withdrawal or non-renewal on the other side. 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.377 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.378 Thus, different requirements may apply with regard to interferences with existing family relationships 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.379 Hence, in the case of an application for family reunification a conviction of committing a serious crime may 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. 373 Hauschild, Neues Einwanderungsrecht, p. 271. For a reference to para 1 Oosterom-Staples, The Family Reunification Directive, p. 451, 482. 374 See also ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 67 linking the requirement imposed in the second subparagraph of Article 6(2) specifically to the withdrawal of a residence permit or refusal to renew it. 375 Groenendijk, A Right under Community Law, 218. 376 ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 68. 377 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. 378 See ECtHR, Judgment of 21 December 2001, No 31465/96, Şen v. The Netherlands, para 41; ECtHR, Judgment of 31 January 2006, No 50435/99, Rodrigues da Silva and Hoogkamer v. The Netherlands, para 38. 379 See Torres Pérez, ‘The right to family life as a bar to the expulsion of third country nationals in the European Union’, in: González Pascual/Torres Pérez, Right to Family Life, p. 148, 149 et seq.

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The obligation to respect the principle of proportionality and to give reason requires consideration of each case on its own merits. Hence, negative decisions must not merely serve to discourage other applicants.380 Finally, Member States may not introduce additional conditions as that would run counter to the objectives pursued by the Directive. However, because of the complex evaluation necessary involving the prediction of future developments, the necessary national authorities are allowed a margin of discretion in assessing whether the general and specific conditions are met.381

2. Public health 16

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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’.382 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) only speaks 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. Illness or disability suffered after the issue of the residence permit does not qualify as a sufficient reason for refusal, withdrawal or renewal. Rather, it corroborates 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.383 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). The laws of several Member States do not distinguish between illness existing before or after the issue of the residence permit. This is compatible with Article 6(3), provided that illness or disability alone – occurred before or after the issue of the residence permit – are not considered as sufficient reasons to terminate residence.384 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 Organisa380

Oosterom-Staples, The Family Reunification Directive, p. 451, 483. See, by analogy, ECJ, Khachab, C-558/14, EU:C:2016:285, paras 31 et seq. 382 Commission Proposal, COM(1999) 638 final, p. 17, emphasis added. 383 Commission Communication, COM(2014) 210 final, p. 11; see also Article 18(4) Long-Term Residents Directive 2003/109/EC. 384 Dissenting view Labayle/Pascouau, Synthesis Report, p. 91. 381

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tion and such other infectious or contagious parasite-based diseases as are the subject of protective provisions in relation to nationals in the host country’385, may serve as a guideline to interpret Article 6.386 Nonetheless, the Family Reunification Directive, unlike the Free Movement Directive 21 2004/38/EC, provides individuals with the safeguard of a case-by-case assessment when assessing the risk of a threat to public health (see below, Article 17 MN 3). This may be particularly relevant in the context of infectious diseases that spread through human contact and may thus be contained only through generalised restrictions to mobility.387 Member States may not reject applications for family reunification on a generalised basis, without taking due account of the nature and solidity of the person’s family relationships and the proportionality of such a measure.

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)) ......................................

mn. 1 4 4 5 7 8

385 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). 386 Commission Communication, COM(2014) 210 final, p. 11; see equally Thym, Long-Term Residents Directive, Article 18 MN 1. 387 For a discussion of Free Movement law in this respect, see Thym/Bornemann, ‘Schengen and Free Movement Law During the First Phase of the Covid-19 Pandemic: Of Symbolism, Law and Politics’, European Papers 5 (2020), p. 1143, 1162 et seq.

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III. Integration measures (Article 7(2)) ............................................................ 1. Personal scope of application .................................................................. 2. Material scope of application................................................................... 3. Pre-departure integration measures ....................................................... 4. Compatibility of Article 7(2) and of national pre-entry integration requirements with Article 8 ECHR ........................................................ IV. Special rules for refugees...............................................................................

14 14 18 21 30 36

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 State388 and to facilitate the integration of third-country nationals through a certain standard of living.389 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’390 (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.391 The specifying additional sentence that ‘[T]he stable resources criterion shall be evaluated by reference to the nature and regularity of the resources’ was inserted by the third proposal.392 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 renewal393 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’394, was deleted during the final negotiations on request of Austria and Greece.395 3 Article 7(2) allows Member States to require third-country nationals ‘to comply with integration measures’. This provision was inserted during the final negotiations396 on a joint request of Austria, Germany and the Netherlands397 and reflects the tendency of these Member States to combine family reunification policy and integration policy by 1

388 Commission Proposal, COM(1999) 638 final, p. 18. ECJ, Chakroun, C-578/08, EU:C:2010:117, para. 46; ECJ, Khachab, C-558/14, EU:C:2016:285, para. 39. 389 Boeles/den Heijer et al., European Migration Law, p. 142. As Wiesbrock, Legal migration, 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. 390 Commission Proposal, COM(1999) 638 final, Article 9 (1)(c), emphasis added. 391 The request is first mentioned in Council doc. 13968/02 of 12 November 2002, p. 12. 392 Commission Proposal, COM(2002) 225 final, Article 7(1)(c). 393 Commission Proposal, COM(2002) 225 final, second subparagraph of Article 7(1). 394 Commission Proposal, COM(1999) 638 final, Article 9(2). 395 Council doc. 13968/02 of 12 November 2002, p. 13, note 2. 396 Council doc. 13968/02 of 12 November 2002, p. 12, note 1: Para 2(1) was inserted on suggestion of the Presidency. 397 Hauschild, Neues Einwanderungsrecht, p. 271.

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making family reunification subject to integration efforts.398 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 requirements399 (see below, Article 7 MN 30 et seq.).

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). The provision’s wording clarifies that it is the sponsor who must provide accommodation, sickness insurance and resources for him-/herself and his/her family members.400 Whereas Member States may equally take into account the income of other family members when deciding on a first residence permit,401 they are, by virtue of Article 7(1)(c), not obliged to do so. In the context of a residences permit’s renewal, in contrast, Article 16(1)(a) imposes an obligation to include family members’ income in the assessment. In any case, the wording of Article 7(1) prevents Member States from imposing economic conditions on family members.402

2. Accommodation (Article 7(1)(a)) Member States may require evidence that the sponsor has accommodation which is 5 ‘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 affords Member States a margin of appreciation,403 whereas the ‘normalcy’ of accommodation should be assessed with a view to its size, hygiene and safety and against the backdrop of a ‘comparable family’, both in terms of number of family members and of social status.404 The accommodation accordingly must not only be sufficient for the sponsor, but also for the family members. Comparability of accommodation with households ‘in the same region’ allows Member States to take the situation on a municipal or regional level into account, nonetheless, precluding the introduction of stricter requirements.405 The condition that the accommodation ‘meets the general

398 Michalowski/Walter, Family Reunification between EC Law and National Integration Policy, p. 104. Groenendijk, Pre-departure Integration, p. 1 identifies the introduction of language requirements as ‘selection instruments’. 399 See for instance Human Rights Watch, Discrimination in the name of Integration. 400 The ECJ implicitly confirmed this in O & S, ruling that the individual examination of family reunification applications pertains ‘in principle’ to the resources of the sponsor, ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776, para 72. 401 Boeles/den Heijer et al., European Migration Law, p. 143, 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. 402 Boeles/den Heijer et al., European Migration Law, p. 142. 403 See Klassen, The right to family unification, p. 251. 404 Commission Communication, COM(2014) 210 final, p. 11. 405 See for this view, Commission Communication, COM(2014) 210 final, p. 11.

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health and safety standards in the Member States’ means that the accommodation must comply with the Member State’s general hygiene and construction rules. 6 The margin of appreciation that is afforded to Member States by virtue of Article 7(1) must not be used by them in a manner which threatens to undermine the objective and effectiveness of the Directive.406 To this end, the Commission demands that 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’407 and fully enforceable before national courts. Most Member States have used this option.408 National legislation may lay down in detail the size of accommodation or the required number of rooms or refrain from doing so.409 To produce evidence of accommodation, it routinely suffices to present a rental or purchase agreement.410

3. Sickness insurance (Article 7(1)(b)) 7

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 on the social security system in case of sickness and corresponds to similar requirement in free movement law.411 It has been frequently used by the Member States, with some exceptions.412 Accordingly, 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’, as stipulated by the original proposal.413 Compulsory universal health insurance schemes should suffice in this regard, and so should alternative means of sickness insurance, provided they include those risks normally covered.414 Where national law requires health insurance to cover all risks, the same standard may be applied for the purpose of family reunification.415

4. Stable and regular resources (Article 7(1)(c)) 8

Article 7(1)(c) allows Member States to require the sponsor to have stable and regular resources 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 Long406 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43; ECJ, O & S, C-356/11 & C-357/11, EU: C:2012:776, para 74; ECJ, Khachab, C-558/14, EU:C:2016:285, para 25. 407 Commission Communication, COM(2014) 210 final, p. 11. 408 Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 6. 409 Wray/Agoston/Hutton, A Family Resemblance?, p. 224–226. 410 On this point, see Commission Communication, COM(2014) 210 final, p. 12. 411 Cf. Article 7(1)(c) second indent of Free Movement Directive 2004/38/EC; Article 5(1)(b) of LongTerm Residents Directive 2003/109/EC; Article 6(1)(c) of former Students Directive 2004/114/EC. 412 Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 6; exceptions include France. 413 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. 414 Commission Communication, COM(2014) 210 final, p. 12. 415 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.

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Term Residents Directive 2003/109/EC,416 with the exception that Article 7(1)(c) allows the number of family members to be taken into account. The elements of stability and regularity, by virtue of their very wording, allow 9 Member States to carry out a prognosis.417 In Khachab, the ECJ clarified that the competent national authorities are compelled to prospectively assess the sponsor’s resources beyond the date of application for family reunification.418 In this case, Spanish law stipulated that a forecast as to whether a source of income will be retained in the following year needs to be based on the pattern of the sponsor’s resources in the six months preceding the application for family reunification. The ECJ accepted this legal arrangement in the light of the proportionality principle, highlighting, nonetheless, the need to carry out a case-by-case assessment.419 Against this background, it is evident that the provision’s wording in present tense, ensuring that a sponsor ‘has’ should not be interpreted to preclude an assessment on her or his prospects of retaining sufficient resources in the future. The decisive criterion remains the assertion that, in the foreseeable future, an applicant will not depend on the social assistance system of the respective Member State. Evidence for stable and regular resources will generally be produced by way of 10 reference to employment contracts, be they limited or unlimited, evidence of private means or self-employed activities of the sponsor.420 The same may hold true for the sponsor’s resources received through invalidity or retirement pensions, even if such pensions are received from the state,421 as in this case the pension is contributionsbased. Regular income may moreover be substantiated, in principle, by reference to a private bail, a right to alimony or a scholarship, provided the acquired resources fulfil the requirements of stability and regularity.422 In any case, 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.423 Recourse to the social assistance system of the Member State may justify rejection of 11 an application (Article 16(1)(a)).424 The Court affirmed that 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’425. 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

416 However, the interpretation as regards long term residents might not be as strict as for family reunion, see Thym, Long-Term Residents Directive 2003/109/EC, Article 5 MN 3. 417 ECJ, Khachab, C-558/14, EU:C:2016:285, paras 31 et seq. 418 ECJ, Khachab, C-558/14, EU:C:2016:285, para 40. 419 ECJ, Khachab, C-558/14, EU:C:2016:285, paras 44 et seq.; it should be noted in this regard that Spanish law required national authorities to verify ‘beyond doubt’ that the sponsor would be unable to retain sufficient resources before refusing to grant a residence permit for the purpose of family reunification. 420 Commission Communication, COM(2014) 210 final, p. 13; Oosterom-Staples, The Family Reunification Directive, p. 473. For possibility of diverse origins of resources, see also Thym, Long-Term Residents Directive 2003/109/EC, Article 5 MN 7. 421 Oosterom-Staples, The Family Reunification Directive, p. 473. 422 For an overview of Member States’ practices, see Strik and others, Family Reunification: a barrier or facilitator of integration? A comparative study (Wolf Legal Publishers, 2013), at 11 et seq. 423 Commission Communication, COM(2014) 210 final, p. 13. 424 Walter, Familienzusammenführung, p. 177. 425 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 45.

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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’.426 12 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 France427 with the intention to raise the threshold for the resource requirement,428 since minimum wages will regularly be higher than social assistance. In Chakroun, the Court had to clarify whether Member States may introduce a reference amount of 120 % of the legal minimum wage in order to make sure that ‘essential costs arising from exceptional circumstances’ may also be covered.429 At the outset, the judgments acknowledged that the needs of individuals may vary greatly depending on their individual situation. Member States may therefore set ‘a certain sum as a reference amount, but not … a minimum income level below which all family reunifications will be refused, irrespective of an actual examination of the situation of each applicant.’430 In this vein, the Court confirmed that the notion of ‘social assistance’ could not be interpreted as referring to assistance addressing exceptional or unforeseen needs, but rather denotes assistance that compensates for a lack of stable, regular and sufficient resources.431 In any case, most Member States have introduced reference income thresholds for assessing whether the sponsor has sufficient resources and allow for exemptions.432 13 In applying the requirements 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’433 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.’434

III. Integration measures (Article 7(2)) 1. Personal scope of application 14

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). 426 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 46. This definition resembles a rationale originally spelled out in the context of EU free movement law, cf. ECJ, Eind, C-291/05, para 29. 427 Council doc. 13968/02 of 12 November 2002, p. 12. 428 See Walter, Familienzusammenführung, p. 259. 429 See AG Sharpston, Chakroun, C-578/08, EU:C:2009:776, para 29. 430 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 48. 431 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 49. 432 Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 7. 433 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 59. 434 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 64.

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No integration measures can be required of minor children under 12 years of age. 15 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.435 This suggests prima facie that Article 7 remains applicable with a view to children 16 above the age of 12, allowing Member States to impose integration measures on them. It may be questionable, however, if such an interpretation can be reconciled with Article 4(1). The latter spells out a standstill clause permitting Member States to maintain legislation that requires a minor above the age of 12 to meet ‘a condition for integration’. On the one hand, it can be argued that Article 4(1) and Article 7(2) differ in wording, to the end that Member States may be barred from imposing ‘a condition for integration’, whereas they are free to require ‘integration measures’.436 On the other hand, the function of the standstill clause in Article 4(1) is to allow Member States to keep in place existing restrictions in the context of rules on age limits for children above the age of 12. This objective would be effectively undermined if Member States were entitled to require integration measures instead. Refugees and their core family members, i. e. spouses and minor children (Articles 12(1), 17 4(1)) may be required to comply with integration measures only after family reunification is granted (Article 7(2), see below MN 31).

2. Material scope of application Article 7(2) allows Member States to require compliance with integration measures, 18 provided they are laid down in national legislation (‘in accordance with national law’). These measures must genuinely pursue the objective of facilitating the integration of family members and can therefore not be misused to handpick certain family members.437 Admissibility of integration measures depends on whether they serve this purpose and comply with the principle of proportionality.438 National requirements must not undermine the objective of the directive to promote effectively family reunification.439 The term ‘integration measures’ is not defined in the Directive. The practice of the Member States vis-á-vis integration measures varies. They may 19 take the form of pre- or post-entry courses and concern language skills or civic orientation classes.440 The ECJ has clarified in K and A that pre-entry integration tests are, in principle, permissible under Article 7(2).441 With regard to refugees and their family members, Article 7 (2), second indent 20 stipulates that integration measures ‘may only be applied once the persons concerned have been granted family reunification.’442 This provision was introduced on the 435

Ecker, Familienzusammenführung, p. 92. Distinct meanings were attributed to these terms in the context of the Long-Term Residents Directive, see Thym, Long-Term Residents Directive, MN 12. Note that the ECJ reproduced its jurisprudence concerning the Long-Term Residents Directive in the context of the suitability of integration requirements in the Family Reunification Directive, ECJ, K & A, C-153/14, EU:C:2015:453, para 53. 437 Peers, EU Justice and Home Affairs Law, p. 409. 438 Commission Communication, COM(2014) 210 final, p. 15 and ECJ, K and A, C-153/14, EU: C:2015:453, paras. 50 et seq. 439 ECJ, K and A, C-153/14, EU:C:2015:453, para 50. 440 Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 7 et seq. 441 ECJ, K and A, C-153/14, EU:C:2015:453, para 49. 442 Groenendijk, A Right under Community Law, 224. 436

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initiative of the Netherlands which was the only Member State at the time imposing integration requirements on family members of refugees after entry.443

3. Pre-departure integration measures The term ‘integration measures’ gave rise to an intense debate whether language tests or language skills at a certain level may be required under Article 7(2) before entry. Several authors maintained that Article 7(2) allows Member States to require certain efforts to be undertaken, such as participation in a language course, but that it does not permit requests for proof of a certain language level or a certain success in taking said integration measures.444 This argument rests on the terminological difference between ‘integration measures’ and the wording employed by Article 4(1), which refers to ‘integration conditions’. Accordingly, it has been argued that ‘measures’ were to be understood more extensively, thus affording Member States greater leeway in spelling out integration requirements, including those at pre-departure level. 22 The drafting history of the Directive supports the conclusion that the term ‘integration 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 under negotiation.445 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. 23 Compliance with integration measures points to a more process orientated interpretation 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, concerning 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. Otherwise, a performance obligation might fail its purpose to contribute to the success of family reunification446. 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.447 Member States may define such integration concepts, but in doing so they must respect the principle of proportionality.448 Accordingly, integration measures must genuinely pursue the objective of integration449 and 21

443 Hauschild, Neues Einwanderungsrecht, p. 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. 444 Fischer-Lescano, ‘Verschärfung des Ausländerrechts unter dem Deckmantel der Umsetzung von EU-Richtlinien’, Kritische Justiz (2006), p. 236, 241; Groenendijk, A Right under Community Law, 224; Göbel-Zimmermann, Verfassungswidrige Hürden, p. 169, 173; Kingreen, ‘Verfassungsfragen des Ehegatten- und Familiennachzugs im Aufenthaltsrecht’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2007), p. 13, 18; Markard/Truchseß, Ehegattennachzugs im Aufenthaltsgesetz, p. 1027; Walter, Familienzusammenführung, p. 179. 445 Groenendijk, A Right under Community Law, 223. 446 Commission Communication, COM(2014) 210 final, p. 16. 447 See the somewhat stricter definition Commission Communication, COM(2014) 210 final, p. 16. 448 ECJ, K and A, C-153/14, EU:C:2015:453, para 51. 449 Even though doubts may be harboured in this respect vis-á-vis the motives of some Member States’ law makers; for a reconstruction, see Bonjour, Between Integration and Selection, p. 308 et seq.

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should be accessible, free, or at least affordable,450 and adjusted to individual needs, including gender specific needs (e. g. childcare facilities).451 There have been several attempts to clarify the compatibility of pre-departure 24 integration measures before the ECJ. In the Imran litigation,452 the ECJ decided that it was ‘not necessary’ to render judgment after the Dutch authorities granted a residence permit to an Afghan spouse who had not passed a pre-departure civic integration exam.453 The same strategy may be observed in the Ayalti case.454 This may reasonably be considered a ‘covert strategy of selective lenience’ employed by national administrations aiming to postpone or evade an ECJ decision altogether.455 In more drastic words, ECtHR judge Pinto de Albuquerque referred to this as a ‘cost-benefit strategy consisting in “buying” a strike-out decision’.456 In K and A,457 the ECJ finally decided how Article 7(2) is to be interpreted.458 It held 25 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.’459 Thus, the ECJ clarified most of the exhaustively debated issues of Article 7(2). Firstly, it confirmed that Article 7(2), in principle, accepts pre-entry integration measures.460 Secondly, such measures may relate in substance to the knowledge of language as well as society of the Member State,461 since ‘it cannot be disputed’ that such knowledge constitutes a significant asset to facilitate communication and labour market access, encourage integration and is declared ‘undeniably useful for establishing connections with the host Member State’.462 Thirdly, the Court clarified that Member States may, in principle, charge fees for those measures.463 The ECJ emphasized time and time again that the first subparagraph of Article 7(2) 26 is an exception of the general rule of authorising family reunification and hence, must be interpreted strictly.464 Member States may not use measures undermining the objective and effectiveness of the Directive, which is to promote family reunifica450 See AG Kokott, K and A, C-153/14, EU:C:2015:186, paras 54 et seq. 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’. 451 Commission Communication, COM(2014) 210 final, p. 16. 452 ECJ, Mohammad Imran, C-155/11, EU:C:2011:387; see Groenendijk/Strick, Family Reunification since 2000, p. 372 et seq. 453 For this strategy of anticipatory measures taken by Member States’ authorities to evade judgments by European courts, see Baumgärtel, ‘“Part of the Game”. Government Strategies against European Litigation Concerning Migrant Rights’, in: Aalberts/Gammeltoft-Hansen (eds), The Changing Practices of International Law, p. 103, 115 et seq., with further references. 454 ECJ, Ayalti, C-513/12, EU:C:2013:210 455 Block/Bonjour, Fortress Europe, p. 221. 456 Dissenting Opinion of Judge Pinto de Albuquerque in ECtHR, Judgment of 19 March 2015, No 70055/10, S.J. v. Belgium, para 1. 457 ECJ, K and A, C-153/14, EU:C:2015:453. 458 For an analysis, see Jesse, ‘Integration measures, integration exams and immigration control: P and S and K and A’, CML Rev. 53 (2016), p. 1065. 459 ECJ, K and A, C-153/14, EU:C:2015:453, para 72. 460 ECJ, K and A, C-153/14, EU:C:2015:453, para 49. 461 ECJ, K and A, C-153/14, EU:C:2015:453, para 53. 462 ECJ, K and A, C-153/14, EU:C:2015:453, paras 53–54. 463 ECJ, K and A, C-153/14, EU:C:2015:453, paras 64; ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43; ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776, para 74. 464 ECJ, K and A, C-153/14, EU:C:2015:453, para 50.

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tion.465 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.466 As such, the proportionality principle serves as a corrective to Member States’ discretion pursuant to Article 7(2). It delimits Member States’ leeway in three respects: integration measures must be genuinely geared towards integration, reasonably priced and allow for individual circumstances to be considered. 27 The ECJ asserted that integration measures must genuinely cater to the integration of third-country nationals and that the acquisition of language and civic knowledge may be considered to serve that end.467 Conversely, integration measures may not exceed what is necessary to achieve the aim of integration, thus precluding measures that would systematically prevent family reunification. In this regard, the Court ruled that, whilst examinations are principally acceptable on the basis of Art 7(2), the principle of proportionality demands that failing the examination may not automatically lead to an exclusion of the right to family reunification.468 Where a third-country national demonstrates the willingness to pass the exam and made every effort to that end, the principle of proportionality requires Member States to grant family reunification nonetheless. Moreover, the exam must not be excessively difficult to pass and should generally be limited to rudimentary knowledge. In any case, Article 7(2) must not be used as a selection mechanism to filter family members deserving of family reunification and precluding others on the basis of ‘integration measures’. 28 The Court equally clarified that Member States may charge fees for taking integration measures.469 However, the principle of proportionality requires that these fees must not be excessive, effectively rendering practically impossible family reunification. In K and A, applicants were charged a 110 € for a preparation pack and an additional 350 € for course fees, which may be to be incurred every time the examination is taken.470 In this case, the Court concluded that these fees were disproportionate. 29 As a corrective to Member States’ discretion under Article 7(2), the Court moreover utilised the principle of proportionality to compel Member States to allow for considerations pertaining to specific individual circumstances. This may relate to age, illiteracy, level of education, economic situation or health.471 The Court found this interpretation to be corroborated by Article 17, which requires applications for family reunification to be examined on a case-by-case basis.472 This necessitates Member States to allow for a degree of discretion by the decision maker, which may be achieved by virtue of a hardship clause. However, in the case of K and A, the ECJ considered the hardship clause in the Netherlands’ legal framework insufficient to facilitate a duly assessment of individual circumstances.

4. Compatibility of Article 7(2) and of national pre-entry integration requirements with Article 8 ECHR 30

Even before the CFR was vested with binding effect, fundamental rights formed an integral part of Union law’s general principles.473 The ECHR serves as an important 465

ECJ, ECJ, 467 ECJ, 468 ECJ, 469 ECJ, 470 ECJ, 471 ECJ, 472 ECJ, 473 ECJ, 466

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K and A, C-153/14, EU:C:2015:453, para 50. K and A, C-153/14, EU:C:2015:453, para 51. K and A, C-153/14, EU:C:2015:453, paras 53 et seq. K and A, C-153/14, EU:C:2015:453, para 56. K and A, C-153/14, EU:C:2015:453, para 64. K and A, C-153/14, EU:C:2015:453, paras 67, 71. K and A, C-153/14, EU:C:2015:453, para 58 and 60. K and A, C-153/14, EU:C:2015:453, para. 60. Parliament v. Council, C-540/03, EU:C:2006:429, para 35; Article 6(3) TEU.

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source of inspiration in this regard, as is nowadays explicitly confirmed in Article 52(3) CFR. It stipulates that rights contained in the Charter that correspond to rights in the Convention shall have the same meaning and scope as the latter. The explanations to the Article 52 CFR confirm that Article 7 thereof corresponds to Article 8 ECHR. The Directive must therefore be interpreted and applied in accordance with Article 7 CFR, as read in the light of Article 8 ECHR.474 Whereas Article 7(2) was not contested by the Parliament in its claim for annulment,475 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 ECHR476 may indicate under which circumstances Article 7(2) is compatible with Article 8 ECHR. The ECJ largely referred to the established case-law of the ECtHR. According to 31 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’477 and ‘a State has the right to control the entry of non-nationals into its territory’ (see above Article 1 MN 21 et seq.).478 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.’479 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.480 Admission for family reunification will generally depend on whether admission of the foreigner ‘would be the only way … to develop family life’481 or at least the most adequate way to develop family life.482 Only in circumstances such as those underlying the Şen483, Tuquabo-Tekle484 and Rodrigues da Silva and Hoogkamer485 judgments, Member States are under a positive obligation to afford a right to family reunification by virtue of Article 8 ECHR. The ECJ has held that the provisions in the Directive as such do not infringe Article 8 32 ECHR, but merely preserve Member States’ margin of appreciation in immigration matters.486 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.487 The ECJ attached paramount importance to the fact that, in its view, when implementing provisions restricting the right to family reunification, Member States must still

474

Groenendijk, A Right under Community Law, 219. ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 62. 476 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 62. 477 ECtHR, Judgment of 19 February 1996, No 23218/94, Gül v. Switzerland, para 38. 478 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, Gül v. Switzerland, para 38. 479 ECtHR, Judgment of 28 November 1996, No 21702/93, Ahmut v. The Netherlands, para 63; Judgment of 19 February 1996, No 23218/94, Gül v. Switzerland, para 38; ECtHR, Judgment of 1 December 2005, No 60665/00, Tuquabo-Thekle v. The Netherlands, para 42. 480 Hailbronner, Neuregelung des Ehrgattennachzugs, p. 1583, 1586. 481 ECtHR, Judgment of 19 February 1996, No 23218/94, Gül v. Switzerland, para 39. 482 ECtHR, Judgment of 21 December 2001, No 31465/96, Şen v. The Netherlands, para 40; Judgment of 1 December 2005, No 60665/00, Tuquabo-Thekle v. The Netherlands, para 47. 483 ECtHR, Judgment of 21 December 2001, No 31465/96, Şen v. The Netherlands. 484 ECtHR, Judgment of 1 December 2005, No 60665/00, Tuquabo-Thekle v. The Netherlands. 485 ECtHR, Judgment of 31 January 2006, No 50435/99, Rodrigues da Silva and Hoogkamer v. The Netherlands. 486 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 66. 487 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 71. 475

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comply with the principles mentioned in Articles 5(5) and 17.488 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 that 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 implicitly, to adopt implementing provisions that would be contrary to the right to respect for family life.489 33 These arguments are equally applicable to Article 7(2). As a consequence, Article 7(2) itself may not be held incompatible with Article 8 ECHR. Member States are, however, obliged to implement the Directive in a manner that respects general principles, in particular fundamental rights.490 Pre-departure integration measures do not as such violate Article 7 CFR and respectively 8 ECHR, as no unconditional right to family reunification can be inferred from the latter. The obligation to draw a ‘fair balance’491 between interests may compel the possibility for competent authorities to refrain from integration measures. In the light of the Court’s jurisprudence, it may be questionable whether this discretion may be warranted by hardship clauses. In K and A, the Court found the hardship clause in the Netherlands’ national law to be incompatible with the requirement to provide for an individualised assessment, since it only applied to a very limited group of persons.492 National legislation that precludes national immigration authorities’ discretion in this regard may infringe Article 8 ECHR493 and, as the case may be, Articles 5(5) and 17 (see below Article 17 MN 4 et seq.).494 34 The obligation of Member States to draw a fair balance implies that national preentry 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.495 When determining whether integration requirements are proportional to the aim of integration, States enjoy a margin of appreciation. Whereas integration measures may routinely be justified in this regard, circumstances, such as those that gave rise to the judgments in Şen,496 Tuquabo-Tekle497 and Rodrigues da Silva and Hoogkamer498 may require derogations. 35 Where pre-departure integration measures are put in place, proportionality demands that there exists a prospect for family reunification within a reasonable period of time. The German Federal Administrative Court has declared in this regard that a period of

488

ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 66. ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, paras 70 et seq. 490 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 70, see equally Dąbrowska-Kłosińska, Right vs. Integration Conditions, p. 264 et seq. 491 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 54. 492 ECJ, K & A, C-153/14, EU:C:2015:453, paras 61 et seq. 493 Wiesbrock, Legal migration, p. 524. 494 Commission Communication, COM(2014) 210 final, p. 16; Markard/Truchseß, Ehegattennachzugs im Aufenthaltsgesetz, p. 1027. 495 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 66. 496 ECtHR, Judgment of 21 December 2001, No 31465/96, Şen v. The Netherlands. 497 ECtHR, Judgment of 1 December 2005, No 60665/00, Tuquabo-Thekle v. The Netherlands. 498 ECtHR, Judgment of 31 January 2006, No 50435/99, Rodrigues da Silva and Hoogkamer v. The Netherlands. 489

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2–3 years for acquiring the necessary language skills was acceptable.499 Technical questions as to how language training facilities are set up should fall within the margin of appreciation that States maintain under Article 8 ECHR.

IV. Special rules for refugees For refugees and their family members, application of Article 7 is limited by 36 Chapter 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)). Regarding integration measures, Article 7(2) contains a special rule. According to 37 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 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. a 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.500

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.

mn. General remarks, purpose and drafting history....................................... 1 Requirement of two-year period of lawful stay (Article 8(1)).............. 8 Calculation of the two-year qualifying period ......................................... 11 Guarantees of an individual assessment in national law....................... 19

499 German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 30 March 2010, case 1c 8.09, para 49. 500 Walter, Familienzusammenführung, p. 229, note 982.

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I. General remarks, purpose and drafting history Article 8 provides that Member States can foresee waiting periods before family reunification is granted. They may do so in one of two situations. the first paragraph of Article 8 permits Member States to make family reunification subject to the requirement that the sponsor has stayed lawfully in their territory for up to two years, whereas the second paragraph of Article 8 entails a standstill clause allowing Member States to maintain a waiting period proper, i.e. a requirement to wait for up to three years after submission of an application for family reunification. 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 Although the provision’s two limbs pertain to different situations, they produce similar effects, namely the delay of family reunification.501 The first paragraph does so by authorising Member States to make family reunification subject to a period of lawful stay of the sponsor, whereas the second paragraph allows Member States to frustrate immediate reunification by requiring a certain lapse of time between an application for family reunification and the issue of a residence permit. The standstill clause in the second paragraph implies that the sponsor resides legally within the territory of a Member State, since applications will be inadmissible when filed on the basis of an unlawful stay. Therefore, the second option constitutes the more stringent requirement as compared to the criteria of lawful stay of up to two years in the first paragraph. 3 The standstill clause contained in the second paragraph of Article 8 was incorporated with a view to accommodate a legal arrangement existing in Austria,502 which was eliminated as a consequence of the ECJ’s judgment in European Parliament v. Council.503 It is therefore only of very limited practical importance. In contrast, various Member States have introduced requirements of a period of lawful stay.504 The jurisprudence of the Court suggests that Member States must allow for derogations form this rule in individual cases, if respect for fundamental rights so requires.505 4 The rationale of requiring the sponsor to lawfully stay for a period of time 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.’506 Only if the requirement is capable of serving this purpose and respects the principle of proportionality, it is admissible under the Directive.507 It may be doubted whether delays in family reunification may indeed serve this purpose. 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’. The Court’s 1

501

Peers, EU Justice and Home Affairs Law, p. 410. Boeles/den Heijer et al., European Migration Law, p. 135. 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. 503 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para. 99. Apart from Austria, only Croatia maintains a legal arrangement based on Article 8(2), see Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 9. 504 Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 9. 505 Boeles/den Heijer et al., European Migration Law, p. 135. 506 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 98. 507 Commission Communication, COM(2014) 210 final, p. 17. 502

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interpretation of Article 8 is therefore difficult to square with the assumption; if family reunification in itself caters to third-country nationals’ integration, it appears counterintuitive that delays of family reunification serve the same end. The European Convention on the Legal Status of Migrant Workers of 5 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 States508 and five third-countries509. 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 6 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, State Parties may require migrant workers to reside a certain period of time before family reunification is permitted, provided it is not too excessive.510 The Committee has repeatedly taken the view that a three-year waiting period is too long.511 A one-year waiting period was accepted.512 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.513 Apart from some minor language revisions, the drafting history reveals three 7 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’.514 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 the second paragraph of Article 8 was inserted on request of Austria. Finally, the former second paragraph of Article 8 containing special rules for refugees has been shifted to Article 12(2).

II. Requirement of two-year period of lawful stay (Article 8, first paragraph) On an optional basis, Member States may require the sponsor ‘to have stayed lawfully 8 in their territory for a period not exceeding two years, before having his/her family members join him/her’ (Article 8, first paragraph). This requirement does neither apply 508 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 29 October 2020]. 509 Albania, Moldova, Norway, Turkey, Ukraine. 510 Conclusion XV-1, p. 312. The Conclusions are available at: http://www.coe.int/t/dghl/monitoring/ socialcharter/conclusions/ConclusionsYear_en.asp [last accessed 29 October 2020]. 511 European Social Charter Committee of Independent Experts, Conclusions XIII-2, p. 64 and Article 19(6) of Conclusions II and III on Germany. 512 European Social Charter Committee of Independent Experts, Article 19(6) of Conclusions IV and V on Germany 513 The European Social Charter has been ratified by 34 States, the state of ratifications is available at: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/163/signatures [last access: October 2020]. 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. 514 Commission Proposal, COM(1999) 638 final, p. 18.

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to refugees (Article 12(2)), nor to situations that fall under the Blue Card Directive, the Students and Researchers Directive.515 9 If Member States impose a requirement of a period 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.516 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 favourable conditions and display a certain level of integration.517 On the one hand, it could be argued that periods of time of a provisional character do not qualify as ‘lawful stay’ in the sense of Article 8, first paragraph. In this respect, Article 3 (1) requires that the applicant for family reunification is in possession of a residence permit of at least one-year validity open to prolongation, which would factor out for the purposes of calculating the two-year period any shorter stay. Thus, stay on the basis of a short-term visa as well as humanitarian residence permits would have to be excluded from the calculation of a period of lawful stay. On the other hand, the provision is aimed at ensuring a certain level of stability and integration. Thus, it would be inexpedient to disregard periods of temporary lawful stay for the purpose of calculating the two-year time period.518 Member States, however, are not obliged to recognise times of toleration and postponed return.519

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. 12 Article 8, first paragraph 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.520 Member States shall apply the same rules as in national immigration law with regard to the acceptance of short interruptions of lawful stay. As a 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 11

515 Respectively, Directive 2009/50/EC, Article 15(2); Directive (EU) 2016/801, Article 26(2) and Directive 2014/66/EU, Article 19(2). 516 It should be noted that the provisions that preclude the requirement of two-year lawful stay, namely Article 12(2), Article 15 of the Blue Card Directive, and Article 19(2) of the ICT Directive, speak of the sponsor’s residence’, Peers, EU Justice and Home Affairs Law, p. 411. 517 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 92. 518 Commission Communication, COM(2014) 210 final, p. 17. 519 Commission Communication, COM(2014) 210 final, p. 17. 520 Commission Communication, COM(2014) 210 final, p. 17

502

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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 proportionality.521 The qualifying period under Article 8, first paragraph 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 sponsor522 or the date on which the sponsor’s lawful stay as defined above began. The qualifying period may not exceed two years. A considerable additional waiting period is contained in Article 5(4) which affords Member States a nine-months examination period with the possibility of extension.523 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 can delay granting family reunification until the period determined by their legislation expires.524 The qualifying period mentioned in Article 8, first paragraph cannot be extended to three years based on Article 3(1), since this provision requires the sponsor to have a residence permit with a validity of one year. Both provisions concern different aspects. Whereas the qualifying period of Article 8, first paragraph 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.525 Article 8, first paragraph does not distinguish between marriages concluded before and those concluded after a sponsor has taken up lawful residence. Against this background, it may be argued that it is, in principle, within each Member State’s discretion whether and under what conditions the Member States make use of an option laid down in Article 8, provided that the protection of family and children is duly taken into account. If it was contended that this provision is to be exercised in accordance with a general principle of equal treatment, a justification for a difference in treatment of marriages concluded before or after taking up lawful residence could be based on the prevention of marriages of convenience. This view presumes that marriages concluded abroad are more likely to be formed out of convenience. Despite the question whether this presumption is merited, prevention of misuse can generally be considered a legitimate reason justifying restrictions to the right to family reunification, as Article 16(2) and (4) indicate. However, distinctions as to the formation of marriage should be contested in the light of the jurisprudence of both the ECJ and the ECtHR. In Chakroun, the ECJ held 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.526 Although t he decision concerned Article 7(1)(c) (see above Article 7 MN 8 et seq.), the Court’s interpretation notably pertains to the Directive in its entirety. This should provide a strong indication that distinctions regarding marriages formed before or after the sponsor has taken up lawful residence are inacceptable under Article 8, first paragraph. This conclusion is substantiated by the purpose of 521

Peers, EU Justice and Home Affairs Law, p. 411. Commission Proposal, COM(1999) 638 final, p. 18; Commission Communication, COM(2014) 210 final, p. 18. 523 Walter, Familienzusammenführung, p. 178. 524 Commission Report, COM(2008) 610 final, p. 8. 525 Commission Communication, COM(2014) 210 final, p. 17. 526 ECJ, Chakroun, C-578/08, EU:C:2010:117, paras 60 et seq. 522

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Article 8, first paragraph, which, according to the Court, is to ensure that ‘family reunification will take place in favourable conditions’527 and not to prevent misuse. Similarly, in Hode and Abdi, the ECtHR held that a distinction as to whether a family relation was established before or after the sponsor’s entry constituted unequal treatment of comparable cases, and had therefore to be justified by the Member State that wished to introduce such a distinction.528 17 By way of derogation, Member States whose legislation takes their reception capacity 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.529 The phrase ‘by derogation’ mentioned in Article 8, second paragraph is unclear, since both periods apply to different situations: in the case of Article 8, first paragraph, all times of lawful stay accumulated before the application was submitted are taken into account.530 In contrast, the three-year waiting period of Article 8, second paragraph is not based upon an accumulation of periods of lawful stay531. 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. 18 The provision is subject to a standstill clause referring to the date of adoption of the 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.532 Austria is the only Member State which had a corresponding national provision by the time of adoption.533

IV. Guarantees of an individual assessment in national law 19

Article 8 was subject to the claim for annulment brought before the ECJ by the European Parliament in 2003. Although the Court upheld this provision, it ruled that ‘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.’534 Accordingly, the Court referred to Articles 17 and 5(5) to conclude that Member States must allow for a degree of discretion to enable family reunification already before the expiration of the time period if the individual situation so demands.535 This permitted the Court to find Article 8 of the Directive to be in conformity with fundamental rights safeguards. Member States must therefore provide in their domestic laws the option to accommodate the requirements imposed upon them by virtue of Article 8 ECHR and to take due account of the best interest of minor 527

ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 98. ECtHR, Judgment of 6 November 2012, Hode & Abdi v. United Kingdom, No 22341/09; see equally Boeles/Den Heijer et al., European Migration Law, p. 151. 529 Groenendijk, A Right under Community Law, 220. 530 Wiesbrock, Legal migration, p. 244. 531 Ecker, Familienzusammenführung, p. 88, note 231. 532 Commission Report, COM(2008) 610 final, p. 8. 533 Labayle/Pascouau, Synthesis Report, p. 111, although Croatia maintains a similar legal arrangement, Commission Report on the implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final, p. 9. 534 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para. 99. 535 Boeles/den Heijer et al., European Migration Law, p. 135. 528

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children, routinely limiting waiting periods to the strictly necessary.536 This suggests, from the outset, that, Member States may not provide for general blanket waiting periods, precluding recourse to particular circumstance of the specific case, such as strict waiting periods of quota systems. Nonetheless, in a recent judgment, the ECtHR accepted the rationale of a two (or exceptionally: three) years waiting period in the context of family reunification of a third country national with temporary protection status in Denmark.537 Beyond that time period, the insurmountable obstacles to family life progressively assumes more importance in the fair balance assessment.

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. 536 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, paras 63 and 99–101; Commission Communication, COM(2014) 210 final, p. 17. 537 ECtHR, Judgment of 9 July 2021, No 6697/18, M.A. v. Denmark, para. 162.

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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 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 mn. I. General remarks and drafting history........................................................ 1 II. Relationship of Chapter V to the Asylum Qualification Directive 2011/95/EU....................................................................................................... 4 III. Scope of application of Chapter V (Article 9).......................................... 5 IV. Derogations from Article 4 (Article 10) – unaccompanied minors .... 8 V. Derogations from Article 5 (Article 11) – documentary evidence ...... 14 VI. Derogations from Article 7 (Article 12(1)) – Economic and integration requirements ............................................................................... 16 VII. Derogations from Article 8 (Article 12(2)) ............................................... 19

I. General remarks and drafting history Chapter V (Article 9–12) contains special rules for family reunification of recognised refugees, providing for derogations from the provisions of the Directive (see Article 9 (1)). The purpose of Chapter V is to take into account the special situation and needs of refugees and to exempt them from some of the restrictive provisions entailed in the Directive.538 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’, as is stipulated in the Directive’s recital 8. Insufficient transposition of the provisions entailing 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.539 The derogations ‘impose precise positive obligations … without … a margin of appreciation’.540 2 Rules for refugees were originally included in each of the respective provisions of the Directive. The structure was changed by the third proposal which stapled together the 1

538 ECJ, A and S, C-550/16, EU:2018:248, para 32; see equally, Peers, EU Justice and Home Affairs Law, p. 416. 539 Commission Report, COM(2008) 610 final, p. 14. 540 Commission Communication, COM(2014) 210 final, p. 20 referring to ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 60; see equally Peers, EU Justice and Home Affairs Law, p. 417.

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refugee-related provisions of the Directive, albeit not in a comprehensive fashion (see above, Article 7 MN 36 et seq.).541 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 in this respect 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 did not feature in the earlier proposals.542 Chapter V spells out more favourable provisions for refugees, regarding: the special 3 limits on children over the age of twelve (cf. Article 4(1), third sub-paragraph); admission of additional dependent family members; admission of family or guardians of unaccompanied minor refugees; a relaxed standard for evidence to be produced to demonstrate family relations; a principled preclusion of pre-entry integration measures; exemptions from waiting periods as well as accommodation, sickness insurance and resources requirements (cf. Article 7).543 However, Chapter V entails no derogations with regard to Articles 6 and 14, thus permitting Member States to reject reunification of refugees with their families on public policy, security and health grounds, and to limit access to employment.544 The vagueness of the term ‘public policy’ has been reduced by the case-law of the Court (see above Article 6 MN 4 et seq.)

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. Article 23(1) of the Asylum Qualification Directive 2011/95/EU obliges the Member States to ensure that family unity can be maintained. This provision, unlike Article 4 of the Family Reunification Directive, does not grant an individual right to family reunification. According to Article 23(2) of the Asylum Qualification Directive 2011/95/EU, Member States shall ensure that family members of recognised refugees can claim the benefits referred to in Articles 24 to 34 thereof.

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 international protection (Article 3(a)) and persons enjoying temporary (Article 3(b)) or subsidiary protection (Article 3(c)) fall outside the scope of the Directive.545 The exemption of beneficiaries of subsidiary protection resulted from the fact that the Family Reunification Directive was adopted before the first version of the Asylum Qualification Directive 2011/95/EU and therefore merely refers to refugees in the sense of the Geneva Refugee Convention.546 Although some Member States continue to apply the Family Reunification Directive to refugees and beneficiaries of subsidiary protection alike, Member States have increasingly utilised 541

Commission Proposal, COM(2002) 225 final, p. 6. Oosterom-Staples, The Family Reunification Directive, p. 475. 543 Peers, EU Justice and Home Affairs Law, p. 417. 544 Walter, Familienzusammenführung, p. 204. 545 ECJ, K. and B., C-380/17, EU:C:2018:877, para 33. 546 See Peers, EU Justice and Home Affairs Law, p. 416. 542

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this historically-conditioned option to incorporate the distinction between the two groups of persons in their national laws.547 Germany may serve as an illustrative example to that effect. Policy responses to the sharp increase of asylum seekers since 2015 led to family reunification being postponed for beneficiaries of subsidiary protection for two years, which in return may have catered to a sharp increase of decisions affording subsidiary protection.548 Not least in light of these developments, it has been questioned whether a difference in treatment with respect to family reunification of refugees, on the one hand, and beneficiaries of subsidiary protection, on the other hand, could be warranted, legally or empirically.549 In legal terms, Member States may be bound to respect Article 14 ECHR, if it is accepted that the two groups of persons find themselves in a relevantly similar situation and therefore require a justification for difference in treatment.550 A prominent argument in this regard premises on the claim that subsidiary protection would be of a more provisional nature as compared to refugee protection, a view that has been questioned both on legal and empirical grounds.551 6 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.552 If Member States make use of the option, family reunification is subject to the usual conditions and procedures as for other third-country nationals.553 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’.554 7 According to Article 9(3), 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.

IV. Derogations from Article 4 (Article 10) – unaccompanied minors 8

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)).555 The prohibition of Article 4(4) of family reunification of a further spouse in the event of a polygamous marriage is equally applicable. 547 For a comparative overview, see Costello/Groenendijk, Realising the right to family reunification of refugees in Europe (Council of Europe, 2017), p. 34 et seq. 548 See Costello/Groenendijk, Realising the right to family reunification of refugees in Europe (Council of Europe, 2017), p. 34, with further references. 549 Boeles/den Heijer et al., European Migration Law, p. 152. 550 In a recent judgment, the Strasburg court refused to express itself on this aspect, ECtHR, Judgment of 9 July 2021, No 6697/18, M.A. v. Denmark, para 197. 551 For a discussion, see Bast/von Harbou/Wessels, Human Rights Challenges to European Migration Policy. (REMAP study, 2020), p. 114 et seq. 552 Commission Proposal, COM(2002) 225 final, p. 9. 553 European Migration Network, Synthesis Report on Family Reunification, p. 24. 554 Commission Communication, COM(2014) 210 final, p. 21. 555 Boeles/den Heijer et al., European Migration Law, p. 152.

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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.556 On an optional basis,557 Member States may authorise family reunification of any other family member not covered by Article 4, provided (s)he is dependent on the refugee (Article 10(2)). Those other family members may for example be uncles and aunts, parents, grandparents or grandchildren. There is no restriction to the degree and even the biologically relatedness of individuals considered.558 The Court of Justice had the opportunity to interpret the provision’s implication in the case of two sisters’ reunification in Hungary.559 In this regard, it asserted that Member States have significant latitude in determining which other family members may be afforded family reunification, although this latitude is not untrammelled. Rather, Article 10(2) reasserts that other family members must be dependent on the refugee.560 In this regard, a family member is dependent on the refugee where (s)he is not in a financial or social position to support her- or himself in the State of origin and it is ascertained that material support is actually provided by the refugee, or that, having regard to all relevant circumstances, the refugee appears as the family member most able to provide such material support. Relevant circumstances can be the degree of the relationship, the nature and solidity of the relationship, age or the financial situation of other relatives.561 In accordance with Article 17, this compels a caseby-case assessment, which must be conducted in a balanced and reasonable manner with regard to all relevant aspects of the personal situation of the refugee’s sister.562 Dependency may therefore take the form of financial, psychological or physical dependency, depending on the family member concerned, albeit one that is to be corroborated by virtue of an individual assessment (see above Article 4 MN 15). If the sponsoring refugee is an unaccompanied minor as defined by Article 2(f), Member States are obliged, pursuant to Article 10(3)(a), 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)’. Accordingly, family reunification must be granted 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)). Thus, the provisions imposes an obligation on Member States to allow for family reunification of unaccompanied minors.563 The rule also applies in cases of adoption, as the provisions in Article 4 clearly states that natural and adopted children must be treated alike, granting a right to family reunification to all first-degree relatives in the direct ascending line. The Court of Justice has clarified which moment in time should be used to determine whether a third-country national is to be considered a minor.564 In this respect, it rejected the notion that Member States would be free to lay down the moment for such determination themselves.565 Rather, the decisive date for determining whether a refugee, In this sense, ECJ, A & S, C-550/16, EU:C:2018:248, para 47. ECJ, TB, C-519/18, EU:C:2019:1070, para 39. 558 Member States are encouraged, to use their margin of appreciation in the most humanitarian way, Commission Communication, COM(2014) 210 final, p. 22. 559 ECJ, TB, C-519/18, EU:C:2019:1070. 560 ECJ, TB, C-519/18, EU:C:2019:1070, para 40. 561 ECJ, TB, C-519/18, EU:C:2019:1070, para 52. 562 ECJ, TB, C-519/18, EU:C:2019:1070, para 75. 563 ECJ, A & S, C-550/16, EU:C:2018:248, para 34. 564 ECJ, A & S, C-550/16, EU:C:2018:248. 565 ECJ, A & S, C-550/16, EU:C:2018:248, para 39. 556 557

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due to her or his minority, can benefit from that provision is the date of the application for international protection.566 This may effectively cater to a situation in which a refugee who was of minor age at the time of applying for international protection but turned eighteen in the process of the examination thereof may benefit from family reunification for minor refugees. However, the Court complemented this favourable interpretation with the requirement that the refugee concerned is obliged to file an application for family reunification within ‘a reasonable time’. In order to determine which periods of time may thus be considered as reasonable, the Court relied on Article 12(1) third subparagraph as an indication that ‘in principle, [an application for family reunification must] be submitted within a period of three months of the date on which the ‘minor’ concerned was declared to have refugee status.’567 Accordingly, Article 10(3)(a) awards a right to family reunification to those refugees who were below the age of eighteen at the time they submitted their application for international protection but reached majority in the process thereof, insofar as they file their application for family reunification within three months after the decision acknowledging that they are refugees. 13 As an option, Member States may authorise family reunification to the ‘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 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) – documentary evidence 14

Article 11 provides for derogations from the procedural requirements stipulated by Article 5 pertaining to documentary evidence. Whereas Article 5 is generally applicable to applications for family reunification, Article 11(2) provides that ‘[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’. The Court confirmed that lack of documentation cannot, in and of itself, lead to the rejection of family reunification with a refugee.568 Member States’ laws must allow national competent authorities to take due account of the difficulties that refugees may encounter in providing or obtaining official documents from their country of origin. In this respect, national authorities must carry out ‘a balanced and reasonable assessment of all the interests in play’, considering, in particular, the best interest of the children.569 Such a case-by-case assessment must consider all relevant aspects, including age, gender, education, background and social status of the sponsor or family member concerned as well as cultural aspects.570 These elements of assessment must be substantiated by objective, reliable, specific and up-to-date information on the country of origin as well as the specific situation in which the sponsor or the family member find themselves.571 Accordingly, Member States may not provide for an automatic rejection of family reunification, based solely on a lack of official documentary evidence.572 ECJ, A & S, C-550/16, EU:C:2018:248, para 60. ECJ, A & S, C-550/16, EU:C:2018:248, para 61. 568 ECJ, E, C-635/17, EU:C:2019:192, para 79. 569 ECJ, E, C-635/17, EU:C:2019:192, para 57. 570 ECJ, E, C-635/17, EU:C:2019:192, para 63. 571 ECJ, E, C-635/17, EU:C:2019:192, paras 64 et seq. 572 Boeles/den Heijer et al., European Migration Law, p. 153. 566 567

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The concept of family is not restricted to persons that have a ‘blood relationship’.573 15 Where Member States wish to establish family relation for the purpose of family reunification, nonetheless, they may rely on DNA testing, but only as a ‘last resort’ where serious doubts remain after other means of evidence have been examined.574 In this case, DNA testing should comply with the UNCHR principles on DNA testing.575 Whereas the Directive does not preclude Member States from charging the applicant for DNA testing or other investigations, such costs must respect the principle of proportionality.576

VI. Derogations from Article 7 (Article 12(1)) – Economic and integration requirements Article 12(1) contains a clause preventing Member States from requiring a refugee or 16 members of her or his nuclear family577 to provide ‘the evidence that the refugee fulfils the requirements set out in Article 7’. Accordingly, reunification of refugees with their family members must not be made subject to accommodation requirements, health insurance, stable and regular resources or compel family members to undergo integration measures prior entry.578 Member States may confine this exception to refugees’ nuclear family.579 This more favourable regime for refugees580 is subject to two exceptions, which were 17 both inserted during the final negotiations in the Council on request of the German and Dutch delegations581 and which are not further explained by the Council documents. In the first place, ‘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 suggests that the family member must have social, cultural or family ties (see Article 17) to the third country. The third country must qualify as a realistic alternative for family reunification.582 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 with the Member State, not the applicant.583 In the second place, Member States may require the refugee to meet the conditions 18 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 principally act within the sphere of their procedural autonomy, although the Court has inferred from the principle of effectiveness that national law must allow competent authorities to take account of the particular ECJ, O. & S., C-356/11 and C-357/11, EU:C:2012:776, para 55. Commission Communication, COM(2014) 210 final, p. 22–23. 575 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 4 March 2021]. 576 On this point, see ECJ, E, C-635/17, EU:C:2019:192, para 65. 577 Oosterom-Staples, The Family Reunification Directive, p. 475. 578 Cf. Article 7(2), second subparagraph. 579 Boeles/den Heijer et al., European Migration Law, p. 152 et seq. 580 ECJ, K. and B., C-380/17, EU:C:2018:877, paras 43 et seq. 581 Guèvremont, Traitement équitable, p. 207. 582 Oosterom-Staples, The Family Reunification Directive, p. 475. 583 Commission Communication, COM(2014) 210 final, p. 23. 573 574

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circumstances of the case, especially where late submission of an application for family reunification was ‘objectively excusable’.584 However, the second subparagraph of Article 7(2) does not affect the more favourable conditions for refugees as spelled out in Articles 10, 11 and 12(2).585 Accordingly, a refugee who lodges an application for family reunification after the expiration of the three months period, still benefits from the more favourable regime established by Chapter V, including the exemption of predeparture integration measures. Failure to meet the three months period deadline allows Member States merely to impose economic requirements pursuant to Article 7(1).

VII. Derogations from Article 8 (Article 12(2)) 19

Article 12(2) provides that for family reunification of refugees the waiting periods mentioned in Article 8 may not be imposed. Thus, reunification refugees with their families from the date of recognition of refugee status,586 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. In contrast, the ECtHR recently accepted that Member States impose waiting periods for beneficiaries of subsidiary protection in the light of Article 8 ECHR.587

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)) .....................

mn. 1 4

I. Facilitation of entry (Article 13(1)) 1

Article 13(1) stipulates that Member States are under an obligation to authorise entry and grant the family members every facility for obtaining the required visa.588 584

ECJ, K. and B., C-380/17, EU:C:2018:877, para 62. ECJ, K. and B., C-380/17, EU:C:2018:877, para 65. 586 Oosterom-Staples, The Family Reunification Directive, p. 475. 587 ECtHR, Judgment of 9 July 2021, No 6697/18, M.A. v. Denmark, paras. 162 et seq. 588 Commission Report, COM(2019) 162 final, p. 12. 585

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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’.589 In contrast to the current provision the first proposal contained a clause stating that 2 ‘such visas shall be issued without charge.’590 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).591 As access to travel documents and visas is sometimes difficult or dangerous, Member 3 States should take into account the specificities of the case and the circumstances in the country of origin. Therefore, it might be appropriate in some cases to accept emergency travel documents or issue a visa upon arrival in the Member State.592

II. Duration of the residence permit (Article 13(2) and (3)) Member States must grant the family member a first residence permit with a 4 minimum duration of one year, which has to be renewable (Article 13(2)). The family member’s residence title is accessory to the sponsor’s residence title.593 5 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.

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.

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Commission Communication, COM(2014) 210 final, p. 19. Commission Proposal, COM(1999) 638 final, third subparagraph of Article 11(1). 591 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, A Family Resemblance?, p. 224–226. 592 Commission Communication, COM(2014) 210 final, p. 19. 593 ECJ, Y.Z. and Others, C-557/17, EU:C:2019:203, para 47; Tewocht, Der Schutz von Ehe und Familie im Ausländer- und Asylrecht (Universität Halle-Wittenberg 2008), p. 25. 590

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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 mn. I. General remarks and drafting history........................................................ 1 II. Rights of family members (Article 14(1)) ................................................. 5 1. Equal treatment........................................................................................... 5 2. Access to education (Article 14(1)(a))................................................... 7 3. Access to employment and self-employed activity (Article 14(1)(b)) ... 10 4. Access to vocational guidance and training (Article 14(1)(c)) ........ 14 III. Optional restriction of labour market access (Article 14(2) and (3)). 15

I. General remarks and drafting history Article 14 guarantees that once family reunification is granted, family members have the same rights as the sponsor to access to education, the labour market and vocational training. The purpose of this provision, as explained in recital 15, is to promote the integration of family members. Hence, 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.’ 2 More favourable provisions in international agreements apply according to Article 3(4)(a), such as the EEC-Turkey Association Agreement594 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. 3 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’,595 the adopted provision stipulates that family members shall be entitled to the rights mentioned in Article 14 ‘in the same way as the sponsor’.596 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.597 Several Member States opposed the provision, arguing that this wording would lead to family members being treated more favourably than the sponsor.598 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.599 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.600 1

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OJ 1977 C 110/60. Commission Proposal, COM(1999) 638 final, Article 12(1) and Commission Proposal, COM(2000) 624 final, Article 12(1), emphasis added. 596 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.’ 597 Commission Proposal, COM(1999) 638 final, p. 19. 598 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. 599 Commission Proposal, COM(2002) 225 final, p. 10. 600 Peers, EU Justice and Home Affairs Law, p. 412. 595

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Article 14(2) allows Member States to apply a labour market test during the first 12 4 months after admitting a family member. The clause was proposed by Germany during the final negotiations.601 Article 14(3) 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.602 The Commission argued at the time that they should ‘not [be] 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’.603 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 proposal604 the Commission partially responded to the European Parliament’s suggestion to completely remove the restriction.605 An original restriction on the access to vocational training was at first eliminated by the second proposal606 and finally adopted in the text of the provision.

II. Rights of family members (Article 14(1)) 1. Equal treatment Article 14(1) contains a limited equal treatment clause. Family members are entitled 5 to the rights mentioned in Article 14(1) in the same way as the sponsor.607 Thus, where the sponsor is not entitled, for example, to employment, neither is the family member.608 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.609 By virtue of Article 3(5), Member States may decide to treat family members more 6 favourably than the sponsor.

2. Access to education (Article 14(1)(a)) According to Article 14(1)(a) the Member States must grant family members a right 7 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.610 Access to education of children of Turkish workers may not be limited 601

Hauschild, Neues Einwanderungsrecht, p. 272. Commission Proposal, COM(1999) 638 final, Article 12(2). 603 Commission Proposal, COM(1999) 638 final, p. 19. 604 Commission Proposal, COM(2000) 624 final, Article 12(2). 605 Commission Proposal, COM(2000) 624 final, p. 4 with reference to amendment 16 of the European Parliament. 606 Commission Proposal, COM(2000) 624 final, Article 12. 607 See Dienelt, ‘Die Auswirkungen der Familienzusammenführungsrichtlinie auf die Möglichkeit der Aufnahme einer Erwerbstätigkeit’, Informationsbrief Ausländerrecht (2006), p. 1–3. 608 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 34. 609 See Labayle/Pascouau, Synthesis Report, p. 140 on prohibitive fees in Ireland for non EU-nationals for third level education. 610 ‘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, 602

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even if the sponsor’s access is limited.611 Implementation of (a) may take various forms, such as through a general principle of law on equality and non-discrimination.612 8 Article 14(1)(a) does not just include access to general education – primary or secondary – but also to vocational and university education.613 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.614 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 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 2009/50/EC, 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.615 However, the comparison does not allow for 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 generally grants 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. 9 Unlike Article 14(1)(d) of the Blue Card Directive 2009/50/EC and Article 28 of the Asylum Qualification Directive 2011/95/EU, the Family Reunification Directive does not contain a provision regarding recognition of diplomas and other professional qualifications.616 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 on the recognition of professional qualifications617 for Union citizens, although such criteria 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.’ 611 ECJ, Gürol, C-374/03, EU:C:2005:435. 612 Commission Report, COM(2008) 610 final, p. 14. 613 Commission Proposal, COM(1999) 638 final, p. 19. 614 ECJ, Gürol, C-374/03, EU:C:2005:435. 615 Article 14(2) of the Blue Card Directive 2009/50/EC. 616 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. 617 Directive 2005/36/EC (OJ 2005 L 255/22) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications.

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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.618 Article 14 was adopted, nonetheless, which implies at least a limited competence to regulate admission of family members to the national labour markets.619 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.620 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. The right mentioned in Article 14(1)(b) is granted to the spouse, minor children and to first-degree relatives in the direct ascending line or adult unmarried children to whom Article 4(2) applies (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 18 et seq.). Member States are required to grant family members an effective right to access for employment that would be violated by complicated procedures or an obligation to pay excessive monthly fees for a work permit.

10

11

12

13

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 14 and further training and re-training. Just as 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.

III. Optional restriction of labour market access (Article 14(2) and (3)) To promote the integration of family members (recital 15) and avoid deskilling and 15 poverty traps, restrictions on labour market access should be kept to a minimum.621 The option set out in Article 14(2) has been applied by only a few Member States and the option under Article 14(3) by Slovakia only.622 Article 14(2) allows Member States to decide the conditions under which family members shall exercise an employed or self618 Groenendijk, A Right under Community Law, 222; Council doc. 10857/02 of 9 August 2002, p. 18, note 3. 619 Walter, Familienzusammenführung, p. 192–193. 620 Commission Report, COM(2008) 610 final, p. 13. 621 Commission Communication, COM(2014) 210 final, p. 19–20. 622 Commission Report, COM(2019) 162 final, p. 14.

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employed activity. The wording and structure is not very clear and may give rise to different interpretations. 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 or certification requirements. 16 Whereas the Council Presidency had originally suggested the term ‘modalities’ in Article 14(2), the German and Austrian request to replace the term with ‘conditions’ was accepted in the Council.623 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. 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.624 The possibility to restrict access to 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.625 Recital 15 does in fact explicitly connect promotion of integration with access to the labour market. 17 Since Article 14(2) draws a distinction between the ‘conditions under which family members shall exercise an employed or self-employed activity’ on the one hand, and the labour market situation on the other hand, 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 situation. 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 must be lifted at the latest at the expiry of 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) rally in favour of an interpretation that considers ‘conditions’ to relate in a broad sense to the situation of the national labour market.626 18 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 indicates this, Article 14(2) may serve to restrict (or sometimes even completely exclude) labour market access in the first year.627 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’.628 A general ban for one year is only admissible if the situation on the labour market is characterised by a generally high unemployment rate.629 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 623

Council doc. 6585/03 of 25 February 2003, p. 18 note 1. Boeles/den Heijer et al., European Migration Law, p. 149 et seq.; Guèvremont, Traitement équitable, p. 217. 625 Guèvremont, Traitement équitable, 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. 626 Groenendijk, A Right under Community Law, 222; Thiele, ‘Einwanderung im Europäischen Gemeinschaftsrecht – Familienzusammenführung und Daueraufenthalt von Drittstaatsangehörigen’, Europarecht (2007), p. 419, 430; Brinkmann, Transposition in Germany, p. 39; Guèvremont, Traitement équitable, p. 217; Commission Report, COM(2008) 610 final, p. 14. 627 Different view Groenendijk, A Right under Community Law, 222. 628 Emphasis added. 629 For a critical assessment, see Peers/Guild et al, EU Immigration Law, p. 263 note 104. 624

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applicant,630 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. According to Article 14(3), Member States may optionally restrict labour market 19 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 equal treatment clause contained in Article 14(1).631 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 Article 10(3) may not be restricted. Family members falling outside 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 those persons access to the labour market on the basis of national law.

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))............................

630 631

mn. 1 4 7 7 12 16 19 20

ECJ, Chakroun, C-578/08, EU:C:2010:117, para 48. Guèvremont, Traitement équitable, p. 216.

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I. General remarks and purpose Residence permits granted to family members for the purpose of family reunion are 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 authorisation. 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: – 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 provision’s common purpose is to improve integration chances. Autonomy of status is considered as a major element of integration promotion.632 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. Although recognised as a principle in most Member States, opinions differ 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.633 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. 1

II. Drafting history Article 15 was changed several times during the negotiation process. The originally proposed period of four years until an autonomous residence permit should be given was extended to five years by the third proposal in order to receive consistency with the Long-Term Residents Directive 2003/109/EC, which grants long-term resident status after five years of legal residence.634 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’.635 In 4

632

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. 634 Commission Proposal, COM(1999) 638 final, Article 13(1); Commission Proposal, COM(2001) 127 final. 635 The new phrase was first contained in Council doc. 5508/03 of 23 January 2003, p. 19. 633

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addition, a phrase was inserted that the autonomous residence permit is issued ‘upon application, if required’. The first subparagraph of Article 15(3), which provides for optional granting of an 6 autonomous residence permit, originally contained a clause that persons applying for an autonomous residence permit ‘have been resident for at least one year’.636 This requirement was waived by the third proposal,637 which included a phrase stating that ‘an independent residence permit may be issued’638 instead of the former version that ‘persons … may apply for an autonomous residence permit’.639 The word ‘independent’ has been replaced by ‘autonomous’ again during the final negotiations. 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.640 Furthermore, Article 15(4) was inserted during the final negotiations on request of Austria.641

III. Autonomous residence permit (Article 15(1)) 1. Requirements Article 15(1) specifies that an autonomous residence permit shall be granted to family 7 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.642 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.).643 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.644 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 8 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’.645 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 9 ‘upon application if required’. Member States are not obliged to grant the residence permit ex officio. 636

Commission Proposal, COM(1999) 638 final, Article 13(3). Commission Proposal, COM(2002) 225 final, Article 15(3). 638 Emphasis added. 639 Commission Proposal, COM(2002) 225 final, Article 15(3), emphasis added. 640 Commission Proposal, COM(2002) 225 final, Article 15(3). 641 Council doc. 13053/02 of 23 October 2002, p. 19. 642 Boeles/den Heijer et al., European Migration Law, p. 150; Guèvremont, Traitement équitable, p. 220. 643 ‘Residence should be understood as lawful stay’, Commission Communication, COM(2014) 210 final, p. 20. 644 Commission Report, COM(2008) 610 final, p. 13 with reference to Hungary. 645 Commission Proposal, COM(1999) 638 final, Article 13(1). 637

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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 to spouses by virtue of Article 4(3). 11 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’.646 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.647 The 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.648 10

2. Optional limitation to cases of breakdown of the family relationship Article 15 (1), second subparagraph, contains an optional limitation clause. In the event of a breakdown of the relationship, the right to an autonomous residence permit must (if the conditions are fulfilled) in any case still be given to the spouse or unmarried partner, but Member States are allowed to exclude an adult child.649 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.’650 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.651 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.652 One may only presume that the underlying reason for restricting the granting of an autonomous residence permit was the Member States’ concern about abuse.653 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 12

646 Guèvremont, Traitement équitable, p. 221; Hauschild, Neues Einwanderungsrecht, p. 272; Weichselbaum, ‘Hochsaison für Familiennachzug? Kritische Gedanken zur Familienzusammenführungs-Richtlinie und zum Erkenntnis VfGH 8.10.2003, G 119, 120/3’, juridikum (2004), p. 24, 25. 647 Commission Proposal, COM(2002) 225 final, p. 10. 648 Commission Proposal, COM(1999) 638 final, p. 19. 649 Commission Communication, COM(2014) 210 final, p. 20. 650 ‘Die Mitgliedstaaten können bei Ehegatten oder nicht ehelichen Lebenspartnern die Erteilung des in Unterabsatz 1 genannten Aufenthaltstitels auf Fälle, in denen die familiären Bindungen zerbrechen, beschränken.’ Emphasis added. 651 Ecker, Familienzusammenführung, p. 97; Hailbronner, Richtlinie zur Familienzusammenführung, p. 1, 6. 652 The provision was first mentioned in Council doc. 5508/03 of 23 January 2003, p. 19. 653 Guèvremont, Traitement équitable, p. 221.

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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 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. However, according to 15 Article 15(4), Member States are entitled to specify the conditions of granting an autonomous residence permit by virtue of their national laws, even though the cases explicitly mentioned in Article 15(3) (widowhood, divorce, separation, death) may serve as a guideline for interpretation.654

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.655 Article 15 does not contain an obligation to grant those persons an autonomous residence permit.656 The issuance of an autonomous residence permit to those family members remains discretionary.657 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.658 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.659 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.660 A minimum qualification period of one year which was contained in the original proposal661 has been waived by the third proposal.662 654

Commission Communication, COM(2014) 210 final, p. 20. Commission Proposal, COM(1999) 638 final, p. 20. 656 Boeles/den Heijer et al., European Migration Law, p. 150. 657 Boeles/den Heijer et al., European Migration Law, p. 150. 658 See Commission Proposal, COM(1999) 638 final, p. 20. 659 Dienelt, Auswirkungen auf das AufenthG, p. 125. 660 Boeles/den Heijer et al., European Migration Law, p. 150 et seq. 661 Commission Proposal, COM(1999) 638 final, Article 13(3). 662 Commission Proposal, COM(2002) 225 final, Article 15(3). 655

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The Directive does not further define these terms and refers to national law for specification.663 However, a comparison with Article 15(3) allows the conclusion that breakdown of a family relationship alone does not constitute particularly difficult circumstances.664 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.665 Thus, Article 15(3) is aimed at protection against particular difficult circumstances,666 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.667 Therefore, Article 15(3) requires that the particularly 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.668 It applies to all family members who have entered by virtue of family reunification.669 The second sentence of Article 15(3) may also apply in order to protect minor children.670

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.671 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.672 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.673 The five-year maximum time limit may not be exceeded. Member States may generally 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.674 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. Thus, when laying down the conditions Member States’ discretion is limited by Article 5 of the Long-Term 20

663

Boeles/den Heijer et al., European Migration Law, p. 151. Commission Proposal, COM(1999) 638 final, p. 20. 665 Commission Proposal, COM(1999) 638 final, p. 21. 666 These might comprise risk of female genital manipulation or forced marriages, Commission Communication, COM(2014) 210 final, p. 20. 667 See German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 9 June 2009, case 1 C 11/08, Neue Zeitschrift für Verwaltungsrecht (2009), p. 1432, 1436. 668 Guèvremont, Traitement équitable, p. 221. 669 Commission Communication, COM(2014) 210 final, p. 20. 670 See Walter, Familienzusammenführung, p. 200, note. 875. 671 Hauschild, Neues Einwanderungsrecht, p. 272. 672 Guèvremont, Traitement équitable, p. 221. 673 ECJ, C and A, C-257/17, EU:C:2018:876, para 52. 674 See Groenendijk et al., The Family Reunification Directive, p. 35. 664

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Residents Directive 2003/109/EC which specifies requirements such as stable resources, health insurance, and integration conditions.675 According to the ECJ, Member States are generally permitted to require a civic 22 integration test on the language and society of that Member State ‘provided that the detailed rules for the requirement to pass that examination do not go beyond what is necessary to attain the objective of facilitating the integration of those third country nationals’.676 Therefore, the knowledge required to pass the civic integration examination has to be at a basic level, fees may not be excessive and specific individual circumstances have to be taken into account. Furthermore, it is sufficient if the person has demonstrated the willingness to pass the examination and made every effort to achieve that objective. Especially the age, level of education, economic situation or health of a sponsor’s relevant family members may lead to a disproportionality of the requirement to pass (or even take) such a test.677

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.

675

Walter, Familienzusammenführung, p. 200. ECJ, C and A, C-257/17, EU:C:2018:876, para 65; ECJ, K, C-484/17, EU:C:2018:878, para 24. 677 ECJ, K, C-484/17, EU:C:2018:878, para 22 et seq. 676

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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))......................................................

mn. 1 3 3 4 7 10 11 13 14

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. 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)) 3

Article 16(1)(a) provides that rejection of an application, withdrawal and nonrenewal may be based on the ground that the conditions of the Directive are no longer fulfilled. When the condition of sufficient resources (Article 7(1)(c)) is not fulfilled anymore, 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 526

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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 4 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’.678 A ‘real’ marital or family relationship requires the existence of a genuine bond, as 5 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.679 ‘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.680 A real family relationship may also exist outside of a marriage between a parent 6 and a 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.’681 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 maintain and has maintained that this ipso iure family relationship can only be assumed to have ceased in exceptional circumstances.682

678

Oosterom-Staples, The Family Reunification Directive, p. 484. Staiano, Good Mothers, Bad Mothers, p. 157. 680 Grabenwarter, European Convention on Human Rights. Commentary (Beck, 2014), p. 205, MN 17. 681 ECtHR, Judgment of 21 June 1988, No 10730/84, Berrehab v. The Netherlands, para 21; Judgment of 19 February 1996, No 23218/94, Gül v. Switzerland, para 32. 682 Martín, ‘Immigration et regroupement familial dans l’Union européene: un droit à géométrie variable?’, Revue du Droit de l’Union Européenne 4 (2005), p. 721, 756. 679

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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 may be considered as ground for refusal. 8 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 32 et seq.). 9 The regulatory content in relation to polygamous family situations in Article 16(1)(c) differs from that in Article 4(4). The refusal in Article 4(4) is obligatory and related to the situation where the sponsor is already living with another spouse within the Member State. The refusal in Article 16(1)(c) is discretionary but has a broader scope of application, as it only requires the relationship or marriage with another person and no existing or envisaged cohabitation. 7

4. False information (Article 16(2)(a)) 10

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 generally 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 identify the person who provided or used those documents or who committed the fraud, nor does it require that there was an intention to defraud on the part of the family member, or even that it was aware of that fact.683 Therefore, the fact that family members did not know of the fraudulent nature of the documents provided to prove that the sponsor has stable and regular resources does not preclude the Member State concerned from withdrawing their permits. This extensive accountability of family members was justified by the ECJ with the fact that their right of residence is a right derived from that of the sponsor concerned as long as they do not have an autonomous right of residence.684 Furthermore, Member State must be able to reject an application of a family member where false or falsified documents are produced in support of that application and the grounds for the withdrawal of a residence permit and those for the rejection of an application must be interpreted in the same way.685 However, such a decision may not be taken inconsiderately. Due account has to be taken of Article 5(5) and 17. Member States must first examine, on a case-by-case basis, the situation of the family member concerned, by making a balanced and reasonable assessment of all the interests in play (See Article 17 MN 3 et seq.).

5. Relationship of convenience (Article 16(2)(b)) 11

Article 16(2)(b) seeks to combat fraud and marriages, adoptions and partnerships of convenience. The Council already adopted a Resolution on measures to combat 683

ECJ, Y.Z. and Others, C-557/17, EU:C:2019:203, paras 43, 46. ECJ, Y.Z. and Others, C-557/17, EU:C:2019:203, para 47. 685 ECJ, Y.Z. and Others, C-557/17, EU:C:2019:203, para 45. 684

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marriages of convenience in December 1997.686 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.687 When making an assessment whether a relationship of convenience has been 12 concluded, Member States may take into consideration 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,688 although the ECJ rejected such a distinction with regard to the requirements set out in Article 7(1)(c).689 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.690 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 13 members of his/her family must leave the Member State with him/her, since their right of residence depends the right of the sponsor. 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.691 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).692

III. Checks and inspections (Article 16(4)) Article 16(4) adds that Member States may conduct specific checks and inspections 14 where there is reason to suspect that one of the following grounds exists: fraud as 686 Council Resolution (OJ 1997 C 382/1) on measures to be adopted on the combating of marriages of convenience. 687 Commission Proposal, COM(2002) 225 final, p. 11. 688 See Hauschild, Neues Einwanderungsrecht, p. 272. 689 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 66. 690 The enforcement of checks as to whether a marriage was contracted for reasons of convenience is moreover subject to other legal constraints derived from Union law.These include the general principles of proportionality and non-discrimination; see de Hart, Europeanisation of Love, p. 291 et seq. 691 Commission Proposal, COM(2002) 225 final, p. 11. 692 Peers, EU Justice and Home Affairs Law, p. 412 note 809.

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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.693 The provision prevents Member States from introducing systematic checks on all marriages with third-country nationals.694 15 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.695

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 .....................................................................................

mn. 1 2 3 4

I. General remarks and purpose 1

Article 17 contains a horizontal clause that 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.696 The ECJ’s judgment in the case Parliament v. Council697 corroborated the compatibility of the Directive with EU law inter alia by highlighting the significance of Article 17 thereof. The provision allows national immigration authorities to fully respect their responsibilities under Article 8 ECHR, which corresponds with Article 7 CFR in Union law.

693

Oosterom-Staples, The Family Reunification Directive, p. 484. Commission Communication, COM(2009) 313 final, p. 16; de Hart, Europeanisation of Love, p. 291 et seq. 695 Oosterom-Staples, The Family Reunification Directive, p. 484. 696 Groenendijk, A Right under Community Law, 219; Grabenwarter, European Convention on Human Rights. Commentary (Beck, 2014), p. 223, MN 43 et seq; Spijkerboer, ‘Structural Instability: Strasbourg Case Law on Children’s Family Reunion’, EJML 11 (2009), p. 271–293. 697 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429. 694

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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.698 Furthermore, the original proposal stated that Member States ‘shall have proper regard for’699 the circumstances listed in the provision, a phrase which was replaced during the final negotiations by the phrase ‘shall take due account of’700 which 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 Applications for reunification have to be examined on a case-by-case basis and the 3 competent national authorities must make a balanced and reasonable assessment of all the interests in play.701 According to Article 17, Member States have to take the following circumstances into 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. Member States are required ‘to take account of a number of factors’.702 Other relevant factors are the age of children concerned; living conditions in the country of origin; the fact that a family member has been born and/or raised in the EU 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.703 Special attention should be paid to the situation of refugees, since they cannot conceivably lead a normal family life in their country of origin, they may have been separated from their family for a long period of time before being granted refugee status and satisfying the substantive conditions required by Article 7(1) may pose greater difficulties for them than for other third country nationals.704 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.705 ‘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)).’706

698

Commission Proposal, COM(2002) 225 final, Article 17. Commission Proposal, COM(1999) 638 final, Article 15, emphasis added. 700 Emphasis added. 701 ECJ, Khachab, C-558/14, EU:C:2016:285, para 43. 702 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, paras 87, 100. 703 Commission Communication, COM(2014) 210 final, p. 28. 704 ECJ, K and B, C-380/17, EU:C:2018:877, para 53 referring to recital 8. 705 ECJ, O. & S., C-356/11 and C-357/11, EU:C:2012:776, para 81. 706 Commission Communication, COM(2014) 210 final, p. 28. 699

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IV. Balancing of interests Member States must ‘take due account’ of the criteria mentioned in Article 17 as well 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 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 conditional upon the fulfilment of certain requirements, such as the fulfilment of conditions in Article 7. Explicitly, Article 17 is not limited to discretionary decisions on withdrawal or refusal to renew a residence permit but extends to any rejection of an application for 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 CFR concerning protection of family and respect for family life as mentioned in recital 2. 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 Member States restrict family reunification, even though they were under a positive obligation to authorise family reunification by virtue of Article 8 ECHR. This may be the case where 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. ‘Due regard’ insinuates that all relevant circumstances have to be appraised and that the respective public and private interest in each individual case is balanced. The ECtHR does not prescribe a specific weight to certain interests 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. The limits of the discretion of Member States can only be identified by way of reference to the ECtHR’s case law, which does not, however, lend itself to generalised findings beyond the individual case. The following basic principles may be identified from the ECtHR’s jurisprudence, nonetheless: – 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 ECtHR’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.707 4

707 ECtHR, Judgment of 28 May 1985, No 9214/80, 9473/81, 9474/81, Abdulaziz, Cabales and Balkandali v. the United Kingdom, para 67 et seq.; 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, Gül v. Switzerland, para 38.

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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 Ahmut,708 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 Şen case709 and in the cases Tuquabo-Thekle710 and Rodrigues da Silva and Hoogkamer,711 the Court has derived a right to family reunification from Article 8 ECHR, arguing in the Şen 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 that 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 disproportional, even in the case of a continuing criminal career in connection with a high danger of repetition of serious crimes.712 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.713 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.714

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 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.

mn. General remarks .............................................................................................. 1 Drafting history ............................................................................................... 2 The right to mount a legal challenge ......................................................... 4 Procedure and competences......................................................................... 10

708

ECtHR, Judgment of 28 November 1996, No 21702/93, Ahmut v. The Netherlands. ECtHR, Judgment of 21 December 2001, No 31465/96, Şen v. The Netherlands, para 41. 710 ECtHR, Judgment of 1 December 2005, No 60665/00, Tuquabo-Thekle v. The Netherlands, para 50. 711 ECtHR, Judgment of 31 January 2006, No 50435/99, Rodrigues da Silva and Hoogkamer v. The Netherlands, para 38. 712 ECtHR, Judgment of 13 July 1995, No 19465/92, Nasri v. France, series A No. 320/B, p. 38. 713 ECtHR, Judgment of 11 July 2002, No 56811/00, Amrollahi v. Denmark, para 44. 714 Commission Communication, COM(2014) 210 final, p. 28. 709

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I. General remarks 1

Article 18 obliges Member States to grant a legal remedy against decisions of the national authorities.

II. Drafting history Whereas the first two proposals granted a ‘right to apply to the courts of the Member State concerned’715 and the third proposal even afforded a ‘de facto and de jure right to apply to the courts’,716 the final version of the Directive provides for a ‘right to mount a legal challenge’717. 3 Furthermore, the term ‘applicant’718 was changed to ‘sponsor’, because it 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)).719 2

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. Judicial review in this regard is therefore not limited to issues of law but may equally extend to factual considerations.720 5 Other types of administrative action, such as the failure to decide on an application for family reunification, restrictions to 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. 6 Whether the phrase ‘to mount a legal challenge’ includes administrative remedies or is restricted to judicial remedies was, for some time, subject to debate. However, the 4

715 Commission Proposal, COM(1999) 638 final, Article 16; Commission Proposal, COM(2000) 624 final, Article 16, emphasis added. 716 Commission Proposal, COM(2002) 225 final, Article 18(1), italic in the original. 717 Emphasis added. 718 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. 719 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. 720 Commission Report, COM(2008) 610 final, p. 12.

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Court has clarified that Article 18 must be read in the light of Article 47 CFR to enshrine a right to an effective remedy before a tribunal for everyone whose rights and freedoms guaranteed by Union law are infringed.721 This broad language suggests that Article 47 CFR may equally provide redress to measures restricting rights under the Directive that are not explicitly listed in Article 18. Accordingly, individuals may have a right to an effective judicial remedy against a refusal to grant an autonomous residence permit pursuant to conditions laid down in national law according to Article 15(4). This conclusion was already implicit in the Court’s judgment in Parliament v. Council (C-540/03), where it stated that ‘[i]mplementation 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’.722 It is therefore safe to conclude that Article 18 compels Member States to provide for 7 at least one level of judicial review relating to the merits and the legality of any decision.723 Accordingly, the Commissions submits that ‘quasi-judicial or administrative review may not be adequate’.724 It is notable that this interpretation is at odds with the drafting history of the 8 Directive. 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’ contained in all three proposals.725 According to the Commission, the original provision was explicitly geared towards judicial redress, even if other procedures may be available at earlier stages.726 The question whether ‘judicial’ remedies should be granted was explicitly discussed in the Council727 with regard to Swedish and Austrian arrangements of domestic law, which only foresaw administrative remedies.728 The term ‘apply to the courts’ was subsequently deleted during the final negotiations.729 Nonetheless, the Family Reunification Directive has outlived the constitutional framework that was put in place at the time of the Directive’s adoption. Since the entry into force of the Treaty of Lisbon, new constitutional arrangements, such as nowadays, Article 47 CFR, leave a mark on the interpretation of the Directive. Accordingly, Article 47 CFR safeguards that individuals can invoke a right to a judicial remedy against any decision restricting their rights granted by virtue of Union law.

721

ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, EU:C:2020:577, para 53. ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 106, emphasis added. 723 Peers, EU Justice and Home Affairs Law, p. 413 et seq. 724 Commission Communication, COM(2014) 210 final, p. 29. 725 Commission Proposal, COM(2002) 225 final, Article 18(1), emphasis added. 726 Commission Proposal, COM(1999) 638 final, Explanatory Memorandum on Article 16, p. 21. 727 Council docs. 11524/00 of 4 January 2001, p. 26 and 5682/01 of 31 January 2001, p. 24. 728 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 2001 L 212/12).’ 729 Hauschild, Neues Einwanderungsrecht, p. 272; Council doc. 14272/02 of 26 November 2002, p. 22. 722

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Chp. 8 Art. 18 9

Family Reunification Directive 2003/86/EC

According to Article 18, the ‘sponsor and/or the members of his/her family’730 has the right to mount the legal challenge, whereas the original proposal entitled the ‘applicant and the members of his family’.731 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.732 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.733

IV. Procedure and competences Member States are competent to specify the procedure and competences with regard to the right to mount a legal challenge in their national legislation.734 In this regard, Member States have ‘some discretion’ in implementing this provision, even though they must, at any rate, respect Article 47 CFR.735 Accordingly, they may determine which judicial authority may be tasked with review in this respect, or whether an appeal may be filed from outside the Member State concerned, provided the national legal arrangement does not impair the effectiveness of Directive. 11 Whether interim procedures may be challenged is regulated differently under the national law of the Member States. In Austria, for example, exhaustion of the annual quota system cannot be challenged separately.736 In Germany and in the Netherlands, the failure to pass the pre-entry language test cannot be challenged separately.737 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. 12 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). 13 The question whether a legal challenge against an expulsion decision has suspensive effect was raised by the Dutch delegation and replied to in the negative by the Commission.738 However, the text does not explicitly exclude the possibility for suspensive effect.739 Member States may therefore provide for suspensive effect under national law. 10

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Emphasis added. Commission Proposal, COM(2002) 225 final, Article 18(1), emphasis added. 732 Council doc. 11524/00 of 4 January 2001, p. 26. 733 Commission Communication, COM(2014) 210 final, p. 29. 734 Commission Proposal, COM(2002) 225 final, Explanatory Memorandum on Article 18, p. 11. 735 ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, EU:C:2020:577, para 53. 736 Commission Report, COM(2008) 610 final, p. 12. 737 For the Netherlands, see Groenendijk, A Right under Community Law, 217. 738 Council doc. 11524/00 of 4 January 2001, p. 26. 739 Guèvremont, Traitement équitable, p. 231. 731

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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 19 imposes on the Commission a duty to regularly report. The articles 1 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.740 The first Commission Report was due for 3 October 2007 and was finally issued 2 on 8 October 2008.741 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).742 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.743 In 2011, the Commission published a Green Paper to gather information on the application of the Directive and opinions on how to shape EU rules more effective.744 The responses745 were discussed at a public hearing in the framework of the European Integration Forum746 and lead to a consensus not to re-open the Directive, but to ensure full implementation.747 Therefore, the Commission provided guidance on how to apply the Directive by publishing guidelines reflecting the current views of the Commission on 3 April 2014.748 The second Commission Report was published on 29 March 2019. Referring to a Study from the European Migration Network it named three main issues faced by applicants: Firstly, the obligation to appear in person at a diplomatic mission to submit an application which creates a practical problem in particular for applicants to smaller Member States that do not necessarily have a diplomatic representation in every country. Secondly, long processing times of applications. Finally, the lack of documents necessary to process the application especially the proof of identity and family ties. As major challenge for national authorities, the study reported the detection of forced or sham marriages or registered partnerships and false declarations 740

Commission Proposal, COM(2002) 225 final, p 11. Commission Report, COM(2008) 610 final. 742 Commission Report, COM(2008) 610 final, p. 14. 743 Commission Report, COM(2008) 610 final, p. 14. 744 Commission Green Paper, COM(2011) 735 final. 745 The answers to the consultation are available at: https://ec.europa.eu/home-affairs/what-is-new/ public-consultation/2012/pdf/0023/consulting_0023_en [last accessed 4 February 2021]. 746 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: https://ec.europa.eu/ migrant-integration/eiforum/7th-european-integration-forum-public-hearing-on-the-right-to-familyreunification-of-third-country-nationals-living-in-the-eu [last accessed 4 February 2021]. 747 Commission Communication, COM(2014) 210 final, p. 2. 748 Commission Communication, COM(2014) 210 final. 741

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Chp. 8 Art. 20

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of parenthood.749 The Commission Report named integration measures, stable and regular resources, the need to take into account effectively the best interest of the child and the more favourable provisions for the family reunification of refugees as persistent issues in national legislations and reminds that ‘the wording of the Directive, which leaves to Member States relevant room for discretion in its implementation, should not result in lowering the standards when applying “may” provisions on certain requirements for the exercise of the right to family reunification in a too broad or disproportionate way.’750 Article 19 grants the Commission discretion as to when present the next report.

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. 1

The two-year transposition period ended on 3 October 2005. 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.751 Decisions to bring cases before the ECJ were taken for four Member States: three were withdrawn and a judgment was given for one.752 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.753

Article 21 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 the day of its publication in the Official Journal of the European Union which was 3 October 2003.754

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Commission Report, COM(2019) 162 final, p. 2. Commission Report, COM(2019) 162 final, p. 15. 751 Commission Report, COM(2008) 610 final, p. 3. 752 ECJ, Commission v. Luxembourg, C-57/07, EU:C:2007:765. 753 Commission Report, COM(2008) 610 final, p. 3. 754 OJ 2003 L 251/12. 750

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Art. 22

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Article 22 This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. The final provision hints to the general principles for implementing directives in 1 Article 288 TFEU that often give some discretion to Member States how to implement its provisions. The UK, Ireland and Denmark are not bound by the directive.755 755 Article 1 and 2 of the Protocol annexed to the TEU (Nice version) and TEC, see recitals 17 and 18 of the Directive.

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Chapter 9. Long-Term Residents Directive 2003/109/EC Select 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); Böcker/Strik, ‘Language and Knowledge Tests for Permanent Residence Rights: Help or Hindrance for Integration?’, EJML 13 (2011), p. 157–184; Boelaert-Suominen, ‘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/den Heijer/Lodder/Wouters, European Migration Law, 2nd edn (Intersentia, 2014); Bribosia, ‘Les Politiques d’intégration de l’Union européenne et des États Membres à l’épreuve du principe de non-discrimination’, in: Pascouau/Strik (eds), Which Integration Policies for Migrants? (Wolf, 2012), p. 51–81; Carrera, ‘Integration of Immigrants in EU Law and Policy’, in: Azoulai/De Vries (eds), EU Migration Law (OUP, 2014), p. 149–187; Eichenhofer, ‘Das Recht auf Daueraufenthalt’, in: Wollenschläger (ed), Enzyklopädie Europarecht, Band X, 2nd edn (Nomos, 2021), § 23; 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, Ausländerrecht. Kommentar, looseleaf 110th edn (C.F. Müller, 2019); Hailbronner, ‘Langfristig aufenthaltsberechtigte Drittstaatsangehörige’, Zeitschrift für Ausländerrecht (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 europäisches Einwanderungsrecht: Das Daueraufenthaltsrecht von Drittstaatsangehörigen’, Zeitschrift für Ausländerrecht (2003), p. 350–353; Iglesias Sánchez, ‘Free Movement of Third Country Nationals in the European Union?’, ELJ 15 (2009), p. 791–805; Jesse, The Civic Citizens of Europe (Brill/Nijhoff, 2017); Peers, ‘Transfer of International Protection and European Union Law’, IJRL 24 (2012), p. 527–560; Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax (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), p. 437–460; Skordas, ‘Immigration and the Market: The Long-Term Residence Directive’, Columbia Journal of European Law 13 (2006), p. 201–229; ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006); 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). 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.

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 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), (1) (2)

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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: […] 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. Content I. II. III. IV. V.

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

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

OJ C 36, 8.2.2002, p. 59. OJ C 19, 22.1.2002, p. 18. 1 See Thym, Legal Framework for EU Immigration Policy, MN 11–12, 17–18. 2 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 at the end of 2004, one year after the adoption of Directive 2003/109/EC. (4)

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Long-Term Residents Directive 2003/109/EC

with Article 79(2) TFEU that provides for a qualified majority vote in the Council and the consent of the European Parliament.3 The original version was adopted by the Council on 25 November 20034 and published in the Official Journal in early 2004. 3 In accordance with the design of their opt-outs enshrined in Protocols attached to the Treaties, the UK and Ireland decided not to take part in the adoption of the Long-Term Residents Directive.5 Denmark was prohibited from joining,6 since the Directive does not constitute a measure building upon the Schengen acquis. Rules governing the optout arrangements are described in the introduction.7 4 The structure of the Directive follows the standard outline of EU legislation: Recitals in the Preamble recall the motivation of the legislature and can be useful tools for interpretation.8 Chapter I sets out general provisions, including key definitions (Article 2). Chapter II contains the rules relating to the acquisition of long-term resident status (Articles 4–7), potential withdrawal (Articles 9–10), equal treatment during periods of legal residence (Article 11) and protection against expulsion (Article 12). Chapter III lays down a conditional right for long-term residents to reside and work in other EU Member States subject to the conditions and caveats described in the Directive (Articles 14–23). Chapter IV lists the final provisions, such as the duration of the transposition period until 23 January 2006. 5 Empirical data collected by Eurostat shows that the practical relevance of the Directive varies greatly between Member States. At the end of 2018, there were more than 10 million long-term residents, of which less than 40 % held a status under Directive 2003/109/EC living in the Member States.9 That amounted to roughly 30 % of all third country nationals residing legally in the EU with a temporary or permanent residence status.10 Noticeable variations in the number of long-term residents among the Member States (1367 in Bulgaria, not more than 12 thousand in Germany, in contrast to 2 million in Italy) can be explained by a variety of reasons: while some Member States generally have less third country nationals living there, others provide for naturalisation under generous conditions as a result of which third country nationals stop being foreigners.11 Most importantly, however, many Member States, such as Germany, continue to hand out a domestic long-term resident status under national laws unless foreigners explicitly ask for the EU status – a practice that can potentially fall foul of the obligation not to undermine the effet utile of the Directive (see below Article 13 MN 4). The Commission Implementing Report of 2019 highlighted that only four Member States did not provide for ‘competing’ national long-term residence schemes beyond the scope of the Long-Term Residents Directive.12 3

Cf. Article 15(3) TEU read in conjunction with Articles 79(2) and 294 TFEU. See Council doc. 14492/03 of 25 November 2003. 5 See Recital 25. 6 See Recital 26. 7 See Thym, Constitutional Framework, MN 38–45. 8 On interpretative principles, see Thym, Constitutional Framework, MN 10–20. 9 Cf. the dataset ‘migr_reslong’ for the different reasons stated therein, available online at http://appsso. eurostat.ec.europa.eu/nui/show.do?dataset=migr_reslong&lang=en [last accessed on 1 June 2021]. 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 June 2021]. 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 or, especially in the case of Italy, by onward movement to other Member States; see Della Torre/de Lange, ‘The “Importance of Staying Put”. Third Country Nationals’ Limited Intra-EU Mobility Rights’, Journal of Ethnic and Migration Studies 44 (2018), p. 1409, 1416–1418. 12 See Commission Implementation Report, COM(2019) 161, p. 1. 4

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In autumn 2020, the Commission put forward the objective to propose a revision of 5a the Long-Term Residents Directive during the fourth quarter of 2021 in order to create a genuine ‘long-term EU residence status’, which strengthens the rights of longterm residents to move and work in other Member States.13 These proposed changes could not be considered for the third edition of this Commentary.

II. Background Prior to the entry into force of the Treaty of Amsterdam, the EU could not adopt 6 binding secondary legislation on migratory matters. Instead, the so-called ‘third pillar’ allowed for non-binding resolutions and international law-style conventions.14 On this basis, the Council agreed upon a Resolution of 4 March 1996 on the status of third country nationals residing on a long-term basis,15 which established a nonbinding framework for domestic rules without detailed prescriptions.16 Moreover, the Commission proposed a Convention on the Admission of Third Country Nationals with some rules on long-term residents; the Convention never reached the stage of ratification, after the Council abandoned the discussion due to the imminent entry into force of the Treaty of Amsterdam.17 Although these informal arrangements never gained practical relevance, they served as a starting point for negotiations once the Treaty of Amsterdam had established a more robust supranational Treaty base. In a parallel development, the Council of Europe adopted a recommendation that 7 member countries should guarantee the security of residence of long-term migrants,18 in light of a growing political consensus and domestic legal practices that the former ‘guest workers’ and their children, who had often been born in host states or moved there in early childhood, should be guaranteed a secure residence status with enhanced equal treatment. In doing so, the Council of Europe built upon earlier conventions on the protection of foreigners, such as the European Convention on Establishment of 1955.19 Given that the latter Convention only applied to nationals of state parties and that most of them had acceded to the EU in the meantime, it had lost most of its relevance by the 1990s with the prospect of free movement within the single market (see below Article 3 MN 25). With the adoption of Directive 2003/109/ EC, the EU overtook the Council of Europe as the central forum for immigration law harmonisation, although the Council of Europe retains some significance, not least because the European Convention on Human Rights can influence the interpretation of EU legislation.20 13 See the Communication on a New Pact on Migration and Asylum, COM(2020) 609, p. 26; and, for the timing, the roadmap in COM(2020) 609. 14 See Thym, Constitutional Framework, MN 2–3. 15 OJ 1996 80/2. 16 By way of example, the resolution foresaw a general qualification period of up to 10 years of legal residence; for further comments, see Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 289–293; and Boelaert-Suominen, Directive 2003/109/EC, p. 117–120. 17 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). 18 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, Denizenship and Integration, p. 431–432. 19 See Thym, Legal Framework for EU Immigration Policy, MN 59; and, for further comments, Groenendijk, ‘Long-Term Immigrants and the Council of Europe’, EJML 1 (1999), p. 275, 276–279. 20 See Thym, Legal Framework for EU Immigration Policy, MN 50–60.

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Shortly after the entry into force of the Treaty of Amsterdam, the European Council at its meeting in Tampere in October 1999 agreed on political guidance for the realisation of the incipient area of freedom, security and justice.21 The initial Tampere Programme for the 1999–2004 period was full of youthful enthusiasm (in contrast to more restrictive later guidelines) and embraced a mixed approach combining the ‘need for more efficient management of migration flows’ and the ‘control of external borders to stop illegal immigration’ with ‘fair treatment of third country nationals who reside legally’ and a ‘more vigorous integration policy.’22 More specifically with regard to longterm residents, the European Council stated that their status ‘should be approximated to that of ’ Union citizens A person, who has resided legally in a Member State for a period of time to be determined and who 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 self-employed person, as well as the principle of non-discrimination vis-àvis the citizens of the State of residence.’23 9 It is stated in the introduction that the significance of this declaration of intent should not be overstated for a number of reasons,24 including the absence of direct legal effects flowing from the political commitment of the heads of state or government which gave way to a more nuanced assessment during the legislative procedure (see below MN 11). Moreover, similar formulations were not elevated at Treaty level neither in today’s Article 79 TFEU nor in the Charter of Fundamental Rights which, generally, takes pride in presenting itself as an avant-garde human rights catalogue.25 It is discussed below in how far the reminder of the Tampere conclusions in Recital 2 of Directive 2003/109/EC can have an impact on the interpretation of the Directive (see below MN 15–17). 8

III. Drafting History and Implementation 10

The Commission Proposal of March 2001 followed closely the original political direction of the European Council in Tampere to approximate the status of long-term residents to that of Union citizens (see above MN 8–9).26 It had been influenced, among other things, by a comparative study on corresponding rules in different Member States undertaken by the University of Nijmegen.27 The European Parliament,28 the Economic and Social Committee29 and the Commission of the Regions30 were consulted 21

Cf. Thym, Constitutional Framework, MN 8. European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, paras 3, 18, 22. 23 Ibid., para 21. 24 See Thym, Legal Framework for EU Immigration Policy, MN 36. 25 On the significance of the migration-related articles of the Charter, see Thym, ibid., MN 33–35. 26 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.’ 27 See Groenendijk/Guild, Converging Criteria. 28 See the amendments proposed by the plenary of the European Parliament, EP doc. P5_TA(2002) 0030 of 5 February 2002 (OJ 2002 C 284 E/94); for background information, see the Report of the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, EP doc. A5–0436/2001 of 30 November 2001. 29 See Economic and Social Committee, Opinion 1321/2001 of 17 October 2001 (OJ 2000 C 36/59). 30 See Committee of the Regions, Opinion 213/2001 of 27 September 2001 (OJ 2002 C 19/18). 22

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and sought some amendments that the Council did not follow, in accordance with the institutional regime applicable at the time (see above MN 2). The working group of the Council started considering the Commission Proposal in 11 July 2001.31 During these negotiations, differences between the Member States came to the fore on issues such as personal scope, conditions for obtaining the status, degree of equal treatment and free movement between Member States, thereby curtailing the original political consensus within the European Council. After a number of deadlocks and delays, the European Council in Seville in June 2002 ‘urge[d] the Council to adopt’32 the Directive by June 2003. Notwithstanding this political pressure, a considerable amount of further negotiation and compromise was required before political agreement on the unanimous adoption of the Directive was reached by the Justice and Home Affairs Council meeting on 5/6 June 2003.33 Ironically, it was the Danish Presidency of the Council which, during the second half of 2002, played a crucial role in steering Member States towards agreement despite the Danish opt-out from the instrument (see above MN 3). The final version of Directive 2003/109/EC was officially adopted on 25 November 2003 after the usual legal-linguistic revision.34 Specific issues relating to the drafting history which may have an impact on interpretation are discussed in the context of the article in question.35 In accordance with Article 26, the Directive had to be transposed into domestic laws 12 by 23 January 2006. As usual, several Member States failed to comply with the deadline and the Commission initiated infringement proceedings, some of which were repealed after the adoption of domestic laws.36 In 2007, the ECJ established that Spain, Luxembourg and Portugal had failed to implement the Long-Term Residents Directive correctly.37 In the first implementing report of 2011, the Commission noted that all Member States had established a legal framework at national level that was sufficient in principle, although there were – like in the case of most directives – several instances in which it remained doubtful whether all Member States were in full compliance.38 The second report of 2018 found further improvement.39 During the original negotiations, it was decided to exclude beneficiaries of international 13 protection (i. e. refugees and those with subsidiary protection) from the scope of the original Directive 2003/109/EC in order not to complicate an early agreement on the Long-Term Residents Directive at a time when the asylum directives were still under discussion.40 This gap was meant to be closed later on the basis of a Commission Proposal of June 2007 whose adoption failed in the Council due to Maltese resistance.41 Directive 31 The relevant Council documents can be located in the Register of Council Documents (available online at https://www.consilium.europa.eu/en/documents-publications/public-register/public-registersearch/; last accessed 1 June 2021) by entering the interinstitutional file ‘2001/0074(CNS)’. 32 Seville European Council of 21/22 June 2002, Presidency Conclusions, para 37. 33 See Council doc. 10214/03 of 10 June 2003. 34 Note that adoption after May 2004 would have required the unanimous consent of seven more Member States after enlargement; see Groenendijk, Denizenship and Integration, p. 433. 35 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 Long-Term Residence Status, p. 84–87. 36 This was the case, more specifically, with infringement proceedings against Germany (C-218/07), Italy (C-104/07), France (C-37/07) and Hungary (C-30/07). 37 Cf. ECJ, Commission v. Spain, C-59/07, EU:C:2007:683; ECJ, Commission v. Luxembourg, C-34/07, EU:C:2007:738; and ECJ, Commission v. Portugal, C-5/07, EU:C:2007:559. 38 See the Commission’s 2011 Report, COM(2011) 585. 39 See Commission Implementation Report, COM(2019) 161, p. 9–10. 40 See Guild, European Identity, p. 224. 41 See the Commission Proposal, COM(2007) 298; and Peers, ‘Legislative Update EU Immigration and Asylum Law 2010’, EJML 13 (2011), p. 201, 206–212.

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2011/51/EU amending Council Directive 2003/109/EC to Extend its Scope to Beneficiaries of International Protection42 was finally adopted on 11 May 2011 after the Treaty of Lisbon had brought the unanimity requirement in the Council to an end (see above MN 2). Beneficiaries of international protection were guaranteed equal rights under the Directive together with specific rules concerning the calculation of legal residence periods reflecting the specificities of the asylum procedure in the revised Article 4 Directive 2003/109/EC. The amendments to Directive 2003/109/EC under Directive 2011/51/EU have been integrated into the text of the Directive in this commentary and will be commented upon below.

IV. Legislative Amendments 13a

The Commission plans to table a proposal for the revision of Directive 2003/109/ EC by the end of 2021, which would focus on creating a ‘true’ EU long-term residence status, in particular by strengthening the right to move and work in other Member States.43 At the time of writing, the proposal had not been presented yet. However, two smaller changes had been proposed or adopted aimed at strengthening the impact of long-term residence status in terms of intra-European mobility. Firstly, the outcome of the political agreement on the revision of the Blue Card Directive 2009/50/EC, which had not been adopted formally at the time of writing, indicated that highly skilled migrants may accumulate times of residence in several Member States (see Article 4 MN 14a). Secondly, the Commission wants to lower the waiting period for beneficiaries of international protection to three years to facilitate legal onward movement (see Article 4 MN 2a).

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

The contents of Directive 2003/109/EC is often assessed in light of the political objective of the Tampere European Council to approximate the status of long-term residents to that of Union citizens (see above MN 12). Many commentators concluded, rightly, that the original objective had not been met,44 in particular in so far as equal treatment under Article 11 and free movement under Articles 14–23 were concerned.45 Although it is legitimate to assess the Directive in the light of political objectives set beforehand, it should be noted that the criticism remains political in nature, since the political guidelines of the Tampere European Council were not legally binding.46 Moreover, Union citizenship and the status of third country nationals are distinct constitutional categories: the ‘fundamental status’ the ECJ considers Union citizenship to be destined to be must be distinguished from rules governing the area of freedom, security and justice.47 Hence, EU institutions were not legally obliged to approximate the two statuses. The change of direction during negotiations in the Council, where 42

OJ 2011 L 32/1. See COM(2020) 609 of 23 September 2020, p. 25 and the roadmap in the Annex. 44 By way of example, see Boelaert-Suominen, Directive 2003/109/EC, p. 1011–1052; and Peers, Implementing Equality?, p. 437–440. 45 See Jesse, Civic Citizens, p. 302–304; Groenendijk, Denizenship and Integration, p. 439–400; and Bribosia, Politiques d’intégration, p. 68. 46 See Thym, Constitutional Framework, MN 9. 47 For further explanations, see Thym, Legal Framework for EU Immigration Policy, MN 28–36; and Thym, ‘EU Migration Policy and its Constitutional Rationale’, CML Rev. 50 (2013), p. 709, 718–725. 43

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Member States deviated from the more generous Commission Proposal (see above MN 10–11), remained the prerogative of the legislature.48 It is sometimes said that the Long-Term Residents Directive should be interpreted 15 in the light of the Tampere objective of approximation to Union citizenship, not least because Recital 2 reiterates the political conclusions of October 1999.49 However, closer inspection advises caution.50 At a textual level, Recital 2 simply echoes in the past tense what had been ‘stated’ by the European Council at its special meeting in Tampere. To do so is undoubtedly correct as a factual statement and does not imply that the legislature necessarily maintained the same idea during the legislative procedure. The Council consciously decided not to follow the original Commission Proposal (see above MN 10–11), thereby demonstrating that an historic interpretation of Recital 2 in the light of the drafting history does not support, in line with the wording, an alignment with the Tampere conclusions. Along similar lines, the general scheme of the Directive points to a different reading, because Article 1 describes the subject matter in a decidedly general language highlighting the ‘terms’ (French: conditions; German: Bedingungen) of long-term resident status. As a result, the discrepancies between the European Council conclusions in Tampere and Directive 2003/109/EC cannot be undone in light of Recital 2. In its early case law on the Directive, the European Court of Justice concluded under 16 reference to Recitals 4, 6 and 12 of Directive 2003/109/EC: ‘the principal purpose [of the Directive] … is the integration of third country nationals who are settled on a long-term basis in the Member States.’51 The additional reference, in a single judgment, that the Directive also seeks ‘to approximate the legal status of third country nationals to that of Member States’ nationals’52 in line with Recital 2 was not taken up afterwards and cannot convince in the light of the doctrinal reasons described above (see MN 15). In another judgment, the ECJ identified the additional aim ‘to contribute to the effective attainment of an internal market’53, which seems to relate primarily, as a subsidiary objective, to residence in other Member States in accordance with Articles 14–23 LongTerm Residents Directive.54 It was described in the introduction that the somewhat simplistic identification of a 16a principal integration objective overlooks the diversity of political motivations during the legislative procedure, with regard to long-term residents in the same way as for family reunification and for many other pieces of secondary legislation.55 That becomes 48 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 europäischen Ausländerrecht’, in: Dicke et al. (eds), Weltinnenrecht. Liber Amicorum Jost Delbrück (Duncker & Humblot, 2005), p. 315, 319. 49 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 296; Groenendijk, Denizenship and Integration, p. 430, 434; and Peers, Implementing Equality?, p. 442–443. 50 Similarly, see Halleskov, The Long-Term Residents Directive, p. 188–189; Boeles/den Heijer/Lodder/ Wouters, European Migration Law, p. 177–178; and Handoll, Directive 2003/109/EC, MN 36. 51 ECJ, Commission v. Netherlands, C-508/10, EU:C:2012:243, para 66; similarly, see ECJ, Kamberaj, C571/10, EU:C:2012:233, para 90; ECJ, Singh, C-502/10, EU:C:2012:3076, para 45; ECJ, P & S, C-579/13, EU:C:2015:369, para 46; and ECJ, López Pastuzano, C-636/16, EU:C:2017:949, para 23. 52 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. 53 ECJ, Commission v. Netherlands, C-508/10, EU:C:2012:243, para 66. 54 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.). 55 See Thym, Constitutional Framework, MN 17.

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

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The institutional practice of the ECJ does not reflect these discrepancies openly. Rather, 17a ECJ judgments fluctuate between different conceptions of integration depending on the outcome of the case – mirroring a similar contradiction in the rulings on the Dublin Regulation.64 Thus, the ECJ arguably embraced socio-cultural affiliation in the above sense in the P & S ruling on language requirements and civic integration tests (see below Article 5 MN 18). By contrast, judges found that it is ‘above all from the five-year duration of the legal and continuous residence that shows that the person concerned has put down roots in the country’65 in line with the equality-based reasoning explained above in judgments adopting a migrant-friendly outlook with regard to sufficient resources (see below Article 5 MN 7) and periods of prior residence (see below Article 4 MN 2). In one case, it even concluded that integration objectives supports social benefit payments to family members residing in Pakistan insofar as the sponsor’s integration into Italian society was concerned.66 Unfortunately, judges do not openly reflect on this cleavage, which is rendered even more perplexing by prior judgments on Union citizenship, which had emphasised formal factors, such as the length of stay, are outweighed by qualitative considerations, such as a clear criminal record, because ‘the integration objective … is based not only on territorial and time factors but also on qualitative elements.’67 Shortly after the conclusions of the European Council in Tampere (see above MN 8), 18 the Commission took up the idea of approximation to Union citizenship in a Communication on a Community Immigration Policy endorsing, among other things, ‘a form of civic citizenship’ of long-term residents, although the proposal remained decidedly abstract and did not contain much substance at closer inspection.68 This Commission statement reflected a trend among academic contributions re-conceptualising the notion of ‘citizenship’ for migration purposes at a time when the traditional dichotomy between nationals with equal treatment and foreigners with less protection was projected to disappear in the aftermath of the fall of the Berlin wall and the initial euphoria about globalisation. A novel form of stakeholder citizenship seemed to emerge when the formal link of state-based nationality is replaced by residence-based locality as the demarcation line between out- and insiders participating in the formation and evolution of local communities.69 Against this background, academic observers portrayed both the adoption of the Long-Term Residents Directive 2003/109/EC70 and the emerging case law of the European Court of Human Rights71 as an expression of a general drive towards residence-based conceptions of citizenship. 64

See Thym, Constitutional Framework, MN 17. ECJ, López Pastuzano, C-636/16, EU:C:2017:949, para 30; and ECJ, Tahir, C-469/13, EU: C:2014:2094, para 33. 66 See ECJ, Istituto Nazionale della Previdenza Sociale, C-303/19, EU:C:2020:958, paras 28–29. 67 ECJ, Dias, C-325/09, EU:C:2011:498, para 64; and the explicit rejection of purely temporal considerations by ECJ, Onuekwere, C-378/12, EU:C:2014:13, paras 24–26; this approach was reaffirmed in other (but not all) judgments on permanent residence of Union citizens; for further comments, see Thym, ‘The Evolution of Citizens’ Rights in Light of the EU’s Constitutional Development’, in: Thym (ed), Questioning EU Citizenship (Bloomsbury/Hart, 2017), p. 111–134; and Thym, Elusive Limits, p. 33–39. 68 COM(2000) 757, p. 19, 22 referred to the Charter of Fundamental Rights, migrant integration and the option of naturalisation in decidedly general language. 69 See the (different) arguments put forward by Kostakopoulou, The Future Governance of Citizenship (CUP, 2008), ch. 6; Bauböck, ‘Global Justice, Freedom of Movement and Democratic Citizenship’, European Journal of Sociology 50 (2009), p. 1–31; Shaw, ‘Citizenship of the Union: Towards a PostNational Membership?’, in: Collected Courses of the 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. 70 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. 71 See the references in Thym, Residence as de facto Citizenship?, p. 131–138. 65

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In the years following the initial impetus of the Tampere European Council and the 2000 Commission Communication, the concept of ‘civic citizenship’ was not taken up at the European level. Rather, a growing political consensus emerged among the Member States that immigration policy should not be confined to rights-based equal treatment and residence security and that it should rather comprise elements fostering social cohesion, most visibly in the changing paradigms underlying the concept of migrant integration (see above MN 17).72 This shift of emphasis extended to the case law of the ECtHR which demonstrated a noteworthy appreciation of ‘the solidity of social, cultural and family ties with the host country’73 in its case law on Article 8 ECHR after 2006.74 What is more, several Member States changed nationality laws in the late 1990s and early 2000s by extending or introducing national jus soli rules on the basis of which long-term residents could acquire nationality, which brings about full equal treatment and residence security.75 In the context of rules on Turkish workers, the ECJ recognised that ‘the acquisition of the nationality of the host Member State represents, in principle, the most accomplished level of integration.’76 Against this background of these developments, the concept of civic citizenship as an alternative to naturalisation gradually lost significance. 20 It is explained in the introduction that EU immigration law endorses the concept of legal status change construing the legal dimension of regular migrants’ biographies as a sequence of different legal statuses.77 From the perspective of the EU immigration acquis, Directive 2003/109/EC constitutes the ultimate stage a migrant can reach, since the Directive establishes a generic status applicable to people which had originally entered the EU for different purposes. From the perspective of domestic laws, however, an additional step remains possible, since migrants can obtain the nationality of the host state through naturalisation.78 Against this background, more lenient rules on 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,79 but the European Council nonetheless endorsed ‘the objective that long-term legally resident third country nationals be offered the opportunity to obtain the nationality of the Member State in which they are resident.’80 That is not to say that Directive 2003/109/EC conflicts with the acquisition of nationality, since there will always be migrants who do not meet the legal requirements for naturalisation or 19

72 For an overview, see Mourão Permoser, ‘Redefining Membership. Restrictive Rights and Categorisation in European Union Migration Policy’, Journal of Ethnic and Migration Studies 43 (2017), p. 2536, 2543–2545; and Goodman, ‘The Civic Integration Turn’, in: Weinar/Bonjour/Zhyznomirska (eds), The Routledge Handbook of the Politics of Migration in Europe (Routledge, 2019), p. 167–178 73 Standard formulation for the application of the principle of proportionality first established in ECtHR, judgment of 18 October 2006 [GC], No 46410/99, Üner v. the Netherlands, para 58. 74 For further comments, see Thym, ‘Supranational Courts in Europe. A Moderately Communitarian Turn in the Case Law on Immigration and Citizenship’, Journal of Ethnic and Migration Studies 47 (2021), section 2 (forthcoming); and Thym, Residence as de facto Citizenship?, p. 138–143. 75 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. 76 ECJ, Demirci u. a., C-171/13, EU:C:2015:8, para 54. 77 See Thym, Legal Framework for EU Immigration Policy, MN 7; and Thym, Legal Framework for EU Asylum Policy, MN 37–39. 78 After naturalisation, they obtain free movement rights in other Member States as EU citizens. 79 See Thym, Legal Framework for EU Immigration Policy, MN 14. 80 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.

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

Article 2 Definitions For the purposes of this Directive: (a) ‘third country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty; (b) ‘long-term resident’ means any third country national who has long-term resident status as provided for under Articles 4 to 7; (c) ‘first Member State’ means the Member State which for the 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); (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 ........................................................................................................

mn. 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 81 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. 82 See above MN 5; Groenendijk, Denizenship and Integration, p. 429–430; and Acosta, The LongTerm Residence Status, p. 79. (5) OJ L 251, 3.10.2003, p. 12. (6) OJ L 304, 30.9.2004, p. 12.

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the definitions are specific to Directive 2003/109/EC. Other immigration and asylum directives or regulations can employ a different terminology.83

II. Definitions 2

3

4

5

6

7

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.84 What is more, the definition ex negativo refers to any person ‘who is not a citizen of the Union’, thereby signalling that EU citizens with dual nationality (e. g. a Romanian national who also has a Moldovan passport) are not covered by the Directive. 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. It is explained, moreover, that the term family member should be understood in line with the Family Reunification Directive 2003/86/EC throughout the Long-Term Residents Directive. Access and residence rights of family members in a first Member State, where a third country national obtained long-term 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 invokes the concept of ‘international protection’ covering both refugee status and subsidiary protection under the Asylum Qualification Directive 2011/95/EU. As a result, foreigners holding a complementary humanitarian status in accordance with national immigration or asylum laws85 are not covered by Directive 2003/109/EC (see below Article 3 MN 13). 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 (see above MN 3). It should be noted that the 83

See Thym, Constitutional Framework, MN 18. 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. 85 See Thym, Legal Framework for EU Immigration Policy, MN 13. 84

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definition was not changed after the entry into force of the Treaty of Lisbon, which replaced the erstwhile European Community (EC) with the European Union (EU). Nevertheless, Member States arguably remain free to use the abbreviation ‘EU’ in domestic legislation implementing Directive 2003/109/EC, since doing so cannot be said to violate a contextual reading of the Directive in light of changing circumstances.86

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.

86 Remember that Article 288(3) TFEU leaves Member States some leeway when implementing Directives; see also ECJ, Commission v. Germany, 29/84, EU:C:1985:229, para 23 and ECJ, Commission v. Austria, C-194/01, EU:C:2004:248, paras 37–39 on the absence of an obligation to literally transpose (‘copy-paste’) Directives into domestic legislation.

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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)) ...................

mn. 1 2 9 10 12 15 21 22

I. General Remarks 1

Article 3 constitutes a crucial bottleneck for the acquisition of long-term resident status which, generally speaking, requires periods of previous stay in line with the linguistic notion of residence that is ‘long-term’. This entails that long-term resident status cannot be obtained from day one after admission (like the famous US greencard). Article 4 prescribes a five-year period of legal residence. It is explained elsewhere that the 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.87 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 in international agreements.

II. Legal Residence (Article 3(1)) Directive 2003/109/EC does not define the term ‘legal residence.’ Neither Article 2 nor Article 3(1) specifies the meaning, while Article 1(a) describes the subject matter of the Directive as pertaining to the conferral or withdrawal of long-term 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.’88 This implies that the (il)legality of residence must be defined primarily under recourse to the provisions of national immigration laws.89 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). 3 Illegal residence constitutes the counterpart to ‘legal residence.’ 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,90 it captures the meaning of the notion of illegal residence when it defines the latter to relate to the ‘the 2

87 See Article 1 MN 20; and Thym, Legal Framework for EU Immigration Policy, MN 7; and Thym, Legal Framework for EU Asylum Policy, MN 37–39. 88 ECJ, Singh, C-502/10, EU:C:2012:3076, para 39. 89 See also the Commission’s report on application, COM(2011) 585, p. 2. 90 See Thym, Constitutional Framework, MN 18.

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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 Member State.’91 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). The deference to statutory rules at the domestic or European level for the definition 4 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, since a person resides legally.92 In line with the general principle of national procedural autonomy,93 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.94 Directive 2003/109/EC builds upon national and/or EU rules defining legal resi- 5 dence as a precondition for acquiring long-term resident status and does not harmonise these rules.95 This implies that it has to be decided on the basis of the domestic and/or EU rules in question whether legal stay requires Member States to have issued a formal residence permit.96 It is well known that Turkish nationals residing on the basis of the Association Council Decision No 1/80 do not require such a formal certificate to demonstrate the legality of their stay.97 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 Decision98 – in line with the ECJ case law on the acquisition of permanent residence under Article 16 Citizenship Directive 2004/38/EC.99 Whether or not Turkish nationals apply for long-term resident status besides the status under the association agreement, is their personal 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. Note that comments above are specific to Turkish nationals; other third country nationals require a formal residence permit to demonstrate periods of legal residence (see below Article 7 MN 13). 91

Article 3(2) Return Directive 2008/115/EC. Similarly, see Acosta, The Long-Term Residence Status, p. 89–99; Hailbronner, Drittstaatsangehörige, p. 163; Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 181; and Boelaert-Suominen, Directive 2003/109/EC, p. 1022. 93 See Thym, Constitutional Framework, MN 35–36. 94 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/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 301 seems to suggest. 95 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. 96 See Wiesbrock, Legal Migration, p. 372. 97 Cf. ECJ, Sevince, C-192/89, EU:C:1990:322, paras 29–30. 98 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. 99 See ECJ, Dias, C-325/09, EU:C:2011:498, paras 48–55. 92

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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). They 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 an 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 withdrawn or lost only in accordance with Article 9 Directive 2003/109/EC, which means 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 does not hinder the application of Directive 2003/109/EC unless international protection is being revoked in parallel.100 By contrast, complementary humanitarian protection under national immigration laws are covered by an explicit exception in Article 3(2)(c) (see below MN 13). 7 Third country national family members residing legally are covered by Directive 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 Reunification Directive 2003/86/EC or domestic laws, which can provide for legal residence under more favourable conditions than the said directive.101 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 Reunification Directive or domestic immigration laws.102 8 The Commission had originally proposed to exclude third country national family members of Union citizens from the scope of the Long-Term Residents Directive, at least in the case of Union citizen living abroad.103 The Council did not follow this proposal and: they can apply for long-term resident status under Directive 2003/109/ EC. 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.104 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,105 while family members of Union citizens 6

100 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. 101 See Article 3(5) Family Reunification Directive 2003/86/EC; and Peers, Implementing Equality?, p. 445. 102 Long-term residents meet the requirement of Article 3(1) Family Reunification Directive to be a sponsor of family reunification as a matter of principle. 103 See Article 3(3) of the Commission Proposal, COM(2001) 127. 104 For an overview of the complex legal picture, see Berneri, Family Reunification in the EU. The Movement and Residence Rights of Third Country National Family Members of EU Citizens (Hart, 2017), chs 3 and 4; and Thym, ‘Family as Link’, in: Verschueren (ed), Where do I belong? (Intersentia, 2016), p. 11–38. 105 See Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 181; Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 299; Hailbronner, Ausländerrecht, § 9a, MN 1; and Boelaert-Suominen, Directive 2003/109/EC, p. 1022.

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living abroad will usually prefer permanent resident status under Article 16 Citizenship Directive 2004/38/EC, which offers a higher degree of protection and is easier to acquire.106 Neither status is exclusive, i. e. both can be obtained in parallel.107 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).

III. Exclusion Clauses The general concept of ‘legal residence’ is complemented by an exhaustive list of six 9 categories108 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 10 are excluded from the personal scope. Again, it has to be ascertained on the basis of national or EU law in question (see above MN 2) whether this condition is met. More specifically, those covered by the Students and Researchers Directive (EU) 2016/801 or more generous domestic rules cannot apply for long-term resident status after five years of studies (with the potential exception of Turkish students109). 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 exception. Article 4(2)(2) specifies that parts of the period of residence for study purposes or vocational training may be taken retroactively in these scenarios. The same applies to doctoral students, since the Commission Proposal to exclude 11 them from the exception was rejected by the Council,110 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.

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 12 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. Part C was amended by Directive 2011/51/EU extending the scope of Directive 2003/ 13 109/EC to beneficiaries of international protection (see above Article 1 MN 13). It now 106 See Groenendijk, Denizenship 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. 107 Note that ECJ, Iida, C-40/11, EU:C:2012:2405, paras 36 et seq. discussed both stati in parallel. 108 Handoll, Directive 2003/109/EC, MN 12 and Peers, Implementing Equality?, p. 446 concur that the list of the exclusion clauses is exhaustive. 109 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; cf. ECJ, Payir, C-294/06, EU:C:2008:36, paras 34–48. 110 Cf. Article 3(2)(d) of the Commission Proposal, COM(2001) 127.

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refers to complementary protection statuses in accordance with national laws which cover various instances of humanitarian protection transcending refugee status or subsidiary protection in accordance with the Asylum Qualification Directive 2011/95/ EU.111 These complementary protection statuses have not been harmonised at EU level so far,112 such as residence for individualised health or security concerns below the threshold of subsidiary protection.113 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 reunification. 14 Part D clarifies that asylum seekers whose application for international protection is being processed 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.114 If their application is approved, their residence is considered legal for the purposes of Directive 2003/109/EC (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 category of third country nationals from the scope of the Directive. The Commission had originally proposed a more clearly defined exception,115 which was amended by the Council, without any substantive explanation,116 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,117 the vague formulation requires closer inspection in order not to jeopardise the practical relevance of Directive 2003/109/EC. 16 An important interpretative starting point concerns the number of scenarios covered 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).118 In the Singh judgment, the ECJ, whose internal discussions are held in French, found that Article 3(2)(e) covers two autonomous exceptions: one for 15

111

Similarly, see Eichenhofer, Recht auf Daueraufenthalt, para 15. See Thym, Legal Framework for EU Asylum Policy, MN 20, 39. 113 For a comparative survey, see Schieber, Komplementärer Schutz (Nomos, 2013), ch 3. 114 See Thym, Legal Framework for EU Asylum Policy, MN 39; and Vedsted-Hansen, Asylum Procedure Directive 2013/32/EU, Article 9, MN 2–4. 115 See Article 3(2)(d) of the Commission Proposal, COM(2001) 127. 116 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. 117 Cf. Mode IV GATS; Skordas, Immigration and the Market, p. 216–217; and Boeles/den Heijer/ Lodder/Wouters, European Migration Law, p. 179. 118 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.’ 112

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residence ‘solely on temporary grounds’ and one for ‘cases where [a] residence permit has been formally limited.’119 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).120 More specifically, the Court activated the integration objective (see above Article 1 MN 14–17). It concluded that the five-year period of legal residence is meant to show ‘that the person concerned has put down roots in the country’121 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.’122 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,123 but such exclusion is not automatic. Instead, we have to assess whether domestic residence statuses are meant to allow the migrant to put down roots and to settle on a long-term basis in line with the Singh judgment. Notwithstanding the inherent open-endedness of the Court’s formula, which ultimately depends on the assessment of domestic legislation by administrative authorities and national courts, the Commission’s second implementing report did not find difficulties on the ground.124 The examples put forward in Article 3(2)(e) specifying the meaning of residence 18 ‘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.125 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 settlement. Again, the meaning of these terms follows national immigration laws or EU legislation applicable to these categories of third country nationals, including the Seasonal Workers Directive 2014/36/EU or Posted Workers Directive 96/71/EC.126 Third country nationals covered by these rules are exempted from the Long-Term Residents Directive ratione personae, although they may be included at a later point, once they receive a residence permit for other purposes, such as family reunification or other work permits. It follows from the introductory formulation ‘such as’ that the examples mentioned in 19 the Directive are illustrative: Article 3(2)(e) may cover residence permits for other 119 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. 120 Although the second question concerned the second limb of Article 3(2)(e), i. e. cases of formal limitation, the argument by ECJ, Singh, C-502/10, EU:C:2012:3076, paras 44–50 concerned the interpretation of Article 3(2) more broadly and referred explicitly, among others, to situations of temporary residence, i. e. the first limb. 121 ECJ, Singh, C-502/10, EU:C:2012:3076, para 46. 122 ECJ, Singh, C-502/10, EU:C:2012:3076, para 47. 123 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). 124 See Commission Implementation Report, COM(2019) 161, p. 2. 125 The reference by the ECJ, Singh, C-502/10, EU:C:2012:3076, 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 the exclusionary criterion in Article 3(2)(e). 126 On the latter, see Thym, Legal Framework for EU Immigration Policy, MN 31 a.

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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 exception127 in the same vein as those holding a ‘Schengen visa’ for stays of up to 3 months.128 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.129 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 residence permit has been subject to a formal limitation.130 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,131 is not in itself an indication that the exception should apply,132 while the potential of renewal beyond is a ‘strong indication’ to the contrary.133

4. Diplomatic and Consular Agents (Article 3(2)(f)) 21

Part F excludes third country nationals with diplomatic or consular 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 is convincing, not least since Member States do not control their access. Diplomatic and consular agents are appointed by the host state and must normally be granted access in accordance with the international law.134

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.135 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. 23 Part A covers only agreements concluded between the EU (formerly the European Community or, before 1992, the European Economic Community) and third states with 22

127 See Loerges, Directive 2014/66/EU, Article 12, MN 1; and Skordas, Immigration and the Market, p. 216–217. 128 This corresponds to the explanatory memorandum of the original Commission Proposal according to Council doc. 10312/01 of 12 July 2001, p. 12. 129 This was the final answer given by ECJ, Singh, C-502/10, EU:C:2012:3076, paras 52–56. 130 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. 131 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. 132 See ECJ, Singh, C-502/10, EU:C:2012:3076, para 53. 133 See ECJ, Singh, C-502/10, EU:C:2012:3076, para 54. 134 See Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 180. 135 See also Thym, Constitutional Framework, MN 28–33.

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or without the participation of the Member States in so-called mixed agreements. The most relevant example is the Association Agreement with Turkey.136 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 24 Member States before 23 January 2014 when the Directive entered into force in accordance with Article 27. For new Member States acceeding to the EU after that date, the provision covers 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.137 Part C, which was amended by Directive 2011/51/EU (see above Article 1 MN 13), 25 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 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 cannot invoke its provisions) most of which have acceded to the EU in the meantime.138 Other multilateral conventions continue to apply in accordance with Article 351 TFEU.139

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. 136 See Thym, Legal Framework for EU Immigration Policy, MN 58; for other agreements, see BoelaertSuominen, Directive 2003/109/EC, p. 1037–1041. 137 See Article 3(2) TFEU; and Boelaert-Suominen, Directive 2003/109/EC, p. 1035–1036. 138 See Thym, Constitutional Framework, MN 59. 139 See Thym, Constitutional Framework, MN 59.

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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. Content mn. 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 1

Article 4 lays down a five-year period of legal residence after which long-term resident status can be obtained if the conditions set out in other articles of the Directive are met, which the ECJ found, in line with Recital 6, to be the ‘main criterion’140 for acquiring the status of long-term resident. The basic five-year rule in Article 4(1) is complemented by a number of specifications concerning the calculation of the five-year period for different categories of residence permits in Article 4(1a), (2) and with regard to periods of absence from the Member State in Article 4(3). The latter aspect has caused problems in practice.141

II. Mandatory Five-Year-Period (Article 4(1)) 2

According to Recital 6, the five-year period shall be the ‘main criterion’ for acquiring 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 integration into host societies (see above Article 1 MN 14–17a). This five-year period reflects earlier practice of the Member States142 as well as rules in international instruments of the International Labour Organisation and the Council of Europe.143 It is a mandatory prescription and Member State cannot establish shorter qualification periods in their national immigration laws for the acquisition of EU long140

ECJ, Tahir, C-469/13, EU:C:2014:2094, para 31. See the Commission’s report on application, COM(2011) 585, p. 1. 142 See Groenendijk/Guild, Converging Criteria, p. 42. 143 See Halleskov, The Long-Term Residents Directive, p. 185. 141

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term resident status,144 although they are free to establish a more generous domestic regime in accordance with Article 13 of the Directive. In order to facilitate legal onward movement, the Commission proposed in September 2020 to shorten the waiting period for beneficiaries of international protection from five to three years.145 The adoption of the proposal, which forms part of the controversial package on asylum reform, was highly uncertain at the time of writing. Practical implications of the change would not be substantial, since few people can be expected to benefit. Beneficiaries of international protection need to be economically self-sufficient to qualify for the long-term residence status in the first Member State in accordance with Article 5(1)(a) and to relocate elsewhere after three years of residence in a first country under Article 15(2)(a). In practice, this would usually require a job offer in the second Member State without which onward movement could be rejected due to the absence of stable and regular resources sufficient for maintenance without recourse to social assistance. The meaning of the term ‘legal residence’ follows corresponding rules at domestic or European levels, on the basis of which domestic authorities or courts have to assess whether periods of residence count towards the five-year threshold (see above Article 3 MN 1–8). When migrants change residence statuses, periods of legal residence on the basis of different statuses can be accumulated for calculating the five-year 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 do not generally count towards the five-year threshold. This conclusion was defended in a comparatively strict manner by the ECJ with regard to the acquisition of permanent residence under Article 16 Citizenship Directive 2004/38/EC.146 Article 4(2)(1) states the same for residence in accordance with Article 3(2)(e) and (f) (see above Article 3 MN 9–20), while special rules exist for students and beneficiaries of international protection and the situation in cases of temporary protection remains unclear (see below MN 10–14). It is well known that provisions of secondary legislation that are precise and 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 whether the conditions for lawful residence are met in specific scenarios.147 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 EU legislation 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). 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.’148 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 whenever periods 144

See ECJ, Tahir, C-469/13, EU:C:2014:2094, paras 26–37. See Art. 71 Proposal for an Asylum and Migration Management Regulation, COM(2020) 610 of 23 September 2020. 146 See ECJ, Ziolkowski & Szeja, C-424/10 & C-425/10, EU:C:2011:866, paras 31–51; for a different proposal, see Eichenhofer, Recht auf Daueraufenthalt, para 27. 147 See Iglesias Sánchez, Free Movement, p. 800–801; Peers, Implementing Equality?, p. 443; and Acosta, The Long-Term Residence Status, p. 100. 148 Contrast the final formulation to Article 5(1) Commission Proposal, COM(2001) 127, p. 3. 145

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of absence going beyond Article 4(3) interrupt the calculation of the five-year period.149 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.150 6 Since the legality of the residence status has to be assessed on the basis of national laws or EU legislation (see above Article 3 MN 2), the five-year 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.151 6a Brexit means that British nationals residing in other Member States stopped being Union citizens on 1 February 2020, when the United Kingdom left the European Union. They qualify as third country nationals for the purposes of domestic or European immigration law. In practice, however, the Long-Term Residents Directive did not apply immediately, since most British nationals living in a Member States are covered by special rules, including the right to permanent residence for British citizens living in the EU on the basis of Article 15 Withdrawal Agreement.152 They apply to all British nationals residing in the Member States on 31 December 2020 when the transitional period after Brexit came to a close (see Thym, Legal Framework for EU Immigration Policy, MN 61). In case British nationals want to apply for long-term residence status under Directive 2003/109/EC (for instance to benefit from intraEuropean mobility rights under Articles 14–23), periods of legal residence as a Union citizen in accordance with the Citizenship Directive 2004/38/EC before the end of the transitional period after Brexit count towards the five-year period (see above MN 6). Moreover, British nationals moving to other Member States from 1 January 2021 onwards, will be covered by rules for third country nationals, including Directive 2003/109/EC (see Thym, Legal Framework for EU Immigration Policy, MN 61).

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 or European rules (see above MN 1–6a). While Article 3 explains which legal residence statuses are covered by the Directive, Article 4(1)-(3) specifies how the lapse of the five-year period should be assessed. See Hailbronner, Ausländerrecht, § 9a, MN 9. See Article 16(2) Blue Card Directive 2009/50/EC. 151 See also Hailbronner, Ausländerrecht, § 9a, MN 10; and Halleskov, The Long-Term Residents Directive, p. 185–186; contra Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 299; similarly, ECJ, Kadzoev, C-357/09 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. 152 See Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community of 24 January 2020 (OJ 2020 L 29/7), which entered into force on 1 February 2020 (OJ 2020 L 29/189). 149 150

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1. Loss of International Protection (Article 4(1a)) Directive 2011/51/EU broadened the scope of the Long-Term Residents Directive to 8 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 resident status in cases of a revocation of, an ending of or a refusal to 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 the 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 reunification.153 If the other status is covered by Article 3(1) as a matter of principle, an application may be successful nonetheless.154 Periods of uninterrupted legal residence, first on the basis of international protection and then for family reunification, are accumulated when 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 under 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. It will be explained below that it remains unclear whether that provision should be read, argumentum e contrario, that residence permits under Article 3(2)(b)-(d) count towards the five-year period, even though the general scheme of the Directive argues against this conclusion (see below MN 14). 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 153 Of course, the second resident status has to be stable, thus 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. 154 See also Peers, Transfer of International Protection, p. 543.

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status (see above Article 3 MN 10–11). It seems irrelevant, however, why the status upgrade was granted for as long as the new permit is covered by the Directive. The wording of Article 4(2)(2) does not require a successful completion of studies.155 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. 13 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.156 The Commission reports that roughly half of the Member States use this option.157 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.158 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). At the same time, Article 4 was not amended with regard to this category. It remains an open question, therefore, whether previous periods of residence as an asylum seeker who did not receive international protection, on the basis of temporary or complementary protection schemes under domestic rules in accordance with Article 3(2)(b)-(d) count towards the five-year period if the third country national holds a resident permit that is not excluded from the scope of the Directive when lodging an application. The general scheme of the Directive argues against accumulation (see above MN 3),159 while the wording of Article 4(2)(1) can be read to sanction a different conclusion argumentum e contrario, since these scenarios are not covered by the explicit exclusion (see above MN 11).160 14a Blue Card holder will be allowed to accumulate periods of residence in several Member State when exercising mobility rights under the Blue Card Directive. The political agreement on the revision of Directive 2009/50/EC, which had not been formally adopted at the of writing, foresees that the five-year period can be based on residence in several Member States in accordance with Article 18(2) of the compromise text.161 The revised rules foresee the need for at least two years of legal and continuous 155 In practice, an unsuccessful student may obtain a different residence permit nonetheless, for instance as a family member; since family reunification 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. 156 The formulation ‘at least half of the period’ shows that more generous domestic rules are permitted for beneficiaries of international protection. 157 See Commission Implementation Report, COM(2019) 161, p. 2. 158 In case of a positive decision after 24 months, the first 18 months 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. 159 See Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 182. 160 See Peers, Transfer of International Protection, p. 544. 161 Contained in Council doc. 8585/21 of 19 May 2021.

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residence as an EU Blue Card holder in a Member State immediately prior to the submission of the relevant application; the remainder of the five-year period can be based on legal residence elsewhere. With regard to periods of absence special rules apply as well (see below MN 16a).

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 after return. While Article 4(3) concerns periods of absence before the acquisition of long-term resident status, absence once the status has been obtained is governed by Article 9. 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 2020, the five-year requirement will be met after 30 April 2025 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 the Council during the legislative process.162 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). In practice, it can be difficult to demonstrate absence, especially with regard to vacation abroad, thereby making it easier for third country nationals to qualify. More generous rules apply to Blue Card holders under the political agreement on the revision of Directive 2009/50/EC, which had not been formally adopted at the of writing. Periods of absence from the territory of the Member States shall not interrupt the five years period if those periods are shorter than twelve consecutive months and do not exceed, in total, eighteen months within the five years period of legal and continuous residence.163 Article 4(3)(2) affords Member States with flexibility to except longer periods of absence in accordance with specific or exceptional reasons of a temporary nature which must be laid down in national laws. The vague formulation of the provision leaves Member States with leeway to define reasons they will accept, reflecting a desire on the side of the Council not to regulate exceptions in a more detailed manner in the Directive.164 If Member States use this option, they cannot count such additional periods of absence exceeding Article 4(3)(1) towards the five-year requirement, save for a derogation permitted in relation to secondment for employment in Article 4(3)(3). 162

Contrast the final wording to Article 5(3) Commission Proposal, COM(2001) 127. See Article 18(3) of the compromise text contained in Council doc. 8585/21 of 19 May 2021. 164 The Commission Proposal had recommended to proceed towards further harmonisation. 163

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Another exception exists for holders of an EU Blue Card who may be absent for up 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.165

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.

mn. 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 1

Article 5 contains two sets of conditions for acquiring long-term resident status complementing the five-year period of legal residence in Articles 3 and 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 considerable criticism in academic and political circles. There is, in contrast to the Family Reunification Directive, no explicit requirement of adequate accommodation alongside the prerequisite for sufficient resources,166 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)) 2

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 165 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). 166 See, by contrast, Article 7(1)(a) Directive 2003/86/EC.

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sufficient resources.167 According to Recital 7, the condition pursues the objective ‘to avoid [a long-term resident] becoming a burden for the Member State.’ This was reaffirmed by the ECJ in a twist of the case law (see above Article 1 MN 16a) recognising that Article 5(1)(a) does not contradict the Directive’s principle objective of promoting integration into host societies.168 The identification of the separate objective to protect the financial interests of the Member States explains that the general assertion, in the Chakroun judgment,169 that the economic self-sufficiency requirement should be interpreted narrowly can only be the starting point of the interpretative exercise, which takes into account many other elements. The ECJ judgments on economic self-sufficiency illustrate how the abstract distinc- 2a tion between different conceptions of migrant integration (see above Article 1 MN 17–17a) can, like the plurality of different (sub-)objectives pursued by secondary legislation (see above MN 2), influence the interpretation of secondary legislation. If we adopt an equality-based argument, one would support a narrow reading, while a vision of integration emphasising social affiliation will recognise that stable and sufficient resources are an important indicator demonstrating that someone is genuinely integrated into the host society, since ‘the person has put down roots in the country.’170 This outcome minimises economic disturbances and can be said to ‘promot[e] economic and social cohesion.’171 ECJ practice on Article 5(1)(a) has been found to combine both perspectives, even though it does not reflect them openly.172 It should be borne in mind that a rejection of long-term resident status due to a lack of resources does not usually oblige the migrant to leave the country, since he continues to benefit from the residence referred to in Article 4(1). The Long-Term Residents Directive does not define the notion ‘stable and regular 3 resources’, neither in Article 2 nor in Article 5. Its meaning has to be established, therefore, by means of interpretation. Interpretation follows the internal structure of the Directive, since long-term residents cannot invoke, unlike Union citizens, a Treatybased right to residence that may influence the interpretation of secondary law.173 It was confirmed by the ECJ that the concept of ‘stable and regular resources’ – like in the case of the public policy exception (see below Article 6 MN 2–13) – can be compared to Article 7(1)(a) Citizenship Directive 2004/38/EC as a matter of principle, even though the wording and the general scheme of the Long-Term Residents Directive support differentiation.174 Both the X case on Article 5(1)(a) Long-Term Residents Directive and the parallel Khachab ruling on Article 7(1)(c) Family Reunification Directive175 employed diverse interpretative criteria like the wording, general scheme 167 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 305. 168 See ECJ, X, C-302/18, EU:C:2019:830, para 35; mirroring the case law on the Family Reunification Directive in ECJ, Khachab, C-558/14, EU:C:2016:285, para 39; and the Citizenship Directive in ECJ, Dano, C-333/13, EU:C:2014:2358, para 74. 169 See ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43. 170 Recital 6 of the Directive. 171 Recital 4 of the Directive. 172 See Gerbaudo, ‘The X Case: The Influence of the Resource Requirement on Long-Term Residents’ Integration and National Authorities’ Discretionary Powers’, European Papers, European Forum, Insight of 13 February 2020, p. 1, 6–7. 173 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 Thym, Elusive Limits, p. 26. 174 See ECJ, X, C-302/18, EU:C:2019:830, paras 26–39. 175 See ECJ, Khachab, C-558/14, EU:C:2016:285, paras 25–47.

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and objectives of secondary legislation to answer the preliminary references, thereby giving us important guidance how the provisions are to be interpreted. 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 granted176 and had wanted to exempt third country nationals born in the territory of a Member State from the condition.177 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.’178 Instead, the more vaguely formulated Article 5(1)(a) was meant to provide Member States with a certain leeway to define and apply domestic rules specifying the ‘stable and regular resources’ requirement.179 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). This corresponds to established principles governing the implementation of Directives in accordance with Article 288 TFEU. 5 Applying the ‘stable and regular resources’ requirement requires and allows Member 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 its Chakroun judgment on the Family Reunification Directive, 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.’180 This need for an individual examination extends to the Long-Term Residents Directive in line with ECJ case law: 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.181 The same applies to other indicators like the length of employment contracts.182 5a Notwithstanding the wording of Article 5(1) that third country national must provide evidence that they ‘have’ sufficient resources, which could possibly be read to refer to the present situation only, thereby excluding proof of sufficient resources after the recognition as long-term resident,183 the ECJ found in the Khachab judgment on the almost identical formulation in Article 7(1)(c) Family Reunification Directive that the autonomous concept of stable and regular resources relates to both present and future income. Judges explained that this result stems from the notion of ‘stability’ and 176 Contrast the final wording of Article 5(1)(a) to Article 6(1)(a) Commission Proposal, COM (2001) 127. 177 This was rejected in accordance with Council doc. 10698/01 of 2 August 2001, p. 6. 178 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). 179 See Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 182; and Halleskov, The LongTerm Residents Directive, p. 186. 180 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 48; similarly with regard to the individual assessment, ECJ, Khachab, C-558/14, EU:C:2016:285, paras 41–46. 181 ECJ, X, C-302/18, EU:C:2019:830, para 39 referred to the Chakroun ruling and the need for an individual assessment. 182 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. 183 Note that this interpretation is not self-evident, since the present tense (‘have’) can also be read to refer to the time when the assessment is being made (i.e. during the application procedure), while the period during which the resources must be available can cover longer times, also considering that the wording uses the terms ‘regular and stable’, thereby indicating that they must cover longer periods.

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‘regularity’ to which the wording refers, the objective of protecting the financial interests of the Member States and the general scheme of the Directive requiring previous periods of legal residence (and hence underlining how important stability is).184 The ECJ confirmed a Spanish practice to be compatible with the Directive which required domestic authorities to ascertain that resources cover a 12-month period after the initial application.185 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 Reunification Directive 2003/86/EC that applies primarily to members of the nuclear family, in particular spouses and minor children.186 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 Reunification Directive.187 Other first-degree relatives and unmarried adult children are covered by the Family Reunification Directive only if they are dependent on the sponsor,188 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 Reunification Directive,189 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 longterm resident status. In the X judgment, judges found that the origin of the resources is irrelevant as a 7 matter of principle, even though several language versions use the term ‘income’ instead of ‘resources’, which refers more restrictively to financial means one obtains as a result of economic or other activities.190 Given that the wording did not support a clear-cut answer,191 judges had recourse to various interpretative principles.192 Third country nationals may be financed, in full or in part, by brothers or other family members – provided that they are willing to sustain the funds over a longer period in line with the stability and regularity requirement enshrined in the wording and confirmed by the ECJ (see above MN 5a). On the whole, 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.193 184 See ECJ, Khachab, C-558/14, EU:C:2016:285, paras 29–40; this was taken up and confirmed, for the Long-Term Residents Directive, by ECJ, X, C-302/18, EU:C:2019:830, paras 36–37. 185 See ECJ, Khachab, C-558/14, EU:C:2016:285, paras 41–46. 186 See Article 4(1) Directive 2003/86/EC. 187 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. 188 Cf. Article 4(2) Directive 2003/86/EC. 189 See Article 4(3) Directive 2003/86/EC. 190 See ECJ, X, C-302/18, EU:C:2019:830, paras 26–27; similarly, the second edition of this Commentary; Wiesbrock, Legal Migration, p. 373; Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 302; and the Commission’s report on application, COM(2011) 585, p. 3. 191 Generally, on linguistic open-endedness, see Thym, Constitutional Framework, MN 12a-12 b. 192 See ECJ, X, C-302/18, EU:C:2019:830, paras 29–39. 193 For more detail see, mutatis mutandi, Bornemann/Klarmann, Directive 2003/86/EC, Article 7, MN 10–12.

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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 leeway how to be applied in specific scenarios nonetheless (see above MN 4–5). The ECJ confirmed in the Chakroun judgment on the Family Reunification Directive that the autonomous interpretation of the term ‘social assistance system’194 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.’195 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.196

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.197 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 sickness insurance available, which are all common among nationals, Article 5(1)(b) should not be read to require the highest level of protection possible. The average insurance situation among nationals can be considered a reasonable point of reference third country nationals applying for long-term resident status must meet.

IV. Integration Conditions (Article 5(2)) 10

Integration conditions, both in the Long-Term Residents Directive and in the Family Reunification 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 affiliation during negotiations on the Family Reunification and the Long-Term Residents Directives.198 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. 194

See ECJ, Chakroun, C-578/08, EU:C:2010:117, para 45. ECJ, Chakroun, C-578/08, EU:C:2010:117, para 46; see also Bornemann/Klarmann, Directive 2003/ 86/EC, Article 7 MN 11. 196 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 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. 197 See Handoll, Directive 2003/109/EC, Article 5, MN 15. 198 See above Article 1 MN 8–11; Thym, Legal Framework for EU Immigration Policy, MN 36; and Thym, Constitutional Framework, MN 7–9. 195

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Notwithstanding the common background, it should be noted that there are important legal differences between language skills as a precondition for family reunification and long-term residence status. To make family reunification conditional upon the acquisition of basic language skills before arrival, may prevent the family from living together in the EU and thus has a human rights dimension.199 By contrast, the rejection of long-term resident status does not usually oblige the migrant to leave the host society, since he continues to benefit from a residence permit in line with Article 4(1), which requires applicants to reside legally. Rejection of long-term resident status will not, therefore, affect the right to private and family life under Article 8 ECHR (see below Article 6 MN 6). Austria, Germany and the Netherlands were the driving force behind the introduction 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,200 not least since a new French government in May 2002 with Nicolas Sarkozy as Interior Minister had changed position and embraced language requirements domestically.201 This new approach to migrant integration was not limited to Directive 2003/109/EC, but informed wider political debates at European level, thereby signalling a general reorientation of immigration policy across Europe.202 Other Member States followed the example of Austria, Germany and the Netherlands in the years after the adoption of the Long-Term Residents Directive. Language requirements and civic integration are widespread nowadays.203 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.204 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 Reunification Directive, since the latter requires an autonomous interpretation in line with ECJ case law.205 It is mentioned elsewhere that, according to the ECJ, the principal purpose of the Directive is the integration into host societies and that the precise meaning of the concept of integration remains ambiguous, also considering that the ambiguity of the integration concept extends to the Preamble which comprises somewhat different integration concepts on closer inspection (see above Article 1 MN 16–17a). Article 5(2) is an integral part of the Directive and serves as an important indicator that the EU legislature embraces elements of social affiliation.206 It is the prerogative of the ECJ to determine authoritatively the meaning of Article 5(2) Directive 2003/109/EC (see below MN 18). The absence of a definition of 199 See Thym, Legal Framework for EU Immigration Policy, MN 52–52a; and Skordas, Immigration and the Market, p. 220–221. 200 For details, see Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009), p. 175–183; and Groenendijk, Denizenship and Integration, p. 442–445. 201 See Hauschild, Einwanderungsrecht, p. 350–351. 202 For instructive reading, see Carrera, Integration of Immigrants, p. 151–176. 203 See Goodman, Immigration and Membership Politics in Western Europe (CUP, 2014). 204 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, Denizenship and Integration, p. 444–445. 205 See ECJ, K & A, C-153/14, EU:C:2015:453, paras 45–48; Bornemann/Klarmann, Directive 2003/86/ EC, Article 7, MN 25; and Thym, ‘Towards a Contextual Conception of Social Integration in EU Immigration Law’, EJML 18 (2016), p. 89, 96–97. 206 See also Thym, ‘Towards a Contextual Conception of Social Integration in EU Immigration Law’, EJML 18 (2016), p. 89, 102–103.

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the term ‘integration’ in the Directive indicates that Member States have leeway when determining the contours of domestic integration requirements, also considering that Article 5(2) explicitly refers to integration conditions ‘in accordance with national law.’207 The use of such wording usually indicates that integration does not constitute an autonomous concept of EU law.208 It is to be expected, therefore, that the ECJ will not regularly prevent Member States from defining which measures they consider promoting integration, except for extreme cases. Rather, judges will limit state discretion through a proportionality assessment (see below MN 17, 19). Integration conditions at national level must 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 criteria third country nationals have to meet.209 15 In practice, integration conditions at national level may include language proficiency (the level necessary may vary between Member States) or civic knowledge with regard to the host society (typically its history, legal orders, social practices 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 resident status without a test.210 Almost all Member State have introduced various forms of integration conditions in the meantime, although their contents differ greatly.211 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 diversity.’212 16 Article 5(2) covers beneficiaries of international protection if they apply for longterm 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 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 Reunification Directive, special rules for refugees.213 It is compatible with a concept of gradual status change to require a lesser degree of integration skills upon arrival and to ask for more profound knowledge later. 17 In the P & S case, the ECJ had to interpret Article 5(2) regarding a Dutch rule on a 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, but the status of long-term resident was not 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;214 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 207 See Halleskov, The Long-Term Residents Directive, p. 186; and Handoll, Directive 2003/109/EC, Article 5, MN 16. 208 See Thym, Constitutional Framework, MN 12 a. 209 See Acosta Arcarazo, Civic Citizenship Reintroduced?, p. 217–218, who does not clearly distinguish, however, between a vaguely formulated provision in an EU Directive and the need for more precise implementation by the Member States in accordance with Article 288 TFEU. 210 See the Commission’s Report on Application, COM(2011) 585, p. 3 211 Commission Implementation Report, COM(2019) 161, p. 3 reported that 21 out of 25 Member States, which are bound by the Directive, have such requirements; see also Commission’s Report on Application, COM(2011) 585, p. 3; and Böcker/Strik, Language and Knowledge Tests, p. 157–176. 212 See also Thym, Legal Framework for EU Immigration Policy, MN 24. 213 Peers, Transfer of International Protection, p. 545–546 does not give doctrinal reasons for the diverging position put forward. 214 See ECJ, P & S, C-579/13, EU:C:2015:369, paras 34–38.

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Article 5(2) nor the general scheme of the Directive prevent Member States from establishing integration requirements after the status has been obtained,215 at least in so far as non-compliance with these rules cannot result in the revocation of longterm resident status.216 When exercising their residual legislative competence, Member States must not – even in the absence of statutory prescriptions in secondary legislation217 – undermine the effet utile of secondary legislation by rendering longterm resident status irrelevant in practice.218 Moreover, they act within the scope of Union law and must respect general principles, including human rights and proportionality.219 In the proportionality test, the ECJ had to take an implicit stance on the meaning 18 of integration in the context of the Long-Term Residents Directive (see above MN 13–14). The position comes to the fore if you compare the ECJ’s rather short reasoning with the arguments put forward by Advocate General Szpunar who had started his analysis with a reminder of the Tampere objective220 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.’221 The ECJ did not follow this restatement of a rights-based conception of 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.’222 This principled declaration confirms that the ECJ subscribed to a contextual approach recognising the value of integration in light of broader social and economic factors.223 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.224 ECJ, P & S, C-579/13, EU:C:2015:369, para 38. 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). 217 See Thym, Constitutional Framework, MN 16. 218 See ECJ, P & S, C-579/13, EU:C:2015:369, para 45. 219 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, P & S, C-579/13, EU:C:2015:369, paras 45, 54; see Thym, ‘Towards a Contextual Conception of Social Integration in EU Immigration Law’, EJML 18 (2016), p. 89, 97–98; and also Acosta, The Long-Term Residence Status, p. 211–219. 220 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. 221 AG Szpunar, P & S, C-579/13, EU:C:2015:39, para 89 adding that this conclusion concerned longterm residents who ‘regardless of his/her language skills and knowledge of the society in question, already has a certain network of ties with that society;’ this statement assumes that third country nationals are integrated irrespective of further requirements, which are presented instead as a hindrance for integration. 222 ECJ, P & S, C-579/13, EU:C:2015:369, para 47; in line with AG Kokott, K & A, C-153/14, EU: C:2015:186, paras 19–32 with many doctrinal and other arguments in a parallel case concerning the interpretation of Article 7(2) Family Reunification Directive. 223 Similarly, albeit with regret, Eichenhofer, Recht auf Daueraufenthalt, para 30; and Jesse, Civic Citizens, p. 299. 224 See Thym, Legal Framework for EU Immigration Policy, 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 215 216

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General principles of Union law may limit the discretion of the Member States in terms of domestic integration conditions (see above MN 14, 17). In the P & S case, the ECJ found that the level of costs for registration and fines for non-compliance should not be excessive: an amount of several hundred euros per registration, like in the Dutch case, was deemed excessive, while lower levels of fees and fines are admissible.225 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.226 This conclusion extends to integration conditions prior to the acquisition of long-term residence status which must 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, in line with ECJ case law on Article 7(2) Family Reunification Directive.227 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. 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. Differentiation as a Result of the Interpretative Exercise......................

mn. 1 2 9

I. General Remarks 1

Article 6 concerns initial applications for long-term resident status, which Member 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 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. 225 See ECJ, P & S, C-579/13, EU:C:2015:369, paras 49–54. 226 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). 227 See ECJ, K & A, C-153/14, EU:C:2015:453, paras 57–58; and Bornemann/Klarmann, Directive 2003/ 86/EC, Article 7 MN 29; 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 (see above MN 11).

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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, even though recent ECJ case law indicated that it should be given a different meaning than corresponding guarantees for Union citizens.

II. Interaction with Case Law on Union Citizens The concept of ‘public policy’ and ‘public security’ exceptions is well established in 2 EU 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. It was described in the introductory chapter that the ECJ emphasised that the concept of ‘public policy’ shall have a parallel meaning for Union citizens and third country nationals as a matter of principle, even though this need not result in identical outcomes.228 In line with recent ECJ case law, 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 to what extent the provision should be interpreted in parallel to 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.’229 Austria and Germany, in particular, thought these placed excessive restrictions on Member State powers,230 thereby paving the way for their replacement by today’s formulation that abandoned the wide-ranging Commission Proposal with its orientation at rules for Union citizens. Along similar lines, an amendment sought by the European Parliament to explicitly direct the interpretation of Article 6 Long-Term Residents Directive towards the former Directive 64/221/EEC, the predecessor of today’s Citizenship Directive 2004/38/EC, was not followed by the Council.231 Besides the drafting history, the general scheme of the Long-Term Residents Direc- 4 tive 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 228

See Thym, Legal Framework for EU Immigration Policy, MN 42a-42 d. 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). 230 See Council doc. 10698/01 of 2 August 2001, p. 7. 231 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); remember that the initial adoption of the Long-Term Residents Directive was not subject to the ordinary legislative procedure in 2003; see Thym, Constitutional Framework, MN 3. 229

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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 12.232 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 was sometimes said that case law on Turkish nationals established a precedent for far-reaching synchronisation of rules for third country nationals with Union citizens.233 It was demonstrated elsewhere that the ECJ’s ‘so far as is possible’234 formula cannot be applied to migration law indiscriminately, since it builds upon the wording and telos of the Association Agreement with Turkey which stipulates explicitly that rules should be approximated to the free movement of Union citizens.235 This implies that parallel interpretation ends where the objectives and the general scheme of Union law and the Association Agreement diverge – 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 1/80.236 While the starting point for interpreting the public policy and security exception is the same as for Union citizens,237 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.’238 This judgment was referred to in the López Pastuzano, when a small chamber of three judges evaded a definite statement to what extent Article 6 Long-Term Residents Directive mandates differentiated interpretation.239 The judgment can be perceived as an interlude of the case law during a time when judges in Luxembourg were still uncertain how to construe the public policy exception before later cases developed a general pattern.240 6 It should be remembered that the constitutional status of third country nationals differs markedly from rules on Union citizens, since the latter benefit from a Treatybased right to free movement, to which the ECJ referred to justify the narrow interpretation of the public policy exception for Union citizens. The latter was said to be informed by the ‘fundamental principle of free movement for workers’241; judges also stated that the later introduction of Union citizenship vindicated ‘a particularly restrictive interpretation.’242 By contrast, third country nationals can ‘only’ invoke 232 See Hailbronner, Ausländerrecht, § 9a, MN 36; and Schmid-Drüner, Der Begriff der öffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewählter EU-Mitgliedstaaten (Nomos, 2007), p. 409–411. 233 In the context of Directive 2003/109/EC, see Acosta, The Long-Term Residence Status, p. 130–137; and 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, 91–94. 234 ECJ, Bozkurt, C-434/93, EU:C:1995:168, para 20. 235 See Thym, Constitutional Framework, MN 19. 236 See Thym, Legal Framework for EU Immigration Policy, MN 42 b. 237 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. 238 ECJ, Ziebell, C-371/08, EU:C:2011:809, para 73. 239 ECJ, López Pastuzano, C-636/16, EU:C:2017:949, paras 26–27; and below Article 12, MN 6. 240 See Thym, Legal Framework for EU Immigration Policy, MN 42c-42 d. 241 ECJ, Bouchereau, 30/77, EU:C:1977:172, para 33. 242 ECJ, Orfanopoulos & Olivieri, C-482/01 & C-493/01, EU:C:2004:262, para 65.

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human rights in the Charter.243 Human rights 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.244 This is relevant for our purposes, since the rejection will not usually terminate the residence permit upon which previous periods of legal residence under Article 4 are based, thus implying that rejection of long-term resident status does not usually have human rights implications.245 This was confirmed, indirectly at least, by the ECJ on two occasions (see above Article 5 MN 2a and Article 9 MN 4a). Similarly, the Treaty concept of ‘fair treatment’ of third country nationals cannot be relied upon to challenge statutory rules, since the Treaty essentially entrusts the legislature to determine what it considers to be fair.246 This implies that the interpretation of Article 6 Directive 2003/109/EC is not predetermined by primary law. 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 1 MN 16–17). 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.’247 The integration objective does not require to interpret Articles 6, 12 Long-Term Residents Directive narrowly, since criminal behaviour can indicate a lesser degree of integration notwithstanding previous periods of legal residence. On the basis of the ECJ case law on the limits of parallel interpretation of the ‘public 8 policy’ exception,248 arguments presented above (see MN 3–7) support our conclusion that a full synchronisation of Article 6 Directive 2003/109/EC with rules on Union citizens should be refuted.249 We may, rather, extend the abstract meaning of ‘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).

III. Differentiation as a Result of the Interpretative Exercise It was explained above that, in line with ECJ case law, the interpretation of the terms 9 ‘public policy’ and ‘public security’ may follow 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). This implies that the term ‘public policy’ refers, in line with settled ECJ case law, to a ‘genuine and 243

See Thym, Legal Framework for EU Immigration Policy, 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; it is incorrect, therefore, 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 did. 245 Similarly, see ECJ, Y.Z. et al., C-557/17, EU:C:2019:203, para 73. 246 See Thym, Constitutional Framework, MN 7. 247 ECJ, Tsakouridis, C-145/09, EU:C:2010:708, para 34. 248 See Thym, Legal Framework for EU Immigration Policy, MN 42a-42 d. 249 Similarly, see Hailbronner, Ausländerrecht, § 9a, MN 30–39. 244

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sufficiently serious threat … affecting one of the fundamental interests of society.’250 It is also well established that Member States benefit from a margin of discretion when specifying what constitutes a threat to public policy;251 it does not necessarily prescribe a uniform solution across the Union, since ‘the concept of public policy may vary from one Member State to another and from one era to another.’252 These abstract principles, enshrined in free movement case law, are reinforced by the room for differentiated solutions in line with the distinct legislative and constitutional framework for long-term resident third country nationals in contrast to Union citizens. 10 It will usually be sufficient for Member States to rely on the notion of ‘public policy’, since the ECJ interprets the ‘public security’ exception narrowly. Settled case law defines ‘public security’ to relate primarily to scenarios of fundamental internal or external threats to fundamental interests of a society calling into question ‘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.’253 Classic examples covered by that definition are terrorism and organised crime, although judges have broadened their outlook by emphasising that ‘a direct threat to the calm and physical security of the population’ can constitute a public security risk concerning criminal offences that disclose ethically particularly troublesome characteristics, such as sexual abuse of children or involvement in drug trafficking, even though they do not directly undermine the state institutions.254 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 to define the public policy or security threshold. The Commission Proposal would have prevented such rules when stating 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).255 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),256 although a rejection on this basis will always require a balancing exercise weighing public and private interests involved. 250 The formula was first used by ECJ, Bouchereau, 30/77, EU:C:1977:172, para 35; and, in the context of immigration and asylum, ECJ, Fahimian, C-544/15, EU:C:2017:255, para 40. 251 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. 252 See EuGH, Sayn-Wittgenstein, C-208/09, EU:C:2010:806, para 87. 253 ECJ, Campus Oil, 72/83, EU:C:1984:256, para 34. 254 See ECJ, I., C-348/09, EU:C:2012:300, para 28; and ECJ, Tsakouridis, C-145/09, EU:C:2010:708, paras 45–50; for comments, see Azoulai/Coutts, ‘Restricting Union Citizens’ Residence Rights on Grounds of Public Security’, CML Rev. 50 (2013), p. 553–570. 255 Note that ECJ, Fahimian, C-544/15, EU:C:2017:255, paras 32–35, 40, 44–46 relied on non-binding recitals to justify a broad interpretation of the notion of ‘public policy’ in a case concerning the rejection of an application for first admission under the former Students Directive 200/114/EC; similarly, ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 58 noted the significance of recitals for the interpretative exercise. 256 See Hauschild, Einwanderungsrecht, p. 352.

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Article 6(1)(2) shows that previous criminal convictions or present dangers can – 12 even if they qualify as public policy or security grounds – never be sufficient in themselves 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 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 12.257 We may expect the Court of Justice to reiterate the need for an individualised assessment in response to a preliminary reference by a Spanish court that was still pending at the time of writing.258 The additional obligation in Article 6(2) not to found a refusal on economic 13 considerations will not usually have much relevance in practice, since Article 6 will primarily be activated to deny long-term residence permits to criminals or other noneconomic risks. It shows that financial considerations, such as recourse to social assistance, cannot justify an activation of the public policy exception in regular circumstances, also considering that corresponding public interests are protected by the stable and regular resources requirement in Article 5(1)(a) of the Directive. 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 noneconomic consideration, justify restrictions on public policy grounds according to ECJ case law.259

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. 257 Proportionality assessments depend on the circumstance of the individual case; see Thym, Constitutional Framework, MN 24–25. 258 See ECJ, Subdelegación del Gobierno en Barcelona, C-592/19. 259 See, notwithstanding ambiguities of the case law, Shuibhne/Maci, ‘Proving Public Interest’, CML Rev. 50 (2013), p. 965, 997–998; and Thym, Elusive Limits, p. 27–32.

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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.

mn. 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

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. 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.260 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, unlike in the case of Union citizens and Turkish nationals, even though Member States are obliged to grant the permit if the conditions are met (see below MN 14). Applications can be withdrawn during the procedure.261 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. 2

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The second sentence of Article 7(1)(1) endorses that applications shall be accompa- 4 nied 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,262 stable and regular resources, sickness insurance, possible integration conditions and, if required, the travel document mentioned in Article 7(1)(1).263 Other documentation may also be required, at least in so far as it necessary for domestic authorities to take a decision.264 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.265 Article 7 does not contain any prescription on application fees266 and it is therefore 5 up to Member States to decide whether and if so how much fees they charge, although excessive fees can run counter to general principles of Union law (see above MN 2). This was confirmed by the ECJ in a judgment in response to 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.267 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, even though 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, i.e. it did not require similar fee levels.268 In the CGIL & INCA ruling, the ECJ declared an Italian rule to be disproportionate, since only half of the fees were linked to the investigative activity necessary to verify whether the conditions governing the issue of residence permits under Directive 2003/ 109 have been satisfied.269 The judgments are defined by an inbuilt tension between a ‘margin of discretion’270 6 of the when determining fee level in the absence of statutory provisions to the contrary and limits under the principles of effet utile and proportionality. It seems to me that the judgments should not be read to require strict financial equivalence between domestic fee levels and the costs of the services. Judges rather corrected outliers by forbidding Member State from charging punitively high fees with dissuasive effects and linking fee levels to administrative tasks on different subject matters. The Dutch case concerned fee levels of 201 EUR for regular applications under Article 7 and amounts 262 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. 263 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. 264 They may ask, for instance, for documentation relating to an assessment of possible threats under the public policy and security exception in Article 6. 265 By way of example on a specific scenario involving minors in the context of the Family Reunification Directive, see ECJ, E, C-635/17, EU:C:2019:192. 266 Article 9(3) of the Commission Proposal, COM(2001) 127 had proposed initially that the permit shall be issued free of charge; it was rejected by the Council. 267 See ECJ, Commission v. the Netherlands, C-508/10, EU:C:2012:243, paras 65, 69–70. 268 ECJ, Commission v. the Netherlands, C-508/10, EU:C:2012:243, 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). 269 See ECJ, CGIL & INCA, C-309/14, EU:C:2015:523, paras 29–30. 270 ECJ, Commission v. the Netherlands, C-508/10, EU:C:2012:243, para 64; and ECJ, CGIL & INCA, C-309/14, EU:C:2015:523, para 22.

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between 188 and 830 EUR for diverse scenarios of intra-EU movement in accordance with Article 24–23 of the Directive.271 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.272 The CGIL & INCA judgment found fees between 80 and 200 EUR to be incompatible with the Directive, but the ECJ was careful not to ground that conclusion on the level of the fees as such, but on the calculation method, which had taken into account administrative costs not related to the service (see above MN 5). 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.273 The open formulation on exceptions indicates that Member States have wide discretion and any verdict about violations will ultimately depend on the circumstances of the individual case. The Commission reports that most Member States refer to general principles of administrative law, which it considered insufficient in its report on the implementation of the Single Permit Directive.274 Of course, an expiry 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).275 Article 7(2)(4) refers to national law concerning any consequences of no decision being taken in what may have been an attempt, by the Council, to prevent the ECJ from developing unforeseen consequences, such as automatic acquisition of the status.276 With the wisdom of hindsight we may conclude that the care was not warranted; judges came to the opposite conclusion in a case concerning the Family Reunification Directive. Since national procedural autonomy shall not impede the effet utile of the Directive,277 Member States cannot automatically grant residence permits after the expiration of time limits without assessing compliance with mandatory requirements set out in secondary legislation.278 Article 7(2)(3) requires Member States to inform ‘the person concerned’ about her rights and obligations under the Directive, although the precise meaning of this obligation, which was not part of the original Commission Proposal, remains obscure.279 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,280 including the right to give a reasoned decision in line with Article 10(1). 271 See ECJ, Commission v. the Netherlands, C-508/10, EU:C:2012:243, 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. 272 The Dutch State Council (Raad van State), judgment of 17 June 2014, 201401261/1/V1 concluded an amount of 4 X 130 EUR for two parents and two children to be prohibitive (apparently, the Netherlands lowered the fee level for minor applicants to 53 EUR as a result). 273 By contrast, Article 8(2) Commission Proposal, COM(2001) 127 had proposed to allow for an extension only in the absence of documentary evidence to be submitted by the applicant. 274 See Commission Implementation Report, COM(2019) 161, p. 4; and the Report on the Implementation of the Single Permit Directive 2011/98/EU, COM(2019) 160, p. 6. 275 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 306. 276 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). 277 See Thym, Constitutional Framework, MN 16, 36–36 a. 278 See ECJ, Belgische Staat, C-706/18, EU:C:2019:993, paras 26, 34–36. 279 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 307. 280 Article 42 EU Charter applies directly to EU institutions only, but can be extended to Member States on the basis of general principles; see Thym, Constitutional Framework, MN 37 a.

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Member States are also obliged to provide an effective remedy against rejection in line with Article 47 EU Charter and the limits to national procedural autonomy.281 This is confirmed by Article 10(2).

III. Appropriate Accommodation (Article 7(1)(2)) The meaning of the additional reference, in Article 7(1)(2), that applicants may be 10 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 even though that criterion is not listed in Article 5(1). 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. Both possibilities can rely on doctrinal arguments supporting each position. 11 Option 1 (procedural obligation) will emphasise that accommodation is not listed in Article 5(1) mirroring Article 7(1)(a) Family Reunification 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.282 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.283 To note that the Directive contains an exhaustive list of conditions for obtaining the status does not resolve the question,284 since our query is precisely about whether Article 7(1)(2) constitutes such a requirement in the first place. In practice, several Member States apply an accommodation requirement.285 On the basis of the arguments presented above, it is not possible to present a clear-cut 12 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 others supporting Member States in deciding whether an applicant has stable and regular resources (see above Article 5 MN 5).

IV. Individual Rights and Direct Applicability (Article 7(3)) In accordance with Article 7(1), applicants ‘shall lodge an application’ which is 13 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, 281

See Thym, Constitutional Framework, MN 36–37 d. This seems to be the position of the Commission’s first report on application, COM(2011) 585, p. 4, while the second Commission Implementation Report, COM(2019) 161, p. 3 stated, under reference to this Commentary, that the situation was unclear; and Peers/Guild/Acosta Arcarazo/Groenendijk/MorenoLax, EU Immigration and Asylum Law, Vol. 2, p. 302, 306. 283 See Hailbronner, Ausländerrecht, § 9a, MN 46; and Halleskov, The Long-Term Residents Directive, p. 186. 284 See Acosta Arcarazo, Civic Citizenship Reintroduced?, p. 209. 285 See Commission Implementation Report, COM(2019) 161, p. 3. 282

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unlike 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’286 if the conditions set out in the Treaty are fulfilled.287 The ECJ recognised that for acquiring long-term resident status one ‘must submit an application.’288 14 Article 7(3) obliges Member States to approve an application if the conditions are met (‘shall grant’), thereby confirming that Member States have no general discretion whether to grant the status as sometimes was the case in national immigration laws before the adoption of the Directive.289 The ECJ confirmed that applicants ‘have the right to obtain long-term resident status’290 if the requirements under the directive and domestic law are fulfilled.291 It is the purpose of the time limit 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). 15 An individual right of applicants to receive the status precludes an application of domestic immigration quotas or points-based admission systems if they can result in the rejection of an application contrary to Article 7(3).292 It depends on the interpretation of the statutory provisions in question whether Member States 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.293

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 286

Settled ECJ case law ever since ECJ, Royer, 48/75, EU:C:1976:57, para 32. See Thym, Elusive Limits, p. 39–43; for Turkish nationals see Article 3 MN 7. 288 ECJ, Commission v. 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, EU: C:2013:103, para 25 (only available in French); and ECJ, Y.Z. et al., C-557/17, EU:C:2019:203, para 59; Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 299; Peers, ‘The Court of Justice Lays the Foundations for the Long-Term Residents Directive’, CML Rev. 50 (2013), p. 529, 547–548; and Groenendijk, Denizenship and Integration, p. 436. 289 See Groenendijk/Guild, Converging Criteria, p. 41. 290 ECJ, Commission v. Netherlands, C-508/10, EU:C:2012:243, para 68; AG Bot, ibid., EU:C:2012:25, para 75 was more explicit about the absence of discretion. 291 See Acosta Arcarazo, Civic Citizenship Reintroduced?, p. 209; ter Steeg, Einwanderungskonzept, p. 382; and Groenendijk, Denizenship and Integration, p. 435–436. 292 See, with regard to the former situation in Austria, the Commission’s first report on application, COM(2011) 585, p. 4. 293 See Thym, Constitutional Framework, 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. 287

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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 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)) ..................

mn. 1 2 8

I. General Remarks Article 8 contains rules on technical specificities and the validity of long-term 1 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 perma- 2 nent.’ 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).294 The reference in Article 8(1) to Article 9 accentuates that the status can only be lost in the cases listed therein, such as fraud, expulsion or relocation abroad. (7) 294

OJ L 157, 15.6.2002, p. 1. See the Explanatory Report attached to the Commission Proposal, COM(2001) 127, p. 19.

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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 flexibility to determine time limits, including the option of unlimited validity the Commission Proposal would not have allowed for.295 The Commission reports that most Member States opted for the five-year rule.296 Article 8(2) maintains that renewal shall be automatic, although Member States may require an application contrary to the Commission Proposal.297 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 States can draw consequences from non-compliance with the renewal requirement, although it seems that general principles of Union law authorise sanctions.298 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.299 In the absence of any indication to the contrary, Member States can charge fees for renewal, although general principles 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).300 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 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 be entered the remark ‘former EU Blue Card holder’ in the relevant section of the residence permit.301 The entry guarantees 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)) 8

Article 8(4)-(6) were introduced by Directive 2011/51/EU (see above Article 1 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.302 It should be noted that the remark concerns protection by a specific 295 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. 296 See Commission Implementation Report, COM(2019) 161, p. 8. 297 Contrast the final wording of Article 8(2) to the second sentence of Article 9(1) Commission Proposal, COM(2001) 127. 298 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. 299 See the Commission statement according to Council doc. 10698/01 of 2 August 2001, p. 9. 300 Commission, COM(2011) 585, p. 5 reported some practical problems in this respect. 301 See Article 17(2) Blue Card Directive 2009/50/EC 302 See Recital 5 Directive 2011/51/EU (OJ 2011 L 32/1).

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Member States which 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.303 Article 8(4) obliges Member States to enter the remark on international protec- 9 tion 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.304 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). Article 8(5) concerns the rather specific situation when a long-term resident from a 10 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 may become relevant in situations of expulsion. Directive 2011/51/EU extending the scope of the Long-Term Residents Directive to 11 beneficiaries of international protection stated explicitly: ‘Transfer of responsibility for protection of beneficiaries of international protection is outside the scope of this Directive.’305 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 1980.306 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.

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. 303

See Thym, Legal Framework for EU Asylum Policy, MN 17. 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. 305 Recital 9 Directive 2011/51/EU (OJ 2011 L 32/1). 306 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. 304

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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. 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)) ..............................................

mn. 1 4 10 12 13 15 16 17

I. General Remarks 1

Article 9 defines the reasons for withdrawal or loss of long-term resident status through a collection of requirements complementing, as a negative counterpart, the

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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,307 at least as a matter of principle (see below MN 4a). This entails that long-term resident status is retained if the conditions for initial acquisition are not fulfilled anymore unless the hurdles for status withdrawal under Article 9 are passed (see above Article 8 MN 2). The catalogue was extended during the legislative procedure and covers a range of 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).308 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 be entitled’ in Article 9(1) does not support a different reading, since it was introduced by the Council to avoid the term withdrawal and, therefore, covers both withdrawal and loss.309 In practice, automatic loss will primarily concern periods of absence under Article 9(1)(c), since most other scenarios require a positive decision on withdrawal or expulsion (see below MN 5–6, 12–13), while the legal effects of Article 9(4)(1), (2) are not evident (see below MN 13–14). In the absence of indications to the contrary, Member States have to lay down rules 3 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 4 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.310 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. The ECJ found in the Y.Z. and others case that Article 9(1)(a) does not require the applicant to have positive knowledge of the fraud in case the latter was committed by someone else, for instance a family member who had submitted forged or otherwise misleading documents.311 Note that judges did not require an individualised proportionality assess307 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 312; and Boelaert-Suominen, Directive 2003/109/EC, p. 1025. 308 See Council doc. 10698/01 of 2 August 2001, p. 11; similarly, Eichenhofer, Recht auf Daueraufenthalt, para 49. 309 Contrast the wording of Article 9(1) to Article 10(1) Commission Proposal, COM(2001) 127; Peers/ Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 312 assert a different reading without giving arguments. 310 See, for Article 35 Citizenship Directive 2004/38/EC, ECJ, McCarthy et al., C-202/13, EU: C:2014:2450; and Thym, Legal Framework for EU Immigration Policy, MN 48–49. 311 See ECJ, Y.Z. et al., C-557/17, EU:C:2019:203, paras 61–67.

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ment in cases of loss, since loss of long-term resident status will not usually entail an obligation to leave the country, if the original residence permit referred to in Article 4(1) persists,312 thereby reaffirming, indirectly at least, that long-term resident status is – unlike Family Reunification – not a sensitive human rights matter concerning residence as such (see above Article 6 MN 6). Judges highlighted that ‘[h]aving regard to the extensive rights attached to long-term resident status, it is important that Member States are able to combat fraud effectively.’313 A similar argument was used by the ECJ in a judgment on the Asylum Qualification Directive 2011/95/EU to conclude that subsidiary protection status can be lost in a situation of error (not: fraud), even though the wording of Article 19(3) Directive 2011/95/EU related to fraud and similar situations only.314 It is not immediately clear whether that conclusion about loss in situation of error not involving fraud can be extended to Article 9(1) Long-Term Residents Directive, also considering that Article 16(1) Directive 2011/95/EU contains general language about changing circumstances and the later withdrawal if the original conditions are no longer fulfilled, while long-term resident status under Directive 2003/109/EC is supposed to be permanent after the initial decision (see above Article 8 MN 2) The conditions for adopting expulsion measures are discussed below, including the need for an individualised assessment (see Article 12 MN 2–10). It seems that the subsequent loss of the residence permit is automatic (see above MN 2), although this effect will only occur after the prior adoption of an expulsion decision. Note that automatic loss is, according to Article 9(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). Article 9(1)(c) stipulates that periods of absence of at least 12 consecutive months entail automatic loss (see above MN 2). Similar rules can be found in many other immigration instruments, although the Long-Term Residents Directive introduces two important innovations. Firstly, the 12-month period is relatively long compared, for instance, with Turkish nationals,315 although it is shorter than the two-year period proposed by the Commission in line with corresponding rules for Union citizens in the Citizenship Directive.316 Secondly, it relates to any absence from the ‘territory of the Community’ and does not apply, therefore, when a long-term resident relocates to another Member State.317 This puts long-term residents in a privileged position supporting intra-European movements for periods of less than six years (see below MN 14), while absence from the Member State before the acquisition of long-term resident status interrupts the qualification period (see above Article 4 MN 5). It is not clear whether short return visits will result in the 12-month period starting 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 312 See ECJ, Y.Z. et al., C-557/17, EU:C:2019:203, para 73 in contrast to paras 51–56 on family reunification. 313 ECJ, Y.Z. et al., C-557/17, EU:C:2019:203, para 64. 314 See ECJ, Bilali, C-720/17, EU:C:2019:448, paras 44–52. 315 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. 316 See Article 10(1)(a), (3) Commission Proposal, COM(2001) 127 mirroring Article 16(4) Directive 2004/38/EC. 317 For the innovative character, see Farahat, ‘“We want you! But …” – Recruiting Migrants and Encouraging Transnational Circulation Through Progressive Inclusion’, ELJ 15 (2009), p. 700, 712–724.

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residence test’ of the Social Security Coordination Regulation (EC) No 883/2004 as a point of reference.318 When habitual residence is not relocated to a third state, short visits abroad entail that the 12-month period commences anew, whenever the long-term resident returns to the European Union. The wording with its reference to Union territory suggests that relocation to Denmark or Ireland may not result in the loss of long-term resident status,319 although this conclusion can be disputed in light of the general scheme of the Directive given that both Member States decided voluntarily not to participate in its adoption (see above Article 1 MN 3). By contrast, the United Kingdom undoubtedly counts as a third state after Brexit. Member States may derogate from the two-year rule in accordance with Article 9(2) 8 and shall provide for a re-acquisition procedure, in accordance with Article 9(5), under conditions set out in national law (see below MN 15). Regarding Article 9(2), the meaning of the first ‘or’ before the term specific, which also features in other language versions, appears superfluous, since it suggests that the provision contains two alternative derogations: one for periods of absence exceeding 12 months, another for ‘specific or exceptional reasons.’ Given that this interpretation would not attach any condition to the first alternative, the second option would be superfluous. In light of the general scheme of the Directive, it seems, therefore, that Article 9(2) contains one exception for periods exceeding 12 months in relation to which the formulation ‘specific or exceptional reasons’ is meant to limit state discretion in line with a similar formulation in Article 4(3)(2).320 In practice, Member States have wide discretion to define when periods of absence exceeding 12 months may constitute ‘specific or exceptional reasons’ (see above Article 4 MN 17). Periods of work in developing countries can be a legitimate consideration in this context.321 An exception from Article 9(1)(c) exists for long-term residents being former EU 9 Blue Card holder (see above Article 8 MN 7) who may be absent for up to 24 consecutive months, although Member States may restrict this exception to economic activities, voluntary service or studies in countries of origin.322 This exception is meant to counter the negative effects of the so-called ‘brain drain’ phenomenon when talent from developing countries applies for work-related migration to Europe.

III. Threat to Public Policy (Article 9(3)) Article 9(3) is confusing at first reading, since it seems to suggest that long-term 10 resident status can be lost even if the conditions for expulsion under Article 12 are not met.323 On closer inspection, the discrepancy between Articles 9(3) and 12 is less acute, since the former similarly requires a ‘threat to public policy’, thereby employing a criterion used by the latter. Article 9(3) is even stricter than Article 12 by not covering threats to ‘public security.’ Against this background, an autonomous application of Article 9(3) requires the conclusion that a person constitutes a threat to public policy for the purposes of Article 9, although the same criterion is not met under 318

See Article 1(f) Regulation (EC) No 883/2004 and corresponding case law. See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 312. 320 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. 321 See the Explanatory Memorandum for Article 10(3) Commission Proposal, COM(2001) 127, p. 20; and Skordas, Immigration and the Market, p. 218. 322 See Article 16(4), (5) Blue Card Directive 2009/50/EC. 323 See Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 187–188. 319

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Article 12.324 If some Member State provide for withdrawal in circumstances which do not meet the public policy benchmark, such domestic rules are incompatible with Article 9(3),325 since the term ‘threat to public policy’ has the same meaning as in other provisions (see above Article 6 MN 2–13). 11 The existence of Article 9(3) seems to confirm that the requirement, in Article 12(1), that threats to public policy must be ‘actual’ erects an additional hurdle for expulsions exceeding ‘simple’ threats to public policy (see above Article 6 MN 4). In practice, this will often be connected with the assessment of criminal offences mentioned explicitly in the wording and whose relative weight in the balancing exercise depends on the circumstances of individual case (see above Article 6 MN 11–12 and below Article 12 MN 6). It is questionable, however, whether this potential room for application of Article 9(3) will ever gain much practical relevance given that the relative weight of private and public interests will often be the same under Articles 9(3) and 12. If that is the case, an expulsion is either possible or the public threat condition in Article 9(3) is not met, thereby rendering the latter provision practically irrelevant.

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

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

V. Relocation to other Member States (Article 9(4)) 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 Article 9(1)(c) that relocation within the EU does not usually entail the loss of status (see above MN 6). Like in the latter case, short return visits do not interrupt the six-year period in light of the integration objective (see above MN 7). Moreover, Member States may provide for a derogation for longer absences ‘for specific reasons’ under Article 9(4)(3) whose vague wording leaves Member States much leeway (see above MN 8). 13

324 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. 325 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.326 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.327 The Council did not follow this proposal and included instead a vaguely formulated obligation (‘shall authorise’) which evades the reference to a residence permit328 and states explicitly that the authorisation shall only be granted ‘if he/she fulfils the conditions provided for in its national legislation’ and/or does not constitute a ‘threat to public policy or public security.’ While public policy and public security are concepts of Union law (see above Article 6 MN 2–13), the reference to domestic law seems to have been chosen to prevent the ECJ from limiting state discretion. If the person concerned does not meet the conditions under domestic law or constitutes a threat, Article 9(7) does not require state action, although such scenarios may be covered by the Return Directive.329

Article 10 Procedural guarantees 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

326

See Council doc. 10698/01 of 2 August 2001, p. 13. See Article 10(5) Commission Proposal, COM(2001) 127. 328 An ‘authorisation’ need not be a formal residence permit and may cover, in particular, scenarios such as the German ‘Duldung’ in accordance with Section 60a Residence Act (Aufenthaltsgesetz). 329 For stay of removal, see Articles 9, 14 Directive 2008/115/EC. 327

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under the relevant national legislation. The notification shall specify the redress procedures available and the time within which he/she may act. 2. Where an application for long-term resident status is rejected or that status is withdrawn or lost or the residence permit is not renewed, the person concerned shall have the right to mount a legal challenge in the Member State concerned. Article 10 compliments Article 7 in laying down a number of procedural and judicial guarantees concerning the rejection of applications or withdrawal of status. It follows the general rule that procedural standards in EU legislation are usually limited to a minimum level to allow Member States to adapt European requirements to domestic administrative structures (see above Article 7 MN 2). General principles of Union law, including human rights, can constrain state discretion further and it seems that the guarantees contained in Article 10 are largely declaratory in light of general principles. Notwithstanding this caveat, Article 10 reaffirms that EU immigration law is firmly embedded into the rule of law.330 2 The obligation to give reasons in the first sentence of Article 10(1) reiterates Article 41(2)(c) EU Charter that can be applied to Member States via general principles of Union law.331 Notification in accordance with the second sentence does not explicitly require a written procedure, as the Commission had proposed,332 and explicitly accounts for differences between Member States (see above MN 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 administrative and judicial appeals through the open formulation ‘legal challenge.’333 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.334 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; 330 The situation has been different in some Member States until recently; see 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, 98–100. 331 See Thym, Constitutional Framework, MN 37 a. 332 See Article 11(1) Commission Proposal, COM(2001) 127. 333 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. 334 See Thym, Constitutional Framework, MN 37b-37 d.

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(c) recognition of professional diplomas, certificates and other qualifications, in accordance with the relevant national procedures; (d) social security, social assistance and social protection as defined by national law; (e) tax benefits; (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))............................

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I. General Remarks Article 11 is a central provision of great practical and conceptual importance. Equal 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 today’s Article 11(2)-(4).335 Recital 12 reflects this cautious approach, since it promises – unlike the conclusions of the Tampere European Council – equality of treatment with citizens of the Member State not generically, but ‘in a wide range of economic and social matters, under the relevant conditions defined by this Directive.’336 On the whole, one may conclude that the degree of convergence achieved by the Directive amounts to a ‘comparable treatment’ in the fields covered by Article 11, since the term ‘comparable’ indicates a lesser degree of parallelism.337 1a More recently, a number of ECJ judgments concerned the provision. The Commission had long reported that it received many complaints by individuals about difficulties they are facing at domestic level.338 One reason for the protracted difficulties is the reluctance of Member States to adopt implementing legislation; they apply the general legal framework instead, which can result in practical difficulties.339 2 It should be noted that Article 11 concerns equal treatment with nationals of the host state, not Union citizens residing in a Member State other than that of their nationality.340 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.341 Article 11 refrains from promoting a specific cultural vision of good society to which long-term residents are expected to assimilate. 3 Among the exceptions introduced during the legislative procedure, only today’s Article 11(2) applies horizontally and allows the restriction of equal treatment to cases where the ‘registered or usual place of residence’ of either the long-term resident or of the family members lies in the territory of the state concerned. This provision, sponsored by Greece,342 has the purpose of blocking an export of social benefits in areas covered by Article 11, including family benefits or study grants for children living abroad.343 The ECJ found the existence of the derogation confirms, argumentum e contrario, that equal treatment under Article 11(1) covers family members residing abroad as a matter of principle, even though the definition of ‘family member’ in Article 2(e) requires residence in the Member States; to hold otherwise would mean that 1

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See Council doc. 10698/01 of 2 August 2001, p. 15–18. The discrepancy was highlighted by Jesse, Civic Citizens, p. 293. 337 See Handoll, Directive 2003/109/EC, Article 1, MN 1. 338 See the Commission’s report on application, COM(2011) 585, p. 6 339 See Commission Implementation Report, COM(2019) 161, p. 6. 340 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 309. 341 Contra Bell, ‘Civic Citizenship and Migrant Integration’, European Public Law 13 (2007), p. 311, 323–324. 342 See Halleskov, The Long-Term Residents Directive, p. 193. 343 See Hailbronner, Drittstaatsangehörige, p. 165; and ter Steeg, Einwanderungskonzept, p. 383. 336

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Article 11(2) would serve no purpose.344 Various Member States have activated the derogation.345 When doing so, they are free to choose among the two alternative criteria for the definition of place of residence mentioned in the Directive: either formal registration or the ‘usual place of residence’ (French: lieu de résidence … habituel) in line with the established terminology of the Social Security Coordination Regulation.346 Given that Article 11 does not prevent the application of more favourable rules (see below MN 10), said Regulation (EC) No 883/2004 may allow for the export of social security benefits under more generous conditions.347 It is established in the case law of the Court of Justice that ‘derogations can be relied 3a on only if the authorities in the Member State concerned responsible for the implementation of that directive have stated clearly that they intended to rely on them.’348 In practice, this seems to imply that the national law containing unequal treatment has to be adopted after the entry into force of the Long-Term Residents Directive, since domestic authorities cannot state their intention clearly otherwise. On two occasions, the ECJ found that this requirement was not met by the Italian practice; reliance on a pre-existing legal framework adopted before Directive 2003/109/EC was considered insufficient.349 This conclusion stands in contrast to the idea, confirmed by settled case law, that Member States need not necessarily adopt new legislation when transposing directives, since an existing legal framework may suffice.350 In order not to deprive Article 11(2) of its effet utile, it may be necessary, therefore, to allow national parliaments or governments to express their intention in the absence of legislative change. After all, it is not immediately clear what the ECJ expects national parliaments to do, since it would be somewhat superfluous to re-adopt an existing domestic law without changing its substance to comply with the requirement to state clearly that Article 11(2) is to be activated. As a matter of principle, the ECJ holds jurisdiction to test compatibility of excep- 4 tions enshrined in Article 11(2)-(4) with human rights,351 although an interpretation in light of human rights will take precedence over annulment whenever possible. Judges in Luxembourg confirmed in the Kamberaj judgment on Article 11(4) Directive 2003/ 109/EC that they stand ready to enforce human rights in cases of conflict even if it can be difficult to define the precise contours of social rights in the Charter (see below MN 28). Jurisdiction of the ECJ to rule on compliance of the Directive with human rights must be distinguished from the controversial question under which circumstances Member States are bound by the EU Charter in situation not explicitly covered by the provisions of the Long-Term Residents Directive (see below MN 10–11). It is unfortunate, from the perspective of those applying the law, that statutory 5 guarantees in different instruments of EU immigration law on equal treatment differ in substance, since Article 11 Long-Term Residents Directive does not coincide, for 344

See ECJ, Istituto Nazionale della Previdenza Sociale, C-303/19, EU:C:2020:958, paras 24–25. See the Commission’s report on application, COM(2011) 585, p. 6. 346 See Article 1(f) Regulation (EC) No 883/2004 and related case law. 347 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 or family benefits within the meaning of the Regulation. 348 ECJ, Istituto Nazionale della Previdenza Sociale, C-303/19, EU:C:2020:958, para 23; and ECJ, Kamberaj, C-571/10, EU:C:2012:233; para 87. 349 See ECJ, Istituto Nazionale della Previdenza Sociale, C-303/19, EU:C:2020:958, paras 37–38; and ECJ, Kamberaj, C-571/10, EU:C:2012:233; paras 87–88. 350 See Thym; Constitutional Framework, MN 34. 351 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’intégration, p. 69. 345

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instance, with Article 12 Single Permit Directive 2011/98/EU or Article 14 Blue Card Directive 2009/50/EC.352 This practical difficulty should not be confused, however, with a theoretical critique of widespread differentiation between status holders: it can be argued, from a theoretical standpoint, that solidarity and justice are always relational and that, therefore, generalised and uniform equal treatment follows an obsolete model of the closed nation state that is not suitable for past- and transnational constellations.353 6 It is understandable that the various exceptions enshrined in Article 11(2)-(4) were met with criticism in initial reactions of academic commentators, since they diverged from the political promise by the Tampere European Council.354 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.355 Member States are not obliged to use the optional exceptions.

II. Equal Treatment beyond the Directive Recital 12 confirms that the Directive does not establish a general obligation of equal treatment which is guaranteed, rather, ‘in a wide range of economic and social matters under the relevant conditions defined by this directive.’ Similarly, Member States relegated a general non-discrimination clause from the operative provisions of the Commission Proposal to non-binding Recital 5.356 8 Notwithstanding the absence of a general obligation to equal treatment, Article 11(5) (2) allows Member States to grant equal treatment ‘with regard to areas not covered [by Article 11(1)]’ (see below MN 36). This limited scope of statutory guarantees is an important indicator that areas not covered by Article 11 fall outside the scope of the Directive and cannot be assessed, therefore, in light of general principles of Union law, including human rights.357 Indeed, it is often stipulated that the limits of Article 11 may be overcome under recourse to general principles,358 although this conclusion requires 7

352 See Verschueren, ‘Employment and Social Security Rights of Third country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection’, EJML 18 (2016), p. 373–408; Brinkmann, ‘Gleichbehandlung von Drittstaatsangehörigen nach den EU-Migrationsrichtlinien’, in: Beichel-Benedetti/Janda (eds), Hohenheimer Horizonte. Festschrift für Klaus Barwig (Nomos, 2018), p. 101, 114; and Bell, ‘Civic Citizenship and Migrant Integration’, European Public Law 13 (2007), p. 311, 324–326. 353 See de Witte, Justice in the EU. The Emergence of Transnational Solidarity (OUP, 2015). 354 See Halleskov, The Long-Term Residents Directive, p. 9–10; Boelaert-Suominen, Directive 2003/ 109/EC, p. 1050; and Groenendijk, Denizenship and Integration, p. 437. 355 See, in the context of Union citizenship, Thym, ‘Frontiers of EU Citizenship’, in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2017), p. 705, 719–722. 356 In contrast to Article 11, Recital 5 does not concern, in line with Article 4 Commission Proposal, COM(2001) 127, equal treatment with nationals by means of less general rules for third-country nationals but discrimination on other grounds such as gender, race or sexual orientation. 357 See Halleskov, The Long-Term Residents Directive, p. 189; Handoll, Directive 2003/109/EC, Article 11, MN 10; and Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 184. 358 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 311.

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careful analysis in light of ECJ case law on the scope of the EU Charter .359 While the scope of the exceptions in Article 11(2)-(5) can be challenged under recourse to the Charter in line with ECJ case law, benefits and subjects areas which Member State are not obliged to give to third country nationals on the basis of Article 11 are not usually subject to the Charter.360 One may activate national constitutions or the ECHR instead, but the ECJ does not hold jurisdiction.361 The judicial practice of the ECJ confirms that any evaluation of Article 11 in light of 9 the Charter requires an assessment of whether supranational human rights standards are applicable. In Kamberaj, judges showed carefully that an application of the Charter to Article 11(4) Directive 2003/109/EC and national implementing legislation was covered by Article 51(1) of the Charter.362 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,363 and emphasised that an Austrian housing benefit that does not qualify as a core benefit within the meaning of Article 11(4) Directive 2003/109/EC cannot be assess in light of the Charter.364 Note that the exclusion of ECJ jurisdiction extends to parallel national permanent residence schemes when third country nationals complain against unequal treatment that could possibly be covered by Article 11 Directive 2003/109/EC for those with long-term resident status under the Directive (see below Article 13 MN 2a).365 By contrast, the P & S judgment did not explain well why a Dutch integration 9a measure not affecting the acquisition or loss of long-term resident status was subject to the ECJ’s jurisdiction; the opinion of AG Szpunar was more illuminating (see above Article 5 MN 17–18). In particular, the ECJ’s conclusion about the Dutch measure being ‘in accordance with Article 11(1) of Directive 2003/109/EC’366 does not imply that measures not covered by Article 11 should be assessed in light of Article 21 CFR. The ECJ seems to have evaded such differentiation by stating categorically that long-term residents cannot be compared to nationals as far as integration measures are concerned.367 As a result, the judgment cannot be considered a model for the delineation of jurisdiction. In the Tümer judgment, the ECJ concluded that the limited scope of Article 11 10 does not preclude other EU instruments ‘from conferring … rights on third country nationals with a view to achieving the individual objectives of those acts.’368 This is confirmed by Article 11(4a) on more generous rights for beneficiaries of international protection under the Asylum Qualification Directive (see below MN 35) and by the extension of Article 11 Directive 2003/109/EC for former EU Blue Card holders in the Blue Card Directive 2009/50/EC (see below MN 23). The 359

See Thym, Constitutional Framework, MN 47–48. See and ECJ, Land Oberösterreich, C-94/20, EU:C:2021:477, paras 45–48, 59–62. 361 See ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 44. 362 See ECJ, Kamberaj, C-571/10, EU:C:2012:233, paras 79–80. 363 See ECJ, Mlamali, C-257/13, EU:C:2013:763 (only available in French). 364 and ECJ, Land Oberösterreich, C-94/20, EU:C:2021:477, paras 45–58, 59–62. 365 See ECJ, Ajdini, C-312/12, EU:C:2013:103, para 25. 366 ECJ, P & S, C-579/13, EU:C:2015:369, para 43. 367 See ECJ, P & S, C-579/13, EU:C:2015:369, paras 39–43 stating explicitly, in para 40, that ‘it must be examined whether such an obligation could be contrary to the principle of equal treatment laid down in Article 11(1) of Directive 2003/109, in the 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 a limine before the substantive analysis of the scope of Union law for purpose of applying other general principles than equal treatment, in particular proportionality. 368 ECJ, Tümer, C-311/13, EU:C:2014:2337, para 33 concerning Directive 80/987/EEC relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283/23). 360

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same applies to international agreements concluded by the EU or its Member States (see above Article 3 MN 22–25), including equal treatment guarantees in the Association Agreement with Turkey.369 Article 11 establishes a minimum level of protection generally allowing for more favourable provisions, either in national laws, supranational legislation or international agreements. It should be noted, however, that Article 13 Single Permit Directive 2011/98/EU does not cover those holding longterm resident status, since they are generally excluded from the scope under Article 3 (2)(i) Single Permit Directive.370 11 Whenever careful analysis leads to the conclusion that the principle of equal treatment in Article 21 of the Charter can be applied to measures covered by the scope of Directive 2003/109/EC, it has to be evaluated in a second step whether we are confronted a violation of equal treatment guarantees. It is described in the introduction that, in line with settled ECJ case law, Article 18 TFEU cannot be relied upon by third country nationals and that the general human right to equality before the law requires a double assessment of whether two situations are comparable in the first place and whether a distinction can be justified in a proportionate manner. Notwithstanding the Kamberaj judgment, it should be noted that both the ECJ and the ECtHR tread carefully when assessing unequal treatment of migrants and nationals or between different migration statuses.371 In cases of doubt, domestic courts should make a reference to the ECJ to determine whether the EU is applicable and whether the treatment at issue complies with human rights.

III. Specific Guarantees 1. Employment (Article 11(1)(a), (3)(a)) 12

Article 11(1)(a) gives long-term residents free access to employment and selfemployed activities, thereby supporting labour market integration which most status holders will have achieved already given that status acquisition requires compliance with the stable and regular resources requirement in Article 5(1)(a). Free access includes the right to switch employers and pursue their fortune in all areas of economic activity under the same conditions applicable to nationals of the host state. Third country nationals cannot be required to be in possession of a work permit.372 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). A reference by a Hungarian court on the interpretation of the provision was withdrawn and did not result in a judgment.373 369 See Thym, Legal Framework for EU Immigration Policy, MN 58–60; and Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 311. 370 Verschueren, ‘Employment and Social Security Rights of Third country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection’, EJML 18 (2016), p. 373, 387–388 notes that this can result in a lesser degree of protection, at least in selected areas such as advice services afforded by employment offices in line with Article 13(1)(h) Directive 2011/98/EU and with regard to divergent options for national deviations under Article 13(2) Single Permit Directive. 371 See Thym, Legal Framework for EU Immigration Policy, MN 37–42. 372 See the Explanatory Memorandum to Article 12(1)(a) Commission Proposal, COM(2001) 127, p. 21. 373 See ECJ, Commission v. Hungary, C-761/19, EU:C:2021:74.

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Article 11(3)(a) allows Member States to ‘retain restrictions’ for activities reserved 13 to nationals, EU or EEA citizens in accordance with ‘existing’ national or EU legislation. The use of the expressions ‘retain’ and ‘existing’ signals that the provision establishes a standstill clause allowing for the maintenance of existing rules, while new restrictions cannot be introduced.374 It seems that ECJ case law on the dynamic character of standstill provisions under the Association Agreement with Turkey can be applied to Article 11(3)(a) Directive 2003/109/EC.375 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.376 The provision applies to new Member States as of the day of accession. In line with the Commission Proposal, Article 11(1)(a) exempts from equal 14 treatment activities that ‘entail even occasional involvement in the exercise of public authority.’ This broad formulation presents an apparent deviation from Article 45(4) TFEU for Union citizens and is meant to prevent the ECJ from applying its restrictive case law on the interpretation of the said provision to Directive 2003/109/EC.377 It is settled ECJ case law, that ‘professional activities involving contacts, even regular and organic, with the [exercise of public authority], including even compulsory cooperation in their functioning, do not constitute, as such, connexion with the exercise of official authority’378 and that, therefore, besides teachers and lawyers even private security personnel or notaries are not exempted from the free movement of workers under Article 45(4) TFEU.379 This case law cannot be extended to Directive 2003/109/EU. Notwithstanding careful drafting, Article 11(1)(a) does not provide for a carte 15 blanche, since it takes up the ECJ’s formulation of ‘exercise of public authority’ (French: exercice de l’autorité publique; German: Ausübung öffentlicher Gewalt) instead of the broader ‘public service’ (French: administration publique; German: öffentliche 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 embraces a substantive concept of public authority mirroring case law on Union citizens (see above MN 14), but ensures through the formulation ‘even occasional involvement’ that stricter standards should be applied to long-term residents than to Union citizens. The precise demarcation line remains difficult to define, but one could argue, for instance, that teachers and lawyers are not excluded from Article 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 374 See Handoll, Directive 2003/109/EC, Article 11, MN 12; and Boelaert-Suominen, Directive 2003/ 109/EC, p. 1026. 375 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 310. 376 Cf. for Turkish nationals ECJ, Demir, C-225/12, EU:C:2013:725. 377 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 310; Bribosia, Politiques d’intégration, 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, Denizenship and Integration, p. 438, does, since that judgment was delivered after the Commission Proposal and reflects settled case law. 378 ECJ, Reyners, 2/74, EU:C:1974:68, para 51. 379 See ECJ, Lawrie-Blum, 66/85, EU:C:1986:284 for teachers; ECJ, Reyners, 2/74, EU:C:1974:68 for lawyers; ECJ, Commission v. Spain, C-114/97, EU:C:1998:519 for private security personnel; and ECJ, Commission v. Germany, C-54/08, EU:C:2011:339 for notaries with certain public functions.

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in the public service, since participation of migrants in the civil service may promote integration and social cohesion.380 16 In addition to free labour market access, Article 11(1)(a) guarantees equal working conditions in line with Article 15(2) EU Charter that may be used as a point of reference for interpretation.381 This guarantee should be construed generously in light of human rights and the Directive’s objective and may include diverse matters such as working hours, safety, health standards or holiday entitlements.382 Conditions regarding dismissal and remuneration are mentioned by way of example.

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

380 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’intégration, p. 67; and Bell, ‘Civic Citizenship and Migrant Integration’, European Public Law 13 (2007), p. 311, 322–323. 381 See Thym, Legal Framework for EU Immigration Policy, MN 34. 382 See the Explanatory Memorandum to Article 12(1)(a) Commission Proposal, COM(2001) 127, p. 21. 383 See the Explanatory Memorandum to Article 12(1)(a) Commission Proposal, COM(2001) 127, p. 21. 384 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 extensive case law exists. 385 See Halleskov, The Long-Term Residents Directive, p. 194. 386 See Handoll, Directive 2003/109/EC, Article 11, MN 18.

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general budget from the notion of study grants through the definition in the first sentence of Recital 15, cannot alter the scope of Article 11(1)(b).387 It is the responsibility of the ECJ to define when a measure constitutes a study grant, whereas Member States remain responsible for defining the conditions under which study grant shall generally be made available. If they do so, they have to treat long-term residence on an equal footing.388 The conditions laid down by the Member States can possibly fall foul of the effet utile of the Long-Term Residents Directive when they render it practically impossible for long-term residents to obtain study grants, while nationals find it much easier to meet the requirements.389

3. Recognition of Diplomas (Article 11(1)(c)) Under Article 11(1)(c) long-term residents enjoy equal treatment with nationals as 21 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 market into the Long-Term Residents Directive, since this case law emanates from the concept of restrictions to transnational economic activities (see above MN 12).390 In contrast to rules for Union citizens, Article 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. Since Article 11(1)(c) does not distinguish between qualification obtained inside 22 and outside the EU, both are covered by the provision. It should be noted that EU legislation on the recognition of professional qualification does not cover third -country nationals, since the general framework of Directive 2005/36/EC and more specific guarantees on lawyers in Directive 98/5/EC are confined to Union citizens.391 It is discussed elsewhere on which legal basis the EU legislature could extend these instruments to third country nationals.392

4. Social Security, Assistance and Protection (Article 11(1)(d), (4)) Article 11(1)(d) is a crucial provision of great political and practical importance, 23 since access to social benefits is a politically sensitive terrain which, moreover, is bound for intricate legal problems of interpretation and application due to the complexity of domestic rules. The terminology used in Article 11(1)(d) has to be construed autonomously, as confirmed by the ECJ. The Council introduced an exception in Article 11(2) to prevent exportation of benefits for long-term residents and family members living abroad under the conditions laid down in domestic law provided that supranational legal requirements for clear use of the derogation are met (see above MN 3–3a). This option of non-exportation does not apply to long-term residents holding an EU Blue 387

See Hailbronner, Drittstaatsangehörige, p. 165. See Halleskov, The Long-Term Residents Directive, p. 195. 389 Generally, see Thym, Constitutional Framework, MN 16. 390 Cf. ECJ, Vlassopoulou, C-340/89, EU:C:1991:193; and ECJ, Morgenbesser, C-313/01, EU:C:2003:612. 391 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). 392 See Thym, Legal Framework for EU Immigration Policy, MN 17 a. 388

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Card previously (see above Article 8 MN 7). They are subject to the provisions of Directive 2009/50/EC guaranteeing the payment of statutory pensions when former Blue Card holders move to a third state.393 24 The drafting history shows that the thematic range Article 11(1)(b) is limited and does not cover all 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 state budget and broader ‘social benefits.’394 The reference to ‘social benefits’ was deleted by the Council during the legislative procedure, thereby excluding a variety of benefits from the scope of the Directive, since the term ‘social benefit’ is generally understood to cover diverse categories of economic or cultural benefits irrespective of financial need (a criterion relevant for social assistance). Social benefits in this sense may include concessionary public transport fares, reduced admission charges for cultural and other events or subsidised meals for children in school.395 This exclusion of social benefits from the scope of equal treatment does not mean that Member States are obliged to discriminate against long-term residents in these domains (see above MN 6). All it means is that they are free to decide on their own and that the ECJ has no jurisdiction in this respect (see above MN 7–9). 25 Besides the deletion of the term ‘social benefits’, the Council added that Member States shall guarantee equal treatment in relation to social security, social assistance and social protection ‘as defined by national law.’ This explicit deference to domestic legal systems precludes – unlike in the case of Article 12(1)(e) Single Permit Directive 2011/98/EC – an interpretation of the terminology used under reference to ECJ case law on similar terminology in the Social Security Coordination Regulation.396 This was confirmed by the ECJ in Kamberaj: when the legislature ‘has made an express reference to national law, as in Article 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.’397 It also made clear that deference to domestic law does not give Member States a carte blanche, since they have to respect general principles of Union law, including human rights and the effet utile of the Directive’s objective (see below MN 28). 26 Member States enjoy discretion, therefore, when deciding which benefits qualify as ‘social security’ and ‘social assistance’, while the term ‘social protection’ seems to be largely identical with social assistance.398 Nevertheless, the discretion has legal limits, in extreme cases at least, for instance when a Member State tries to exclude general financial income support for poor people as not relating to social assistance, although the concept of social assistance is generally understood to cover support granted by the 393

See Articles 16(6) and 14(1)(f) Blue Card Directive 2009/50/EC. See Article 12(1)(d)-(f) Commission Proposal, COM(2001) 127. 395 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. 396 See Halleskov, ibid., p. 198–199. 397 ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 77; see generally Thym, Constitutional Framework, MN 12a; and also Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 184–185; and De Vries, ‘Towards Integration and Equality for Third-Country Nationals?’, E.L. Rev. 38 (2013), p. 248, 251; and the reference to case law on Union citizenship above Article 5 MN 8. 398 Cf. Article 12(1)(d) Commission Proposal, COM(2001) 127 listing ‘social assistance’ as a subcategory of ‘social protection’ together with ‘health-care.’ 394

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

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

5. Tax Benefits (Article 11(1)(e)) Article 11(1)(e) extends equal treatment to tax benefits without referring to domestic law like in the case of social assistance (see above MN 25). This means that the ECJ may have recourse to its case law on today’s Article 7(2) Regulation (EU) No 492/2011 when determining the somatic scope of equal treatment under Article 11(1)(e).407 Again, Member States are not obliged to introduce or maintain specific tax benefits, but they have to treat long-term residents equally when they do so. 30 As mentioned before, the Council laid down an exception in Article 11(2) to prevent exportation of benefits for long-term residents and family members living abroad (see above MN 3–3a), although it is not immediately clear in how far the provision may be relevant for tax benefits. Still, Member States have the freedom to activate the exception when the question comes up in the complex domain of tax law. 29

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 goods and services made available to the public, including procedures for obtaining housing. Equal access in this domain is crucial for successful integration policies towards migrants and to support social cohesion.408 As mentioned before, the Council introduced an exception in Article 11(2) to prevent exportation of benefits for longterm residents and family members living abroad (see above MN 3–3a), although this exception may not have much practical impact for public goods and services that will usually concern only people living in a country. 32 The equal treatment guarantee enshrined in Article 11(1)(f) does not require Member States to make certain goods or services available to the public. However, they are obliged to treat long-term residents equally when they do so. The provision covers goods and services provided by both public authorities and private actors under the conditions that they are ‘made available to the public’, something which will usually require statutory obligations in case of private actors.409 The Council limited equal treatment to ‘procedures for obtaining housing’ instead of simply referring to ‘housing.’410 This change seems to emphasise that the provision contains no individual right that housing shall be made available to individuals who, rather, may request equal treatment with nationals in allocation procedures.411 In contrast to rules on Union 31

405

See ECJ, Land Oberösterreich, C-94/20, EU:C:2021:477, paras 41–44. See ECJ, Land Oberösterreich, C-94/20, EU:C:2021:477, para 43; and ECJ, Kamberaj, C-571/10, EU: C:2012:233, para 92. 407 Cf. Article 7(2) Regulation (EEC) No 1408/71 (OJ 1971 L 149/2) which replaced Regulation (EEC) No 1612/68 (OJ English Special Edition Ser. I Ch. 1968(II), p. 475) on freedom of movement for workers. 408 See Common Basic Principles (CBP) No 6 for immigrant integration, Council doc. 14615/04 of 19 November 2004, p. 21. 409 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. 410 Cf. Article 12(1)(g) Commission Proposal, COM(2001) 127. 411 Not all applications will have to be approved if housing is scarce. 406

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

7. Freedom of Association and Affiliation (Article 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 8). As mentioned before, the Council introduced an exception in Article 11(2) to prevent an application of these guarantees to long-term residents or family members living abroad (see above MN 3–3a). Article 11(1)(g) covers trade unions and chambers of commerce or any other 34 organisation related to work. The broad wording covers both voluntary and compulsory membership foreseen in some Member States for regulated professions such as lawyers on the basis that no distinction is made with nationals.413 The exception for public policy or public security was introduced by the Council and may cover extreme scenarios of political agitation for which Article 16 ECHR establishes a similar exception for foreigners. As a concept under Union law, ‘public policy’ and ‘public security’ may establish stricter standards than the ECHR (see above Article 6 MN 9–10).

8. Access to Entire Territory (Article 11(1)(h)) Article 11(1)(h) guarantees equal treatment as regards free access to the entire 35 Member State (not: Union) territory, thereby replicating a human rights guarantee under Article 2(1) Additional Protocol No 4 to the ECHR that has not been ratified by all Member States.414 Article 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 3–3a). The exception that equal treatment shall be guaranteed ‘within the limits provided for 36 by the national legislation for reasons of security’ appears largely declaratory given that equal treatment does not establish rights which are not available to nationals (see above MN 12). It will be relevant only when certain Member States establish restrictions specifically for foreigners, for instance in relation to military zones.415

IV. Beneficiaries of International Protection (Article 11(4a)) Article 11(4a) exempts beneficiaries of international protection from the exceptions laid 37 down in Article 11(3), (4) in so far as there are more generous guarantees in the Asylum Qualification Directive.416 This provision appears declaratory in nature in light of ECJ case 412 Cf. the broader scope of Article 9 Regulation (EU) No 492/2011 (OJ 2011 L 141/1); and Halleskov, The Long-Term Residents Directive, p. 200. 413 See the Commission in Council doc. 10698/01 of 2 August 2001, p. 18. 414 The Charter of Fundamental Rights does not contain a similar guarantee, since Article 45(1) is limited to Union citizens and is usually understood, moreover, to apply to transnational free movement in other Member States only in light of Article 52(2) of the Charter. 415 The restriction seems to go back to concerns voiced by Spain and Sweden; see Council doc. 10698/01 of 2 August 2001, p. 18. 416 See Peers, Transfer of International Protection, p. 549.

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

V. More Favourable National Provisions (Article 11(5)) Article 11(5) explicitly allows Member States to grant equal treatment under more generous conditions than those described in Article 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 10). Article 11(5) does not change the scope of the Directive and does not render more generous domestic rules subject to general principles of Union law, including human rights (see above MN 7–9). 39 One additional area outside the scope of the Directive where Member States may want to grant equal treatment in voting rights, at least at municipal level. The Council had rejected an amendment proposed by the European Parliament in this respect,418 but some Member States allow for varied degrees of political participation.419 Others may reserve political participation to nationals, while at the same time allowing long-term residents to acquire nationality, thereby rejecting the initial idea that long-term resident status should be developed into self-sufficient ‘civic citizenship’ instead of promoting integration by means of naturalisation (see above Article 1 MN 18–20). 38

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. 417 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. 418 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). 419 See Slama, ‘Ressortissants des pays tiers légalement installés: possibles mais improbables citoyens’, in: Gauthier/Gautier (eds), L’immigration légale: aspects de droits européens (Bruylant, 2011), p. 153–174; and Groenendijk/Guild, Converging Criteria, p. 44–45.

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3a. Where a Member State decides to expel a long-term resident whose long-term resident’s EU residence permit contains the remark referred to in Article 8(4), it shall request the Member State mentioned in that remark to confirm whether the person concerned is still a beneficiary of international protection in that Member State. The Member State mentioned in the remark shall reply no later than 1 month after receiving the request for information. 3b. If the long-term resident is still a beneficiary of international protection in the Member State mentioned in the remark, that person shall be expelled to that Member State, which shall, without prejudice to the applicable Union or national law and to the principle of family unity, immediately readmit, without formalities, that beneficiary and his/her family 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.

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

I. General Remarks While the public policy and security exception in Article 6 concerns the refusal of 1 applications for long-term residence permits, Article 12 is about later expulsion of those holding long-term residence status. Expulsion results in the loss of the status as a result of which third country nationals will usually be obliged to leave the Member State concerned in full compliance with the Return Directive 2008/115/EC. The provision was discussed controversially in the legislative procedure and its interpretation raises a number of delicate problems relating primarily, like in the case of Article 6, to the interaction with rules on the expulsion of Union citizens, which the ECJ clarified in recent case law emphasising the need for differentiated outcomes.

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

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

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

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policy,428 thus emphasising the room for differentiated solutions in line with the distinct legislative and constitutional framework for long-term resident third country nationals in contrast to Union citizens (see above MN 1a). It is sometimes said that the ‘disappointing’429 outcome of the legislative process may 5 be rectified under recourse to general principles of Union law.430 We should be careful, however, not to overstate the potential of general principles in ‘correcting’ legislative choices given that the general principles mentioned in this context, such as case law on Union citizens, the status of Turkish nationals or human rights,431 do not mandate full synchronisation of the public policy and security exception in Article 6, 12 Directive 2003/109/EC with rules on Union citizens due to the specificities of the rules applicable to long-term resident third country nationals (see above Article 6 MN 3–8). Instead, we have to strive for an intermediate solution in line with ECJ case law by distinguishing between long-term residents and Union citizenship in the application of the abstract definition to specific scenarios.432 Like in the case of Article 6, the question arises whether criminal convictions of a 6 sufficiently serious nature can be covered by the public policy or security exception (see above Article 6 MN 11). To do so is explicitly excluded for Union citizens by means of an express prohibition in the Citizenship Directive, which the Commission had proposed to integrate into today’s Article 12 Directive 2003/109/EC.433 This was rejected by the Council together with an amendment to Article 12(1) replacing the proposed reference that ‘solely personal conduct’ can constitute a threat to public policy or security with the more generic formulation ‘he/she.’ This subtle change of terminology is relevant, since it indicates that the wording of Article 12 differs markedly from the rules applicable to Union citizens – a change of wording that was highlighted by the ECJ in judgments emphasising a lesser degree of protection for third country nationals under sectoral public policy clauses.434 More specifically, the requirement of the threat being ‘actual’ does not necessarily entail that the personal conduct after conviction needs to constitute a threat to public policy, as long as there are reasonable arguments to be put forward that a sufficiently serious criminal conviction in the past amounts to an actual threat in terms of generally influencing the behaviour of migrants.435 We have to conclude, therefore, in line with ECJ case law that the wording, the drafting history (see above MN 2) and Recital 8 (see above Article 6 MN 11) support past criminal convictions being covered by the public policy exception. 428 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. 429 Acosta, The Long-Term Residence Status, p. 137. 430 Generally, see Thym, Constitutional Framework, MN 21–27. 431 See Acosta Arcarazo, Civic Citizenship Reintroduced?, p. 214–216; Peers/Guild/Acosta Arcarazo/ Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 313–314; and Peers, Implementing Equality?, p. 452–453. 432 See also Hailbronner, Drittstaatsangehörige, p. 166. 433 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). 434 See ECJ, E.P., C-380/18, EU:C:2019:1071, para 36–37; and ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 58. 435 This concept is discussed controversially in German immigration law under the heading of ‘Generalprävention’, which the German Bundesverwaltungsgericht (Federal Administrative Court), judgment of 12 July 2017, 1 C 16.17 upheld despite pronounced criticism by academia; cf. Marx, ‘Die Verdeutschung der EU-Richtlinien zum Aufenthalts- und Asylrecht’, Informationsbrief Ausländerrecht (2007), p. 413, 417–418; and Discher, ‘Vor §§ 53 et seqq. AufenthG’, in: Gemeinschaftskommentar AufenthG, looseleaf, 16th edn (Luchterhand, 2007), paras 637–638.

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Our conclusion that past criminal convictions can be covered by the public policy or security exception does not imply that expulsion will automatically be permitted. Rather, it is implicit in Article 12(3) that expulsion requires a balancing exercise taking into account the factors listed in Article 12(3) (see below MN 9–10). In the words of the ECJ: ‘the adoption of such a measure may not be ordered automatically following a criminal conviction, but rather requires a case-by-case assessment which must, in particular, have regard to the elements mentioned in Article 12(3) of Directive 2003/109.’436 The ECJ confirmed explicitly that the individual assessment is mandatory: states cannot prescribe an automatic rejection after criminal convictions – a requirement that Directive 2001/44/EC does not change.437 The balancing exercise will have to take account that the loss of long-term resident status as a result of expulsion weighs more heavily than the initial rejection (see above Article 6 MN 12). It will usually require criminal convictions of a serious nature , not just short sentences in response to comparably minor offences.438 7 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,439 since Member States are under an obligation to assess the situation anew when deciding on whether to proceed with expulsion. This was explicitly confirmed by the ECJ in a judgment concerning the comparable prescription in Article 6 Family Reunification Directive.440 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). 8 The 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 (see above Article 6 MN 13). 9 Article 12(3) shows that an 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.441 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

6a

436 ECJ, López Pastuzano, C-636/16, EU:C:2017:949, para 26–27; similarly with regard to other immigration directives, see ECJ, E.P., C-380/18, EU:C:2019:1071, paras 44–50; and ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, paras 64–68. 437 See ECJ, Subdelegación del Gobierno en Guadalajara, C-448/19, EU:C:2020:467, paras 20–24 in response to a series of preliminary references by Spanish courts following a judgment of the Spanish Supreme Tribunal, which had interpreted the Long-Term Residents Directive differently in light of Directive 2001/44/EC despite previous ECJ case law and the different function of the two legislative instruments; several parallel references were repealed after the ECJ had rendered the first judgment; cf. cases C-549/19 (EU:C:2020:612); C-534/19 (EU:C:2020:615); C-531/19 (EU:C:2020:619); C-533/19 (EU: C:2020:614); and C-567/19 (EU:C:2020:613); on the background, see Acosta, ‘Court of Justice of the European Union (Ninth Chamber), WT v Subdelegación del Gobierno en Guadalajara’, EJML 22 (2020), p. 457–462. 438 Similarly with regard to Article 6 Family Reunification Directive, see ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 67. 439 See Peers, Implementing Equality?, p. 453. 440 See ECJ, E.P., C-380/18, EU:C:2019:1071, paras 40–42; similarly, in relation to third-country national family members of Union citizens ECJ, Commission v. Spain, C-503/03, EU:C:2006:74, paras 32–38. 441 See also Acosta, The Long-Term Residence Status, p. 123; and Marx, ‘Aktuelle Entwicklungen im gemeinschaftsrechtlichen Ausweisungsschutz’, Zeitschrift für Ausländerrecht (2007), p. 142, 149.

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European Court of Human Rights,442 which has established Article 8 as a safety net against the expulsion of long-term residents since the early 1990s.443 Against this background, the reference to ECtHR case law seems not to be exhaustive: additional criteria established by the Court in Strasbourg can be considered. More specifically, the ECtHR developed a set of criteria guiding the balancing of 10 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 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.444 The ECtHR has emphasised that there is no absolute protection against expulsion and that family members can be separated, especially after serious crimes.445 In recent years, it highlighted the significance of social and cultural ties to the host country, including language skills and labour market participation.446

III. Beneficiaries of International Protection (Article 12(3a)-(3c), (6)) Article 12(3a)-(3c) were introduced with the entry into force of Directive 2011/51/EU 11 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). 442 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. 443 See Thym, Legal Framework for EU Immigration Policy, MN 53–55. 444 Settled case law since ECtHR, judgment of 2 August 2001, No 54273/00, Boultif v. Switzerland, para 48 with ECtHR, judgment of 18 October 2006 [GC], No 46410/99, Üner v. the Netherlands, 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. 445 See Thym, Legal Framework for EU Immigration Policy, MN 54. 446 See Thym, Residence as de facto Citizenship?, p. 106, 123–126, 139–143.

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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). 13 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,447 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 Directive448 (see Battjes, Directive 2011/95/EU, Article 21 MN 8–11). 14 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 Directive449 covers various guarantees of non-refoulement, including Article 3 ECHR and other international documents,450 and is not limited to international protection in the meaning of the Asylum Qualification Directive. 12

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 of the Charter on effective judicial review (see above Article 10 MN 3). Article 47 CFR 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.451 16 Article 12(5) contains an equal treatment guarantee on access to legal aid in accordance with domestic rules. An amendment to provide long-term residents with a mandatory interpreter was rejected by the Council,452 which 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

447

See Thym, Legal Framework for EU Immigration Policy, 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. 449 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.’ 450 On the interaction with the Asylum Qualification Directive, see Thym, Legal Framework for EU Asylum Policy, MN 21, 55–61. 451 See Council doc. 10698/01 of 2 August 2001, p. 21 concerning Article 13(5), (7) Commission Proposal, COM(2001) 127. 452 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). 448

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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 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. It was highlighted earlier that the coexistence with ‘competing’ national schemes explains why Directive 2003/109/EC gained comparatively little relevance in many Member States, which hand out domestic permits unless third country nationals ask for an EU status (see above Article 1 MN 5). The Commission reported in 2019 that only four Member States did not have national schemes alongside the Long-Term Residents Directive.453 According to the Tahir judgment ‘it is clear from the unequivocal wording of the second sentence’454 that Article 13 does not contain, notwithstanding the misleading title, a general provision on more favourable national rules, but concerns the coexistence 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, which depends on the first Member States complying with the conditions set out in Directive 2003/109/EC.455 The immediate consequence of this distinction is that holders of domestic residence permits cannot rely on the Long-Term Residents Directive whose use of the term ‘long-term resident’ only concerns those holding a status under the Directive (see above Article 2 MN 3). Member States are free to regulate the domestic status, for instance the length of qualification periods. Directive 2003/109/EC does not limit their discretion. The ECJ confirmed in Ajdini that it does not have jurisdiction for national permanent residence schemes when a third country national complains against unequal treatment that could possibly be covered by Article 11 Directive 2003/109/EC for those with long-term resident status under the Directive 2003/109/EC (see above Article 11 MN 9).456 If Article 13 does not generally allow for more favourable national provisions 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.457 In relation to Directive 2003/109/EC, the ECJ found in the Tahir judgment that the five453

See Commission Implementation Report, COM(2019) 161, p. 1. 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. 455 ECJ, Tahir, C-469/13, EU:C:2014:2094, para 40. 456 See ECJ, Ajdini, C-312/12, EU:C:2013:103, para 25. 457 See Thym, Constitutional Framework, MN 28–33. 454

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year qualification period in Article 4 is mandatory and that Member States cannot provide for more generous domestic rules.458 Article 3(3) contains an opening clause for certain international agreements (see above Article 3 MN 22–25). 4 In practice, some Member States, such as Germany, often hand out a domestic permanent resident status unless third country nationals explicitly ask for the EU status (see above Article 1 MN 5). If it was ascertained that domestic immigration authorities actively promoted the domestic permit instead of the EU status,459 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.460 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.461

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. 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. 458

See ECJ, Tahir, C-469/13, EU:C:2014:2094, paras 26–37. 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 domestic title; since the latter might, moreover, be subject to more generous qualification conditions in accordance with Article 13, the practice might also be in the interest of third-country nationals if it is easier to obtain the domestic status. 460 Generally, see Thym, Constitutional Framework, MN 16; and Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 329–330. 461 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, Legal Framework for the EU Asylum Policy, MN 15. 459

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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)) .................................................

mn. 1 5 10 11 17 18 19

I. General remarks Chapter III of the Directive concerns the right of residence in other Member States 1 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 long-term 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). Mobility within the EU was considered a central novelty brought about by the 2 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,’462 while also constituting ‘a major factor of mobility, notably on the Union’s employment market.’463 Academic commentators voiced much criticism of amendments brought about during the legislative procedure rendering mobility within the EU subject to a number of farreaching caveats.464 The Council was criticised, in particular, for introducing restrictions for economic purposes in Article 14(3), (4) highlighting continued fractures in the construction of the internal market and the limited integration of national employment markets.465 Notwithstanding the limitations, transnational mobility for non-nationals

462

Recital 18 replicating Article 26(1) TFEU. Again, Recital 18. 464 See Acosta, The Long-Term Residence Status, p. 144–145. 465 See Iglesias Sánchez, Free Movement, p. 792–793, 798–799; Skordas, Immigration and the Market, p. 213–215; and Peers, Implementing Equality?, p. 459. 463

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constitutes a novelty value for European immigration law,466 which was taken up in many instruments on immigration adopted after Directive 2003/109/EC and discussed in this commentary. 2a The lack of ambition and the limited practical relevance of the statutory rules on intra-European mobility is problematic from a constitutional perspective, since the intervention of the Union legislature was motivated, in part at least, by the desire to connect domestic immigration systems transnationally in line with the overarching idea of an area of freedom, security and justice.467 This objective buttressed the political momentum to adopt Directive 2003/109/EC and justified the activation of the shared competence under Article 79(2)(a) TFEU in line with the principle of subsidiarity, which requires the EU institutions to demonstrate that supranational intervention can add value.468 We must conclude that the Long-Term Residents Directive failed this objective to a certain extent. 3 It is explained elsewhere that mobility within the EU 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 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) of the Charter.469 4 Statistical data show that few people use the free movement guarantees under Chapter III of the Long-Term Residents Directive.470 This limited practical relevance is attributed to the limits laid down in EU legislation by some,471 although it can be argued that the situation may 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.472 Moreover, workers with an attractive job offer may side-line the cumbersome relocation procedure under Articles 14–23 by 466 See Jesse, Civic Citizens, p. 304–305; Bast, ‘Transnationale Migrationsverwaltung des europäischen Migrationsraums’, Der Staat 46 (2007), p. 1, 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. 467 See Iglesias Sánchez, ‘Nationality: The Missing Link between Citizenship of the European Union and European Migration Policy’, in: Guild/Gortázar Rotaeche/Kostakopoulou (eds), The Reconceptualization of European Union Citizenship (Brill/Nijhoff, 2014), p. 68, 85. 468 See Thym, Legal Framework for EU Immigration Policy, MN 9. 469 See Thym, Legal Framework for EU Immigration Policy, MN 18, 35. 470 The Commission’s report on application, COM(2011) 585, p. 10 mentioned less than 50 persons per Member State and year; the second Commission Implementation Report, COM(2019) 161, p. 7 confirmed the lack of practical relevance without giving data. 471 See Wiesbrock, ‘Free Movement of Third-Country Nationals in the European Union: The Illusion of Inclusion’, EL Rev. 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. 472 Sociolegal research found a high demand for mobility among (former) asylum seekers in Italy after the 2008 financial crisis when the situation there deteriorated noticeably; see Della Torre/de Lange, ‘The “Importance of Staying Put”. Third Country Nationals’ Limited Intra-EU Mobility Rights’, Journal of Ethnic and Migration Studies 44 (2018), p. 1409, 1416–1418.

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applying directly for a domestic work permit for economic purposes in the second Member States, which can be easy to obtain, especially when the employer has a good knowledge of administrative practices.473 Occasionally, third country nationals may also be unaware of existing mobility options. A special situation are so-called ‘golden visa schemes’ when some Member States 4a hand out residence permits under generous conditions in order to allow third country nationals residing abroad to move to the European Union as a sort of safeheaven. They are politically controversial, if residence permits are handed out in return for considerable amounts of (‘golden’) money being paid either to the state directly or being invested in the country concerned. Unlike the purchase of nationality (‘golden passport’), it is difficult, from a legal perspective, to ‘offer’ third country nationals the option of immediate onward mobility to other Member States on the basis of golden visa schemes, since domestic permanent residence schemes do not bring about mobility under Article 14 Directive 2003/109/EC (see above Article 13 MN 2–2a), while long-term residence status in accordance with EU rules requires five years of continuous residence in the first Member State under Article 4(1). The Commission worries that Member States may disrespect the residence condition of Directive 2003/109/EC in practice, thereby allowing foreigners paying considerable amounts of money to a first Member State to relocate easily to a second Member State, even though the conditions under Directive 2003/109/EC are not met.474 While the Long-Term Residents Directive does not contain rules whether the second Member State may check the legality of the long-term resident status handed out by the first Member State, Recital 17 emphasises mutual trust.475 The absence of explicit rules on annulment of or selective disregard may be an indication that the second Member State is generally bound to respect the decision of the first Member State. However, that need not be the end of the line. The Commission could start infringement proceedings and the other Member States could do the same under Article 259 TFEU, since illegal practices for purposes of facilitating onward movement would certainly amount to disloyal behaviour violating Article 4(3) TEU.476 They might also try to rely on unwritten general principles of Union law against abusive practices the Court activated in a case on social security coordination despite an explicit rule in implementing legislation that certificates issued by other Member States must generally be recognised across the Union.477 It was mentioned already that the Commission pursues the political objective to 4b propose a revision of the Long-Term Residents Directive during the fourth quarter of 2021 in order to create a genuine ‘long-term EU residence status’, which strengthens the rights of long-term residents to move and work in other Member States (see above Article 1 MN 5a). At the time of writing, these changes were not yet available.

473 I have heard that argument on several occasions in conversations with representatives of both lawfirms specialising in economic migration and representatives of immigration offices in Germany. 474 See Commission Report on Investor Citizenship and Residence Schemes in the EU, COM(2019) 12, p. 10. 475 See also Eichenhofer, Recht auf Daueraufenthalt, para 35. 476 See ECJ, A-Rosa Flussschiff, C-620/15, EU:C:2017:309, paras 40, 46. 477 See Thym, Legal Framework of EU Immigration Policy, MN 49–49; ECJ, Altun et al., C-359/16, EU: C:2018:63, paras 46–49; and Article 5 Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284/1); see also Thym, EU Migration Law (OUP, 2022), sect. 7.3 (in preparation).

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II. Right of Residence (Article 14(1), (4)) 5

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During the legislative procedure, it was discussed whether the acquisition of the right 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 the second Member State to assess whether the conditions are met, including judicial review in case of rejection.478 This confirms that residence rights in a second Member State are not acquired automatically 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 a residence permit in the second Member State (‘shall acquire’).479 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 give Member States leeway how to design domestic rules (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.480 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 conditions set out 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 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 the accession of new Member States. 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.481 Austria, Italy and Romania are the only countries to which the provision applies in practice,482 since Germany, which 478 See Handoll, Directive 2003/109/EC, Article 14 MN 10; Bast, ‘Transnationale Migrationsverwaltung des europäischen Migrationsraums’, Der Staat 46 (2007), p. 1, 16–20; Hauschild, Einwanderungsrecht, p. 352. 479 See also the Administrative Court of Munich (Verwaltungsgericht München), decision of 16 July 2019, 10 CS 19.882. 480 See Thym, Legal Framework for the EU Asylum Policy, MN 37–39; Iglesias Sánchez, Free Movement, p. 799–800; and Skordas, Immigration and the Market, p. 209. 481 Contra Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 317. 482 See the Commission Implementation Report, COM(2019) 161, p. 8.

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had originally asked for the insertion to protect a planned domestic quota, decided not to implement it for reasons not related to the Long-Term Residents Directive.483

III. Grounds for Residence Article 14(2) links residence in a second Member State to a number of purposes 10 which demonstrate that mobility on the basis of Chapter III does not bring about, 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 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 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 procedure 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).484 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 mobility, especially at times of high unemployment. 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 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.485 The labour market test can 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 resident permit on the basis of 483

See ter Steeg, Einwanderungskonzept, p. 384. See Council doc. 11702/01 of 22 October 2001, p. 5–12. 485 Generally, see Thym, Constitutional Framework, MN 16. 484

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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.486 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 at the stage of initial applications only and does not constitute a ground for later withdrawal (see below Article 21 MN 4–5). The Commission concluded in its first report on application that mobility within the EU can be enhanced by not applying labour market tests.487 15 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). 16 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 option did not cause much debate during the legislative process and is not covered by the exceptions in Article 14(3)(1), (2). The term ‘studies’ is stricter than the generic formulation ‘education’ 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 under 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 the 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 status acquisition, but rights emanating from residence in another country, in particular in relation to employment. The provision is 486 The inclusion of other Union citizens in the preference test responded to challenges in the context of enlargement to many new Member States in May 2004, which played an important role when Directive 2003/109/EC was drafted; see Iglesias Sánchez, Free Movement, p. 804. 487 See the Commission’s report on application, COM(2011) 585, p. 7.

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declaratory in nature and highlights that the provisions of the Social Security Coordination Regulation (EC) No 883/2004 are not affected by Directive 2003/109/EC.488

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: (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 longterm 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; 488 Regulation (EC) No 883/2004 was extended to third-country nationals by Regulation (EU) No 1231/ 2010 (OJ 2010 L 344/1).

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(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.

mn. 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 1

Article 15 concerns a number of procedural and substantive requirements for 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.

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 retains 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.489 This is confirmed by Article 15(1)(2) establishing application before entry as an option and not as the rule.490 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.491 3 To permit applications in a second Member State after entry in accordance with visafree 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.492 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 (see above Article 14 MN 5, 8, 10–13). This interpretation is reaffirmed by the drafting history493 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). 2

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In practice, the provision entails that third country nationals may travel to a Member 4 State on the basis of the Schengen acquis, for instance to find a job there. They can apply for a residence permit thereafter, but they may not be economically active before an authorisation is issued, unless Schengen rules allow them to do so.494

III. Resources and Sickness Insurance (Article 15(2)) Article 15(2) allows Member States to require applicants to show stable and regular 5 resources together with sickness insurance mirroring corresponding rules for the initial acquisition of long-term resident status in a first Member State in Article 5. The requirement is optional and should not be construed as an 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 the initial application in the first Member State. The term ‘stable and regular resources’ should be interpreted in a similar way as in 6 Article 5(1)(a) (see above Article 5 MN 2–8). Member States are free to apply different 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.495 The concept of ‘sickness insurance’ should be given the same meaning as in Article 5 7 (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 (see above Article 5 MN 12a). Rather, Article 15(3)(1) authorises Member States to oblige third country nationals residing on their territory on the basis of Chapter III to comply with integration obligations during their stay, such as language courses.496 The ECJ found that this distinction between integration conditions and measures is specific to Directive 2003/ 109/EC and cannot be applied to the Family Reunification Directive.497 As in the case of Article 5(2), the Long-Term Residents Directive refrained from 9 defining integration and Member States have wide discretion, therefore, to decide how to design national laws (see above Article 5 MN 13 and Article 1 MN 16–17). Noncompliance with a domestic obligation to comply with integration measures can be sanctioned, for instance through fines,498 although sanctions must be applied proportionately (see above Article 5 MN 18–19). Non-compliance cannot result in withdrawal, 494

See Iglesias Sánchez, Free Movement, p. 804. Contra the Commission’s report on application, COM(2011) 585, p. 7. 496 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. 497 See ECJ, K & A, C-153/14, EU:C:2015:453, paras 45–48; and Bornemann/Klarmann, Directive 2003/ 86/EC, Article 7 MN 23–25. 498 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. 495

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since Article 15(3) does not amount to a condition. In practice, five Member States require compliance with integration measures in case of intra-European mobility499 – much less than with regard to the initial application in a first Member State (see above Article 5 MN 12). This may be explained, in part at least, by the limited practical relevance of the provision (see above Article 14 MN 4), when Member States see no practical need to regulate the issue extensively. 10 Article 15(3)(2) exempts persons subject to integration conditions in the first Member State from integration measures in the second Member State, although they can be obliged to attend language courses under 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 after the submission of documentary evidence relating to legal residence in the second Member State. Like in the case of Article 7(1), Member States have 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 through the contact points under Article 25.500 This does not affect the right of the second Member State to check compliance with the other conditions 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). 11

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.

499 The Commission Implementation Report, COM(2019) 161, p. 8 mentioned Austria, Germany, France, Malta and the Netherlands. 500 See Groenendijk, Denizenship and Integration, p. 436.

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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. 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 the situation when the family was constituted in the first Member State and when 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 reunification from members living elsewhere shall be governed by the Family Reunification Directive 2003/86/EC according to Article 16(5). The generous regime for family members who had 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.’501 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.502 These definitions are 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, Member States have discretion (‘may be authorised’) with regard to more distant relatives.503 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 Reunification Directive in Article 16(1), (2) concerns the definition of different categories 501

Recital 20. See Bornemann/Arévalo, Directive 2003/86/EC, Article 4 MN 3. 503 The distinction was introduced by the Council; see Council doc. 11702/01 of 22 October 2001, p. 14. 502

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of family members. This is confirmed by the neutral formulation ‘already constituted in the first Member State’, which implies that 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, as 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 Reunification Directive concerns the definition of family member in Article 4(1) and not conditions for family reunification in Articles 6–8 Directive 2003/86/EC. Family reunion for members of the nuclear family is easier under Article 16 Long-Term Residents Directive 2003/109/EC.504 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.505 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 rejection or withdrawal of the sponsor’s residence right.506 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. 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.507 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.508 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.509 504

See Peers, Implementing Equality?, p. 445–446. See the Commission response to a question by Germany in Council doc. 11702/01 of 22 October 2001, p. 15 506 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). 507 See the Grand Chamber of the ECtHR, judgment of 9 Oct 2003 [GC], No 48321/99, Slivenko et al. v. Latvia, para 94. 508 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. 509 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 323. 505

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Art. 18

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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.510

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. Article 17 replicates Article 6 on the acquisition of long-term resident status in the 1 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 is discussed in the context of Article 6 together with criteria for 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 policy 2 or 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; moreover, 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. 510 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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Chp. 9 Art. 19

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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 subject to minor modifications and allows Member States to reject applications by long-term residents or family members on public health grounds.511 The reference to definitions in relevant World Health Organisation instruments plus other infectious or contagious parasite-based diseases builds on rules for Union citizens.512 Thus, Article 18 should be given the same meaning as corresponding provisions in the Citizenship Directive.513 2 It is evident from the wording of Article 18(3) that the provision only applies to 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).514 1

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. 1

Article 19(1) builds on Article 7 with a general obligation to process applications within four months except for exceptional circumstances. The thoughts presented in the context of Article 7 can be applied to Article 19 mutatis mutandi (see above Article 7 MN 7). Similarly, comments on broader obligations of the Member States exceeding the 511

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). 513 On their interpretation in light of the COVID-19 pandemic, see Thym/Bornemann, ‘Schengen and Free Movement Law During the First Phase of the Covid-19 Pandemic’, European Papers 5 (2020), p. 1143, 1162–1169. 514 The Commission’s report on application, COM(2011) 585, p. 8 reports problems with regard to some member states in this respect. 512

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Art. 19a

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wording of Article 19(1) on the basis of national procedural autonomy and general principles of Union law including human rights extend to 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). Article 19(2) reiterates that applicants have an individual right to be granted a 2 residence permit if 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 under 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).515 Residence permits may be withdrawn in accordance with Article 21. The conditions 3 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.

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 longterm 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 long-term 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 or international rules (see above Article 8 MN 8, 11). In that case, the remark in the permit of the first Member State shall be adapted accordingly to prevent other states from misinterpreting which country holds ultimate 515 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 320; and, generally, Thym, Constitutional Framework, MN 16.

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Chp. 9 Art. 20

Long-Term Residents Directive 2003/109/EC

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; 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. 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. 634

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Art. 22

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Article 21 gives long-term residents residing in a second Member State equal treatment in all areas covered by Article 11. The comments on the 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). Article 21(2) allows Member States to considerably restrict labour market access, including 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).516 It is not evident whether this exception applies to scenarios of formal limitations under Article 14(3) only or whether it concerns 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 reference, in the wording of Article 21(2)(2), to ‘the conditions set by national legislation’ indicates that Member States have broad discretion when implementing 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 short time frame for perpetuating sector-specific residence permits implies that third country nationals can work in a different sector thereafter. Article 21(2)(3) gives Member State broad discretion to limit or foreclose labour 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 Students and Researchers Directive (EU) 2016/801. With the adoption of the new Students and Researchers Directive, third country nationals lost the option to apply for a residence permit in the second Member State on the basis of that Directive.517 For persons residing on other grounds, the exception appears reasonable, since they can apply for a residence permit on economic grounds under Article 14(2)(a). Article 21(3) grants family members equal treatment in accordance with Article 14 Family Reunification Directive whose scope is narrower than Article 11 Long-Term Residents Directive.518 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 accor516 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. 517 Article 2(2)(d) Directive (EU) 2016/801 exempts all those with long-term resident status under Directive 2003/109/EC from its scope ratione personae, while Article 3(2)(d) of the former Student Directive 2004/114/EC had only exempted students with a long-term residence permit from a first Member States when residing in a second Member States on the basis of Article 14(2)(b) Directive 2003/ 109/EC. 518 See Bornemann/Klarmann, Directive 2003/86/EC, Article 14.

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Chp. 9 Art. 22

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dance 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 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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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. It is usually the first Member State which 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 is governed by national law, since the Return Directive does not usually apply to intra-European returns in accordance with Articles 3 No 3 and 6(2) Directive 2008/115/EC.

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Art. 22

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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 declaratorily that reasons must be given for non-renewal and that courts can be seized against any refusal or withdrawal. Article 22(1)(a) concerns withdrawal or non-renewal on grounds of public policy or public security as defined in Article 17. Comments presented there and in relation to Article 6 apply accordingly (see above Article 6 MN 2–13). 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). 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.’519 This parallelism for acquisition and loss distinguishes residence rights in the second Member State from long-term 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 expression 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 selfemployed persons can lose the right of residence in the second Member State when they lose their job or discontinue their business; the Council rejected the Commission Proposal that temporary incapacity as a result of illness or accident or entitlement to unemployment benefits ensue the retention of worker status.520 Member States have discretion (‘may decide’) how strictly they handle withdrawal or non-renewal, while the exceptions in Article 14(3) concerning the labour market situation applies to initial applications only: they cannot be grounds for withdrawing or not renewing a residence permit which had been granted before.521 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 22 519

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. 521 See above Article 14 MN 12–13; Acosta, The Long-Term Residence Status, p. 147; and Groenendijk, Denizenship and Integration, p. 447–448. 520

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Chp. 9 Art. 22

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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.522 Member States are obliged to treat third country nationals equally if they do not expel them, but retain the right to withdraw or not to renew residence permits, thereby terminating equal treatment under Article 21. 7 The reference in Article 22(2)(b) to Article 16 shows that family members can lose the right of residence if the conditions for 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. 8 It is not immediately clear what scenario Article 22(1)(c) refers to,523 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).

III. Obligation to Leave the Country (Article 22(2)-(6)) Article 22(2) emphasises that the first Member State retains responsibility for third country nationals and family members who had acquired a first residence permit on 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. Similarly, the Return Directive does not usually apply to intra-European returns in accordance with Articles 3 No 3 and 6(2) Directive 2008/115/EC. 10 In line with the principle of proportionality, voluntary return should usually have 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. Note that the statutory deadlines enshrined in the Return Directive cannot be used directly to specify the meaning of the vague formulations in Article 22 Directive 2003/109/EC, since Directive 2008/115/ EC does not apply to intra-European transfers. 11 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). Article 6(2) Return Directive 2008/115/EC sanctions this rule, when it allows states to refrain from sending a third country national to another Member State if 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 2008/115/EC. Moreover, the consultation requirement with the first Member State under Article 22(3)(2), (3) must be respected, although the provision is purely procedural and does not give the first Member State a veto right. 9

522 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 318. 523 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, ibid., p. 321.

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Art. 23

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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 third country 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 not unaddressed by Article 22(2)-(4), but it appears that they are required to leave with the long-term resident in light of the ancillary character of residence rights (see above Article 16 MN 6).524 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.525

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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. Article 23(1) allows for the acquisition of long-term resident status in the second Member State without establishing any privileges. Article 23(2) aims to ensure that the procedural safeguards are respected by the second Member State. The acquisition of long-term resident status in the second Member State entails the 2 loss of status in the first Member State under Article 9(4)(1). Moreover, the same effect 524

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. 525

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Chp. 9 Art. 24

Long-Term Residents Directive 2003/109/EC

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.526 Firstly, the six-year limit in Article 9(4)(2) was chosen to give third country nationals sufficient time for the acquisition of long-term resident status in the second Member State by adding an extra year to the mandatory five-year period. 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 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

In 2001, the Commission presented a first report on the application Long-Term Residents Directive in accordance with Article 24, without proposing any amendments.527 However, it proposed to amend Directive 2003/109/ in parallel EC to extend its scope to beneficiaries of international protection by means of Directive 2011/51/ EU (see above Article 1 MN 13). A second implementation report was adopted in 2019.528 Article 24 grants the Commission discretion as to when 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 526 Contra Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 319. 527 See the Commission’s report on application, COM(2011) 585. 528 See Commission Implementation Report, COM(2019)161 of 29 March 2019.

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relevance of the provision, the legislature decided not to specify how cooperation should be rendered effective in practice.529

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. The Commission initiated infringement proceedings against a number of Member 1 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. The Directive entered into force on 23 January 2004.

1

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 directives in 1 accordance with Article 288 TFEU. It reminds readers that directives often give some discretion to Member States how to implement its provisions. 529

See Hauschild, Einwanderungsrecht, p. 353.

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Chapter 10. Human Trafficking Directive 2004/81/EC Select 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. 204–217; 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 für Europarechtliche Studien (2008), p. 431–451; 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. 137–163; 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. 727–741; 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. 163–189; Hoang, Human trafficking reconsidered – rethinking the problem, envisioning new solutions (International Debate Education Association, 2014); Iniguez de Heredia, ‘People Trafficking: Conceptual issues with the United Nations Trafficking Protocol 2000’, HRL Rev. 9 (2008), p. 299–316; Kau, ‘Human Trafficking Directive 2004/81/EC’, in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010); Peers, EU Justice and Home Affairs Law: Volume I: EU Immigration and Asylum Law, 4th edn (OUP, 2016); Piotrowicz, ‘European Initiatives in the Protection of Victims of Trafficking who give Evidence against their Traffickers’, IJRL 14 (2002), p. 263–278; 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. 275–290; Piotrowicz, ‘The UNHCR’s Guidelines on Human Trafficking’, IJRL 20 (2008), p. 242–252; 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. 205–222; Rijken, Trafficking in Persons – Prosecution from a European Perspective (T.M. C. Asser Press, 2003); van der Leun/van Schijndel, ‘Emerging from the shadows or pushed into the dark? The relation between combat against trafficking in human beings and migration control’, International Journal of Law, Crime and Justice (2016), p. 26–42. 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.

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 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) (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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Having consulted the Committee of the Regions, Whereas: […] HAS ADOPTED THIS DIRECTIVE:

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 mn. I. General remarks .............................................................................................. 1 II. Purpose.............................................................................................................. 10

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 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, in Hailbronner (ed), EU Immigration and Asylum Law, Article 1 MN 3 et seqq. 4 Commission Proposal, 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).

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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. According to the Commission’s recent reports and communications the Directive 2011/36/EU is the key legal instrument in the fight against trafficking in human beings.7 As stated in its 2016 report the Commission focuses on the ‘three Ps’ – prosecution, protection and prevention – as part of the EU’s comprehensive approach of the anti-trafficking Directive and the EU Strategy.8 The Directive underlines predominantly the elements ‘prosecution’ and ‘protection’. 3 In addition, Employers Sanctions Directive 2009/52/EC9 refers to the Directive encouraging the Member States to apply similar arrangements with respect to illegal employment schemes of minors or third-country nationals, particularly with ‘exploitive working conditions’.10 4 Simultaneously to the EU’s efforts to adopt legislation to combat illegal immigration 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 Nations’ Convention Against Transnational Organised Crime11 as supplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (so-called Palermo Protocol)12 and by the Protocol Against the Smuggling of Migrants by Air, Land and Sea was signed.13 The EU is currently involved in the review process concerning the UN Convention and its Protocols.14 5 This was followed by the 2005 Council of Europe Convention on Action against Trafficking in Human Beings,15 roughly regulating the same matters as the UN 6 Directive 2011/36/EU (OJ 2011 L 101/1) on preventing and combating trafficking in human beings (hereinafter: Directive 2011/36/EU). The Commission proposes a ‘joint reading’ of Directive 2004/81/EC and Directive 2011/36/EU, COM(2014) 635, p. 6. 7 Commission Report, COM(2020) 661 final; Commission Report, COM(2018) 777 final; Commission Communication, COM(2017) 728 final; Commission Staff Working Document, SWD(2018) 473 final; Commission Report, COM(2016) 267 final, p. 3. 8 Commission Report, COM(2016) 267 final, p. 3. 9 Employers Sanctions Directive 2009/52/EC (OJ 2009 L 168/24). 10 Peers, EU Justice and Home Affairs Law, Vol. I, No 7.6.2, p. 495. 11 General Assembly of the United Nations, Resolution 55/25 of 8 January 2001 (UN doc. 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/XVIII-12.en.pdf) [last accessed: 5 May 2021]. 12 UN General Assembly, UN doc. A/55/383 (2000), see also Gallagher, Recent Legal Developments, p. 165 et seqq.; Boysen, Migration und Menschenhandel in der EU, p. 437 et seqq.; Piotrowicz, European Initiatives, p. 265 et seqq.; Piotrowicz, The UNHCR’s Guidelines, p. 1 et seq.; Chuang, Beyond a Snapshot, p. 147 et seq.; Rijken, Trafficking in Persons, p. 53 et seqq. 13 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, Reconceptualizing Approaches to Human Trafficking, p. 329 et seq.; Boysen, Migration und Menschenhandel in der EU, p. 437; Gallagher, Recent Legal Developments, p. 165 (‘… its emphasis is squarely on criminal justice aspects of trafficking. … but very little in the way of hard obligation.’); Chuang, Beyond a Snapshot, p. 148 et seq. (‘… clear focus on targeting the traffickers and, to a lesser extent, protecting the victims.’); Piotrowicz, The UNHCR’s Guidelines, p. 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, The European Approach, p. 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, People Trafficking, p. 300 et seqq. 14 Commission Report, COM(2020) 661 final, p. 16. 15 Council of Europe, CETS No 197 (2005); CM(2005)32 Add 1 final, 3 May 2005, see the text available at: http://conventions.coe. int/Treaty/EN/Treaties/Html/197.htm [last accessed: 5 May 2021],

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Protocol.16 However, the Convention comprised several binding provisions on the protection of persons being trafficked.17 As the ECtHR stated in the Rantsev Case18 trafficking in human beings is also prohibited under Article 4 ECHR with respect to the aim of exploitation.19 As can be concluded from the most recent reports and communications20 the 6 Directive is predominantly deemed to support and supplement the rules of Directive 2011/36/EU against trafficking in human beings. Beyond being enacted more than seventeen years ago the Directive does not represent ‘state-of-the-art’-legislation in migration law since it pursues a rather restrictive approach. For example, the Commission stated in its 2020 report that the Directive 2011/36/EU requires to ensure that investigators and prosecution services are not dependent on victims’ reports or accusations.21 This is quite astonishing since this is more or less the key element of the Directive. Additionally, the Commission pointed out in its 2020 report that one priority of the recent policy is to provide better access to and realise the rights for victims, for example, with respect to the Directive 2012/29/EU on Victims’ Rights22 and the Directive 2004/80/EC on Compensation.23 Finally, in its strategy on ‘countering the culture of impunity’ the Member States are supposed to make sure that effective investigative tools are available to investigators and prosecution services and that individuals, units and services investigating and prosecuting are specifically trained.24 Most notably, the overall impact of the Fundamental Rights Charter (FRC) on its 7 provisions granting discretion with respect to victims of trafficking in human beings has no yet examined sufficiently.25 This is especially true since Article 5(3) of the FRC emphatically stipulates that ‘trafficking in human beings is prohibited’.26 As already stated in the recitals 6 and 7 of the Directive and additionally emphasised in the 2020 report trafficking in human beings constitutes a ‘serious violation of fundamental rights of women, men, girls and boys’.27 Therefore, the application and enforcement of the Directive must be operated in regard of the provisions of the FRC. This means

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 5 May 2021]. 16 Gallagher, Recent Legal Developments, p. 170 et seqq.; Raffaelli, The European Approach, p. 210 et seqq.; Peers, EU Justice and Home Affairs Law, Vol. I, no 7.5.4, p. 479; Boeles/den Heijer et. al., European Migration Law, p. 365; Piotrowicz, The UNHCR’s Guidelines, p. 1 et seq.; see for further information Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 1 MN 14. 17 Boysen, Migration und Menschenhandel in der EU , p. 439. 18 ECtHR, Judgment of 7 January 2010, No 25965/04, Rantsev v. Cyprus and Russia; see Allain, HRLR 2010, p. 546, 550 et seq. 19 Grabenwarter, European Convention on Human Rights (C.H. Beck/Hart/Nomos, 2014), Art. 4 MN 11. 20 Commission Report, COM(2020) 661 final, p. 10; Commission Report, COM(2018) 777 final; Commission Communication, COM(2017) 728 final; Commission Staff Working Document, SWD (2018) 473 final. 21 Commission Report, COM(2020) 661 final, p. 10. 22 OJ 2012 L 315/57 (hereinafter: Directive 2012/29/EU). 23 OJ 2004 L 261/15 (hereinafter: Directive 2004/80/EC). 24 Commission Report, COM(2020) 661 final, p. 10. 25 Thym, Constitutional Framework, MN 46 et seq.; Peers, EU Justice and Home Affairs Law, Vol. I, No 2.3, p. 44 et seq. 26 Borowsky, in: Meyer/Hölscheidt (eds), Charta der Grundreche der EU, 5th edn (Nomos, 2019), Article 5 MN 36; Voet van Vormizeele, in: Schwarze et al. (eds), EU-Kommentar, 4th edn (Nomos, 2019), Article 5 MN 6. 27 Commission Report, COM(2020) 661 final, p. 1 et seq.

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that discretionary decisions have to be taken regularly in favour of victims of trafficking in human beings.28 8 In any case, the Commission for the most part abstains from addressing possible shortcomings of the Directive in detail any longer but leaves it well alone to hint to some especially inadequate or inefficient provisions.29 Obviously, the Commission is determined to wait for the appropriate point in time – as for many other EU immigration and asylum directives – to initiate a revision process. It was not until April 2021 that the Commission announced a new strategy on combatting the trafficking in human beings for the years 2021 to 2025. Building on the EU’s comprehensive legal and policy framework – including the Directive – the EU is resolved to prevent trafficking, break criminal business models, and to protect and empower victims.30 Especially the remarks on ‘protecting, supporting and empowering the victims’ might also involve a revision of the Directive in the near future. The newly presented strategy of the Commission seeks to improve the early identification of victims and their referral for further assistance and protection even though early identification has been a ‘key challenge’ for quite some time.31 These aspects were also in the focus of earlier reports and communications.32 Special focus will be put on the protection of women and children.33 9 Ireland and Denmark are not taking part in the Directive.34 Thus, these countries are not bound by the Directive or subject to its application.35

II. Purpose 10

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 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, 28 Hatje, in: Schwarze et al. (eds), EU-Kommentar, 4th edn, (Nomos, 2019), Article 51 MN 16 et seq.; Schwerdtfeger, in: Meyer/Hölscheidt (eds), Charta der Grundreche der EU, 5th edn (Nomos, 2019), Article 51 MN 48 et seq. 29 Different in Commission Report, COM(2010) 493, p. 10 (conclusions) and Commission Communication, COM(2014) 635 final. 30 Commission, Press Release of 14 April 2021, available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_1663 [last accessed: 20 May 2021]. 31 Commission Report, COM(2016) 267 final, p. 14. 32 Commission Report, COM(2020) 661 final, p. 1; Commission Report, COM(2018) 777 final, p. 8; Commission Communication, COM(2017) 728 final, p. 4; Commission Report, COM(2016) 267 final, p. 11 et seq. 33 Commission, Press Release of 14 April 2021, available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_1663 [last accessed: 20 May 2021]. 34 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. 35 For the drafting history of Article 1, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 1 MN 16 et seqq.

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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 11 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,36 the protection of the victims from the criminals’ retribution and the legal guarantees offered in exchange were assessed to be too weak.37 Also the Commission admits in its 2010 report that the ‘potential of the Directive … is not being put to full use’.38 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 underutilised’.39 The criticism is especially justified since the published numbers of victims, 12 proceedings and convictions to this date show a grave mismatch to the human rights violations pertaining to the victims of trafficking in human beings and the enormous profits made on an annual basis.40 As the Commission pointed out diplomatically in its 2020 report ‘the low numbers of convictions of traffickers in the EU compared to the number of investigations, indicate that bringing perpetrators to justice continues to be a challenge’.41 Prior to this, in its 2016 report the Commission stated more bluntly that ‘the level of prosecutions and convictions remains worryingly low’.42 Therefore, it has become quite clear that there is not only an estimated number of unreported cases but also that the provisions of the Directive are not attractive enough to encourage victims of trafficking in human beings to cooperate with the competent authorities. The sheer numbers prove this point. In its 2016 report the Commission stated an 13 overall of 15,846 victims, 4,079 prosecutions, and only 3,129 convictions.43 Altogether 6,324 people had formal contact with the police or the criminal justice system in connection with the crime of trafficking in human beings.44 In 2018 the numbers increased to 20,532 victims, 5,979 prosecutions, but decreased to only 2,927 convictions while altogether 7,503 people had formal contact with investigations and prosecutions.45 In the 2020 report the Commission indicated 14,145 victims, 11,788 suspects, 6,163 prosecutions, and, finally, 2,426 convictions.46 In sum, the numbers remain low in spite 36 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. 37 Boeles/den Heijer et al., European Migration Law, p. 370; Chuang, Beyond a Snapshot, p. 148 et seq.; Piotrowicz, European Initiatives, p. 268 (‘But it is an attempt to obtain the cooperation of victims on the cheap and, as such, will fail.’); Boysen, Migration und Menschenhandel in der EU, 448 (‘… Ziel [ist] nicht der Schutz der Opfer, sondern die Strafverfolgung der Täter.’); Gallagher, Recent Legal Developments, p. 169; on the similar orientation of the ‘Palermo Protocol’, see Piotrowicz, The UNHCR’s Guidelines, p. 4. 38 Commission Report, COM(2010) 493 final, p. 10 (conclusions). 39 Commission Communication, COM(2014) 635 final, p. 10. 40 According to the press release of April 2021 traffickers make globally estimated profits of € 29.4 billion, Commission, Press Release of 14 April 2021, available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_1663 [last accessed: 20 May 2021]. 41 Commission Report, COM(2020) 661 final, p. 11. 42 Commission Report, COM(2016) 267 final, p. 10. 43 Commission Report, COM(2016) 267 final, p. 4 et seq. 44 Commission Report, COM(2016) 267 final, p. 5. 45 Commission Report, COM(2018) 777 final, p. 2. 46 Commission Report, COM(2020) 661 final, p. 10.

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of intensified efforts. Correspondingly, the Commission in its 2021 press release referred to the number of some 14,000 registered victims of trafficking in human beings for 2017 and 2018 of which only a marginal number has been granted a provisionial residence status much less a permanent one.47

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 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) ......................................................................

mn. 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.48 This is also helpful concerning the application of national rules stemming from the Directive by Member States’ courts. 47 Commission, Press Release of 14 April 2021, available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_1663 [last accessed: 20 May 2021]. 48 See Gies/Lehner, Students and Researchers Directive (EU) 2016/801, Article 2 MN 1; Bornemann/ Arévalo, Family Reunification Directive 2003/86/EC, Article 2 MN 1; Tsourdi, Asylum Reception Direc-

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II. Definitions 1. Third-Country national (a) The term third-country national is defined by default by reference to the citizenship 2 of the European Union within the meaning of Article 20 TFEU (ex-Article 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.49 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.50 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) With the term ‘action to facilitate illegal immigration’ (b) refers explicitly to the 3 offences defined in Article 1 and Article 2 of the Directive 2002/90/EC.51 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.52

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.53

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 200154 on the mutual recognition of decisions on the expulsion of third-country nationals.55 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 tive 2013/33/EU, Article 2 MN 1; for the drafting history of Article 2, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 2 MN 2 et seqq. 49 Commission Proposal, COM(2002) 71 final, p. 10. 50 See ECJ, Micheletti, C-369/90, EU:C:1992:295, para 10 et seqq. 51 Commission Proposal, COM(2002) 71 final, p. 10; see also recital 8 of this Directive. 52 For further information pertaining to details of Directive 2002/90/EC, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 2 MN 9 et seqq. 53 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 final; see also recital 8 of this Directive. For further details on Framework Decision 2002/629/JHA, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 2 MN 16 et seqq. 54 Council Directive 2001/40/EC (OJ 2001 L 149/34) on the mutual recognition of decisions on the expulsion of third-country nationals. 55 Commission Proposal, COM(2002) 71 final, p. 10.

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Schengen framework.56 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. 6 In contrast to the provisions of the Directive 2001/40/EC the ‘measures to enforce an 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.57

5. Residence permit (e) The reference to the ‘conditions’ foreseen in the Directive, lead to the requirements established in community law.58 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. 8 In this regard, Member States were still empowered to issue the specific residence 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. 7

6. Unaccompanied minors (f) 9

Eventually, the definition of the term ‘unaccompanied minor’ can be found in concurring wording in many directives in the field of Justice and Home Affairs.59 The definition comprises two different situations leading to the same consequence of a 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. 56 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. 57 Commission Proposal, COM(2002) 71 final, p. 10; see also Peers, EU Justice and Home Affairs Law, Vol. I, no 7.6.2, p. 494. For the drafting history of Article 2, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 2 MN 25. 58 Council doc. 14432/03 of 11 November 2003, p. 3. 59 See Article 2(i) former Asylum Qualification Directive 2004/83/EC; Article 2(h) former Asylum Procedures Directive 2005/85/EC; Article 2(f) Temporary Protection Directive 2001/55/EC; Article 2(h) former Asylum Reception Conditions Directive 2003/9/EC.

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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 ......................................................

mn. 1 2 3 4 5 6

I. General remarks Article 3 limits the personal scope of application of the Directive in several 1 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.60

II. Scope of application According to Article 3 only the application of the Directive to ‘third-country 2 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.

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.61

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.62 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 third-country nationals is also supposed to be less cooperative in contributing as witnesses in the proceedings against traffickers and smugglers. 60 For the drafting history of Article 3, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 3 MN 3 et seqq. 61 For further information see above Article 2 MN 4. 62 Peers, EU Justice and Home Affairs Law, Vol. I, no 7.6.2, p. 495.

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In its 2014 Communication the Commission stated that ten Member States have made use of this opportunity.63

3. Third-country nationals having reached the age of majority 5

The Directive applies in general only to third-country nationals who have already 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 6

Pursuant to the second subparagraph of Article 3(3) of the Directive the Member States may discretionarily extend the application of the Directive also to minors.64 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.65

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. Content I. General remarks .............................................................................................. II. More favourable provisions ..........................................................................

mn. 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 law66 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 1

63 Commission Communication, COM(2014) 635 final, p. 3, namely Austria, Belgium, Czech Rep., Greece, Estonia, Luxembourg, Malta, Portugal, Romania and Sweden. 64 Peers, EU Justice and Home Affairs Law, Vol. I, No 7.6.2, p. 495. 65 Commission Communication, COM(2014) 635 final, p. 3, all Member States except Slovakia have done so, whereas in Lithuania children are included only under specific conditions. 66 E. g. Tsourdi, Asylum Reception Conditions Directive 2013/33/EU, Article 4 MN 3 et seqq.; Lehner/ Gies, Students and Researchers Directive (EU) 2016/801, Article 4 MN 1 et seqq.; Thym, Long-Term Residents Directive 2003/109/EC, Article 13 MN 1.

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principle, free to enact or maintain more favourable provisions pursuant to their national legislation or international obligations.

II. More favourable provisions Generally speaking, the Directive provides for a minimum regime open to victims of 3 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.67

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 mn. I. General remarks .............................................................................................. 1 II. Examination of the application ................................................................... 2 1. Competent authorities ............................................................................... 4 2. Reasonable grounds ................................................................................... 5 3. Extent of information ................................................................................ 7 III. Role of non-state actors................................................................................. 11

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.68 67 Peers, EU Justice and Home Affairs Law, Vol. I, No 7.6.2, p. 495 et seq. 6; Commission Proposal, COM(2002) 71 final, p. 11. 68 For the drafting history of Article 5, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 5 MN 2 et seqq.

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According to the 2020 report the Commission suggests that a core element of the European Crime Prevention Network and Europol aimed at ‘reaching out to potential victims and inform about assistance, protection, as well as their rights across EU countries’.69 In its press release of April 2021 announcing a new strategy on combatting trafficking in human beings the Commission especially emphasised the necessity to ‘improve the early identification of victims’.70 Prior to that, the Commission also underlined in its 2020 and its 2018 report that ‘the possibility for victims to assert their rights are hindered by them not being identified or correctly referred’.71 Similarly, in its 2016 report the Commission already stated that ‘an excessive burden is placed on victims both before and during criminal proceedings.’72 Sadly, this is consistent with the general approach of the Directive since its legal framework is only effective if a person has been correctly identified as a victim of traffickers or smugglers at an early stage of the proceeding and that its contribution to the investigation and prosecution are within reason.

II. Examination of the application The underlying principle of Article 5 provides that the application of the Directive 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.73 This obligation rests with the ‘competent authorities of the Member States’, which have to examine whether someone falls into the scope of the Directive. 3 The extraordinary importance of identifying the entitled persons and providing 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.74 Although the UK is no Member State of the EU anymore and was even before not bound by the Direction 2004/81/EC it is still 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.75 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.76 3a As the recurring complaints and official remarks display the lack of effective identification by the Member States is continuing to be a flawed element of the legal framework in force.77 Time and again the Commission has urged the Member States 2

69

Commission Report, COM(2020) 661 final, p. 13. EU Commission, Press Release of 14 April 2021, available at: https://ec.europa.eu/commission/ presscorner/detail/en/IP_21_1663 [last accessed: 20 May 2021]. 71 Commission Reports, COM(2020) 661 final, p. 4 and p. 10; COM(2018) 777 final, p. 8. 72 Commission Report, COM(2016) 267 final, p. 10. 73 Raffaelli, The European Approach, p. 207 criticising that there is no ‘special procedure in order to identify victims’. For the position of the Commission, see Commission Proposal, COM(2002) 71 final, p. 11; Commission Report, COM(2010) 493 final, p. 4, Commission Communication, COM(2014) 635 final, p. 3 (‘Early identification is crucial for the effective application of the Directive, …’). 74 UK Court of Appeal (England and Wales), judgment of 2 September 2008, R v. O [2008] EWCA Crim 2835. 75 See Article 1 MN 5. 76 Elliott, The Case R v. O, p. 736. 77 Commission Report, COM(2018) 777 final, p. 8; Commission Communication, COM(2017) 728 final, p. 5. 70

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to administer the provisions of the Directive more forcefully and more efficiently in order to establish an effective protection scheme for the victims of trafficking in human beings. Nonetheless, the Commission stated in one its recent reports that ‘the level of threshold applied for initial identification of victims … varies across the EU’.78 To make the situation even more confusing, the Member States point to the ‘role of local authorities in identifying victims in mixed migration flows’.79 After all, it becomes evident that the existing rules of the Directive when it comes to identifying victims are not sufficiently precise and clear in order to guarantee its uniform application in all Member States. Therefore, this crucial point has to be a key element of an upcoming revision of the Directive.

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. This point is also emphasised by the Commission in its 2016 report demanding the Member States to ‘step up efforts to investigate the crime, prosecute perpetrators and identify potential victims’.80 Later on the Commission stated that ‘[i]ncreasing the number of investigations and prosecutions on trafficking in human beings is one of the key priorities of the EU legal and policy framework’.81

2. Reasonable grounds The first precondition for initiating the process contemplated by the legal framework 5 of the Directive is the determination that a third-country national ‘may fall’82 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.83 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.84 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

78 Commission Report, COM(2018) 777 final, p. 8; similarly Commission Reports, COM(2020) 661 final, p. 10; COM(2016) 267 final, p. 11. 79 Commission Report, COM(2018) 777 final, p. 8. 80 Commission Report, COM(2016) 267 final, p. 5. 81 Commission Report, COM(2016) 267 final, p. 10. 82 Emphasis added. 83 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. 84 Noll/Gunneflo, Odysseus Synthesis Report on the Directive 2004/81, p. 16 (‘Absolute certainty cannot be expected, …’).

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the Directive are particular circumstances of the apprehension85 and specific features86 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.87

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.88 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.89 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. 9 For instance, the third-country nationals concerned must also be informed to what 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. 10 If minors are included in the protection of the Directive this has to be told to the victims, too. And 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. 7

85 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. 86 E. g. female, age near majority, particularly vulnerable, minor, etc. 87 Commission Communication, COM(2014) 635 final, p. 4. 88 For further information see the interpretation of Article 8 of this Directive. 89 Noll/Gunneflo, Odysseus Synthesis Report on the Directive 2004/81, p. 16 and 30.

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III. Role of non-state actors As the Commission pointed out in its original proposal, the important role played 11 by associations and non-governmental organisations in the area of providing assistance to victims of illegal immigration justifies to allow that their services are used.90 This is also why victims would perhaps even prefer to deal with members of non-state actors rather than representatives of the Member States.91 Nevertheless, the Article 5(2) requires that at least the ‘association’ or the ‘non- 12 governmental 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.92 The treatment of non-state actors is one of the most striking examples how the 12a strategy of the EU has changed over time. While Article 5(2) of the Directive requires a rather formal appointment and by this an official confirmation of their role in the proceedings the current reports indicate that the Member States are now cooperating more closely with ‘civil society organisations’ and that those actors from civil society have demands and needs of their own with respect to the proceedings.93 This does not alter, however, the binding legal framework of the Directive but it might influence the Member States’ practice with respect to admitting non-state actors on a less formal and less rigid basis.

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. 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. 90

Commission Proposal, COM(2002) 71 final, p. 11. Commission Proposal, COM(2002) 71 final, p. 11. 92 See for further information, Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 5 MN 14. 93 E.g. Commission Reports, COM(2020) 661 final, p. 13 et seq.; COM(2018) 777 final, p. 8. 91

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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 ..........

mn. 1 5 5 7 11 13 13 17 18 19 21 25 26

I. General remarks After the victims of trafficking in human beings or of actions to facilitate illegal immigration have obtained all information required by Article 5(1),94 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.95 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’.96 Thereby, the thirdcountry nationals concerned are given the possibility to recover and, finally, achieve the state to take a reasonable and deliberate decision.97 2 Article 6(2) refers to Article 7 of the Directive and the treatment third-country 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.98 1

94

See Article 5 MN 9. Commission Proposal, COM(2002) 71 final, p. 12 (‘… they be not in a state to decide immediately …, particularly given the risks they run’). 96 Commission Proposal, COM(2002) 71 final, p. 12. 97 For the drafting history of Article 6, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 6 MN 2 et seqq. 98 Commission Proposal, COM(2002) 71 final, p. 12. 95

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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.99 Conversely, any enforcement of expulsion – even if the expulsion decision itself is lawful – is prohibited during the reflection period (Article 6(2)).100 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. Beside 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.101 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.102 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 from measures of 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 the witness protection program in order to ensure the cooperation and efficient recovery during the reflection period.103

2. Duration and starting point The duration of the reflection period has been one of the most controversial issues 7 of the debate. While the Commission’s original Proposal provided for a 30 days 99

Commission Proposal, COM(2002) 71 final, p. 12. Commission Proposal, COM(2002) 71 final, p. 12. 101 Commission Proposal, COM(2002) 71 final. p. 5 et seqq. 102 Commission Proposal, COM(2002) 71 final, p. 12. 103 Commission Proposal, COM(2002) 71 final, p. 7. 100

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reflection period which was deleted in the Council negotiations since several Member States preferred a longer period whereas several others favoured a shorter deadline.104 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’105. 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.106 9 Even though the original 30-days-period of the Commission’s Proposal was deleted during the negotiations,107 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.108 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 varying 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.

3. Informed decision 11

The main objective of the reflection period is to bring the victims of trafficking and illegal immigration in the state to take an ‘informed decision’ as to whether or not they want to cooperate with the competent authorities.109 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 104

See below MN 9; critically on this Raffaelli, The European Approach, p. 207. See below MN 11 et seqq. 106 Peers, EU Justice and Home Affairs Law, Vol. I, no 7.6.2, p. 496. 107 See Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 6 MN 2 et seq. 108 See for the application of the Council of Europe Convention in the UK, Elliott, The Case R v. O, p. 735; Commission Communication, COM(2014) 635 final, p. 5, Fn. 28. 109 Recital 11 even uses the term ‘well-informed decision’. 105

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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),110 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 authorities111 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 provides for two different deadlines. (1) First, it is limited to the duration of the reflection period as it is stipulated 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 and protection needs and it can also extend to translation and interpreting service and to free legal aid if envisaged under national law. In its 2016 report the Commission already stated plainly that ‘providing unconditional access to assistance, support and protection to victims remains a challenge for most Member States’.112 On the basis of the Directive’s provisions a rather restrictive and petty approach has been pursued for some time. Additionally, the prospect of becoming subject to intimidation and secondary victimization – not to speak of investigations and prosecutions as perpetrators – are 110

Emphasis added. Commission Proposal, COM(2002) 71 final, p. 10 et seq. and 12; recital 11 of this Directive. 112 Commission Report, COM(2016) 267 final, p. 11. 111

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not very tempting either. This is basically why the victims of trafficking in human beings are in many cases reluctant to cooperate with the competent authorities. 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.113 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 thirdcountry nationals concerned to enter into a cooperation with the competent authorities due to the weakness of their legal positions.114 The limited effectiveness of the Directive so far suggests that these assumptions are indeed well-founded.

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.115 Even though it might contravene the general purpose of the Directive and it might quite probable 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.116

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,117 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 the victims’ future status.118 Thereby, no formal subsequent entitlement is conferred upon the third-country nationals concerned which they can refer to in later stages of their stay.119 Peers concludes that ‘at least a procedural obligation for Member 113

Commission Proposal, COM(2002) 71 final, p. 12. Piotrowicz, European Initiatives, p. 268 and 271; Boysen, Migration und Menschenhandel in der EU, p. 448; see also Commission Report, COM(2010) 493 final, p. 10 and Commission Communication, COM(2014) 635 final, 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, …’). 115 Commission Proposal, COM(2002) 71 final, p. 12; also Piotrowicz, European Initiatives, p. 269. 116 Commission Communication, COM(2014) 635 final, p. 5, not in Bulgaria and in some other Member States, therefore, ‘protection from expulsion … might be problematic’. 117 See Article 8 MN 8 and 11 et seqq. 118 Commission Proposal, COM(2002) 71 final, p. 12. 119 Commission Proposal, COM(2002) 71 final, p. 12; Peers, EU Justice and Home Affairs Law, Vol. I, No 7.6.2, p. 496; Piotrowicz, European Initiatives, p. 269. 114

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States’ exists to take the victim’s contributions and accomplishments into account.120 From an aliens law perspective, the third-country nationals concerned cannot, however, deduct any legal advantages from having enjoyed the reflection period under Article 6 of the Directive. At any rate, the stay previous to the issue or non-issue of a (temporary) residence permit during the waiting period constitutes a 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.121

V. Immediate termination As the wording of the Directive emphatically displays, the severance of all links 19 and 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.122 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 2007.123 Since the EU’s attention in the fight against trafficking in human beings and smuggling shifted to the Directive 2011/36/EU and overreaching issues in the later years there are no specific transposition reports solely on the Directive giving insight on the recent developments later than 2014.124 The issue of granting residence permits on the basis of the Directive is currently one aspect among others in the fight against trafficking in human beings which is addressed in the comprehensive and general report on the issue of trafficking in human beings which is drafted and published on the two-yearly basis.125

1. Evidentiary requirements Facing the extremely negative consequences of a renewed contact with traffickers 21 and smugglers, the Member States have posted advanced 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. 120

See Peers, EU Justice and Home Affairs Law, Vol. I, no. 7.6.2, p. 496. See ECJ, Metock, C-127/08, EU:C:2008:335, para 53 and 58 et seq. 122 See below Article 14 MN 4 et seqq. 123 Noll/Gunneflo, Odysseus Synthesis Report on the Directive 2004/81, p. 33 et seq. 124 See Commission Report, COM(2018) 777 final; Commission Communication, COM(2017) 728 final; Commission Staff Working Document, SWD(2018) 473 final. 125 E.g. Commission Reports, COM(2020) 661 final; COM(2018) 777 final; COM(2016) 267 final. 121

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The conditions enumerated in Article 6(4) according to which a victim has to act ‘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 same is true if the victim took actions toward the trafficker at the instigation of the police or prosecution as part of a criminal investigation. 23 The three conditions might in some cases overlap, but it can be recognised that by 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. 24 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. 22

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.126 Therefore, the perpetrators must have violated the offences stipulated in Article 1 and Article 2 of the Directive 2002/90/EC127 or in Article 2, Article 3 and Article 4 of the Directive 2011/36/EU.128 Although a final conviction for the aforementioned crimes is not required. Otherwise, the application of the Directive would depend on the lengthy course of court proceedings including appeals and further legal remedies.

3. Reasons of public policy and protection of national security 26

The terms ‘public policy’ and ‘national security’ are not explained in the Directive but several other directives provide for corresponding provisions.129 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 Free Movement Directive 64/ 126

See for details above Article 2 MN 3 et seqq. Commission Proposal, COM(2002) 71 final, p. 10; see also recital 8 of this Directive. 128 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 final; see also recital 8 of this Directive. 129 E. g. Bornemann/Klarmann, Family Reunification Directive 2003/86/EC, Article 6 MN 4 et seqq. 127

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221/EEC concerning restrictions of free movement rights of EC workers130 and subsequently in Article 27 Free Movement Directive 2004/38/EC. According to the ECJ the conditions of the ‘public policy’ reservation are met131 if the 27 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’.132 In conclusion, this leads to a generally narrow interpretation of the public policy-reservation in the context of the Directive 2004/81/EC. In addition, the ‘national security’-aspect extends the application also to situations 28 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.

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 mn. 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)............................................................................. 11 130 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. 131 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 and C-493/ 01, EU:C:2004:262, para 66. 132 See ECJ, Bouchereau, C-30/77, EU:C:1977:172, para 35.

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I. General remarks 1

Article 7 lays down the treatment third-country nationals are granted before the (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’133 and to prevent that advantage from neither side is being taken of their vulnerability. The measures should support victims to come out of hiding in order to avoid the risk of re-establishing ties with traffickers and smugglers.134 The ‘package of measures’ is a complementary mixture of mandatory and discretionary assistance.135

II. Sufficient resources, Article 7(1) 1. Lacking capacity 2

The first important precondition for granting the benefits referred to in Article 7(1) was that third-country nationals concerned would have to lack the capacity to cover the 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 thirdcountry nationals coming to Europe will lack sufficient resources to ensure their subsistence.

2. Subsistence 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.136 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. 3a At its heart, all aforementioned requirements can also be provided for in specific facilities, shelters or registration centers. As the Commission emphasises in its 2018 report the assistance to and protection of victims of trafficking can explicitly be granted by ‘establishing shelters and appropriate accommodation’.137 Bearing in mind the imminent danger of a ‘secondary victimisation’ while the criminal proceeding is still continuing specific facilities and shelters might be adequate and practical to safeguard 3

See for further details on the term ‘informed decision’ Article 6 MN 11 et seqq. Commission Proposal, COM(2002) 71 final, p. 13. 135 For the drafting history of Article 7, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 7 MN 2 et seqq. 136 Höfling/Kempny, in Stern/Sachs (eds), EU-Grundrechte-Kommentar (C.H. Beck, 2016), Article 1 MN 26. 137 Commission Report, COM(2018) 777 final, p. 9. 133 134

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protection. Also the 2020 report points to a more generous approach by underlining the victims’ special needs, personal history and ensuring they receive personalised services.138 Since Article 7(1) comprises only minimum requirements the Member States can discretionarily grant means ensuring higher living standards. This would be consistent with the most recent approaches of the Commission.139

3. Access to emergency medical treatment The term ‘emergency medical treatment’ indicates that only those medical treatments 4 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’.140 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). Particularly the only limited access to emergency medical treatment and the 5 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.141 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.142 The information aspect is also emphasised in its 2021 press release143 and the 2018 report.144

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 violence 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’. 138

Commission Report, COM(2020) 661 final, p. 13. See Commission Reports, COM(2020) 661 final; COM(2018) 777 final; COM(2016) 267 final. 140 Commission Proposal, COM(2002) 71 final, p. 13. 141 Piotrowicz, European Initiatives, p. 268. 142 Commission Report, COM(2010) 493 final, p. 10 (conclusions). 143 Commission, Press Release of 14 April 2021, available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_1663 [last accessed: 20 May 2021]. 144 Commission Report, COM(2018) 777 final, p. 8. 139

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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 on Article 7(2) taking into due 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’. 9 In sum, the decision to what extent and under what circumstances the Member States 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 ill-developed 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.145 Even more, in its 2016 report the Commission already stated that ‘victims are frequently refused assistance at police stations or misidentified as offenders, and subsequently prosecuted and convicted’.146 If the EU really pursues a ‘victim-centred approach’ at the heart of its anti-trafficking legislation and policy, appropriate mechanism for the early identification of victims and provision of assistance and support are essentially required.147 As the Commission pointed out some years ago victims must be considered as right holders for which an early identification is essential.148 8

IV. Translation and interpreting services, Article 7(3) 10

Since the main purpose of the benefits granted according to Article 7 of the Directive is supposed to enhance the victim’s chances to take an ‘informed decision’ irrespective of his or her vulnerable situation,149 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.

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 145

Piotrowicz, European Initiatives, p. 268 et seqq. Commission Report, COM(2016) 267 final, p. 10. 147 Commission Report, COM(2016) 267 final, p. 11. 148 Commission Report, COM(2016) 267 final, p. 12. 149 Commission Proposal, COM(2002) 71 final, p. 13 146

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and phrased as a may clause. It is, thereby, made discretionary to the Member States to grant ‘access to free legal aid’. 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 third-country 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 mn. I. General remarks .............................................................................................. 1 II. Criteria for issue, Article 8(1) ...................................................................... 2 1. Opportunity presented (a)........................................................................ 3 2. Clear intention to cooperate (b) ............................................................. 4 3. Severe all relations with perpetrators (c) .............................................. 5 4. Time of consideration ............................................................................... 6 5. Additional criteria ...................................................................................... 7 III. Entitlement or discretionary decision?, Article 8(2) ............................... 8 IV. Reservations, Article 8(2) .............................................................................. 9 V. Duration, Article 8(3)..................................................................................... 10 VI. Renewal ............................................................................................................. 11

I. General remarks Article 8(1)(a) to (c) sets out the complementary criteria required to be fulfilled in 1 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 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, Kau

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Article 8(3) comprises the rules on the validity of the residence permit and the conditions for its renewal.150

II. Criteria for issue, Article 8(1) 2

Article 8(1) enumerates three criteria which have to be fulfilled in order to issue a 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) 3

The first criterion requires that the Member States shall consider ‘the opportunity 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’151 in terms of the commenced proceedings remains relevant.152 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 authorities153 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,154 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.155

2. Clear intention to cooperate (b) 4

Additionally, the third-country national concerned must show a convincing readiness 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) 5

As already mentioned with respect to Article 6 of the Directive the complete severance of all links with traffickers and smugglers is a key precondition of any cooperation with 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 150 For the drafting history of Article 8, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 8 MN 2 et seqq. 151 Commission Proposal, COM(2002) 71 final, p. 21; Council doc. 11698/03 of 28 August 2003, p. 10. 152 Raffaelli, The European Approach, p. 209. 153 For which authorities can be assessed as ‘competent’, see Article 5 of this Directive, MN 6 et seq. 154 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, European Initiatives, p. 269. 155 Raffaelli, The European Approach, p. 208 et seq.

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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 The recent provision of Article 8 of the Directive stipulates no precise period of 6 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 If programmes and schemes aimed at the recovery of a normal social life exist or are 7 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) While the wording of Article 8(2) underwent significant alterations, the change with 8 respect to one key element of the original draft was especially important. Instead of providing that the residence permit ‘shall be issued’,156 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.157 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 third-country national has an individual right to demand the issue if the conditions are met.158

IV. Reservations, Article 8(2) Resembling the language of Article 6(4) also Article 8(2) comprises reservations with 9 respect to ‘reasons relating to public policy and to the protection of national security’. 156

Emphasis added, see Commission Proposal, COM(2002) 71 final, p. 21. See also Peers, EU Justice and Home Affairs Law, Vol. I, No 7.6.2, p. 496 (‘While the Directive does not appear to create a right to a permit if the conditions are met,….’); Piotrowicz, European Initiatives, p. 269 (‘…, then a six-month residences permit can be issued’), emphasis added. 158 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.’). 157

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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.159 Therefore, the principles developed by the European Court of Justice for the interpretation of the term ‘public policy’ in the former Free Movement Directive 64/221/EEC160 and subsequently in the Free Movement Directive 2004/38/EC are applicable.161

V. Duration, Article 8(3) 10

The provision of the first sentence of Article 8(3) is for several reasons remarkable. 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,162 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. The drafting history and several provisions convey the overall impression that the Directive is essentially an instrument to fight trafficking in human beings as part of the Member States investigating and prosecuting the related offences. In contrast, the humanitarian aspects play a less significant role even if the most recent reports and communications emphasise this aspect of the Directive more strongly.163

VI. Renewal 11

According to the second sentence of Article 8(3) the Member States are obliged to 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. While the provision on the initial residence permit encompasses 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.164 Therefore, 159

E. g. Bornemann/Klarmann, Family Reunification Directive 2003/86/EC, Article 6 MN 4 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. 161 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 and C-493/ 01, EU:C:2004:262, para 66. See for further information the interpretation of Article 6 MN 26 et seqq. 162 Boysen, Migration und Menschenhandel in der EU, p. 446 et seqq.; Piotrowicz, European Initiatives, p. 268 and 271. 163 Commission Report, COM(2020) 661 final, p. 1 et seq.; Commission Report, COM(2018) 777 final, p. 9; Commission Communication, COM(2017) 728 final, p. 4. 164 Commission Proposal, COM(2002) 71 final, p. 13. 160

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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. Whereas the Member States carefully avoided to adopt an individual right to grant 12 a residence permit pursuant to Article 8(2),165 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.166 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.167

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 ...................................................................

mn. 1 2 4 4 7

I. General remarks Article 9(1) provides that third-country nationals who were granted residence per- 1 mits according to the Directive receive at least equal treatment as provided under 165

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. 167 For the drafting history of the issue of an individual right in Article 8, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 8 MN 24. 166

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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.168

II. Equal treatment as Article 7 According to Article 9(1) the Member States are obliged to grant ‘at least’ the same 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 has already been 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.169 3 After all, third-country nationals are granted as a minimum the same treatment as 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’170 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. 2

III. Special needs 1. Personal scope First, the Directive names several groups of people falling in the category of persons with special needs. According to the wording using the term ‘such as’ the named categories are only examples and the enumeration is non-exhaustive.171 Therefore, also further groups with special needs can require to be granted the ‘necessary medical treatment’ and ‘other assistance’ if their situation is comparable to those of the groups mentionend. This includes, for instance, also senior citizens, chronically ill persons and transsexuals. One group of persons with ‘special needs’ which does, however, not fall 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. 5 While the category of ‘pregnant women’ covers only a very limited, fairly easy to 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. 4

168 For the drafting history of Article 9, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 9 MN 2 et seqq. 169 See Article 7 MN 2. 170 See Article 7 MN 3. 171 Commission Proposal, COM(2002) 71 final, p. 14 (‘… gives examples …’).

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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.

2. Medical and other assistance The final wording of Article 9(2) engendered some limitation with respect to the 7 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’. In addition, the term ‘other assistance’ contains every reasonable treatment capable 8 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’.

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. General remarks .............................................................................................. II. Best interest of the child (a) ......................................................................... III. Access to educational system (b) ................................................................

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IV. Unaccompanied minors (c).......................................................................... 1. Establishment of identity and nationality............................................. 2. Locating the family..................................................................................... 3. Legal representation ...................................................................................

5 6 8 9

I. General remarks 1

In the case that the Directive is applicable also to minors Article 10 establishes several 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.172

II. Best interest of the child (a) The term ‘best interest of the child’ derives from the UN Convention on the Rights of the Child of 20 November 1989173 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.174 Since Article 10(a) explicitly demands only to take ‘due account’ of the ‘best interest of the child’ it is possible to consider other important interests as well. 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. As the Commission recommended in its 2016 report an integrated approach to child protection being based on the standards of the UN Convention on the Rights of the Child deems necessary.175 3 ‘The best interest of the child’ may imply specific adaptations in terms of procedure and especially with respect to the period of reflection.176 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.177 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 2

172

See Article 3 MN 6. Available at: http://www.ohchr.org/en/professionalinterest/pages/crc.aspx (last accessed: 5 May 2021). 174 Ennuschat, in Stern/Sachs (eds), EU-Grundrechte-Kommentar (C.H. Beck, 2016), Article 24 MN 18. 175 Commission Report, COM(2016) 267 final, p. 12. 176 Commission Proposal, COM(2002) 71 final, p. 15. 177 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). 173

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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.178 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 préparatoires of the UN Convention and the subjectivity of the standard to which the term ‘best interest of the child’ contains the minor’s ‘all-around development’ including physical, mental, spiritual, moral and social aspects of the personality.179

III. Access to educational system (b) Also Article 10(b) providing for access to education under the same conditions as 4 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.180 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) The treatment of unaccompanied minors is closely connected with a number of issues 5 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 1997181 on unaccompanied minors who are nationals of third countries.182

1. Establishment of identity and nationality Article 10(c) of the Directive requires the Member States to take the necessary steps 6 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. In general, it is not entirely clear if an establishment of identity does not usually 7 comprise the establishment of nationality. For interpretation purposes the subject of 178

Noll/Gunneflo, Odysseus Synthesis Report on the Directive 2004/81, p. 21. 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 über die Rechte des Kindes (Duncker & Humblot, 1994), p. 106 et seq. 180 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. 181 OJ 1997 C 221/23. 182 Commission Proposal, COM(2002) 71 final, p. 15. 179

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‘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.

2. Locating the family 8

Since the status of an unaccompanied minor belongs to the most vulnerable category 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 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. 10 With respect to Article 10(c) the term ‘in accordance with national law’ does not constitute a full fledged legal reservation leaving it 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. 9

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) .................................................

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I. General remarks 1

Article 11(1) provides for the benefits coupled with the issue of the residence permit in addition to the medical and special needs treatment referred to in Article 9 678

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(1). Moreover, Article 11(2) addresses the conditions and procedures assigned to the competent authorities under national law.183

II. Benefits, Article 11(1) The purpose of Article 11 was that the third-country nationals concerned were 2 supposed to have the opportunity to ‘put their illegal past behind them and gain independence from the networks of traffickers and smugglers’.184 As the Member States paid heed to remain in control of the access rights, Article 11 3 (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.

1. Access to labour market The access to the labour market was deemed by the Commission to enable the third- 4 country nationals concerned to earn their living and thereby establish, entirely or in part, their own basis for a living.185 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 5 acquire the means to earn a living.186 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. The extent of access to employment, vocational training and education has engen- 6 dered considerable criticism since. Especially, it was argued 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.187 Even though the Commission conceded in its 2010 report 183 For the drafting history of Article 11, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 11 MN 2 et seqq. 184 Commission Proposal, COM(2002) 71 final, p. 14. 185 Commission Proposal, COM(2002) 71 final, p. 14. 186 Commission Proposal, COM(2002) 71 final, p. 14. 187 Piotrowicz, European Initiatives, p. 264 and 268. See also Opinion no 4/2009 of the Group of Experts on Trafficking in Human Beings, 16 June 2009, p. 5.

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that the Directive’s ‘impact does appear insufficient in the light of the overall data on victims of trafficking in the EU’,188 it was obviously not able to remedy its shortcomings. As the 2021 press release indicates the Commission is quite determined to address the obvious deficiencies of the Directive in the future.189

III. Conditions and procedures, Article 11(2) 7

While Article 11(1) provided that the conditions under which the holders of residence 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 mn. 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 1

The first subparagraph of Article 12(1) contains rules on the participation of third-country nationals concerned in programmes or schemes which have the 188

Commission Report, COM(2010) 493 final, p. 10 (conclusions). EU Commission, Press Release of 14 April 2021, available at: https://ec.europa.eu/commission/ presscorner/detail/en/IP_21_1663 [last accessed: 20 May 2021]. 189

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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.190

II. Access to existing programmes or schemes The access to existing programmes and schemes pursuant to the first subparagraph of 2 Article 12(1) depends on several conditions.191 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 The first substantial requirement is that the programmes or schemes have to enable 3 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 4 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 provid- 5 ing additional vocational training,192 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. 190 For the drafting history of Article 12, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 12 MN 2 et seqq. 191 See below MN 3 et seqq. 192 Commission Proposal, COM(2002) 71 final, p. 15.

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Beside this, the preparation of an assisted return to the country of origin emphasises the provisional character of the residence permit issued in connection with or 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. 7 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 specific witness protection programmes in order to prevent retribution or reprisal by traffickers or smugglers.193 6

2. Organisational requirements Initially, specific organisational requirements have to be fulfilled in order to 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.194 9 In addition, programmes and schemes of non-governmental organisations and 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.195 8

III. Specific programmes or schemes 10

As a discretionary provision the second subparagraph of Article 12(1) empowers the 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.

193 See Raffaelli, The European Approach, p. 220; Gallagher, Recent Legal Developments, p. 168; Boysen, Migration und Menschenhandel in der EU, p. 446 et seqq.; Piotrowicz, European Initiatives, p. 268 and 271. 194 See Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 12 MN 3 et seqq. 195 For further information see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 12 MN 14 et seqq.

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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 Directive196 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. Since Article 12(2) contains only the term ‘upon the participation’ the successful 12 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.............................................................

mn. 1 2 3 4 5

I. General remarks Article 13(1) provides that the Member States are obliged not to renew the 1 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,197 Article 13(1) prohibits 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. 196 197

See Article 8 MN 7. See Article 8 MN 12.

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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.198

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) cease to be satisfied or the relevant proceedings have been terminated by the competent authorities.

1. Conditions of Article 8 ceasing to be satisfied 3

While Article 13(1) explicitly refers only to Article 8(2), this provision stipulates that ‘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.199

2. Termination of relevant proceedings 4

The second case in which the Member States are obliged to reject an application for renewal of a residence permit is given if a decision has been adopted by the competent authorities to terminate the relevant proceedings.200 The wording of the provision leaves the Member States room to determine in each individual case according to their national law the relevant authorities.201 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 198 For the drafting history of Article 13, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 13 MN 2 et seqq. 199 Commission Proposal, COM(2002) 71 final, p. 15; see Article 8 MN 3 et seqq. 200 Raffaelli, The European Approach, p. 207 et seq. 201 See Council doc. 12228/03 of 12 September 2003, p. 3, note 1; again in Council doc. 12958/03 of 10 October 2003, p. 3, note 1 and Council doc. 13875/03 of 29 October 2003, p. 3, note 1.

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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.202

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 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’.203 Considering the original wording of Article 13(2), stating that ‘Member States shall take account of [the victims] … cooperation when considering their applications’,204 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’.205 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.206 Even the original framework of the Directive was criticised for a lack of legal guarantees and incentives for entering into a cooperation.207 At any rate, the amendments of Article 13(2) and the eventual deletion of the second 6 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.208 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 202

Boysen, Migration und Menschenhandel in der EU, p. 446; Piotrowicz, European Initiatives, p. 270. Commission Proposal, COM(2002) 71 final, p. 15. 204 Commission Proposal, COM(2002) 71 final, p. 23. 205 Commission Proposal, COM(2002) 71 final, p. 15. 206 Commission Proposal, COM(2002) 71 final, p. 15. 207 Piotrowicz, European Initiatives, p. 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.’). 208 Council doc. 14432/03 of 11 November 2003, p. 13, note 1; in this context also Peers, EU Justice and Home Affairs Law, Vol. I, No 7.6.2, p. 497. 203

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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 investigation and prosecution of related crimes by giving testimony and providing further evidence.209 Additionally, the binding legal guarantees provided by the Directive in exchange for the cooperation were assessed as being too weak.210 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,211 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.212

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. 209 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. 210 Chuang, Beyond a Snapshot, p. 148 et seq.; Piotrowicz, European Initiatives, p. 268; Boeles/den Heijer et al., European Migration Law, p. 370; Boysen, Migration und Menschenhandel in der EU, p. 448; Gallagher, Recent Legal Developments, p. 169. 211 Chuang, Beyond a Snapshot, p. 151 et seq.; Boysen, Migration und Menschenhandel in der EU, p. 448; Gallagher, Recent Legal Developments, p. 169; Piotrowicz, European Initiatives, p. 272. 212 Piotrowicz, European Initiatives, p. 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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Content mn. 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

I. General remarks Article 14 comprises several cases allowing the Member States to withdraw the 1 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).213 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.214

II. Cases of withdrawal At the outset, it has to be noted that Article 14 is a may clause leaving it entirely to 2 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.215 With respect to the criticism the provision has generated,216 it has to be considered 3 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. In any case, not only the general principles of EU law apply but also Article 47 of the FRC with the right to effective remedy and to a fair trial.217

213

See Article 6 MN 19 et seqq. For the drafting history of Article 14, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 14 MN 2 et seqq. 215 Peers, EU Justice and Home Affairs Law, Vol. I, No 7.6.2, p. 498; see Council doc. 12228/03 of 12 September 2003, p. 14, note 2. 216 Gallagher, Recent Legal Developments, p. 169; Boysen, Migration und Menschenhandel in der EU, p. 448; Piotrowicz, European Initiatives, p. 272; Chuang, Beyond a Snapshot, p. 151 et seq. 217 See Peers, EU Justice and Home Affairs Law, Vol. I, No 7.6.2, p. 498. 214

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1. Renewed contacts (a) 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,218 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.219 5 For proving that the third-country national in question has taken the initiative to 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 means of evidence.220 4

2. Fraudulent cooperation (b) A cooperation can be assessed as being ‘fraudulent’ in the sense of Article 14(b) if the 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). 7 Even though prima facie it might appear sufficient if the authority ‘believes’ that the 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 means of evidence 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. 6

3. Reasons of public policy and protection of national security (c) 8

By referring to the ‘reasons of public policy’ and the ‘protection of national 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).221

4. Ceasing to cooperate (d) 9

Article 14(d) completes the cases of withdrawal in accordance with an assessment 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 218 See for further information about ‘perpetrators suspected of committing the offences’ above Article 2 MN 3 et seqq. and above Article 6 MN 25. 219 See Article 6 MN 21 et seqq. 220 See Article 6 MN 24. 221 See above Article 6 MN 26 and above Article 8 MN 9 et seq.

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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 enforcement 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.222

III. Relevant point in time As in Article 6 with respect to the termination of the reflection period, the with- 11 drawal 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. 222 Raffaelli, The European Approach, p. 209. See for further information the interpretation of Article 13 of this Directive, MN 4.

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Human Trafficking Directive 2004/81/EC

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. 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).............................

mn. 1 2 3

I. General remarks 1

Article 15 to 19 contain the final provisions of the Directive. While Article 16 to 19 include the general final provisions, such as the entry into force and the transition period, Article 15 contains a specific safeguard clause.223

II. Specific safeguard clause (Article 15) 2

In addition to the general ‘more favourable provision’ clause of Article 4, the Directive provides a specific safeguard clause which refers to ‘national rules concerning 223 For the drafting history of Article 15 to 19, see Kau, in Hailbronner (ed), EU Immigration and Asylum Law, Article 19 MN 2.

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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.224 To some extent, Article 15 is also the palpable expression of a widely criticised shortcomings 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.225

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 3 the Directive in the Member States was submitted on 15 October 2010.226 In 2014 a Communication from the Commission on the Directive was published updating the 2010 survey.227 After enacting the Directive 2011/36/EU on trafficking in human beings comprehensive and general reports started covering all issues pertaining to trafficking and smuggling on a two-yearly basis, including those of the Directive 2004/81/EC. After the First Report on progress made in the fight against trafficking in human beings was published in 2016,228 it was followed by a Communication on the EU-Strategy towards the eradication of trafficking in human beings in 2017,229 the Second Report in 2018,230 and, most recently, the Third Report on the progress made in the fight against trafficking in human beings in 2020.231 According to Article 17, the Member States had to implement the Directive by 4 6 August 2006. The territorial scope of application of the Directive includes 25 out of the 27 Member States, since 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).232 Thus, these countries are not bound by the Directive or subject to its application. However, it has to be indicated that the Council of Europe Convention on Action against Trafficking in Human Beings233 contains international law-based obligations with respect to trafficking in human beings and illegal immigration which also bind Ireland and Denmark, and even the Non-Member State United Kingdom.234 The Directive entered into force on 6 August 2004, the day of its publication in the 5 Official Journal of the European Union.235 224

Commission Proposal, COM(2002) 71 final, p. 3. Opinion No 4/2009 of the Group of Experts on Trafficking in Human Beings, 16 June 2009, p. 2; Raffaelli, The European Approach, p. 220; Piotrowicz, European Initiatives, p. 268 and 271; Gallagher, Recent Legal Developments, p. 168; Boysen, Migration und Menschenhandel in der EU, p. 446 et seqq. 226 Commission Report, COM(2010) 493 final. 227 Commission Communication, COM(2014) 635 final. 228 Commission Report, COM(2016) 267 final. 229 Commission Communication, COM(2017) 728 final. 230 Commission Report, COM(2018) 777 final. 231 Commission Report, COM(2020) 661 final. 232 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. 233 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: 5 May 2021); entered into force on 1 February 2008. In the meantime 43 States have ratified the Convention, among them 27 Member States of the EU. 234 See Article 1 MN 5 et seqq. 235 OJ 2004 L 261/19. 225

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Chapter 11. Return Directive 2008/115/EC* Select Bibliography: Acosta, ‘The Returns Directive: Possible Limits and Interpretation’, in: Zwaan (ed), The Returns Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (Wolf Legal Publishers, 2011), p. 7–24; Acosta, ‘The Returns Directive’, in: Peers/Guild/Acosta/Groenendijk (eds), EU Immigration and Asylum Law, 2nd rev. edn (Brill, 2012), p. 483–523; Baldaccini, ‘The EU Directive on Return, Principles and Protests’, Refugee Survey Quarterly 28 (2009), p. 114–138; Commission, Communication on EU Return Policy (COM(2014) 199); Commission, Return Handbook (Commission Recommendation C(2017) 6505, 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); Lutz, ‘Non-removable Returnees under Union Law, Status Quo and Possible Developments’, EJML 20 (2018), p. 28–52; Majcher, The European Union Returns Directive and Its Compatibility with International Human Rights Law (Brill, 2019); Matrix, Evaluation on the application of the Return Directive, Final Report (European Commission, 22 October 2013), available at: https://op.europa.eu/en/publication-detail/-/publication/2d7caada-14ed-448a-a3d2-4a0c54272043 [last accessed May 2021]; Molnár, The Interplay between the EU's Return Acquis and International Law (Edward Elgar, 2021); Moraru/ Cornelisse/de Bruycker (eds), Law and Judicial Dialogue on the Return of Irregular Migrants from the EU (Hart 2020); Peers/Guild/Acosta/Groenendijk (eds), EU Immigration and Asylum Law, Volume 2: EU Immigration Law, 2nd rev. edn (Brill, 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. 25–38; 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); Spencer/Triandafyllidou (eds), Migrants with Irregular Status in Europe: Evolving Conceptual and Policy Challenges (Springer, 2020). Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Directive 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 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,

* Fabian Lutz, the author of the comments on Articles 1–11, 14 and 18, is working in the European Commission’s Directorate-General Migration and Home Affairs. All views expressed in this article are purely personal and do not necessarily reflect the views of the European Commission. The author would like to thank Martin Schieffer (author of the first edition) for his permission to use his text as a basis for subsequent editions and Mikko Hakkarainen for many helpful comments on this third edition.

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Having regard to the proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty, Whereas: […] 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....................................................................................... 2. Drafting and submission of Commission proposal (2004–2005).... 3. Negotiation phase (2006–2008)............................................................... 4. Impact of EP................................................................................................ 5. Adoption....................................................................................................... III. Subject matter .................................................................................................. IV. Application of the Directive (2008–2021) and proposed amendments ..................................................................................................... V. Overview – ECJ Case law related to Return Directive...........................

mn. 1 2 2 3 6 12 13 15 21 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 First steps towards a common return policy were already made in the context of the 2 development of the Schengen acquis.1 The Convention Implementing the Schengen 1

Lutz, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 2.

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Agreement (SIC) contained in its Articles 23, 24 and 96 some basic provisions on return: Article 23 (now replaced by Article 6 of the Return Directive) stated a basic rule that aliens who do not or who no longer fulfil the conditions for stay should normally be required to leave the territories of the Member States immediately. Article 96 SIC allowed Member States to enter migration or return related entry bans into the Schengen Information System. These rules were complemented by a number of Executive Committee Decisions covering certain technical aspects of return and readmission.2 None of the broader return-related topics addressed by the Return Directive (detention, legal remedies, rights of returnees) had been harmonised at this stage yet. However, the fact that return was considered part of the Schengen acquis has important ongoing consequences: the Schengen associated countries (Switzerland, Norway, Iceland and Liechtenstein) are bound by the EU’s return acquis and the Commission is able to use the Schengen Evaluation Mechanism to evaluate Member States’ compliance with the return acquis. In its Communication of 15 November 2001 on a Common Policy on Illegal Immigration3 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 Policy4 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. The ensuing 14 October 2002 Commission Communication on a Community Return Policy on Illegal Residents5 sketched a programme for further action. Based on this Communication, the Council adopted its Return Action Programme6 in which it expressly called for 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, 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 decision7 (2004/927/EC) to ‘switch’ the 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 (see below MN 12). 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;8 assistance in 3

2 SCH/Com-ex(97)39 on means of proof and evidence for readmission, SCH/Com-ex(98)10 on cooperation in returning foreign nationals by air and SCH/Com-ex(98)18 on documents required for expulsion. 3 Commission Communication, COM(2001) 672. 4 Commission Communication, COM(2002) 175. 5 Commission Communication, COM(2002) 564. 6 Council doc. 14673/02 of 25 November 2002. 7 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). 8 Council Decision 2004/573/EC (OJ 2004 L 261/28) on joint flights for removal.

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cases of transit for removal by air9 and the possibility of mutual recognition of expulsion decisions.10 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-bans, detention etc. Comparing the Commission proposal11 with the final text of the Directive after nearly 5 three years of discussions, it results that most of the key features of the proposal could be maintained in substance (sometimes with certain cuts, in particular as regards the proposed two-step procedure and rights pending return) and that only one objective, namely the proposed establishment of common rules addressing situations where a third-country national who is the subject of a removal order or return decision issued by a first Member State is apprehended in the territory of a second Member State, including a ‘Dublin-like’ system for illegally staying persons could not be achieved.

3. Negotiation phase (2006–2008) 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. Germany, which took over the Council Presidency in January 2007, had been particularly sceptical vis-à-vis the proposal from the beginning. After taking over the Council Presidency, Germany suspended the discussion at working group level and formulated some general questions for political discussion at SCIFA12 with a view of obtaining further steer for discussion. The German position paper13 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 (PPE-DE). 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. 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, in particular the political linkage which had been made by the EP between the Return Directive and the Return Fund at the occasion of the adoption of the Return Fund14 in December 2006; pressure exercised by the EP on Council in the context of the final negotiations of the Visa Information System (VIS) Regulation in spring 2007; the scheduling of a vote in the EPs Civil Liberties committee (LIBE) on a draft report on the Return Directive and 9

Directive 2003/110/EC (OJ 2003 L 321/26) on assistance in cases of transit for removal by air. Directive 2001/40/EC (OJ 2001 L 149/34) on mutual recognition of expulsion decisions. 11 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. 12 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. 13 Council doc. 6624/07 of 28 February 2008. 14 Decision No 575/2007/EC (OJ 2007 L 144/45) establishing the European Return Fund for the period 2008 to 2013. 10

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last but not least 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. 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 lively 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 in trilogues on 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.17 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 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’.18 This tide of criticism also impressed politicians throughout Europe and provoked strong statements in either direction. 14 The Council of 9 December 2008 formally approved all the amendments contained in 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 13

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Council doc. 15566/07 of 7 December 2007. 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. 11–25. 18 Lutz, The Negotiations on the Return Directive, p. 73–80. 16

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in accordance with the respective Protocols annexed to the Treaties. Belgium abstained from the vote. The Directive entered into force on 13 January 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 or legal reasons does not imply that the Directive stops applying, it may, however, result in an obligation on Member States to suspend the legal effects of a return decision19 (see below Article 3 MN 7a). 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 (before Brexit) 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 Ireland; plus Norway, Iceland, Switzerland and Liechtenstein. The above mentioned ‘hybrid’ approach was also followed by the Commission when it presented its proposal for a recast of the Return Directive20 in 2018. The September 2020 proposal21 to create a border procedure 19

ECJ, Gnandi, C-181/16, EU:C:2018:465, para 62. Commission Proposal, COM(2018) 634. 21 Commission Proposal, COM(2020) 611. 20

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for carrying out return within the context of the proposed Asylum Procedures Regulation was, however, not labelled as Schengen relevant. This raises questions of legal consistency. 19 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 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)22. The fundamental rights and principles recognized in the CFR are referred to in recital 24. 20 Issues not covered and remaining gaps: The Directive neither harmonises the preconditions for the ending of legal stay (such as harmonised public order reasons which may lead to expulsion decisions in Member States) nor does it harmonise the rules for regularisation (see below Art 14 MN 14). It does not provide for a binding system for mutual recognition of return decisions (see below Article 6 MN 23) and it does not provide for a ‘Dublin-like’ system for irregular migrants, allowing passing back of returnees from a second to a first Member State.23 Other issues which are not harmonised by the Directive are apprehension practices including firewall provisions24 (see below Art 6 MN 9) and rights of those irregular migrants whose presence remains undetected by the authorities and who are therefore not yet subject of return procedures.

IV. Application of the Directive (2008–2021) and proposed amendments 21

On 28 March 2014, the Commission published its first application report,25 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. According to the Commission, experience confirmed 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 An exhaustive overview of the use (and non-use) of relevant international law instruments by the ECJ in its Return Directive related jurisprudence is given by: Molnár, ‘The Case-Law of the EU Court of Justice on the Return Directive and the Role of International Human Rights Law: ‘With or Without You’?’, in: Bruno/Palombino/Di Stefano (eds), Migration Issues before International Courts and Tribunals (CNR edizioni, 2019), p. 435–460. 23 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. 24 Lutz, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 15. 25 Commission Communication, COM(2014) 199.

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The 2014 application report was based – amongst others – on a study carried out by an external contractor (Matrix) for the Commission.26 In spite of the obligation under Article 19 to report every three years, the Commission did not issue a further application report after 2014. Reacting to this lack of Commission action, the EP issued, in June 2020, its own evaluation study on the implementation of the Return Directive in ten selected Member States27, followed by a European Parliament resolution of 17 December 2020 on the implementation of the Return Directive.28 Another source for gaining knowledge about Member States practices in the field of return are return related Schengen Evaluation reports. Between 2015 and 2019, evaluation visits were carried out in 27 States. Based on these evaluations the Commission concluded29 that the return systems of the Member States are in general compliant with the Return Directive. No serious deficiencies were identified. However, in some Member States practical and normative obstacles exist which negatively affect the effective enforcement of returns. In 2015 the Commission adopted a ‘Return Handbook’, containing common guidelines, best practice and recommendations to be used by Member States’ competent authorities when carrying out return-related activities. It bases itself to a large extent on the work conducted by Member States and the Commission within the ‘Contact Group Return Directive’ from 2009 onwards and regroups in a systematic form the findings achieved within this forum, complemented by supplementary guidance on newly arising issues and ECJ case law. The Handbook was revised in 2017 and constitutes – legally speaking – an annex to a legally non-binding Commission Recommendation (C(2017) 6505 final). Thanks to the fact that its content is largely based on consensus reached in Contact Group discussions, it enjoys de facto a certain authority and is widely used, for example in the context of Schengen evaluations. However, in Westerwaldkreis30, the Court diverged from a recommendation set out in the Return Handbook and underlined that an unequivocally clear provision of Directive 2008/115 cannot be altered by a Commission recommendation which has no binding force (see below Art 11 MN 6). From 2015 onwards, policy priorities in the field of return moved from the regulatory to the enforcement side31. Based on the fact that return rates remained consistently low and that every year between 400 000 and 500 000 return decisions were issued and only one third of them led to return32 the perceived challenge of the EU’s return policy was not to issue a return decision, but to enforce it. In February 2021 the Commission reported33 that out of those that need to be returned, only one third effectively return, and of those less than 30 % do so voluntarily. The focus therefore was on finding tools for facilitating the identification of returnees and obtaining the necessary documentation from non-EU authorities. These priorities were clearly emphasised by the 2017 Renewed Action Plan on Return,34 as well as the 2017 Commission Recommendation

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Matrix, Evaluation on the application of the Return Directive. Eisele/Majcher/Provera, Directive 2008/115/EC – European Implementation Assessment (European Parliamentary Research Service, June 2020), available at: www.europarl.europa.eu/RegData/etudes/STUD/ 2020/642840/EPRS_STU(2020)642840_EN.pdf [last accessed June 2021]. 28 EP Resolution 2019/2208(INI). 29 Commission Staff Working Document, SWD(2020) 327, p. 10–14. 30 ECJ, Westerwaldkreis, C-546/19, EU:C:2021:432, para 47. 31 Reference to discourse of crisis and threat by Cornelisse/Moraru, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 21. 32 Commission Staff Working Document, SWD(2020) 207, p. 36. 33 Commission Communication, COM(2021) 56, p. 3. 34 Commission Communication, COM(2017) 200. 27

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on making returns more effective35. Incentivising countries of return to better cooperate with the EU also became a policy priority and incentives under discussion36 drew on all relevant policy fields, including home affairs (offering visa facilitation and opportunities for legal migration), neighbourhood policy, trade agreements and trade preferences as well as foreign policy, security and development assistance. At the same time increased emphasis was given to return support and operational return activities of the European Border and Coast Guard Agency in both voluntary and forced return: Articles 48–53 of Frontex Regulation (EU) 2019/1896 now provide for elaborate rules on assistance by the Agency in the area of return. 23b In September 2018 the Commission proposed a recast of the Return Directive.37 The proposed amendments cover in particular: criteria for determining a risk of absconding; obligation of the returnee to cooperate; obligation on Member States to set up national return management systems; automatic suspensive effect of first instance appeal if principle of non-refoulement is at stake; threat to public order as reason for detention; obligation on Member States to set the maximum period of initial detention not below three months and a simplified border procedure for a specific category of returnees, namely third-country nationals whose application for international protection under Article 41 of the proposed Asylum Procedures Regulation had been rejected. The latter element (return border procedure) was re-proposed in September 2020 as part of the amended proposal for an Asylum Procedures Regulation38 (see above MN 18). At the moment of finalisation of this third edition (summer 2021), it was not predictable39 if and in what form the above mentioned proposals would be adopted.

V. Overview – ECJ Case law related to Return Directive From 2009 onwards, national courts submitted an important number of preliminary references related to the interpretation of the Return Directive to the ECJ. Of all the EU immigration instruments, the Return Directive has been the object of the highest number of preliminary judgments40. The questions related to varying issues such as detention; the relation between Return Directive and the asylum acquis; entry bans; voluntary departure; the best interest of the child; the right to an effective remedy and the right to be heard in return and detention related procedures. 25 A significant number of preliminary questions dealt with an issue not directly addressed by the Return Directive, namely the possibility for Member States to criminalise irregular entry and/or stay under national law. Several judgments 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.41 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 24

35

Commission Recommendation, COM(2017) 1600. Council conclusions of 18 October 2018, EUCO 13/18. 37 Commission Proposal, COM(2018) 634. 38 Commission Proposal, COM(2020) 611. 39 Council agreed on a partial general approach in June 2019 (Council doc. 10144/19 of 13 June 2019); the EPs LIBE Committee issued a draft report in January 2019 (European Parliament doc. PE632.950 of 16 January 2019). Views between both institutions differ significantly. 40 Cornelisse/Moraru, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 20. 41 ECJ, El Dridi, C-61/11, EU:C:2011:268. 36

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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 unless the return procedure has been applied, coercive measures have not enabled removal and the returnee has no justified ground for non-return.42 The judgment in case C-47/15 (Affum) applied the same logic in relation to illegal entry.43 The judgment in case C430/11 (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 its conduct does not delay return.44 A number of ECJ judgments also dealt with criminalisation of entry-ban related offences (see below Article 11 MN 29). List of cases (with keywords and name of Member State concerned in brackets): 26 – ECJ, Kadzoev, C-357/09, EU:C:2009:741 (detention – reasons for prolongation; link to asylum related detention – BG) – ECJ, El Dridi, C-61/11, EU:C:2011:268 (criminalisation – penalisation of illegal stay by imprisonment – IT) – ECJ, Achughbabian, C-329/11, EU:C:2011:807 (criminalisation – penalisation of illegal stay by imprisonment – FR) – ECJ, Sagor, C-430/11, EU:C:2012:777 (criminalisation – penalisation of illegal stay by fine; expulsion order; house arrest – IT) – ECJ, Mbaye, C-522/11, EU:C:2013:190 (criminalisation of illegal stay – IT) – ECJ, Arslan, C-534/11, EU:C:2013:343 (return vs asylum related detention – CZ) – ECJ, Filev and Osmani, C-297/12, EU:C:2013:569 (entry bans – need to determine exofficio length; historic entry bans – DE) – ECJ, Mukarubega, C-166/13, EU:C:2014: 2336 (right to be heard before issuing a return decision – FR) – ECJ, Da Silva, C-189/13, EU:C:2014:2043 (criminalisation – illegal entry – FR) – ECJ, Boudjlida, C-249/13, EU:C:2014:2431 (right to be heard before issuing a return decision – FR) – ECJ, G. and R., C-383/13, EU:C:2013:533 (right to be heard before prolonging detention – NL) – ECJ, Bero, C-473/13, and Bouzalmate, C-514/13, EU:C:2014:2095 (detention conditions – obligation to provide for specialised facilities – DE) – ECJ, Pham, C-474/13, EU:C:2014:2096 (detention conditions – not at disposal of detainee – DE) – ECJ, Zh. and O., C-554/13, EU:C:2015:377 (criteria for determining voluntary departure period – NL) – ECJ, Abdida, C-562/13, EU:C:2014:2453 (rights pending postponed return – BE) – ECJ, Zaizoune, C-38/14, EU:C:2015:260 (obligation to issue return decision – ES) – ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320 (detention – reasons for prolongation and judicial supervision – BG) – ECJ, Skerdjan Celaj, C-290/14, EU:C2015:640 (criminalisation of non-compliance with an entry ban – IT) – ECJ, Affum, C-47/15, EU:C:2016:408 (definition of illegal stay, scope of Article 2(2) (a), criminalisation of illegal entry – FR) 42

ECJ, Achughbabian, C-329/11, EU:C:2011:807. ECJ, Affum, C-47/15, EU:C:2016:408, para 63. 44 ECJ, Sagor, C-430/11, EU:C:2012:777. 43

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– ECJ, J.N., C-601/15 PPU, EU:C:2016:84 (relation asylum and return procedures; enforcement of return decision following a rejection of an application for international protection – NL) – ECJ, K.A., C-82/16, EU:C:2017:590 (relation entry ban and family reunification – BE) – ECJ, Gnandi, C-181/16, EU:C:2018:465 (relation return and asylum procedures – BE) – ECJ, Petrea, C-184/16, EU:C:2017:684 (possible procedural parallelism of return under Return Directive and Free Movement Directive – EL) – ECJ, Ouhrami, C-225/16, EU:C:2017:590 (starting point for calculation of duration of entry ban – NL) – ECJ, Belastingdienst/Toeslagen, C-175/17, EU:C:2018:776 and Judgment of 26 September 2018, X and Y, C-180/17, EU:C:2018:775 (right to suspensive effect of appeal limited to action at first instance – NL) – ECJ, E, C-240/17, EU:C:2018:8 (effect of ongoing art 25 SIC consultation on return decision and entry ban – FI) – ECJ, Arib, C-444/17, EU:C:2019:220 (reintroduction of internal border control, non applicability of Article (2)(2)(a) – FR) – ECJ, C and others, C-269/18 PPU, EU:C:2018:544 (detention in case of a right to remain during appeal procedure – NL) – ECJ, E.P., C-380/18, EU:C:2019:1071 (SBC+RD, illegal stay – public order; – NL) – ECJ, JZ, C-806/18, EU:C:2020:724 (criminalisation – entry ban – NL) – ECJ, Commission v. Hungary, C-808/18, EU:C:2020:1029 (Return to transit zone in HU) – ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:511 (detention conditions, ordinary prison accommodation for aggressive detainees – DE) – ECJ, CPAS de Liège, C-233/19, EU:C:2020:757 (suspensive effect of appeal, health reasons – BE) – ECJ, CPAS de Seraing, C-402/19, EU:C:2020:759 (suspensive effect of appeal, coverage of basic needs for father/carer of seriously sick returnee – BE) – ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9 (return/removal of minors; need to determine in advance adequate reception facilities – NL) – ECJ, Westerwaldkreis, C-546/19, EU:C:2021:432 (entry ban for non-migration purposes – DE) – ECJ, Subdelegación del Gobierno en Toledo, C-568/19, EU:C:2020:807 (Zaizoune follow-up; direct effect of return Directive to detriment of individual – ES) – ECJ, M and others, C-673/19, EU:C:2021:127 (detention for removal to other MS – NL) – ECJ, Ordre des barreaux francophones and germanophone and others, C-718/19, EU: C:2021:505 (Parallelism free movement/return in the field of voluntary departure and detention– BE) – ECJ, Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU and C-925/19 PPU, EU:C:2020:367 (detention in transit centres – HU) – ECJ, Belgian State, C-112/20, ECLI:EU:C:2021:197 (Articles 5+13, best interest of EU child when returning parents – BE) – ECJ (pending case), Subdelegación del Gobierno en Pontevedra, C-409/20 (Zaizoune follow- – ES) – ECJ (pending case), Landkreis Gifhorn, C-519/20 (use of Article 18 – emergency situations – DE) – ECJ, CPAS de Liège, C-641/20, EU:C:2021:197:374 (rights pending an appeal against return decision – BE) 702

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– ECJ (pending cases), Staatssecretaris van Justitie en Veiligheid, C-704/20 PPU and C-39/21 PPU (detention, ex-officio review – NL) – ECJ (pending case), Staatssecretaris van Justitie en Veiligheid, C-69/21, (postponement of removal, medical reasons – NL) – ECJ (pending case), Politsei- ja Piirivalveamet, C-241/21, (detention for public order reasons – EE)

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.

General remarks .............................................................................................. Drafting history ............................................................................................... Scope of the Directive – Article 2(1).......................................................... Possible exclusions from the scope of the Directive – Article 2(2)..... 1. Article 2(2)(a) – border and border-like cases .................................... a) Subject to a refusal of entry in accordance with Article 14 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)........................................................................................................

mn. 1 2 3 5 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.

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II. Drafting history 2

Article 2 had been significantly modified during the negotiation process.45 In particular 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 proposal46 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 14 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 illegally on the territory of a Member State. 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 application, illegal entry, etc. (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 (see below Article 3 MN 5–9a). 3

IV. Possible exclusions from the scope of the Directive – Article 2(2) 5

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 effects47. 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 45

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. 47 ECJ, Filev and Osmani, C-297/12, EU:C:2013:569, para 53. 46

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indirect statement is sufficient. This question is of high practical relevance, since most Member States make use of the derogations,48 without always specifying this sufficiently clearly in their implementing legislation. In case of doubt about the use of the derogation by a Member State, the ECJ has shown an inclination to assume that the derogation was not used.49 Nothing prevents Member States from making partial use of the derogations, 6 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 (e.g.: Article 7 on voluntary departure or Article 11 on entry bans) instead of not applying the Directive as a whole. Member States can decide to make use of the derogation at a later stage. This must, 7 however, not have disadvantageous consequences with regard to those persons who were already able to avail themselves of the effects of the Directive.50 The form, content and legal remedies available against return related decisions 8 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.

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. It is therefore irrelevant for the scope of application of the Directive. Article 2(2)(a) can therefore not be used in respect of a third-country national who was apprehended in the immediate vicinity of an internal border of a Member State where border control had been temporarily reintroduced51. 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 14 of the Schengen 11 Borders Code (border cases). This exemption is clear and leaves little margin for 48

For a detailed overview see Matrix, Evaluation on the application of the Return Directive, section 2.8. ECJ, Westerwaldkreis, C-546/19, EU:C:2021:432, paras 39–40. 50 ECJ, Filev and Osmani, C-297/12, EU:C:2013:569, paras 53–54. 51 ECJ, Arib, C-444/17, EU:C:2019:220. 49

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interpretation. It directly refers to third-country nationals who have been refused entry in accordance with Article 14 of the Schengen Borders Code. Refusals of entry according to Article 14 Schengen Borders Code (SBC) cover anybody who does not fulfil the entry conditions in accordance with Article 6(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 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 a direct temporal and spatial link52 between the act of irregular border crossing and the subsequent apprehension or interception is required. Criteria based on time-limits (‘within 48/72 hours’) or geographical criteria (‘within a border region’) alone cannot ensure that exclusions are limited to apprehensions connected to an irregular border crossing. 13 It may be legitimate53 to qualify the following categories of persons as covered by the definition, because there is still such direct connection to the act of irregular border 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 border54 (NB: Both the wording of Article 2(2)(a) and Article 14 SBC clearly refer to ‘external borders’). Article 2(2)(a) may only be applied to persons who enter the territory and not to those who seek to leave it.55 12

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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:56 Irregular entrants who had been apprehended at the external border and subsequently obtained a right to stay/right to remain 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 hospitalisa-

52

ECJ, Affum, C-47/15, EU:C:2016:408, para 72. Commission, Return Handbook, p. 14–15. 54 ECJ, Affum, C-47/15, EU:C:2016:408, para 69. 55 ECJ, Affum, C-47/15, EU:C:2016:408, para 71. 56 Commission, Return Handbook, p. 15. 53

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tion 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 15 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. In Westerwaldkreis57 the ECJ underlined that the existence of this derogation was evidence of the will of the legislator to cover, as a general rule, also those illegally staying third-country nationals who are subject of criminal law sanctions. The use of the derogation 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. The criminal law cases envisaged by this provision are those typically considered as 16 crime in the national legal orders of Member States. In Filev and Osmani58 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.59 Extradition procedures are not necessarily related to return procedures. Extradition 17 is defined60 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.

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. In K.A.61, the ECJ concluded that third-country nationals benefitting from a right of residence derived from Article 20 TFEU are also excluded from the application of the Return Directive. In Petrea62, the ECJ clarified that Free Movement Directive 2004/38/EC and Directive 18a 2008/115 do not preclude a decision to return an EU citizen from being adopted by the same authorities and according to the same procedure as a decision to return a thirdcountry national staying illegally referred to in Article 6(1) of Directive 2008/115, provided that the more favourable provisions of Directive 2004/38 are respected. In Ordre des barreaux francophones and germanophone and others63, the ECJ further 57

ECJ, Westerwaldkreis, C-546/19, EU:C:2021:432, para 46. ECJ, Filev and Osmani, C-297/12, EU:C:2013:569, paras 50–51. 59 ECJ, Achughbabian, C-329/11, EU:C:2011:807, para 41. 60 See Article 1 of the 1957 Council of Europe ‘European Convention on Extradition’, CETS No 024. 61 ECJ, K.A., C-82/16, ECLI:EU:C:2017:590, para 89. 62 ECJ, Petrea, C-184/16, EU:C:2017:684, para 56. 63 ECJ, Ordre des barreaux francophones and germanophone and others, C-718/19, EU:C:2021:505. 58

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elaborated on the extent to which Member States were free to apply – under national law – provisions mirroring the Return Directive in the context of expulsion of EU citizens under the Free Movement Directive. The Court concluded that Article 7(3) of the Return Directive (obligations pending voluntary departure) could be applied by analogy, subject to respect of all safeguards enshrined in the Free Movement Directive. The Court also found that the maximum deadlines for detention under Article 15 could not be applied, since removal of an EU citizen to another Member State is by its nature likely to be subject to fewer administrative obstacles and therefore likely to take place within a shorter period of time than removal of a third-country national to a third country. 19 Third-country nationals whose claim to be family member of a Union citizen 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.64 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;

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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; 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 ......................................................................................

mn. 1 2 3 3 5 10 14 18 21 22 24 25

I. General remarks Article 3 defines the most important terms used in the Directive. By providing 1 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 Compared to the Commission proposal the final list of definitions in Article 3 is 2 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.65 The definition of ‘removal order’ was deleted by Council at an early stage of the negotiations.66

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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. 66

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III. Definitions 1. Third-country national 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 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. 4 Third-country nationals whose claim to be family member of a Union citizen 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. (see above Article 2 MN 19). 3

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) without such presence being subject to a condition requiring a minimum duration or an intention to remain on that territory.67 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’. Article 3(2) refers to the situation in a specific Member State. A third-country national may be considered as illegally staying in one Member State even though he/she holds a valid residence permit in another Member State68. 6 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). 7 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. Any third-country national who is present on the territory of a Member State without fulfilling the conditions for entry, stay or residence is, by virtue of that fact alone, staying there illegally69. A third-country national is not excluded from the scope of Directive 2008/115 merely because he/she is in a situation of ‘mere transit’70. 7a In practice it may be difficult to draw the exact borderline between legal and illegal stay. This was most prominently demonstrated in the Gnandi case in which the ECJ considered the stay of an applicant for international protection who was covered by the right to remain on the territory under Article 7(1) of the former Asylum Procedures 5

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ECJ, ECJ, 69 ECJ, 70 ECJ, 68

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Directive 2005/85/EC as ‘legal stay’, whilst it considered a stay based on an authorisation to remain on the territory after the issuance of a negative decision until resolution of an appeal as ‘illegal stay’. The latter requires Member States to adopt a return decision, all legal effects of which must, however, be suspended for as long as the person is allowed to remain waiting for the outcome of the appeal71. This legal construction of a return decision deprived of any legal effects (‘decisio nuda’) raises conceptual questions of legal clarity72. Difficulties in drawing the borderline between legal and illegal stay may also arise when assessing national toleration statuses or long-term postponement of removal (see below Article 14 MN 12–14a). Practical examples:73 The following categories of third-country nationals may, for 8 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 until rejection of their application at first instance (but not afterwards, irrespective of an authorisation to remain pending the outcome of an appeal)74; persons enjoying a formal toleration status in a Member State (provided such status is considered under national law as ‘legal stay’); holders of a fraudulently acquired permit for as long as the permit has not been revoked or withdrawn; third-country national family members of a dependent Union citizen deriving a right to stay from Article 20 TFEU, even if they hold no other right of residence75. 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. Third-country nationals to whom the return procedure established by the Return 9 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 Achughbabian76 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). 71

ECJ, Gnandi, C-181/16, EU:C:2018:465, para 62. Legal soundness of this judgment is questioned by Cornelisse, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 47. 73 Commission, Return Handbook, p. 7. 74 ECJ, Gnandi, C-181/16, EU:C:2018:465, para 59 and C and others, C-269/18 PPU, EU:C:2018:544, para 47. 75 ECJ, K.A., C-82/16, EU:C:2017:590, para 89. 76 ECJ, Achughbabian, C-329/11, EU:C:2011:807, para 48. 72

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Third-country nationals who are illegally staying in the territory of a Member State and to whom, according to ECJ case law, no return decision can be issued for legal reasons (see below Article 6 MN 32a) nevertheless continue to be ‘illegally staying’ and remain covered by the scope of the Return Directive and its procedural and material safeguards.

3. Return This definition clarifies that, for the purpose of the Return Directive, the notion of ‘return’ only covers the process of going back77 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)) and remain covered by national law78. 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(3) 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: The Commission Return Handbook79 states that 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. Following the ECJ judgments in cases Országos (C-924/19 and C-925/19) and M and others (C-673/ 19) which set out an obligation to specify the country of return, it is questionable whether this statement still holds true (see below MN 20a). 10

4. Return decision 14

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 77 Grütters, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 418, makes the valid point that the term ‘going back’ does not fit for illegally staying third-country nationals (minors) who were born on EU territory. 78 ECJ, M and others, C-673/19, EU:C:2021:127, para 45. 79 Commission, Return Handbook, p. 9.

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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 have to contain further elements, such as an entry ban, a 15 voluntary departure period or the designation of the country of return (see below MN 20a). 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 16 or administrative) in which a return decision may be adopted. In Sagor80 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 17 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.

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). In Commission v. Hungary81, the ECJ qualified the forcible deportation beyond a border fence erected in its territory to a narrow strip of land still on its territory, but devoid of any infrastructure, from which a third-country national has no choice other than to go to third-country territory in order to be housed and fed, as equivalent to removal. For reasons related to its drafting history (see below Article 6 MN 2), the Directive 19 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 happen to an unspecified destination but only to a specified country of return. 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 mention80 81

ECJ, Sagor, C-430/11, EU:C:2012:777, para 39. ECJ, Commission v. Hungary, C-808/18, EU:C:2020:1029, paras 255–257.

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ing the country to which the person will be removed in the case of non-compliance with the obligation to return, in the combined return and removal decision (one-step procedure), or through another decision or act.82 20a In two recent judgments83 the ECJ found that issuing a return decision would be inconceivable, in the light of Article 3(3), unless a destination, which must be one of the countries referred to in para 3, is identified. One may read this judgment in a rigid way, implying that from now on a specific third country (or a number of specified third countries) must always be identified in each return decision and that otherwise issuance of a return decision would be illegal. One may, however, also argue to the contrary and accept that a reference to ‘any third country to which the third-country national voluntarily decides to return’ could still be a sufficient identification, in particular in cases in which voluntary departure is likely to happen and non-refoulement considerations are unlikely to be relevant (e.g. in case of overstay of visa free third-country nationals), since in case of non-compliance and subsequent removal, the destination would have to be specified anyhow in a subsequent removal order (or amended return decision) and all related safeguards would phase in at that moment. A judgment of the ECtHR84 from 2019 in which the Court qualified voluntary compliance with an obligation to return as not being voluntary in the sense of being a free choice and therefore engaging States responsibility, provides arguments for following the above mentioned rigid approach, at least in all those cases in which non-refoulement considerations may not be discarded from the outset.

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 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. An entry ban is intended to supplement a return decision by prohibiting the person concerned, for a specified period of time following his return – the term ‘return’ being understood, in accordance with the definition in Article 3(3), to mean after leaving the territory of the Member States – from again entering and staying in that territory. Accordingly, in order for an entry ban to come into effect, the person concerned must previously have left that territory.85

7. Risk of absconding86 22

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 82

Commission, Return Handbook, p. 10. ECJ, Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paras 114–123 and ECJ, M and others, C-673/19, EU:C:2021:127, para 39. 84 ECtHR, Judgment of 14 November 2019, No 25244/18, N.A. v. Finland, paras 58–60. 85 ECJ, Ouhrami, C-225/16, EU:C:2017:590, para 45. See also ECJ, Westerwaldkreis, C-546/19, EU: C:2021:432, para 52. 86 A helpful analysis of national practices and relevant case law on the concept of risk of absconding is provided by: Moraru, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 125–148. 83

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legislation. Frequently used criteria in national law are:87 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. The above mentioned national lists of criteria should be taken into account as an 23 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. The proposed recast of the Return Directive88 complements the definition of risk of 23a absconding with an enumeration of 16 criteria to be included in national law. Four of these criteria (such as use of false documents, refusal to provide fingerprints, violent or fraudulent opposition, non-compliance with entry ban) enjoy specific status in so far as their fulfilment creates a rebuttable presumption of the existence of a risk of absconding. The proposal also establishes an express obligation to cooperate (Article 7) and qualifies non-fulfilment of this obligation as one of the criteria for establishing a risk of absconding (Article 6 (1)(j)).

8. Voluntary departure Voluntary departure is a key concept of the Directive since, in principle, it should be 24 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.

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 Asylum 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.89 Matrix, Evaluation on the application of the Return Directive, section 2.20. on ‘risk of absconding’. Commission Proposal, COM(2018) 634, Article 6. 89 Commission, Return Handbook, p. 12. 87 88

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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 mn. 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 1

Article 4 addresses two separate issues: Article 4(1) to (3) emphasise that the Directive is without prejudice to more favourable provisions to be found in relevant EU legislation, 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 2

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

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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. Article 4(4) was added during trilogue negotiations as part of a compromise deal 3 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 negotiations90 and an additional express obligation on Member States to always respect the principle of non-refoulement was added.

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 thirdcountries. 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. 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. 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.91 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, 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 does not undermine the Directive and may be carried out under national law92 (see below Article 6 MN 14). 90

Lutz, The Negotiations on the Return Directive, p. 33. ECJ, El Dridi, C-61/11, EU:C:2011:268, para 33: ‘… Directive 2008/115 …. does not however allow those States to apply stricter standards in the area that it governs.’ 92 ECJ, M and others, C-673/19, EU:C:2021:127, para 45. 91

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An administrative fine under national law for irregular stay cannot substitute the obligation of Member States to issue a return decision93, since this would undermine Article 6(1) and 8(1), read in conjunction with Article 4(2) and (3).94 However, for as long as national legislation requires, contrary to the Directive, to impose a fine instead of a removal order, Member States are bound to apply these national rules and cannot issue a removal order since a direct application of a Directive is not possible to the detriment of the person concerned.95 10 The Directive (Article 6(4)) expressly allows Member States which do not wish to return an illegally staying third-country national 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 without granting a permit to stay) as a ‘more favourable measure’ since this would undermine the harmonizing value of the Directive. 11 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.96 9

2. Minimum safeguards for border and border-like cases Article 4(4) only applies to third-country nationals who have been excluded by a 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). 13 Other safeguards, such as those under the EU asylum acquis (in particular on access 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. The prohibition of ‘collective expulsions’ within the meaning of Article 4 of Protocol 4 to the ECHR may also be relevant in the context of border related turn back decisions97. 14 As regards persons who are refused entry at a land border and who are still physically 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 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 12

93 This problem was encountered in Spain and gave rise to a number of preliminary references. For detailed explanations see: Gortazar Rotaeche, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 70–81. 94 ECJ, Zaizoune, C-38/14, EU:C2015:260. 95 ECJ, Subdelegación del Gobierno en Toledo, C-568/19, EU:C:2020:807. 96 Commission, Return Handbook, p. 17. 97 A helpful overview of relevant ECtHR case law on that aspect is given by: Leboeuf/Carlier, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 455–473.

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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 ..........................................................................................................

mn. 1 2 3

I. General remarks With its emphasis on four particularly relevant rights, Article 5 expressly reinforces the 1 Directive’s general objective to apply the Directive in accordance with fundamental rights and international law obligations, as set out in Article 1. It follows that, in the light of the objective which it pursues, Article 5 of the directive cannot be interpreted restrictively.98 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. However, recent ECJ case gave the general principles enumerated in Article 5 an important and self-standing character, complementing the wording of the Articles of the Directive and sometimes even going beyond that (see above Article 3 MN 20a and below Article 6 MN 32a, Article 10 MN 10a, Article 14 MN 9).

II. Drafting history Article 5 was already contained in the Commission’s proposal but it was reworded 2 and upgraded during the negotiating process due to pressure from the EP.99

III. Substance In legal terms all Member States are already directly bound by the relevant interna- 3 tional instruments to guarantee the four rights enumerated in Article 5 (see above 98 99

ECJ, Belgian State, C-112/20, EU:C:2021:197, para 35. Lutz, The Negotiations on the Return Directive, p. 40–42.

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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. 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). Member State must, at all stages of the procedure, necessarily take into account the best interests of the child. Article 24(2) of the Charter read in conjunction with Article 51(1) of the Charter, affirms the fundamental nature of the rights of the child, including in the context of the return of third-country nationals staying illegally in a Member State.100 Member States are required to take due account of the best interests of the child before adopting a return decision even where the person to whom that decision is addressed is not a minor but his or her father.101 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). In K.A.102 the ECJ found that Article 5 must be interpreted as precluding a national practice pursuant to which a return decision is adopted without any account being taken of the details of family life, unless such details could have been provided at an earlier procedural stage. 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,103 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 100

ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9, paras 44–45 and 58. ECJ, Belgian State, C-112/20, EU:C:2021:197. 102 ECJ, K.A., C-82/16, EU:C:2017:590, para 107. 103 ECJ, Abdida, C-562/13, EU:C:2014:2453, para 49 ; see also ECJ, CPAS de Seraing, C-402/19, ECLI: EU:C:2020:759. 101

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they still cannot be returned to a place at which they may be subject to inhumane or degrading treatment. If a country of return cannot be identified for legal reasons including respect for the non-refoulement principle (see above Article 3 MN 20a), this leads to a legal inability of a Member State to issue a return decision.104

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 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.

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mn. I. General remarks .............................................................................................. 1 II. Drafting history ............................................................................................... 2 III. Obligation to issue return decision............................................................. 3 1. General rule – Article 6(1) ....................................................................... 3 2. Exceptions to the general rule ................................................................. 10 a) Holding a right to stay in another Member State – Article 6(2) 10 b) Existing bilateral agreements between Member States – Article 6(3).............................................................................................. 16 c) Granting a right to stay – Article 6(4) ............................................. 20 d) Pending procedure for renewing a permit – Article 6(5) ............ 22 e) Application of Directive 2001/40/EC ............................................... 23 f) Application of Dublin rules ........................................................... 25–31 g) Special rules on readmission between Member States in cases of intra-EU mobility............................................................................. 32 h) Legal obstacles for issuing return decision...................................... 32a IV. Combined decisions – Article 6(6) ............................................................. 33

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

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 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).105

III. Obligation to issue return decision 1. General rule – Article 6(1) 3

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 105

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Lutz, The Negotiations on the Return Directive, p. 49.

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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 (see below Article 14 MN 3–10).106 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). 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 ban107, 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 refrain108 from issuing a return decision. 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). 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 106

See answer of the Commission of 7 April 2010 to EP parliamentary question P-1687/10. This issue was specifically addressed by Article 13(2) of the proposed recast of the Return Directive COM(2018) 634. 108 In the Return Handbook, p. 22, the Commission seeks to limit the cases in which return decisions could be issued upon exit to exceptional cases in which a significant overstay is detected upon exit control without, however, indicating the legal basis for that derogation to Article 6(1). 107

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interest of the child (expressly highlighted in recital 22) as well as other relevant fundamental rights recognised by the CFR. In its Return Handbook109 the Commission makes express reference to the 2012 Fundamental Rights Agency document110 ‘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.

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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 adopted111. 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.112 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. 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 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 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. The upcoming new VIS Regulation (expected to be adopted in 2021) will offer a new tool for the exchange of data between Member States on existing long stay visas and residence permits. As a general rule no removal to other Member States: If a third-country national 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 109

Commission, Return Handbook, pp. 21–22. 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. 111 ECJ, M and others, C-673/19, EU:C:2021:127, paras 35–37. 112 Commission, Return Handbook, p. 25. 110

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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 January 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). The procedures for such removal to other Member States including the possible use of detention for that purpose remain governed by national law113. 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. Nothing in the Return Directive prevents Member States from issuing a purely national entry ban in these cases. 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 negotiations114 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. Given the large number of existing bilateral agreements between Member States115, 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 January 2009. Existing agreements which were renegotiated or renewed after 13 January 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). The Directive does not expressly interdict the subsequent use of bilateral agreements 18 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 Handbook116 to refrain from applying such practices. The ECJ clarified in Affum117 that Article 6(3) does not create a derogation from the directive’s scope. It only shifts the obligations under Article 6 to 113

ECJ, M and others, C-673/19, EU:C:2021:127, paras 45–46. Lutz, The Negotiations on the Return Directive, p. 45. 115 An indicative list of the existing bilateral readmission agreements between Member States can be found at the ‘Inventory of the Bilateral Agreements Linked to Readmission’, available at: http://www. jeanpierrecassarino.com/datasets/ra/ [last accessed in March 2021]. 116 Commission, Return Handbook, p. 28. 117 ECJ, Affum, C-47/15, EU:C:2016:408, paras 82–87. 114

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another Member State. Decisions to transfer a third-country national under Article 6(3) constitute a measure to bring illegal stay to an end. The Member State concerned must therefore adopt such decision with diligence and speedily so that he/she is transferred as soon as possible to the Member State responsible for the return procedure. 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 return to a third country and doesn’t apply in cases of mere ‘passing back’ to another Member State. 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. 20a In J.N.118 the ECJ clarified that, in certain cases, there is an obligation to suspend, rather than to withdraw a return decision. The principle that the Return Directive must be effective requires that a procedure opened under that directive, in the context of which a return decision has been adopted, can be resumed at the stage at which it was interrupted, as soon as the application for international protection which interrupted it has been rejected at first instance. 21 The ECJ confirmed119 that Article 6(4) cannot be 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). The ECJ clarified120 that this is also the case for third-country nationals in respect of whom no decision on their return to a third country can be issued due, inter alia, to the application of the principle of non-refoulement. 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,121 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. 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/EC122. 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 with the Return Directive. This would deprive Directive 2001/40/EC of any added value. A systematic and teleological interpretation suggests that a second Member State applying Directive 2001/40/EC (recognising a return decision issue by a first Member State) should not be obliged to issue a new 118

ECJ, J.N., C-601/15 PPU, EU:C:2016:84, paras 75–76. ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, paras 87–89. 120 ECJ, M and others, C-673/19, EU:C:2021:127, para 44. 121 Commission, Return Handbook, p. 29. 122 Directive 2001/40/EC (OJ 2001 L 149/34) on mutual recognition of expulsion decisions. 119

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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 Handbook123) 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 25–31 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. Detailed explanations and practical examples are provided in section 5.3. of the Commissions Return Handbook.124 g) Special rules on readmission between Member States in cases of intra-EU 32 mobility. Some Directives in the field of legal migration contain special rules125 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. h) Legal obstacles for issuing return decision. In a potentially far reaching judgment, 32a the ECJ concluded in 2021126 that it is not possible to issue a return decision to an illegally staying unaccompanied minor for whom there is not yet certainty regarding the existence of adequate reception facilities in the country of return, as prescribed by Article 10(2) (see below Article 10 MN 10a). According to the Court, issuing a return decision in such circumstances would place the returnee in a situation of great uncertainty as to his or her legal status and his or her future and such a situation would be contrary to the requirement under Article 5(a) to protect the best interests of the child at all stages of the procedure. With this judgment the Court extended the obligation under Article 10(2) to the period before issuing a return decision. In a judgment of February 2021127, the ECJ mentioned that no return decision must be issued to an illegally staying third-country 123

Commission, Return Handbook, p. 23. Commission, Return Handbook, p. 23–25. 125 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. 126 ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9. 127 ECJ, M and others, C-673/19, EU:C:2021:127, paras 38–42. 124

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national, who enjoys refugee status in another Member State, who in all likelihood could not be returned without infringing the non-refoulement principle under Article 5, last sentence. This case law deviates from the wording of the Directive which would allow step 1 (issuing of a return decision) but not step 2 (removal) in such situations and it seems to create a new ‘category’ of illegally staying third-country nationals for whom return decisions must not be issued due to legal obstacles. In a subsequent judgement of June 2021128 the ECJ took, however, a contrary view and underlined that in case of nonremovability for non-refoulement reasons, a return decision should be issued and that only removal should be postponed. It must therefore be concluded that the ECJ case law in this field is still in development.

IV. Combined decisions – Article 6(6) Article 6(6) confirms that Member States may129 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 respected130. 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 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. 33a In its proposed recast of the Return Directive131, the Commission proposed an obligation to issue a return decisions immediately after the adoption of a decision ending legal stay, including the rejection of an application for international protection. 34 As regards the accumulation of procedural rights of individuals (such as the right to 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 Mukarubega132 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. 33

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 128

ECJ, Westerwaldkreis, C-546/19, EU:C:2021:432, paras 55–59. Article 8(6) of the proposed recast of the Return Directive COM(2018) 634 contains an express obligation to combine the rejection of an application for international protection with a return decision. 130 ECJ, Ouhrami, C-225/16, EU:C:2017:590, para 50. 131 Article 8(6) of the proposed recast of the Return Directive COM(2018) 634. 132 ECJ, Mukarubega, C-166/13, EU:C:2014: 2336, para 71. 129

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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 thirdcountry national concerned. In such a case, Member States shall inform the thirdcountry 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 mn. 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

I. General remarks The detailed rules on voluntary departure set out in this provision reflect the 1 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). Some of the rules set out in Article 7 may also be applied, by analogy and under national law, in the context of expulsion of EU citizen under the Free Movement Directive (see above Article 2 MN 18a).

II. Drafting history In the Commission proposal, the relevant provisions could be found in Article 6(2). 2 During the trilogue negotiations133 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 133

Lutz, The Negotiations on the Return Directive, p. 47–48.

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elaborated Article 7, focusing exclusively on voluntary departure and to add an express definition of voluntary departure in Article 3(8). 3–4 The Commission had proposed to oblige Member States to provide for an appropriate period for voluntary departure of ‘up to four weeks’. The EP 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. In its proposed recast of the Return Directive134, the Commission came back to the idea of not prescribing any minimum period and it also proposed to extend the number of cases in which no period of voluntary departure shall be granted.

III. Voluntary departure135 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 thirdcountry national.136 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. 7 The time frame of 7–30 days constitutes a general principle. It is binding for Member 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,137 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. In those cases in which the effects of a return decision are suspended pending an authorisation to remain pending the outcome of an appeal (special situation addressed in the Gnandi judgment – see above Article 3 MN 7a), the period of voluntary departure will only start to run after the authorisation to remain has ended138. 5

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Article 9 of the proposed recast of the Return Directive COM(2018) 634. A helpful analysis of national practices in the field of voluntary departure as well as relevant ECJ case law is given by: Brandl, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 83–104. 136 According to Matrix, Evaluation on the application of the Return Directive, p. 84, only Hungary, Malta and Italy made use of this option. 137 ECJ, Boudjlida, C-249/13, EU:C:2014:2431. 138 ECJ, Gnandi, C-181/16, EU:C:2018:465, para 62. 135

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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 provision139. 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 thirdcountry 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.140 When imposing obligations under Article 7(3), Member States should take into 12 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 13 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’.

139 140

Commission, Return Handbook, p. 32. ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, para 37.

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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 be 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.’ One may argue that 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 a prognosis that the person will probably not act in compliance with the law and avoid return. This view was not shared by the ECJ in its judgment in Zh. and O.141 where it applied a very high threshold, inspired by its free movement case law, for interpreting the notion of risk to public order in the context of Article 7(4). More recent ECJ case law (see below MN 15) seems to follow a more flexible approach. 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 its judgment in Zh. and O.142, the ECJ nevertheless largely followed its case law on Free Movement Directive 2004/38/ EC. This judgment was subsequently relativized in E.P.143 where the ECJ, after referring to its existing case-law including Zh. and O., expressly opened the door to a more differentiated approach modelled along the lines of the 2017 Fahimian144 judgment, according to which the threat to public policy may be more broadly interpreted in cases not involving the right to free movement. The ECJ now seems to follow the philosophy best described by AG Pitruzzella in his opinion on Case 381/18 and 382/18145: ‘We might regard grounds of public policy as concentric circles with the EU citizen at their centre; the further we move from that centre and from the fundamental status accorded to EU citizens, the wider the discretion accorded to Member States in the assessment of grounds of public policy’ (see Thym, Legal Framework for EU Immigration Policy, MN 42a-42d). 16 It is not possible to exclude in general all illegal entrants from the possibility of obtaining a period for voluntary departure.146 Such generalising rule would be contrary to the definition of risk of absconding and the obligation to carry out a case by case assessment. 17 Member States may change the assessment of the situation at any moment (a 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. 14

141

ECJ, Zh. and O., C-554/13, EU:C:2015:377. ECJ, Zh. and O., C-554/13, EU:C:2015:377. 143 ECJ, E.P., C-380/18, EU:C:2019:1071, paras 30–31. 144 ECJ, Fahimian, C-544/15, EU:C:2017:255. 145 AG Pitruzzella, G.S. (Threat to public policy), C-381/18, EU:C:2019:608, para 49. 146 Peers et al. (eds), EU Immigration and Asylum Law, p. 496. 142

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IV. Practical implementation of Article 7 The practical implementation of Article 7 raises legal and practical problems in cases 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. An approach, expressly developed and recommended by the Commission is for transit Member States to recognise return decisions issued by the first Member State in accordance with Annex 39 to the Schengen Handbook.147 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.148 As regards transit by air, Directive 2003/110/EC149 already provides for a legal frame 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. With the application of the new SIS Return Regulation (EU) 2018/1860, information about compliance with a return decision will be more easily available for national authorities also in transit cases.

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 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. 147 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. 148 Commission, Return Handbook, p. 35. 149 Directive 2003/110/EC (OJ L 2003 L 321/26) on assistance in cases of transit for the purpose of removals by air.

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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 mn. I. General remarks .............................................................................................. 1 II. Drafting history ............................................................................................... 2 III. Removal............................................................................................................. 3 1. General rules – Article 8(1) and (4)....................................................... 3 2. One/two-step procedure – Article 8(1) and (2) .................................. 6 3. Removal by air – Article 8(5) .................................................................. 7–8 IV. Forced-return monitoring – Article 8(6)................................................... 11

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 20.1.150

III. Removal 1. General rules – Article 8(1) and (4) 3

Article 8(1) fixes an objective: ‘enforce the return decision’, which should be achieved in an effective and proportionate manner with ‘all necessary measures’, whilst leaving the concrete modalities (the ‘how’) up to Member State legislation and administrative 150 ‘20 Guidelines on forced return’ adopted by the Council of Europe Committee of Ministers on 4 May 2005; Guideline 20 – Monitoring and remedies.

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practice.151 Necessary measures include any coercive measures used including intrusive measures such as handcuffing, body searches etc. all of which must respect the principle of proportionality and necessity when used in the context of enforcing return. Member States are not free to refrain from enforcing a return decision: It follows both from the duty of sincere cooperation and the requirements of effectiveness that the obligation imposed on the Member States by Article 8(1), to carry out the removal of the thirdcountry national, must be fulfilled as soon as possible. A national practice of issuing a return decision against a minor without subsequently removing that minor until he or she reached the age of 18 was found to be incompatible with the Directive.152 If a returnee submits an application for international protection and benefits, as a consequence, from a right to remain during the first instance procedure, Member States are obliged to suspend, rather than to withdraw the enforcement of return153 (see above Article 6 MN 20a). 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 Dridi154 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 credibly155 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 (see above Article 1 MN 25). The only permitted way of deprivation of liberty in the return context is the imposition of detention for the purpose of removal under Article 15.156

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 151 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.’ 152 ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9, paras 80–82 153 ECJ, J.N., C-601/15 PPU, EU:C:2016:84, para 76. 154 ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268 , para 41. 155 E. g. by cooperating with consular authorities in view of obtaining the necessary papers for return. 156 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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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 cannot go to an unspecified destination but only to a specified country of return (see above Article 3 MN 20).

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/EC157 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. 9 Member States have a general obligation to maintain a supervising role in all cases of outsourcing of removal. This also applies in the context of collecting return operations (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. This is expressly confirmed by Article 50(3) of the Frontex Regulation (EU) 2019/1896 for Frontex coordinated or organised return operations. Article 50(3) prescribes the presence of at least one Member State representative and one forcedreturn monitor until arrival at the third country of return. 10 From a legal point of view, ‘joint return operations’ such as those coordinated by Frontex 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.

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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.158 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. 12 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: 11

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Council Decision on joint flights for removal 2004/573/EC (OJ 2004 L 261/28). Commission, Return Handbook, p. 42.

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The definition of ‘return’ in Article 3(3) refers to the ‘process’ of going back to a third-country 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 predeparture phase, the in-flight 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 – clarify159 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’). Public bodies (such as a national Ombudsman or specially assigned committees composed of members who enjoy safeguards of independence) may act as monitor. 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) ECHR160 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,161 further indications are given: There is no automatic obligation of States to finance all costs incurred by the monitor (such as staff costs), but Member States are obliged to make sure 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. As regards the possible ways of complying with the obligation to set up an effective forced-return monitoring system a variety of national approaches exist. Monitoring is often done by civil society actors (human rights NGOs), Ombudsmen or authorities with ties to a national Ministry162 . 159 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. 160 Grabenwarter, ECHR Commentary, Article 6, p. 113–127. 161 Commission, Return Handbook, p. 42–43. 162 Since 2014, every year, the Fundamental Rights Agency has been publishing annual updates of the forced return monitoring systems in EU Member State. The 2020 update is available at: https://fra.europa. eu/en/publication/2020/forced-return-monitoring-systems-2020-update [last accessed: 31 March 2021].

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Articles 50 and 51 of the Frontex Regulation (EU) 2019/1896 together with the Frontex Code of Conduct (CoC) for return operations and return interventions163 provide for an obligation to monitor each return operation organised or coordinated by the Agency and set out detailed rules on scope and nature of monitoring, going much beyond the general wording of Article 8(6).

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. Content I. General remarks .............................................................................................. II. Drafting history ............................................................................................... III. Postponement of removal .............................................................................

mn. 1 2 3

I. General remarks 1

The provision complements Article 8 by defining the cases in which Member States ‘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) or oblige Member States to refrain from issuing a return decision (see above Article 6 MN 32a).

II. Drafting history 2

The provision corresponds to Article 8 of the Commission proposal and preserves the main ideas of it.

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III. Postponement of removal Article 9(1) defines the two categories of cases in which Member States’ competent 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:164 The administration of a State must not undermine decisions by courts by carrying out removal contrary to judicial orders. Article 9(2) explicitly allows Member States (‘may’) to postpone removal also in other 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 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, 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 and in CPAS de Seraing 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 14.165 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. Legal status pending postponed removal: Pending suspended removal the returnee benefits from the ‘safeguards pending return’ listed in Article 14. The returnee is, however, not considered to be legally staying in a Member State, unless a Member 164

ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 56–57. ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 57–59; ECJ, CPAS de Seraing, C-402/19, EU: C:2020:759, para 30. 165

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States decides – in accordance with Article 6(4) – to grant a permit or a right to legal stay to the returnee. 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. 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 obligations 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. 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 mn. 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 1

Article 10 specifically deals with some important aspects of the return of unaccompanied 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 2

Article 10 was not contained in the Commission proposal. The creation of a separate Article on unaccompanied minors was actively promoted by the EP in order to 740

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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 Guidelines166 on forced return.

III. Return and removal of unaccompanied minors The Directive applies to any illegally staying third-country national including minors 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 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, requires Member States to carry out an individualised assessment, taking due account of a number of factors when deciding whether or not to adopt a return decision against an unaccompanied minor, inter alia the age, sex, particular vulnerability, state of physical and mental health, the placing in a foster family, the level of school education and the social environment of that minor.167. The Directive itself does not define the term ‘minor’ and ‘unaccompanied minor’. Based on a systematic interpretation of the EUs immigration and asylum acquis, the same definitions as those provided in Article 2(d) and (e) of the Asylum Reception Conditions Directive 2013/33/EU shall be used168: ‘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. National practices which apply differing rules for minors under the age of 15 and over the age of 15 were declared incompatible, by the ECJ, in the context of Article 10. The ECJ underlined169 that Member State must always carry out an assessment on a case-by-case basis of the situation of an unaccompanied minor as part of a general and in-depth assessment, rather than an automatic assessment based on the sole criterion of age. The Directive contains no provisions on age assessment. 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 guidance170 developed by the European Asylum support Office (EASO).

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1. Assistance by appropriate bodies Article 10(1) is a far reaching horizontal provision, insofar as it provides for a binding 7 obligation under Union law, to grant assistance to any unaccompanied third-country 166 ‘20 Guidelines on forced return’ adopted by the Council of Europe Committee of Ministers on 4 May 2005. 167 ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9, para 47. 168 ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9, para 38. 169 ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9, para 66. 170 European Asylum Support Office (EASO), Practical Guide on Age Assessment (2018).

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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 Return Handbook,171 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 non-governmental institution or a combination of both systems, providing for multidisciplinary cooperation between government supported and non-governmental guardian- or tutorship systems. 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 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) seems to cover only situations where the unaccompanied minor is ‘removed’ from the territory of a Member State. 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. 10a In a potentially far reaching judgment, the ECJ concluded in 2021172 that the assessment of adequate reception facilities already needs to be carried out before issuing a return decision and not only before removal as stated in the wording of Article 10(2). According to that judgment, if the Member State concerned adopted a return decision without first being satisfied that there are adequate reception facilities in the State of return, the consequence would be that, although that minor was the subject of a return decision, he or she could not be removed in the absence of adequate reception facilities in the State of return, pursuant to Article 10(2). The unaccompanied minor in question would thus be placed in a situation of great uncertainty as to his or her legal status and future in the Member State concerned and such a situation would be contrary to the requirement to protect the best interests of the child. The logic applied by the ECJ in that case could also be relevant for other categories of returnees for whom the likelihood of return/removal is unlikely at the moment of adoption of a return decision (see above Art 6 MN 32a). 10

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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 thirdcountry national concerned does not represent a threat to public policy, public security or national security. 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 (11) (12)

OJ L 261, 6.8.2004, p. 19. OJ L 239, 22.9.2000, p. 19.

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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 mn. I. General remarks .............................................................................................. 1 II. Drafting history ............................................................................................... 2 III. Entry ban .......................................................................................................... 5 1. Reasons for issuing entry bans ................................................................ 9 2. Length of entry bans – Article 11(2)...................................................... 10 a) Standard cases........................................................................................ 10 b) Public order cases.................................................................................. 13 3. Withdrawal/shortening/suspension of entry bans – Article 11(3) .. 15 4. Consultation between Member States – Article 11(4) ....................... 20 5. Access to international protection in the EU – Article 11(5) .......... 23 6. Exchange of information between Member States/link to SIS......... 24–25 7. ‘Historic’ entry bans................................................................................... 27 8. National rules penalising breach of entry bans ................................... 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.

II. Drafting history 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: 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. 3–4 As regards the length of entry bans (up to 5 years in normal cases) the final text stayed also similar to the Commission proposal. One issue which was left open 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 2

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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.173

III. Entry ban174 The definition of ‘entry ban’ is set out in Article 3(6). It is clear from this definition and a major added value of the Directive that entry bans apply to the territory of all Member States bound by the Return Directive. As a consequence it is, as a general rule (exception see below MN 21), not possible anymore to issue under the Directive ‘national’ return related 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. According to the Commission Return Handbook175, the rules on return related entry bans under the Directive leave unaffected entry bans issued for purposes not related to return, such as entry bans related to third-country 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) of SIS Regulation (EU) 2018/1861) 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. In Westerwaldkreis176, the ECJ expressly questioned this statement in the Return Handbook and highlighted that the scope of the Return Directive as defined in its Article 2 could not be changed by a Commission Recommendation. According to this interpretation, any entry ban (for whatever purpose) issued to an illegally staying third-country national is covered by the scope of the Directive. Normally, entry bans are to be adopted together with a return decision. This is, 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 ‘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. If a return decision is withdrawn, an accompanying entry ban must also be withdrawn.177 A return decision including – if necessary – an entry ban may 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).

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Lutz, The Negotiations on the Return Directive, p. 55–57. A helpful analysis of national practices in the field of entry bans as well as relevant ECJ case law is given by: Pahladsingh, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 105–123. 175 Commission, Return Handbook, p.48. 176 ECJ, Westerwaldkreis, C-546/19, EU:C:2021:432, para 47. 177 ECJ, Westerwaldkreis, C-546/19, EU:C:2021:432, para 54. 174

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A possibility to adopt a self-standing entry ban which is not accompanied by a return decision in situations described in MN 8 above was proposed by the Commission in Article 13(2) of the proposed recast of the Return Directive.

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)).178 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. It also means that national legislation which foresees the issuance of entry bans in all cases may be compatible with the Directive, provided an individualised determination of the length of each entry ban is foreseen (see below MN 10).

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. 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 Osmani179 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 is the moment of departure or removal to a third country and not 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. In Ouhrami180 the ECJ expressly clarified that until the point in time at which the obligation to return is voluntarily complied with or enforced, the illegal stay of the person concerned is governed by the return decision and not by the entry ban. It is only from that point in time that the entry ban produces its effects, by prohibiting the person 10

178 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’. 179 ECJ, Filev and Osmani, C-297/12, EU:C:2013:569, paras 27 and 34. 180 ECJ, Ouhrami, C-225/16, EU:C:2017:590, para 49. See also ECJ, Westerwaldkreis, C-546/19, EU: C:2021:432, para 52.

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concerned, for a certain period of time following his return, from again entering and staying in the territory of the Member States. 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.181 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 circumstances182 and respect the principle of proportionality. The length of public order entry bans needs to be individually determined, taking into 14 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. 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.183 With the application of the new SIS Return Regulation (EU) 2018/1860, information about compliance with a return decision will be more easily available for national authorities. Victims of trafficking who had been previously granted a residence permit in accor- 17 dance with Human Trafficking 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.

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Lutz, The Negotiations on the Return Directive, p. 56. ECJ, K.A., C-82/16, EU:C:2017:590, paras 92–94. 183 Commission, Return Handbook, p. 52. 182

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This rule only applies to periods of illegal stay following immediately a legal stay covered by Human Trafficking 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) 20

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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)184. The reasons underlying an existing entry ban must be considered and taken into account by the Member State considering issuing a residence permit. 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). The wording of Article 11(4) remains silent on the situation covered by Article 6(2) in which a return decision accompanied by an entry ban may be issued to a thirdcountry national holding a valid residence permit in another Member State. In its judgment in case E185, the ECJ clarified that in such a situation Article 25(2) SIC (now Article 28 of SIS Regulation (EU) No 2018/1861) is applicable. If the residence permit is not withdrawn by the other Member State, or in the absence of a response from the consulted Member States, 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. The consultation procedure may be launched even before the issue of the return decision and must, in any event, be initiated as soon as such a decision has been issued. The ECJ also clarified that although Article 25(2) SIC governs the procedure between the authorities of Member States, the fact remains that it is likely to have tangible effects on the rights and interests of individuals. Individuals may therefore rely before the national courts on the legal effects deriving from the consultation procedure on the Member State issuing the alert. Those Member States which do not yet fully apply Schengen rules and therefore cannot (yet) directly apply Article 25 SIC (now Articles 27 and 28 of SIS Regulation (EU) No 2018/1861), are required to follow the spirit of para 4 and to contact – if they 184 185

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become aware (through whatever source of information including information from the applicant) that a person is subject of an entry ban or a residence permit issued by another Member State the authorities which issued the entry ban or residence permit and seek to ‘take account of the interest’ of the other Member State.

5. Access to international protection in the EU – Article 11(5) Article 11(5) clarifies, that the provisions on return-related entry bans apply without 23 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).

6. Exchange of information between Member States/link to SIS Recital 18 emphasizes the need of competent authorities to have rapid access to 24–25 information on entry bans issued by other Member States. During the first decade of application of the Return Directive, Member States were allowed to register alerts related to entry bans issued in accordance with the Return Directive in the SIS, but were not obliged to do so. With the entry into force of the new SIS Regulation (EU) 2018/1861 there exists now an obligation in its Article 24(1)(b) to register in the SIS II all entry bans issued under the Directive. 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). Relation between the 3-yearly review of alerts entered into the SIS (under 26 Article 39 SIS Regulation (EU) 2018/1861) and the length of the entry ban fixed under the Return Directive: The review of alerts entered into the SIS (under its Article 39) 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 39 of SIS Regulation (EU) 2018/ 1861).

7. ‘Historic’ entry bans In Filev and Osmani186 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.

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8. National rules penalising breach of entry bans The Directive does not prevent Member States from providing for further sanctions 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.187 29 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.188 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 Osmani189 and in Ouhrami190 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 Skerdjan Celaj191 the ECJ confirmed that the Return Directive does not, in principle, preclude the imposition of a prison sentence on an illegally staying third-country national who unlawfully reenters the territory in breach of an entry ban. In JZ192 the ECJ accepted the imposition of a custodial sentence on third-country nationals who, on the one hand, have been the subject of a return procedure and continue to stay illegally without a justified ground for non-return and, on the other hand, have been issued a qualified entry ban for public order reasons. 28

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.

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Commission, Return Handbook, p. 53. ECJ, Sagor, C-430/11, EU:C:2012:777, para 36. 189 ECJ, Filev and Osmani, C-297/12, EU:C:2013:569, para 37. 190 ECJ, Ouhrami, C-225/16, EU:C:2017:590, paras 54–56. 191 ECJ, Skerdjan Celaj, C-290/14, EU:C:2015:640. 192 ECJ, JZ, C-806/18, EU:C:2020:724. 188

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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................................................................................................................... 1. General boundaries of the duty to state reasons................................. 2. Limits of non-disclosure of certain factual information.................... 3. Translation of decisions ............................................................................ 4. Derogations applicable to a specific category of returnees ...............

mn. 1 2 4 8 10 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 written reasons in fact and in law 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,193 is a well-established principle in the EU law reflected in Article 296 TFEU and in Article 41(2)(c) CFR on the right to good administration. Although the latter cannot be directly invoked by the third-country nationals concerned,194 the obligation to give reasons can be invoked on the basis of general principles of the EU law.195 Therefore, it is not surprising that Article 12 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,196 asylum,197 immigration198 or freedom of movement199.

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ECJ, Boudjlida, C-249/13, EU:C:2014:2431, para 58. ECJ, Mukarubega, C-166/13, EU:C:2014:2336, para 44. 195 Cf. AG Kokott, Mellor, C-75/08, EU:C:2009:32, para 33. 196 Cf. Article 13(2)(2) of the former Schengen Borders Code Regulation (EC) No 562/2006. 197 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. 198 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. 199 Article 30 of the Free Movement Directive 2004/38/EC. 194

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Apart from serving the transparency of the decision-making process200 and effecting an initial self-check by the administration,201 the obligation to give reasons is strongly interlinked with the right to an effective remedy – Articles 12 and 13, therefore, it can be regarded as the flipside 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.202 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.203

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 respect for the rights of the defence, which is a general principle of EU law.204 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, it must be observed in all proceedings, even where the applicable EU or implementing domestic legislation does not expressly provide for such a procedural requirement.205 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.206 Article 12 RD mentions only: return decisions, entry-bans and decisions on removal, as return decisions which should be issued following the procedural safeguards set out by Article 12 RD. However, there are several other types of return decisions that can be issued under the Return Directive, which are ancillary to the abovementioned types of return related decisions, such as: a 4

200 Craig, in Peers et al. (eds), The EU Charter, Article 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, p. 99; Hofmann/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. 201 AG Kokott, Mellor, C-75/08, EU:C:2009:32, para 32. 202 ECJ, ZZ, C-300/11, EU:C:2013:363, para 53. 203 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 55. 204 ECJ, Mukarubega, C-166/13, EU:C:2014:2336, para 48; Boudjlida, C-249/13, EU:C:2014:2431, para 30. 205 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 third country national 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 third country nationals 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. 206 ECJ, Boudjlida, C-249/13, EU:C:2014:2431, para 36 and the case-law cited.

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decision extending the initial period of voluntary departure under Article 7(2). The procedural safeguards of the right to be heard and those set out in Article 12 should be applied to all decisions related to return and must not be limited to the three types of decisions mentioned in Article 12(1) of that Directive. 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.207 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.208 As part of the right to be heard, a third country national should be heard on the possible application of Articles 5 and 6(2) to (5) of the Return Directive and on the detailed arrangements for return, such as the period allowed for voluntary departure and whether return is to be voluntary or forced.209 The authority is not, however, obliged to warn the third-country national, prior to the hearing, that it is contemplating adopting a return decision, or disclose information on which it intends to rely as justification for that decision, or allow a period of reflection, provided that the third country national has the opportunity to effectively present his or her point of view on the subject of the illegality of his or her stay and the reasons which might, under national law, justify that authority refraining from adopting a return decision.210 The rights of the defence do not constitute unfettered prerogatives and may be restricted by the Member States, provided that the restrictions correspond to the objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed.211 According to the CJEU, the non-respect of the right to be heard renders a return related decision invalid only insofar as the outcome of the procedure would have been different if the right was respected. As the Directive regulates neither the conditions under which observance of the 7 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.212 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.213

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ECJ, Boudjlida, C-249/13, EU:C:2014:2431, paras 37–38. ECJ, Boudjlida, C-249/13, EU:C:2014:2431, para 37 and the case-law cited. 209 For a detailed list of the safeguards developed by the CJEU as part of the right to be heard, see Moraru ‘Judicial Interactions Upholding the Right to be Heard of Asylum Seekers, Returnees and Immigrants: the Symbiotic Protection of the EU Charter and General Principles of EU law’, in: Casarosa/Moraru, The Practice of Judicial Interaction in the Field of Fundamental Rights – The Added Value of the Charter of Fundamental Rights of the EU (Edward Elgar, forthcoming 2021). On the right to be heard of a minor, see Article 12 of the Convention on the Rights of the Child, and taking into account the General Comment No 12 of the UN Committee on the rights of the child on the right of the child to be heard. 210 See also, Commission, Return Handbook, p. 130. 211 ECJ, G&R, C-383/13 PPU, EU:C:2013:533, para 33; ECJ, Boudjlida, C-249/13, EU:C:2014:2431 para. 43. 212 ECJ, Mukarubega, C-166/13, EU:C:2014:2336, para 51. 213 ECJ, Mukarubega, C-166/13, EU:C:2014:2336, para 51; ECJ, G. and R., C-383/13 PPU, EU: C:2013:533, para 35 and the case-law cited. 208

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II. Drafting history Paragraph 1(1) as well as Paragraph 2 mostly correspond to the original Commission proposal.214 Continuing efforts of the Netherlands to make written decisions optional and to include in Paragraph 1 the possibility for an oral notification of the relevant decisions, have not been successful.215 Upon request of Sweden and Poland,216 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 1987/2006.217 9 Paragraph 3, which did not appear in the original Commission proposal, is a result of 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.218 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.219 Due to the EP’s fierce opposition, the new Article, as such, did not make it into the final text of the Directive;220 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.221 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 former 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.222 8

III. Form 1. General boundaries of the duty to state reasons 10

Paragraph 1 defines the general boundaries of the duty to give reasons: return, removal 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. 214

Commission Proposal, COM(2005) 391, p. 18. 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. 216 Council doc. 13195/07 of 3 October 2007, p. 27, fn. 45. 217 See Council doc. 13658/07 of 15 October 2007, p. 23, fn. 38. 218 See more detailed in Lutz, The Negotiations on the Return Directive, p. 23, 58–59. 219 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. 220 See Lutz, The Negotiations on the Return Directive, p. 59. 221 Cf. ibid. 222 Ibid. 215

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According to the ECJ, the obligation to state adequate reasons is an essential procedural 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.223 The person concerned must receive the notification, in principle, at the same time as 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 during the procedure before the courts.224 This would contradict to the aforementioned purposes of the obligation to give reasons. 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.225 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.226 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.227 Providing general and stereotyped reasons which does not include any specific information on particular circumstances of the third-country national concerned violates the duty to give reasons.228 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.229 Therefore, it can be safely argued that considering that return, removal and entry-ban decisions significantly affect the lives of the thirdcountry 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 third-country nationals are not legally represented. In this regard, it is interesting to make a 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.230 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 or her in order to challenge the lawfulness of that decision.231 223

ECJ, Elf Aquitaine v. Commission, C-521/09 P, EU:C:2011:620, para 146 and the case-law cited. ECJ, Elf Aquitaine v. Commission, C-521/09 P, EU:C:2011:620, para 149; ECJ, Michel v. Parliament, C-195/80, EU:C:1981:284, para 22; ECJ, Spain v. Commission, C‐351/98, EU:C:2002:530, para 84; ECJ, IPK-München 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. 225 ECJ, Ziegler v. Commission, C-439/11 P, EU:C:2013:51,3 para 87. 226 Craig, in Peers et al. (eds), The EU Charter, Art. 41, RN 41.48 et seq. 227 ECJ, Elf Aquitaine v. Commission, C-521/09 P, EU:C:2011:620, para 151. 228 Cf. Reneman, EU Asylum Procedures, p. 100 and GC, Casini, T-132/03, para 35. 229 ECJ, Commission v. Sytraval and Brink’s France, C-367/95 P, EU:C:1998:154, para 63. 230 ECJ, Council v. Bamba, C-417/11 P, ECLI:EU:C:2012:718, para 51. 231 Ibid.; Cf. Reneman, EU Asylum Procedures, p. 99. 224

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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.232 This is in particular the case in relation to those matters raised in the proceedings, which are manifestly irrelevant or insignificant or plainly of secondary importance.233

2. Limits of non-disclosure of certain factual information 16

As regards the non-disclosure of certain information on factual reasons for different 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 third-country national 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.234 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 will in fact be compromised by full disclosure to the person concerned of the grounds which constitute the basis of a given decision.235

3. Translation of decisions Paragraph 2 lays down an obligation of competent authorities to provide thirdcountry 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 third-country national understands or may reasonably be presumed to understand. 18 The translation obligation is directly linked with one of the aims of the duty to state reasons, which is a clear understanding by the third-country national concerned of the underlying reasons for a return related decision in 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,236 are a threat to the right to an effective remedy. 17

4. Derogations applicable to a specific category of returnees 19

Paragraph 3, as a remnant of the accelerated procedures from the draft directive (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 232 GC, Kenzo Tsujimoto, T‐393/12, EU:T:2015:45, para 19 and the case-law cited. Cf. Craig, in Peers et al. (eds), The EU Charter, Article 41, MN 41, 55. 233 GC, Kenzo Tsujimoto, T‐393/12, EU:T:2015:45, para 19 and the case-law cited. 234 ECJ, ZZ, C-300/11, EU:C:2013:363, para 69; similarly, see, ECJ, R.N.N.S and K.A, Joined Cases C‑225/19 and C‑226/19, EU:C:2020:951; and ECtHR, Judgment of 15 October 2020 (GC), No 80982/12, Muhammad and Muhammad v. Romania. 235 ECJ, ZZ, C-300/11, EU:C:2013:363, para 61. 236 European Parliamentary Research Service, The Return Directive 2008/115/EC, European Implementation Assessment (2020), p.55.

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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 3(1) suggests, this provision covers both the third-country nationals who have crossed illegally the EU external borders and those who have entered illegally from the territory of another Member State.237 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. Besides, the phrase ‘have not … obtained’ implies that the mere application for an authorisation or a right to stay is not sufficient. Paragraph 3(1) gives discretion to the Member States not to provide the mentioned 20 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 the 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. In the absence of such legislation, the Member States cannot rely on Paragraph 3(2). Therefore, the alleged wide-spread practice in the Member States to use such forms without corresponding national legal provisions238 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.239 Paragraph 3(3) is directly linked with Paragraph 3(2) by setting the obligation of the 21 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

237 In the latter case, Article 6(2) and (3) might apply. See Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1536. 238 See Evaluation on the application of the Return Directive (2008/115/EC), Final Report, p. 121. 239 For further critics on a standard form see Pollet, in Zwaan (ed), The Returns Directive, p. 34.

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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. Content mn. I. General remarks .............................................................................................. 1 1. The right to a fair hearing........................................................................ 2 2. Effectiveness of a remedy.......................................................................... 4 II. Drafting history ............................................................................................... 7–8 III. Remedies ........................................................................................................... 10 1. Need for broader interpretation of Paragraph 1 ................................. 10 2. General and specific powers of reviewing authorities........................ 13 a) The extent of the review...................................................................... 14 b) Suspensive effect of a remedy ............................................................ 16 3. General obligations concerning legal advice/representation and linguistic assistance .................................................................................... 19 4. Free legal aid................................................................................................ 21

I. General remarks 1

Article 13 lays down specific modalities for the exercise of the right to an effective remedy. Due to the fact that this right is recognised as a general principle of the EU law240 mirrored in Article 47 CFR,241 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 ECJ. In a consistent line of case law, the ECJ held that ‘the characteristics of the remedy provided in Article 13 must be determined in a manner that is consistent with Article 47 of the Charter’.242 Furthermore, the guarantees of Article 13, as well as those provided by Articles 5 and 12, have to be observed also in a border area.243

1. The right to a fair hearing 2

As Article 13 and especially its first two paragraphs have been greatly inspired by 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 240

Also called the principle of effective judicial protection. ECJ, Torubarov, C-556/17, EU:C:2019:626, paras 55 and 56. 242 ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 45 and 46; ECJ, Gnandi, C‐181/16, EU:C:2018:465, paras 52 and 53; ECJ, B/CPAS, C‐233/19, EU:C:2020:757; ECJ, LM/CPAS, C‐402/19, EU:C:2020:759, para 34. 243 ECJ, Commission v. Hungary, C-808/18, EU:C:2020:1029, paras 253 and 266. 241

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disputes relating to civil law rights and obligations, as it is the case under Article 6(1) ECHR,244 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.245 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.246 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.247 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 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.248 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-à-vis his opponent.249 As the aim of this principle is to ensure a balance between the parties to proceedings,250 it risks to be undermined if a returnee has serious practical obstacles in terms of presenting his or her case.251

2. Effectiveness of a remedy Weather a remedy available to returnees is effective will depend on its compliance 4 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. Even if the effectiveness of a remedy does not depend on the certainty of a favourable 5 outcome for the applicant,252 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.253 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.254 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).255 244

Explanatory Note on Article 47. See Sayers, in Peers et al. (eds), The EU Charter, Art. 47, p. 1260. 246 ECJ, ZZ, C-300/11, EU:C:2013:363, para 55. 247 ECJ, Commission v. Ireland and Others , C-89/08 P, EU:C:2009:742, para 55. 248 ECJ, ZZ, C-300/11, EU:C:2013:363, para 56. 249 ECJ, Otis and Others, C-199/11, EU:C:2012:684, para 71. 250 Ibid., para 72. 251 Cf. Sayers, in Peers et al. (eds), The EU Charter, Art. 47, p. 1263. 252 ECtHR, Judgment of 13 December 2012, No 22689/07, Souza Ribeiro v. France, para 79. 253 ECtHR, Judgment of 13 December 2012, No 22689/07, Souza Ribeiro v. France, para 80. 254 Cf. Hofmann, in Peers et al. (eds), The EU Charter, Art. 47, p. 1216; Reneman, EU Asylum Procedures, p. 88. 255 See more in Article 3 MN 25. Reneman, EU Asylum Procedures, p. 105 et seq. 245

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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.256 At the same time, the time-limits for exercising the remedy must not be unreasonably short.257 Moreover, the haste in the execution of removal can have the effect of rendering the available remedies ineffective in practice and therefore inaccessible.258

II. Drafting history During the trilogue negotiations, the Council has substantially watered down the guarantees provided in the Commission’s proposal. 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.259 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.260 These changes have largely survived the trilogue negotiations. The exception was paragraph 4 on legal aid, the 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.261 9 Finally, it should also be mentioned that the draft Article 13a(4) (see above Article 12 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.262

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III. Remedies 1. Need for broader interpretation of Paragraph 1 10

The textual interpretation of Paragraph 1, establishing the general obligation of the 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 256

ECtHR, Judgment of 13 December 2012, No 22689/07, Souza Ribeiro v. France, para 81. Council of Europe, Twenty Guidelines on Forced Return (September 2005), p. 21. 258 ECtHR, Judgment of 13 December 2012, No 22689/07, Souza Ribeiro v. France, para 95. For similar national jurisprudence, see Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter III of the Return Directive – Procedural safeguards’, REDIAL Research Report 2016/03, p. 13. 259 See Trialogue Table in Lutz, The Negotiations on the Return Directive, p. 203. The Council appears to have changed approach an favours appeal before a judicial authority and suspensive effect of appeal, see Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast) − Partial general approach 2018/0329(COD), 23 May 2019, draft article 16. 260 Ibid. 261 See in more detail on this issue, Lutz, The Negotiations on the Return Directive, p. 24–25 and 62–63. 262 See Lutz, The Negotiations on the Return Directive, p. 58–59. 257

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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 decisions adopted under Chapter IV of the Directive – since Articles 15–18 as, lex specialis,263 foresee particular lawfulness review proceedings – all other return related decisions264 are covered by the protection offered under Article 13265, as well as by the procedural safeguards set out in Chapter III of Directive 2008/115, including with the principles of equivalence and effectiveness, and Article 47 CFR.266 Second limitation of the right to effective remedy under Article 13 refers to the 11 competent body to review the appeal. Unlike Article 47 CFR, Article 13 does not exclusively grant the right to judicial remedy, but makes it also possible that an administrative authority, or a body composed of members, who are impartial and who enjoy safeguards of independence can also legitimately act as an appellate or review body. Although Member States retain competences to establish the precise remedies and designate the courts and tribunals with jurisdiction in return related matters, they nevertheless have to ensure compliance in every case with the right to effective judicial protection of those rights as enshrined in Article 47 CFR.267 In FMS and others, the ECJ clarified that the conditions of independence and impartiality that a reviewing administrative body must fulfil under Article 13 should be determined on the basis of Article 47 CFR requirements.268 Therefore, where a decision by an administrative authority does not itself satisfy the conditions of independence and impartiality, for instance, because it comes under the authority of the executive body exercising return related competences,269 then the third-country national has the right to challenge the return related decision before a judicial body that must, in particular, have jurisdiction to consider all the relevant issues, even if not expressly provided under domestic legislation.270 According to the ECJ, ‘the concept of ‘independence’, which is inherent in the task of adjudication, implies above all that the body in question acts as a third party in relation to the authority which adopted the contested decision.’271 It follows that a national legislation under which the addressee of an administrative return decision cannot challenge the regularity of that decision before at least one judicial body does not comply with the requirements of Article 13(1) of Directive, and of Article 47 CFR. It should be mentioned here that the ECJ interprets the status of a court or tribunal as 11a a self-standing concept of the EU law.272 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

263

Cf. Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1538. For instance, a competent authority’s amendment of the country of return in the return decision (ECJ, FMS and others, Joined Cases C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paras 116 and 122); refusal to extend the period for voluntary departure under Article 7(2); postponement of removal under Article 9; withdrawal or suspension of an entry ban under Article 11(3) or even not granting free legal aid under Article 13(4). See also Article 3 MN 13, 20, 20 a. 265 Commission, Return Handbook, p. 134. 266 See ECJ, Gnandi, Case C‐181/16, EU:C:2018:465 para 60 on the application of those principles above Article 12 MN 7. 267 ECJ, FMS and others, Joined Cases C‐924/19 PPU and C‐925/19 PPU, EU:C:2020:367, para 142. 268 ECJ, FMS and others, Joined Cases C‐924/19 PPU and C‐925/19 PPU, EU:C:2020:367, para 128. 269 Ibid., para 134. 270 Ibid., para 128. 271 ECJ, Hassani, C-403/16, EU:C:2017:960, paras 39 and 40. 272 Pech, in Peers et al. (eds), The EU Charter, Art. 47, p. 1251. 264

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has to be independent and impartial.273 In order to establish whether a court of tribunal is ‘independent’ within the meaning of Article 47 CFR, the ECJ requires assessment of, inter alia, ‘to the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence.’274 In relation to the court and administrative body referred in Article 13, the ECJ held in FMS that Article 47 CFR ‘requires that the body concerned exercise its functions wholly autonomously, without receiving orders or instructions from any source whatsoever, being thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.’275 As a result, the last instance review of return related decisions by an administrative authority would be in clear violation of the EU law.276 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,277 the latter cannot qualify as offering an effective remedy in the sense of Article 13 read in light of Article 47 CFR. 12 As regards the levels of appeal, the ECJ clarified that nor Article 13 of Directive 2008/ 115, nor Article 47 CFR require two levels of judicial decision within return procedures.278 However, should a Member State decide to set up a two levels of appeal judicial system, then it has to ensure the respect of the general principles of EU law of equivalence and effectiveness.279

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 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.

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a) The extent of the review. It follows that the principle of primacy of EU law and the right to effective judicial protection, guaranteed by Article 47 of the Charter, require the referring court to declare that it has jurisdiction to hear the actions brought by the applicants in the main proceedings against the decisions of the asylum authority rejecting their objections to the administrative decisions ordering them to return to their countries of origin and to disapply, if necessary, any national provision. As regards the general powers of a reviewing body under Article 13, which is also linked to the question of the intensity of the review, here again both the ECJ280 and the ECtHR281 require that courts and tribunals must be able to review not only the questions of law, but also the facts. The ECtHR demands in the context of Article 6(1) ECHR, which as mentioned above has been integrated in Article 47 CFR (see above 273 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. 274 ECJ, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, C-624/18 and C-625/18, EU:C:2019:982, para 127. 275 ECJ, FMS and others, Joined Cases C‐924/19 PPU and C‐925/19 PPU, EU:C:2020:367, para 135. 276 See on the existing review systems in the Member States: Matrix, Evaluation on the application of the Return Directive, p. 123. 277 Ibid. 278 ECJ, Gnandi, C-181/16, EU:C:2018:465, para 57; ECJ, X, C‐175/17, EU:C:2018:776, para 34. 279 ECJ, X, C‐175/17, EU:C:2018:776, para 38. 280 ECJ, Wilson, C-506/04, EU:C:2006:587, paras 61–62. 281 ECtHR, Judgment of 13 February 2003, No 49636/99, Chevrol v. France, para 77.

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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 .282 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. Nevertheless, the ECJ established an obligation incumbent upon national courts to ensure the full effectiveness of Article 13(1) of Directive 2008/115 which, having direct effect, may constitute in itself a directly applicable basis for their jurisdiction, when it has not been properly transposed into the national legal order. Therefore, on the basis of the principle of primacy of EU law and the right to effective judicial protection, as guaranteed by Article 47 CFR, national courts are obliged to find they have jurisdiction to review a return related decision and to disapply, if necessary, any national provision prohibiting it from proceeding in that way.283 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 both ECJ and ECtHR case-law on Article 47 CFR, jointly with Article 19(2) CFR, and respectively 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.284 This line has been consistently followed by the ECJ. Starting with Abdida,285 Gnandi286 and the two CPAS cases287, the ECJ ruled that by virtue of Articles 19(2) and 47 CFR, an appeal must necessarily have suspensive effect when it is brought against a return decision, the enforcement of which may expose the third country national to a real risk of being subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment or to treatment contrary to Article 19 (2) CFR. Furthermore, the ECJ extended the right to an automatic suspensive effect of the appeal on the basis of Articles 19(2) and 47 CFR not only for the third-country national suffering from a serious illness, whose return or removal would lead to a serious risk of grave and irreversible deterioration in his or her state of health, but

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ECtHR, Judgment of 7 June 2012, No 4837/06, Segame SA v. France, para 55 and the case law cited. ECJ, FMS and others, Joined Cases C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, para 147. 284 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. 285 ECJ, Abdida, C-562/13, EU:C:2014:2453, para 52. 286 ECJ, Gnandi, C-181/16, EU:C:2018:465, paras 54 and 56; see also ECJ, X, Y, C 180/17, paras 28–29. 287 ECJ, CPAS, C‐233/19, EU:C:2020:757, para 51; ECJ, CPAS Seraing, C‐402/19, EU:C:2020:759, para 43. 283

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also to the family member, in casu the father, whose presence is essential for the third-country national.288 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 thirdcountry national 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. 16a The European Commission proposal for the recast of the Return Directive includes a separate provision on the suspensive effect of appeal, codifying to a certain extent the above mentioned jurisprudence of the ECJ.289 17 Where expulsions are challenged on the basis of the protection of private and family 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 thirdcountry nationals are returned to those countries where they cannot be reached.290 18 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 third-country nationals have the possibility to obtain legal advice, representation and, when necessary, linguistic assistance while the latter defines the conditions under which the third-country national 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. Nevertheless, the ECtHR emphasised the importance of linguistic assistance and the difficulties of a third-country national in challenging his removal in the absence of linguistic assistance.291 However, since paragraph 3 refers to it in general terms, linking it with the necessity of such assistance, and as a 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.292 20 As regards the obligation of the Member States under Paragraph 3 to ensure that the third-country nationals have the possibility to obtain legal advice and representation at his own expense, this obligation corresponds to Article 47(2) CFR according to which ‘everyone shall have the possibility of being advised, defended and represented’.293 To 19

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ECJ, CPAS Seraing, C‐402/19, EU:C:2020:759. See Draft Article 16 a. 290 Cf. above MN 2. 291 ECtHR, Judgment of 2 February 2012, No 9152/09, I.M. v. France, paras 145 and 155. 292 On the effet utile of this provision cf. Commission, Return Handbook, p. 135–136 also referring in this regard to ECtHR, Judgment of 5 February 2002, No 51564/99, Čonka v. Belgium. 293 See also, ECJ, Boudjlida, C-249/13, EU:C:2014:2431, para 65. 289

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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 third-country nationals concerned. Therefore, it is questionable whether, for instance, legal advice provided by an administrative authority can generally fulfil these criteria.294

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. 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 trial295) 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.296 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.297 The question of fairness and adequacy of the procedure can 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.298 Relying on the pertinent Strasbourg case-law, the ECJ refers 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.299 As regards the reference to Article 15(3) to (6) of the former Asylum Procedures 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.300 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 294

Cf. Commission, Return Handbook, p. 136. ECtHR, Judgment of 21 February 1975, No 4451/70, Golder v. the United Kingdom, para 36 296 ECtHR, Judgment of 9 October 1979, No 6289/73, Airey v. Ireland, para 26. 297 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. 298 Cf. ECtHR, Judgment of 16 July 2002, No 56547/00, P., C. and S. v. United Kingdom, para 91. 299 ECJ, DEB, C-279/09, EU:C:2010:811. 300 Cf. Commission, Return Handbook, p. 136. 295

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assist and represent applicants; in first instance appeal procedures and not for further appeals or reviews.301 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.302 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.303 25 The most problematic conditionality criterion for the provision of the free legal assistance and/or representation seems to be the so-called merit test,304 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.

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.

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Ibid. Ibid. 303 On the varied domestic implementation of the free legal aid provisions, see European Parliament, Implementation Assessment of the Return Directive, EPRS_STU(2020)642840_EN, pp. 58–60. 304 See on the deficiencies in the application of this test in practice: Matrix, Evaluation on the application of the Return Directive, p. 128. 302

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Content mn. I. General remarks .............................................................................................. 1 II. Drafting history ............................................................................................... 2 III. Safeguards pending return............................................................................ 3 1. Basic minimum rights pending postponed return.............................. 3 2. Written confirmation................................................................................. 11 3. Situations of protracted irregularity ....................................................... 12

I. General remarks Article 14 covers the situation of third-country nationals who are staying illegally and 1 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 The Directive leaves Member States the choice of either issuing return decisions to 2 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 the former Asylum Reception Conditions Directive 2003/9/EC. During the negotiations, Member States expressed concern that references to the Asylum 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.305

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 3 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). The period of ongoing return procedures between apprehension and before issuing of a return decision is not expressly covered by Article 14(1), but in the light of Article 5 and recital 12 it can be argued that the same basic minimum rights need to be applied. In view of recent ECJ case law (see above Article 6 MN 32a) which 305

Lutz, The Negotiations on the Return Directive, p. 64.

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does not allow Member States to issue a return decision if certain requirements for a future removal are not met, the number of illegally staying third-country nationals to whom no return decision must be issued is likely to increase and with it the relevance of the question whether Article 14 is applicable to such situations. 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’.306 The principle of maintaining family unity in Article 5(a) is a concretisation 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 judgment in the case Abdida307 the ECJ found that the 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. Inspiration may also be drawn from the asylum acquis in particular Article 14 of the Asylum Reception Conditions Directive 2013/33/EU.308 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). In its judgment in the case Abdida309, 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. In CPAS de Seraing310, the right to be provided with basic needs was extended to the father (subject of an appealed return decision) of a seriously ill adult child (also subject of an appealed return decision) due to the fact that the father was the sole caregiver of the dependant child. The Court also added that the social assistance recognised to the father should be ‘adequate and sufficient’. Based on the logic developed by the ECJ, it can now be considered that enjoyment of the other rights enumerated in Article 14(1) (family unity; access to education; taking into account

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ECJ, Abdida, C-562/13, EU:C:2014:2453, para 60. ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 59–60. 308 Commission, Return Handbook, p. 64. 309 ECJ, Abdida, C-562/13, EU:C:2014:2453. 310 ECJ, CPAS de Seraing, C-402/19, EU:C:2020:759, paras 52–55. 307

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needs of vulnerable persons) also give rise to a concomitant requirement to make provision for the basic needs of the third-country national concerned. Even though there is no general legal obligation under Union law to make provision 10 for the basic needs of all third-country nationals pending return, the Commission encourages Member States in its Return Handbook311 to do so under national law, in order to assure humane and dignified conditions of life for returnees.

2. Written confirmation Para 2 requires Member States to issue a written confirmation of the extension of the 11 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). It can also be argued that a written confirmation needs to be issued to illegally staying thirdcountry national to whom a return decision cannot (or not yet) be issued for legal reasons (see below MN 14a). The confirmation should specify the length of the period for voluntary departure, the length of postponement or the length of the likely procedures.

3. Situations of protracted irregularity312 The fact that return or removal cannot be carried out for practical reasons for a 12 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 3 MN 9). This may imply that Article 14 covers situations of long term protracted irregularity extending in certain cases to several years.313 In Achughbabian314, the ECJ 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 judgment in Mahdi.315 It remains to be seen whether the ECJ will stick to this line, notably in the 311

Commission, Return Handbook, p. 64. An analysis of the issue of ‘unremovability’ is given by: Farcy, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, p. 105–123 and by: Lutz, Non-removable Returnees, chapter 6. 313 Peers et al (eds), EU Immigration and Asylum Law, p. 505. 314 ECJ, Achughbabian, C-329/11, EU:C:2011:807, para 48. 315 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, paras 87–88. 312

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case of unaccompanied minors. In its judgment in case C-441/19, the ECJ argued that issuing a non-enforceable return decision to an unaccompanied minor would place the minor in a situation of great uncertainty as to his or her legal status and his or her future, in particular as regards his or her schooling, his or her link with a foster family or the possibility of remaining in the Member State concerned. The ECJ concluded that such a situation would be contrary to the requirement to protect the best interests of the child at all stages of the procedure, as laid down in Article 5(a) of Directive 2008/115 and Article 24(2) of the Charter.316 It can be argued that a next logical step would be to conclude that the ‘great uncertainty as to his or her legal status and his or her future’ needs to be tackled by granting a right to stay317. So far the Court remained silent on that aspect. 14 In its Return Handbook,318 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. Given the strong resistance of Member States to European harmonisation in this field, the most probable scenario is that Member States will continue addressing the issue at national level.319 14a Recent ECJ case law which prevents Member States from issuing a return decision to an illegally staying third-country national if the legal requirements for return and removal are not or not yet met (see above Article 6 MN 32a) will probably lead to a shift from the category of ‘non-removable returnees’ to the category of ‘returnees to whom a return decision cannot be issued’. Both categories are covered by the scope of the Return Directive and Article 14 should also applied to the latter category for the reasons set out in MN 3 above.

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 316

ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9, paras 53–54. Acosta, ‘The Charter, detention and possible regularization of migrants in an irregular situation’, CML Rev. 52 (2015), p. 1361, 1376, argues that the may-clause in Article 6(4) could in certain cases be interpreted as a shall-clause by virtue of the duty to uphold Charter rights; Farcy, in Moraru/Cornelisse/ de Bruycker (eds), Law and Judicial Dialogue, p. 448 argues that the issue of regularisation falls outside the ambit of EU law. 318 Commission, Return Handbook, p. 65. 319 For an in depth analysis of selected Member State practices see Hinterberger, Regularisierungen irregulär aufhältiger Migrantinnen und Migranten. Deutschland, Österreich und Spanien im Rechtsvergleich (Nomos, 2020); and European Migration Network Study: Responses to long-term irregularly staying migrants: practices and challenges in the EU and Norway, (European Migration Network, 2021). 317

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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: (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. Nature of detention.................................................................................... 2. Institutional and procedural framework ............................................... a) Scope and intensity of judicial review.............................................. b) Speediness of the review...................................................................... c) Specific procedural safeguards ........................................................... d) Periodic reviews.....................................................................................

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3. Purposes of detention .................................................................................... 4. Necessity of initial detention........................................................................ a) Risk of absconding ..................................................................................... b) Avoiding or hampering the preparation of return or the removal process........................................................................................................... 5. Alternatives to detention............................................................................... 6. 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.................................................................................................. 7. Reasonable prospect of removal .................................................................. a) Defining factors of a reasonable prospect of removal ....................... b) Time-frame for the prognosis of a reasonable prospect of removal c) The Intensity of the assessment of a reasonable prospect of removal .................................................................................................... 8. Maximum time-limits of detention and re-detention ............................

30 31 32 35 39 45 47 48 49 50 53 56 58 59

I. General remarks The principles of lawfulness, necessity and proportionality should be respected throughout all the stages and steps of adopting a pre-removal detention.320 Article 15, which provides specific requirements for the lawfulness of detention and its judicial review, has to be interpreted according to Recital 24 in conformity with fundamental rights and the principles recognised in particular by the CFR, as well as in conformity with international law, including refugee protection and human rights obligations.321 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. The corresponding ECHR right, is to be found in 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. Compared to Article 5 ECHR, Article 6 CFR does not include express exceptions where asylum and immigration detention are possible, such as: detention for the purpose of preventing an unauthorised entry into the country (Article 5(1)(f) ECHR first indent); detention with a view to deportation or extradition (Article 5(1)(f) ECHR second indent). Instead authorised circumstances of deprivation of liberty of irregular migrants are expressly laid down in the Return Directive. 2 According to well-established ECtHR case-law on Article 5(1)(f) ECHR, any deprivation 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.322 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.323 And third is the non-arbitrariness of detention. According to the Strasbourg case-law on Article 5(1) ECHR, compliance 1

320 ECJ, Zh. and O., C-554/13, EU:C:2015:377, para 49; ECJ, FMS, C-924/19 PPU and C-925/19 PPU, EU:C:2020:367. 321 See Article 1 of the Directive. 322 Ibid., with reference to ECtHR, Judgment of 10 June 1996, No 19380/92, Benham v. the United Kingdom, para 40. 323 ECtHR, Judgment of 21 October 2013, No. 42750/09, Del Río Prada v. Spain, para 125 .

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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.324 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;325 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.326 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,327 which unlike Article 5(1) ECHR explicitly mentions the prohibition of arbitrary detention, thus introducing concepts of reasonableness and justice in addition to compliance with national laws.328 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’.329 At the same time, it should be kept in mind that unlike Article 15(1) of the Directive, 3 the ECtHR has so far refused to use the principles of proportionality and necessity in relation to initial detention orders. 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.330 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.

324

ECtHR, Judgment of 11 July 2006, No 13229/03, Saadi v. the United Kingdom, para 67. Ibid., para 74. 326 Ibid., para 67. 327 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 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).’ 328 Cornelisse, Immigration Detention and Human Rights (Brill, 2010), p. 252. 329 Human Rights Committee, Womah Mukong v. Cameroon, Communication No 458/1991, UN Doc. CCPR/C/51/D/458/1991 (1994), 10 August 1994, para 9.8. 330 ECtHR, Judgment of 23 July 2013, No 41872/10, M.A. v. Cyprus, para 206; ECtHR, decision of 28 March 2017, No 23707/15, Patrick Muzamba Oyaw v. Belgium, para 36. 325

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The CJEU established that Article 15 is unconditional and sufficiently precise and that it therefore has direct effect into national legal orders.331

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.332 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,333 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’334. 6 It might be interesting to know that according to the Commission, this list of examples was inspired by the CoE Twenty Guidelines on Forced Return.335 In the LIBE Report of the European Parliament336 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’. 7 During the subsequent discussions within the Council, wording ‘will abscond’ has been replaced by ‘may abscond’,337 thus suggesting that the level of certainty of such risk had to be lower than required in the previous drafts. 4

331 ECJ, El Dridi, C 61/11 PPU, EU:C:2011:268, para 46; ECJ, FMS and others, Joined Cases C-924/ 19 PPU and C-925/19 PPU, EU:C:2020:367, para 288. 332 Commission Proposal, COM(2005) 391, p. 19. 333 See Council doc. 15165/1/06 of 5 November 2006, p. 4. 334 Council doc. 14783/07 of 12 November 2007, p. 17. These proposal did not obtained approval. 335 Council doc. 13195/07 of 3 October 2007, p. 8. 336 European Parliament doc. A6-0339/2007 of 20 September 2007. 337 Council doc. 6965/08 of 14 March 2008, p. 13.

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The drafting history also entails an interesting indication to the question whether the 8 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.’338 Due to the objections expressed by certain Member States to this version of the draft 9 Article 14,339 the two necessity grounds were brought back to the text. 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.340 Therefore, it seems that the inclusion of this phrase was a mere linguistic exercise without any deliberate far-reaching 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. In fact, the possibility of invoking public order as an additional necessity ground 10 was the object of controversy during the negotiations. From the very beginning, certain Member States341 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 third-country national illegally staying in a Member State 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 termination of legal stay would the future Directive also be applied.342 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.343 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 third-country national 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’.344 338

Council doc. 14447/07 of 29 October 2007, p. 34. This document was drafted as a result of discussions within the meeting of Working Party on Migration and Expulsion, held on 8 October 2007. 340 Council doc. 6785/08 of 4 March 2008, p. 27. 341 BE, DE, FR, HU, AT and PL. 342 Council doc. 7774/08 of 25 March 2008, p. 23. 343 There was no mention of avoiding/hampering the return in the LIBE report. 344 Lutz, The Negotiations on the Return Directive, p. 69. 339

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In its 2018 proposal for the recast of the Return Directive, the European Commission has changed its approach compared to the negotiations on the adoption of the Directive. Under draft Article 18(1)(c), the Commission proposed to include a new ground for detention based on public order considerations, if the third-country national poses a risk to public policy, public security or national security. As a rationale for this amendment, the Commission notes that new risks have emerged in recent years, which make it necessary to detain non-citizens who pose a threat to public order or national security.345 10b Draft Article 6 from the European Commission proposal for the recast of the Return Directive includes a non-exhaustive list of sixteen objective criteria, which are divided in two categories: rebuttable and indicative criteria.346 This very broad definition of the risk of absconding, including criteria contrary to the ECJ jurisprudence on the necessity of pre-removal detention and individual assessment,347 has attracted heavy criticism from the Council of Europe’s Human Rights Commissioner, the EU’s Fundamental Rights Agency, and OSCE.348 10a

2. Alternatives to detention The initial Commission proposal not only linked the possibility of the application of 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.’349 12–13 In spite of the strong opposition of some of the Member States (France, Italy, Malta, Austria, Poland, Czech Republic, and Belgium)350, the Commission maintained its proposal to make the consideration of alternative measures as a criterion in the necessity test, based on the argument that this is an obligation that the Member States assumed under 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.351 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 SCIFA352 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 11

345 Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast) Brussels, 12 September 2018, COM(2018) 634, p. 8. For an indepth commentary, see Majcher, The European Union Returns Directive, pp. 387–389. 346 See, Commission Proposal, COM(2018) 634 final. 347 Such as: lack of documentation proving the identity (see ECJ, Mahdi, C-146/14, EU:C:2014:1320), or illegal entry into the territory of the Member States (see ECJ, El Dridi, C-61/11 PPU, EU:C:2011:26). 348 FRA, The recast Return Directive and its fundamental rights implications, Opinion No 1/2019 [Return], 10 January 2019; and the public statement of Council of Europe’s Commissioner for Human Rights Nils Muižnieks, available at: https://www.facebook.com/CommissionerHR/posts/753609061481673 [last accessed 6 June 2021]; OSCE PA Ad Hoc Commitee on Migration, Briefing on Effective and Humane Return Policy, 2 April 2019. 349 Commission Proposal, COM(2005) 391, p. 19. Emphasis added. 350 Council doc. 13195/07 of 3 October 2007, p. 32. 351 Ibid., p. 31. 352 Council doc. 13886/07 of 16 October 2007, p. 8.

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examples of less coercive measures to detention in the context of avoiding risk of absconding during the period of voluntary departure.353 Interestingly, during the subsequent negotiations among JHA Counsellors in Novem- 14 ber 2007 FI asked to reverse the order between detention and less coercive measures in order to show that detention should be the last resort.354 This suggestion seems to have found support among the Member States 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.

3. The role of judiciary The original Commission proposal foresaw in Paragraph 2 as a rule that detention 15 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.355 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 Guideline No 8(2).356

4. Maximum length of detention The initial Commission proposal foresaw 6 months as the single upper time-limit for 16 detention.357 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 third-country national, (ii) delays in obtaining documentation from third countries or (iii) threat to public order.358 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.359 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 European Parliament to link the delays in obtaining necessary documentation from third countries to the behaviour of the third-country national concerned causing such a dely.360 As regards public order grounds as an additional reason for prolonged detention, as mentioned above (MN 10), the Commission was successful in persuading the co-legislators that this reason was not in line with the scope and purpose of the Directive.

353

Draft Article 6a(3) in: Council doc. 14321/07 of 29 October 2007, p. 14. Council doc. 14783/07 of 12 November 2007, p. 37. 355 Lutz, The Negotiations on the Return Directive, p. 67. 356 Ibid. 357 Commission Proposal, COM(2005) 391, p. 19. 358 Lutz, The Negotiations on the Return Directive, p. 68. 359 Ibid. 360 Ibid., p. 69. 354

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III. Detention 1. Nature of detention 16a

The concept of detention is not defined by the provisions of the Return Directive. Nevertheless, the ECJ and ECtHR have provided a test for establishing whether a measure constitutes or not detention, based on the effects and not the formal denomination given to the measure by the public authorities. First, the nature of the detention provided in Article 15 is that of an administrative measure which aims at carrying out the removal of the third-country national, and should be distinguished from a criminal sanction. According to Article 15(1), Member States may only keep in detention a third-country national who is subject of return procedures in order to prepare return and/or carry out removal. The administrative nature is also emphasised by Article 16, which requires that detention takes place in specialised facilities, and in any case separate from ordinary prisoners. Although preremoval detention is not a criminal sanction, it nevertheless entails a deprivation of liberty. According to the ECtHR, the label or name of the centre or of the measure should not be decisive for the nature, instead it is the actual interference with individual liberty which determines its classification. According to the ECtHR, such characterisation depends on a range of criteria such as: type, duration, effects and manner of implementation of the measure. For instance, the fact that the applicants were held in a reception centre used for first aid and assistance, and justified as taken in the interest of the person concerned’ did not override the fact that they were there involuntarily, under permanent surveillance of the centre, without the possibility to communicate with the outside world and under prolonged confinement, which led the ECtHR to conclude that the applicants were, in effect, deprived of their liberty.361 Importantly, ‘the classification of the applicants’ confinement in domestic law cannot alter the nature of the constraining measures imposed upon them.’362 In FMS, the ECJ found that that the measure of placing third-country nationals to stay permanently in the Röszke transit zone, ‘which is surrounded by a high fence and barbed wire’, and where the applicants ‘are housed in containers with a floor area of not more than 13 m²’, and that they ‘cannot, without permission, receive visits from persons from outside that zone and their movements within the zone are limited and monitored by the members of the law-enforcement services permanently present in the zone and its immediate vicinity’ constitutes detention, and not a mere limitation of freedom of movement as argued by the Hungarian Government.363 Second, detention under the Directive cannot be used for those who have applied for asylum.364 If someone who has been served with a return decision applies for asylum, the return decision has to be postponed, and detention – if necessary – takes place under the Reception Conditions Directive.365 The Return Directive is not 361

ECtHR, Judgment of 15 December 2016 (GC), No 16483/12, Khlaifia and others v. Italy, para 71. Ibid.; In the case of Ilias and Ahmed v. Hungary, the ECtHR set out concrete factors that should be taken into account when determining the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of foreigners in airport transit zones and reception centres for the identification and registration of migrants, see ECtHR, Judgment of 21 November 2019 (GC), No 47287/15, Ilias and Ahmed v. Hungary, para 217. 363 ECJ, FMS and others, Joined Cases C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, para 226. 364 ECJ, Arslan, C-534/11, EU:C:2013:343, para 52; ECJ, Kadzoev, C-357/09, EU:C:2009:741, para 41; ECJ, Gnandi, C-181/16, EU:C:2018:465, para 62. 365 ECJ, J.N., C-601/15, ECLI:EU:C:2016:84. 362

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applicable during the procedure in which an application for asylum is examined.366 Nevertheless, the return procedure may continue if the application for asylum is rejected at first instance by the determining authority, irrespective of the existence of an authorisation to remain pending the outcome of an appeal against that rejection.367 However all the effects of the return procedures will be suspended until the finalisation of the appeal.368 Although the ECJ has confirmed that Member States are free to lay down penal sanctions, including imprisonment, in relation to infringements of migration rules, nevertheless, it provided that such measures should not compromise the application of the Return Directive. In a consistent line of jurisprudence (El Dridi369, Achughbabian370, Sagor371) the ECJ prohibited the Member States from imposing criminal sanctions on the sole grounds of illegal stay before or while carrying out return procedures since this would delay the return. The Court confirmed that Member States may adopt national criminal law aimed inter alia at dissuading those nationals from remaining illegally or re-entering in breach of previously legally imposed entry bans.372 Home arrest is also precluded, if the national legislation does not provide for the immediate release of the third country national as soon as the physical transportation (return) becomes possible. A proportionate fine, as a criminal penalty, is acceptable only if it is not used as an alternative to removal and it does not impede return.373

2. 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’.374 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 2(3)(b), where the judicial review – unlike Paragraph 2(3)(a) – is not automatic but has to be initiated by the third-country national concerned. The ECJ clarified that Article 15(2) and (3) oblige the Member State to ensure that the administrative decision ordering the detention of a third country national, as well as those prolonging detention periods have to be made subject at some point to the supervision of a judicial authority.375 The ECtHR case-law on Article 5(4) ECHR gives helpful indications as to the access to, 18 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 366

See also Article 1 MN 25. ECJ, Gnandi, C‐181/16, EU:C:2018:465, para 59, and ECJ, C and Others, C-269/18 PPU, EU: C:2018:544, para 47. 368 Ibid., para 62. 369 ECJ, El Dridi, C‐61/11 PPU, EU:C:2011:268. 370 ECJ, Achughbabian, C-329/11, EU:C:2011:807. 371 ECJ, Sagor, C-430/11, EU:C:2012:777. 372 ECJ, Celaj, C-290/14, EU:C2015:640. 373 Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter IV of the Return Directive Pre-Removal Detention’, REDIAL Research Report 2016/05, pp. 8–9. 374 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. 375 ECJ, FMS and others, Joined Cases C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paras 277–278. 367

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supervision of the lawfulness of the detention.376 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.377 The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy.378 19

a) Scope and intensity of judicial review. The ECtHR 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’.379 The reviewing ‘court’ must have the competence to ‘decide’ the ‘lawfulness’ of the detention and to order release if the detention is unlawful.380 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.381 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. The right to judicial review of both the initial detention measure as well as the decision extending detention must be ensured.382 Furthermore, it should also be mentioned that the ECtHR 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.383 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.384 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 376

ECtHR, Judgment of 24 April 2008, No 2947/06, Ismoilov and Others v. Russia, para 45. 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. 378 ECtHR, Judgment of 24 April 2008, No 2947/06, Ismoilov and Others v. Russia, para 45; ECtHR, Judgment of 5 February 2002, No 51564/99, Čonka v. Belgium, paras 46 and 55; ECtHR, Judgment of 25 January 2018, No 22696/16, J.R. and Others v. Greece, paras 97–103. 379 ECtHR, Judgment of 7 November 2013, No 43165/10, Ermakov v. Russia, para 264. 380 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. 381 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. 382 See ECJ, FMS and others, Joined Cases C-924/19 PPU and C-925/19 PPU, EU:C:2020:367. 383 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. 384 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. 377

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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 third-country national.385 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.386 b) Speediness of the review. As regards the speediness of the review, required by 20 Paragraph 2(3), here too, the Strasbourg Court has laid down strict standards in its caselaw 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.387 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.388 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.389 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.390 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.391 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.392 The ECJ had already an occasion to stress in the context of interpretation of 22 Article 15 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.393 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 385

ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 62. Ibid. The extent of ex officio judicial review, the level of justification, and remedies that national courts can pronounced for unlawful pre-removal detention will be further clarified by the ECJ in the pending case C-39/21, X v. Staatssecretaris van Justitie en Veiligheid. 387 ECtHR, Judgment of 23 July 2013, No 41872/10, M.A. v. Cyprus, paras 162–163. 388 Ibid., 163. 389 ECtHR, Judgment of 19 February 2013, No 39786/09, Yefimova v. Russia, para 208. 390 Ibid., with reference to ECtHR, Judgment of 21 December 2000, No 33492/96, Jablonski v. Poland, paras 91–9. 391 ECtHR, Judgment of 25 October 2007, No 4493/04, Lebedev v. Russia, para 96. 392 See ECJ, FMS, C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, para 273. See for further details above Articles 12 and 13. 393 ECJ, G. and R., C-383/13 PPU, EU:C:2013:533, para 32. 386

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rights of defence conferred by the European Union legal order (principle of effectiveness).394 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.395 23 Another issue which the ECJ has so far clarified with regard to procedural safeguards under Article 15, not explicitly mentioned in this provision, is the obligation to issue the 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.396 This was justified with the argument that detention and extension of detention are similar in nature since both deprive the third-country national 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.397 The court once again made the link between this obligation and the effective use of the right to a remedy.398 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.399 Only when the authority reviewing the lawfulness of detention at the end of initial sixmonth period takes also a decision on the further course of detention is this authority under the obligation to adopt a written reasoned decision.400 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 standards401 (see above Article 12), an additional reference should be made to the relevant ECtHR 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.402 National courts have also developed a clear list of requirements that the competent administrative authority’s request for detention have to fulfil.403 25

d) Periodic reviews. Paragraph 3 – as hinted before – provides that the detention of a third-country national must, in every case, be reviewed at reasonable intervals of time, either on application of the person concerned or ex officio. Under the mentioned 394

ECJ, G. and R., C-383/13 PPU, EU:C:2013:533, para 35. ECJ, G. and R., C-383/13 PPU, EU:C:2013:533, para 45. For a critical review of this judgment see De Bruycker/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. 396 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, paras 43 and 54. 397 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 44. 398 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 45. Cf. above Article 12. 399 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 47. 400 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 48. 401 On the importance of the duty to state reasons and its purpose, see C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, para 273. 402 ECtHR, Judgment of 20 September 2011, No 10816/10, Lokpo and Touré v. Hungary, para 24 and the case-law cited. 403 For a notable example, see the German Supreme Administrative Court (Judgment of 10/12/2014 – 1 C 11.14), which is commented in Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter IV of the Return Directive – Pre-Removal Detention’, REDIAL Research Report 2016/05, p. 38. 395

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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.404 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 third-country national concerned has already been reviewed by the authority which made the initial detention order.405 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 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.406 As regards the forms of periodic review and the interpretation of the phrase ‘at reasonable intervals of time’ in Paragraph 3, here again, the reference should be made to the relevant ECtHR case-law. First of all, it needs to be stressed that according to the ECtHR, by virtue of Article 5 (4) 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.407 Therefore, when implementing Article 15(3) of the Directive, Member States must ensure that the third-country nationals 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 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.408 However, long intervals in the context of automatic periodic reviews may give rise to a violation of the mentioned provision.409 The question of whether periods comply with the requirement of ‘reasonable interval’ is determined by the ECtHR 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.410

404

See more in Commission, Return Handbook, pp. 132–135. ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 56. 406 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 64. 407 ECtHR, Judgment of 2 October 2012, No 14743/11, Abdulkhakov v. Russia, para 208. 408 ECtHR, Judgment of 17 July 2014, Nos 42351/13 and 47823/13, Kadirzhanov and Mamashev v. Russia, para 129. 409 Ibid.; According to the Commission, Return Handbook, p. 143. 410 ECtHR, Judgment of 2 October 2012, No 14743/11, Abdulkhakov v. Russia, para 215. 405

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3. Purposes of detention 30

By stating that ‘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’,411 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.

4. Necessity of initial detention 31

When deciding whether to detain an illegally staying third-country national, a competent administrative or judicial authority, after establishing that the detention pursues one of the legitimate purposes mentioned above, has to ascertain in the first place that the necessity grounds listed in Paragraph 1 exist412 and that the obstructive conduct of the third-country national concerned cannot be remediated by the application of less coercive measures than detention. Two explicit examples of an obstructive conduct of a third-country national 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 third-country national concerned (Article 15(1)(b)). Public policy concerns cannot constitute legitimate reason for detention under the Return Directive.413

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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 in the absence of national laws 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) – including the definition of national law414 – have an autonomous European law meaning,415 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.416 411

Emphasis added. On the mandatory requirement of the necessity of the initial detention, see FMS, C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, para 275. 413 ECJ, Kadzoev, C-357/09, EU:C:2009:741, para 70. Nevertheless, past behaviour/conduct of a person posing a risk to public order and safety may, however, be taken into account when assessing whether there is a risk of absconding, see Commission, Return Handbook, p. 140. 414 For the definition of ‘law’, see ECJ, Al Chodor, C‐528/15, EU:C:2017:213. On the qualities that ‘the law’ need to fulfil, see also FRA, Handbook on European law relating to asylum, borders and immigration (2020), pp. 211–212, available at: https://www.echr.coe.int/Documents/Handbook_asylum_ENG.pdf [last accessed 20 May 2021]. 415 See Acosta, in Peers et al (eds), EU Immigration and Asylum Law, p. 502. 416 For a detailed assessment of the national courts review of the domestic implementation of the risk of absconding, see Moraru, in Moraru/Cornelisse/de Bruycker (eds), Law and Judicial Dialogue, pp. 125–149. 412

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By stating that ‘consideration should go beyond the mere fact of an illegal stay’, 33 Recital 6 excludes illegal stay or even illegal entry alone417 from the list of ‘objective criteria’.418 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 third-country national has illegally entered the territory of a Member State and has not subsequently obtained an authorisation to stay in that Member State (see above MN 5). As regards other examples listed in Council proposals referring to the situations where a thirdcountry national 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 third-country national 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 grounds of the presumption of the risk of absconding.419 The list of general assumptions that there might be a risk of absconding can be 34 long,420 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 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 15 MN 22 and 23).421 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.422 Similarly, the criminal record alone and the subsequent assumption that the thirdcountry national 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.423 Moreover, if the assessment is based on the previous conduct of the person 417

Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1517. See further: Acosta, in Peers et al (eds), EU Immigration and Asylum Law, p. 495; FRA, Handbook on European law relating to asylum, borders and immigration (2020), p. 203, available at: https://www. echr.coe.int/Documents/Handbook_asylum_ENG.pdf [last accessed 20 May 2021]. 419 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. 420 See Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter IV of the Return Directive Pre-Removal Detention’, REDIAL Research Report 2016/05, available at: https://cadmus. eui.eu/bitstream/handle/1814/45185/MPC_REDIAL_2016_05.pdf?sequence=1&isAllowed=y, pp. 63–64 [last accessed 21 May 2021]; see also European Parliament, Evaluation of the implementation of the Return Directive (2020), pp. 86–87. 421 ECJ, El Dridi, Case C‐61/11 PPU, EU:C:2011:268, para 39. On the judicial application of the principle of individual assessment, see Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter IV of the Return Directive Pre-Removal Detention’, REDIAL Research Report 2016/05, available at: https://cadmus.eui.eu/bitstream/handle/1814/45185/MPC_REDIAL_2016_05. pdf?sequence=1&isAllowed=y, pp. 16–17 [last accessed 21 May 2021]. 422 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]. 423 Drews, ‘Die aktuelle Rechtsprechung des BGH zur Sicherungshaft nach dem Aufenthaltsgesetz’, Neue Zeitschrift für Verwaltungsrecht (2012), p. 396, referring to the decision of the German Bundesgerichtshof (Federal Court of Justice) from 14 July 2011 – V ZB 50/11, BeckRS 2011, 21191. 418

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concerned, the lapse of time between such conduct and the actual assessment might also be relevant.424 Therefore an illegal entry alone or even the use of smugglers cannot sufficiently establish an individual risk of absconding. The illegal entry jointly with the certain individual situations such as the high financial expenditure to enter illegally the territory of Member States have been considered by the German Federal Court be a valid indication that the person concerned might abscond.425 b) Avoiding or hampering the preparation of return or the removal process. There 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 préparatoires, 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 thirdcountry national 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. The criterion of avoiding or hampering return would require some sort of individual proof of previous behaviour obstructing the return proceedings. 36 Avoiding the preparation of return or the removal process might cover, in general, the failure to appear before competent authorities following convocation or to stay in touch with them when this is explicitly required.426 37 As regards hampering the preparation of return or the removal process this is a rather broad concept. It can cover a wide range of cases, in particular, when a thirdcountry national 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; v. refusal of the third-country national to board the plane.427 35

424 Ibid., with reference to German Bundesgerichtshof (Federal Court of Justice), Decision of 28 March 2011 – V ZB 14/10, BeckRS 2011, 14044. 425 In casu, the payment of 5.000 EUR, see German Bundesgerichtshof (Federal Court of Justice), Decision of 3 May 2012 – V ZB 244/11, BeckRS 2012, 14183. Drews, ‘Die aktuelle Rechtsprechug des BGH zur Sicherungshaft nach dem Aufenthaltsgesetz’, Neue Zeitschrift für Verwaltungsrecht (2013), p. 259. 426 § 62(1) of the German Residence Act, for instance, lists two explicit examples of such conduct: when a third-country national 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 when the period allowed for (voluntary) departure has expired and the third-country national has changed his or her place of residence without notifying the foreigners authority of an address at which he or she can be reached. 427 See Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter IV of the Return Directive Pre-Removal Detention’, REDIAL Research Report 2016/05, https://cadmus.eui.

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Other examples of an obstructive conduct on the part of the third-country nationals 38 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 put 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.

5. Alternatives to detention 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 ECJ 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.’428 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. Paragraph 1 does not give any indication about how far the Member States 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 Member States 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.’ 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 is (i) whether the competent administrative or judicial authorities are required to assess every available or possible alternative to detention,429 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:

eu/bitstream/handle/1814/45185/MPC_REDIAL_2016_05.pdf?sequence=1&isAllowed=y, p. 19 [last accessed 21 May 2021]. 428 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. 140. 429 On the available alternatives to detention in the Member States see: Fundamental Rights Agency 2020 Handbook on European law relating to asylum, borders and immigration, p. 202, available at: https://fra. europa.eu/sites/default/files/fra_uploads/fra-2020-handbook-law-asylum-migration-borders-2020-ed_en.pdf [last accessed August 2021].

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‘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.’430 43 Thus, it can be assumed that in line with this system of gradation, the national 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 third-country national 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.431 44 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. This would oppose any group- or nationality-based automatic general assumptions.432

6. 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. 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 ECJ 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 45

430

ECJ, El Dridi, C 61/11 PPU, EU:C:2011:268, para 41. 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 20 May 2021]. See further on alternatives to detentions: EU Fundamental Rights Agency, Detention of third-country nationals in return procedures (2010), p. 49 seqq. [last accessed 20 May 2021]. 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 20 May 2021]; 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 20 May 2021]; FRA, Handbook on European law relating to asylum, borders and immigration [2020], pp.203–205, https://www.echr.coe.int/Documents/Handbook_asylum_ENG.pdf [last accessed 20 May 2021]; Tsourdi, in Moraru/Cornelisse/de Bruycker, Law and Judicial Dialogue, pp. 167–191. 432 On this issue within the context of the prohibition of collective expulsion, see Leboeuf/Carlier, in Moraru/Cornelisse/de Bruycker, Law and Judicial Dialogue, pp. 455–475. 431

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be executed with due diligence, provided that it is necessary to ensure successful removal.’433 This link between the length and the purpose of detention is in line with the relevant ECtHR 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.434 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.435 In the ECtHR 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.’436 a) Due Diligence. The due diligence requirement is a well-established criterion in 47 the relevant ECtHR case-law. In its judgment in the case Djalti v. Bulgaria437 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.438 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.439 In another case against Bulgaria (Amie and Others v. Bulgaria), the ECtHR 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.440 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) 433

ECJ, Kadzoev, C‐357/09 PPU, EU:C:2009:741, para 64. See recently ECtHR, Judgment of 23 July 2013, No 42337/12, Suso Musa v. Malta, para 93 and the case-law cited. 435 ECtHR, Judgment of 11 July 2006, No 13229/03, Saadi v. the United Kingdom, para 72. 436 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. and others v. Greece, para 8. 437 ECtHR, Judgment of 12 March 2013, No 31206/05, Djalti v. Bulgaria. 438 Ibid., para 53. 439 Ibid., para 54. 440 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 41416/08, M. and Others v. Bulgaria, para 71. 434

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ECHR.441 Furthermore a breach of the due diligence might result not only from a lack of action, but also, when from substantive deficiencies in review.442 48

b) Removal arrangements in progress. The requirement of Paragraph 1(2) that 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.443 Hence, despite the fact that proceedings are suspended, the court considers the requirement ‘action is being taken’ as, nevertheless, fulfilled in these cases.444 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’.445 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.446

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c) Impact of lodging an asylum application on the length of detention. According to a consistent line of ECJ judgments447, when a third-country national 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.448 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 third-country national 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).449 The ECJ held that it is necessary that all the legal effects of return decision adopted before the asylum application must be suspended and, in particular, ‘that the period granted for voluntary departure in accordance with Article 7 of Directive 2008/ 115 should not start to run as long as the person concerned is allowed to remain. In addition, during that period, that person may not be held in detention with a view to removal pursuant to Article 15 of that directive.’450

441

ECtHR, Judgment of 25 January 2005, N o 60538/00, Singh c. République Tchèque, para 62. ECtHR, Judgment 25 April 2019, No 62821/16, V.M. v. the United Kingdom. 443 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. 444 ECtHR, Judgment of 17 January 2012, No 22426/10, Keshmiri v. Turkey (No 2), para 34. 445 ECtHR, Judgment of 27 September 2011, No 39417/07, Alim v. Russia, para 60. 446 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. 447 ECJ, Kadzoev, C-357/09 PPU, EU:C:2009:741; ECJ, Arslan, C-534/11, EU:C:2013:343; ECJ, Gnandi, C‐181/16, EU:C:2018:465, para 59, and order of 5 July 2018, C and Others, C‐269/18 PPU, EU: C:2018:544, para 47; ECJ, FMS, Joined Cases C-924/19 PPU, EU:C:2020:367. 448 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. 449 ECJ, Kadzoev, C‐357/09 PPU, EU:C:2009:741, para 47. 450 ECJ, Gnandi, C‐181/16, EU:C:2018:465, para 62. 442

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7. Reasonable prospect of removal In accordance with Paragraph 4, the existence of a reasonable prospect of removal is 50 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. Since Paragraph 5 as well as the relevant ECJ case-law451 require that the removal be 51 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’452 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 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 unlawful from the outset,453 or continues to be, justified.’454 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 detention455 that a real prospect exists that the removal can be carried out successfully’.456 Two key questions arise in the context of the assessment if there is a reasonable 52 (realistic) prospect of removal: first, which factors have to be taken into account when 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 Member State 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 Member States do not (or due to the lack of resources, cannot) pursue return procedures with due diligence or if the thirdcountry national 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 451

ECJ, Kadzoev, C‐357/09 PPU, EU:C:2009:741, para 64. Emphasis added. 453 Emphasis added. 454 ECtHR, Judgment of 12 February 2013, No 58149/08, Amie and Others v. Bulgaria, para 77, also referring to Ali v. Switzerland, No 24881/94, Commission’s report of 26 February 1997 (unpublished), § 41, and ECtHR, Judgment of 19 February 2009 (GC), No 3455/05, A. and Others v. the United Kingdom, para 167. 455 Emphasis added. 456 ECJ, Kadzoev, C‐357/09 PPU, EU:C:2009:741, para 65. 452

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third-country national can be successfully removed and also for defining in which timeframe 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 ECtHR Court, when assessing the realistic prospect of removal, is mainly focused on due diligence of the expelling country, financial resources at its disposal457 and especially the conduct of a country of potential return, since the judgment in the case of Mikolenko458 the Court started attributing particular attention to the conduct of the third-country national concerned as well. Thus, in Mikolenko459and the subsequent case-law460, the Court made it clear that the conduct of the third-country national 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. 54 Three other interesting aspects can be noted from the ECtHR case-law concerning a realistic prospect of removal. First, as indicated in Tabesh461, 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.462 Third, when national legislation provides for fixed time-limits of detention, the length of the ECtHR proceedings, in particular, when the Rule 39 is being applied, has to be considered in the assessment of the reasonable prospect of removal.463 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 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.464 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.465

457

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. 459 Ibid., para 64. 460 See e. g. ECtHR, Judgment of 9 April 2013, No 27770/08, Abdi v. The United Kingdom, para 177. 461 ECtHR, Judgment of 26 November 2009, No 8256/07, Tabesh v. Greece, para 62. 462 ECtHR, Judgment of 23 July 2013, No 42337/12, Suso Musa v. Malta, para 104. 463 ECtHR, Judgment of 20 December 2011, No 10486/10, Yoh-Ekale Mwanje v. Belgium, para 123. 464 German Bundesverfassungsgericht (Federal Constitutional Court), BVerfG of 27 February 2009, 2 BvR 538/07. See also German Bundesgerichtshof (Federal Court of Justice), Decision of 25 February 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. 465 Cf. BVerfG, Neue Juristische Wochenschrift (2009), p. 2659, 2660, § 23; German Bundesgerichtshof (Federal Court of Justice), Senat, Decision of 25 February 2010 – V ZB 172/09, Neue Zeitschrift für Verwaltungsrecht (2010), p. 726, 728, § 24. 458

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The list of ‘legal or other considerations’ can also include the following cases: 55 – an embassy in a given country refuses generally the cooperation in cases of forced return and accepts only voluntary returns;466 – return is impossible where there is no functioning airport in the country of return or there is no route of return;467 – 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;468 – 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 56 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 ECJ 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 2008/115,469 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.’470 Having regard to the cited dictum using the wording ‘periods laid down in Article 15 57 (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 linked to the cooperation of a third-country national (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 58 the intensity of the assessment regarding the possibility of removal, the following statement of the Advocate General Mazák 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, 466 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 20 May 2021]. 467 Ibid., p. 24. 468 Cf. EU Fundamental Rights Agency, Detention of third-country nationals in return procedures (2010), p. 26. 469 Emphasis added. 470 ECJ, Kadzoev, C‐357/09 PPU, EU:C:2009:741, para 65.

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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.’471 The ECJ shares this view in that it requires the existence of ‘a real prospect’ of removal.472 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 cases473 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.474 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.475 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.476 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 time-frame within which particular measures can be taken under normal circumstances.477

8. Maximum time-limits of detention and re-detention 59

While Paragraph 5 sets a general upper time-limit of detention at maximum 6 months, Paragraph 6 provides the possibility of the extension of detention for a further 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.478 In Ordre des barreaux francophones and germanophone and others479, the ECJ found that the maximum deadlines for detention under Article 15 could not be applied by analogy in the context of expulsion of EU citizen under the Free Movement Directive, since removal of an EU citizen to 471

AG Mazàk, Kadzoev, C‐357/09 PPU, EU:C:2009:691, para 35. ECJ, Kadzoev, C‐357/09 PPU, EU:C:2009:741, para 65. 473 Cf. Drews/Fritsche, ‘Die aktuelle Rechtsprechung des BGH zur Sicherungshaft’, Neue Zeitschrift für Verwaltungsrecht (2011), p. 531, referring to the relevant case-law of the German Federal Court of Justice. 474 Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter IV of the Return Directive Pre-Removal Detention’, REDIAL Research Report 2016/05, pp. 36–37. 475 Ibid. 476 Seem German Bundesverfassungsgericht (Federal Constitutional Court), BVerfG of 27 Feburary 2009, 2 BvR 538/07; Federal Constitutional Court, BVerfG of 15 December 2000, 2 BvR 347/00. 477 German Bundesgerichtshof (Federal Court of Justice), 27 October 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: Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter IV of the Return Directive Pre-Removal Detention’, REDIAL Research Report 2016/05, pp. 34–43. 478 The provision of a maximum duration of detention under the Directive has had a beneficial effect in those Member States that previously had not provided for it in their legislation or that had allowed a time-span longer than 18 months (in total eight countries). Nevertheless, it has been noted that a majority of Member States have increased their maximum duration of detention upon the transposition of the Directive, raising thus questions about the positive implication of the Directive on the time limit of detention at the domestic level, see more in Majcher, The European Union Returns Directive, Chapter 8: ‘Permissibility of Detention’, p. 422. 479 ECJ, Ordre des barreaux francophones and germanophone and others, C-718/19, EU:C:2021:505. 472

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another Member State is by its nature likely to be subject to fewer administrative obstacles and therefore likely to take place within a shorter period of time than removal of a third-country national to a third country (see above Article 2 MN 18a). According to the ECJ’s recent interpretation of Paragraph 6 in the case of Mahdi,480 60 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;481 – 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 third-country national concerned is still avoiding or hampering the return procedures;482 – 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;483 – not limit him/herself to the matters adduced by the administrative authority concerned and consider any other elements that are relevant for its decision484 – 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);485 – establish a causal link between the conduct of the third-country national 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);486 – 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 third-country national concerned.487 The last point corresponds to the ECtHR case-law, according to which the lack of 61 cooperation by the third-country national 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.488 As confirmed by the ECJ in a consistent line of caselaw, the 18-month time-limit is 62 an absolute one, not allowing further detention of the third-country national concerned under the Directive.489 Consequently, where that period has expired, the person concerned has to be released immediately and his further detention cannot be justified 480

ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320. Ibid., para 59. 482 Ibid., paras 61, 69. 483 Ibid., para 62; ECJ, FMS, C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, para 293; The ECJ has the opportunity to clarify the extent of judicial review and remedies in the pending case C-39/21, Staatssecretaris van Justitie en Veiligheid. 484 Ibid., paras 62–64. 485 Ibid., paras 66–74. 486 Ibid., para 82. 487 Ibid., para 83. 488 ECtHR, Judgment of 12 March 2013, No 31206/05, Djalti v. Bulgarie, para 53. 489 ECJ, Kadzoev, C‐357/09 PPU, EU:C:2009:741; ECJ, FMS, C-924/19 PPU and C-925/19 PPU, EU: C:2020:367. 481

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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.490 63 A re-detention of a third-country within the maximum time-limits if circumstances have 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. 64 The German case-law provides an interesting example for the calculation of the 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.491 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.

490

Ibid., Kadzoev, para 71; FMS, para 293. Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter IV of the Return Directive Pre-Removal Detention’, REDIAL Research Report 2016/05, p. 48. 491

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Content mn. 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

I. General remarks Article 16, which needs to be read in the light of Recital 17, regulates the issue of 1 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.492 Accordingly, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.493 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.494 In the ECtHR case-law, conditions of detention can be assessed under two different 2 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 third-country national 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 wellbeing are adequately secured.495 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),496 access to outdoor exercise,497 natural light and fresh air (availability of ventilation),498 adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary 492

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. 494 Ibid. 495 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. 496 ECtHR, Judgment of 23 July 2013, No 55352/12, Aden Ahmed v. Malta, para 87; ECtHR, Judgment of 7 April 2005, No 53254/99, Karalevičius v. Lithuania, para 36; ECtHR, Judgment of 10 January 2012, Nos 42525/07 and 60800/08, Ananyev and Others v. Russia, paras 143–148. 497 ECtHR, Judgment of 10 January 2012, Nos 42525/07 and 60800/08, Ananyev and Others v. Russia, paras 150–152. 498 Ibid., paras 153–155. 493

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and hygienic requirements.499 The burden on the detention facilities as a result of the detention of high number of third-country nationals cannot absolve a Member State of its obligations under Article 3 due to the absolute character of that provision.500

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 reference to international and national standards (which was moved to the preamble and is now Recital 17).501 A new paragraph on providing information (now Paragraph 5) goes back to the initiative of the EP.502 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.503

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.504 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 lawenforcement authorities. 5 The obligation to detain illegally staying third-country nationals 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.505 The absence of special detention facilities in a federal part of a Member State whereas in another part of that Member State such facilities dispose of available places cannot justify the placement of a returnee in an ordinary prison.506 Furthermore, the consent of the detainee to be detained in a prison together with ordinary prisoners does not exonerate states of their obligation under Article 16(1).507 The national authorities must therefore be able to detain third-country nationals in specialised detention facilities, as a rule.508 This implies a positive obligation of Member States to make sure that sufficient places in 4

499 ECtHR, Judgment of 23 July 2013, No 55352/12, Aden Ahmed v. Malta, para 88; ECtHR, Judgment of 10 January 2012, Nos 42525/07 and 60800/08, Ananyev and Others v. Russia, paras 156–159. 500 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. 501 See Lutz, The Negotiations on the Return Directive, p. 353–357. 502 See European Parliament doc. A6-0339/2007 of 20 September 2007. 503 See Lutz, The Negotiations on the Return Directive, p. 69–70. 504 Achermann/Künzli/von Rütte, 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 20 May 2021]. 505 ECJ, C-473/13, Bero and Bouzalmate, EU:C:2014:2095, para 28. 506 Ibid., para 33. See also Commission, Return Handbook, p. 148. 507 ECJ, Pham, C-474/13, EU:C:2014:2096, para 24. 508 Ibid., para 29.

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detention facilities are available for a foreseeable number of irregular migrants who might be detained in the future.509 This requirement constitutes a substantive condition for that detention, without observance of which the latter would, in principle, not be consistent with the Directive. The derogation from the abovementioned general rule, foreseen in the second 6–7 sentence of Paragraph 1 and allowing Member States to place pre-removal detainees in exceptional cases in ordinary prisons, but separated from ordinary prisoners, must be interpreted restrictively.510 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 Member State which otherwise disposes of an adequate/reasonable number of specialised facilities.511 Paragraph 1 provides for an unconditional obligation requiring illegally staying 8–9 third-country nationals to be kept separated from ordinary prisoners when in exceptional cases a Member State cannot place those third-country nationals in specialised detention facilities. This also applies to the third-country nationals who have previously served a prison sentence.512 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.513 However, the ECJ confirmed that in regard to those third-country nationals who have been found to pose a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned, they can be detained in prison accommodation for the purpose of removal, but separate from ordinary prisoners.514

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 10 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);515 to provide detainees with information which explains the rules applied in the facility and sets out their rights and obligations (Paragraph 5);516 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).517 Despite the fact that Article 16 does not regulate other detention conditions, such as 11 the size of rooms, access to sanitary facilities, access to open air, nutrition, etc. in 509

Commission, Return Handbook, p. 147. 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. 511 Commission, Return Handbook, p. 148. 512 Ibid. 513 Ibid. 514 ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:511. 515 See for definition of vulnerable persons Article 3(9). 516 Commission, Return Handbook (pp. 148–149) recommends that this information be given as soon as possible and not later than 24 hours after arrival. 517 This right must be granted directly to the concerned bodies, independently of a concrete invitation from the detainee. See more Commission, Return Handbook, pp. 148–150. 510

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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 ECtHR 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’),518 devoted to the special needs and status of irregular migrants in detention; and the 2006 European Prison Rules519 as basic minimum standards on all issues not addressed by the aforementioned standards.520

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..................................................................

mn. 1 2 3

I. General remarks 1

Article 17 has to be interpreted with due regard to the relevant provisions of the 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.521 In another judgement (Popov v. France), the Court deplored the legal vacuum in France, 518 CoE 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. 519 Recommendation Rec(2006)2 of the Committee of Ministers to Member States. 520 See Commission, Return Handbook, pp. 149–153. 521 ECtHR, Judgment of 19 January 2010, No 41442/07, Muskhadzhiyeva and Others v. Belgium.

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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.522 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.523 In another case against France, the ECtHR found that the replacement of house arrest with detention due to the refusal to board a return flight violated Article 5, since the applicants had previously respected the measure of house arrest.524 The principle of last resort of minors’ detention is thus an established principle in the ECtHR caselaw.

II. Drafting history In the initial Commission proposal, the issue of detention of minors was covered in 2 the same Article as detention conditions. The fact that this issue is now regulated in a separate, more elaborate provision goes back to the initiative of the European Parliament who formulated the proposed amendment in almost the same terms as the Guideline No 11 from the CoE Twenty Guidelines on Forced Return.525 During the trilogue negotiations, the proposed amendment was subject to some changes, including the rejection of the prohibition of detention of unaccompanied minors.526 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.527

III. Detention of minors and family Paragraph 1, corresponding to CoE Guideline No 11(1), provides for a clear obliga- 3 tion 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 522

ECtHR, Judgment of 19 January 2012, Nos 39472/07 and 39474/07, Popov v. France, para 96. ECtHR, Judgment of 12 October 2006, No 13178/03, Mubilanzila Mayeka and Kaniki Mitunga, para 103. 524 ECtHR, Judgment 12 October 2016, No 68264/14, R.K. and Others v. France, para 85; for a detailed analysis of the ECtHR caselaw on immigration detention of minors, see Majcher, The European Union Returns Directive, Chapter 10: ‘Conditions of Detention’; on the harmful effect of detention on children, see Farmer, ‘The Impact of Immigration Detention on Children’, Forced Migration Review 44 (2013), p. 14–16. 525 European Parliament doc. A6-0339/2007 of 20 September 2007. 526 See Amendment 23; and the Trilogue Table in Lutz, The Negotiations on the Return Directive, p. 358–359. 527 See Lutz, The Negotiations on the Return Directive, p. 70. 523

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4

5

6

7

Return Directive 2008/115/EC

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.528 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 third-country national concerned and another one in respect to his or her child (or children). 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). 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) 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 Guideline 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,529 providing specific rules with regard to the exercise of the right to education of detained children.530 It should be mentioned here that the CPT531 standards related to detention of minors provide further interpretative guidance for the proper application of Article 17.532 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.

528 See Matrix, Evaluation on the application of the Return Directive, p. 60; Moraru/Renaudiere, ‘European Synthesis Report on the Judicial Implementation of Chapter IV of the Return Directive PreRemoval Detention’, REDIAL Research Report 2016/05, p. 55. 529 Adopted by General Assembly Resolution 45/113 of 14 December 1990. 530 See Paragraph 38. 531 CoE Committee on the Prevention of Torture. 532 See paras 97–100 of the CPT standards.

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Chp. 11

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,533 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 facilities534; and the obligation to provide separate accommodation guaranteeing adequate privacy to families) in emergency situations involving the sudden arrival of large numbers of irregular migrants535. Derogations to other rules contained in the Directive are not possible.536 Article 18 describes and limits the situations covered, as well as the scope of possible 2 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. Information concerning a possible use of the emergency clause should be passed by 3 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.

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. The Commission published its first application report on 28 March 2014 (see 1 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, however it was not published. Instead the European Parliament published in 2019 an implementation assessment of the Directive.537

533

Lutz, The Negotiations on the Return Directive, p. 70–71. The use of Article 18 in respect to detention conditions is subject of the pending ECJ Case, Landkreis Gifhorn, C-519/20. 535 ECJ, Commission v. Hungary, C-808/18, EU:C:2020:1029, para 264. 536 Commission, Return Handbook, p. 86. 537 European Parliament, European Implementation Assessment June 2020, EPRS_STU(2020)642840. 534

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Chp. 11 Art. 20

Return Directive 2008/115/EC

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. 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. 1

Articles 20–23 are standard final provisions which are self-explanatory.538 The Directive entered into force on 13 January 2009. 538 See for further details Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1550–1552.

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Chapter 12. Blue Card Directive 2009/50/EC Select Bibliography: Carlitz/Schmidt, ‘Arbeitsmarktzugang von Familienangehörigen in den neuen Migrationsrichtlinien – Akzessorietätsgrundsatz als Stolperstein?’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2010), p. 309–316; Eichenhofer, ‘Bewertung der Kommissionsvorschläge zur Arbeitsmigration: Europa- und sozialrechtliche Rahmenbedingungen und historische Erfahrungen’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2009), p. 81–86; Friðriksdóttir, ‘The Blue Card Directive’, in: What Happened to Equality? (Brill/Nijhoff, 2017), p. 117–164; Guild, ‘EU Policy on Labour Migration: A First Look at the Commission’s Blue Card Initiative’, Centre for European Policy Studies 145 (2007), p. 1–7; Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos, 2014); Kalantaryan, ‘Revisions in the Blue Card Directive: Reforms, Constraints and Gaps’, Robert Schuman Centre for Advanced Studies Research Paper No RSCAS 2017/ 59, p. 1–23; Klaus, ‘Die Hochqualifizierten-Richtlinie 2.0: Geplante Novellierung der europarechtlichen Vorgaben zur Blauen Karte EU’, Zeitschrift für Ausländerrecht (2017), p. 60–72; Kolb, ‘From Brakeman to Booster: Policy change in Germany’s EU Labour Migration Policy’, International Migration 55 (2017), p. 11–21; Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2009), p. 219–229; Langenfeld/Kolb, ‘Der Kommissionsvorschlag einer neuen EU-Hochqualifiziertenrichtlinie’, Zeitschrift für Europäisches Wirtschaftsrecht (2016), p. 527–532; Lehner/Kolb, ‘Vorschlag zu einem Einwanderungsgesetz – Viel Lärm um wenig’, Zeitschrift für Rechtspolitik (2017), p. 34–37; Martín Asensio, ‘Die “Blue Card”-Richtlinie – eine Maßnahme der politischen Inkohärenz der EU im Interesse der Erreichung ihrer Ziele im Rahmen der EU-Entwicklungspolitik’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2010), p. 175–183; Mazzeschi, ‘The EU Policy to Attract Highly Skilled Workers: The Status of Implementation of the Blue Card Directive’, Journal of Management and Sustainability 6 (2016), p. 45–49; Peers, ‘Legislative Update: EC Immigration and Asylum Law Attracting and Deterring Labour Migration: The Blue Card and Employer Sanction Directives’, EJML 11 (2009), p. 387–426; Verschueren, ‘Employment and Social Security Rights of Third-Country Labour Migrants under EU Law: An Incomplete Patchwork of Legal Protection’, EJML 18 (2016), p. 373–408. 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.

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 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),

(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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Chp. 12 Art. 1

Blue Card Directive 2009/50/EC

Whereas: […] 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.

I. General remarks The Council Directive 2009/50/EC on the conditions of entry and residence of thirdcountry 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 hold a Blue Card and their family members may reside in a second Member State. 2 The Directive was adopted by the European Council by unanimity on 25 May 2009. The Directive is based on Article 63(1) No 3(a) and No 4 TEC (now Article 79(2)(a), (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 that 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 3 In 2016 the Commission made a proposal for a reform of the Directive.6 The Proposal is in line with the European Agenda on Migration (22 May 2015)7 and in the Commis1

1

See Blue Card Directive 2009/50/EC. See Commission Proposal, COM(2007) 637 final, p. 2, see also recital 3. 3 See recital 7. 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, p. 27–40. 6 COM(2016) 378 final. 7 Commission Communication, COM(2015) 240 final. 2

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sion’s Communication (6 April 2016),8 where the need of a reform was already indicated. The main objectives of the recast proposal are: Widening the scope of the Directive,9 reducing heterogeneity by abolishing competing national systems,10 simplifying conditions and procedures,11 extending rights,12 enhancing the intra-mobility,13 extending rights for family members and accelerating access to permanent residence permits.14 After initial negotiations, the process slowed down end of 2017. One of the major 4 obstacles was the suggested exclusivity of the Blue Card (see Article 3(4) of the Commission’s 2016 recast Proposal). The European Parliament supported firmly an EU-wide harmonization.15 The Member States in the Council were, however, interested in keeping the existing parallel national schemes.16 Another major impediment for negotiations was the suggested inclusion of ‘higher professional skills’ as an alternative to ‘higher education qualifications’ (see Article 2(g) of the Commission’s 2016 recast Proposal). Whereas the European Parliament was in favour of it,17 the Council underlined the importance to link professional experience with proven qualifications.18 Other differences finally existed regarding scope,19 salary thresholds,20 mobility,21 long-term residence,22 family members,23 labour market tests24 and unemployment.25 In its ‘New Pact on Migration and Asylum’ of 23 September 2020, the Commission acknowledged some of the Council’s concerns, in particular the wish of Member States ‘for flexibility through retaining national schemes’. The Commission, however, also underlined in the same communication that the reform of the Blue Card ‘requires more inclusive admission conditions, improved rights, swift and flexible procedures, improved possibilities to move and work in different Member States’ and that the ‘new 8

Commission Communication, COM(2016) 197 final. See also below Article 2 MN 7 and Article 3 MN 5. 10 See also below Article 3 MN 16. 11 See also below Article 5 MN 3 and 10 (conditions), Article 6 MN 1 (quota), Article 7 MN 3, Article 10 MN 2 and Article 11 MN 2 (procedure). 12 See also below Article 12 MN 8. 13 See Article 18 MN 4. 14 Article 15 MN 4 and 7 and Article 16 MN 3. 15 See European Parliament doc. A8-0240/2017 of 28 June 2017, p. 90. 16 See Council doc. 9570/17 of 29 May 2017, p. 2; Council doc. 15699/17 of 15 December 2017, p. 1, 4 et seqq.; Council doc. 15787/18 of 21 December 2018, p. 2–3 and Council doc. 13407/20 of 26 November 2020, p. 1–2 and 4–5. 17 See European Parliament doc. A8-0240/2017 of 28 June 2017, p. 33 and p. 39. See also Council doc. 13407/20 of 26 November 2020, p. 1–2 and 6 et seqq. 18 See Council doc. 9570/17 of 29 May 2017, p. 4; Council doc. 10552/17 of 24 July 2017, p. 2; Council doc. 15699/17 of 15 December 2017, p. 3; Council doc. 15787/18 of 21 December 2018, p. 2–3 and 11 and Council doc. 13407/20 of 26 November 2020, p. 1–2, 6 et seqq. 19 See European Parliament doc. A8-0240/2017 of 28 June 2017, p. 36 and 90; Council doc. 9570/17 of 29 May 2017, p. 3; Council doc. 10552/17 of 24 July 2017, p. 3, 8 and 29 and Council doc. 15787/18 of 21 December 2018, p. 7. 20 See European Parliament doc. A8-0240/2017 of 28 June 2017, p. 40, 41 and 90; Council doc. 9570/17 of 29 May 2017, p. 4; Council doc. 10552/17 of 24 July 2017, p. 3; Council doc. 15787/18 of 21 December 2018, p. 8–9; Council doc. 13407/20 of 26 November 2020, p. 1–2. 21 See European Parliament doc. A8-0240/2017 of 28 June 2017, p. 70–76 and 91; Council doc. 15787/18 of 21 December 2018, p. 17–18 and Council doc. 13407/20 of 26 November 2020, p. 1–2. 22 See Council doc. 15787/18 of 21 December 2018, p. 15–16 and Council doc. 13407/20 of 26 November 2020, p. 1–2, 9–13. 23 See European Parliament doc. A8-0240/2017 of 28 June 2017, p. 76–83; Council doc. 9570/17 of 29 May 2017, p. 9 and Council doc. 13407/20 of 26 November 2020, p. 1–2. 24 See European Parliament doc. A8-0240/2017 of 28 June 2017, p. 47; Council doc. 15787/18 of 21 December 2018, p. 12–13 and Council doc. 13407/20 of 26 November 2020, p. 1–2, 14–16. 25 See European Parliament doc. A8-0240/2017 of 28 June 2017, p. 51 and Council doc. 13407/20 of 26 November 2020, p. 1–2 and 13. 9

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EU-wide scheme should be open to recognising high-level professional skills and relevant experience.’26 In November 2020 negotiations were resumed through a political trilogue to discuss compromise packages.27 In these negotiations the Council signalled some flexibility, especially regarding aspects such as ‘higher professional skills’ and ‘mobility’. On the other hand, the European Parliament showed understanding regarding the interest of Member States to keep parallel national systems, as long as it does not lead to a discrimination of Blue Card holders or applicants.28 On 17 May 2021, a political agreement was reached.29 However, at the moment of finalizing this chapter the revised Directive was not formally adopted yet.

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 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 26

Commission Communication, COM(2020) 609 final, p. 25. See Council doc. 13407/20 of 26 November 2020, p. 2. 28 See Council doc. 13407/20 of 26 November 2020, p. 4. 29 See press release, available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_2522 [last accessed 21 May 2021]. 27

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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.

General remarks .............................................................................................. Third-country national (a) ........................................................................... Highly qualified employment (b)................................................................ EU Blue Card (c) ............................................................................................ First Member State (d) .................................................................................. Second Member State (e) .............................................................................. Family Member (f) ......................................................................................... Higher professional qualifications (g) ........................................................ Higher education qualification (h) ............................................................. Professional experience (i) ............................................................................ Regulated profession (j).................................................................................

mn. 1 2 3 8 9 10 11 12 13 14 15

I. General remarks Article 2 is a key provision as it provides definitions of the ten most important terms 1 used in the Directive. It provides an understanding and interpretation of the provisions to be applied uniformly in the Member States.

II. Third-country national (a) The term third-country national in Article 2(a) defines a third country national as 2 any person who is not an EU citizen. Article 2(a) relates to the former Article 17(1) of the TEC (now Article 20 TFEU), which stipulates that every person holding the nationality of a Member State shall be a citizen of the Union. A stateless person is by definition considered as a third-country national.

III. Highly qualified employment (b) The term ‘highly qualified employment’ (Article 2(b)) is one of the key definitions of 3 the Directive and based on three elements.30 The first element is the requirement that the person has to 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/EC was explicitly excluded.31 The drafting history shows as well that the term ‘employee’ is 30 In the Commission’s Proposal the term was based only on two elements, see Commission Proposal, COM(2007) 637 final, p. 9. 31 See Council doc. 12320/08 of 1 August 2008, p. 3.

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not identical with the term ‘worker’ used in Article 45 TFEU (ex. Article 39 TEC)32 and therefore maintains a national prerogative to define the term ‘employment’ for the purposes of the Directive. National courts and authorities are therefore not obliged to define the term ‘employee’ identically.33 Consequently, groups such as trainees and interns34 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. Major criteria, like the remuneration criteria, are identical. Differences exist with respect to the fixed salary criterion35 and the requested time period.36 Furthermore, the protection of the Directive may be withdrawn when the Blue Card holder applies for social assistance.37 4 Cross border workers, who work and live in two different Member States, do not fall under the Directive. This follows from its purpose: to provide a ‘one-stopshop’ system for granting third-country nationals a residence permit and a work permit in a single act. An inclusion of cross-border workers was rejected by the Council.38 5 In order to fulfil the criteria of an employee the work to be performed must be ‘genuine and effective’. While Article 45 TFEU is not directly applicable to thirdcountry nationals, the term ‘genuine and effective’ is to be interpreted in line with the established definition of ‘worker’.39 According to the ECJ, ‘genuine and effective’ work means all types of work with the exception of activities of limited duration, small amount, or irregular work.40 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.41 6 As a second element, the Directive requires that the activity ‘is paid’. The amount of 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 32 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. 33 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 an EU uniform meaning, see in particular, ECJ, Unger, C-75/63, EU:C:1964:19, para 1; ECJ, Raulin, C-357/89, EU:C:1992:87, para 10; ECJ, Lawrie-Blum, C-66/85, EU:C:1986:284, paras 16 and 17. 34 It is doubtful whether the category of ‘arbeitnehmerähnliche Personen’ is covered by the Directive. ‘Arbeitnehmerähnliche 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. 35 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, EU:C:2004:172, para 26. 36 Article 5(1)(a) requires a valid work contract or a binding job offer of at least one year. 37 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, EU:C:1986:223, paras 9, 14 and 16. 38 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. 39 See also Council doc. 5255/08 of 18 January 2008, p. 4 and Council doc. 8249/08 of 8 May 2008, p. 3. 40 See in particular, ECJ, Raulin, C-357/89, ECLI:EU:C:1992:87, paras 10, 13, ECJ, Kempf, C-139/85, EU:C:1986:223, para 10. 41 See Article 5(1)(a) and (3).

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the Member State concerned.42 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 is clearer. The German version: ‘die erforderliche, angemessene und spezifische Fachkompetenz besitzt, die durch einen höheren beruflichen Bildungsabschluss nachgewiesen ist’. The French version: ‘qui possède les compétences requises appropriées et spécifiques, attestées par des qualifications professionnelles élevées’. The Commission’s 2016 recast Proposal (see also above Article 1 MN 3) suggests widening the scope from ‘highly qualified employment’ to ‘highly skilled employment’. Article 2(b) of the Proposal defines that highly skilled employment is based on ‘the required competence, as proven by higher professional qualifications’. Article 2(g) of the Proposal states that such qualifications should mean ‘qualifications attested by evidence of higher education qualifications or higher professional skills’. The latter is defined in Article 2(i) of the Proposal as ‘skills attested by at least three years of professional experience of al level comparable to higher education qualifications and which is relevant in the profession or sector specified in the work contract or binding job offer’. As the Commission states in its Proposal the new concept of ‘highly skilled employment’ is meant to also take into consideration informal competences acquired by professional experiences.

IV. EU Blue Card (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.

V. First Member State (d) The Directive distinguishes between first and second Member States. The term ‘first 9 Member State’ refers to the State in which a highly qualified third-country national is first granted the ‘Blue Card’.

VI. Second Member State (e) A ‘second Member State’ is defined as any Member State other than the first Member 10 State. Given that a Blue Card holder can move to more than two Member States, the ‘second Member State’ may also be a third or some other consecutively numbered Member State (see Article 18(8)). 42

See Commission Proposal, COM(2007) 637 final, p. 9.

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VII. Family Member (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.

VIII. Higher professional qualifications (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 13). 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 post-secondary diploma to exercise their activity (experienced managers, certain IT professionals, etc).43 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’. 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.44 However, Article 2(g) explicitly provides that ‘higher professional qualifications’ can also be established by ‘professional experience’ when provided by national law. 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. For the relevant changes suggested in the Commission’s 2016 recast Proposal see above Article 2 MN 7.

IX. Higher education qualification (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. ‘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 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;45 the German version, however, refers explicitly to both alternatives: public higher education institutions and institutions 43

See Commission Proposal, COM(2007) 637 final, p. 9. 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. 45 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). 44

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recognised as such by the State in which they are located.46 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 recognise such qualifications. Also, it is unclear what kind of obligations Member States have if the studies 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 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. It 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 most probably 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 (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. For the relevant changes suggested in the Commission’s 2016 recast Proposal see above Article 2 MN 7.

XI. Regulated profession (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 Directive 2005/36/ EC, now amended by Article 3(1)(a) of Directive 2013/55/EU (OJ 2013 L 354/132).47 This means that access to certain (regulated) professions is restricted to holders of specific qualifications.

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. See the German version: ‘in einer staatlichen oder staatlich anerkannten Hochschule’, see Article 2(h). Directive 2013/55/EU (OJ 2013 L 354/132) amending Directive 2005/36/EC on the recognition of professional qualifications and others. 46 47

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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 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. (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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Content I. General remarks .............................................................................................. II. Scope of the Directive (1) ............................................................................. III. Exclusion from the scope of the Directive (2) ......................................... 1. Persons under temporary protection (a)............................................... 2. Persons under refugee or subsidiary protection status (b) ............... 3. Beneficiaries of protection (c).................................................................. 4. Researchers (d)............................................................................................ 5. Family members of EU citizens (e)........................................................ 6. Long-term residents (f) ............................................................................. 7. Persons entering in accordance with an international agreement (g) ................................................................................................................... 8. Seasonal workers (h).................................................................................. 9. Persons whose expulsion has been suspended (i)............................... 10. Posted workers (j)....................................................................................... 11. Persons enjoying free movement rights (Article 3(2) subparagraph 2) .......................................................................................... IV. Assurance of ethical recruitment (Article 3(3)) ....................................... V. Coexistence of national provisions (Article 3(4))....................................

mn. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

I. General remarks According to Article 3(1) the Directive is applicable to third-country nationals who 1 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 first Commission’s Proposal was to ensure that those applicants who meet all the relevant requirements should be admitted by the requested Member State exclusively on the basis of the Directive, rather than on the basis of national schemes.48 However, due to insistence by representatives of Member States who wanted more flexibility, Article 3(4) was introduced (see also MN 16).

II. Scope of the Directive (1) According to Article 3(1), the Directive shall apply to third-country nationals who 2 ‘apply’ to be admitted into the territory of a Member State for the purpose of highly qualified employment. The somewhat imprecise wording does not exclude persons whose application has already been granted.

III. Exclusion from the scope of the Directive (2) Article 3(2) excludes certain groups from the scope of the Directive. They can be 3 largely divided into three categories. The first group constitutes persons who are authorised to reside in a Member State for humanitarian reasons, or who have applied 48

Council doc. 8249/08 of 8 May 2008, p. 9.

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for a residence permit on such grounds.49 The second group is made up of persons who fall or may fall under special provisions.50 Finally, the third group is made up of persons for whom their expulsion has been suspended for reasons of fact or law.51

1. Persons under temporary protection (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 on that basis and 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. This means that persons who enjoy more favourable provisions for temporary protection according to national law are also excluded.52 The wording in other versions of the Directive supports this interpretation. The French version, for example, states ‘en vertu d’une protection temporaire’ and, 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 protección temporal’.

2. Persons under refugee or subsidiary protection status (b) 5

Article 3(2)(b) excludes two categories of persons. First, the Directive excludes 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’ probably also includes judicial remedies.53 The Commission’s 2016 Proposal for a reformed Directive (see above Article 1 MN 3) aims at an inclusion of beneficiaries of international protection in order to promote their integration and to avoid ‘wasting their skills’.54

3. Beneficiaries of protection (c) 6

Article 3(2)(c) excludes two categories of persons. First, it excludes persons who are already granted protection in accordance with national law, international obligations or the practices of the Member State. Second, it excludes persons who have filed an application for protection that have not yet given rise to a final decision. The term in accordance with ‘national law’ excludes all persons who are not already excluded by Article 3(2)(b). ‘International obligations’ are obligations imposed by international conventions, such as Article 3 CAT, Article 3 ECHR and Article 7 ICCPR. 49

See Article 3(1)(a), (b) and (c). See Article 3(1)(d), (e), (f), (g), (h) and (j). 51 See Article 3(1)(i). 52 See also Article 3(5) of the Temporary Protection Directive 2001/55/EC which allows Member States to adopt or retain more favourable conditions for persons covered by temporary protection. 53 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. 54 Commission Proposal, COM(2016) 378 final, p. 14. 50

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4. Researchers (d) The wording of Article 3(2)(d) excludes persons who apply to enter a Member State 7 as a researcher under the former Researchers Directive 2005/71/EC. Following Article 41(2) of the Students and Researchers Directive (EU) 2016/801 all references to the former Researchers Directive 2005/71/EC shall now be construed as references to the Students and Researchers Directive (EU) 2016/801.55 Persons who are granted residence as researchers are not excluded from the scope of the Directive. Hence the Directive allows researchers already residing in the territory of a Member State to may change their status under the condition that existing quotas are not exhausted.

5. Family members of EU citizens (e) Article 3(2)(e) refers to Article 2 No 2 of the Free Movement Directive 2004/38/EC 8 and excludes family members of EU Citizens who have exercised or are exercising their right to free movement within the Community in conformity with the Free Movement Directive 2004/38/EC. The term ‘family member’ 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 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 (f) Article 3(2)(f) excludes those persons who enjoy EC long-term resident status in a 9 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 (g) Article 3(2)(g) excludes persons who enter a Member State in accordance with an 10 international agreement, facilitating the entry and temporary stay of certain categories of trade and investment-related natural persons. This concerns especially the GATS.56

8. Seasonal workers (h) Article 3(2)(h) excludes seasonal workers. The term refers to the Seasonal Workers 11 Directive 2014/36/EU. The seasonal worker must be admitted as such to the territory of the Member State.

9. Persons whose expulsion has been suspended (i) Article 3(2)(i) excludes third-country nationals whose expulsion has been suspended 12 for reasons of fact or law. Article 3(2)(i) includes national and international provisions, 55 Directive (EU) 2016/801 (OJ 2016 L 132/21) on the conditions of entry and residence of thirdcountry nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing. 56 See also Peers, Legislative Update, p. 391.

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such as family protection under Article 8(1) or non-refoulement under Article 3 ECHR.57 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 (j) 13

Article 3(2)(j) excludes persons who are covered by Directive 96/71/EC58 as long as these persons are posted on the territory of the relevant Member States. It is not clear whether persons are also 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 State concerned’ indicates a restrictive interpretation whereby the person is only excluded if he/she applies for a Blue Card in the same Member State.

11. Persons enjoying free movement rights (Article 3(2) subparagraph 2) 14

The second subparagraph of Article 3(2) excludes third-country nationals and family 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.59

IV. Assurance of ethical recruitment (Article 3(3)) 15

Article 3(3) provides for an exclusion of persons listed in an agreement between the EU and developing third countries in order to protect such countries against brain drain.60 Whereas Article 3(3) requires an agreement between the EU and a developing country (no such agreement has been concluded until now), Article 8(4) allows 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. See also recital 22.

V. Coexistence of national provisions (Article 3(4)) 16

Article 3(4) allows Member States to maintain or establish national provisions granting an alternative access to a residence permit for highly qualified employment.61 National law may provide for more or less favourable conditions. National residence permits not 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). 57

See ECtHR, Judgement of 15 November 1996, No 22414/93, Chahal v. UK. Posted Workers Directive 96/71/EC. 59 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 Decision No 1/2020 of the Joint Committee established under the 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 of 15 December 2020 amending Annex II to that Agreement on the coordination of social security schemes (OJ 2020 L 42/15). 60 For ethical recruitment and circular migration see also Martín Asensio, Die ‘Blue Card’-Richtlinie, p. 180–182. 61 For the competing national schemes see Kolb, From Brakeman to Booster, p. 15 et seqq. 58

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The Commission’s 2016 recast Proposal (see above Article 1 MN 3) includes a reformulation of Article 3(4): ‘Member States shall not issue any other permit than an EU Blue Card to third-country nationals for the purpose of highly skilled employment.’ This recast Proposal thus aims to remove the existing inconsistencies regarding the parallel national schemes.62

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 .............................................................................................. II. More favourable provisions of EU law, and bilateral and multilateral agreements (Article 4(1)) .............................................................................. III. More favourable national provisions (Article 4(2)) ................................

mn. 1 2 3

I. General remarks Whereas Article 3(4) allows Member States to issue national residence permits as an 1 alternative to the Blue Card, 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 Member States were not allowed 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 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. The possibility to grant more favourable conditions was introduced only after Article 3(4) was inserted. The exclusion of more favourable conditions after the introduction of Article 3(4) was meaningless as Member States could just create a national scheme with a lower threshold for admission.63 The introduction of the more favourable clause was also for another 62 Commission Proposal, COM(2016) 378 final, p. 3 and 14. See also for this ‘hierarchical solution’ Langenfeld/Kolb’ Der Kommissionsvorschlag einer neuen EU-Hochqualifiziertenrichtlinie, p. 529. See also Kalantaryan, Revisions in the Blue Card Directive, p. 8. 63 Guild, EU Policy on Labour Migration, p. 4.

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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 Workers64 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)) 2

According to Article 4(1), the Directive does not preclude provisions that are more favourable under EU law or under bilateral and multilateral existing as well as future agreements of the EU and/or the Members States with third countries (existing as well as future agreements).65 From the purpose of the provision and its systematic context it follows that the term ‘more favourable’ refers to third-country nationals applying for a residence permit.

III. More favourable national provisions (Article 4(2)) 3

Article 4(2) allows Member States to provide more favourable provisions only with 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 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: (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; 64 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. html [last accessed 21 May 2021]. 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. 65 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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(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 mn. I. General remarks .............................................................................................. 1 II. Mandatory criteria for admission (Article 5(1))...................................... 2 1. Valid work contract or job offer (a)....................................................... 3 2. Regulated profession (b) ........................................................................... 4 3. Unregulated profession (c) ....................................................................... 5 4. Travel document, visa, residence permit (d)........................................ 6 5. Sickness insurance (e)................................................................................ 7 6. Threat to public policy, security or health (f)...................................... 8 III. Facultative criteria for admission (Article 5(2)) ...................................... 9 IV. Salary criterion (Article 5(3), (4), (5) and (6))......................................... 10

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I. General remarks 1

Article 5 lays down the conditions for admission. Besides general admission conditions, which are also common to other directives in the field of migration law,66 Article 5 mentions 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. The final provision differs from the Commission’s Proposal but was not changed in its substance.67 Article 5 (3) 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, was removed.68

II. Mandatory criteria for admission (Article 5(1)) 2

Article 5(1) sets out the criteria that are required for third-country nationals.

1. Valid work contract or job offer (a) 3

As admission is demand-driven, a valid work contract or a binding job offer must be presented (Article 5(1)(a)). 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.69 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 as it suggests 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). 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 year only when combined together. The work contract or job offer 66

See Article 7(1)(a) and (c) and Article 7(6) of the Students and Researchers Directive (EU) 2016/801. See Council doc. 11512/08 of 24 July 2008, p. 9. 68 See Article 6 of the Commission Proposal, COM(2007) 637 final, p. 22. 69 See also Council doc. 6051/08 of 28 February 2008, p. 4. 67

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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). The Commission’s 2016 recast Proposal (see above Article 1 MN 3) provides that the required length of contract is shortened from 12 to 6 months compared to the current Directive (Article 5(1)(a) of the Proposal).

2. Regulated profession (b) Article 5(1)(b) must be read together with Article 5(1)(c) and Article 14((1)(c). 4 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 (see also interpretation below Article 14 MN 6). 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.70 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 indicates that different rules should apply in such cases (‘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 an 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’.71 According to the Hocsman case, the obligation of Member States to take into account qualifications acquired in a third country may, under certain circumstances, 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.72 70 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.’ 71 ECJ, Hocsman, C-238/98, EU:C:2000:440, paras 35 and 36. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 99–102. 72 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 99–102.

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3. Unregulated profession (c) 5

The admission requirement of Article 5(1)(c) must be analysed together with Article 14((1)(c) which relates to the rights of third-country nationals who are already Blue Card-holders (see below Article 14 MN 6). 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 as defined in Article 2(g).

4. Travel document, visa, residence permit (d) 6

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.73

5. Sickness insurance (e) 7

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.74

6. Threat to public policy, security or health (f) 8

According to Article 5(1)(f), the third-country national must not be considered a ‘threat to public policy, public security and public health’. The wording of the provision appears in an identical form in Article 7(6) of the Students and Researchers Directive (EU) 2016/801. The terms ‘public order’, ‘public security’ and ‘public health’ also appear, with a slightly different wording, in Article 9(3)(a) of this Directive and 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) 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 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. Member States have a large discretion regarding the admission of a third-country national into their territories as a part of their sovereignty. The principles developed by the ECJ concerning the terms ‘public policy’ and ‘public security’ with regard to EU citizens are therefore not applicable for third-country nationals. The terms ‘public policy’ and ‘public security’ have to be defined autonomously in the Directive. Interpreting them is left to the discretion of the Member States, which is true for the term ‘public health’ as well. As the ECJ ruled out in a case concerning the identical clause for the admission of a doctoral student, ‘the competent national authorities have a wide discretion in assessing the facts’ and therefore ‘judicial review is limited, as far as that assessment is concerned, to the absence of manifest error’.75 73

See Article 7(1)(a) of the Students and Researchers Directive (EU) 2016/801. See Article 7(1)(c) of the Students and Researchers Directive (EU) 2016/801. 75 ECJ, Fahimian, C-544/15, EU:C:2017:255, para 46. 74

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III. Facultative criteria for admission (Article 5(2)) According to Article 5(2), Member States may require the applicant to provide his/ 9 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)) Article 5(3) requires that the gross annual salary cannot be inferior to at least 1.5 10 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 parttime job).76 The Member States remain free to define any higher salary threshold.77 This is also underlined in recital 10. 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). Member States have some discretion in the calculation of their salary threshold. If after 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 and 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). It 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 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 (ISCO).78 This provision concerns managers79 and professionals.80 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 76

Council doc. 6051/08 of 28 February 2008, p. 4 footnote 4. Therefore, the national requirements differ significantly, see Kolb, From Brakeman to Booster, p. 14 et seq.; Mazzeschi, The EU Policy to Attract Highly Skilled Workers, p. 2 et seqq. 78 See also the complete list, available at: http://www.ilo.org/public/english/bureau/stat/isco/docs/resol08.pdf [last accessed 21 May 2021]. 79 Mentioned are: chief executives, senior officials and legislators, administrative and commercial managers, production and specialized services managers, hospitality, retail and other services managers. 80 Mentioned are: science and engineering professionals, health professionals, teaching professionals, business and administration professionals, information and communications technology professionals, legal, social and cultural professionals. 77

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Member States who voiced concerns that the determination of the salary threshold may have negative effects on their local systems of wages.81 The Directive fully respects the competences of Member States, particularly with regard to employment, labour and social matters. The Commission’s 2016 recast Proposal (see above Article 1 MN 3) provides that the salary threshold should be lower at least 1.0 times (but not higher than 1.4 times) the average gross annual salary in the Member State concerned (see Article 5(2) of the Proposal). For highly needed workers belonging to major groups 1 and 2 of ISCO and for third-country nationals ‘who have obtained a higher education qualification not more than three years before submitting the application for an EU Blue Card’ (‘career starter-clause’),82 the salary threshold would be 80 percent of the ordinary salary threshold (see Article 5(4) and (5) of the 2016 recast Proposal).

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. 1

Article 6 must be considered together with Article 8. Article 8(3), which also refers to Article 6, 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, see also Article 79(5) of the TFEU. This right also includes the ability to not grant residence permits to certain professions, economic sectors or regions.83 The volume can also be set at zero. 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, thirdcountry nationals have no individual right to admission, even if all conditions set out under Articles 3 and 5 are fulfilled.84 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)). National quotas cannot be defined specifically with regard to the Blue Card only. This is of importance, as national high-skilled residence permits can compete with the Directive (see above Article 3 MN 16). If a Member State wishes to implement a national point-based migration system in addition to the Blue Card system and wants to determine quotas, there are only two possibilities. A Member State can either define a quota for high-skilled labour migration as a whole. Alternatively, a Member State can define a quota for the national point-based system only.85 The Commission’s 2016 Proposal for a reformed Directive (see above Article 1 MN 3) does no longer explicitly mention the right of Member States to determine 81

Kuczynski/Solka, Die Hochqualifiziertenrichtlinie, p. 224. ‘Berufseinsteiger-Klausel’, see Langenfeld/Kolb, Der Kommissionsvorschlag einer neuen EU-Hochqualifiziertenrichtlinie, p. 529. 83 See also Council doc. 6051/08 of 28 February 2008, p. 9. 84 See also Commission Proposal, COM(2007) 637 final, p. 10; see also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 139–140; Wiesbrock, Legal Migration to the EU (Brill/Nijhoff, 2010), p. 423. 85 See also for a point-based system and possible quotas in the German Immigration law: Lehner/Kolb, Vorschlag zu einem Einwanderungsgesetz, p. 37. 82

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quotas. Even without explicitly mentioning it, Member States would still have the right to determine the volume of admissions regarding at least ‘first entries’ of third country nationals.86 This follows from Article 79(5) TFEU. For entries into a second Member State, however, the setting up of quotas would no longer be possible.87 Thus, the Commission’s 2016 Proposal for a reformed Directive would in this regard improve the intra-mobility of Blue-Card holders. The volume criterion is not applicable to persons who apply for admission to a second 2 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 that is mentioned in several provisions88 and must be possible.89 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. However, it should be noted that Article 6 is applicable to third-country nationals already legally residing in the territory of the respective Member State under other schemes (as a student or as a researcher, according to the Students and Researchers Directive (EU) 2016/801) and do 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).90

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. 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’. 86

See Commission Proposal, COM(2016) 378 final, p. 6. See also Thym, Legal Framework for EU Immigration Policy, MN 26. 88 See Article 7(2), Article 8(2), Article 9(1), (2), (3), Article 11(3), Article 14(3), Article 20(2). 89 The Directive does not contain a special provision mentioning explicitly the possibility of the renewal of the Blue Card and its condition. 90 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 138. 87

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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)) .............................

mn. 1 3 4 5

I. Issuing of the Blue Card (Article 7(1)) Article 7(1) addresses the issuing of the Blue Card and demands that two 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. 2 If both conditions are fulfilled, Member States shall issue a Blue Card. It should be 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. During negotiations it was underlined that the expression ‘a positive decision’ is meant to emphasize that there is no automatic right of admission.91 If no positive decision has been issued as per Article 8, third-country nationals do not have a right to admission.92 Also a judgement of the ECJ seems to back this interpretation that Member States’ discretion is limited to the fulfilment of the requirements of Article 8. In its judgement of 10 September 2014 the ECJ held that Member States are obliged, to admit to its territories third-country nationals fulfilling the conditions of the Students and Researchers Directive (EU) 2016/801.93 Although the Students and Researchers Directive (EU) 2016/801, 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. In the second place, the Court relies on the purpose of the Directive to further the mobility. This seems to be applicable as 1

91

See Council doc. 6051/08 of 28 February 2008, p. 9. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, 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. 93 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187 (for the former Students Directive 2004/114/EC) . 92

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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 former Students Directive 2004/114/EC (now Article 4(2) of the Students and Researchers Directive (EU) 2016/801), 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)) Article 7(2) provides that Member States shall set a standard term of validity for the 3 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. The Commission’s recast 2016 Proposal (see above Article 1 MN 3) provides for a minimum standard period of validity of at least 24 months without any upper limit. If the work contract/binding job offer 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.

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 uniform format provided in the Regulation (EC) No 1030/2002.94 This format enables Member States to ascertain information, in particular regarding the conditions under which a person is permitted to work.95 Member States shall indicate on the Blue Card the conditions for access to the labour market as set out in Article 12(1).96 This concerns in particular the question if the Blue Card holder has restricted access to the 94 Regulation (EC) No 1030/2002 (OJ 2002 L 157/1) on uniform formats for residence permits for third-country nationals. 95 See also recital 13. 96 See also point (a) 12 of the Annex of Regulation (EC) No 1030/2002 (OJ 2002 L 157/1) on uniform formats for residence permits for third-country nationals, as amended by Regulation (EU) 2017/1954 (OJ 2017 L 286/9) amending Council Regulation (EC) No 1030/2002 laying down a uniform format for residence permits for third-country nationals.

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labour market, or if equal treatment with nationals regarding access to highly qualified employment is granted (see also Article 12).

IV. Entitlements for the Blue Card holder (Article 7(4)) 5

The Blue Card entitles the holder to enter, re-enter and stay in the territory of the 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. Member State must apply the Schengen acquis and in accordance with Regulation (EU) 2016/39997 (see in particular Article 6(1)(b) of the Regulation) and Article 21 of the Convention implementing the Schengen Agreement.98 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. 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).

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. 97

Schengen Borders Code Regulation (EU) 2016/399 (OJ 2016 L 77/1). 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). 98

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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 .............................................................................................. 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)) ........................................................

mn. 1 2 3 4 5 6 7

I. General remarks Article 8 must be read together with Articles 6 (quotas) and 9 (grounds for with- 1 drawal 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 (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.99 Such an interpretation was also emphasized during Council negotiations100 and is congruent with the ECJ’s rulings concerning the admission of third-country nationals for the purpose of studies (see above Article 7 MN 2) and also with regard to the refusal grounds laid down in Article 32 of the Regulation (EC) No 810/2009 establishing a Community Code on Visas (Visa Code).101 Referring to the latter, the ECJ stated that ‘that the competent authorities of the Member States cannot refuse to issue a uniform visa by relying on a ground not provided for in that code.’102 This interpretation, which argues for ‘the coherence of a system’ by ‘harmonising the conditions for the issues of visa’,103 applies to this Directive as well. As set out in recital 11, also this Directive ‘aims … at defining the conditions of entry and residence of third-country-nationals for the purpose of highly qualified employment within this Blue Card System’. Furthermore, the Students and Researchers Directive (EU) 2016/801, unlike the former Students Directive 2004/114/EC and the former Researchers Directive 2005/71/EC, also provides for an exhaustive list of grounds for the rejection of an application for the admission of a third-country national (see also interpretation Lehner/Gies, Students and Researchers Directive (EU) 2016/801, Article 20 MN 1).

II. Mandatory grounds for refusal (Article 8(1)) Article 8(1) provides that if the applicant does not meet the conditions set out 2 under Article 5, the application shall be rejected. The application shall also be rejected 99 See also Peers, Legislative Update, p. 395. The same applies for Article 9 regarding grounds for withdrawal or non-renewal. 100 See Council doc. 6051/08 of 28 February 2008, p. 12. 101 OJ 2009 L 243/1. 102 ECJ, Koushkaki,C-84/12, EU:C:2013:862, para 47. See also interpretation Meloni, Visa Code Regulation (EC) No 810/2009, Article 32 MN 6. 103 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 43 and 50.

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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.

III. Facultative grounds for refusal (Article 8(2–5)) 3

Articles 8(2–5) provide facultative grounds for the refusal of a Blue Card.

1. Labour market test and national procedures (Article 8(2)) 4

During the first two years, Member States may require labour market tests and apply their own national procedures when filling vacancies (see recital 7). This enables Member States to respect the principle of EU preference.104 According to this principle, 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. The Commission’s 2016 recast Proposal (see above Article 1 MN 3) provides for certain restrictions for the labour market test (see Article 6(2) of the Proposal): Only ‘serious disturbances’ in the labour market situations are to be a legitimate cause for the performance of the test.

2. Volumes of admission (Article 8(3)) 5

An application may be considered inadmissible if the set quotas are already exhausted 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)) 6

Article 8(4) must be read together with Article 3(3) and recital 22. Whereas persons are excluded if their type of employment is included in the list of professions under Article 3(3), Article 8(4) leaves it up to the discretion of the Member States to refuse 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. Recital 22 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,105 which provides 104

Council Resolution, COM(2007) 637, p. 10. 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 105

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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)) Member States may reject an application if the employer was sanctioned according to 7 national law for undeclared work and/or illegal employment.106 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 it, as an employment of a third-country national not legally residing in the respective Member State.107 The term ‘undeclared work’, however, is not defined in the Employers Sanctions Directive 2009/52/EC108 but refers to employers who did not declare the work of their employees to the competent authorities. Unlike ‘illegal employment’, any previous illegal engagement of employers of the respective Member State may also be covered.

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. 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 doc. 7189/07 of 15 May 2007. For ethical recruitment and circular migration. See also Martín Asensio, Die ‘Blue Card’-Richtlinie, p. 180–182. 106 The German version mentions ‘Schwarzarbeit und/oder illegaler Beschäftigung’. 107 See Article 2(d) of the Employers Sanctions Directive 2009/52/EC. See also Kuczynski/Solka, Die Hochqualifiziertenrichtlinie, p. 225. 108 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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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 mn. I. General remarks .............................................................................................. 1 II. Mandatory grounds for withdrawal or non-renewal (Article 9(1) and (2))...................................................................................... 2 1. Fraudulently acquired, falsified or manipulated documents (a)...... 3 2. Non-fulfilment of conditions (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 (a) ............................... 7 2. Absence of sufficient resources (b)......................................................... 8 3. Non-communication of address (c) ....................................................... 9 4. Social assistance (d) ................................................................................... 10

I. General remarks 1

Article 9 introduces grounds for the withdrawal and non-renewal of a Blue Card. The Directive does not explicitly address the question if these grounds are exhaustive. Given that there are no other grounds for the withdrawal or non-renewal of a Blue Card in the Directive, and Member States may only derogate in accordance with special provisions, the grounds in Article 9 should, by argumentum e contrario, be considered exhaustive.

II. Mandatory grounds for withdrawal or non-renewal (Article 9(1) and (2)) 2

Article 9(1) presents the mandatory grounds for the withdrawal or non-renewal of a Blue Card.

1. Fraudulently acquired, falsified or manipulated documents (a) 3

Contrary to Article 8(1), that has a similar wording, Article 9(1)(a) refers to actions of authorities after the Blue Card is first issued.

2. Non-fulfilment of conditions (b) 4

Article 9(1)(b) introduces two alternative conditions. First, it refers to a situation in which the holder did not meet or no longer meets the conditions for entry and residence. Second, it refers to a situation in which 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 834

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and a comparative analysis between Articles 8 and 9 support an interpretation that 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 (‘conditions for entry and residence laid down in the Directive’). 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.109 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. 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. The term ‘appears’ must be interpreted as meaning, ‘to turn out to be proven true’, and not as meaning, ‘to seem like’. That means that the conditions mentioned in Article 9(1)(b) must be facts.

3. Non-respect of limitations (Article 9(1)(c) and (2)) Article 9(1)(c) refers to Article 12(1) and (2) and Article 13 and provides that the 5 non-respect of the limitations set out in these articles constitutes grounds for the withdrawal or non-renewal of the Blue Card (see also below Article 12 MN 2–7 and Article 13 MN 2–4). 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 (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. 109

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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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 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 terminating residency than for refusing admission. However, it would be 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 (b) 8

The Directive does not contain the ‘sufficient resources requirement’, which is common in other directives concerning the admission of third-country nationals.110 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.111 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 (Article 9(3)(b). Defining the term ‘sufficient resources’ is left to the Member States. They shall evaluate these resources by referring to their nature and regularity and 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). The German version is misleading (‘Diese Beurteilung sollte nicht während der Phase der Arbeitslosigkeit nach Artikel 13 vorgenommen werden’), as Article 13 implies a mandatory exemption from Article 9(3)(b) without discretion. See also the French version (‘Cette évaluation n’a pas lieu pendant la période de chômage’).112 Article 9(3)(d) is lex specialis in cases where the applicant also applies for social assistance.

3. Non-communication of address (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 failed to communicate it (Article 9(3)(c)).

110 See e. g. Article 7(1)(e), Article 11(1)(d), 13(1)(c), Article 14(1)(c) of the Students and Researchers Directive (EU) 2016/801. 111 See Council doc. 6051/08 of 28 February 2008, p. 4 and Council doc. 9666/08 of 19 June 2008, p. 8. 112 See also the Spanish version: ‘Dicha evaluación no tendrá lugar durante el período de desempleo’.

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4. Social assistance (d) Article 9(3)(d) must be considered together with Article 5(3) and Article 9(3)(b). It 10 addresses a case similar to Article 9(3)(b). However, it concerns the situation when an applicant (also) 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 thirdcountry 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. According to Article 10(1), Member States shall determine who has to submit an 1 application. Article 10(2) clarifies from where an application has to be submitted (from inside or outside of the territory of the concerned Member State). 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’.113 Article 10(4) provides for a possible derogation from Article 10(2). It allows Member States to also require that an application is 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. The Commission’s 2016 recast Proposal (see above Article 1 MN 3) includes an 2 improvement for the applicants. Article 9(2) of the Proposal provides that the application shall be ‘considered and examined either when the third-country national concerned is residing outside the territory of the Member State … or when he or she is already legally present in the territory of that Member State’, without the possibility of derogation, currently provided for in Article 10(4) of the Directive.

113

Peers, Legislative Update, p. 396.

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Blue Card Directive 2009/50/EC

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 .............................................................................................. II. Procedural safeguards ....................................................................................

mn. 1 2

I. General remarks 1

Article 11 concerns procedural safeguards. 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 2

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 these two requirements 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. The Commission’s recast 2016 Proposal (see above Article 1 MN 3) envisages a procedural speed-up (see Article 10(1) of the Proposal) to reduce ‘bureaucratic obsta838

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cles’.114 Decisions are to be taken within at the latest 60 days. Moreover, Article 12 of the Proposal offers a ‘simplified procedure’ for employers who have successfully completed a recognition procedure. On this basis, applications must be processed within at the latest 30 days (see Article 10(1) of the Proposal). There are some similarities with the German fast-track procedure provided for in Article 81a of the German Residence Act. According to Article 11(2), the competent authorities shall notify the applicant if the 3 provided information is insufficient and further information is needed. The latter also includes further documents, as the provision is meant to help complete those applications that are insufficient. 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. According to Article 11(3), any decision by the authorities regarding the rejection of 4 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 and must mention the reasons for the decision. Decisions shall be open to ‘legal challenge’ in the Member State concerned. It is 5 unclear if the term 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. 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.115

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 114 115

Kalantaryan, Revisions in the Blue Card Directive, p. 9. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 141–143.

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Blue Card Directive 2009/50/EC

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 .............................................................................................. II. Employment 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))................................................

mn. 1 2 8 9

I. General remarks 1

Article 12 was changed significantly during Council negotiations. The Commission’s Proposal provided that Member States should grant Blue Card holders treatment equal to nationals after the first two years of legal employment.116 The final version, however, leaves it to the Member States to decide whether or not to grant equal treatment after these first two years.117 The Directive sees highly qualified workers as 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.118 During the first two years, a Blue Card holder must respect several limitations. After this two-year period, and only if the relevant Member State grants equal treatment, Blue Card holders have less restricted access to highly qualified employment.119 The two-year limit was considered necessary to prevent abuse of the system. Without any time limitation, the salary could be lowered already shortly after admission is granted.120 116

See Article 13(2) of the Commission Proposal, COM(2007) 637 final, p. 25. See second sentence of Article 12(1). 118 See Commission Proposal, COM(2007) 637 final, p. 10 and recital 15. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 182, Farahat, ‘We want you! But…Recruiting Migrants and Encouraging Transnational Migration Through Progessive Inclusion’, EJML 15 (2009), p. 717. 119 See Commission Proposal, COM(2007) 637 final, p. 10. 120 See Council doc. 7642/08 of 3 April 2008, p. 2. 117

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Recital 15 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 to give Member States the possibility to restrict the occupational mobility of a third-country national 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 during and after the first two years (Article 12(1) and (2)) During the first two years of legal employment, the Blue Card holder is only 2 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, not only when applying for the Blue Card but also during the first two years of employment. 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. However, Article 13 explicitly provides that a temporary period of unemployment shall not constitute a reason to withdraw a Blue Card. This supports an interpretation that the first two years of legal employment are counted irrespective of a temporary interruption of employment under Article 13, as long as unemployment does not 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 (again) the right to carry out a labour market test during the first two years before issuing the authorisation.121 The first sentence of the first subparagraph of Article 12(2) is controversial,122 as some Member States are bound by international legal obligations that grant more favourable provisions for migrant workers. Namely Article 8 No 2 of the European Convention on the Legal Status of Migrant Workers provides the right to change an employer already after one year without any further conditions.123 Due to the fact that Article 4(2)(b) allows more favourable provisions in respect to Article 12(2), Member States bound by 121

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). 123 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. 122

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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 already after one year. 4 According to the second sentence of the first subparagraph of Article 12(2), every change that may concern admission criteria (especially Article 5, e. g. the salary criterion) is subject to prior communication during the first two years. 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.124 Contrary to other provisions in the Directive that explicitly refer to the past,125 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.126 The term ‘every change that may concern admission criteria’ raises the question if 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, arguably every change of the factual situation that may have a potential influence on the admission criteria, must be reported, as well in cases where the admission criteria are still fulfilled after a change.127 5 After the first two years, Member States may grant the Blue Card holder equal treatment with 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’, as defined in Article 2(b). Also, it should be noted that Blue Card holders, in accordance with Article 18, have to comply with the restrictions set out in Article 12(1) during the first two years of their legal employment in a second Member State, even in cases where a second Member State grants equal treatment regarding Article 14 (see below Article 18 MN 3). 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 States 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 principle of non-discrimination is not violated (concerning those criteria absolutely prohibited, such as ethnic origin, religion etc.).128 6 If the concerned Member State does not grant equal treatment with nationals after two years, Member States must nonetheless grant more than the restricted access 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 See also the German version: ‘wenn dies nach einzelstaatlichem Recht vorgesehen ist’. 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’. 126 See also Wiesbrock, Legal Migration to the EU (Brill/Nijhoff, 2010), p. 223. 127 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 188–189. 128 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 191–193. 124 125

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States can no longer examine the situation of their labour market (first subparagraph of Article 8(2)). Also, 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 any longer 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 for the change of an employer and/or the change of admission conditions. Second, Article 8 No 2 of the European Convention on the Legal Status of Migrant Workers129 and Article 14(a) of the Migrant Workers Convention130 provide 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 to decide whether equal treatment with regard to access to highly qualified employment is applicable. The Commission’s 2016 recast Proposal (see above Article 1 MN 3) provides for a reversion of the system as it is laid down in Article 12 of the Directive. EU Blue Card holders are to ‘have full access to highly skilled employment’ (see Article 13(1) of the Proposal). As the Commission pointed out, this new entitlement would not change ‘the fact that the admission conditions for the EU Blue Card have to be continuously fulfilled and that, therefore, the EU Blue Card holder must remain in highly skilled employed activity’,131 which includes the fulfilment of the salary threshold. Should this reform be passed, it would mean that Blue Card holders would be entitled to change their employment without prior authorisation, unless the Blue Card is withdrawn by national authorities due to the change of employment.132

III. Restrictions on access to employment (Article 12(3) and 4)) According to Article 12(3), Member States may retain restrictions on access to 8 employment 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 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.133 Therefore, the ECJ’s criteria may be used as 129 European Convention on the Legal Status of Migrant Workers, ETS No 93, adopted on 24 November 1977, entered into force on 1 May 1983. 130 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 June 1975, entered into force on 9 December 1978. 131 Commission Proposal, COM(2016) 378 final, p. 17. 132 See Klaus, Die Hochqualifizierten-Richtlinie 2.0, pp. 67 et seq. 133 Article 45(4) TFEU (ex. Article 39(4) TEC).

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a guideline.134 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 (‘may retain’). The same conclusion must be drawn from the terminology in Article 12(4). 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 third-country 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, 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 Member States grant equal treatment with Blue Card holders after two years, 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.

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))

mn. 1 2 3 4

134 See among others ECJ, Commission v. Italy, C-225/85, EU:C:1987:284, ECJ, Commission v. Greece, C-290/94, EU:C:1996:265, para 37, ECJ, Lawrie-Blum, C-66/85, EU:C:1986:284, para 26.

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I. General remarks and drafting history Article 13 provides for a system of control during a period of unemployment.135

1

II. Permitted period of unemployment (Article 13(1)) According to Article 13(1), unemployment is not a reason to withdraw the Blue 2 Card,136 unless the period of unemployment exceeds three months or unemployment occurs more than once during the period of validity of the Blue Card. 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.137 Article 13 was therefore criticized by the European Economic and Social Committee.138 Due to the fact that Article 4(2)(b) allows more favourable provisions, Member States bound by international treaty obligations may grant such provisions in cases of unemployment.139

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 a period of unemployment. The conditions set out under Article 12 have to be respected. The conditions may depend on the length of stay,140 due to the fact that after the first two years, Blue Card holders may enjoy equal treatment with 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. 135

See Council doc. 7642/08 of 3 April 2008, p. 6. 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. 137 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. 138 See point 4.7 of the Economic and Social Committee Opinion 2009/C 27/09 of 9 July 2009 (OJ 2009 L 27/108). 139 See also Council doc. 11512/08 of 24 July 2008, p. 18 and Council doc. 12320/08 of 1 August 2008, p. 15. 140 See Commission Proposal, COM(2007) 637 final, p. 10. 136

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Blue Card Directive 2009/50/EC

According to Article 13(4), the Blue Card holder has to communicate the beginning of the period of unemployment in accordance with national procedures.

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. 846

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Content I. General remarks .............................................................................................. II. Equal treatment (Article 14(1)) ................................................................... 1. Working conditions (a)............................................................................. 2. Freedom of association (b)....................................................................... 3. Education and vocational training (c) ................................................... 4. Recognition of diplomas (d) .................................................................... 5. Access to social security (e) ..................................................................... 6. Payment of pensions (f)............................................................................ 7. Access to goods and services (g)............................................................. 8. Access to national territory (h) ............................................................... III. Restrictions (Article 14(2)) ........................................................................... IV. Without prejudice to withdraw or to refuse to renew a Blue Card (Article 14(3)) .................................................................................................. V. Equal treatment in a second Member State (Article 14(4))..................

mn. 1 2 3 4 5 6 7 8 9 10 11 12 13

I. General remarks Granting equal socio-economic rights was considered crucial in order to make the EU 1 more attractive to highly qualified workers from around the world.141 Article 14 defines the areas in which equal treatment must be granted during the period of validity of the Blue Card.142 Compared with other directives,143 the Directive has extended the scope of traditional equal treatment provisions to include specific socio-economic rights.144 Still, Article 14 is less extensive than suggested by the Commission, which had proposed to also grant equal treatment concerning social assistance145 and tax benefits.146

II. Equal treatment (Article 14(1)) Article 14(1) only grants equal treatment with nationals and not with EU-citizens (as 2 envisaged in Tampere) or other third-country nationals (as in the Family Reunification Directive 2003/86/EC).147 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. Article 4(2)(b) allows Member States to grant more favourable conditions.

1. Working conditions (a) According to Article 14(1)(a), a Blue Card holder shall enjoy equal treatment with 3 regard to working conditions. The provision mentions exemplary pay and dismissal, as well as health and safety requirements at the workplace. Other aspects may include working hours or holiday entitlements. ‘Working conditions’ comprise all social 141

Recital 7. Council doc. 8249/08 of 8 May 2008, p. 28. 143 See e. g. Article 22 of the Students and Researchers Directive (EU) 2016/801, Article 11 of the LongTerm Residents Directive 2003/109/EC. 144 See e. g. Article 14(1)(f). 145 See Article 15(1)(f) of the Commission Proposal, COM(2007) 637 final, p. 29. 146 See Article 15(1)(h) of the Commission Proposal, COM(2007) 637 final, p. 29. 147 Article 14(1) of the Family Reunification Directive 2003/86/EC. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 154–157. 142

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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 492/2011148 for EU citizens, the term cannot be extended beyond the conditions, rights and advantages attached to a contract of employment (for example, reduced fares for large families).149 The context of Article 14(1)(a) and its wording, which differentiates between different areas of equal treatment, demonstrate that Article 14(1)(a) does not contain a similarly comprehensive concept of equal treatment.

2. Freedom of association (b) 4

Article 14(b) states that Blue Card holders should enjoy equal treatment regarding freedom of association and affiliation and 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. 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 (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)).150 Article 14(1)(c), however, does not include measures in the field of vocational trainings that are covered under social assistance schemes.151 Member States may restrict equal treatment with regard to Article 14(c) (see below Article 14 MN 11).

4. Recognition of diplomas (d) 6

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. This provision must be read together with Article 5(1)(b) (see also interpretation above Article 5 MN 4). Unlike Article 5(1)(b), this provision applies to the moment when a person becomes a holder of a Blue Card and not to the moment of application. 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 equal treatment with nationals and not with EU citizens. Regarding regulated professions, diploma and certificates obtained in another EU Member State must be recognized under the conditions of Directive 2005/36/EC.152 Directive 2005/36/EC applies to ‘all nationals of a Member State wishing to pursue a 148

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. 150 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. 151 See also recital 17. 152 Directive 2005/36/EC (OJ 2005 L 255/22) on the recognition of professional qualifications. 149

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regulated profession in a Member State’.153 As Article 14(1)(d) provides for treatment equal with nationals, Blue Card holders may also fall into the scope of the Directive 2005/36/EC.154 With respect to diploma obtained in a third country, the situation is different, since equal treatment with nationals does not imply recognition. Regarding regulated professions, Directive 2005/36/EC provides that diplomas, certificates and other professional qualifications obtained in third countries may be recognized by a Member State if the holder ‘has three years’ professional experience in the profession concerned on the territory of the Member State’ that recognises the document. The jurisprudence of the ECJ as established in the Hocsman case does not apply in such cases as there is no crossborder element if a third-country national with a third-country diploma enters a Member State directly from outside the EU.155 However, Member States may recognize such documents according to the procedures set out under national law.156 The result 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 be astonishing. 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.157 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 again. 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 an additional employment that is not considered a highly qualified employment according to the Directive.

5. Access to social security (e) Similar to Article 22 of the Students and Researchers Directive (EU) 2016/801 and 7 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 1408/71158 (replaced by Regulation (EC) No 883/2004159). 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 1231/2010.160 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 153 Article 2(1) of the Directive 2005/36/EC (OJ 2005 L 255/22) on the recognition of professional qualifications. 154 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 165–166. 155 ECJ, Hocsman, C-238/98, EU:C:2000:440, para 37. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 167–168. 156 See also recital 10. 157 See Council doc. 8249/08 of 8 May 2008, p. 31, footnote 98. 158 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 and Council doc. 8249/08 of 8 May 2008, p. 29, footnote 94. 159 Regulation (EC) No 883/2004 (OJ 2004 L 166) on the coordination of social security systems. 160 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.

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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 crossborder situation. Article 14(1)(e) provides an exemption from the cross-border 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.161 The reference to the branches of social security as defined in Regulation (EC) No 883/2004 does not require adherence to a contribution-based social security system. Equal treatment to social benefits under the regulations is, according to the case law of the ECJ, 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).162 Article 14 (1)(e) only applies as long as the Blue Card holder legally resides in the Member State (‘holder of a Blue Card’), including a temporary unemployment as long as the restrictions set out in Article 13 are met. Regarding the interpretation of Article 14(1)(e), see also the pending case ECJ, ASGI, C-462/20, concerning the issuing of a ‘document which confers entitlement to discounts on supplies of goods and services by public and private entities that have entered into an agreement with the government of the Member State’.

6. Payment of pensions (f) 8

Several rights granted in Article 14 are similar to other directives. However, the Directive was the first to grant the right under Article 14(1)(f).163 It made bilateral agreements with third countries superfluous. According to Article(1)(f), a Blue Card holder shall enjoy equal treatment with 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 ‘incomerelated’ 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’.164

7. Access to goods and services (g) 9

This provision is similar to other legal migration directives, such as Article 11 of the Long-Term Residents’ Directive 2003/109/EC or Article 22 of the Students and Researchers Directive (EU) 2016/801. Equal treatment is provided in Article 14(1)(g) with regard to access to goods and services made available to the public.165 This includes also 161

Recital 18. ECJ, Hoever and Zachow, C-245/94, EU:C:1996:379. 163 See Kuczynski/Solka, Die Hochqualifiziertenrichtlinie, p. 227. 164 ECtHR, Judgment of 3 March 2011, No 57028/00, Klein v. Austria, para 42. 165 See the pending case ECJ, ASGI, C-462/20, concerning the issuing’ of a document which confers entitlement to discounts on supplies of goods and services by public and private entities that have entered into an agreement with the government of the Member State. 162

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procedures for obtaining housing. 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 (h) Article 14(1)(h) has limited practical relevance, as the right to free access to the 10 territory is already granted under Article 2 of the 4th Protocol of the ECHR.166

III. Restrictions (Article 14(2)) Equal treatment may be restricted according to Article 14(2). According to the 11 Commission, these are not rights to which the worker would be entitled on the basis of his/her contributions.167 Regarding Article 14(1)(c), Member States may restrict access to university and postsecondary education (Article 14(2)(a)). The wording in Article 14(2)(a) is vague and does not specify which restrictions are meant. Member States do not have the right to fully deprive Blue Card holders of the right to equal treatment granted under 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.168 Regarding 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)). Article 14(2)(b) is unclear when referring to family members (‘or that of the family member for whom benefits are claimed’). 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. Regarding procedures for obtaining housing as granted under Article 14(1)(g), Member States may restrict this equal treatment right (Article 14(2)). The restriction concerns both public and private-sector housing.169

IV. Without prejudice to withdraw or to refuse to renew a Blue Card (Article 14(3)) Article 14(3) only iterates the right of the Member States, which is already granted by 12 Article 9, and does not provide new regulations. However, Member States insisted on introducing this provision in order to prevent a different interpretation.170 166 See also, Halleskov, ‘The Long-Term Residents Directive: A Fulfilment of the Tampere Objective of Near-Equality?’, EJML 7 (2005), p. 181. 167 Commission Proposal, COM(2007) 637 final, p. 11. 168 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 163. 169 See Council doc. 8875/08 of 29 April 2008, p. 16. 170 According to Kuczynski/Solka, Die Hochqualifiziertenrichtlinie, 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, C-97/05, EU:C:2006:780, para 39 et seqq, see also Hailbronner, ‘“Gattoussi/Stadt Rüsselsheim” – Ein neuer Schritt des EuGH zur Entmündigung der Mitgliedstaaten?’, Neue Zeitschrift für Verwaltungsrecht (2007), p. 415 et seqq.

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V. Equal treatment in a second Member State (Article 14(4)) 13

In order to address the issue of the ‘interim period’, when the Blue Card holder 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.171 According to Article 14(4), Member States may limit the rights granted under Article 14, whilst the Blue Card holder is awaiting a positive decision, except for the freedom of association and affiliation and membership of an organisation172 and the recognition of diplomas, certificates and other professional qualifications.173 However, if Member States allow the applicant to work until a positive decision is made,174 equal treatment in all areas of Article 14(1) shall be granted.175

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. 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. 171

Council doc. 13009/08 of 15 September 2008, p. 18. See Article 14(1)(b). 173 See Article 14(1)(d). 174 See second sentence of Article 18(2). 175 See second sentence of Article 14(4). 172

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Content I. II. III. IV. V. VI. VII.

General remarks .............................................................................................. 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)) ...................................................................................

mn. 1 2 3 4 5 6 8

I. General remarks Article 15 contains a series of derogations from the requirements of the Family 1 Reunification Directive 2003/86/EC. More favourable conditions for family reunification for Blue Card holders were considered important to attract highly qualified third-country workers176 although being criticized for establishing a higher class of migrants.177 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 the nuclear family concept. The derogations of the Family Reunification Directive 2003/86/EC provided by Article 15 are all mandatory, with the exemption of Article 15(7).

II. Favourable conditions for the sponsor (Article 15(2)) The purpose of the derogation clause of Article 15(2) is to allow the families of Blue 2 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 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. 176 177

See recital 23. Economic and Social Committee Opinion 2009/C 27/09 (OJ 2009 L 27/108).

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III. Favourable integration measures and conditions (Article 15(3)) 3

Article 15(3) states that integration measures and conditions may only be applied 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.178

IV. Favourable processing time (Article 15(4)) 4

The purpose of setting a short time frame from the submission of the application to the moment when the residence permit is issued for family members is to attract highly skilled third-country nationals.179 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. The Commission’s 2016 recast Proposal (see above Article 1 MN 3) provides for a synchronization between the issuing of the Blue Card and the residence permit for family members in cases where both applications are submitted simultaneously (see Article 16(4) of the Proposal). In cases where the family member’s application for a residence permit is submitted later, the proposed provision provides for a decision within at the latest 60 days.

V. Duration of validity of the residence permit (Article 15(5)) 5

According to Article 15(5), the duration of validity of residence permits for family 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 be at least one year. The duration of validity of the residence permit of the Blue Card holder must be between one and four years.180 It thus depends on the national transposition if Article 15(5) is more favourable than Article 13(2) of the Family Reunification Directive 2003/86/EC.

VI. Favourable access to employment (Article 15(6)) 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 to attract highly qualified third-country workers.181 Article 15(6) provides that Member States shall not apply any time limit regarding access to the labour market for family members of Blue Card holders. It provides, thus, more favourable conditions than 178

See recital 23. See Council doc. 8249/08 of 8 May 2008, p. 32. 180 See Article 7(2). 181 Recital 23 of the preamble of the Directive. 179

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Art. 15

Chp. 12

provided for in 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’. The Family Reunification Directive 2003/86/EC is applicable, as long as no special 7 derogations are provided for in the Directive. Therefore, apart from the time limit, access to the labour market for family members of Blue Card holders is still accessorial to the sponsor’s one (see Article 14(1)(b) of the Family Reunification Directive 2003/86/EC). 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. 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. 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. These obstacles would rather 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) 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.182 The Commission’s 2016 recast Proposal (see above Article 1 MN 3) goes a step further by eliminating any limitations concerning access to the labour market for family members of Blue Card holders. Family members are to be entitled to ‘have access to any employed or self-employed activity in the Member State concerned’ (see Article 16(6) of the Proposal). However, a labour market test can still be conducted.

VII. Time periods in different Member States of family members (Article 15(7) and (8)) According to Article 15(7), the duration of residence in different Member States 8 may be accumulated for the purpose of calculating ‘the five years’ of residence as required by Article 15(1) of the Family Reunification Directive 2003/86/EC 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)183 does not apply to cases where Member States, 182 See Article 3(5) of the Family Reunification Directive 2003/86/EC, which allows more favourable provisions. See also Carlitz/Schmidt, Arbeitsmarktzugang von Familienangehörigen in den neuen Migrationsrichtlinien, p. 316. 183 See Council doc. 8249/08 of 8 May 2008, p. 33 and Council doc. 11512/08 of 24 July 2008, p. 22.

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Blue Card Directive 2009/50/EC

in accordance with Article 15(1) of the Family Reunification Directive 2003/86/EC, decide to grant an autonomous residence permit before the end of the fifth year.184 9 Article 15(8) sets out the conditions under which family members may accumulate periods of residence in different Member States to obtain an autonomous residence permit. It should be noted that the Commission underlined that this option only apply for autonomous residence permits ‘and not EC-long term resident Permit, for which no facilitation is foreseen’.185

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 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 long-term 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. 184 185

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See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 235–236. Council doc. 8249/08 of 8 May 2008, p. 33, footnote 106.

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Art. 17

Chp. 12

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 .............................................................................................. 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)...................................................

mn. 1 2 3 4 5 6

I. General remarks 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.186 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 as long as 2 this 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 two or more 3 Member States to fulfil the duration requirement set out in Article 4(1) of the LongTerm Residents’ Directive 2003/109/EC.187 However, the reference in Article 16(2) to 186 Commission Proposal, COM(2007) 637 final, p. 11, see also recital 20 of the preamble of the Directive. 187 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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Blue Card Directive 2009/50/EC

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)). Article 16(2)(a) requires ‘legal and continuous residence’. It is thus already clear from the wording that periods of unemployment which are in accordance with Article 13(1) do not affect the legal and continuous residence. In addition to the five years of legal and continuous residence, legal and continuous residence for two years within the territory of the Member State where the application for a long-term EU residence permit is submitted is required (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. The Commission’s recast 2016 Proposal (see above Article 1 MN 3) offers a ‘shortcut’188 for receiving the long-term resident status. Article 17(1) of the Proposal, grants Blue Card holders the EU long-term resident status already after three years of legal and continuous residence. However, this status can be withdrawn if the Blue Card holder ‘becomes unemployed and does not have sufficient resources to maintain himself or herself’ before the period of legal and continuous residence of five years ends. Hence, the proposed ‘shortcut’ would establish a kind of long-term resident status ‘on probation’. Alternatively, where the EU Blue Card holder has moved to another Member State under the EU Blue Card mobility provisions, the status can be obtained through five years of continuous residence cumulated in different Member States (also residence while holding another residence permit than the EU Blue Card will be accounted for) (Article 17(3) of the Proposal).

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 the EU territory when calculating the period mentioned in Article 16(2)(a). Periods of absence from the EU territory shall not interrupt the requested five-year time period as long as this period is shorter than 12 consecutive months189 and does not exceed in total 18 months of the required five years.190 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).191 Therefore, Blue Card holders who are absent from the territory 188 See Langenfeld/Kolb, Der Kommissionsvorschlag einer neuen EU-Hochqualifiziertenrichtlinie, p. 530. 189 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. 190 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 zwölf aufeinander folgende Monate nicht überschreiten und innerhalb des Zeitraums gemäß Absatz 2 Buchstabe a insgesamt achtzehn Monate nicht überschreiten’. The French version: ‘si elles ne s’étendent pas sur plus de douze mois consécutifs et ne dépassent 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. 191 See second sentence of Article 16(3).

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Art. 17

Chp. 12

of the EU, while otherwise legally and continuously residing in the first Member State,192 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 more favourable conditions as set out under Article 16(3) and (4) only if 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)) Article 16(6) deals with the consequences of changing the status from Blue Card 5 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 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 favourable.193 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.194 However, during Council negotiations Article 16(6) was amended to explicitly provide for only the ‘transfer’ of Article 14(1)(f) and Article 15.195

VI. Long-term residence permit (Article 17) According to Article 17(1), Blue Card holders who fulfil the conditions set out 6 under 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) 192

See Article 2(d). 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, p. 223–224. 194 Article 17(6) of the Commission’s Proposal, COM(2007) 637 final, p. 31. 195 Council doc. 8875/08 of 29 April 2008, p. 18. 193

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Chp. 12 Art. 18

Blue Card Directive 2009/50/EC

No 1030/2002.196 According to Article 17(2), Member States shall insert the words ‘Former EU Blue Card holder’ onto the long-term residence permit, to better 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. 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). 196

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Regulation (EC) No 1030/2002 (OJ 2002 L 157/1) on uniform formats for residence permits.

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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 .............................................................................................. 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)) .......................................

mn. 1 2 3 4 5

I. General remarks Article 18 provides for intra-EU mobility for Blue Card holders before they acquire 1 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.197 Article 18 allows the second Member States to apply the same conditions of admission as for a first entry. However, the added value of this provision is that the second Member State may grant certain entry 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 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 2 for 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 18month requirement has been met. In practice, this would be considered a new entry into a ‘first Member State’ and not intra-EU mobility.198 For the term ‘other Member State’ see also below MN 5. 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 third-country national must still be in possession of the Blue Card at the moment 197 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. Note that the Commission’s 2016 recast Proposal now reintroduced a very similar provision (Article 19 of the Proposal). 198 Council doc. 8249/08 of 8 May 2008, p. 38, footnote 119.

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Chp. 12 Art. 18

Blue Card Directive 2009/50/EC

of applying.199 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. Article 18(4)(a) addresses this question as well, and provides that the second Member State should process the application and inform the ‘applicant’. Article 18(5) is based too on the assumption that the Blue Card that was issued by the first Member State may expire during the application procedure. Article 18 is only applicable if the third-country national continues to exercise an activity considered ‘highly qualified employment’.

III. Application and allowance for employment (Article 18(2) and (3)) 3

According to the first sentence of Article 18(2), the Blue Card holder and/or his 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 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)). The second sentence of Article 18(2) gives the second Member State the right to decide if 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 the second Member State allows 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 too. 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 a second Member State.200 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’. 199 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’. 200 Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 208–211.

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Chp. 12

IV. Procedure and decision (Article 18(4–7)) Article 18(4) regulates the procedure and the decision to be taken by the authorities. 4 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, 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 2).201 Second Member States may also restrict 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.202 If the conditions of Article 18 are not fulfilled, a second Member State has to refuse the Blue Card. In such a case, a Member State obliges the applicant and his/her family members to leave its territory. 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)). 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). The Commission’s 2016 recast Proposal (see above Article 1 MN 3) provides for some important changes to further facilitate mobility between Member States. First, the 2016 Proposal provides that the residence period required in the first Member State is shortened from 18 to 12 months (see Article 20(1) of the Proposal). Second, the 2016 Proposal does no longer provide explicitly for the possibility to apply volumes of admission in a second Member State (see already Article 6 MN 2). Third, 201 202

Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 208. ECJ, Ben Alaya, C-491/13, EU:C:2014:2187.

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Chp. 12 Art. 19

Blue Card Directive 2009/50/EC

the 2016 Proposal also limits the possibility for labour market tests in a second Member State and allows it ‘only if the second Member State has also introduced such checks’ for first entry applications (see Art. 20(6) of the Proposal). Finally, the relevant procedure is simplified and speeded up, work can begin for a Blue Card immediately after the application has been submitted, and second Member State cannot re-verify the qualifications for unregulated professions (Article 20(2), (3) and (8) of the 2016 Proposal).

V. First and second Member State (Article 18(8)) 5

Article 18(8) provides clarification about the terms ‘first’ and ‘second’ Member State 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.

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. 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 864

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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 .............................................................................................. 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))

mn. 1 2 3 5 6 7

I. General remarks Article 19 determines the procedures to be followed and the facultative conditions to 1 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.203 The original Proposal contained fewer requirements for the family reunifications 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 structure of Article 19 may give rise to the question if family reunion in the second Member State is exhaustively regulated under the Blue Card Directive or if the Family Reunification Directive 2003/86/EC may be applied in addition.

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 moving to a second Member State, provided that the family was already constituted in the first Member State.204 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. A suggestion 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’, was not adopted.205

III. Application and temporary national residence permit (Article 19(2)) According to the first subparagraph of Article 19(2), the family member or the 3 Blue Card holder should submit an application for a residence permit to the competent 203 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. 204 In case the family was not already constituted in the first Member State, Article 19(6) provides that Article 15 should apply. 205 See Council doc. 11512/08 of 24 July 2008.

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Blue Card Directive 2009/50/EC

authorities. The question who should submit it, depends on the requirements established by national law (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. 4 The second subparagraph of Article 19(2) grants temporary residence permits for family members for the interim period until the authorities of the second Member State have made a decision on the application. The Member State shall allow the person to stay in its territory, in case the residence permit of the family members issued by the first Member State expires during the procedure, or no longer entitles to reside legally on the territory of the second Member State. This rule, however, applies only if the sponsor is still allowed to 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)).

IV. Conditions for residence permit (Article 19(3) and (4)) 5

Article 19(3) and (4) set out the conditions that must be fulfilled 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.206 Whereas Article 15(1) provides clearly for the applicability of Directive 2003/86/EC (‘Directive 2003/86/EC shall apply with the derogations laid down in this Article’), Article 19 does not contain such a 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, with minor differences, similar to those of the Family Reunification Directive 2003/86/EC. 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. 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, indicate that the Family Reunification Directive 2003/86/EC is still, in addition, applicable. Article 19(3)(a) provides an almost identical valid travel document requirement as set out in the Family Reunification Directive 2003/86/EC. 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. 206

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See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, p. 247–251.

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Article 19(3)(c) provides an almost identical sickness insurance requirement as set out in the Family Reunification Directive 2003/86/EC. 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’.207 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 set out in the Family Reunification Directive 2003/86/EC.

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 seqq.).

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. 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. 207 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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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.

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Chapter 13. Employers Sanctions Directive 2009/52/EC Select Bibliography: Cyrus, Trafficking for labour and sexual exploitation in Germany (International Labour Office, 2005), p. 84; Hammarberg, Criminalisation of Migration in Europe: Human Rights Implications (2010), available at: https://wcd.coe.int/ViewDoc.jsp?id=1579605 [last accessed: 17 April 2021]; Hörich, ‘Die Sanktionsrichtlinie – Zündstoff zwischen EuGH und BVerfG’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2010), p. 49–53; Houwerzijl/Peters, Liability in subcontracting processes in the European construction sector (European Foundation for the Improvement of Living and Working Conditions, 2008); Kokott, ‘The ECJ’s Interpretation of the Posting Directive in the Laval and Rüffert Judgments’, in: Scholz/ Becker (eds), Die Auswirkungen der Rechtsprechung des Europäischen Gerichtshofs auf das Arbeitsrecht der Mitgliedstaaten (Nomos, 2009), p. 165–172; McKay, ‘Transnational aspects of undeclared work and the role of EU legislation’, European Labour Law Journal (2014), p. 116–131; 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 Beschäftigung’, in: Barwig/Beichel-Benedetti/Brinkmann, Hohenheimer Tage zum Ausländerrecht (Nomos, 2009), p. 97–103; Schierle, ‘96/71/EC: Posting of Workers’, in: Schlachter (ed), EU Labour Law (Wolters Kluwer, 2015), p. 163–194; Verschueren, ‘Employment and social security rights of third country nationals under the EU labour migration directives’, European Journal of Social Security (2018), p. 100–115; Voglrieder, ‘Die Sanktionsrichtlinie: Ein wichtiger Schritt auf dem Weg zu einer umfassenden Migrationspolitik der EU’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2009), p. 168–178; Zimmermann, ‘Tendenzen der Strafrechtsangleichung in der EU – dargestellt anhand der Bestrebungen zur Bekämpfung von Terrorismus, Rassismus und illegaler Beschäftigung’, Zeitschrift für Internationale Strafrechtsdogmatik (2009), p. 1–10. Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Directive 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 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: […] HAVE ADOPTED THIS DIRECTIVE: (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

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 .............................................................................................. The proposal: assumptions and objectives................................................ Political context............................................................................................... Scope and legal base....................................................................................... Structure of the Directive.............................................................................. Minimum standards and margin of discretion in connection with implementation ............................................................................................... VII. The European Parliament’s influence during the negotiations............ VIII. Revision of the Directive? .............................................................................

mn. 1 2 6 8 11 14 17 19

I. General remarks 1

The objective of the Directive is to combat illegal immigration. For this purpose, it 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 2

The European Commission submitted a proposal1 for the Directive on 16 May 2007, 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 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

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. 5 Commission Impact Assessment, SEC(2007) 603, p. 7 et seq. 2

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Regarding the number of persons who reside illegally in the EU, the Commission 3 refers to estimates that lie between two and eight million and assume annual increases of between 300,000 and 500,000.6 In view of this, the Directive was conceived as an instrument for combating un- 4 authorised 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 The basic approach taken by the proposal for the Directive was retained during the 5 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, 6 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 The Hague Programme13 – and, since then, the Stockholm Programme14 as well – 7 reinforced the call for a comprehensive immigration policy and linked legal immigration 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 6

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/Acosta/Groenendijk/Moreno-Lax (eds), EU Immigration and Asylum Law, p. 444. Critical on the approach also: Hammarberg, Criminalisation of Migration in Europe. 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 accessed 17 April 2021]. 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. 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 accessed 17 April 2021]. 7

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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 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. 9 On the other hand however, third-country nationals who are permitted to reside in a Member State but who work in breach of the conditions that apply to their residence permit are not covered by the Directive.19 10 The legal base chosen for the Directive – Article 61(1)(3)(b) TEC (now Article 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 8

V. Structure of the Directive The Directive’s provisions can be generally grouped in four main regulatory fields: 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). 12 The sanctions include criminal penalties, non-criminal sanctions and other measures 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). In addition, illegally employed persons have the right to lodge a complaint against their employer (Article 13(1)).22 11

16

Commission Communication, COM(2006) 402 final. 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 accessed 17 April 2021]. 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, p. 1. 22 On the employees rights: Schierle, in Barwig/Beichel-Benedetti/Brinkmann (eds), Hohenheimer Tage zum Ausländerrecht, p. 97. 17

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Art. 1

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The prerequisite for imposing sanctions or asserting employee rights under this 13 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 14 States may exceed these minimum standards in their implementation of the Directive. They may lay down stricter rules or prescribe higher levels of protection. This follows firstly from Article 1 in conjunction with recital 4. It is also indicated by 15 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. Some minimum standards allow deviations that fall short of the respective standard 16 (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.

VII. The European Parliament’s influence during the negotiations The Directive was adopted using the codecision procedure. After the EP and the 17 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 employment experts. In the European Parliament, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) was responsible for the Directive. The Employment

23

Peers, Legislative Update, p. 411. ECJ, Laval, C-341/05, EU:C:2007:809, para 111; ECJ, Rüffert, C-346/06, EU:C:2008:189, para 33; AG Bot, Rüffert, C-346/06, EU:C:2007:541, para 81 et seqq; Kokott, in Scholz/Becker (eds), Die Auswirkungen der Rechtsprechung des Europäischen Gerichtshofs auf das Arbeitsrecht der Mitgliedstaaten, p. 165. 25 Posted Workers Directive 96/71/EC (OJ 1997 L 18/1). 24

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Chp. 13 Art. 2

Employers Sanctions Directive 2009/52/EC

Committee (EMPL) was involved as an associated committee.26 The EMPL’s negotiating position was decisive in connection with the labour law-related provisions. 18 Determining which of the outcomes from these negotiations were due to the EP’s 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

VIII. Revision of the Directive? 19

In its Communication on a New Pact on Migration and Asylum of 23 September 202028, the Commission announced that it will assess how to strengthen the effectiveness of the Employers Sanctions Directive and evaluate the need for further action (see below Article 16 MN 4). The Commission indicated that it will start the assessment in the fourth quarter of 2020.

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;

26

See Rules of Procedure of the European Parliament. Different: Peers, Legislative Update, p. 411. 28 Commission Communication, COM(2020) 609 final. 27

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(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; (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 mn. 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 1 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. Some of these definitions are closely linked with one another. Previously defined 2 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).

II. Definitions 1. Third-country national (Article 2(a)) This definition corresponds to Article 2(6) of the Schengen Borders Code Regulation 3 (EU) No 2016/399. A third-country national is any person who is not a Union citizen Schierle

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within the meaning of 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 (EU) No 2016/399. 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 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.29 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.30

3. Employment (Article 2(c)) 5

First of all, employment must involve activities that are exercised for or under the 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.31 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)) 6

This definition is derived from the terms defined in Article 2(a), (b) and (c). Important here is that in conformity with Article 2(b) and in contrast to what the

29

See recital 5, last sentence. Voglrieder, Die Sanktionsrichtlinie, p. 168. 31 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. 30

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wording of this term indicates at first glance, this definition covers only illegally staying third-country nationals.32

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.33 The term temporary work agency is defined at Article 2(h).

6. Subcontractor (Article 2(f)) The term subcontractor was defined for the liability provisions set forth in Article 8. 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)) Reference is made to the national law of the Member States. States, public interna- 9 tional organisations and public bodies exercising State authority are expressly excluded from this definition.

8. Temporary work agency (Article 2(h)) An employment relationship for which national law applies is a prerequisite here. 10 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)) This definition should be seen in conjunction with Article 9(1)(c) (Criminal offence). 11 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.34 It was however unable to find sufficient support for this request.

10. Remuneration of illegally staying third-country national (Article 2(j)) Remuneration was defined for the purpose of Article 6 (Back payments to be made by 12 employers). This term should be understood in a broad sense and also includes considera32 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. 33 European Parliament, Report of the Committee on Civil Liberties, Justice and Home Affaires of 27 January 2009, A6-0026/2009, Amendment 11 (EMPL). 34 Council doc. 5933/08 of 6 February 2008, p. 7.

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tion 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.35

Article 3 Prohibition of illegal employment 1. Member States shall prohibit the employment of illegally staying third-country nationals. 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.........................................................................................................

mn. 1 3

I. Prohibition Article 3 is the central prohibitory rule in the Directive. Pursuant to Article 3(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). 2 Pursuant to Article 3(2), infringements of this prohibition shall be subject to the 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. 1

II. Exemption The purpose of Article 3(3) is not clear at first glance. Member States have the option 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.36 This would appear to run counter to the Directive’s objective. 4 The proposal did not contain this provision. It was added in order to accommodate the German concept of Duldung.37 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 3

35

European Parliament doc. A6-0026/2009 of 27 January 2009, Amendment 15 (EMPL). The exception is mentioned in: AG Bot, Tümer, C-311/13, EU:C: 2014:1997, para 84. 37 Voglrieder, Die Sanktionsrichtlinie, p. 168. 36

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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.38

Article 4 Obligations on employers 1. Member States shall oblige employers to: (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.

mn. General remarks .............................................................................................. 1 Drafting history ............................................................................................... 5 Control and documentation obligations.................................................... 8 Notification obligation................................................................................... 12 Non-liability on fulfilment of employer’s obligations ............................ 14

I. General remarks Article 4(1) imposes control, documentation and notification obligations on em- 1 ployers 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 38 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. (11) OJ 2004 L 16/44.

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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.39 4 The measures specified are already part of current legislation in the majority of Member States.40 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.41 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, 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. 6 The one-week notification period envisaged in the draft has been abandoned and left 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. 7 While the notification obligation was originally intended to apply solely to ‘employers 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. 5

39

Commission, Impact Assessment Guidelines, SEC(2009) 92, p. 43. Commission Impact Assessment, SEC(2007) 603, p. 100. 41 Commission Impact Assessment, SEC(2007) 603, p. 36. 40

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III. Control and documentation obligations The control and documentation obligations under Article 4(1)(a) and (b) are closely 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.42 In this connection, the obligation of the employer to require that the third-country national ‘holds’ a valid residence permit is of no independent significance. Crucial here is for the employer to require presentation of the authorisation, make a copy or record, and keep this available. 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. 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.

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IV. Notification obligation Under Article 4(1)(c), the employer is obliged to notify the competent authorities 12 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. Article 4(2) provides for two exceptions to Article 4(1)(c). On the one hand, a 13 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. 42 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.

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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. 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 .....................................................

mn. 1 5 7

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.43 2 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 1

43 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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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 3 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 4 during the negotiations.

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. Insofar as return procedures are carried out, the costs of return are to be imposed on 6 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).44

III. Option for reduced financial sanctions Under Article 5(3), Member States may provide for reduced financial sanctions for 7 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; 44 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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(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. 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 ....................................................................

mn. 1 6 11 11 14 15 23 24

I. General remarks 1

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.

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At the same time, this provision seeks to prevent employers from gaining an economic advantage from illegal employment.45 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.46 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. 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.47 This is the intent behind Article 6.

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II. Drafting history Although the basic import of Article 6 outlined under I. was retained in the negotia- 6 tions, 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.48 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, 7 thus relieving the illegal employee of the onus of proof (Article 6(1)(a)). The presump45

Verschueren, Employment and social security rights of third country nationals, p. 105. 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. 47 Cyrus, Trafficking for labour and sexual exploitation in Germany, p. 77. According to McKay, Transnational aspects, p. 123, ‘Article 6 is ground-braking’ in this respect. Verschueren, Employment and social security rights of third country nationals, p. 105, is surprised, however, ‘that this Directive does not contain an equal treatment clause guaranteeing the workers involved equal treatment as regards employment and social security rights with the nationals of the host Member State’. 48 In BE, FR, HU, MT and PL public authorities have respective competences, Commission Communication, COM(2014) 286 final, p. 7. 46

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tion 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. 8 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. 9 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. 10 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 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 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. 12 To facilitate the enforcement of the illegal employee’s claim, Article 6 makes specific provisions under substantive (see below a.), procedural (see below b.) and residency (see below c.) law. 11

a) Substantive provisions. Generally, the employee seeking to assert his remuneration 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. 14 On the one hand, an employment relationship is presumed to last at least three 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 remu13

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neration 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 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)). 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 thirdcountry 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. 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 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 nongovernmental 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:

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‘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 20 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 21 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 22 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 Schierle

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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). 23

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 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.49 Under the reworded provision, this obligation no longer holds.50 The intention of the Commission to protect illegal employees under social security provisions has therefore been abandoned.51 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; 49 In some Member States, illegal employees cannot receive social insurance. On this, see: Hildebrand, ‘Migranten in irregulären Situationen’ (Migrants in irregular situations), Evangelischer Pressedienst, Dokumentation, No 8/98. On the legal position in the Member States, see also: Commission Impact Assessment, SEC(2007) 603, p. 119. 50 McKay, Transnational aspects, p. 123. 51 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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(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 mn. 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 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 participation in public contracts. In serious cases, establishments may additionally be closed and required licences may be withdrawn. 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. 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. 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, now Directive 2014/24/EU)52 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.

52 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 has been replaced by Directive 2014/24/EU by 18 April 2016.

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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

2. Exclusion from participation in a public contract 9

Under Article 7(1)(b), employers may be excluded for up to five years from participation in a public contract as defined in Directive 2004/18/EC (Public procurement, now Directive 2014/24/EU). 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, now Directive 2014/24/EU) 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, now Directive 2014/24/EU) 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 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. 11 The closure of an establishment and the withdrawal of a licence may be temporary or 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. 10

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III. Exception In accordance with Article 7(2), sanctions do not have to be provided for in the 12 case of 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.53 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 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.

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mn. General remarks .............................................................................................. 1 Drafting history ............................................................................................... 4 Liability under Article 8(1) and (2) ............................................................ 7 Exemption from liability ............................................................................... 9 Scope of liability .............................................................................................. 10 Scope for stricter liability regulations......................................................... 11

Commission Impact Assessment, SEC(2007) 603, p. 7.

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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.54 2 In a resolution of 26 March 2009, the EP therefore presses for the introduction of main contractor liability.55 A study by the International Labour Office also recommends its introduction to help illegal employees enforce their remuneration claims.56 In the case of Wolff & Müller, the ECJ decided that main contractor liability in the German law on the posting of workers was compatible with Community law57 and found that it served employee protection and the general interest.58 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. 3 In the meantime, provisions on subcontractor liability have been included in further Union legislation. Article 12 of Directive 2014/67/EU on the enforcement of the posting of workers Directive59 contains a quite elaborated provision on joint and several liability as well as Article 17 Seasonal Workers Directive 2014/36/EU. 1

II. Drafting history Liability in awarding subcontracts was considerably moderated in the course of negotiations. 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. 5 The French Presidency proposed the liability of the client for the main contractor employing third-country nationals illegally.60 But this proposal was rejected by the majority of the Member States. 4

54 On existing legislation in the Member Sates: Houwerzijl/Peters, Liability in subcontracting processes in the European construction sector. 55 European Parliament resolution of 26 March 2009 on the social responsibility of subcontracting undertakings in production chains, European Parliemant doc. P6_TA(2009)0190. 56 Cyrus, Trafficking for labour and sexual exploitation in Germany, p. 84. 57 ECJ, Wolff & Müller, C-60/03, EU:C:2004:610, para 45. 58 Ibid., para 36. 59 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, in Schlachter (ed), EU Labour Law, p. 192. 60 Council doc. 10770/08 of 18 June 2008, p. 7.

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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.61 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.62 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.63

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 thirdcountry nationals staying illegally. The contractors included under Article 8(1) and (2) are liable ‘in addition to or in place 8 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 Under Article 8(3), the Member States can impose due diligence obligations under 9 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 Liability comprises on the one hand financial sanctions, especially fines, under 10 Article 5 and on the other the remuneration of the employee as per Article 6(1)(a), 61

European Parliament doc. A6-0026/2009 of 27 January 2009, p. 26. Council doc. 6039/09 of 10 February 2009, p. 4. 63 Council doc. 8917/09 of 8 May 2009, p. 3. 62

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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; (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...........................................................................................................

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I. General remarks The establishment of criminal penalties was a key aim of the proposal. The Commission felt that administrative fines alone did not have sufficient deterrent value to ensure the achievement of the Directive’s objectives.64 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.65 The Directive was adopted before the Treaty of Lisbon entered into force. Therefore 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.66 According to this ruling, the application of effective, proportionate and dissuasive sanctions must constitute an essential measure for combating serious impairment of Community policy.67 Further, the ECJ ruled that although the punishability of an offence may be regulated, the type and level of the penalty may not.68 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.69 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.70 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.71 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. 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 64

Commission Proposal, COM(2007) 249 final, p. 10. On the Community’s competence: Hörich, Die Sanktionsrichtlinie, p. 49. 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. 67 ECJ, Commission v. Council, C-440/05, EU:C:2007:625, para 66. 68 ECJ, Commission v. Council, C-440/05, EU:C:2007:625, para 70. 69 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 für Strafrecht 12 (2008), p. 662. 70 Commission Impact Assessment, SEC(2007) 603, p. 37. 71 Commission Impact Assessment, SEC(2007) 603, p. 9. 65 66

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connection with the Directive.72 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.73 In the end, a qualified majority in the Council answered the question of the necessity of criminal penalties in the affirmative. Recital 21 elaborates: ‘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.74

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 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.75 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. 8 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.76 It also proposed retaining the 6

72

Council Council 74 Council 75 Council 76 Council 73

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doc. doc. doc. doc. doc.

14655/07 of 5 November 2007, p. 7. 5933/08 of 6 February 2008, p. 4. 8917/09 of 8 May 2009, p. 2. 5933/08 of 6 February 2008, p. 6. 5933/08 of 6 February 2008, p. 7.

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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.77 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.78 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.79 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, now Directive 2011/36/EU),80 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).81 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.

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III. Criminal offences A prerequisite for all criminal offences is the intentional infringement of the 13 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.

77

Council doc. 11000/08 of 3 July 2008, p. 5. Council doc. 5933/08 of 6 February 2008, p. 7. 79 European Parliament, Draft Report of the Committee on Civil Liberties, Justice and Home Affaires of 4 July 2008, PE409.510, Amendment 39. 80 Council Framework Decision of 19 July 2002 on combating trafficking in human beings (OJ 2002 L 203/1). The Council Framework Decision 2002/629/JHA has been replaced by 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. 81 Council doc. 7988/08 of 14 April 2008, p. 17; European Parliament doc. PE409.510, Amendment 41. 78

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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 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 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. 19 In order to avoid overlaps with the criminal liability pursuant to the Council Framework Decision 2002/629/JHA (Trafficking in human beings, now Directive 2011/36/EU), 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. 18

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Art. 10

Chp. 13

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...........................................................................................

mn. 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 delineates 2 the scope of Article 10 vis-à-vis Articles 11 and 12 which apply to legal persons. Although the Council recommended deleting Article 10(2) or moving it to a recital,82 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 noncriminal 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).83 The Council Working 82

Council doc. 14617/08 of 22 October 2008, p. 14. On Article 4 Protocol No 7 ECHR (ne bis in idem): Grabenwarter, European Convention of Human Rights Commentary (C.H. Beck, 2014), p. 436. 83

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Party viewed the coexistence of ‘financial penalties’ under Article 6(2)(a) of the proposal with criminal penalties particularly critically.84 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 CFR. 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.85

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.86 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 CFR 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 CFR 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: (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. 84

Council doc. 9322/08 of 26 May 2008, p. 19 et seq. Council doc. 8917/09 of 8 May 2009, p. 3. 86 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). 85

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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................................................................................

mn. 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.87 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 employees itself and possibly does not even know of the specific cases but tolerates illegal employment on a de facto basis within the enterprise. Article 11(3) states that the liability of a legal person does not exclude criminal 4 proceedings against natural persons as perpetrators of, inciters to or accessories in an offence referred to in Article 9. 87 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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Chp. 13 Art. 12

Employers Sanctions Directive 2009/52/EC

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.............................................................................

mn. 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/EC88 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.89 1

II. Penalties for legal persons 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. 4 Under the second sentence of Article 12, Member States may make public a list of legal persons who have been held liable for illegal employment pursuant to Article 11. Member States are not however required to do so. 3

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Directive 2008/99/EC (OJ 2008 L 328/28) on the protection of the environment through criminal

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Art. 13

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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 caseby-case 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 mn. 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 V. Residence permit for the duration of the criminal proceedings .......... 12

I. II. III. IV.

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 L 328, 5.12.2002, p. 17.

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Employers Sanctions Directive 2009/52/EC

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.90 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.91 The Committee on Civil Liberties, Justice and Home Affairs had submitted its own proposal for the wording of this paragraph.92 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)93 was newly added to Article 13(3). The Parliament’s proposal to protect whistleblowers too did not receive sufficient support.94 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).95 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 90 European Parliament, Report of the Committee on Civil Liberties, Justice and Home Affairs of 27 January 2009, doc. A6-0026/2009, Amendment 41 (EMPL). 91 European Parliament doc. A6-0026/2009, Amendment 43 (EMPL). 92 European Parliament, Draft Report of the Committee on Civil Liberties, Justice and Home Affairs of 4 July 2008, doc. PE409.510, Amendment 47. 93 Directive 2002/90/EC (OJ 2002 L 328/17) defining the facilitation of unauthorised entry, transit and residence. 94 European Parliament doc. A6-0026/2009, Amendment 42 (EMPL). 95 European Parliament doc. PE409.510, Amendment 48.

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Art. 14

Chp. 13

must have a legitimate interest in ensuring compliance with this Directive. According to the 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 conditions) 12 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.

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Employers Sanctions Directive 2009/52/EC Content

I. General remarks and drafting history........................................................ II. Inspections........................................................................................................

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I. General remarks and drafting history 1

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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.96 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.97 The Committee on Employment and Social Affairs opposed setting a rate.98 The Commission estimated the additional costs for an inspection rate of ten per cent at € 1.14 billion for the Member States and € 190 million for the economy.99 The Commission assumed here that currently some two per cent of the approximately 22 million enterprises in the EU are inspected every year.100 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.101 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 cent102 and having Member States set a national target rate on an annual basis103 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 96

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. 98 European Parliament, Report of the Committee on Civil Liberties, Justice and Home Affairs of 27 January 2009, A6-0026/2009, Amendment 44 (EMPL). 99 Commission Impact Assessment, SEC(2007) 603, p. 29. 100 Commission Impact Assessment, SEC(2007) 603, p. 30. 101 Voglrieder, Die Sanktionsrichtlinie, p. 168. 102 Council doc. 11000/08 of 3 July 2008, p. 8. 103 Council doc. 14617/08 of 22 October 2008, p. 17. 97

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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.

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.104 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).105

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 1 for 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.106 Since the Directive sets only minimum standards under Article 1, this rule would have possibly also been dispensable. In any 104 Peers/Guild/Acosta/Groenendijk/Moreno-Lax (eds), EU Immigration and Asylum Law, p. 444, points out that choices about which employers to check may not conflict with the principle of nondiscrimination. 105 Commission Communication, COM(2014) 286 final, p. 16, includes figures on 2012 inspections reported by Member States. 106 European Parliament, Report of the Committee on Civil Liberties, Justice and Home Affairs of 27 January 2009, doc. A6-0026/2009, Amendment 16 (AGRI).

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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).

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.107 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 report (2014)108, 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. In 2020, the Commission announced 1

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that it will assess how to strengthen the effectiveness of the Directive and evaluate the need for further action (see above Article 1 MN 19).109

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. 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 ended on 20 July 2011, 24 months after the Directive had 1 entered into force. Member States had to inform the Commission regarding their transposition of the Directive. When adopting measures to transpose the Directive, the Member States were to include a reference to the Directive. It was 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 were required to communicate to the Commission the text of the main provisions they had 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. 109

Commission Communication, COM(2020) 609 final.

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Chapter 14. Single Permit Directive 2011/98/EU Select Bibliography: Beduschi, ‘An Empty Shell? The Protection of Social Rights of Third-Country Workers in the EU after the Single Permit Directive’, EJML 17 (2015), p. 210–238; Brinkmann, ‘Opinion of Germany on the Single Permit Proposal’, EJML 14 (2012), p. 351–366; Couronne, ‘L’immigration économique au sens du droit de l’Union européenne’, in: Icard/Olivier-Leprince (eds), Les Flux migratoires au sein de l’Union Européenne (Bruylant, 2017), p. 61–74; De Lange, ‘The Single Permit Directive: A Limited Scope, A Simple Procedure and Limited Good Administration Requirements’, in: Minderhoud/Strik, The Single Permit Directive: Central Themes and Problems (Wolf Legal Publishers, 2015); Friðriksdóttir, What Happened to Equality? The Construction of the Right to Equal Treatment of Third-Country Nationals in European Union Law on Labour Migration (Brill/Nijhoff, 2017); Groenendijk, ‘Equal Treatment of Workers from Third Countries: the Added Value of the Single Permit Directive’, ERA Forum 16 (2015), p. 547–561; Iglesias Sánchez, ‘Fundamental Rights Protection for Third Country Nationals and Citizens of the Union: Principles for Enhancing Coherence’, EJML 15 (2013), p. 137–153; 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. 16–44; Pascouau/McLoughlin, ‘EU Single Permit Directive: a small step forward in EU migration policy’, European Policy Centre Policy Brief (2012), available at: https://www.epc.eu/en/ Publications/EU-Single-Permit-Directive-a~243b64 [last accessed 27 January 2021]; Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, ‘Single Permits and Workers’ Rights’, in: ibid. (eds), EU Immigration and Asylum Law (Text and Commentary), Vol. 2, 2nd edn, (Brill, 2012), p. 223–245; Potisepp, ‘The Negotiations’, in: Minderhoud/Strik, The Single Permit Directive: Central Themes and Problems (Wolf Legal Publishers, 2015); Roos, The EU and Immigration Policies: Cracks in the Walls of Fortress Europe? (Palgrave Macmillan, 2013); Verschueren, ‘Employment and Social Security Rights of Third-Country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection’, EJML 18 (2016), p. 373–408. Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Directive 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 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),

(1) (2)

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Acting in accordance with the ordinary legislative procedure(3), Whereas: […] 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, 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.

mn. General remarks .............................................................................................. 1 Drafting History of the Directive ................................................................ 4 Drafting history of Article 1 ......................................................................... 10 The twofold objective of the Directive (Article 1(1)) ............................. 12 Member States retained powers concerning admission (Article 1(2)) 17

I. General remarks The adoption of EU instruments in the field of economic migration has been a long 1 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 (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). 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.

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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, which 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 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, 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 intra-corporate transferees), and a general directive on the rights of all migrant workers. As a result, three sectorial directives have been approved.7 Directive 2011/98/EU 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. 2 The Single Permit Directive is a crucial element of 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 limited 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.8 3 The overall objective of a ‘fair treatment’ towards third-country nationals has been constitutionalized by the Treaty of Lisbon. Indeed, both Article 67(2) and Article 79(1) TFEU 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 3

Commission Communication, COM(2004) 811 final. 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. 7 Blue Card Directive 2009/50/EC; Seasonal Workers Directive 2014/36/EU and the ICT Directive 2014/66/EU. 8 See, for example, on the interpretative value of the Single Permit Directive with regard to other legal instruments, in ECJ, Balandin and Others, C‐477/17, EU:C:2019:60, para 32. 4

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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.9

II. Drafting History of the Directive The Single Permit Directive is the first legal migration instrument adopted through 4 the ordinary legislative procedure after the entry into force of the Lisbon Treaty. The proposal for the Directive was adopted by the Commission in 2007,10 together with the proposal for the Blue Card Directive 2009/50/EC. Nonetheless, whereas the Blue Card Directive 2009/50/EC 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.11 The negotiation of the Directive was initially governed by the consultation procedure 5 and unanimity voting in the Council, according to Article 63 TEC. In this first stage, the European Parliament adopted a first legislative resolution,12 the European Economic and Social Committee13 and the Committee of the Regions14 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,15 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-16. Other problematic issue was the legal basis, since the Council Legal Service expressed the opinion that recourse to Article 63(3) TEC was not sufficient.17 The entry into force of the Treaty of Lisbon unblocked the negotiation procedure, 6 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 9

OJ 2011 L 343/1. Commission Communication, COM(2007) 638 final. 11 See, generally, for an in-depth examination of the preparatory works, Friðriksdóttir, What Happened to Equality?, p. 193 and ff. and Potisepp, The Negotiations. 12 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). 13 OJ 2009 C 27/114. 14 OJ 2008 C 257/20. 15 On these disagreements see Roos, The EU and Immigration Policies, p. 164. 16 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. 17 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. 10

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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.18 7 The adoption of the Directive was further delayed due to the negative vote of the Parliament in the plenary session of December 2010.19 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.20 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.21 According to this declaration, recital 32 was incorporated into the Directive.22 This is the first directive that contains such commitment.23 8 The Council adopted its position the 24 November 2011, at first reading. According 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 2011.24 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. 9 According to Article 294(6) TFEU, the Commission adopted a Communication on the 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.25 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 10

Article 1 establishes the objectives of the Directive. Two important changes were introduced in the text of Article 1 with regard to the wording proposed by the 18

Pascouau/McLoughlin, EU Single Permit Directive. 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, Véronique Mathieu (vote) – PV 13/ 12/2010-18. 20 For a detailed account of the parliamentary procedure, see Pascouau/McLoughlin, EU Single Permit Directive. 21 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). 22 Council doc. 16276/11 of 11 November 2011. 23 The Commission has reminded Member States of their political commitment. Commission, Contact Committee ‘Migration’ Report Mig-Dir-44, 1 October 2013. 24 Council doc. 17663/11 of 25 November 2011. 25 Commission Communication, COM(2011) 832 final. 19

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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.26 The first legislative resolution of the European Parliament under the consultation procedure also contained an amendment in this sense.27 The Presidency of the Council proposed to insert this clarification in a new recital.28 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.29 The second paragraph to Article 1 was also introduced to this effect,30 as proposed by the European Parliament.31 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’.32 In the early stages of the adoption process, 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’33. 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)) The objective of the Directive is laid down by Article 1(1). This objective is twofold as 12 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’.34 In the first place, the Directive lays down a single application procedure for all those 13 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 26

Council doc. 6212/08 of 5 March 2008. European Parliament doc. P6_TA(2008)0558 of 20 November 2008 (OJ 2010 C 16/240). 28 Council doc. 12054 of 22 July 2008. 29 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. 30 Following the meeting of the Permanent Representatives Committee on 19 November 2008, Council doc. 16065/08 of 21 November 2008. 31 European Parliament doc. P6_TA(2008)0558 of 20 November 2008 (OJ 2010 C 16/240). 32 See suggestions by the Presidency, Council doc. 10127/09 of 20 May 2009. 33 European Parliament doc. P6_TA(2008)0558 of 20 November 2008 (OJ 2010 C 16/240). 34 Commission Communication, COM(2007) 638, p. 2. 27

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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.35 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. Considering the importance of teleological interpretation in EU law, it is not surprising that this second objective of the directive has proven to be of great relevance in the first cases in which the Court of Justice has interpreted the Single Permit Directive. The Court has rejected arguments based on a notion of integration as a requirement, consolidating the role of integration as an objective to be pursued through the establishment of a common set of rights based on equal treatment.36 However, ten years after the adoption of the Directive, its implementation and practical effects are far from being considered a success. Several infringement actions launched by the Commission have been withdrawn before the ECJ reached judgement.37 The Commission has announced its intention to review the Single Permit Directive, which is considered as not having fully achieved its objectives.38

V. Member States retained powers concerning admission (Article 1(2)) 17

Article 1(2) of the Directive establishes that this instrument is without prejudice to 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 35

These gaps had been identified by the Commission impact assessment, SEC(2007) 1408. ECJ, WS (Family benefits for the holder of a single permit), C‐302/19, EU:C:2020:957, para 34. 37 See e.g. case C-564/17. 38 Commission Communication, COM(2020) 609 final. 36

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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.

mn. 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 throughout 1 the Directive. Some of them are common to other instruments, like the notion of ‘thirdcountry nationals’, and did not pose any problems during the negotiating procedure. The notions of ‘single permit’ and ‘single application procedure’ were debated and 2 clarified through several amendments of the European Parliament and the Council. But the most problematic notion and the one that suffered more changes when compared to the text of the Commission’s Proposal is that of ‘third-country worker’. The Proposal of the Commission contained a simpler definition, referring to ‘any third-country national who has been admitted to the territory of a Member State and is allowed to work legally in that Member State’. Several Member States considered that definition too broad, and proposed further clarifications.39 In the course of the negotiations, two important 39

Council doc. 6212/08 of 5 March 2008.

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elements were added to this definition: the ‘third-country worker’ in question has to be ‘legally residing’, and has to be allowed to work ‘in the context of a paid relationship (…) in accordance with national law or practice’.40

II. Third-country national 3

In the same way as other legal migration directives,41 Article 2(a) defines the notion of ‘third-country national’ as any person who is not a citizen of the Union. The determination of who is a citizen of the Union is made by reference to Article 20(1) TFEU, which in its 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) TFEU, according to which, for the purposes of Title V TFEU, devoted to the Area of freedom, security and justice, ‘stateless persons shall be treated as thirdcountry nationals’.

III. Third-country 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.42 Nonetheless, the final text of the Directive follows the Commission’s Proposal and has conserved the notion of ‘third-country workers’ as one of the core concepts of this legal instrument. The confirmation of the applicability of the Directive to ‘third-country workers’, and not merely to ‘single permit holders’, entails once again a confirmation that the scope of the Directive is not limited to those who applied for the single permit under the single application procedure. This broad notion has nonetheless to be contrasted with the wide range of exclusions from the scope of the Directive introduced by Article 3. 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 objective of the Directive is to lay down a common set of rights to third-country workers, irrespective of the purposes for which they were initially admitted. In this regard, the Commission’s Proposal clearly stated the aim that the Directive would apply also to ‘those who were initially admitted for other purposes and were also given access to the labour market on the basis of Community or national provisions (e. g. family 4

40

Brinkmann, Opinion of Germany, p. 351, 357. 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; Article 3 of the Students and Researchers Directive 2016/ 801/EU. See also Article 3 of the Seasonal Workers Directive 2014/36/EU and of the ICT Directive 2014/ 66/EU. 42 Council doc. 8145/09 of 30 March 2009. 41

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

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

IV. Single permit 11

The definition of the ‘single permit’ is contained in Article 2(c), and refers to any residence permit issued by the authorities of a Member State that allows third-country nationals to reside for work purposes. The single permit therefore entails two authorizations: to reside and to work. This permit is destined to be the sole document to be issued by Member States, as Article 6(2) of the Directive contains a prohibition to issue additional permits as proof of authorisation to access the labour market. This new approach is aimed at simplifying the procedure, but also at easing the possibilities of control of the administrative situation of third country nationals by the national authorities. During the negotiations in the Council, some Member States insisted to introduce in this definition a reference to Regulation 1030/2002. The Commission insisted that this was not necessary, because this point should be read in conjunction with Article 6, which already contains the reference to Regulation 1030/2002.50 In this regard, a new recital was included, following the suggestions of the Presidency during the negotiations in the Council,51 which states that ‘the provisions of the Directive do not concern uniform or long-stay visas’ (recital 11).

V. Single application procedure 12

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

consequence in regard to whether or not a person is to be regarded as a worker’, ECJ, Bettray, C-344/87, EU:C:1989:226, para 15. 48 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. 49 Blue Card Directive 2009/50/EC, Article 2(b). 50 Council doc. 144668/08 of 29 October 2008. 51 Council docs. 15500/08 of 11 November 2008 and 16065/08 of 21 November 2008. 52 European Parliament doc. P6_TA(2008)0558 of 20 November 2008 (OJ 2010 C 16/240).

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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 (lit. 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)).................................................

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

I. General remarks and drafting history 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.53 2 The text of Article 3 underwent considerable modifications during the negotiation process through the amendments of the Council and of the European Parliament, which excluded several groups of third country nationals that the Commission Proposal did not initially intend to exclude. This was one of the major points of disagreement between the LIBE and EMPL committees in the context of parliamentary debates. Having in mind that one of the purposes of the Directive is to establish a common level 1

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playing field and common rights to all third country nationals legally residing in the Member States, the exclusion of no less than 12 categories is one of the most criticized 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.54 The Directive does not therefore overcome the situation of fragmentation of EU migration law.55 Most of the exclusions contained in this article have been justified by the fact that other EU instruments contain specific regimes, which set up more favourable provisions. However, this is not entirely true. Blue Card holders as well as trainees under the Researchers and Students Directive are not excluded from the scope of the Single Permit Directive despite being covered by other more specific EU law instruments. Moreover, the lack of a systematic approach to the status of different groups of legal residents in the different migration directives renders the list of exclusion of this Directive – which is supposed to contain the minimum common denominator in terms of rights for migrant workersparticularly regrettable. The complexity flowing from the long list of exclusions from the scope of application in Article 3(2) is furthered even more by the fact that, according to Article 3(4), Chapter II of the Single Permit Directive has an even narrower scope of application than the rest of the Directive, as it does not apply to third-country nationals who are allowed to work on the basis of a visa.

II. Scope of the Directive (Article 3(1)) According to Article 3(1), which defines the scope of the Directive, this instrument is 3 applicable to third-country nationals (a) who apply to reside in a Member State for the purpose of work; (b) those who have been already admitted for purposes other than work but who are allowed to work and are holders of a residence permit according to Regulation 1030/2002; and (c) those who have been admitted to work according to EU or national law. The text of the Commission’s Proposal contained a simpler definition of the scope of 4 application, referring to (a) third-country nationals seeking to reside and work and (b) third-country workers legally residing in a Member State. Whereas the application of the Directive to single permit applicants did not raise any concerns, the inclusion of all third-country workers led to a strong debate in the Council. Some Member States raised general concerns and considered that the scope should be restricted to persons who have come for the purpose of work, excluding those who were admitted for other purposes (refugee, family members) even if they were granted access to the labour market. Nonetheless, the Commission strongly opposed this view, due to the objective of the Directive to create a horizontal framework.56 Moreover, the reference to ‘third-country workers legally residing in a Member State’ 5 led to a controversy on the legal basis of the directive. In this regard, during the first period of negotiations in the Council, before the entry into force of the Treaty of Lisbon, the Council Legal Service objected the use of Article 63(3) TEC as the appropriate legal basis to include under the Directive third country nationals who had not been admitted 54 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. 55 Morano-Foadi/de Vries, in Morano-Foadi/Malena (eds), Integration for third country nationals, p. 37; Couronne, L’immigration économique au sens du droit de l’Union européenne, p. 64. 56 Council doc. 6212/08 of 5 March 2008.

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under EU provisions.57 This disagreement lead to a debate on the notion of ‘legal residence’ and to the blocking of the negotiations for a considerable period of time, since several Member States wanted to restrict the application of the directive solely to single permit holders. Only with the entry into force of the Lisbon Treaty an agreement could be reached.58 Article 3(1)(a) establishes that the Directive shall apply to those who apply to reside for the purpose of work: this indent covers all those who have not been already authorized to reside and work and are applying for a residence permit which conducts to a work authorization. Article 3(1)(b) was introduced during the negotiations in the Council, and covers persons who fulfil three requirements: they should have been admitted for purposes other than work in accordance to national or EU law; they should be allowed to work, and they should hold a residence permit in accordance to Regulation 1030/2002. The reference to third-country nationals who have been admitted for purposes other than work was introduced at the request of some Member States,59 in order to reflect appropriately in the scope of the Directive the provisions of its Article 7.60 This inclusion lead to some adjustment: as a compromise solution, a new recital 16 was included, according to which the provisions of the directive do not prevent Member States from issuing additional documents in order to give more precise information on the employment relationship for which the format of the single permit does not leave enough space. Article 3(1)(c) covers all the workers that have already been admitted for the purpose of work, not through the single application procedure, but through other mechanisms defined in EU or national law. The combination of these three provisions entails that the Directive applies not only to third-country nationals who have been granted a residence permit under the provisions of the single application procedure, but also to other categories of third country nationals holding other types of residence permits and who have access to the labour markets such as holders of national permits; Blue Card Holders, family members of third country nationals; students and scientists. Indeed, even if this provision does not explicitly mention these groups of third country nationals, it has to be noted that these categories are not excluded, according to the exhaustive cases enumerated in Article 3(2) of the Directive. Therefore, it can be concluded that these groups fall within the scope of the Single Permit Directive for all the situations in which this instrument could eventually be considered more favourable. This interpretation is backed by the travaux préparatoires.61 With regard to the situation of students, their exclusion was explicitly debated during the negotiations in the Council, but was not finally reflected in the text of the Directive, after the Commission clarified that there was no risk of clash with the Students Directive.62 An important point with regard to the scope of application which is not explicitly referred to in Article 3(1) is whether the Directive is applicable to those already present in the territory of a Member State. In this regard, in the framework of the negotiations in the Council, the Commission pointed out that third-country nationals already 57

See e. g. Council doc 7721/09 of 18 March 2009. Council doc. 6273/10 of 10 February 2010. See further on this aspect of the drafting history, Groenendijk, Equal Treatment of Workers from Third Countries, p. 550–551. 59 Council doc. 15500/08 of 11 November 2008. 60 Council doc. 15113/08 of 6 November 2008. 61 On this discussion: Council doc. 7710/09 of 18 March 2009. 62 Council doc. 6212/08 of 5 March 2008. 58

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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.63 The Presidency suggested the inclusion of a recital explaining this possibility,64 but it was not taken on board in the final text of the Directive. Another issue not explicitly dealt with in the text of the Directive is the status of frontier workers. According to the Commission, this group should be also understood as excluded from the scope of the Directive since it applies to third country nationals who work and reside in the same Member State (or who apply to do so).65 However, such an exclusion does not clearly follows from the text of the Directive, as residence is only mentioned in Article 3(1)(a) but not in letters (b) and (c) of the same provision.

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

1. Family members of Union citizens who have exercised free movement (lit. a) This exclusion, already to be found in the Commission’s Proposal, is based on the 12 premise that free movement law already grants family members of EU citizens who have exercised free movement a more favourable status. Indeed, their situation is regulated by the Free Movement Directive 2004/38/EC,66 which contains specific provisions on the entry, stay and the application of the equal treatment principle to EU citizens and the members of their family. According to the case law of the ECJ, this provision not only refers to family members of citizens of the Union who are exercising free movement in the present, but also to those who have exercised free movement rights in the past. This reference is misleading and its interpretation is open to discussion.67 Indeed, it only covers past movement ‘in accordance with Directive 2004/38/EC’. Therefore, the reference to ‘past movements’ does not include in this exception family members of EU citizens that return to their home State after having exercised free movement rights.68 Indeed, this situation is not governed by Free Movement Directive 2004/38/EC, as the ECJ has clarified that ‘[i]t follows from a literal, systematic and teleological interpretation of Directive 2004/38 that it does not 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 63

Council doc. 6212/08 of 5 March 2008. Council doc. 12054/08 of 22 July 2008. 65 Council doc. 10807/08 of 2 July 2008. 66 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77). 67 The Blue Card Directive 2009/50/EC contains a similar provision. See commentary to Article 3(2)(c) to the Blue Card Directive 2009/50/EC in this volume. 68 ECJ, Singh, C-370/90, EU:C:1992:296; ECJ, Eind, C-291/05, EU:C:2007:771. 64

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national’.69 In the same vein, Article 3(2)(a) does not encompass those third country nationals who derive residence rights from their relationship with an EU citizen as a primary carer which are directly based in Article 20 TFUE but not on the exercise of free movement rights according to Free Movement Directive 2004/38/EC.70

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

The exclusion of those who enjoy free movement rights equivalent to Union citizens under international agreements was not contemplated in the proposal of the Commission. Its inclusion was suggested during the course of the negotiations in the Council, following the wording of the similar clause contained in the Blue Card Directive, and did not encounter any opposition.71 Article 3(2)(b) is mostly intended to exclude nationals of third-states that enjoy a privileged status. This is the case of Norway and Iceland, on the basis of the EEA Agreement as well as of Switzerland, on the basis of a bilateral agreement.72

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’. Even though some Member States and the Parliament expressed certain reluctance towards this exclusion,73 the discussions in the Council and in the Parliament mostly concentrated in the clarification of the posted workers covered by this provision.74 The reference to Directive 96/71/EC having been suppressed from the final text of Article 3(2)(c), this exclusion could be understood as comprising both workers posted between the Member States and those posted directly from third countries. The exclusion of posted workers covered by Directive 96/71/EC, even if perpetuating the internal market approach to those workers as accessories to the freedom to provide services,75 could be justified because of the existence of a separate legal instrument in EU law. However, the exclusion of workers posted directly from third countries means that those workers are not offered any kind of status under EU law (but for those covered by the ITC Directive 2014/66/EU).76 It could be argued that both exclusions are ultimately justified by the fact 69 ECJ, 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. 70 ECJ, Ruiz Zambrano, C-34/09, EU:C:2011:124. See, in this regard, Peers/Guild/Acosta Arcarazo/ Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, p. 224, footnote 9. 71 Council doc. 12342/08 of 2 October 2008. 72 Agreement on the European Economic Area between the European Communities, their Member States and the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Principality of Liechtenstein, the Kingdom of Norway, the Kingdom of Sweden OJ 1994 L 1/1. Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, OJ 2002 L 114/1. 73 Council doc. 6212/08 of 5 March 2008. 74 At a certain point, two different exclusions were contemplated: c) all posted workers identified in Directive 96/71/EC as long as they are posted and e) who are posted between one or several Member States and one or several third-countries by a service supplier for the purpose of rendering cross-border contractual 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. The Parliament insisted in not excluding workers posted directly from third states. See on the negotiations, Potisepp, The Negotiations, p. 17. 75 See in this regard De Lange, The Single Permit Directive, p. 6. 76 Verschueren, Employment and Social Security Rights, p. 106.

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that posted workers remain under an employment relationship with the company of the posting State, and therefore do not fall under the definition of third country worker of the Directive.77 Finally, recital 7 clarifies that the situation of third country nationals legally resident in a first Member States who are posted to other Member States shall however remain unaffected with regard to the rights that the Single Permit Directive grants them in the first Member State: they shall continue to enjoy equal treatment with respect to nationals of the Member State of origin for the duration of their posting, in respect of those terms and conditions of employment which are not affected by the application of Directive 96/71/EC.

4. Intra-corporate transferees (Article 3(2)(d)) The exclusion of those who have applied for admission or have been admitted as 15 intra-corporate transferees, already contemplated in the Commission’s Proposal, was also motivated by the fact that the Commission envisaged the adoption of a specific and separate proposal, which was finally adopted as the 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 2014/66/EU provides for a definition of ‘intra-corporate transfer’ in its Article 3(b), according to which this concept covers ‘the temporary secondment for occupational or training purposes of a thirdcountry national who, at the time of application for an intra-corporate transferee permit, resides outside the territory of the Member States, from an undertaking established outside the territory of a Member State, and to which the third- country national is bound by a work contract prior to and during the transfer, to an entity belonging to the undertaking or to the same group of undertakings which is established in that Member State, and, where applicable, the mobility between host entities established in one or several second Member States’. Nonetheless, having in mind that the ICT Directive 2014/66/EU was adopted after the Single Permit Directive, this exception also affects intra-corporate transferees admitted under national regimes applicable before the ICT Directive 2014/66/EU.

5. Seasonal workers and au-pairs (Article 3(2)(e)) The exclusion of seasonal workers from the scope of the Directive also bears relation 16 with the existence of a specific instrument on their status: the Seasonal Workers Directive 2014/36/EU. The concept of ‘seasonal worker’ is defined in Article 3(b) of that Directive. The Commission’s proposal already took into account the perspectives of adopting a specific instrument with regard to seasonal workers. According to recital 9, these workers should not be covered given their temporary status. During the negotiations in the Council, several Member States thought that other 17 categories of third-country nationals residing on a temporary basis should also be excluded from the scope of the Directive,78 in line with the Long-Term Residents’ Directive 2003/109/EC.79 However, the Commission made clear that these two instruments have different purposes, and that excluding all the cases of temporary stay would jeopardize the objective of the horizontal instrument. In the framework of the negotia77 It appears, according to Potisepp, The Negotiations, p. 17, that that position was held by the Council during the negotiations. 78 Council doc. 6212/08 of 5 March 2008. 79 Council doc. 6212/08 of 5 March 2008. They refer to the long-term residents Directive, whose Article 3(1)(e) excludes all those ‘who reside solely on temporary grounds such as au pairs or seasonal workers, or as a worker posted by a service provider for the purposes of cross-border provision of services, or as cross-border of services in cases where their residence permit has been formally limited’.

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

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

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

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

This provision was introduced during the negotiation procedure through amendments by the European Parliament and the Council.84 The Commission’s Proposal only contemplated the exclusion of those residing as applicants of international protection and of those who have applied for recognition as refugees and whose application had not yet given rise to a final decision. Even when during the negotiations in the Council some Member States questioned the exclusion of beneficiaries of international protection, and expressed the view that they should not be excluded from the provisions of chapter III of the Directive, regarding the principle of equal treatment, the fact that the Blue Card Directive already contemplated these exclusions played an important role.85 In this regard, the Commission stated that the rights of beneficiaries of international protection are expressly provided for in the relevant EU instruments.86 The final text of this provision reproduces the exclusion already provided for in the Blue Card Directive 2009/50/EC.87 80

Council doc. 14668/08 of 29 October 2008. See European Parliament doc. PE409.737v03-00 of 7 November 2008, amendment 17. 82 As reflected e. g. in Council doc. 10708/10 of 8 June 2010. 83 Article 3(a). 84 See e. g. Council doc. 10708/10 of 8 June 2010. 85 Council doc. 14668/08 of 29 October 2008. 86 Council doc. 15113/08 of 6 November 2008. 87 Article 3(b). 81

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

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

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

10. Persons whose removal has been suspended (Article 3(2)(j)) The Commission’s proposal contained a similar exclusion, taking over the wording of 23 Article 3(i) of the Blue Card Directive 2009/50/EC. The term ‘expulsion’ was nonetheless substituted by the notion of ‘removal’, according to a parliamentary amendment, which is more in line with the language of the Return Directive 2008/115/EC. In any case, since no explicit mention to this Directive has been included, it can be understood that this exception covers persons who have been ordered removed in accordance to the Return Directive 2008/115/EC and in accordance to national law. According to the Return Directive 2008/115/EC, ‘removal’ means the enforcement of 24 the obligation to return, namely the physical transportation out of the Member State.90 In light of this definition and having in mind the differentiation between ‘removal’ and the return procedure, it could be posited that this exception does not cover those who have been subjects of a return procedure that has subsequently been suspended, but only those who have indeed been object to a removal procedure in the sense of Article 8 of the Return Directive 2008/115/EC. On the other hand, Article 9 of the Return Directive 2008/ 115/EC refers to situations of ‘postponement of removal’, such as the application of the non-refoulement principle, or situations of temporary suspension during the revision process of return related decisions. It is questionable whether the notion of ‘postponement’ is to be equated with the notion of suspension. Other situations of suspension of removal that could be considered here are those related to technical reasons, such as lack of documents or lack of cooperation of the third State of origin. 88

Article 3(c). Verschueren, Employment and Social Security Rights, p. 108. 90 Article 2(5). 89

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

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

12. Seafarers (Article 3(2)(l)) 26

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

IV. Exclusions from Chapter II of the Directive 27

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

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

The issue of the categories of third-country nationals to be excluded on the basis of the temporary nature of their permit or of their work raised many concerns among the delegations in the Council. In this regard, the Commission expressed the view that a standstill clause could be considered.95 The possibility of an optional exclusion clause was broadly debated, in the Council, and the Commission systematically refused to exclude certain groups of third-country workers on the basis of the length 91

Council doc. 6212/08 of 5 March 2008. Council doc. 144668/08 of 29 October 2008. 93 Council doc. 7721/09 of 18 March 2009. 94 Commission Report on the Single Permit Directive, indicating that 18 Member States have used this option. 95 Council doc. 14668/08 of 29 October 2008. 92

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of their stay from the equal treatment principle.96 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,97 this proposal was not finally retained in the text of the Directive.98 Therefore, third-country nationals admitted as students may apply for the single permit under the single permit procedure. In line with the traditional case law of the ECJ, Member States can only invoke this 28a provision if they clearly demonstrate their intention to exercise the option provided for in this provision.99

2. Exclusion of visa holders (Article 3(4)) During the negotiations, it was considered that the holders of a visa should be 29 excluded from Chapter II having in mind the definition of single permit and the reference to Regulation 1030/2002.100 The explicit mention to the exclusion of this group of third-country nationals from the provisions of Chapter II of the Directive was introduced following the meeting of the JHA Counsellors on December 2008.101 In this regard, also recital 11 was introduced to clarify that the provisions of the Directive do not concern uniform or long-stay visas.

CHAPTER II SINGLE APPLICATION PROCEDURE AND SINGLE PERMIT Article 4 Single application procedure 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 96

Council doc. 15113/08 of 6 November 2008. Council doc. 16673/08 of 19 December 2009. 98 It was eliminated as part of a compromise solution proposed by the Presidency. Council doc. 8145/ 09 of 30 March 2009. 99 See, by analogy, ECJ, Martinez Silva, C‐449/16, EU:C:2017:485, para 29. 100 Council doc. 15764/08 of 17 November 2008. 101 Council doc. 16673/08 of 19 December 2009. 97

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nationals already admitted who apply to renew or modify their residence permit after the entry into force of the national implementing provisions. Content I. General remarks and drafting history........................................................ II. Submission of applications (Article 4(1)).................................................. III. Decision and obligation to issue a single permit (Article 4(2) and (4))...................................................................................................................... IV. Application of national visa regimes (Article 4(3)) ................................ V. Derogation clauses ..........................................................................................

mn. 1 3 5 7 8

I. General remarks and drafting history As the Commission highlighted in her proposal, this is the central provision that establishes the general obligation to examine the application to work and reside in a Member State through a single procedure and, if granted, to issue a single permit which enables the applicant both to stay and work. 2 The proposal of the Commission only referred to national law in paragraph 2, with regard to the person who should submit the application. During the negotiations in the Council, other different possibilities were expressly introduced, with the Parliament also advocating for an amendment in this sense.102 Paragraphs 3 and 4 were introduced as well during the negotiations. With regard to paragraph 3, several Member States expressed concerns in the sense that persons should comply with visa requirements and stated that recital 4 was not sufficiently clear in this sense.103 The Commission did not oppose this insertion, in line with the Blue Card Directive 2009/50/EC. 1

II. Submission of applications (Article 4(1)) Member States are able to determine who should submit the applications for a single 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).104 4 At the instances of the European Parliament,105 it is provided that, if Member States choose that the third-country national is the one to submit the application, they are obliged to allow the application to be introduced from a third-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 3

102

Council doc. 10708/10 of 8 June 2010. Council doc. 10807/08 of 2 July 2008. 104 See also Commission, Contact Committee ‘Migration’ Report Mig-Dir-44, 1 October 2013. 105 Council doc. 15657/10 of 12 November 2010. 103

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

III. Decision and obligation to issue a single permit (Article 4(2) and (4)) Member States are obliged, according to Article 4(2), to examine applications and to 5 adopt a decision on the issue, amendment or renewal of the single permit. This obligation is however limited by Article 8(3), which allows Member States to reject applications as inadmissible, and therefore, not to process them, on the grounds of volume of admission of third-country nationals coming for employment. If the applicant fulfils the requirements – laid down by national law or by the relevant EU instrument- the directive obliges Member States, according to Article 4(4) to issue, amend or renew the single permit, therefore limiting the discretional powers of national authorities.107 With regard to the third-country nationals who have already been admitted, Member States are obliged to issue them with a single permit when they renew or modify their residence permit after the entry into force of the national provisions implementing this Directive. In any case, the conditions and criteria for issuing, amending or renewing single permits are not regulated by this Directive, and will depend on the applicable EU or national law. Nonetheless, recital 17 states that these conditions and criteria should be objective, should be laid down in national law, and should respect the principle of Union preference, particularly, as it is laid down by the Acts of Accession of 2003 and 2005. It has to be noted that, whereas the obligation of respecting the principle of Union 6 preference stems from the Acts of Accession and has therefore a strong legal backing, this is not the case of the obligation to lay down objective conditions and criteria through national law, which constitutes a material limitation to the discretion of Member States. It would have therefore been preferable to have this statement reflected in an article rather than in a recital.

IV. Application of national visa regimes (Article 4(3)) The visa regimes of the Member States which may be applicable to different 7 categories of third-country nationals are not affected by this provision and can therefore remain in place, according to Article 4(3). This means that, notwithstanding the single procedure, third-country nationals may still be subject to visa procedures for their first entry.108 In this regard, it recital 4 clarifies that the application of national visa regimes should not be used to hinder the effet utile of the directive: visas should therefore be issued in a timely manner.

V. Derogation clauses In accordance to Article 3(4), this provision does not apply to those allowed to work on 8 the basis of a visa. According to Article 3(3) of the Directive, Member States are allowed 106

As the Long-Term Residents Directive 2003/109/EC and the Blue Card Directive 2009/50/EC. For the interpretation of the ECJ with regard of Schengen visas and students permits, respectively, see ECJ, Koushkaki, C-84/12, EU:C:2013:862 and ECJ, Ben Alaya, C-491/13, EU:C:2014:2187. 108 Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, p. 225. 107

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to decide not to apply this article to third-country nationals who have been authorised to work for a period not exceeding six months or who have been admitted for study purposes. These derogation clauses are applicable to Articles 4 to 11 of the Directive.

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. 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 ..........................................................................................

mn. 1 2 3 5 7

I. Drafting history 1

Article 5 did not suffer many modifications during the negotiations. The most relevant modifications consist on the extension of the time limit for processing applications (from 3 to 4 months), and on the addition of a third paragraph in paragraph 1, in order to clarify that the consequences of administrative silence are determined by national law.109

II. The competent authority (Article 5(1)) 2

The wording of article 5 of the Directive insists on the fact that Member States have to designate a competent authority (in the singular). This fact has to be understood 109

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precisely in line with the purpose of simplification that is central to the Directive. Nonetheless, the role of the different authorities in accordance with national law seems to be safeguarded inasmuch as it does not interfere with the single procedure created by the Directive. This interpretation is supported by the travaux préparatoires110 and by recital 12, which clarifies that the designation of the competent authority under the Directive does not affect the role or responsibilities of other authorities, (or even of social partners) with regard to the examination of and the decision on the application.111

III. Deadline for examining applications (Article 5(2)) Competent authorities are obliged to adopt a decision as soon as possible. That means 3 that the deadline of four months is a maximum limit and that decisions should be in any case be taken before if it is possible.112 The exceptional circumstances that may be considered in order to extend this period have to be interpreted strictly and have to be exclusively linked to the complexity of the application at hand. That is to say that other circumstances such as the workload or administrative difficulties cannot be adduced in order to extend the time limits. Granted, recital 5 refers to the fact that the procedure should be ‘effective and manageable, taking account of the normal workload of the Member States’ administrations’. However, this cannot be understood in any way as an authorisation to take into account the administrative workload in order to surpass the limits established in the framework of Article 5(2), since this provision is clear in limiting this possibility to circumstances linked to the complexity of a given application. On another note, recital 13 clarifies that this deadline does include neither the time required for the recognition of professional qualifications nor the time required for issuing a visa. The fact that Member States are to determine the consequences of administrative 4 silence should not led to the practice of leaving applications unexamined beyond the four months’ time limit. In any case, the principle of good administration is applicable in this regard.113

IV. Procedural guarantees (Article 5(3) and (4)) During the negotiations of this article, additional guarantees have been added in 5 paragraphs 3 and 4. In the first place, the notification has to be in writing. In the second place, where the documentation submitted is incomplete, applicants should be given a reasonable deadline to provide the missing documents. Due to the undetermined character of what a ‘reasonable deadline’ may constitute, this provision has to be 110 Indeed, some Member States insisted in changing this expression in the plural, to which the Commission responded drawing attention to the explanatory memorandum concerning this provision in the proposal, which stated that the designation of the competent authority was without prejudice to the roles of other authorities and that it should not prevent Member States from appointing other authorities where the third-country national or the employer could lodge the application (e. g. consular offices) and where the permit could be delivered. Council doc. 10807/08 of 2 July 2008. 111 For the implications of this provision in the institutional autonomy of the Member States, see De Lange, The Single Permit Directive, p. 9. 112 Council doc. 10807/08 of 2 July 2008 shows the different approaches of the Member States, some of them entering reservations and some others stating that three months was already a too long period. 113 Article 41 of the Charter of fundamental rights 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., C-141/12, EU:C:2014:2081 and ECJ, Mukarubega, C-166/13, EU:C:2014:2336).

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interpreted according to the general principle of good administration and to the need to preserve the effet utile of the Directive. 6 Finally, even if it could be considered as a necessary consequence, this provision clarifies, at the request of some Member States,114 that if the additional information or documents are not provided within the deadline, the application could be rejected.115

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. 2. When issuing the single permit Member States shall not issue additional permits as proof of authorisation to access the labour market. Content mn. 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)) 1

This article contains a reference to Regulation 1030/2002, which contains the formal specifications to issue residence permits. In accordance to point (a) 7.5–9 of the Annex to this regulation, Member States are allowed to enter details and indications ‘for national use necessary in the light of their national provisions on third-country nationals, including indications relating to any permission to work’. Whereas the introduction of the information regarding the authorization to work is a possibility in Regulation 1030/ 2002, this Directive turns the inclusion of this information in the residence permit into an obligation. In this regard, recital 14, already present in the original text of the Commission Proposal, according to which Member States should indicate, for the purpose of better control of migration, the information relating to the permission to work, irrespective of the type of permit or of the initial purpose of admission. 114 115

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Art. 7

Chp. 14

In light of the general prohibition to issue additional permits, the possibility to 2 include additional information was of interest for several Member States during the negotiations of the Directive, who thought that it would be useful to add additional information in the chip included in the permit.116 In this connexion, the Commission expressed the view that separate documents could be allowed as long as they are of a declarative nature, and therefore, do not qualify as a permit.117 As a result of these debates, a second paragraph was included in Article 6(1) which 3 provides for two possibilities: a) to issue an additional document in paper format with additional information – the pieces of information referred to in this provision being exemplificative- and b) to store such data in electronic format. Indeed, this last option refers to point a) 16 of Regulation 1030/2002, which establishes that Member States are allowed to store data in the radio frequency chip that serves as a storage medium of the residence permit, or in a separate contact chip for national use. In any case, it is worth noticing that this provision explicitly refers to article 4 of Regulation 1030/2002, which explicitly establishes that no information in machine-readable form can be included on the resident permit unless provided for in this Regulation or unless it is mentioned in the related travel document according with the national legislation of the issuing State. Recital 16 further clarifies the possibilities for Member States to issue additional 4 documents. The purpose of these documents should be to give more precise information on the employment relationship, taking into account that the residence permit does not leave enough space for this purpose. Additionally, this recital makes explicit that one of the functions of this additional information could be to prevent the exploitation of third-country nationals and combat illegal employment. In any case, the issuance of additional documentation is purely informative, it should not compromise the concept of the single permit and it should not serve as a substitute for the permit itself.

II. Prohibition of additional permits (Article 6(2)) According to Article 5(2), Member States are not allowed to issue any kind of 5 additional permit with the aim to serve as a proof of authorisation to access to the labour market.

III. Derogation clauses See above Article 4 MN 8.

6

Article 7 Residence permits issued for purposes other than work 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 116

Council doc. 10807/08 of 2 July 2008. Council doc. 10807/08 of 2 July 2008. See, on the negotiating positions of the different Member States, Brinkmann, Opinion of Germany, p. 351, 358–359. 117

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Chp. 14 Art. 7

Single Permit Directive 2011/98/EU

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 mn. 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)) The obligation provided for in Article 6 to include in the single permit the information regarding the authorization to work is extended by this article to all the permits issued for purposes other than work. According to recital 14 and following the explanations given in the Proposal of the Commission, this obligation also applies to any residence permit issued by the Member State, irrespective of the type of permit or residence titled, when the third-country national in question has been given access to the labour market. The objective of this provision is precisely the same as in Article 6: to enhance the possibilities of national authorities to control the status of third country nationals. In this connection, recital 15 underlines that the provisions of the Directive with regard to residence permits for purposes other than work only apply to their format, and do not affect Union or national rules governing the procedures for issuing such permits. 2 The extension of the obligation to include the information about the authorisation to work in all permits whose holders are indeed authorised for exercising paid work entails an important element of uniformization and legal certainty for authorities, employers and third-country nationals. Since the directive does not apply to self-employed workers, this obligation is not applicable to their residence permits. 1

II. Additional information and prohibition of additional permits (Article 7(1) and (2)) 3

See above Article 6 MN 2–5.

III. Derogation clauses 4

See above Article 4 MN 8.

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Art. 8

Chp. 14

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 ..........................................................................................

mn. 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 2 reluctance of some Member States whose national legislation did not previously require any statement of grounds for refusal of permits.118 The most relevant change in this regard is the possibility to mount a legal challenge before courts (as provided in the Proposal) or administrative authorities. Article 8(3), which was not provided for in the Commission’s Proposal, was added during the negotiations in the Council.

II. Procedural guarantees 1. Obligation to state reasons (Article 8(1)) The first guarantee provided for by Article 8(1) is the obligation to state grounds for 3 rejection of any application to issue, amend or renew a single permit as well as for decisions withdrawing it. This provision explicitly contemplates that the notification has to be in writing. 118

Brinkmann, Opinion of Germany, p. 351, 359.

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Single Permit Directive 2011/98/EU

The criteria to be followed when providing such reasons are not determined by this Directive, since it refers to the applicable instruments of Union or national law. However, recital 17 is very illustrative in this sense, highlighting that the conditions and criteria on the basis of which an application to issue, amend or renew a single permit can be rejected, and even the conditions of withdrawal of such permit, should be objective and should be laid down in national law (that is to be understood as referring to the applicable national law as well as to the national regulations which transpose the applicable EU Directives). Even if only contained in a recital, this statement constitutes an important interpretative element. Additionally, among the objective reasons that should be laid down in national law according to recital 17, is the ‘obligation to respect the principle of Union preference’ contained in the Acts of Accession of 2003 and 2005.

2. Possibility of legal challenge (Article 8(2)) 5

Negative decisions concerning the issuance, renewal, amendment or withdrawal of single permits have to be opened to legal challenge. Differently from the Commission’s Proposal, which only contemplated the possibility of legal challenges before courts, and at the request of some Member States,119 the Directive provides for the possibility of challenging these decisions before courts or before the competent administrative authorities. Importantly, this possibility has to be explicitly indicated in the written notification, specifying the court or administrative authority where such challenges may be lodged, and the time limit therefor. The fact that the nature of the appeal (judicial or administrative) seems to be left to the discretion of the Member States, as it is the case with other EU migration instruments, must however be relativized. Article 47 of the Charter requires that any person whose rights and freedoms guaranteed by EU law are violated should have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. Moreover, the second paragraph of Article 47 of the Charter provides that everyone is entitled to a hearing by an independent and impartial tribunal. The ECJ has clarified that ‘compliance with that right assumes that a decision of an administrative authority that does not itself satisfy the conditions of independence and impartiality must be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues’.120

III. Volumes of admission (Article 8(3)) 6

Even though this provision is listed among the ‘procedural guarantees’ it is in fact a derogation from the general obligation established in article 4(2) of the Single Permit Directive, according which Member States shall examine applications and to adopt a decision on the issue, amendment or renewal of the single permit. Indeed, Article 8(3) allows Member States to reject applications as inadmissible, and therefore, not to process them, on the grounds of volume of admission of third-country nationals coming for employment. This third paragraph, which was added during the negotiations in the Council, aims at reflecting in the procedural field the limitations of the Directive, which do not affect the competences of the Member States to regulate access to their labour markets (see Article 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 119 120

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Art. 9

Chp. 14

determine the volumes of admission of third-country nationals coming from third countries to their territory in order to seek work. The uncertainty that surrounds the interpretation of the TFEU with regard to the notion 7 of ‘volumes of admission’121 is therefore also projected into this provision. One plausible interpretation is that, according to Article 8(3), when Member State apply a system based on admission volumes or quotas, and these volumes have already been attained for the period of reference, Member States can reject the application as inadmissible. This entails that the substance of the application does not need to be examined.

IV. Derogation clauses See above Article 4 MN 8.

8

Article 9 Access to information Member States shall provide, upon request, adequate information to the thirdcountry national and the future employer on the documents required to make a complete application. Content I. General remarks and drafting history........................................................ II. Derogation clauses ..........................................................................................

mn. 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. 121

3

See Thym, Legal Framework for EU Immigration Policy, MN 27.

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Chp. 14 Art. 10

Single Permit Directive 2011/98/EU

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. Content I. Proportionate fees ........................................................................................... II. Derogation clauses ..........................................................................................

mn. 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,122 according to which the level of the charges imposed must not have the object or the effect of creating obstacles to the objectives and spirit of the directive.123 2 Besides the criterion of proportionality, this provision offers the Member States the possibility to take into account, in order to fix the level of fees, the services actually provided for the processing of applications and the issuance of permits. It goes without saying that this possibility is also constrained by the proportionality principle. 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; 122 ECJ, Commission v. the Netherlands, C-508/10, EU:C:2012:243; ECJ, CGIL and INCA, C-309/14, EU: C:2015:523. See also, with regard to the costs of the exam of civic integration for family members under the Family Reunification Directive 2003/86, ECJ, K and A, C-153/14, EU:C:2015:453. 123 It has to be noted that the object and system put in place by the Single 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.

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Art. 11

Chp. 14

(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 mn. I. General remarks and drafting history........................................................ 1 II. Rights attached to the Single Permit .......................................................... 4 1. Right of entry and residence.................................................................... 4 2. Right of internal free movement (Article 11(a) and (b)) .................. 6 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.124 The fact that these rights are attached to the single permit and enounced in 2 Chapter II (and not in Chapter III) bears the consequence that they are only applicable to single permit holders. This is a minimal provision, in the sense that it lists the rights the single permit 3 holder is ‘at least’ entitled to.

II. Rights attached to the Single Permit 1. Right of entry and residence In the first place, there is a right of entry and residence into the territory of the 4 issuing Member State. Even if the right of ‘re-entry’ was deleted from the Commission Proposal, it could be argued that this right is implicit in the single permit, as any attempt at having access to the territory of the issuing Member State can be qualified as a new ‘entry’. As the Commission stated in her proposal, these rights are particularly important with regard to those Member States, which do not apply the Schengen acquis in full. Even though the Directive does not contain any provision with regard to access to the 5 territory of other Member States of the Union that apply the Schengen acquis in full, recital 18 – already to be found in the Commission’s Proposal, recalls that in accordance to the Schengen Borders Code Regulation (EC) No 562/2006 single permit holders who are in possession of a valid travel document are allowed to enter into and move freely 124 This possibility was deleted during negotiations in the Council due to the suggestion of some delegations that several Member States do not yet apply the Schengen acquis in full and that others have opted out. Council doc. 10807/08 of 2 July 2008.

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Chp. 14 Art. 11

Single Permit Directive 2011/98/EU

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 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,125 with the result that the possibility to establish limitations through national law might appear broader. 7 In any case, it has to be noted that the right to internal free movement constitutes a human right. According to Article 2 of Protocol No 4 to the European Convention on Human rights ‘[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence’. The only restrictions that can be applied in this regard have to be in accordance with law and necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 6

3. Right to exercise of employment activities (Article 11(c)) 8

According to Article 11, single permit holders are entitled to the exercise of the ‘specific employment activity’ authorised under the single permit, in accordance to national law. Indeed, access to the labour market is not listed amongst the areas to which, in accordance to Article 12, the principle of equal treatment applies. This implies that the single permit would be issue with limitations with regard to access to the employment market, for the purposes of exercising a specific economic activity. However, this is a point that is made dependent upon national law. Nothing prevents a Member State from providing general access to economic activities. The conditions and limits of this right are provided for in national legislation and may be reflected in the additional documents and information provided for in Article 6. At the request of some Member States, a reference to national law was added in this provision.126

4. Right to information (Article 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

125 126

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Art. 12

Chp. 14

III. Derogation clauses See above Article 4 MN 8.

11

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; (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. Iglesias Sánchez

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Chp. 14 Art. 12

Single Permit Directive 2011/98/EU

In addition, Member States may decide that point (e) of paragraph 1 with regard to family benefits shall not apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding six months, to third-country nationals who have been admitted for the purpose of study, or to third-country nationals who are allowed to work on the basis of a visa. (c) under point (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. Content 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)) ..............................................................

mn. 1 7 11 14 16 18 20 22 24 25 29 34 36 40 41

I. General remarks 1

Article 12, which is the only Article of Chapter III of the Directive, is devoted to the principle of equal treatment. This provision is the key provision that serves to attain the objective declared in Article 1(1)(b) of laying down a common set of rights for all third946

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country workers legally residing in the Member States (see above Article 1 MN 3 and 14–16). The crucial role of this provision for the definition of a common set of rights has been confirmed by other EU law acts in the field of legal migration, such as the Students and Researchers Directive (EU) 2016/801, where the equal treatment status to be enjoyed by researchers, as well as by trainees, volunteers and au pairs, when they are considered to be in an employment relationship in the host Member State, is determined by reference to Article 12 of the Single Permit Directive.127 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 préparatoires.128 The application 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.129 As a result, the level of protection in terms of rights falls, generally and with respect to those areas, below the more integrated category of long-term residents, and the specific privileged group of Blue-card holders.130 However, this is not always the case, as the Long Term Residents Directive 2003/109/EC does not include a provision similar to Article 12(4) of the Single Permit Directive with regard to the exportability of pensions to third countries. The spirit of this provision is well reflected in recital 19, which makes reference to the 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 important elements – which inform the interpretation of all the provisions of the Directive-, recalled in recitals 29 (no discrimination, in accordance with the EU antidiscrimination Directives) and 31 (respect of the fundamental rights and principles of the Charter of Fundamental Rights of the Union), have to be duly taken into account. The importance of the Charter of Fundamental Rights for the interpretation of the scope and limitations of the principle of equal treatment can hardly be overstated. Even if the right of equal treatment is relative in nature and takes as the point of reference an element serving as comparator (in this case, the rights of nationals of the Member State concerned), the provisions of the Charter serve as the framework for interpretation of the precise contours of the applicability of this very principle.131 This has been clearly 127 See Recital 54 and Article 22 of that Directive. Even though that last provision also allows Member States to derogate from the equal treatment principle, those possibilities have been enunciated in a more restrictive manner comparing to the restriction possibilities awarded by Article 12 of the Single Permit Directive. 128 Council doc. 6297/09 of 12 February 2009. 129 Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, p. 228. Indeed, these gaps had been identified by the Commission impact assessment, SEC(2007) 1408. Equal treatment in the field of market access seemed nonetheless politically unfeasible. 130 Article 11 of the Long-Term Residents Directive 2003/109/EC and Article 14 of the Blue Card Directive 2009/50/EC. 131 Iglesias Sánchez, Fundamental Rights Protection, p. 137–153.

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underlined by the judgment of the Court of Justice in Kamberaj, which concerned the interpretation of the Long-Term Residents’ Directive 2003/109/EC.132 6 The issue of compliance of the standards set out by this Article with those provided in relevant international instruments, such as the European Convention 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.133 The International Labour Organization submitted a document expressing her views on the social security and equal treatment/non-discrimination dimensions,134 highlighting the relevance of different international instruments, which had to be duly taken into account.135 In this regard, as the Commission pointed out, it has to be duly noted that Article 13 clearly establishes the applicability of more favorable provisions.

II. Drafting history This provision has been the object of arduous discussions during the legislative procedure in the Parliament and in the Council, which even put in question – before the entry into force of the Lisbon Treaty – the legal basis to be used.136 8 Even though the Commission’s Proposal already contained considerable possibilities to restrict and to derogate from the equal treatment principle, these possibilities were broadened, with some exceptions, during the negotiations in the Council, mostly with regard to the fields of education and vocational training, social security and tax benefits. In many cases, the Commission and the Member States considered adequate to reflect the equivalent provisions of the Blue Card Directive 2009/50/EC.137 9 Due to the wide scope of the Directive, it was considered that this provision would have ‘immediate direct impact on social security schemes of the Member States’. In consequence, by initiative of the Presidency of the Council, the Social Questions Working Party was actively involved in the negotiations in the Council.138 10 Reference to the specific drafting history will be made in the commentary devoted to each of these fields.139 7

III. Personal scope of application 11

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 132

ECJ, Kamberaj, C-571/10, EU:C:2012:233. Council doc. 10807/08 of 2 July 2008. 134 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]. 135 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. 136 See, in particular, Council doc. 15113/08 of 6 November 2008. 137 See, e. g. Council doc. 10807/08 of 2 July 2008. See Brinkmann, Opinion of Germany, p. 361. 138 Council doc. 5082/09 of 7 January 2009. 139 See also Groenendijk, Equal Treatment of Workers from Third Countries; and Potisepp, The Negotiations. 133

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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. In contrast to the provisions of Chapter II of the Directive, this article is, in principle, 12 applicable with no derogations to all third country workers – notwithstanding the initial purpose of their admission- and single permit holders. These third-country nationals are, as a general rule, entitled to this common set of rights based on the principle of equal treatment with the nationals of the host Member State. This is confirmed by recital 20, which states that all third-country nationals legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment, irrespective of the initial purpose of or basis for their admission: the right to equal treatment should be granted not only to those third-country nationals admitted to work but also to those admitted for other purposes and who have been given access to the labour market in accordance with EU or national law. Even though recital 20 explicitly mentions family members in accordance with the Family Reunification Directive 2003/ 86/EC and third country nationals admitted under the former Students and Researchers Directive, this enumeration is not exhaustive. Nonetheless, important restrictions apply with regard to the application of the equal 13 treatment principle with regard to specific aspects, which will be examined below. These restrictions apply, mainly, to those who are no longer in employment. These restrictions, already contemplated by the Commission’s Proposal, are aimed to counterbalance the broad definition of ‘third-country worker’, that encompasses all third-country nationals allowed to work, and which therefore, do not require per se to be in actual employment.140

IV. Areas subject to unrestricted equal treatment Some of the specific fields listed in this article, to which the principle of equal 14 treatment applies, are not affected by any limitations or derogations. This fact implies that the Member States cannot limit the application of the equal treatment principle in these fields. The references contained to national law should not be therefore tantamount to a possibility to derogate from the equal treatment principle in these fields. The Commission Proposal provided for the possibility to introduce limitations to the 15 equal treatment principle with regard to working conditions and to the freedom to association and affiliation. This possibility was eliminated in the final text of the Directive as several Member States put forward that these rights are granted under ILO Conventions and that cannot be subject to limitations.141

1. Working conditions (Article 12(1)(a)) Third-country workers are entitled to the right to equal treatment with regard 16 working conditions, which include equal pay and dismissal, as well as health and safety 140 See on the negotiations of the personal scope of Article 12, Groenendijk, Equal Treatment of Workers from Third Countries, p. 550. 141 Council doc. 10807/08 of 2 July 2008.

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at the work place. According to recital 22, these working conditions are a minimum, and they cover as well, working time and leave, taking into account collective agreements in force. 17 By granting unrestricted equal treatment in the field of working conditions, the Single Permit Directive seems to go beyond the protection granted by Article 15(3) of the Charter of Fundamental Rights, according to which third country nationals authorised to work in the Member States are entitled to working conditions ‘equivalent’ to those of citizens of the Union.142 It is to be noted that the Charter of Fundamental Rights recognizes the right to protection against unjustified dismissal (Article 30) and the right to fair and just working conditions (Article 31). Article 32 moreover contains a prohibition of child labour and establishes the obligation to adapt the working conditions of young people to their age.

2. Freedom of association and affiliation (Article 12(1)(b)) This provision establishes the right to equal treatment with regard to the freedom of association and affiliation, and membership to organisations representing workers (or employers), including organisation representing specific occupations. The right to equal treatment in this field also encompasses the benefits that may be conferred by such organisations. This provision is without prejudice to national provisions on public policy and public security. 19 It has to be noted that two provisions of the Charter of Fundamental Rights have a crucial relevance for the interpretation of this indent: Article 12 – freedom of assembly and of association- and Article 28 – on the right of collective bargaining and action-.143 18

3. Recognition of diplomas (Article 12(1)(d)) Article 12(1)(d) makes the principle of equal treatment applicable to the recognition of diplomas, certificates and other professional qualifications, in accordance with the ‘relevant national procedures’. In this regard, recital 23 clarifies that this obligation applies to the qualifications acquired by a third-country national in another Member State, and that Member States should take into account Directive 2005/36/EC on the recognition of professional qualifications. With regard to qualifications obtained in third States, it has to be noted that this directive ‘does not create an obstacle to the possibility of Member States recognizing, in accordance with their rules, the professional qualifications acquired outside the territory of the European Union by third country nationals’.144 Article 3(3) of Directive 2005/36/EC also establishes certain criteria for assessing formal qualifications issued by third States.145 21 Recital 13 clarifies that this Directive does not affect the national procedures on recognition of diplomas. A further (and somehow unnecessary) clarification offered by recital 23 is that the application of the equal treatment principle in this field is without prejudice to the competence of the Member States to admit such persons to their labor market. 20

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4. Advice services of employment offices Third-country workers are also entitled to equal treatment in the access to advice 22 services afforded by employment offices. This provision was merged with the provision regarding access to goods and services and gained autonomy during the negotiations in the Council.146 In this regard, it is worth recalling that Article 29 of the Charter of Fundamental 23 Rights establishes that everyone has the right of access to a free placement service.

V. Areas in which equal treatment can be limited or derogated from Several material fields to which the equal treatment principle applies, according to 24 Article 12, are subject to specific limitations and possibilities for derogation. These possibilities are regulated in Article 12(2).

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 25 vocational training. This provision covers not only access to education, but also grants and loans.147 Article 12(2)(a) makes available to States very broad possibilities to derogate from the 26 principle of equal treatment in this field. Indeed, Member States are allowed to introduce four types of restrictions. First, they may limit the application of the equal treatment principle to those third-country workers who are in employment or to those who have been employed and are registered as unemployed. Second, it is stated that those thirdcountry workers that were admitted under the provisions of the former Students Directive 2004/114/EC can be excluded from the application of the principle of equal treatment with regard to education and vocational training.148 Third, Member States can exclude the application of the equal treatment principle to study and maintenance grants and loans, or other grants and loans. Fourth, access to university and postsecondary education, as well as to vocational training can be made conditional to the payment of tuition fees and to language requirements, but only inasmuch as such education is not directly linked to the specific employment activity of the third-country national concerned. In this last connection, even though this possibility of derogation was not contained in the Commission’s Proposal, this institution considered legitimate the suggestion of Germany to restrict not only study grants, but also access to higher education.149 A further limitation in this field is signalled in recital 27, which was included during 27 negotiations in the Council150 and imported from the Blue Card Directive 2009/50/ EC151 refers to ‘measures in the field of vocational training which are financed under 146

See suggestions of the Presidency, Council doc. 12054/08 of 22 July 2008. 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. 148 This reference shall be understood as referring to those admitted as students under the Students and Researchers Directive 2016/801/EU. 149 Council doc. 10807/08 of 2 July 2008. 150 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. 151 Article 14(1)(e) of Council Directive 2009/50/EC. 147

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social assistance schemes’. However, it must be recalled that recitals which do not find a correlative provision in the body of a legal act have very limited value, most of all if they run counter the wording or objectives of the legal provisions of a directive.152 28 These limitations, inasmuch as they constitute derogations from the equal treatment principle, have to be strictly interpreted. It has to be duly taken into account that Article 14 of the Charter of Fundamental Rights recognises that ‘everyone has the right to education and to have access to vocational and continuing training’.

2. Social security (Article 12(1)(e)) and Article 12(2)(b)) The application of the equal treatment principle in the field of social security was one of the most controversial issues during the negotiations,153 and has proven to be one of the aspects of the Single Permit Directive presenting particular difficulties. It is the subject matter of the only case law of the ECJ adopted to date with regard to the Single Permit Directive, having given rise to two judgements.154 Several other preliminary references, are still pending.155 The EU has limited competences in this field, as recalled by recital 26, which reflects the case law of the Court of Justice: in the absence of harmonisation at Union level, each Member State lays down the conditions for access to social security benefits and their amount, complying with EU law when exercising these powers.156 However, when exercising their powers, Member States must comply with EU law,157 in particular, with the equal treatment obligations that the Single Permit Directive imposes in this field. 30 Article 12(1)(e) establishes that the right to equal treatment applies to the branches of social security, as defined in Regulation (EC) No 883/2004. That means that when a benefit is included amongst the benefits covered by that regulation, the equal treatment principle applies.158 Nevertheless, it must be emphasised that the reference to the Social Security Coordination Regulation (EC) No 883/2004 has a purely definitional value. First, the intra-EU dynamic that underlies that regulation is not applicable with regard to Article 12(1)(e) of the Single Permit Directive. This is confirmed by recital 24, which makes clear that the provisions on equal treatment also apply to workers admitted directly from a third country. Second, the potential derogations or conditions set out in that regulation do not apply with regard to the Single Permit Directive and the equal treatment principle in the field of social security: as stated by the ECJ in WS, the fact that the Social Security Coordination Regulation (EC) No 883/2004 applies to thirdcountry nationals and members of their family provided that they are legally resident in the territory of a Member State does not mean that Member States can exclude from the 29

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See, to that effect, ECJ, WS, C‐302/19, EU:C:2020:957, para 32. For the factual situation of limitations to access of third country workers to social security, see: European Migration Network, Migrant access to social security and healthcare: policies and practice, 2014. 154 ECJ, Martinez Silva, C‐449/16, EU:C:2017:485 and WS, C‐302/19, EU:C:2020:957. 155 Request for a preliminary ruling from the Tribunale di Milano of 25 September 2020 – Associazione per gli Studi Giuridici sull’Immigrazione (ASGI) and Others v. Presidenza del Consiglio dei Ministri – Dipartimento per le politiche della famiglia, Ministero dell’Economia e delle Finanze (Case C-462/20) (OJ 2020/C 433/36), requesting, i.a. the interpretation of Article 12(1)(e) and (g) of the Single Permit Directive; and the request for a preliminary ruling from the Corte costituzionale of 30 July 2020 – O. D., R.I.H.V., B.O., F.G., M.K.F.B., E.S., N.P. and S.E.A. v. Istituto nazionale della previdenza sociale (INPS) (Case C-350/20) (OJ 2020 C 329/7) requesting the interpretation of Article 34 of the Charter of fundamental rights in connection with Article 12(1)(e) of the Single Permit Directive. 156 See, i.a. ECJ, F.C. Terhoeve, C-18/95, EU:C:1999:22. 157 ECJ, WS, C‐302/19, EU:C:2020:957, para 23. 158 ECJ, Martinez Silva, C‐449/16, EU:C:2017:485, paras 19 and 20. 153

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right to equal treatment in the field of social security under the Single Permit Directive the holder of a single permit whose family members do not reside in the territory of the Member State concerned.159 Article 12(2)(b) allows Member States to establish two types of limitations: a general 31 limitation and a limitation regarding family benefits. These derogations can only be relied by Member States if the national authorities have clearly stated that they intend to rely on them.160 The general derogation is contained in the first paragraph of Article 12(2)(b) allows Member States ‘to limit the application of the equal treatment principle in the field of social security’. However, what may appear a rather broad possibility of limitation is immediately circumscribed: the application of the principle of equal treatment cannot be restricted with regard to third-country workers who are actually in employment, and with regard to those who have been employed during six months and are registered as unemployed.161 This means in fact that equal treatment in social security can be limited exclusively with regard to those who are unemployed, have not been previously employed during six months, and are not registered as unemployed. Moreover, provision does not prejudge the right of residence: as stated in Article 12(3), the application of the equal treatment principle according to this article is without prejudice to the ‘right’ of Member States to decide on the residence rights. But if, according to the applicable law, the unemployed third country worker retains the right of residence, the limitations to the equal treatment principle cannot be applied as long as she has worked for a minimum period of six months and is registered as unemployed. Recital 25 states that these restrictions should not affect the rights that are conferred in accordance to Regulation (EU) No 1231/2010, which extends the Social Security Coordination Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries not already covered by these Regulations solely on the ground of their nationality. Member States are also allowed to establish that the application of the equal 32 treatment principle does not apply with regard to family benefits concerning three types of third-country workers: those who have been authorised to work for a period not exceeding six months; those who have been admitted for the purpose of study or those who are allowed to work on the basis of a visa. This provision was introduced at the instances of some Member States to mirror the limitation contained in the annex of Regulation 859/2003 with regard to which only the holders of certain permits did not have the right to family benefits. Since, during the negotiations, the reference to Regulation 859/2003 was changed with the reference to Regulation 883/2004, this indication was introduced.162 The ECJ has ruled in WS that the derogation of Article 12(2)(b) concerning family benefits does not allow Member States to exclude from the right to equal treatment single permit holders whose family members reside in a third country.163 The ECJ’s conclusion is, first, based on a systematic reading of the Single Permit Directive, which provides for that kind of ‘territorial’ derogation in Article 12(2)(c) regarding 159

ECJ, WS, C‐302/19, EU:C:2020:957, paras 36–37. ECJ, Martinez Silva, C‐449/16, EU:C:2017:485, para 29 and WS, C‐302/19, EU:C:2020:957, para 26. 161 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. 162 For the negotiations, see Brinkmann, Opinion of Germany, p. 362–363. 163 ECJ, WS, C‐302/19, EU:C:2020:957, para 27. See, for a parallel case reaching similar conclusions with regard to the Long-Term Residents Directive 2003/109/EC; ECJ, VR, C‐303/19, EU:C:2020:958. 160

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tax advantages, but not with regard to social security.164 Second, the ECJ has placed great value on the teleological interpretation of the Single Permit Directive and its aim to promote integration.165 Third, from the point of view of a contextual interpretation, the ECJ has emphasised that the fact that there are derogations, regarding territorial limitations for the enjoyment of benefits in Article 1 of Regulation (EU) No 1231/2010166 and in Article 11(2) of the Long-Term Residents Directive 2003/109/EC, cannot mean that such derogations are also included in the Single Permit Directive.167 Fourth, the ECJ has interpreted recital 24, bringing it in line with the wording and objective of the Directive. According to that rather unclear recital, the Single Permit Directive does not confer more rights than those already provided in existing Union law in the field of social security for third-country nationals who are in cross-border situations and that it should not grant rights in relation to situations which lie outside the scope of Union law (such as in relation to family members residing in a third country). Moreover, this recital states that the Directive should only grant rights in relation to family members who join third-country workers to reside in a Member state on the basis of family reunification (or family members who already reside legally in that Member State). The judgement in WS declares that that recital only clarifies that the Single Permit Directive does not itself grant social security rights over and above equal treatment with nationals of the host Member State, and that it merely reinstates that the directive in and of itself do not require Member State to pay social security benefits with regard to non-resident family members.168 Once Member State decide to pay such benefits to their own nationals with regard to non-resident family members, they must apply the equal treatment principle with regard to single permit holders. By rejecting any value of an interpretation of the recital that would contradict the clear wording of the provisions of the Directive,169 the ECJ offers very valuable interpretative guidance and sends an important message for the EU legislator. Indeed, in the the field of EU legal migration, preambles are systematically fraught with recitals containing ‘clarifications’, often in the form of conditions and exceptions, not always included in or even contradicting the content of the legal provisions of EU acts. 33 National legislation implementing the Directive and, eventually, making use of the derogation possibilities from the equal treatment principle in the field of social security, will have to comply with Article 34 of the Charter of Fundamental Rights, which i.a. recognizes that ‘[e]veryone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices’.

3. Tax benefits (Article 12(1)(f) and Article 12(2)(c)) 34

The principle of equal treatment applies to tax benefits, as long as the worker can be considered as resident for tax purposes in the Member State concerned. This last qualification was added during the negotiations in the Council, at the request of Germany.170 164

Ibid., para 28. Ibid., para 34. 166 Regulation of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) 883/2004 (OJ 2009 L 284/1). 167 ECJ, WS, C‐302/19, EU:C:2020:957, paras 36–38. 168 Ibid., para 31. 169 Ibid., para 31 and 32. 170 For the negotiations, see Brinkmann, Opinion of Germany, p. 362. 165

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According to Article 12(2)(c), the application of the equal treatment principle can be 35 limited to cases where the registered or usual place of residence of the family members of the third-country worker for whom she is claiming the benefits lies in the territory of this Member State.

4. Access to goods and services (Article 12(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 2009/ 50/EC,171 a new sentence was added to clarify that this is without prejudice to the freedom of contract in accordance with Union and national law. However, Article 12(2)(d) enables Member States to derogate from the equal treatment principle in two situations: first, they can limit its application to those thirdcountry workers who are currently in employment; second, they can restrict access to housing. A restriction to the application of the principle of equal treatment with regard to housing was already contemplated in the Commission’s Proposal, but it only covered public housing and it was limited to those who had been staying or who had the right to stay in the concerned Member State for at least three months. The final wording of Article 12(2)(d) provides for the possibility to establish a general derogation from the equal treatment principle with regard to housing. However, this possibility of limitation will have to be strictly interpreted, having in mind that Article 34(3) of the Charter of Fundamental Rights establishes that ‘[i]n order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices’.172

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VI. Right of States to withdraw or refuse renewal of permits (Article 12(3)) Article 12(3) establishes that the right to equal treatment does not affect the right of 40 Member States to withdraw or to refuse the renewal of the residence permits. This provision, introduced at the request of some Member States during the negotiations in the Council,173 mirrors a similar provision contained in the Blue Card Directive 2009/ 50/EC,174 and can only be understood in light of the case law of the ECJ with regard to the rights granted by association agreements.175 In this regard, it has to be recalled that the ECJ interpreted the Euro-Mediterranean Agreement with Tunis in the sense that, a provision regarding non-discriminatory treatment had effects on the right of a Tunisian national to remain in the territory of a Member State, where he had been duly allowed to work for a period exceeding beyond the validity of his permission to remain.176 171

Article 14(2). See in this connection, Beduschi, An Empty Shell, p. 221. 173 Council doc. 10807/08 of 2 July 2008. 174 Article 14(3) of the Blue Card Directive 2009/50/EC. 175 Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, p. 227, footnote 40. 176 ECJ, Gattoussi, C-97/05, EU:C:2006:780. 172

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VII. Export of pensions (Article 12(4)) The Commission’s Proposal provided for the application of the equal treatment principle to the payment of acquired pensions when moving to a third country. However, this wording was opposed by several Member States177. Indeed, some concerns were raised during the negotiations in the Council since, traditionally, the export of benefits has been a reciprocal obligation contained in bilateral or in association agreements. In as much as the only established unilateral obligations, it was noted that EU nationals would not have the same right in third states.178 Therefore, it was decided to regulate this issue on a separate paragraph of Article 12 to reflect the principle of reciprocity.179 42 According to Article 12(4), statutory pensions related to old age, invalidity and death, shall be exported when a third country workers move to a third state, or when their survivors deriving rights from them reside in a third country, but only under the condition of reciprocity. Even if this requirement is established as a compulsory condition and no derogation is foreseen, it has to be recalled that, according to Article 13, Member States remain free to adopt or maintain more favourable provisions. The relevance of this provision is not to be understated, since it is not provided in other migration directives such as, notably, the Long-Term Residents Directive 2003/109/EC.180 41

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. 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 2009/50/EC,181 this article does not limit the possibility to adopt or maintain more favourable provisions only to specific fields, but it applies generally to all the fields covered by the directive. 1

177

Council doc. 10807/08 of 2 July 2008. Council doc. 5681/09 of 23 January 2009. 179 Council doc. 7147/09 of 10 March 2010. 180 Verschueren, Employment and Social Security Rights, p. 108. 181 Article 4 of the Blue Card Directive 2009/50/EC. 178

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Due to the importance of several instruments, the European Parliament proposed to 3 refer expressly to ‘the rights and principles contained in the European Social Charter of 18 October 1961 and the European Convention on the legal status of migrant workers of 24 November 1977’.182 Nonetheless, this was not finally reflected in the final wording of the Directive. This provision is in line with the proposal of the Commission. The explanatory 4 memorandum of the Proposal highlights that Annexes 3, 4 and 5 to the Commission Staff Working Paper which accompanies the proposal provide an illustrative list of international agreements,183 and states that this provision is valid ‘where the provisions concerned are related to the content of the proposal and it concerns the agreements themselves, decisions taken under them and related court decisions’. Among the instruments listed in the annexes are Council of Europe agreements184 and multilateral international conventions prohibiting discrimination on the basis of national origin (such as the International Covenant on Economic, Social and Cultural Rights).

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. 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). The first periodic report on implementation of the Single Permit Directive,185 1 presented with a considerable delay in 2019, was postponed in order to coincide with 182

European Parliament doc. A7-0265/2010 (LIBE Report) of 22 October 2010. 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. 184 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. (19) OJ L 199, 31.7.2007, p. 23. 185 Commission Report, COM(2019) 160 final. 183

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the adoption of the Commission’s comprehensive evaluation of the legal migration regulatory framework and was drawn on the basis of a external study conducted by the on the basis of ad hoc queries launched through the European Migration Network, individual complaints, questions, petitions and a few practical issues arising from the Directive’s application as identified by the supporting study for the fitness check.186 The report confirms that Member States were at first reluctant to transpose the Directive and communicate transposition measures, with 14 infringement proceedings having been commenced by the Commission, all of which were later closed. However, the report reveals some important deficiencies in the transposition and application of the Directive, related with the still existing administrative complexity and the persisting need to obtain entry visas and labour market clearances, as well as to the restrictive interpretation of the equal treatment principle in the different areas covered by Article 12 by several Member States. Another persistent problem appears to be the lack of information of the single permit holders about the rights attached to their status. 2 The Commission has announced that it will take all the necessary actions to ensure proper implementation, including infringement proceedings, but it has also acknowledged that some of the deficiencies arise from the lack of clarity of the provisions of the Directive. This is the case of issues such as ‘visa and labour market test requirements, equal treatment coverage and issues related to the format of the permits and the information it should contain’, with regard to which the Commission will engage in technical clarification.

Article 16 Transposition 1. Member States shall bring into force the laws, regulations and 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. 186

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Chapter 15. Seasonal Workers Directive 2014/36/EU Select Bibliography: Costello/Freedland, ‘Seasonal Workers and Intra-Corporate Transferees in EU Law: Capital’s Handmaidens?’, in: Howe/Owens (eds), Temporary Labour Migration in the Global Era the Regulatory Challenges (Hart, 2016), p. 43–64; European Migration Network, Attracting and protecting the rights of seasonal workers in the EU and United Kingdom: Synthesis Report for the EMN Study (December 2020); Fudge/Hertzfeld Olsson, ‘The EU Seasonal Workers Directive: When Immigration Controls Meet Labour Rights’, EJML 16 (2014), p. 439–366; Medland, ‘Misconceiving ‘Seasons’ in the Global Food Systems: The Case of the EU Seasonal Workers Directive’, ELJ 23 (2017), p. 157–171; Palumbo/Sciurba, The Vulnerability to Exploitation of Women Migrant Workers in Agriculture in the EU: The Need for a Human Rights and Gender Based Approach (European Parliament, 2018); Peers, ‘EU Justice and Home Affairs Law (Non-Civil)’, in: Craig/De Burca (eds), The Evolution of EU Law, 2nd edn (OUP, 2011), Peers et al., EU Immigration and Asylum Law (Text and Commentary), Volume 2, 2nd edn (Martinus Nijhoff, 2012), p. 165–194; Peers, ‘Equal Treatment of Atypical Workers: A New Frontier for EU Law?’, Yearbook of European Law (2013), p. 30–56; Rijken, ‘Legal Approaches to Combating the Exploitation of Third-Country National Seasonal Workers’, The International Journal of Comparative Labour Law and Industrial Relations 31 (2015), p. 431–452; Töttós, ‘The Past, the Present and the Future of the Seasonal Workers Directive’, Pécs Journal of International and European Law (2014), p. 45–60; Verschueren, ‘Employment and Social Security Rights of Third-Country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection’, EJML 18 (2016), p. 373–408; Zoeteweij-Turhan, ‘The Seasonal Workers Directive: “…but some are more equal than others”’, European Labour Law Journal 8 (2017), p. 28–44. Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers Official Journal L 94, 28/03/2014, p. 375–390 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular points (a) and (b) of Article 79(2) thereof, Having regard to the proposal 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: […] HAVE ADOPTED THIS DIRECTIVE:

(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, OJ C 93, 24.3.2017, p. 246, and decision of the Council of 17 February 2014. (2)

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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 ....................................................................................................

mn. 1 1 3 5

I. General remarks 1. Introduction and Purpose Directive 2014/36/EU determines the conditions for the entry and residence of nonEU citizens for the purpose of employment as seasonal workers within the territory of the EU. It addresses their legal status and the rights they are owed by Member States and employers. The Directive has two major objectives: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. The use of the language of conditions of ‘stay’ throughout the Directive, rather than ‘residence’, is significant as it reflects the desire of the Council to emphasise the temporary nature of the permit (see below MN 4).2 2 The Directive constitutes an exception to the general focus in the legal migration directives on facilitating the migration of ‘highly skilled’ workers. It is characterised by a balancing exercise between the desire to encourage the inflow of seasonal workers in the light of the EU’s structural need for low-skilled workers, and the need to protect domestic and third-country national workers from exploitation and social dumping. The recitals to the Directive also highlight inter alia the demographic challenges facing Europe.3 In the explanatory memorandum to its proposal,4 the Commission emphasised the potential of the Directive to prevent irregular migration and employment, in 1

1

Recital 7. As pointed out by Costello/Freedland, Seasonal Workers, p. 14, where they note that the Council insisted on amending the original reference to ‘residence’ in the Commission proposal, to ‘stay’. 3 Recital 6. 4 Commission Proposal, COM(2010) 370 final, p. 2, 3. 2

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particular in the agricultural sector, by providing for a possibility of lawful seasonal employment. Moreover, the Commission noted the advantage of achieving a more efficient allocation of seasonal works by replacing the specialised and diverging admission schemes for seasonal workers in the Member States with a common regime.

2. Drafting History As with many other EU migration law instruments, the adoption of the Seasonal 3 Workers Directive was preceded by tough negotiations and a lengthy decision-making procedure. The need for seasonal workers was already acknowledged in the Commission’s 2005 Policy Plan on Legal Migration, which foresaw the adoption of EU legal instruments on four types of third-country workers: highly-skilled workers, seasonal workers, intra-corporate transferees and remunerated trainees. Launched at the same time as the ICT Directive 2014/66/EU and often seen as part of the same legislative package, the Seasonal Workers Directive turned out to be the less problematic of the two. Nevertheless, it took a period of three and a half years before the Commission’s proposal, issued in July 2010,5 resulted in the adoption of the Directive in February 2014. The final text of the Directive came into effect on 29 March 2014. The deadline for transposition was 30 September 2016. The lengthy decision-making procedure was at least partially due to the role of the 4 European Parliament as a co-legislator under Article 79(2) TFEU and the determination of the EP’s LIBE committee to strengthen the Directive’s labour protection elements. The EP’s opinion of 3 December 20136 placed emphasis on workers’ rights before and during residence, for example through information and accommodation requirements, and rules regarding the filing of complaints. The discussions in the Council, on the other hand, show a strong concern for the control of third-country workers and the relationship between the Seasonal Workers Directive and EU visa rules.7 Crucially, the Council introduced a provision, explicitly empowering the Member States to control the number of third-country national workers entering their territory. The Directive also constituted a source of tension in the subsidiarity review by national parliaments, with a number of Member States questioning the sufficiency of the Commission’s reasoning and data on which it was based.8

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 literature9 that the legal basis should possibly 6 have been supplemented by Article 153(1)(g) TFEU, which deals with employment conditions for third-country nationals legally residing in Union territory.10 The latter provision is subject to a different decision-making procedure, namely unanimous voting in the Council and a mere consultation of the European Parliament.11 In fact, this argument was also made by Bulgaria during the negotiations on the Directive in the 5

Ibid. European Parliament doc. A7-0428/2013 of 3 December 2013. 7 See for example Council doc. 1057/11 of 27 May 2011, see also Peers et al., EU Immigration and Asylum Law, p. 176. 8 Kocharov, Republican Europe (Hart Bloomsbury, 2019), p. 126, 127. 9 Peers et al., EU Immigration and Asylum Law, p. 177. 10 Peers, EU Justice and Home Affairs Law, p. 269, 291. 11 See further, Thym, Legal Framework for EU Immigration Policy, MN 11–18. 6

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Council,12 as well as by the European Parliament Employment Committee.13 The EP Committee on Legal affairs, however, convincingly argued for maintaining Article 79(2) (a) and (b) as the sole appropriate legal basis, due to the Directive’s primary purpose of prescribing the conditions of entry and residence of third-country nationals for the purposes of seasonal employment and of defining the rights of that category of workers and due to the incompatibility of the decision-making procedures of the two provisions. Similarly, Peers has maintained that Article 153 TFEU would merely be the correct legal base for a matter solely concerning the conditions of employment of third-country nationals, whereas Article 79 should be chosen for instruments where the regulation of conditions of employment is ancillary to a measure regulating the rights of thirdcountry nationals generally.14

Article 2 Scope 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.

12

Council doc. 1057/11 of 27 May 2011. European Parliament doc. AL\879782 of 23 November 2011. 14 Peers, EU Justice and Home Affairs Law, p. 394. (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). 13

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Content I. Scope of Application ...................................................................................... 1. Personal scope ............................................................................................. 2. Material scope ............................................................................................. 3. Territorial scope..........................................................................................

mn. 1 1 3 4

I. Scope of Application 1. Personal scope Article 2 defines the personal scope of the Directive. The Directive applies to third- 1 country national seasonal workers during the application procedure as well as after they have been admitted for seasonal employment. The definition of third-country national mirrors that employed in other EU immigration law instruments, referring to any physical person who is not an EU citizen according to Article 20 TFEU. With the exception of seasonal workers extending their stay, the Directive does not 2 apply to third-country nationals who are already residing within the territory of a Member State. This precludes its application to asylum seekers, persons in temporary protection schemes and persons whose expulsion is suspended or who have unclear residence status. Furthermore, third-country nationals carrying out activities within the context of the provision of services under Article 56 TFEU or whose activities are governed by the posted workers directive15 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 process16 where appropriate. Later modifications of this list are allowed, as long as the Commission is properly informed. The material scope of the Directive will therefore differ from Member State to Member State, depending on the importance of particular industries as well as different grades of organised labour (see also below on activities depending on the passing of the season). Recital 13 of the preamble suggests that it is particularly aimed at the horticultural and agricultural sectors, as well as the tourism sector.

3. Territorial scope The Directive applies to all EU Member States, with the exception of Denmark and 4 Ireland.17

15 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. 16 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. 17 Denmark has a permanent opt-out, whereas the UK and Ireland decided not to opt in (recitals 54 and 55). See further, Thym, Legal Framework for EU Immigration Policy, MN 5.

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It is spelled out in Article 2(1) of the Directive that for stays not exceeding 90 days in Member States fully applying the Schengen acquis, the Directive has to be applied in conjunction with the Visa Code, the Schengen Borders Code and Regulation No 539/ 2001. This means that third-country nationals who do not enjoy an exemption from the visa requirement have to comply with all relevant rules on the issuing of short-stay visas. For Member States not applying the Schengen acquis in full (Romania, Bulgaria, Croatia and Cyprus), only the Schengen border code applies. The relevant admission rules in each individual case thus depend on the applicant’s length of stay (up to 90 days or longer) and on whether the prospective country of residence fully applies the Schengen acquis.

Article 3 Definitions For the purposes of this Directive the following definitions apply: (a) ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU; (b) ‘seasonal worker’ means a third-country national who retains his or her principal place of residence in a third country and stays legally and temporarily in the territory of a Member State to carry out an activity dependent on the passing of the seasons, under one or more fixed-term work contracts concluded directly between that third-country national and the employer established in that Member State; (c) ‘activity dependent on the passing of the seasons’ means an activity that is tied to a certain time of the year by a recurring event or pattern of events linked to seasonal conditions during which required labour levels are significantly above those necessary for usually ongoing operations; (d) ‘seasonal worker permit’ means an authorisation issued using the format laid down in Council Regulation (EC) No 1030/2002(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; (e) ‘short-stay visa’ means an authorisation issued by a Member State as provided for in point (2)(a) of Article 2 of the Visa Code or issued in accordance with the national law of a Member State not applying the Schengen acquis in full; (f) ‘long-stay visa’ means an authorisation issued by a Member State as provided for in Article 18 of the Schengen Implementing Convention or issued in accordance with the national law of a Member State not applying the Schengen acquis in full; (g) ‘single application procedure’ means a procedure leading, on the basis of one application for the authorisation of a third-country national’s stay and work in the territory of a Member State, to a decision on the application for a seasonal worker permit; (h) ‘authorisation for the purpose of seasonal work’ means any of the authorisations referred to in Article 12 entitling their holder to stay and work on the territory of the Member State that issued the authorisation under this Directive; (i) ‘work permit’ means any authorisation issued by a Member State in accordance with national law for the purpose of work in the territory of that Member State. (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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Content I. Definitions ........................................................................................................ 1. Seasonal worker .......................................................................................... 2. Activity depending on the passing of the seasons ..............................

mn. 1 1 5

I. Definitions 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. The requirement of a mandatory agreement between the worker and a local employer is intended to prevent employers from circumventing relatively high local labour costs by hiring the seasonal worker through an employer of a different Member State with significantly lower local labour costs. For example, an employer from Romania may not hire a seasonal worker on Romanian terms in order to perform seasonal work in Austria. The mandatory ‘work contract’ must be based on working hours (see Article 5), thus preventing employers from shifting the entrepreneurial risk to the seasonal worker by using a contract form where payment is only made upon meeting a certain level or performance (i. e. by fulfilling a harvest quota). The requirement of a work contract concluded ‘directly between employer and third-country national’ demands a close organisational proximity between contractual performance and the creditor of seasonal work, but (unlike the ICT Directive 2014/66/ EU, for example) does not prohibit hiring the worker through temporary employment 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 conditions for payment and deductions from wages for rent and premiums.18 Member States that insisted on including employment agencies within the scope of the Directive (Spain, Portugal and Sweden) argued that workers employed through such agencies would be better protected by subjecting agencies to the common rules.19 The Council has requested Member States to explore the possibility of setting specific requirements for temporary work and recruitment agencies aimed at seasonal and other mobile workers in the EU, so as to ensure that such agencies respect minimum quality standards according to national and EU legislation and (where appropriate) collective agreements, and do not impose excessive or illegal fees on workers.20

18

Rijken, Legal Approaches, p. 448, 449–450. Council doc. 5611/12 of 23 January 2012. 20 Council doc. 11726/2/20 of 9 October 2020, para 30. 19

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2. Activity depending on the passing of the seasons 5

The activity must be tied to a certain time of the year by a recurring event or pattern of events. Those must be linked to seasonal conditions, ‘significantly above’ those usually necessary for ongoing operations. ‘Seasonal conditions’ are not adequately predictable nor can they be decisively influenced, thus requiring flexibility from the entrepreneur to respond to shifting levels 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. Moreover, it has been pointed out that seasonal work in intensive agriculture often takes place outside of ‘natural seasons’ and is linked to the market for produce on the demand side: in reality, there is an ongoing demand for ‘seasonal’ agricultural workers for at least 10 months of the year.21 Research conducted by the European Migration Network suggests that the majority of seasonal workers stay for around 90 days; around a third stay for up to six months; and few stay for longer periods between six and nine months.22

Article 4 More favourable provisions 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. 1

Article 4 confirms the validity of more favourable provisions for third-country nationals contained in bilateral and multilateral agreements or national legislation. Whilst safeguarding a reliable and efficient source of seasonal labour through partnerships agreements with certain prioritised third countries, the co-existence of various entry routes compromises the objectives of achieving a level playing field and adopting a common approach to the admission of seasonal workers.23

21

Medland, Misconceiving Seasons, p. 457, 460. European Migration Network, Synthesis Report, p. 197. 23 Fudge/Herzfeld Olsson, The EU Seasonal Workers Directive, p. 439, 450. 22

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Chp. 15

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 third-country national: (a) does not present a risk of illegal immigration; (b) intends to leave the territory of the Member States at the latest on the date of expiry of the authorisation.

(18) Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22).

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Seasonal Workers Directive 2014/36/EU Content

mn. I. General requirements for admission for employment not exceeding 90 days .................................................................................... 1 1. Work contract ............................................................................................. 1 2. Sickness insurance ...................................................................................... 6 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 1

2

3

4

5

The material condition for admission is, above all, a valid work contract. Alternatively, a binding job offer can be sufficient if provided for by the Member State under national law, administrative regulation or practice. Only work contracts or job offers where the employer is established in the Member State are admissible (see above Article 3 MN 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.24 Even though the salary of seasonal workers will depend on national law, the requirement of a certain minimum level of payment would have been desirable especially in Member States that do not have a law on minimum wages. ‘Other relevant working conditions’ may include e. g. overtime payments or the applicability of collective agreements. 24

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Art. 5

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2. Sickness insurance Article 5(1)(b) requires the applicant to have sickness insurance coverage. If pro- 6 vided for under national law, evidence of having applied for sickness insurance may be sufficient. The insurance must cover all risks that are normally covered for nationals of a Member State that do not stand in relation to work within that Member State. Similar requirements are laid down in Article 5(1)(e) of the Blue Card Directive 2009/ 7 50/EC as well as in Article 6(2)(c) of Directive 2005/71/EC and Article 6(1)(c) of Directive 2004/114/EC. The provisions are intended to prevent possible risks for the Member States’ social system emanating from the residence of third-country nationals. The compatibility of similar provisions in earlier Directives with Article 6 of ILO Convention No 97, which requires equal treatment with nationals in this area, has been debated and is open to question,25 but has been confirmed in Member States where the sickness insurance matches the standard of protection granted under the compulsory health insurance of Member States.26

3. Adequate Accommodation Under Article 5(1)(c) the applicant needs to provide evidence27 of having adequate 8 accommodation or demonstrate that such accommodation will be provided by the employer. The adequacy of accommodation is evaluated on the basis of local standards (see Article 20(1)), which may differ significantly between Member States. As seasonal workers upon first recruitment usually have no social or other connection to the geographical area of the workplace, accommodation as a mandatory condition for work is a sensitive point. Searching for accommodation without a residence permit and usually without strong rent securities places them in a weak position on the housing market. At the same time, housing provided by the employer places the seasonal worker in a vulnerable position of dependency (see below Article 20 MN 1).

II. Member State specific requirements 1. Compliance with national labour law, collective agreements and/or practice Article 5(2) obliges the Member State to require the working conditions of the work 9 contract or the binding job offer to comply with existing applicable employment law, labour agreements between the social partners and/or practice. This is meant to ensure that pre-negotiated labour conditions are not undermined. This may include, in particular, wage levels but also working hours and paid leave as well as non-listed work-related issues, such as job-safety rules and job-related benefits.

2. No recourse to the Member States’ social assistance systems Article 5(3) is meant to ensure that the seasonal worker is denied access to national 10 social assistance systems. The seasonal worker shall enjoy no benefits in the form of social assistance by the Member States. This is specifically relevant for Member States in 25 Guild, ‘EU Policy on Labour Migration: A first Look at the Commission’s Blue Card Initiative’, CEPS Policy Brief No 145 (2007), p. 6. 26 Hailbronner/Schmidt, ‘Council Directive 2009/50/EC’, in: Hailbronner (ed), European Immigration and Asylum Law. A Commentary (Hart Publishing, 2010), MN 12. 27 Evidence can be a (valid) rental contract with a third party or a commitment from the employer with the same legal value.

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which social assistance may be added to remuneration in case minimum living expenses would otherwise not be covered.28

3. Additional requirements for Member States not fully applying the Schengen acquis Article 5(5) is addressed to Member States which do not yet fully apply the Schengen acquis, at present Bulgaria, Croatia, Cyprus and Romania.29 In addition to verifying the entry conditions listed above, these Member States must ensure that the third-country national does not present a risk of irregular immigration and intends to leave the territory of the Member States upon expiry of his/her seasonal work permit. 12 A risk of irregular immigration for the purpose of the Directive exists in case of an increased likelihood of crossing EU external borders without legal entitlement, in particular for reasons other than seasonal work. The Directive does not provide examples of specific evidence proving or supporting the assumption of irregular border crossing. However, it must be assumed that irregular border crossing is unlikely once the criteria for employment of seasonal worker as described above are fulfilled. A possible reason for assuming irregular border crossing could be a previous deportation procedure and a presumed intent to re-enter the same Member State. Irregular immigration will occur where a third-country national remains in the EU after the expiry of his or her authorisation. 13 Moreover, Article 5(5) requires verification of the applicant’s intention not to overstay his authorised residence period. Though it is not realistic to assume that an applicant would answer truthfully under investigation if overstaying is planned, a proven intention to leave the territory on the day of expiry of the permit (for example by purchasing a return ticket) should be considered sufficient. 11

Article 6 Criteria and requirements for admission as a seasonal worker for stays exceeding 90 days 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;

28 Note e. g. in Germany the ‘Aufstocker’-problem, where social assistance can be paid additionally to work-remuneration in lower paid employer-employee relationships. 29 Ireland is also not part of the Schengen area, but has not opted in to the Directive, as was also the case for the UK.

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(b) evidence of having or, if provided for by national law, having applied for, sickness insurance for all the risks normally covered for nationals of the Member State concerned for periods where no such insurance coverage and corresponding entitlement to benefits are provided in connection with, or as a result of, the work carried out in that Member State; (c) evidence that the seasonal worker will have adequate accommodation or that adequate accommodation will be provided, in accordance with Article 20. 2. Member States shall require that the conditions referred to in point (a) of paragraph 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.............

mn. 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 Just as with seasonal workers entering for shorter stays (Article 5(1)), the applicant 1 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

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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 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 2

In contrast to the regime for short-term stays under Article 5, the applicant needs to 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 Blue Card Directive 2009/50/EC,30 the former Researchers Directive 2005/71/EC31 and the former Students Directive 2004/114/EC.32 Unlike these legal instruments, the Seasonal Workers Directive does not specify how the adequacy of resources is to be evaluated. Moreover, the resources do not have to be ‘stable and regular’, as required under the Family Reunification Directive 2003/86/EC.33 In line with the objective and purpose of the Directive, ‘self-maintenance’ should therefore be interpreted widely and should not include more than the capacity to cover costs of food and accommodation, unless the latter is taken care of by the employer. It could be argued that future remuneration claims against the employer must be taken into account.

3. No threat to public policy, public security or public health Just as the Directives on Students, Researchers and Highly Skilled Workers, Article 6 (4) of the Seasonal Workers Directive prohibits admission of the applicant if he/she is ‘considered to pose a threat to public policy, public security or public health’. 4 The concept of ‘public policy, public security’ is subject to discussion.34 It covers a large spectrum of interests which go further than protection against criminal activities. As Member States are granted limited discretion in this area, the concept of ‘public policy’ may not be interpreted extensively, especially if a Member State’s interpretation would largely circumvent or frustrate the aim of the Directive to harmonise market access of third-country seasonal workers. Labour market considerations of a protective nature can therefore not be relevant in this context. In relation to ‘public security’, the ECJ has confirmed in the context of the former Students Directive 2004/114/EC, that the competent national authorities enjoy a wide discretion in ascertaining, in the light of all the relevant elements of the situation of that an individual third country national, whether he represents a threat, if only potential, to public security.35 That assessment may take into account wider considerations than the personal conduct of the applicant.36 Furthermore, it is for the national court to ascertain whether the decision of the 3

30

Article 9(3)(b) of Directive 2009/50/EC. Article 6(2)(b) of Directive 2005/71/EC. 32 Article 7(1)(b) of Directive 2004/114/EC. 33 Article 7(1)(c) of Directive 2003/86/EC. 34 See for example Kluth, ‘Der Aufenthalt von Forschern nach § 20 AufenthG’, Zeitschrift für Ausländerrecht und Ausländerpolitik 7 (2008), p. 234, 237. 35 ECJ, Fahimian, C-544/15, EU:C:2017:255. 36 Ibid., para 40. 31

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competent national authorities to refuse to grant the visa is ‘based on sufficient grounds and a sufficiently solid factual basis’.37 It should be noted that the interpretation of the concepts of public policy and public 5 security under the Directive differs from the CJEU regime on derogations from EU free movement law on grounds of public security and public order. Since the Seasonal Workers Directive is directed at third-country nationals and does not contain any link to the exercise of the TFEU’s fundamental freedoms, the extensive case law of the Court does not apply.38 Moreover, unlike the Seasonal Workers Directive, Article 27(2) of Citizenship Directive 2004/38/EC specifically requires that a measure taken in the name of public security must be based exclusively on the personal conduct of the individual concerned and that that conduct must represent a ‘genuine, present and sufficiently serious threat’ to that fundamental interest of society.39

Article 7 Volumes of admission This Directive shall not affect the right of a Member State to determine the volumes of admission of third-country nationals entering its territory for the purpose 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. According to Article 7, Member States have the competence to determine the volume 1 of admission of third-country national seasonal workers and may reject an application on such grounds. The Blue Card Directive 2009/50/EC contains a similarly worded provision,40 but does not explicitly classify volumes of admission as a consideration for inadmissibility or a ground for rejection.41 The Blue Card Directive 2009/50/EC does state in its preamble, however, that Member States may decide not to grant residence permits for employment in general or for certain professions, economic sectors or regions.42 Whilst this possibility is not specified in the Seasonal Workers Directive, it is implied in the possibility to reject or declare inadmissible applications on the basis of specific volumes of admission. Article 7 thus provides a strong tool for Member States to control the quantity of residence permits issued for the purpose of seasonal work. In combination with the possibility to verify whether vacancies can be filled by nationals, EU citizens or resident third-country nationals (Articles 8(3) and 15(6)), this provision may have the effect of Member States maintaining or adopting strict migration policies and essentially preventing the entry of third-county national seasonal workers, thereby reducing the application and impact of the Directive. In practice, research indicates that while most Member States have quotas for seasonal workers, in the majority of Member States these were not fulfilled in 2018.43 In order to facilitate re-entry, previous admission as seasonal workers may be taken into account when deciding on admission under a set quota.44 37 Ibid., para 44. For detailed comments, see Thym, Legal Framework for EU Immigration Policy, MN 42a-42 d. 38 Hailbronner/Schmidt, ‘Council Directive 2009/50/EC’, in Hailbronner (ed), European Immigration and Asylum Law. A Commentary (Hart Publishing, 2010), MN 15. 39 As pointed out by the ECJ in Fahimian, C-544/15, EU:C:2017:255, para 40. 40 Article 6 of Blue Card Directive 2009/50/EC. 41 See Thym, Legal Framework for EU Immigration Policy, MN 26–27. 42 Recital 7 of Directive 2009/50/EC. 43 European Migration Network, Synthesis Report, p. 197. 44 Article 16(2)(d).

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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: (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 ................................................................................

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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 illegal employment under national law or under the Directive form a compulsory ground for rejection, as does the insolvency of the employer or the absence of any economic activity. In such cases, rejection is however only required if ‘appropriate’ and the individual circumstances of the case must be taken into account. Thus, in spite of being a mandatory ground for rejection, Article 8(2) effectively leaves national authorities a considerable margin of discretion. It is unclear if the ‘appropriateness’ of a national withdrawal decision is to be interpreted in accordance with national law or whether it is to be applied in light of the EU principle of proportionality.

4. Refusal grounds for the issuing of short-stay visas For the issuing of short-stay visas, the mandatory grounds of refusal contained in 4 Article 32 of the Visa Code Regulation (EC) No 810/2009 are also applicable. These include inter alia the failure to provide proof of sufficient means of subsistence and travel insurance.

II. Discretionary grounds for rejection 1. Labour market test and community preference principle Article 8(3) allows Member States to reject applications for the purpose of seasonal 5 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 possibility to apply a labour market test, demonstrating that

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the position cannot be filled from within the domestic labour market.45 In order to accommodate the concerns of newly acceding Member States whose nationals are subject to temporary restrictions on freedom of movement, the Directive specifies that the principle of Community preference, as expressed in the Acts of Accession, has to be respected. Migrant workers from third countries may thus not be treated more favourably than EU migrant workers who are subject to transitional provisions.46

2. Employer-related grounds 6

Member States are allowed to reject an application for a seasonal worker’s permit on grounds of the employer having failed to meet national legal obligations regarding social security, taxation, labour rights, working conditions or terms of employment. In addition, the Member States may reject an application if it can be shown that the vacancy to be filled by using the Directive has been created by the employer by abolishing a full-time position within the 12 months immediately preceding the date of the application. This requires a causal link between the abolition of a full-time position and the intention to replace this position with a third-country seasonal worker. This may cause problems in cases where employers factually or allegedly abolished full time positions due to other operational reasons. A legal presumption that every abolition of a full-time position within 12 months before the date of application for a seasonal workers permit was done in order to ‘abuse’ the provisions of the Directive does not follow from the wording of the provision.

3. Non-compliance with obligations arising from previous admission 7

Member States may reject an application on the basis of the applicant’s failure to comply with obligations arising from a previous decision on admission as seasonal worker. This applies in particular to cases where the third-country national has not complied with the obligation to leave the territory of the Member State on the expiry of an authorisation for the purpose of seasonal work.47 Non-compliance with previous permits and overstaying was initially meant to be a mandatory reason for rejection, but became optional upon insistence of the European Parliament.48

4. Individual case clause 8

Article 8(5) obliges Member States to take into account the specific circumstances of each individual case, including the interests of the seasonal worker, and to respect the principle of proportionality. The case law of the ECJ on the Directive on Family Reunification (2003/86/EC) illustrates the importance of an individual case clause in the application of the Directive.49 The Court has emphasised the obligation of Member States to make a comprehensive assessment of all relevant factors in each individual case. As opposed to the Directive on Family Reunification,50 the Seasonal Workers Directive does not specify what kind of circumstances are to be taken into account, 45 Recital 23. The European Migration Network notes that sixteen Member States apply a labour market test to seasonal workers to determine whether the labour market situation justifies the employment of third-country nationals. In Germany, a ‘needs analysis’ is carried out. European Migration Network, Synthesis Report, p. 14. 46 See for example Annex V para 2 et seqq. Of the Act of Accession for Croatia of December 5th 2011. 47 Recital 24. 48 Council doc. 15033/13 of 25 October 2013. 49 ECJ, O. & S., C-356/11 and C-357/11, EU:C:2012:776, para 81. 50 Article 17 of Directive 2003/86/EC.

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Chp. 15

which may make it more difficult for third-country nationals to rely upon it. Moreover, the margin of discretion in applying the conditions for admission must be interpreted strictly and may not be used by the Member States in a manner which would undermine the objective and the effectiveness of the directive to facilitate temporary employment of third-country workers in the EU.51

Article 9 Withdrawal of the authorisation for the purpose of seasonal work 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: (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.

51

See by analogy ECJ, Chakroun, C-578/08, ECLI:EU:C:2010:117, para 43. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ L 337, 20.12.2011, p. 9). (19)

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I. Compulsory grounds for withdrawal ......................................................... II. Discretionary grounds for withdrawal ....................................................... III. Individual case clause.....................................................................................

mn. 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 Non-compliance with Articles 5 and 6 of the Directive after the granting of an authorisation for seasonal work are legal grounds for discretion-based withdrawal. This is a major difference to the listing of non-compliance as a compulsory refusal ground for authorisation under Article 8(1)(a). In particular, it is notable that withdrawal is not mandatory in case the seasonal worker becomes a threat to public policy, public security or public health after admission. 3 The possibilities for national authorities to withdraw a permit in cases where the employer does not fulfil its legal obligations or where it is detected that the vacancy was created in order to replace a full-time position are identical to the corresponding grounds for refusal of admission as described above. In addition, the withdrawal of a permit is possible if the employer does not fulfil its contractual obligations towards the seasonal worker. However, due to the possible personal consequences for the seasonal worker (withdrawal of the authorisation to work), this provision cannot be considered to apply in cases where an employer deliberately fails to comply with contractual obligations in order to incite withdrawal. Such an interpretation would run counter to the purpose of the Directive to address the especially vulnerable situation of third-country national seasonal workers and to provide for an effective protection of rights.52 4 Article 9(4) allows Member States to consider a discretion-based withdrawal of the application if the person concerned applies for international protection under the Asylum Qualification Directive 2011/95/EU or in accordance with international obligations or national law and practice. Hence, national authorities receiving an application for protection from a seasonal worker are entitled (but not obliged) to withdraw the authorisation for seasonal work. The Directive does not address the possible consequences of such a withdrawal in relation to the initiated asylum procedure, nor does it 2

52

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explicitly allow or prohibit a combination of the withdrawal of the authorisation procedure and the asylum procedure.

III. Individual case clause The requirement to take into account the specific circumstances of each case as 5 described above also applies to the withdrawal of a seasonal worker permit. The interests of the seasonal workers could be especially relevant in cases where an employer’s noncompliance with their obligations leads to withdrawal (see above Article 8 MN 8).

Article 10 Obligation of cooperation Member States may require the employer to provide all relevant information needed for issuing, extending or renewing the authorisation for the purpose of seasonal work. Article 10 permits Member States to place a specific obligation of cooperation on 1 the employer to provide all relevant information in an admission or an extension/ renewal procedure. This obligation will be particularly relevant in cases where the Member State has determined that the application is to be submitted by the employer according to Article 12(3).

CHAPTER III PROCEDURE AND AUTHORISATIONS FOR THE PURPOSE OF SEASONAL WORK Article 11 Access to information 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....

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I. Information obligations of Member States prior to application 1

Article 11(1) obliges Member States to provide ‘easily accessible’ information on all documentary evidence needed for an application (Article 12) and information on entry and stay, including the rights (Article 22 ff.) and obligations as well as the procedural safeguards (Article 18) of the seasonal worker. The Commission has emphasised that unclear or missing information about the rights and obligations of seasonal workers and their employers has a direct consequence for their protection.53 In contrast to Article 11(2), requiring written form, Article 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. Internet, for example, may not be readily accessible and usable by certain categories of third-country nationals. Moreover, there is no specific requirement to provide information in the language of the potential applicant, although the objective and purpose of the information requirement could imply that the requirements for a successful application should at least be available in English.

II. Obligation to inform about rights and obligation upon admission 2

Article 11(2) obliges Member States to provide third country nationals with information about their rights and obligations under this Directive, including complaint procedures in written form at the time of issuing an authorisation for the purpose of seasonal work. In a European Migration Network study, five EU Member States, and the UK, specifically reported that information on seasonal worker rights and duties is provided along with their employment contract or authorisation.54 It is unclear if Article 11(2) only covers first-time authorisations or also renewals and extensions.

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 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 53 Commission Communication, Guidelines on seasonal workers in the EU in the context of the COVID-19 outbreak, C(2020) 2051, p. 12. 54 European Migration Network, Synthesis Report, p. 28. (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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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. Content I. Authorisations not exceeding 90 days........................................................ II. Authorisations exceeding 90 days ............................................................... III. Formal requirements......................................................................................

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Seasonal Workers Directive 2014/36/EU

I. Authorisations not exceeding 90 days 1

An authorisation for the purpose of seasonal work for stays not exceeding 90 days can take one of three specified formats, as decided upon by the Member States when transposing the Directive into national law: Article 12(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 Blue Card Directive 2009/50/EC, the designation of responsible authorities depends on the national division of competences (migration/labour) and may vary from Member State to Member State. 2 Regardless of such division of competences under national law, Member States must provide for a single application procedure. This is in line with the overall objective of simplifying and harmonising application procedures in the Member States and providing for a more efficient procedure for migrants and future employers as pursued by the 1

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Art. 14

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Single Permit Directive 2011/98/EU.55 Hence, in cases where more than one authority appears competent under national law, the Member States may be required to reallocate competences in the implementation process, so as to ensure that a single authority is responsible for receiving and issuing seasonal worker permits. In relation to the processing of residence permits generally, an applicant for a permit has a right of access to personal data concerning them which are processed by the national administrative authorities, in order that they may become aware of those data and to check that they are accurate and processed in compliance with EU data protection obligations.56

Article 14 Duration of stay 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 12-month period. After the expiry of that period, the third-country national shall leave the territory of the Member State unless the Member State concerned has issued a residence permit under national or Union law for purposes other than seasonal work. 2. Member States may determine a maximum period of time within any 12-month period, during which an employer is allowed to hire seasonal 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...............................................................

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I. Maximum period of stay Article 14(1) obliges transposing Member States to determine maximum periods of 1 stay for seasonal workers. The temporal scope must be not less than five months and not more than nine months within a 12-month period. It appears from the wording of the provision, which was changed from ‘per calendar year’ in the Commission proposal to ‘within a 12-month period’ in the final version of the Directive,57 that the yearly intervals are not necessarily linked to the calendar year. It is unclear, however, whether this also permits Member States to specify certain periods of stay (e. g. April to August 2016). The maximum duration of stay per year and the explicit obligation to return after 2 that period is intended to prevent overstaying of third-country seasonal workers. One of the key practical reasons that seasonal workers experience difficulties in enforcing employment rights and social benefits is the short-term or temporary nature of their stay (see further, MN 17 and MN 23 below). Yet, even though the third-country national must in principle leave the territory of the Member States upon expiry of that 55

Recital 3 of Directive 2011/98/EU. ECJ, Y.S., C-141/12, EU:C:2014:2081. 57 Moreover, the maximum period of stay of 9 months in the final version of the Directive is longer than the six months initially envisaged by the European Commission. 56

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Chp. 15 Art. 15

Seasonal Workers Directive 2014/36/EU

period, the provision allows for an extended stay on the basis of other types of residence permits under national or Union law.

II. Maximum period of employment 3

In addition, Member States may decide to impose a temporal limitation on the employer for the hiring of seasonal workers. This period must at least be as long as the maximum period of stay for individual seasonal workers. For example, if seasonal workers are allowed to stay for a period of up to nine months, the Member States may only limit the employment of seasonal workers by individual employers to the same period of time. Whereas the concept of ‘hiring’ is not defined in the Directive, the purpose of connecting periods of stay with periods of carrying out seasonal work speaks for the factual integration of the third-country national into the business of the employer.

Article 15 Extension of stay or renewal of the authorisation for the purposes of seasonal work 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.

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Art. 15

Chp. 15

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. 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))...........................................................................................

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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.58 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.

58

Fudge/Herzfeld Olsson, The EU Seasonal Workers Directive, p. 439, 461.

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Seasonal Workers Directive 2014/36/EU

III. Discretion to refuse extensions of stay or renewing the authorisation (Article 15(6), (8)) 3

Article 15(6) and (8) grants Member States discretion to refuse to extend the stay or renew the authorisation for the purpose of seasonal work if the vacancy concerned could be filled by a Member State national, by a legally residing third-country national or by a Union citizen, or if the seasonal worker applied for international protection under the Asylum Qualification Directive 2011/95/EU or in accordance with national law, international obligation or practice of the Member State. The provisions are identical to the discretionary grounds for refusing or withdrawing an authorisation for 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))59 and the Member State can reasonably be required to demonstrate why such considerations were not relevant at the time of granting the permit.

Article 16 Facilitation of re-entry 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.

I. Mandatory facilitation of re-entry 1

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 59 This may for example be the case if the seasonal worker has proved his or her reliability regarding obligations deriving from this Directive.

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respected the conditions applicable to seasonal workers, the person concerned must have complied with all temporal and behavioural obligations connected to a previous stay, such as those enumerated in Article 9(1)–(4) of the Directive. The facilitated re-entry procedure for a subsequent season is one of the key 2 provisions of the Directive. It aims to encourage legal migration for seasonal work and to promote circular migration of seasonal workers between the EU and their home countries. Such circular migration is seen to be in the interest of Union employers in being able to rely on a more stable and already trained workforce, as well as leading to a reliable flow of remittances and transfer of skills60 and investment to third countries, thus reducing poverty and contributing to the EU’s development policy Article 16(2) contains a list of possible facilitation measures, which include exempt- 3 ing the seasonal worker from the requirement to submit a certain document, issuing several seasonal worker permits at a time, accelerating the application procedure, or making it a priority during examination of applications. The provision does not, however, demand any concrete commitments from the Member States to promote circular migration. In its initial proposal, the European Commission envisaged the possibility of issuing a ‘multi-seasonal worker’ permit, which would have been valid for up to three subsequent seasons.61 The current list of possible facilitation measures, on the contrary, merely constitutes a non-binding and non-conclusive list of examples. The effectiveness of this provision in encouraging circular migration thus depends entirely on the discretion of the Member States. There is no limit to the number of times that third-country workers can re-enter a 4 country for the purpose of seasonal work. This carries the risk of seasonal workers being granted a succession of seasonal permits, without ever obtaining the possibility to apply for a long-term residence permit or another more secure residence status. Overall, the model of short-term stays coupled with re-entry conditions provided for in the Seasonal Workers Directive stands in contrast to the more flexible, migrant-led approach to circular migration enshrined in the Blue Card Directive 2009/50/EC.62

Article 17 Sanctions against employers 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.

60

Recital 34. Commission Proposal, COM(2010) 379 final. 62 Vankova, Circular Migration and the Rights of Migrant Workers in Central and Eastern Europe: The EU Promise of a Triple Win Solution (Springer, 2019), p. 72. 61

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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.................................................

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I. Sanctions for employers Article 17(1) obliges Member States to install a sanction mechanism for employers not fulfilling their obligations laid down in this Directive. A serious breach of obligations shall necessarily entail the exclusion of employers from employing seasonal workers under the Directive. What constitutes a ‘serious breach’ is not defined. It may cover cases where employers deliberately and/or systematically breach their obligations or verifiably had or have no intention of complying with them. Obligations for the employers arise amongst others from Article 9(2) and (3)(b)(c) and (d). The listing of these provisions in para 2 of Article 17 may be seen as an indication that an infringement of such obligations constitutes a serious breach. For instance, the non-punctual payment of the worker could be considered a serious breach, in particular where such practice is part of the business model of the employer or if he/she systematically takes advantage of the vulnerable position of the worker(s). 2 In line with general EU law, the Directive leaves the choice of types of sanctions to the Member States, respecting the autonomy of Member States to establish their own penalties (civil, criminal, administrative, restorative, pecuniary or non-pecuniary). When devising sanctions the Member States may employ measures provided for in Article 7 of the Employers Sanctions Directive 2009/52/EC,63 including exclusion from entitlement to public benefits, aid or subsidies, recovery of such benefits or even temporary or permanent closure of the company or withdrawal of a business license. The Directive therefore does not explicitly request Member States to criminalise the breach of an obligation under this Directive or to sharpen already existing criminal norms. It must, however be guaranteed that the sanctions are effective, dissuasive and proportionate in line with CJEU case law. The challenges of ensuring the effectiveness of sanctions in terms of reducing the vulnerability of the worker are shown by the experience with similar provisions present in the Employers Sanctions Directive 2009/ 52/EC, which have either not been transposed by the Member States into their national laws, or have remained ineffective.64 1

63 64

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II. Liability and compensation Applicable sanctions must include liability of the employer to pay compensation to 3 seasonal workers whose authorisation for seasonal work is withdrawn on grounds related to the misconduct of the employer (see Articles 9(2) and 9(3)(b-d)). The provision does not only prescribe the existence of the compensation claim, but also its effective legal enforcement. The necessary mechanisms should be in place to enable seasonal workers to obtain the compensation to which they are entitled even if they are no longer on the territory of the Member State in question. This is particularly important for seasonal workers in their position as temporary migrants and replicates the approach of the Employers Sanctions Directive 2009/52/EC. ‘Outstanding obligations’ covered by the compensation are those the employer would have to comply with if the authorisation had not been withdrawn, which may include payments for hypothetically performed work by the employee. It is questionable whether the provisions on liability and compensation are suffi- 4 cient to prevent abuse of seasonal workers in the Member States. The provisions in the Directive fail to address the problem that it is often extremely difficult in practice for seasonal workers to receive the compensation they are entitled to. Temporary workers often lack the necessary knowledge and awareness of their rights and are reluctant to start a procedure against their own employer. Moreover, the temporariness of their stay and the complicated nature of complaint procedures in many Member States often constitute barriers for initiating an action against abusive employers. In addition, liability to pay compensation to the seasonal worker is dependent on ‘procedures under national law’ and the effectiveness of this provision may therefore vary between Member States. As highlighted by the European Commission within the context of an evaluation of the 5 Employer Sanctions Directive 2009/52/EC,65 protecting third-country nationals from abusive and hazardous working conditions requires not only complaint procedures, but also an effective system of inspections. As emphasised by the Commission, ‘without proper inspections, any sanction may remain a theoretical threat’. It is questionable whether the Directive’s provisions on monitoring (Article 24), which require Member States to monitor and sanction infringements of this Directive, but provide for systematic inspections only in accordance with national law and practice provide sufficient safeguards to prevent abuse (see below Article 24).

III. Sanctions for subcontractor as employers In the case of subcontracting, 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.

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Commission Communication, COM(2014) 286 final, p. 9.

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Chp. 15 Art. 18

Seasonal Workers Directive 2014/36/EU

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. 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.

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Art. 19

Chp. 15

Content I. Procedural safeguards .................................................................................... II. Right to stay during an extension or renewal procedure ......................

mn. 1 2

I. Procedural safeguards The procedural safeguards in the Seasonal Workers Directive are similar to those to be 1 found in other EU migration law instruments, such as the Blue Card Directive 2009/50/ EC and the Students and Researchers Directive (EU) 2016/801. As in the case of highlyskilled migrants, national authorities must take a decision on admission within 90 days and have to inform the applicant in case of incomplete information or insufficient supporting documents. The Commission’s proposal for a fast-track procedure, which would have required a decision on an application within 30 days, was not adopted in the final version of the Directive. Any negative decision regarding initial admission or renewal/extension of stay has to be issued in writing and is open to appeal according to national procedures.

II. Right to stay during an extension or renewal procedure A seasonal worker who makes use of his right to extend his stay or have his 2 authorisation renewed must be permitted to stay in the Member State concerned during the procedure for extension or renewal. At first sight it appears from the wording of Article 18(2) that the Member States are not obliged to allow the seasonal worker to continue working until a decision is reached, since this is only mentioned as one of the possible measures that Member States ‘may’ take during the period of examination of the application for renewal or extension. The Directive does, however, specify that the Member States are obliged to ‘take all reasonable steps’ to ensure that the third-country worker concerned can continue working with the same employer without interruption or change to a different employer without delays caused by administrative procedure. Hence, in most scenarios national authorities will be obliged to grant seasonal workers not only the right to stay but also the right to continue working during the procedure of renewal or extension.

Article 19 Fees and costs 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 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;

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Chp. 15 Art. 20

Seasonal Workers Directive 2014/36/EU

(b) the cost of sickness insurance referred to in point (b) of Article 5(1) and point (b) of Article 6(1). When paid by the employers, such costs shall not be recoverable from the seasonal workers. 1

The provisions on fees and costs related to the seasonal employment constitute a compromise between the intention to protect migrant workers and prevent their exploitation, whilst at the same time accommodating Member States’ interests in covering administrative costs without placing burdensome conditions on the employer.66 During the negotiation of the Directive, the European Parliament argued for a provision which would have imposed the obligation to pay for application fees upon employers rather than employees.67 The Council could, however, not agree on such a requirement and the final version of the Directive therefore leaves it to the discretion of the Member States whether or not to charge fees for the handling of applications and to require the employer to reimburse the employee for such costs. In addition, employers may be required to reimburse the workers for travel costs and sickness insurance premiums. Considering the tendency of Member States to use high fees as a mechanism to deter the entry of third-country nationals, it is unlikely that many Member States will make use of the option to free seasonal workers from the obligation to pay fees or to place that obligation on employers. In any case, as a general requirement of EU law and in light of the spirit and purpose of the Directive, any fees to be charged must be proportionate and may not be excessive.68 This is also specified in Article 19(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; (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 66

Council Doc. 15033/13 of 25 October 2013. Council Doc. 6651/12 of 27 February 2012. 68 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. 67

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Art. 22

Chp. 15

condition for admission. Inadequate living conditions of temporary migrant workers have been a concern in many Member States. Especially in the agricultural sector, employers often provide poor quality accommodation to seasonal workers and in many cases deduct the rent from the wages of the employees. Such practices are no longer possible under the Directive, which requires Member States to ensure that seasonal workers receive adequate accommodation. The definition of ‘accommodation that ensures an adequate standard of living’ is, however, open to widely divergent interpretation across the Member States.69 The Commission has noted that the Covid-19 pandemic ‘gave more visibility’ to the precarious living conditions of seasonal workers, and ‘in some cases, exacerbated them’, raising questions about the effectiveness of the legal provisions.70 More explicitly with regard to employers who arrange accommodation, Article 20(2) prohibits overcharging seasonal workers for the accommodation provided and does not allow for an automatic deduction of rent from wages. Moreover, employers must respect national health and safety standards and are obliged to provide seasonal workers with a rental contract. However, the Directive does not address the issue that employer-organised accommodation, especially in the agricultural sector, is often located on the premises of the employer, placing the third-country worker in a vulnerable position of dependency.

Article 21 Placement by public employment services Member States may determine that the placement of seasonal workers shall only be carried out by public employment services. Article 21 allows Member States to place the exclusive competence for the placement 1 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. 69 70

European Migration Network, Synthesis Report, p.32. Commission Communication, C(2020) 2051, p. 1.

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Chp. 15 Art. 23 1

Seasonal Workers Directive 2014/36/EU

Article 22 embodies the basic rights attached to an authorisation of seasonal work, namely the right to enter, stay and freely move within the territory of a Member State and to carry out a specific employment activity. In addition to free movement within the territory of the Member State that issued the authorisation, seasonal workers may move freely between Member States applying the Schengen acquis in full.71 Reflecting Member State control over which sectors they will open up to seasonal workers, the Directive makes no provision for intra‐EU mobility of seasonal workers, in contrast to the ICT Directive 2014/66/EU and the Blue Card Directive 2009/50/EC.72

Article 23 Right to equal treatment 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; 71 72

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Recital 42. Costello/Freedland, Seasonal Workers, p. 14.

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Art. 23

Chp. 15

(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 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 .................................................

mn. 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 1 application of equality of treatment in EU migration law is tied to the skills level of migrants, with more rights afforded to skilled than less skilled third-country nationals. A comparison of the equal treatment provisions in the Article 14 of the Blue Card Directive 2009/50/EC with those in the Seasonal Workers Directive, however, reveals the success of the European Parliament during the negotiation process in securing a set of robust equal treatment guarantees in the Seasonal Workers Directive.73 Considering the especially vulnerable situation of third-country national seasonal 2 workers and the temporary nature of their assignment, there is a need to provide effective protection of their rights and to check regularly for compliance with the principle of equal treatment and the concept of the same pay for the same work in the same workplace.74 The preamble specifically refers to the applicability of international labour law instruments (the European Social Charter and the European Convention on the Legal Status of Migrant Workers) as well as national arbitration decisions, collective agreements and contracts in addition to the relevant legislative, administrative and regulatory provisions.75 In the Commission proposal, Article 16(1) did not provide for equal treatment with 3 nationals of the host Member States as regards working conditions. This was criticised by the ILO, which noted that 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 (Employ73

See generally, Fudge/Herzfeld Olsson, The EU Seasonal Workers Directive, p. 439. Recital 43. 75 Recitals 44 and 45. 74

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Chp. 15 Art. 23

Seasonal Workers Directive 2014/36/EU

ment and Occupation) Convention, 1958 (No 111) which addresses non-discrimination with respect to inter alia conditions of employment and has been ratified by all 28 EU Member States.76 The failure to include equal 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’.77 The right to equal treatment was, however, considerably strengthened by amendments proposed by the European Parliament, which introduced most of the equal treatment rights listed below. The EU political process thus resulted in the inclusion of more worker-protective measures in the Directive than in the case of the ICT Directive 2014/66/EU, for example – which assimilates the worker to the position of a posted worker.78

II. Right to equal treatment 4

Under the final version of the Directive, seasonal workers enjoy equal treatment rights that are very similar to those granted to highly-skilled workers under the Blue Card Directive 2009/50/EC. They must be granted equal treatment with nationals with regards to terms of employment, minimum working age, working hours, leave and holidays, the right to strike and to take industrial action, access to public goods and services, education and vocational training, recognition of diplomas and other professional qualifications, tax benefits (provided that the seasonal worker is deemed to be resident for tax purposes) and advisory services offered by employment services regarding seasonal work.

1. Social security benefits 5

Seasonal workers must be granted equal treatment with regards to those branches of social security that are listed in Article 3 of the Social Security Coordination Regulation (EC) No 883/2004, including sickness benefits, maternity and equivalent paternity benefits, invalidity benefits, old-age benefits, survivors’ benefits, benefits in respect of accidents at work and occupational diseases, death grants and pre-retirement benefits. Member States may, however, refuse seasonal workers equal treatment with nationals in respect of family and unemployment benefits. This restriction was introduced upon insistence of the Council and is justified by referring to the temporary nature of the stay of seasonal workers.79 The Directive therefore derogates from the two ILO migrant workers conventions, which provide for equal treatment with respect to unemployment and family responsibilities.80 Given that seasonal workers do not enjoy a right to family reunification, the permitted derogation from equal treatment in respect of family benefits is nonetheless unsurprising. More generally, it should be noted that case-law indicates that derogations from the principle of equal treatment can be relied on only if the authorities in the Member State concerned have stated clearly that they intended to rely on them.81

76

Council doc. 9564/11 of 2 May 2011. Peers et al., EU Immigration and Asylum Law, p. 181. 78 Costello/Freedland, Seasonal Workers, p. 2. 79 Recital 46. 80 Fudge/Herzfeld Olsson, The EU Seasonal Workers Directive, p. 438, 458. 81 See ECJ, Kamberaj, C-571/10, EU:C:2012:233, paras 86 and 87; ECJ, Martinez Silva, C-449/16, EU: C:2017:485, para 29; ECJ, INPS/V.R., C-303/19, EU:C:2020:958, para 23. 77

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Art. 23

Chp. 15

2. Back payments and pension rights The inclusion of a right to back payment as one of the enumerated categories 6 requiring equal treatment was the result of an amendment from the European Parliament. Recital 36 of the preamble provides that the necessary mechanisms should be in place to enable seasonal workers to obtain the compensation to which they are entitled even if they are no longer on the territory of the Member State in question. This is similar to the requirement articulated in Article 6(4) of the Employers Sanction Directive 2009/52/EC. In addition to any outstanding back payments, the Directive ensures that seasonal 7 workers moving to a third country as well as their survivors will not lose their entitlements to receive statutory pensions based on previous employment and acquired in accordance with Article 3 of the Social Security Coordination Regulation (EC) No 883/ 2004, however only insofar as this is provided for on behalf of nationals of the Member State involved and at the same rate applied to them. This right to ‘export’ pensions is an important provision given that it also applies in situations where there is no bilateral social security agreement between the States involved. However, there are inconsistencies between the language used in the legal migration Directives in relation to the export of pensions. The ICT Directive 2014/66/EU refers to ‘the payment of old age, invalidity and death statutory pensions’, the Blue Card Directive 2009/50/EC to ‘statutory pensions in respect of old age’ and the Seasonal Workers’ Directive to ‘statutory pensions based on previous employment’. In contrast, the Long-Term Residents Directive 2003/109/EC contains no provisions on the right to export pensions to a third country.

3. No right to family reunification Article 23(1), in particular the provisions contained in Article 23(1)(a), (b), (g) and 8 (h) are very similar and sometimes identical to the corresponding provisions in the Blue Card Directive 2009/50/EC. However, the rights of seasonal workers differ from those of highly skilled workers in one important respect: the Seasonal Workers Directive does not provide for a right to family reunification.82 The absence of the right to family reunification was criticised by a coalition of NGOs.83 One justification for the absence of a right to family reunification from the Directive, apart from the temporary nature of seasonal workers’ stay, could be the aim stated in recital 7 of the preamble to prevent overstaying and to prevent temporary stay from becoming permanent. It also clearly illustrates the circular migration aspect of the Directive. As Verschueren notes, ‘Further integration into the society of the host State is clearly not what this directive aims at.’84 More broadly, potential gendered implications of the Directive and the exclusions from equal treatment do not seem to have been considered.85 It is also worth noting that seasonal workers are the only category of labour migrant excluded from the scope of the Family Reunification Directive 2003/86/EC.

4. Further restrictions of equal treatment In addition to the absence of a right to family reunification and no mandatory equal 9 treatment in terms of family and unemployment benefits, the Member States may 82

See recital 46. Joint NGO Statement, EU Seasonal Migrant Workers’ Directive: Full Respect of Equal Treatment Necessary, 20 April 2011. 84 Verschueren, Employment and Social Security Rights, p. 390. 85 See generally Palumbo/Sciurba, The Vulnerability to Exploitation. 83

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Chp. 15 Art. 24

Seasonal Workers Directive 2014/36/EU

limit the application of equal treatment in relation to education and vocational training as well as tax benefits. These limitations are supposed to be justified on grounds of the temporary nature of the seasonal workers’ stay.86 Finally, under the definition of seasonal worker in Article 3(b), the seasonal worker ‘retains his or her principal place of residence in a third country’. This could potentially restrict access to some social benefits under the national legislation of the Member State, including health care.87

Article 24 Monitoring, assessment and inspections 1. Member States shall provide for measures to prevent possible abuses and to sanction infringements of this Directive. Measures shall include monitoring, assessment and, where appropriate, inspection in accordance with national law or administrative practice. 2. Member States shall ensure that services in charge of inspection of labour or competent authorities and, where provided for under national law for national 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). In the context of the COVID-19 pandemic, the Commission asked Member States to strengthen the field inspections necessary to ensure the proper application of the occupational safety and health norms in respect of seasonal workers.88 Similarly, the Council has called on Member States to ‘evaluate whether the inspections currently in place are sufficient to enforce the existing EU and national legislation’.89 1

86

Recital 46. Verschueren, Employment and Social Security Rights, p. 390. 88 Commission Communication, C(2020) 2051, p. 5. 89 Council doc. 11726/2/20 of 9 October 2020, p. 8. 87

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Art. 25

Chp. 15

Moreover, the Directive does not prescribe an active role for trade unions or other 3 organisations representing workers’ rights in the process of monitoring and assessment. It is merely provided that organisations that enjoy such competences under national law should be granted access to the workplace and the accommodation with the workers’ consent. The suggestion of the European Economic and Social Committee that the social partners, as key players in the national labour market, should be intimately involved in monitoring activities90 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 1 which seasonal workers may seek legal redress and lodge complaints directly or through relevant third parties such as trade unions or other associations. Such mechanisms are considered necessary to address situations where seasonal workers are unaware of the existence of enforcement mechanisms or hesitant to use them in their own name, out of fear of possible consequences.91 This requirement, which mirrors an almost identical provision in the Employer Sanctions Directive 2009/52 (Article 13(1)), was not contained in the original Commission proposal, which was only directed at third parties (Article 13(2)), but introduced as an amendment by the Parliament. Moreover, the Member States must give third parties with a legitimate interest the 2 possibility to support seasonal workers in administrative or civil proceedings, except for procedures and decisions concerning short-stay visas. In the case of short-stay visas, the procedural safeguards are governed by the relevant provisions of the Schengen acquis.92 Seasonal workers should also have access to judicial protection against victimisa- 3 tion as a result of a complaint being made.93 They must therefore be granted access to 90

EESC opinion doc. SOC/392 of 8 April 2011. Recital 50. 92 Recital 38. 93 Recital 50. 91

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Chp. 15 Art. 26

Seasonal Workers Directive 2014/36/EU

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.

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.

(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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Art. 30

Chp. 15

Article 29 Entry into force This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Article 30 Addressees This Directive is addressed to the Member States, in accordance with the Treaties.

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Chapter 16. Intra-Corporate Transfer Directive 2014/66/EU Select Bibliography: Bayreuther, ‘Arbeitsrecht im Richtlinienvorschlag zur konzerninternen Versendung von Drittstaatsangehörigen (ICT-Richtlinie)’, Zeitschrift für europäisches Sozial- und Arbeitsrecht (2012), p. 405–410; Brinkmann, ‘Gleichbehandlung von Drittstaatsangehörigen nach den EU-Migrationsrichtlinien’, in: Beichel-Benedetti/Janda (eds), Hohenheimer Horizonte. Festschrift für Klaus Barwig (Nomos, 2018), p. 99–115; Janda, ‘Zugang zu Sozialleistungen für Drittstaatsangehörige’, in: Wollenschläger (ed), Enzyklopädie Europarecht, Band X: Europäischer Freizügigkeitsraum. Unionsbürgerschaft und Migrationsrecht, 2nd edn (Nomos, 2020), § 25; Klaus, ‘Die ICT-Richtlinie – Ende einer europäischen Odyssee’, Zeitschrift für Ausländerrecht (2015), p. 1–12; Lutz, ‘Transposition of the ICT Directive 2014/66/EU: Perspective of the Commission’, in: Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive (Wolf, 2018), p.19–34; Peers, ‘Legislative Update: EU Immigration and Asylum Competence and Decision-Making in the Treaty of Lisbon’, EJML 2008 (10), p. 219–247; Töttös, ‘Negotiations in the Council’, in: Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive (Wolf, 2018), p. 5–18; Verschueren, ‘Employment and Social Security Rights of Third-Country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection’, EJML 18 (2016), p. 373–408; Verschueren, ‘The Role of Employment and Social Security Rights in the Intra-Corporate Transfer Directive’, in: Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive (Wolf, 2018), p. 35–54; von Harbou, ‘Arbeits‐ und Ausbildungsmigration’, in: Wollenschläger (ed), Enzyklopädie Europarecht, Band X: Europäischer Freizügigkeitsraum. Unionsbürgerschaft und Migrationsrecht, 2nd edn (Nomos, 2020), § 18. Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer Official Journal L 157, 27/05/2014, p. 1–22 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular points (a) and (b) of Article 79(2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee(1), Having regard to the opinion of the Committee of the Regions(2), Acting in accordance with the ordinary legislative procedure(3), Whereas: […] HAVE ADOPTED THIS DIRECTIVE:

(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 published in the Official Journal) and decision of the Council of 13 May 2014. (2)

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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 .................................................................

mn. 1 5

I. General remarks and purpose of the Directive Article 1 offers a general description of the Directive’s basic content, i.e. legal 1 immigration of third-country nationals and their family members into the EU, without, however, containing any details on the particular nature of its framework, the intracorporate transfer. The article rather reflects the Directive’s legal basis, Article 79(2)(a) and (b) TFEU,1 and delimits its scope from the EU visa regime by determining that only transfers for more than 90 days are covered. It becomes evident only from other provisions, such as the complex definition of an 2 ‘intra-corporate transfer’ in Article 3(b) or the numerous mandatory admission criteria in Article 5(1), that this Directive covers a very specific part of labour migration:2 it merely concerns the temporary migration (cf. Recital 7) of managers, specialists and trainee employees of branches and subsidiaries of multinational corporations into and, where applicable, within the EU.3 It had been found that, as a result of the globalisation of business, such migration had 3 increased over the years and that it was hampered by the complexity and diversity of the rules in the EU Member States, in particular regarding work permit requirements, intraEU mobility and family reunification. By setting up a harmonised legal framework, this Directive’s purpose is to facilitate intra-corporate transfers and thereby to boost the competitiveness of the EU economy.4 1 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. 2 Cf. von Harbou, in Wollenschläger (ed), Enzyklopädie Europarecht, Band X, § 18, para 56. 3 Thus, the Directive is another example of the sectoral approach in EU immigration law which is criticised for producing results that run counter to Article 79(1) TFEU, see e.g. Couronne, ‘L’immigration économique au sens du droit de l’Union européenne’, in: Icard/Olivier-Leprince (eds), Les Flux migratoires au sein de l’Union Européenne (Bruylant, 2017), p. 69–73. 4 See Recitals 3–7 and Commission Proposal, COM(2010) 378, p. 2–3; for a closer look at the business needs for facilitated intra-corporate transfers as well as a first preliminary assessment of the Directive

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About five years after the end of its transposition period,5 the overall impact of this Directive seems to be rather limited. Data so far available indicates that the annual numbers of ICTs remain considerably below the Commission’s estimate.6 It appears likely that this is due not only to the Directive’s restricted scope, but also to its considerable complexity. The Directive does play an important role in EU regulation: Its new and, despite its intricate character, comparatively flexible intra-EU mobility scheme7 independent from the Schengen regime was adopted, with appropriate modifications, in the Students and Researchers Directive (EU) 2016/801 and also found its way in the Commission proposal for a new Blue Card Directive.8 However, first numbers of mobile ICT permits9 raise doubts about the proportionality of regulation at EU level, which might grow in case of persistent Member States’ concerns about the practicability and possible misuse of the scheme10 as well as in the event of any possible future ‘recalibration’ of labour migration policy at EU level.11

II. Drafting history of the Directive This Directive forms part of a long-term process at EU level which is to lead to a comprehensive immigration policy.12 In 2005, the European Commission announced in its Communication on a Policy Plan on Legal Migration that it would present five proposals on labour migration, one of them concerning the category of ICTs.13 However, the proposal for this Directive was published only on 13 July 2010. 6 The proposal was negotiated 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 5

from this perspective, see Antoons/Ghimis/Sullivan, ‘The Intra-Corporate Transfer Permit and Mobility in the European Union: The Business Perspective, in: Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 67 et seq; in contrast, the demand-driven approach to temporary labour migration is criticised e.g. by Howe/Owens, ‘The Regulatory Challenges’, in: ibid. (eds), Temporary Labour Migration in the Global Era the Regulatory Challenges (Hart, 2016), p. 3 et seq. 5 The transposition period ended on 29 November 2016 (Article 27(1)) with only four Member States having notified full transposition in time and with an average transposition delay of more than seven months, see Lutz, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 19. 6 In the summary of the impact assessment accompanying the proposal, the Commission had estimated the number of ICTs ‘to be roughly 16 500 a year’ throughout the EU, see Commission Document, SEC (2010) 885, p. 7. Data from Eurostat and the German Federal Office for Migration and Refugees (BAMF, annual ‘Wanderungsmonitoring: Bildungs- und Erwerbsmigration nach Deutschland’) for 2017 to 2019 let assume, however, that the number of ICT permits issued and renewed by EU member states per year is a very low five-digit number, with a tendency to rise slightly. 7 See Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 108, and also the somewhat overenthusiastic assessment (‘milestone’, ‘quantum leap’) by Klaus, Die ICT-Richtlinie, p. 1. 8 See Articles 27 to 32 Students and Researchers Directive (EU) 2016/801 as well as Commission Proposal, COM(2016) 378, p. 44–48. 9 In Germany, the EU’s biggest economy, a total of 15 mobile ICT permits for long-term mobility were handed out in 2018 and 2019. 10 Such concerns, already present during the negotiations, led to the Commission’s obligation to focus their regular reports particularly on the intra-EU mobility scheme (Article 25). 11 Cf. Menz, ‘EU Labor Immigration Policy. From Silence to Salience’, in: Ripoll Servent/Trauner (eds), The Routledge Handbook of Justice and Home Affairs Research (Routledge, 2018), p. 130, whose critical analysis does not even comprise the Covid-19 pandemic and its incalculable consequences since it was written in 2017. 12 See for further details Commission Proposal, COM(2010) 378, p. 2, and Thym, Legal Framework for EU Immigration Policy, MN 1–4. 13 See Commission Communication, COM(2005) 669, p. 4–8.

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adopted its position at first reading on 15 April 2014, which was approved by the Council on 13 May 2014. After its publication in the Official Journal of the European Union on 27 May 2014, the Directive eventually entered into force on 28 May 2014. During nearly four years of negotiations, the most contested parts of the Directive 7 were the admission conditions, the rights to equal treatment and the design of intra-EU mobility. While only a few extra articles were added, the length of the text almost doubled, resulting in some excessively long provisions (e. g. Article 22).

Article 2 Scope 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 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)) ....................................................................................................

mn. 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.

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Intra-Corporate Transfer Directive 2014/66/EU

Furthermore, Article 2 is not explicit as to the question if Member States may provide for additional national schemes for ICTs. It is argued here that indeed they may: Despite the drafting history of Article 2(3),14 the decisive wording of Article 2(1) suggests flexibility for the Member States since only third-country nationals who apply to be admitted or who have been admitted ‘under the terms of this Directive’ are covered. A comparison with the Commission proposal supports this interpretation, since the explicit reference to ‘the terms of this Directive’ was added during the negotiations, limiting the scope to third-country nationals who use the Directive’s specific migration channel. The possibility for Member States to admit on easier terms third-country nationals that plan an intra-corporate transfer only to the 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 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 Directive15 are not covered by this Directive. However desirable the opposite might be, any teleological interpretation cannot overcome the unambiguous wording.16 3

III. Exclusion from the scope of the Directive (Article 2(2)) Researchers (Article 2(2)(a), see also Recital 43) and posted workers (Article 2(2)(c), see also Recital 37 and note that Directive 96/71/EC was amended on 28 June 2018 by Directive (EU) 2018/957, involving a slight clarification as to the Directive’s scope) are excluded from the Directive’s scope only as far as they fall under the legal instrument referred to. In contrast, the exclusion of students (Article 2(2)(f)) goes beyond the scope of the former Student Directive 2004/114/EC. 6 The exclusion of persons who enjoy rights of free movement equivalent to those of Union citizens (Article 2(2)(b)) concerns, due to the Agreement on the European 5

14

See Council doc. 6667/13 of 22 February 2013, p. 38. After the United Kingdom left the EU, this applies to Ireland and Denmark, see Recitals 47 and 48. 16 See however Klaus, Die ICT-Richtlinie, p. 1, 3 fn. 26. 15

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Economic Area, the citizens of Iceland, Liechtenstein and Norway as well as, on the basis of a bilateral agreement, those of Switzerland. However, any other third-country national might also be excluded by Article 2(2)(b) as long as he or she is employed by an undertaking that is established in one of those four countries. The wording of the exclusion of activities as self-employed workers, which was 7 proposed by the Parliament17 due to concerns that the Directive’s scope was too broad, suggests a rather broad interpretation of Article 2(2)(d): ICTs may not engage in any self-employed activity in addition to the obligations resulting from his or her work contract. In order to prevent employment or temporary work agencies from abusing the 8 rules of the Directive, both the Parliament and the Council suggested the explicit exclusion of third-country nationals that are assigned by undertakings engaged in making available labour to work under the supervision and direction of another undertaking (Article 2(2)(e)).18 However, third-country nationals that work within such agencies as their own managers, specialists and trainee employees are not excluded.19

IV. Other residence permits for the purpose of employment (Article 2(3)) Article 2(3), in combination with Article 2(1), allows Member States to provide for 9 national admission schemes for third-country nationals willing to do an intra-corporate transfer. This comprises not only (more favourable) national admission schemes for managers, specialists and trainee employees (see above MN 2), but also national schemes for intra-corporate transfers of other employees.20 Furthermore, the Directive does not interfere with the Member States’ competence to 10 regulate short-term intra-corporate transfers of up to 90 days, which is only subject to the EU’s international trade commitments.21 Theoretically, Member States also remain free to allow in-country applications for ICTs in their national law,22 which, however, would seem to conflict to a certain extent with the application’s subject-matter, namely the transfer.

Article 3 Definitions For the purposes of this Directive, the following definitions apply: (a) ‘third-country national’ means any person who is not a citizen of the Union, within the meaning of Article 20(1) TFEU; (b) ‘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 17

See Council doc. 6667/13 of 22 February 2013, p. 37. See Council doc. 6667/13 of 22 February 2013, p. 37. 19 See Klaus, Die ICT-Richtlinie, p. 1, 4 fn. 37. 20 Such as unqualified employees, see Klaus, Die ICT-Richtlinie, p. 1, 4. 21 Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 96. 22 See ibid., p. 96. 18

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Chp. 16 Art. 3

(c)

(d)

(e)

(f)

(g)

(h) (i)

(j)

(k)

(l)

Intra-Corporate Transfer Directive 2014/66/EU

Member State, and to which the third-country national is bound by a work contract prior to and during the transfer, to an entity belonging to the undertaking or to the same group of undertakings which is established in that Member State, and, where applicable, the mobility between host entities established in one or several second Member States; ‘intra-corporate transferee’ means any third-country national who resides outside the territory of the Member States at the time of application for an intracorporate transferee permit and who is subject to an intra-corporate transfer; ‘host entity’ means the entity to which the intra-corporate transferee is transferred, regardless of its legal form, established, in accordance with national law, in the territory of a Member State; ‘manager’ means a person holding a senior position, who primarily directs the management of the host entity, receiving general supervision or guidance principally from the board of directors or shareholders of the business or equivalent; that position shall include: directing the host entity or a department or subdivision of the host entity; supervising and controlling work of the other supervisory, professional or managerial employees; having the authority to recommend hiring, dismissing or other personnel action; ‘specialist’ means a person working within the group of undertakings possessing specialised knowledge essential to the host entity’s areas of activity, techniques or management. In assessing such knowledge, account shall be taken not only of knowledge specific to the host entity, but also of whether the person has a high level of qualification including adequate professional experience referring to a type of work or activity requiring specific technical knowledge, including possible membership of an accredited profession; ‘trainee employee’ means a person with a university degree who is transferred to a host entity for career development purposes or in order to obtain training in business techniques or methods, and is paid during the transfer; ‘family members’ means the third-country nationals referred to in Article 4(1) of Council Directive 2003/86/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 thirdcountry national in the territory of a Member State, to a decision on that application; ‘group of undertakings’ means two or more undertakings recognised as linked under national law in the following ways: an undertaking, in relation to another undertaking directly or indirectly, 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

(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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undertaking’s administrative, management or supervisory body; or the undertakings are managed on a unified basis by the parent undertaking; (m) ‘first Member State’ means the Member State which first issues a third-country national an intra-corporate transferee permit; (n) ‘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; (o) ‘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))....................................................

mn. 1 3 4 6 7 9 11 12 13 14

I. General remarks and drafting history Article 3 defines fifteen key terms used in this Directive. It aims at ensuring a 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 terms ‘intra-corporate transfer’, ‘manager’, ‘specialist’ and ‘trainee employee’,23 which the Member States wanted to be as close as possible to the GATS provisions.24

II. Definitions For some of the terms, standard definitions were introduced. They explicitly refer to 3 (Article 3(a), (h) and (o)) or equal (Article 3(k), (m) and (n)) the content of other provisions.25

23

For a comparison of the different positions, see Council doc. 6667/13 of 22 February 2013, p. 39–42. See Töttös, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 8, as well as Recital 13 which clarifies in this regard that the ‘definition [of managers, specialists and trainee employees] should build on specific commitments of the Union under the General Agreement on Trade in Services (GATS) and bilateral trade agreements. … However, the scope of the intra-corporate transfers covered by this Directive should be broader than that implied by trade commitments, as the transfers do not necessarily take place within the services sector and may originate in a third country which is not party to a trade agreement’. 25 See in particular with respect to Article 3(k), (m) and (n) the similar definitions in Article 2(d) Single Permit Directive 2011/98/EU and Article 2(d) and (e) Blue Card Directive 2009/50/EC. 24

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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 commitments under the GATS and bilateral trade agreements.26 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,27 (2) the link between this undertaking and one (or several) undertaking(s) established inside the EU and (3) the temporary secondment of the third-country national from the former to the latter undertaking(s) in the framework of his or her employment.28 5 While the subject of an intra-corporate transfer, i. e. the ‘intra-corporate transferee’ or the ‘ICT’, may also be seconded to further host entities in the first and in second Member States (see Articles 5(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.29 4

2. ‘Host entity’ (Article 3(d)) 6

Despite the definition’s wording (‘the entity to which the intra-corporate transferee is transferred’), an ICT might be transferred to several (host) entities established in the same Member State. This follows from the unambiguous wording of Article 17(c) (‘in any host entity’) as well as from the Directive’s objective to facilitate intra-corporate transfers by setting up a more flexible framework.30

3. ‘Manager’ (Article 3(e)) Although single words differ, this definition corresponds with the respective definition in the EU commitments schedule under the GATS.31 The duties and rights required in order to qualify as a manager under this Directive again illustrate its restricted scope. 8 The Parliament proposed to add a specific reference to project managers32 which, however, was rejected in order to avoid any significant divergence from the GATS definition. Still, project managers might qualify as managers under this Directive if they fulfil the requirements of the definition. 7

26 See Commission Proposal, COM(2010) 378, p. 9; for a closer analysis of the international pattern of labour migration see Engblom/Kountouris/Odin Ekman, ‘Temporary Labour Migration and the Trade in Services. European and Global Perspectives in an Age of Economic Integration’, in: Howe/Owens (eds), Temporary Labour Migration in the Global Era the Regulatory Challenges (Hart, 2016), p. 65–90. 27 As clarified during the negotiations, this link has to exist ‘prior to and during the transfer’; thus, a change of employer is not possible, which is already implicit in the nature of an intra-corporate transfer, see Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 100. 28 According to private international law, the law applicable to the ICT’s employment relationship normally remains the law of the non-EU country where the ICT used to carry out his job or from where he used to carry out his job, see Verschueren, Employment and Social Security Rights, p. 392, 395. 29 See Klaus, Die ICT-Richtlinie, p. 1, 3. 30 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. 31 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. 32 See Council doc. 6667/13 of 22 February 2013, p. 40–41.

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4. ‘Specialist’ (Article 3(f)) The Parliament suggested to align the definition with the terminology of the Blue Card 9 Directive.33 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.34 The fact that the third-country national has to possess ‘specialised knowledge’ which 10 is ‘essential to the host entity’s areas of activity, techniques or management’ shows that only key personnel is covered (see Recital 6). In case of doubt, the definition is to be interpreted restrictively: this results not only from the narrow definitions of the other groups of persons covered by this Directive, but also from legitimate concerns of misuse should the definition be understood too extensively.35

5. ‘Trainee employee’ (Article 3(g)) Unlike the previous one, this is a rather clear-cut definition, covering only remuner- 11 ated trainees possessing a university degree. According to the wording, the transfer has not to be linked exclusively to the preparation for a managerial position within the specific company.36 However, with a view to the Directive’s objective, this should generally be the case, and the Member States may require this specific link according to Article 5(6).

6. ‘Intra-corporate transferee permit’ (Article 3(i)) The suggestion by the Council to delete Article 3(i) in view of the more detailed 12 ‘definition’ provided by Article 13 was rejected during the negotiations. It was considered important to include a proper definition since the term is constantly used throughout the Directive and, unlike Article 13, it lays down also the basic rights resulting from the permit.

7. ‘Permit for long-term mobility’ (Article 3(j)) If Member States opt for the application procedure for long-term mobility (Article 22(2) 13 to (7)), they have to introduce this Directive’s second specific type of permit. Article 22(4) contains further specifications in addition to the permit’s basic characteristics contained in this definition. The definition is clear about the fact that the permit does not grant the right to short-term mobility in the sense of Article 71. Such a right might, however, exist according to the Schengen rules.

8. ‘Group of undertakings’ (Article 3(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. The notion of ‘undertaking’ should, 33

See See 35 See 36 See 34

Council doc. 6667/13 of 22 February 2013, p. 41–43. Council doc. 9346/14 ADD 1 of 5 May 2014, p. 2. Bayreuther, Arbeitsrecht im Richtlinienvorschlag, p. 405–406. however Commission Proposal, COM(2010) 378, p. 19.

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with a view to the aims and objective of the Directive, be interpreted in a broad sense, covering also internationally active NGOs, cooperatives or other non-profit making undertakings.37

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.38 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). 2 Article 4(1) refers to more favourable provisions contained in existing as well as future EU law, bilateral and multilateral agreements.39 In particular, the interaction with the GATS rules is not very clear and will have to be solved in practice on a case-bycase basis.40 3 In Article 4(2), Member States are given the limited possibility to provide for more favourable provisions in respect of Articles 3(h), 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). 4 A problematic exception in this respect is Article 3(h) (as well as Article 11(7)(a), see below Article 11 MN 6): Since it is mentioned in Article 4(2), Member States may extend their 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 first Member State may not be allowed to accompany the ICT during his or her long-term mobility to a (more restrictive) second Member State. In the spirit of this Directive’s objective, such Member States should consider to provide for an exception on the basis of Article 3(5) Family Reunification Directive 2003/86/EC. 1

37

Cf. Lutz, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 21. See Commission Proposal, COM(2010) 378, p. 20. 39 For an analysis of how provisions in the EU’s international agreements with third countries, constituting a sort of intra-corporate transfer regime prior to this Directive, may still determine the conditions of entry and residence of ICTs under this Directive via Article 4(1)(b), see Guild, ‘IntraCorporate Transferees: Between the Directive and the EU’s International Obligations’, in: Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive (Wolf, 2018), p. 55 et seq. 40 See Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 106–107, and Klaus, Die ICT-Richtlinie, p. 1, 2 note 9. 38

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CHAPTER II CONDITIONS OF ADMISSION Article 5 Criteria for admission 1. Without prejudice to Article 11(1), a third-country national who applies to be admitted under the terms of this Directive or the host entity shall: (a) provide evidence that the host entity and the undertaking established in a third country belong 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. 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.

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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 intracorporate transfer with regard to terms and conditions of employment other than remuneration. In the absence of a system for declaring collective agreements of universal application, Member States may base themselves on collective agreements which are generally applicable to all similar undertakings in the geographical 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 mn. 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 7. No threat to public security (Article 5(8))............................................ 10a III. Facultative criteria for admission (Article 5(2), (3), (5) and (6)) ........ 11

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I. General remarks and drafting history Article 5 lays down numerous, mostly mandatory criteria for admission which 1 ‘mainly serve to prevent that other migration, labour and social law regulations are bypassed using the ICT title’.41 In case that they are not complied with, the application42 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.43 Given the importance of the admission criteria, it is not surprising that the details of 2 Article 5 were discussed intensively during the negotiations. This concerned in particular Article 5(1)(b) and (4).

II. Mandatory criteria for admission (Article 5(1), (4), (7) and (8)) The mandatory requirements to comply, where applicable, with regulated profession 3 rules (Article 5(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.44

1. Same undertaking or group of undertakings (Article 5(1)(a)) This requirement is an elementary criterion to ensure that the transfer to the EU is of 4 an intra-corporate nature. Given the potential complexity of the matter, in particular where a group of undertakings (Article 3(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 Member State’s authorities to properly assess if this criterion is fulfilled.

2. Minimum duration of current employment within the same undertaking or group of undertakings (Article 5(1)(b)) This requirement is vital to ensure that the skills of the ICT are specific to the host 5 entity (see Recital 16) and that the alleged intra-corporate transfer is not, in fact, a concealed recruitment of a third-country national. The wording does not require the former employment and the one during the transfer to be in the same position, and it is primarily up to the undertakings how to tap their human resources. However, in case the positions differ considerably, the Member States’ authorities should take a closer look, especially when assessing if applicant has the professional qualifications and Von Harbou, in Wollenschläger (ed), Enzyklopädie Europarecht, Band X, § 18 para 60. The Member States have to determine by whom applications are to be submitted (Article 11(1)). 43 See ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, para 33, also Tewocht, Drittstaatsangehörige im europäischen Migrationsrecht (Nomos, 2016), p. 402. 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. 44 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 Herzog-Schmidt/Lehner, Blue Card Directive 2009/ 50/EC, Article 5 MN 4, 6–8. 41 42

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experience according to 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 thirdcountry 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)),45 which position the thirdcountry national will hold (Article 5(1)(c)(ii)),46 which remuneration and other terms and conditions the employment involves (Article 5(1)(c)(iii))47 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)).48

4. Professional qualifications and experience (Article 5(1)(d)) 7

As this Directive targets (highly) qualified migration, it is important to establish that the third-country national possesses the professional qualifications and experience needed for the intra-corporate transfer (compare the similar requirements in Articles 2 (b), 2(g), 2(i) and 5(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 workers as defined by Directive 96/71/EC with regard to terms and conditions of employment is of particular importance since the effective enforcement of the corresponding individual rights in Article 18 may well be hampered by the fact that the employer to which the ICT is bound by a contract during the transfer is established outside the Member States.49 9 With regard to the remuneration granted to the ICT during the entire transfer, Member States even have to require equal treatment with nationals occupying comparable positions. Article 18 does not contain a corresponding individual right in this regard. As a compensation, and in order to protect workers and guarantee fair competition, Member States are ‘responsible for checking the remuneration granted to the intra-corporate transferees during their stay on its territory’ (Recital 15). 8

6. Modifications affecting the criteria for admission (Article 5(7)) 10

It is vital for an accurate application procedure that any modification during the procedure affecting the criteria for admission are notified without undue delay. In case 45 This also includes details on mobility to other Member States, as far as it is known already, see Article 21(2)(a). 46 See in this respect the definitions in Article 3(e), (f) and (g) as well as Recital 13. 47 See Article 5(4). The information should comprise at least the aspects listed in Article 3 Posted Workers Directive 96/71/EC, see Commission Proposal, COM(2010) 378, p. 9. 48 This requirement is due to the fact that the scheme focuses specifically on temporary migration, see Commission Proposal, COM(2010) 378, p. 10. 49 See Bayreuther, Arbeitsrecht im Richtlinienvorschlag, p. 405, 407.

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of non-compliance with this obligation, an application has to be rejected in accordance to Article 7(1)(a). Later modifications affecting the conditions for admission (i. e. during the stay) are covered by Article 14.

7. No threat to public security (Article 5(8)) In Fahimian, the ECJ set out in detail the conditions under which the application of a 10a third-country national to be admitted to the EU may be rejected because he poses a threat to public security.50 In particular, the Court made clear that the Member States’ authorities have a wide margin of discretion and that a potential threat to public security suffices, as long as the authorities’ considerations are based on an overall assessment of all the (factual) elements of that person’s situation.51 Judicial review is limited to the ascertainment of a ‘sufficiently solid factual basis’, the absence of a ‘manifest error’ when assessing the facts and the compliance with procedural guarantees.52

III. Facultative criteria for admission (Article 5(2), (3), (5) and (6)) Member States that want to exercise more control may require the ICT’s address in 11 their territory or a trainee employee’s detailed training agreement in order to ensure that he or she ‘will benefit from genuine training and not be used as a normal worker’ (Recital 20). With the aim of protecting their social assistance systems, the Member States may also require (without asking for supplementary documentation, however) the evidence of sufficient resources. Eventually, Member States have the possibility to oblige the applicant to provide certain documents in their respective official language, in order to facilitate their procedure.

Article 6 Volumes of admission This Directive shall not affect the right of a Member State to determine the volumes of 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. On the basis of Article 6, which fully reflects Article 79(5) TFEU, Member States may 1 determine a quota, i. e. a maximum number of intra-corporate transferee permits to be issued in a certain period of time. They may limit the number of ICT permits for certain professions, economic sectors or regions only53 or even reduce the numbers to zero.54 Member States may also take other measures in order to protect their national labour 2 market. In view of the wording of Article 79(5) TFEU (‘volumes’), one might argue that Member States may fix quotas only. This, however, would deprive Member States whose immigration systems do not know such quotas of any possibility to control the access to 50 ECJ, Fahimian, C-544/15, EU:C:2017:255; for a more comprehensive account of the ‘public policy’ exception in EU immigration and asylum law, see Thym, Legal Framework for EU Immigration Policy, MN 42a-42d. 51 ECJ, Fahimian, C-544/15, EU:C:2017:255, paras 40, 43. 52 Ibid., paras 45, 46. 53 See Recital 17 of the Commission Proposal, COM(2010) 378, p. 15. 54 See the position of the European Parliament in Council doc. 6667/13 of 22 February 2013, p. 60.

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their national labour markets. As it is the overall objective of Article 79(5) TFEU to provide Member States with effective means to protect their labour markets, the provision has to be understood in a broader sense.55 3 In particular, such measures may consist of labour market tests. Indeed, unlike Article 8(2) Blue Card Directive 2009/50/EC, this Directive does not explicitly provide for it, and in Recital 21 Member States are rather prevented from requiring a labour market test. Furthermore, the Commission argues that a labour market test would be in contradiction with the purpose of setting up a transparent and simplified scheme of admission of skilled ICTs.56 However, all this cannot deprive the Member States of a right (of such fundamental importance) which is guaranteed to them by primary law. One might argue only that, having regard to the ECJ in Sommer, Member States may take into account the situation of the labour market solely in exceptional circumstances and if it is justified and proportionate with regard to the aim being pursued.57 4 That said, in practice Member States would be not well advised to resort to this instrument very much: on the one hand, the Member States covered by the EU’s commitments under the 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. 5 Member States may also apply limitations in the framework of mobility (see below Article 20 MN 5). In contrast, Article 6 is not applicable in case of an application for renewal of an ICT permit because in that case the third-country national is already part of the national labour market.

Article 7 Grounds for rejection 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; 55

See Thym, Legal Framework for EU Immigration Policy, MN 26–27. See Commission Proposal, COM(2010) 378, p. 10. 57 Cf. ECJ, Sommer, C-15/11, EU:C:2012:371, para 42. 56

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(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.

mn. 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,58 it could be argued that the possibility for Member States to provide for additional admission conditions would be in conflict with the Directive’s objective to harmonise and facilitate the admission of ICTs. However, such interpretation would ignore the fact that e.g. with Article 11(3), the Directive contains a ground for rejection that is not mentioned in Article 7 (neither in Article 8). Moreover, Article 13(1) and Recital 32 distinguish between the fulfilment of the ‘admission criteria set out in Article 5’ and the positive decision by the competent authorities. Therefore, even if the admission criteria of Article 5 are fulfilled and no ground of rejection according to Article 6 and 7 is given, Member States may reject an application, as long as it is compatible with the Directive’s objectives and not done on arbitrary grounds.59 Due to the importance of the grounds for rejection, it is not surprising that they have 3 been a key area of the negotiations (as to the question whether the Member States should be allowed to require a labour market test, see above Article 6 MN 2–4) and undergone various changes during the negotiations.60

II. Mandatory grounds for rejection (Article 7(1)) The reference to the (mandatory and facultative) admission criteria of Article 5 in 4 Article 7(1)(a) proves their pivotal nature (see also Article 15(2)). 58

ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, see in particular paras 23–32. See also Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 98, as well as Klaus, Die ICT-Richtlinie, p. 1, 10. 60 See for an overview Council doc. 6667/13 of 22 February 2013, p. 58–60. 59

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Article 7(1)(b) ensures that the acquisition of the evidence supporting the application as well as the evidence itself is correct.61 6 Article 7(1)(c) also aims at fighting possible abuses of the provisions of this Directive.62 Important criteria to assess and prove an abuse are the period of time that the host entity already exists,63 the scope of its business activities, the number of its personnel as well as the number of applications for intra-corporate transfers to this entity. 7 Article 7(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. 5

III. Discretionary ground for rejection (Article 7(2)) The sanctions referred to in Article 7(2) include, but go beyond, the ones covered by the Employer Sanctions Directive 2009/52/EC.64 As with regard to the provision’s objective it does not make a difference if the employment was illegal with regard to a third-country national or to a citizen of the respective Member State, it even seems that the term ‘illegal employment’ is to be understood wider than the definition of Article 2 (d) Employer Sanctions Directive 2009/52/EC.65 9 Article 7(2) contains a new type of regulation (‘shall, if appropriate, reject’): On the one hand, the Member States have to transpose this ground for rejection into their national law. On the other hand, the wording requires that, while doing so, they should give their authorities a particular margin of discretion (not to be confused with the possibility to act arbitrarily) when those consider to apply this provision to a specific case. The principles stipulated in Article 7(5) limit the margin of discretion. 8

IV. Facultative grounds for rejection (Article 7(3) and (4)) Article 7(3)(a) and (b) contain grounds for rejection with a rather extensive scope of application and no direct link to the specific intra-corporate transfer in question. Therefore, the authorities have discretion if they draw consequences for the concrete application. The principle of proportionality is of particular importance with regard to the grounds of Article 7(3)(a): insignificant statutory violations should not, as a general rule, lead to a rejection (see also Article 7(5)). 11 The same applies to Article 7(3)(c): the more the interests involved in a present or foreseeable labour management dispute or negotiation would be affected by the intracorporate transfer, the more the authorities should tend to deny the admission of the third-country national concerned. This ground for rejection was introduced due to fears 10

61 See for further details above Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC, Article 8 MN 2. 62 See Recital 24. As to sanctions against those who attempt to or do facilitate the unauthorised entry of ICTs, see Article 9, MN 4 a. 63 With regard to the clear wording in Article 3(b), the entity in the receiving State has to exist already before the ICT application is submitted, see Lutz, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 23. 64 See, in contrast, Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 98. 65 See however above Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC, Article 8 MN 7.

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that multinational companies could misuse the Directive by transferring ‘strike-breakers’ at short notice to an undertaking concerned.66 Article 7(4) ensures that, if a Member State has opted for a period according to 12 Article 12(2), this period is abided by. In case that it is not, it would seem only logical that Member States provide for the automatic, or at least the regular, rejection of a precipitate application for another intra-corporate transfer by the same third-country national.

Article 8 Withdrawal or non-renewal of the intra-corporate transferee permit 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: (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.

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See Bayreuther, Arbeitsrecht im Richtlinienvorschlag, p. 405, 409–410.

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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)).....

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I. General remarks 1

Article 8 contains a non-exhaustive list67 of the grounds for withdrawal and the grounds for non-renewal of the ICT permit. Contrary to what it seems at first glance, the grounds are identical, with the sole exception of Article 8(3)(d).

II. Mandatory grounds for withdrawal and non-renewal (Article 8(1) and (3)) 2 3

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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.

III. Discretionary ground for withdrawal and non-renewal (Article 8(2) and (4)) 7

The ground for withdrawal and non-renewal provided for in Article 8(2) and (4) is identical to the one of Article 7(2) (see above Article 7 MN 8–9).

67 See, above 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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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 22.68 Other sanctions than the withdrawal or the non-renewal of the ICT permit may be provided for on the basis of Article 9(3).

Article 9 Sanctions 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 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 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. 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. 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, 68 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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consist of financial sanctions or measures as listed in Article 7 of the Employer Sanctions Directive 2009/52/EC. All sanctions have to be effective, proportionate and dissuasive. Recital 12 clarifies that, on the basis of national law, sanctions may be directed against an ICT’s employer established in a third country. 4a Article 7(1)(c) indicates that an obvious abuse of this Directive is the scenario where the host entity was established for the main purpose of facilitating the entry of intra-corporate transferees. In Paoletti et al., the ECJ stated with regard to a comparable situation that EU law, in particular the principles of legality and proportionality according to Article 49 CFR, have to be observed when punishing any person who facilitated the unauthorised entry of a third-country national or attempted to do so.69

CHAPTER III PROCEDURE AND PERMIT Article 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.70 With a view to the complexity of the intra-EU mobility scheme and the multiple options for transpositions contained therein, it was particularly important that the obligation to inform about the respective procedures was added.71 2 Article 10(1) now obliges Member States to make available all information on admission, entry, residence and mobility procedures that is essential to ICTs and their family members. Apart from prescribing that access to information shall be easy, the provision contains no further specifications on how the information is to be made accessible. In the digital age, a central website in simple, at least English language seems to constitute the minimum in this respect. 3 In order to enhance their effect, information on possible sanctions under this Directive has to be made available to the host entities (Article 10(2)). Besides the sanctions provided for in Articles 9 and 23, this obligation should also include, where applicable, the sanctions according to Article 11(9). 1

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ECJ, Paoletti et al., C-218/15, EU:C:2016:748. Compare Article 9 of the Commission Proposal, COM(2010) 378, p. 23. 71 See Klaus, Die ICT-Richtlinie, p. 1, 7. 70

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Art. 11

Chp. 16

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. 2. The application for an intra-corporate transferee permit shall be submitted when the third-country national is residing outside the territory of the Member State to which admission is sought. 3. The application for an intra-corporate transferee permit shall be submitted to the authorities of the Member State where the first stay takes place. Where the first stay is not the longest, the application shall be submitted to the authorities of the Member State where the longest overall stay is to take place during the transfer. 4. Member States shall designate the authorities competent to receive the application and to issue the intra-corporate transferee permit or the permit for long-term mobility. 5. The applicant shall be entitled to submit an application in a single application procedure. 6. Simplified procedures relating to the issue of intra-corporate transferee permits, permits for long-term mobility, permits granted to family members of an intra-corporate transferee, and visas may be made available to entities or to undertakings or groups of undertakings that have been recognised for that purpose by Member States in accordance with their national law or administrative practice. Recognition shall be regularly reassessed. 7. The simplified procedures provided for in paragraph 6 shall at least include: (a) exempting the applicant from presenting some of the evidence referred to in Article 5 or in point (a) of Article 22(2); (b) a fast-track admission procedure allowing intra-corporate transferee permits and permits for long-term mobility to be issued within a shorter time than specified in Article 15(1) or in point (b) of Article 22(2); and/or (c) facilitated and/or accelerated procedures in relation to the issue of the requisite visas. 8. Entities or undertakings or groups of undertakings which have been recognised in accordance with paragraph 6 shall notify to the relevant authority any modification affecting the conditions for recognition without delay and, in any event, within 30 days. 9. Member States shall provide for appropriate sanctions, including revocation of recognition, in the event of failure to notify the relevant authority. Content I. General application procedures (Article 11(1) to (5))............................ II. Facultative simplified procedures (Article 11(6) to (9)) ........................

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Chp. 16 Art. 12

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I. General application procedures (Article 11(1) to (5)) Concerning the procedure generally applicable to applications for permits under this Directive, this article determines by whom (Article 11(1)), from where (Article 11(2))72 and to which authority (Article 11(4)) of which Member State (Article 11(3)) such applications have to be submitted. 2 In particular, Article 11(3) is of crucial importance to prevent circumvention of a Member State’s admission conditions by intra-EU mobility. It results from the provision that ICTs may start their transfer in a Second Member State, but only if an ICT permit 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). 1

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. 72 With a view to Articles 2(1) and 3(b), Article 11(2) should in fact read ‘when the third-country national is residing outside the territory of the Member States’, see above Article 2 MN 3. For applications for mobile ICT permits, see Article 22(2)(c) and (e).

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Art. 13

Chp. 16

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. With a maximum duration73 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. Applications that do not respect the maximum duration are to be rejected (Article 7 (1)(d)). Due to the temporary nature of the stay, the Long-Term Residents Directive 2003/109/EC does not apply to ICTs.74 However, the temporary nature is not absolute: Firstly, ICTs may stay in (Article 12(1)) or apply for immediate re-entry to the territory of the same Member State after the end of their transfer on the basis of a different residence permit.75 In general, ICTs should have good chances to qualify for a Blue Card under Directive 2009/50/EC. Secondly, ICTs are not prevented from immediately applying for an intra-corporate transfer in another Member State.76 Thirdly, having regard to the ECJ in Payir and Article 4(1)(a), the temporary character is considerably diminished for Turkish ICTs who may stay on in the EU on the basis of Article 6(1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association since ‘the reasons for which [a Turkish national] was first granted the right to enter that territory or any temporal limitations attached to his right to work’ cannot be invoked against an application for another work permit.77 The provision’s significance was enhanced during the negotiations when it was made an independent article and the waiting period (Article 12(2)) was added.78 It remains astounding that the waiting period is limited to the rather short period of up to six months and, moreover, that it is of facultative nature only, since it is a necessary complement to the maximum duration of Article 12(1). Without it, ICTs can simply leave the EU and immediately apply again, making their stay de facto permanent. This would contravene the temporary nature of the intra-corporate transfer and enable misuse, e. g. by permanently replacing a proper job by an 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 73 In case of several consecutively issued ICT permits, the durations of the permits are to be cumulated (Recital 17). 74 See Articles 3(2)(e) and 4(2) Long-Term Residents Directive 2003/109/EC. 75 Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 100. 76 Cf. Lutz, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 24. 77 ECJ, Payir, C-294/06, EU:C:2008:36, para 43. 78 Compare the original Article 16(3) of the Commission Proposal, COM(2010) 378, p. 28.

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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)) .................................

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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

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Art. 15

Chp. 16

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 1 ensuring that the conditions for admission are fulfilled during the whole stay of the third-country national. If this is not the case (any more), the Member States may (or, with a view to the significance of the admission criteria, rather should) withdraw or refuse to renew an ICT permit (see above Article 8 MN 8). As the obligation to notify modifications is important for fighting misuse of the 2 Directive, it is to be interpreted rather extensively in case of doubt. Furthermore, given the provision’s significance, it would seem only reasonable if 3 Member States provided for sanctions on the basis of Article 9(3) in the event of failure to notify the relevant authorities, all the more since Article 11(9) explicitly provides for sanctions in a comparable situation.

Article 15 Procedural safeguards 1. The competent authorities of the Member State concerned shall adopt a decision on the application for an intra-corporate transferee permit or a renewal of it and notify the decision to the applicant in writing, in accordance with the notification procedures under national law, as soon as possible but not later than 90 days from the date on which the complete application was submitted. 2. Where the information or documentation supplied in support of the application is incomplete, the competent authorities shall notify the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. The period referred to in paragraph 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. Lörges

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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. 1

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Article 15 provides for the usual79 procedural specifications which mainly serve as safeguards for the applicant: the time frame (modified in case of an incomplete application), the form and the addressees of the decision and of its reasons in case that it is negative, and the requirement that any negative decision may be legally challenged. It applies accordingly to applications by family members (Article 19(4)). Although the Directive differentiates between visa and ICT permits (see Article 5(1)(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).80 Article 15(3) obliges the Member States authorities to give reasons for a negative decision in writing. With regard to Article 15(4), the essential considerations for a negative decision should be stated in a detailed manner unless exceptional circumstances such as public security matters arise. However, neither from this Directive nor from EU data protection law follows the right to be informed about the entire administrative file or have access to the file itself.81 Even though the Directive is silent about it and regardless of national procedural law in question, the addressee of a negative decision has a right to be heard before the decision is taken.82 Changes during the negotiations concerned in particular a considerable prolongation of the maximum processing time (Article 15(1)) and the addition of Article 15(5) and (6) as proper provisions on the renewal of a permit.83 Apart from the latter, however, in general the requirements and the procedure for renewal are identical to those for the initial application for admission (see e. g. Article 15(3) and (4)).

Article 16 Fees Member States may require the payment of fees for the handling of applications in accordance with this Directive. The level of such fees shall not be disproportionate or excessive. 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 1

79 See e. g. Article 11 Blue Card Directive 2009/50/EC and Article 18 Seasonal Workers Directive 2014/ 36/EU. 80 See Klaus, Die ICT-Richtlinie, p. 1, 5. 81 Cf. ECJ, Y.S., C-141/12, EU:C:2014:2081, paras 46–48, 50–60. 82 See ECJ, Bensada Benallal, C-161/15, EU:C:2016:175, para 33. 83 See for an overview Council doc. 6667/13 of 22 February 2013, p. 75–80.

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Art. 18

Chp. 16

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.84

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 1 indispensable for executing the intra-corporate transfer. In second Member States, the exercise of these rights may be subject to additional requirements (see Articles 20 to 23). The ICT’s right to work (Article 17(c)) is limited, formally, by the respective 2 authorisation and, substantively, by the essential objective of the transfer. However, and despite the use of the term ‘host entity’, the ICT is generally not confined to work only in ‘the entity to which the intra-corporate transferee is transferred’ (see the definition of ‘host entity’ in Article 3(d)). In fact, he or she may exercise the employment in ‘any’ entity belonging to the undertaking or to the group of undertakings in the respective Member State (see Article 21(1) and above Article 3 MN 6) as well as, in accordance with national law, at the site of clients.85

Article 18 Right to equal treatment 1. Whatever the law applicable to the employment relationship, and without prejudice to point (b) of Article 5(4), intra-corporate transferees admitted under this Directive shall enjoy at least equal treatment with persons covered by Directive 96/71/ EC with regard to the terms and conditions of employment in accordance with Article 3 of Directive 96/71/EC in the Member State where the work is carried out. 2. Intra-corporate transferees shall enjoy equal treatment with nationals of the Member State where the work is carried out as regards: 84 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. 85 See Recital 36 as well as Lutz, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 25.

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Chp. 16 Art. 18

Intra-Corporate Transfer Directive 2014/66/EU

(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 intra-corporate transferees who have been authorised to reside and work in the territory of a Member State for a period not exceeding nine months. 4. This Article shall be without prejudice to the right of the Member State to withdraw or to refuse to renew the permit in accordance with Article 8. Content mn. I. General remarks and drafting history........................................................ 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 to the right of the Member State to withdraw or to refuse to renew the ICT permit (Article 18(4)) .................................. 11

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Art. 18

Chp. 16

I. General remarks and drafting history Article 18 determines in which areas and at what levels ICTs have a right to equal treatment.86 It follows from the extensive display of rights and the explicit references to other legal instruments that it is an exclusive provision at EU level.87 At the same time, Article 18 is a minimum standard provision (see Article 4(2)): at national level, Member States may provide for higher standards with regard to terms and conditions of employment (see Article 18(1): ‘at least’) and grant equal treatment with nationals with regard to more areas than those listed in Article 18(2). Article 18 establishes individual rights for ICTs88 and corresponding duties for Member States as well as, with regard to the working conditions, for private employers. The provision has to be transposed in a way that ICTs may enforce their rights in court.89 As this enforcement might be hampered by the fact that the ICT’s employer is established in a third country, the examination of the working conditions during the admission procedure (Article 5(4)) is of crucial importance in order to effectively guarantee these rights. The provision was the subject of intensive discussions during the negotiations.90 In particular, the Parliament demanded general equal treatment with nationals of the Member State where the ICT is transferred to (hence also with respect to the working conditions), but the differing positions of the Commission and the Council led to the compromise contained in Article 18(1) and Article 5(4).91 Moreover, the exclusion of family benefits from the right of equal treatment was controversial until the end of the negotiations between members of the Council (demanding a complete exclusion) and the Parliament (fully opposed to such option), resulting in the compromise of Article 18(3). Some argue that the equal treatment clauses of EU labour migration directives such as this Directive violate international and European human rights law because they do not provide for equal treatment with nationals of the host member state on the whole.92 However, this argument is not supported here since there are, at least regarding this Directive, sufficient and reasonable grounds for the differentiated equal treatment regime (see below MN 5, 9).

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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 5 terms of Directive 96/71/EC,93 Article 18(1) guarantees them the right to terms and 86

As to the question which country’s employment law is applicable, see Article 3 MN 4 footnote 29. For a critical, in-depth analysis of Article 18 and its relation to other legal instruments see Verschueren, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 44 et seq. 88 However, the right to equal treatment does not convey a right to entry and stay, see Brinkmann, in Beichel-Benedetti/Janda (eds), Hohenheimer Horizonte, p. 113. 89 See Bayreuther, Arbeitsrecht im Richtlinienvorschlag, p. 405, 406. 90 For a detailed account of the negotiations, see Töttös, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 10–13. 91 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). 92 See e.g. Friðriksdóttir, What Happened to Equality? The Construction of the Right to Equal Treatment of Third-Country Nationals in European Union Law on Labour Migration (Brill/Nijhoff, 2017), p. 324–327. 93 Compare in particular Article 1(3)(b) Posted Workers Directive 96/71/EC. 87

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Chp. 16 Art. 18

Intra-Corporate Transfer Directive 2014/66/EU

conditions of employment like they apply to posted workers according to Article 3 Posted Workers Directive 96/71/EC. This means that, as a minimum standard, the host Member State’s national law usually applies to ICTs only with regard to the core working conditions.94 The ICTs’ right is complemented by the obligations of the Member States provided for in Article 5(4)(a). 6 With regard to remuneration, Article 5(4)(b) obliges Member States to ensure equal treatment even with nationals of the host Member State during the entire transfer. Thus, ICTs have to be granted ‘the real wage’ that nationals of the host Member State receive for comparable positions, as opposed to the mere minimum wage applicable in accordance with Directive 96/71/EC.95 Since Article 18(1) does not contain a corresponding individual right, however, Member States’ transposition may provide for public enforcement measures only.

III. Equal treatment with nationals of the host Member State (Article 18(2) and (3)) Article 18(2) lists the areas where ICTs have the right to equal treatment with the nationals of the respective Member State. While the equal treatment clauses with regard to the freedom of association and affiliation and the recognition of professional qualifications (see Recital 22) are in line with other migration directives,96 the provisions regarding the payment of statutory pensions97 and the access to goods and services98 were adapted specifically for this Directive. 8 The right to have access to social security was limited during the negotiations, against the position of the Parliament.99 Instead of the provisions in national law regarding the branches of social security defined in Article 3 of Social Security Coordination Regulation (EC) No 883/2004, now the law of the country of origin may widely apply, namely when the national law of the Member State where the work is carried out provides for this or by virtue of any bilateral agreement (see Article 18(2)(c) and Recital 38). 8a Where the law of the country of origin does not apply, access to social security in the first and second Member State(s) should, in general, be open to ICTs without any problem, since intra-corporate transfers covered by this Directive, including those of trainee ICTs, involve gainful employment. However, as the ICT Directive does not limit the Member States’ competence to design their social security system (see Recital 38), any specific social security benefit may only be claimed if the conditions applicable in the respective national law a met.100 7

94 See Brinkmann, in Beichel-Benedetti/Janda (eds), Hohenheimer Horizonte, p. 108, as well as Verschueren, Employment and Social Security Rights, p. 391, both specifying the relevant working conditions; a critical view on this is taken by Costello/Freedland, ‘Seasonal Workers and Intra-Corporate Transferees in EU Law: Capital’s Handmaidens?’, in: Howe/Owens (eds), Temporary Labour Migration in the Global Era the Regulatory Challenges (Hart, 2016), p. 62–63. 95 Verschueren, Employment and Social Security Rights, p. 392. 96 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. 97 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. 98 Procedures for obtaining housing and any services afforded by public employment offices were excluded from this right. 99 See for an overview Council doc. 6667/13 of 22 February 2013, p. 83–84. 100 See Janda, in Wollenschläger (ed), Enzyklopädie Europarecht, Band X, § 25 paras 140–141.

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Art. 18

Chp. 16

The criteria to establish if a benefit is a social security benefit in the sense of 8b Article 3 of Social Security Coordination Regulation (EC) No 883/2004 were set out by the ECJ in Martinez Silva.101 Obviously this depends neither on the benefit’s classification by national legislation nor on the method by which a benefit is financed, but rather on the benefit’s purposes and the conditions on which it is granted. In particular, the benefit needs to be granted to recipients ‘without any individual and discretionary assessment of personal needs’. Benefits qualify as family benefits if they are granted automatically to families where ‘objective, legally defined criteria’ relating in particular ‘to their size, income and capital resources’ are met and ‘if they are intended to meet family expenses’.102 Article 18(3) allows Member States to grant equal treatment with regard to family 9 benefits only to ICTs that have been admitted for more than nine months. This derogation from the general rule of equal treatment may be relied on ‘only if the authorities in the Member State concerned responsible for the implementation of that directive have stated clearly that they intended to rely on them’.103 The Council enforced the option since for many Member States such benefits are meant to support a positive demographic development, so that it would seem contradictive to grant them to a thirdcountry national staying in the Member State for a few months only (see Recital 38). For ICTs with an authorisation valid for more than nine months, no restrictions may be applied, i.e. the right to equal treatment with regard to family benefits commences on the first day of the transfer. Since Article 1 of Regulation (EU) No 1231/2010 requires that a third country national 10 is ‘in a situation which is not confined in all respects within a single Member State’, it applies accordingly only in the event of intra-EU mobility (see Recital 39). Where a mobile ICT’s social benefit depends on insurance periods (e.g. old-age pension), periods completed in the territory of another Member State may be taken into account even if they were completed before this Directive entered into force.104 However, EU regulations on social security (including child allowance) do not apply in case that the intra-corporate transfer takes place only in one Member State, even if the ICT’s children are EU citizens.105

IV. Without prejudice to the right of the Member State to withdraw or to refuse to renew the 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.106

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ECJ, Martinez Silva, C-449/16, EU:C:2017:485, para 20. Ibid., para 22. 103 Ibid., para 29; see also Verschueren, Employment and Social Security Rights, p. 395–396, who argues that human rights law obliges Member States to implement the possible exceptions to equal treatment ‘only when it is duly justified’. 104 Cf. ECJ, Wieland & Rothwangl, C-465/14, EU:C:2016:820, para 52. 105 Cf. ECJ, Xhymshiti, C-247/09, EU:C:2010:698, paras 40–45. 106 See also Article 14(3) Blue Card Directive 2009/50/EC and, as to that provision’s background, Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift für Ausländerrecht (2009), p. 219, 226–227, as well as ECJ, Gattoussi, C-97/05, EU:C:2006:780, paras 38–43. 102

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Chp. 16 Art. 19

Intra-Corporate Transfer Directive 2014/66/EU

Article 19 Family members 1. Directive 2003/86/EC shall apply in the first Member State and in second Member States which allow the intra-corporate transferee to stay and work on their territory in accordance with Article 22 of this Directive, subject to the derogations laid down in this Article. 2. By way of derogation from Article 3(1) and Article 8 of Directive 2003/86/EC, family reunification in the Member States shall not be made dependent on the requirement that the holder of the permit issued by those Member States on the basis of this Directive has reasonable prospects of obtaining the right of permanent residence and has a minimum period of residence. 3. By way of derogation from the third 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 intra-corporate transferee who have been granted family reunification shall be entitled to have access to employment and self-employed activity in the territory of the Member State which issued the family member residence permit. Content I. General remarks .............................................................................................. II. Derogations from the Family Reunification Directive 2003/86/EC (Article 19(2) to (6)).......................................................................................

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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)), 1036

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Art. 20

Chp. 16

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 obstacles107 and significantly enhances the attractiveness of the rules governing intracorporate transfers (see Recital 40). According to Article 4(2), Member States are free to adopt or retain even more 2 favourable provisions, e. g. to privilege family members of an ICT also in the framework of short-term mobility (Article 21). As Article 4(2) also lists the definition of ‘family members’ (Article 3(h)), Member 3 States may even extend the group of beneficiaries of Article 19 (see in this context above Article 4 MN 4). In principle, however, only third-country nationals belonging to the ICT’s nuclear family, as specified in Article 4(1) Family Reunification Directive 2003/86/EC, are covered.

II. Derogations from the Family Reunification Directive 2003/86/EC (Article 19(2) to (6)) The derogations provided for by Article 19(2) to (6) correspond to a large extent to 4 those applicable to family members of Blue Card holders.108 Article 19(4), however, provides for an even more accelerated109 application pro- 5 cedure which is widely synchronised with the application procedure of the ICT. In particular, the applicable safeguards contained in Article 15(2), (3) and the second sentence of Article 15(4) contain more specific procedural rules than the Family Reunification Directive 2003/86/EC. As Article 14(1) Family Reunification Directive 2003/86/EC, which entitles the family 6 members only ‘in the same way as the sponsor’, is not derogated from in Article 19(6), the labour market access for family members keeps on being accessorial to the right of labour market access of the ICT himself.110 In particular, Member States might apply the same measures based on Article 6 as applicable to the ICT.

CHAPTER V INTRA-EU MOBILITY Article 20 Mobility Third-country nationals who 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.

107 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. 108 See for details on the equivalent derogations above Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC, Article 15 MN 2–3 and 5. 109 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. 110 See Bornemann/Klarmann, Family Reunification Directive 2003/86/EC, Article 14 MN 6.

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Chp. 16 Art. 21 1

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Article 20 is the basic provision of the Directive’s intra-EU mobility scheme. According to this scheme, ICTs may move to Member States other than the one that issued their ICT permit for short periods of time under few conditions only (short-term mobility, Article 21). For longer stays, those ‘second’ Member States (see Article 3(n)) may provide for an application procedure (long-term mobility, Article 22). The scheme is as unique and innovative as it is complex and problematic,111 since it enables ICTs to move around and work in the EU Member States autonomously from the well-known and well-proven Schengen acquis,112 mainly on the basis of the 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. 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)). 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)). 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.113 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.

111 See rather too exuberant Klaus, Die ICT-Richtlinie, p. 1, 7. As to the scheme’s genesis, see Töttös, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 13–16. 112 According to a statement by the Council, the Parliament and the Commission, it is to be considered as lex specialis, see Council doc. 9346/14 ADD 1 of 5 May 2014, p. 1. 113 See e. g. Peers, Legislative Update, p. 219, 244–245.

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Art. 21

Chp. 16

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. 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 intracorporate 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 intra-corporate 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 Lörges

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Chp. 16 Art. 21

Intra-Corporate Transfer Directive 2014/66/EU

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. Content 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).114

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Where Member States abstain from setting up the notification procedure, ICTs might be required to provide evidence only in the cases mentioned in Article 23(1) (see also Recital 34), and they may only be rejected if they cannot provide such evidence or do not fulfil the general requirements (see Article 20 and Article 21(9), above Article 20 MN 4).

III. The optional notification procedure (Article 21(2) to (7)) As Member States may choose to provide for a notification procedure in general, they might as well require it only for ICTs that have been admitted by certain first 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). 4 The notification has to take place as soon as the mobility to the second Member State is seriously planned (Article 21(2)). If the host entity does not comply with this requirement (e. g. by notifying considerably too late), the second Member State may end the intra-corporate transfer according to Article 23(4)(a). 3

114 When transposing the Directive, a clear majority of the Member States opted for the notification procedure for short-term mobility, see Lutz, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 26–27.

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Art. 22

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The documents and information listed in Article 21(3) reflect partly those required for the admission procedure according to Article 5(1). Despite the different wording compared to Article 22(2)(a), Member States might here as well choose to require some or all of the documents or information: since they even have the possibility not to require any notification at all, they may choose to require only part of the evidence. It is a particular feature of this mobility scheme that, even if a Member State has opted for the notification procedure, an 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. Indeed, the scheme’s ratio is to set up a system as flexible as possible while taking into account the Member States security interests. In these cases, however, the second Member State did have enough time to examine if there is a reason to object to mobility. Member States that have opted for the notification procedure may object to the ICT’s mobility, but only within 20 days from having received the notification. In addition to the grounds listed in Article 21(6), Member States might apply volumes of admission (see above Article 20 MN 5), which, however, seems neither practicable nor reasonable in the framework of short-term mobility.

Article 22 Long-term mobility 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; Lörges

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(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 intra-corporate transferee concerned in the territory of the second Member State. The second Member State may require those documents and that information to be presented in an official language of that Member State; (b) the second Member State shall take a decision on the application for long-term mobility and notify the decision to the applicant in writing as soon as possible but not later than 90 days from the date on which the application and the documents provided for in point (a) were submitted to the competent authorities of the second Member State; (c) the intra-corporate transferee shall not be required to leave the territories of the Member States in order to submit the application and shall not be subject to a visa requirement; (d) the intra-corporate transferee shall be allowed to work in the second Member State until a decision on the application for long-term mobility has been taken by the competent authorities, provided that: (i) the time period referred to in Article 21(1) and the period of validity of the intra-corporate transferee permit issued by the first Member State has not expired; and (ii) if the second Member State so requires, the complete application has been submitted to the second Member State at least 20 days before the long-term mobility of the intra-corporate transferee starts; (e) an application for long-term mobility may not be submitted at the same time as a notification for short-term mobility. Where the need for long-term mobility arises after the short-term mobility of the intra-corporate transferee has started, the second Member State may request that the application for long-term mobility be submitted at least 20 days before the short-term mobility ends. 3. Member States may reject an application for long-term mobility where: (a) the conditions set out in point (a) of paragraph 2 of this Article are not complied with or the criteria set out in Article 5(4), Article 5(5) or Article 5(8) are not complied with; (b) one of the grounds covered by point (b) or (d) of Article 7(1) or by Article 7(2), (3) or (4) applies; or (c) the intra-corporate transferee permit expires during the procedure. 4. Where the second Member State takes a positive decision on the application for long-term mobility as referred to in paragraph 2, the intra-corporate transferee shall be issued with a permit for long-term mobility allowing the intra-corporate transferee to stay and work in its territory. This permit shall be issued using the uniform format laid down in Regulation (EC) No 1030/2002. Under the heading ‘type of permit’, in accordance with point (a)6.4 of the Annex to Regulation (EC) No 1030/ 2002, the Member States shall enter: ‘mobile ICT’. Member States may also add an indication in their official language or languages. Member States may indicate additional information relating to the employment activity during the long-term mobility of the intra-corporate transferee in paper format, and/or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and point (a)16 of the Annex thereto. 5. Renewal of a permit for long-term mobility is without prejudice to Article 11(3). 1042

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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)) As for short-term mobility, the Directive provides for different (but even more diverging) possibilities also for ICTs’ mobility of more than 90 days to the same (second) Member State (long-term mobility):115 The Member States may opt for a very open and flexible mobility regime by also 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 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 control over third-country nationals who come to their territory and work there for a period of more than 90 days may establish a specific application procedure according to Articles 22(2) to (7) (see Article 22(1)(b)).

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II. The optional application procedure (Article 22(2) to (7)) The documents and information which the Member States may require the 5 applicant116 to provide (Article 22(2)(a)) reflect partly the evidence requested for the admission procedure according to Article 5(1). Although not listed in Article 22(2)(a), the second Member State may require the transmission of the ICT permit and the valid travel document, since these documents are general requirements for making use of mobility (see Article 20 MN4). Article 22(2)(b) to (e) and (7) provide for a number of procedural guarantees for an 6 ICT applying for long-term mobility. In particular, the decision on the application has not only to be taken but also notified to the applicant in writing at the latest 90 days after the application and the required documents were submitted to the competent authorities of the Member States (Article 22(2)(b)). Article 22(2)(d) is evidence of the mobility scheme’s particular flexibility: in general, 7 mobile ICTs may start working in the second Member State before the decision on the application has been taken, immediately after having submitted the application or, if

115 When transposing the Directive, almost all Member States opted for the application procedure for long-term mobility, with the others requiring at least a notification procedure, see Lutz, in Minderhoud/ de Lange (eds), The Intra Corporate Transferee Directive, p. 26–27. 116 See Article 11(1).

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the Member State wants to retain a certain control, after a maximum time period of 20 days after having submitted the required documents. Article 22(2)(e) was introduced to clarify the relationship between short-term and long-term mobility. It means to prevent circumvention of the less flexible application procedure of Article 22 and avoid possible double bureaucratic costs. Another safeguard against circumvention is Article 22(5) which clarifies that the (generally possible) renewal of a mobile 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).

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.

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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; (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 lex 1 specialis to the Schengen acquis as far as the entry and stay as a mobile ICT in a second Member State is concerned, with all other provisions of the Schengen acquis continuing to apply (see Recital 26). ICTs that have been admitted by a Member State not applying the Schengen acquis in full are allowed to move to any participating Member State without a Schengen visa and may therefore be required to provide additional evidence when crossing an external border (Article 23(1)). Furthermore, the first Member State may not have been in the position to consult the Schengen information system before admitting the ICT, resulting in the obligation contained in Article 23(6) (see also Recital 34). Article 23(2) and (3) contain explicit information requirements in order to ensure 2 that the second Member State is informed about any changes that might lead to an end of mobility. Article 23(4) and (5) describe in detail the conditions and procedures according to 3 which a second Member State may terminate an ICT’s mobility to its territory. They deviate from Article 6(2) Return Directive 2008/115/EC: on request of the second Member State, the ICT is obliged to go back to the first Member State, and the latter

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has to take him or her back even if the ICT permit issued by the first Member State is not valid any more. This stresses the responsibility of the first Member State to conduct a thorough admission procedure when the third-country national applies for an intracorporate transfer. 3a However, as the wording of Article 23(4) unambiguously shows (‘may request’), the second Member State is not obliged to end the ICT’s mobility. This is in line with the Schengen acquis, since the ECJ stated in Zurita García that neither the Schengen Borders Code nor the Convention implementing the Schengen Agreement compels a Member State to expel a third-country national who is unlawfully present on its territory because he does not fulfil, or no longer fulfils, the conditions to stay there.117

II. Sanctions (Article 23(7)) 4

Article 23(7) lists the situations in which sanctions may be imposed against the host entity for infringements in the context of mobility. It is meant to ensure that the host entities comply with their obligations to inform (see 23(7)(a) and (d)) or have a proper interest to avoid misuse of the mobility rules (see Article 23(7)(b), (c) and (e)). The sanctions have to be effective, proportionate and dissuasive (see Article 9(1) and (2)).

CHAPTER VI FINAL PROVISIONS Article 24 Statistics 1. Member States shall communicate to the Commission statistics on the number of intra-corporate transferee permits and permits for long-term mobility issued for the first time, and, where applicable, the notifications received 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 117

See ECJ, Zurita García, C-261/08 & C-348/08, EU:C:2009:648, paras 48–66. 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). (15)

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application of this Directive in the Member States and shall propose any amendments necessary. The report shall focus in particular on the assessment of the proper functioning of the intra-EU mobility scheme and on possible misuses of such a scheme as well as its interaction with the Schengen acquis. The Commission shall in particular assess the practical application of Articles 20, 21, 22, 23 and 26.

Article 26 Cooperation between contact points 1. Member 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. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 28 Entry into force This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Article 29 Addressees This Directive is addressed to the Member States in accordance with the Treaties.

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Chapter 17. Students and Researchers Directive (EU) 2016/801 Select Bibliography: Abarca Junco/Gómez-Urrutia, ‘El régimen jurídico de los estudiantes e investigadores extranjeros en España’, Revista Electrónica de Estudios Internationales 17 (2009), p. 1–40; Auer, ‘Voraussetzungen eines Aufenthaltsrechts aus Art. 6 ARB 1.80 für türkische Studierende mit Nebenbeschäftigung im Rahmen des § 16 III AufenthG’, Zeitschrift für Ausländerrecht (2008), p. 223–227; Bertozzi, ‘Integration: An Ever-closer Challenge’, CEPS Working Document No 258 (2007); Hailbronner, Ausländerrecht Kommentar (C.H. Beck); Hoogenboom, ‘Turkish Nationals and the Right to Study in the European Union: A Progressive Interpretation’, EJML 15 (2013), p. 387–412; International Organisation for Migration/European Parliament, Comparative Study of the Laws in the 27 EU Member States for Legal Migration (2008); Hofmann, Implementation and Impact of the Researcher‘s Directive (Directive 2005/71/EC) (ICMPD, 2012); Huber’ ‘Das Gesetz zur Umsetzung aufenthaltsrechtlicher Richtlinien der EU zur Arbeitsmigration vom 12.5.2017’, Neue Zeitschrift für Verwaltungsrecht (2017), p. 1160–1167; Kluth, ‘Der Aufenthalt von Forschern nach § 20 AufenthG’, Zeitschrift für Ausländerrecht (2008), p. 234; Kocharov, ‘What lntra-Community mobility for third-country workers?’, EL Rev. 33 (2008), p. 913–926; Muzak, ‘Ein Fremdenrecht für Wissenschaftler und Auslandsstudierende?’, Zeitschrift für Hochschulrecht (2007), p. 67–73; Peers, ‘EC immigration law and EC association agreements: fragmentation or integration?’ EL Rev. 32 (2009), p. 628–638; Peers, ‘Turkish visitors and Turkish students: New rights from the European Court of Justice’, Journal of Immigration Asylum and Nationality Law 23 (2009), p. 197; Peers and others (eds), EU Immigration and Asylum Law; Volume 2: EU Immigration Law, 2nd edn (Martinus Nijhoff, 2012); von Diest, ‘Neue Regelungen zur regulären Migration – das Gesetz zur Umsetzung aufenthaltsrechtlicher Richtlinien der EU zur Arbeitsmigration im Überblick’, Zeitschrift für Ausländerrecht und Ausländerpolitik (2017), p. 251–257; Welte, ‘Assoziationsrecht nach Art 6 I ARB 1/80 bei der Beschäftigung von türkischen Studenten’, Zeitschrift für Ausländerrecht (2010), p. 53; Wiesbrock, ‘Free Movement of Third-Country Nationals in the European Union: The Illusion of lnclusion’ EL Rev. 35 (2010), p. 455–475; Wiesbrock, Legal Migration to the European Union (Immigration and Asylum Law and Policy in Europe) (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.

Directive (EU) 2016/801 of the European Parliament and the council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast) Official Journal L 132, 21.05.2016, p. 21–57 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular points (a) and (b) of Article 79(2) thereof, Having regard to the proposal from the European Commission, After 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), (1)

OJ C 341, 21.11.2013, p. 50. OJ C 114, 15.4.2014, p. 42. (3) Position of the European Parliament at first reading of 25 February 2014 (OJ 2017 C 285/348) and position of the Council at first reading of 10 March 2016 (OJ 2016 C 170/1). (2)

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Whereas: […] 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 a period exceeding 90 days in, the territory of the Member States, and the rights, of third-country nationals, and where applicable their family members, for the purpose of research, studies, training or voluntary service in the European Voluntary Service, and where Member States so decide, pupil exchange schemes or educational projects, voluntary service other than the European Voluntary Service or au pairing; (b) the conditions of entry and residence, and the rights, of researchers, and where applicable their family members, and students, referred to in point (a), in Member States other than the Member State which first grants the third-country national an authorisation on the basis of this Directive. The Students and Researchers Directive (EU) 2016/8011 determines the conditions of 1 admission of third-country nationals for the purposes of research, training or voluntary service in the European Voluntary Service and, where the Member States so decide, for the purpose of pupil exchange schemes or other educational projects, voluntary service other than the European Voluntary Service or au pairing. The Directive merges and recasts the Students Directive 2004/114/EC2 and the Researchers Directive 2005/71/EC3 whereby partially extending the scope (other educational projects, au pairing). While the Students Directive 2004/114/EC included provisions concerning unremunerated training, the Students and Researchers Directive (EU) 2016/801 provides for the admission of trainees (see Article 3(5)), thereby restricting the admission conditions (see Article 13) in order to prevent abuses concerning unpaid employment. Whereas the former Students Directive 2004/114/EC as well as the former Researchers Directive 2005/71/EC concentrated on the rules of admission, the Students and Researchers Directive (EU) 2016/801 also provides for common standards concerning the exercise of certain rights, e.g. on equal treatment (see Article 22), and the rights of family members (see Article 26). The Directive is structured into eight 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 90 days (Article 1), as shorter stays are captured by the Visa Code Regulation (EC) No 810/20094. Specific groups of persons, e. g. asylum 1 OJ 2016 L 132/21. For the transposition in Germany see von Diest, Neue Regelungen zur regulären Migration, p. 251–255; Huber, Das Gesetz zur Umsetzung aufenthaltsrechtlicher Richtlinien der EU, p. 1160–1163. 2 OJ 2004 L 375/12. 3 OJ 2005 L 289/15. 4 OJ 2009 L 243/1.

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seekers or beneficiaries of international protection, are excluded from the scope (Article 2(2)). The Directive distinguishes six categories of persons according to the purpose of their required admission: researchers, students, school pupils, trainees, volunteers and au pairs. The Member States are obliged to apply the Directive to researchers, students, trainees and volunteers in the European Voluntary Service whereas the application to school pupils, au pairs and volunteers outside the European Voluntary Service is optional (Article 2(1)). Chapter II (Article 5–16) 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 7 determines the general requirements which all applicants have to fulfil whereas the specific conditions for each of the categories are set out in Article 8 and 10 (researchers), 11 (students), 12 (pupils), 13 (trainees), 14 (volunteers) and 16 (au pairs). Article 6 declares, according to Article 79(5) of the TFEU, that volumes of admissions can be determined by the Member States concerning third-country nationals referred to in Article 2(1), with the exception of students, when a Member State considers that they are or will be in an employment relationship. Article 9 and 15 set out rules for special approval procedures concerning research organisations and other institutions (e.g. higher education institutions), Member States may provide for. Chapter III governs the form (Article 17) and the period of validity (Article 18) of residence permits. Article 19 settles the handling of personal information. Chapter IV rules out the specific conditions for the rejection, the renewal and withdrawal of residence permits (Article 20–21). Chapter V (Article 22–26) gives several rights to third-country nationals referred to in Article 2(1). Article 22 demands for their equal treatment under certain conditions. Article 23 entitles researchers to teach and Article 24 students to work. Article 25 stipulates the right for researchers and students to stay for a certain period after the completion of their research or studies in the territory of the Member State in order to seek employment or to set up a business. Chapter VI (Article 27–32) provides for conditions under which the right of mobility of researchers and students within the territory of the EU may be exercised. The organisation of national administrative procedures is set out in Chapter VII (Article 33–36). Chapter VIII (Article 37–43) comprises final provisions.

Article 2 Scope 1. This Directive shall apply to third-country nationals who apply to be admitted or who have been admitted to the territory of a Member State for the purpose of research, studies, training or voluntary service in the European Voluntary Service. Member States may also decide to apply the provisions of this Directive to thirdcountry nationals who apply to be admitted for the purpose of a pupil exchange scheme or educational project, voluntary service other than the European Voluntary Service or au pairing. 2. This Directive shall not apply to third-country nationals: (a) who seek international protection or who are beneficiaries of international protection in accordance with the Directive 2011/95/EU of the European Parliament and of the Council(17) or who are beneficiaries of temporary (17) 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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protection in accordance with the Council Directive 2001/55/EC(18) in a Member State; whose expulsion has been suspended for reasons of fact or of law; who are family members of Union citizens who have exercised their right to free movement within the Union; who enjoy long-term resident status in a Member State in accordance with Council Directive 2003/109/EC(19); who enjoy, together with their family members, and irrespective of their nationality, rights of free movement equivalent to those of citizens of the Union under agreements either between the Union and its Member States and third countries or between the Union and third countries; who come to the Union as trainee employees in the context of an intra-corporate transfer under Directive 2014/66/EU; who are admitted as highly qualified workers in accordance with Council Directive 2009/50/EC(20). Content mn. I. General remarks and drafting history........................................................ 1 II. Scope of application (Article 2(1)).............................................................. 3 III. Exclusions from the scope (Article 2(2))................................................... 4 1. Asylum seekers, persons under international/temporary protection (a)............................................................................................... 4 2. Third-country nationals whose expulsion has been suspended (b) 5 3. Family members of Union citizens (c) .................................................. 6 4. Long-term residents (d) ............................................................................ 7 5. Holders of rights of free movement equivalent to those of Union citizens (e) .................................................................................................... 8 6. Trainee employees under the ICT-Directive (f).................................. 9 7. Highly qualified workers under the Blue Card Directive (g) ........... 10

I. General remarks and drafting history Article 2 limits the personal scope of application of the Directive in several respects. 1 First, Article 2(1) declares the application of the Directive to researchers, students, trainees and volunteers serving in the European Voluntary Service obligatory whereas the application to school pupils, volunteers in other services and au pairs remains in the discretion of each Member State. Second, Article 2(2) excludes certain categories of persons from the scope of the Directive. In the Commission’s original proposal5 of the former Students Directive 2004/114/EC 2 (see above Article 1 MN 1), the application of the Directive to all four mentioned categories (students, pupils, unremunerated trainees and volunteers) was mandatory. This provoked controversial discussions in the Council. Different amendments were (18) 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 L 212, 7.8.2001, p. 12). (19) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ L 16, 23.1.2004, p. 44). (20) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of thirdcountry nationals for the purposes of highly qualified employment (OJ L 155, 18.6.2009, p. 17). 5 Commission Proposal, COM(2002) 548.

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discussed of which one was finally adopted.6 According to a Commission report in 2004,7 ten Member States decided to apply the Directive to all three of the then optional categories (pupils, unremunerated trainees, volunteers), and a further five Member States decided to apply it to one or two of these categories. For the recast, the Commission proposed to add remunerated training and au pairing to the scope, and to declare the Directive’s application mandatory for all its categories.8 The Parliament welcomed this, but the Council rejected it.9 As a compromise, the final deal between the institutions foresaw the new Directive optional for school pupils, au pairs and volunteers other than those participating in the European Voluntary Service.10

II. Scope of application (Article 2(1)) 3

By giving the Directive optional character in regard to school pupils, volunteers in other services than the European Voluntary Service and au pairs, 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.11

III. Exclusions from the scope (Article 2(2)) 1. Asylum seekers, persons under international/temporary protection (a) 4

Article 2(2)(a) excludes persons residing in a Member State as seeking for (asylum seekers) or benefitting from international protection, and persons under temporary protection schemes from the Directive’s scope. Beneficiaries of international protection are persons under refugee status and persons under subsidiary protection status. Not excluded are persons under national forms of protection.

2. Third-country nationals whose expulsion has been suspended (b) 5

Article 2(2)(b) excludes third-country nationals whose expulsion has been suspended. 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 2(2)(a). The exclusion applies irrespective of the reasons for suspension. Therefore, prohibition of refoulement on the grounds of Article 3 ECHR12 is covered by this provision.

3. Family members of Union citizens (c) 6

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 6

Council doc. 6737/04 of 1 March 2004. Commission Report, COM(2011) 587, p. 3. 8 Article 2 Commission recast Proposal, COM(2013) 151. 9 Council doc. 1652/14 of 18 February 2014, p. 43–44. 10 Council doc. 13974/15 of 20 November 2015, p. 21–22. 11 Hailbronner, Ausländerrecht Kommentar, § 16 AufenthG MN 6. 12 ECtHR, Judgment of 7 July 1989, No 14038/88, Soering v. United Kingdom. 7

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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 2(2)(c) is defined in Article 2(2) Free Movement Directive 2004/38/EC.

4. Long-term residents (d) Third-country nationals who enjoy long-term resident status in a Member State are 7 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 LongTerm Residents Directive 2003/109/EC.

5. Holders of rights of free movement equivalent to those of Union citizens (e) Third-country nationals and their family members with free movement rights deriving 8 from agreements either between the Union and its Member States and third countries or between the Union and third countries and equivalent of those of EU citizens are also excluded from the Directive’s scope. This concerns third-country nationals from Member States of the European Economic Area (EEC) as well as Swiss citizens benefitting from free movement rights based on bilateral agreements between the EU and Switzerland.

6. Trainee employees under the ICT-Directive (f) Also excluded are trainee employees under the ICT Directive 2014/66/EU (see for the 9 rules of admission Article 5 of this Directive).

7. Highly qualified workers under the Blue Card Directive (g) Holders of the EU Blue Card are excluded from the Directive’s scope, too. Article 3(2)(e) 10 of the former Students Directive 2004/114/EC instead excluded workers and selfemployed persons under national legislation. Laying down the wide interpretation of the term ‘worker’ by the ECJ capturing a scholarship-financed research period at a German scientific institute (Max-Planck-Gesellschaft) for the purpose of preparing a dissertation, this clause raised concern about the Member States’ power to exclude a wide range of persons unilaterally from the coverage of the Directive. The same problem stroke the distinction between worker and unremunerated trainee. Under the new Directive, these activities are integrated into its scope, as can also be construed from Article 6, which refers to the Member States’ right to define quotas for the admission of labour migrants (Article 79(5) of the TFEU). The exclusion in Article 2(2)(g) mainly addresses researchers overcoming the salary threshold laid down in Article 5(3), (5) of the Blue Card Directive 2009/50/EC (see also interpretation Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC, Article 5 MN 10).

Article 3 Definitions For the purposes of this Directive, the following definitions apply: (1) ‘third-country national’ means a person who is not a citizen of the Union within the meaning of Article 20(1) TFEU; (2) ‘researcher’ means a third-country national who holds a doctoral degree or an appropriate higher education qualification which gives that third-country Lehner/Gies

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(4)

(5)

(6) (7)

(8)

(9)

(10) (11)

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national access to doctoral programmes, who is selected by a research organisation and admitted to the territory of a Member State for carrying out a research activity for which such qualification is normally required; ‘student’ means a third-country national who has been accepted by a higher education institution and is admitted to the territory of a Member State to pursue as a main activity a full-time course of study leading to a higher education qualification recognised by that Member State, including diplomas, certificates or doctoral degrees in a higher education institution, which may cover a preparatory course prior to such education, in accordance with national law, or compulsory training; ‘school pupil’ means a third-country national who is admitted to the territory of a Member State to follow a recognised, state or regional programme of secondary education equivalent to level 2 or 3 of the International Standard Classification of Education, in the context of a pupil exchange scheme or educational project operated by an education establishment in accordance with national law or administrative practice; ‘trainee’ means a third-country national who holds a degree of higher education or is pursuing a course of study in a third country that leads to a higher education degree and who is admitted to the territory of a Member State for a training programme for the purpose of gaining knowledge, practice and experience in a professional environment; ‘volunteer’ means a third-country national who is admitted to the territory of a Member State to participate in a voluntary service scheme; ‘voluntary service scheme’ means a programme of practical solidarity activities, based on a scheme recognised as such by the Member State concerned or the Union, pursuing objectives of general interest for a non-profit cause, in which the activities are not remunerated, except for reimbursement of expenses and/ or pocket money; ‘au pair’ means a third-country national who is admitted to the territory of a Member State to be temporarily received by a family in order to improve his or her linguistic skills and knowledge of the Member State concerned in exchange for light housework and taking care of children; ‘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; ‘research organisation’ means any public or private organisation which conducts research; ‘education establishment’ means a public or private secondary education establishment recognised by the Member State concerned or whose courses of study are recognised in accordance with national law or administrative practice on the basis of transparent criteria and which participates in a pupil exchange scheme or educational project for the purposes set out in this Directive; ‘educational project’ means a set of educational actions developed by a Member State’s education establishment in cooperation with similar establishments in a third country, with the purpose of sharing cultures and knowledge; ‘higher education institution’ means any type of higher education institution recognised or considered as such in accordance with national law which, in accordance with national law or practice, offers recognised higher education degrees or other recognised tertiary level qualifications, whatever such estabLehner/Gies

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(14)

(15)

(16)

(17) (18) (19) (20)

(21) (22)

(23)

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lishments may be called, or any institution which, in accordance with national law or practice, offers vocational education or training at tertiary level; ‘host entity’ means a research organisation, a higher education institution, an education establishment, an organisation responsible for a voluntary service scheme or an entity hosting trainees to which the third-country national is assigned for the purposes of this Directive and which is located in the territory of the Member State concerned, irrespective of its legal form, in accordance with national law; ‘host family’ means a family temporarily receiving an au pair and sharing its daily family life in the territory of a Member State on the basis of an agreement concluded between that family and the au pair; ‘employment’ means the exercise of activities covering any form of labour or work regulated under national law or applicable collective agreements or in accordance with established practice for or under the direction or supervision of an employer; ‘employer’ means any natural person or any legal entity, for or under the direction or supervision of whom or which the employment is undertaken; ‘first Member State’ means the Member State which first issues a third-country national an authorisation on the basis of this Directive; ‘second Member State’ means any Member State other than the first Member State; ‘Union or multilateral programmes that comprise mobility measures’ means programmes funded by the Union or by Member States promoting mobility of third-country nationals in the Union or in the Member States participating in the respective programmes; ‘authorisation’ means a residence permit or, if provided for in national law, a long-stay visa issued for the purposes of this Directive; ‘residence permit’ means an authorisation issued using the format laid down in Regulation (EC) No 1030/2002 entitling its holder to stay legally on the territory of a Member State; ‘long-stay visa’ means an authorisation issued by a Member State as provided for in Article 18 of the Schengen Convention(21) or issued in accordance with the national law of Member States not applying the Schengen acquis in full; ‘family members’ means third-country nationals as defined in Article 4(1) of Directive 2003/86/EC. Content mn. I. General remarks .............................................................................................. 1 II. Definitions ........................................................................................................ 2 1. Third-country national (1)....................................................................... 2 2. Researcher (2).............................................................................................. 3 3. Student (3).................................................................................................... 5 a) Accepted by a higher education institution .................................... 6 b) Course of study leading to a higher education qualification ...... 7 c) Full-time course as main activity, worker ....................................... 10 d) Preparatory courses or compulsory training .................................. 12 4. School pupil (4)........................................................................................... 13

(21) 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 L 239, 22.9.2000, p. 19).

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5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

Trainee (5).................................................................................................... Volunteers and voluntary service schemes (6,7) ................................. Au pairs (8).................................................................................................. Research (9) ................................................................................................. Research organisation (10) ....................................................................... Education establishment, educational project (11, 12) ...................... Higher education institution (13) ........................................................... Host entity (14)........................................................................................... Host family (15).......................................................................................... Employment, employer (16, 17) ............................................................. First and second Member State (18, 19) ............................................... Union or multilateral programmes that comprise mobility measures (20) .............................................................................................. 17. Authorisation, residence permit, long-stay visas (21, 22, 23) .......... 18. Family member (24) ..................................................................................

15 18 20 22 25 28 29 31 32 33 34 35 38 41

I. General remarks 1

Article 3 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.

II. Definitions 1. Third-country national (1) 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).13

2. Researcher (2) 3

Draft Article 2 of the former Researchers Directive 2005/71/EC defined a researcher to be a ‘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’.14 The definition was debated intensely and changed a few times in Council,15 some Member States arguing for a much more flexible definition, while others insisting on very high levels of education. The final definition was vague. Only one criterion for the ‘appropriate higher education qualification’ is straight forward: it must give access to doctoral programmes. Article 3(2) of the Students and Researchers Directive (EU) 2016/801 adopts this definition. Upon the recommendation of the Council,16 the definition was broadened by adding ‘that, in addition to holding a degree giving access to doctoral programmes, they can also be holders of a doctoral degree’.17 Hence, post13

Commission Proposal, COM(2002) 548, p. 8. Article 2 Commission Proposal, COM(2004) 178. 15 Council docs. 8838/04 of 30 April 2004, p. 3; 10243/04 of 22 June 2004, p. 3; 11186/04 of 8 July 2004, p. 3; 11547/04 of 26 July 2004, p. 3; 12259/04 of 20 September 2004, p. 3; 12624/04 of 1 October 2004, p. 3; 13135/04 of 11 October 2004, p. 3. 16 Position (EU) of the Council at first reading (OJ 2016 C 170/1). 17 Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 43. 14

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doctoral research is also governed by the Directive. Still, 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 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.18 In the end, no reference at all was included in the text of the Directive and the issue remained – and still remains – unresolved. The second part of the definition concerns the concrete research to be conducted by 4 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 or the doctoral degree 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 3(2), that the researcher has to be ‘selected by a research organisation’, together with Article 10(4)(b) 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 regarding the Researchers Directive 2005/71/EC reveals that more than half of the Member States did not even transpose the definition of a ‘researcher’.19

3. Student (3) The definition of the term ‘student’ is linked to multiple conditions: the person has 5 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 a higher education institution. The term ‘higher education institu- 6 tion’ is defined in Article 3(13) (see below MN 29) and refers to ‘all tertiary institutions’ and specifically also includes vocational education and training. The condition of ‘being accepted’ in the context of the former Students Directive 2004/114/EC was added by the Council to clarify that students 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 Directive.20 From the expression ‘accepted’21 in comparison to the term ‘admitted’ follows that the person does not have to be formally admitted to the establishment. The Commission proposal of the former Students Directive 2004/114/EC states that a final enrolment is not necessary as enrolment documents are often handed 18 Council docs. 10243/04 of 22 June 2004, p. 3; 11547/04 of 26 July 2004, p. 3; 12259/04 of 20 September 2004, p. 3. 19 Commission Report, COM(2011) 901, p. 2–3. 20 Council doc. 15143/03 of 28 November 2003, p. 5; Council doc. 6681/04 of 25 February 2004, p. 2. 21 German ‘angenommen’, French: ‘admis’, Italian: ‘acccettato’, Spanish: ‘aceptado’.

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out when the student actually arrives.22 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.23 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, certificates and doctoral degrees. These expressions comprise first degrees as well as postgraduate degrees. 8 The expression ‘certificate’24 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 for the former Students Directive 2004/114/EC as well as from the German version of the proposal for this Directive where the term ‘certificate’ is translated with ‘Prüfungszeugnis’25 or ‘Zeugnis’26 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’27 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 3(3) 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. 9 The course must be followed for the purpose of obtaining the qualifications offered within the course, which excludes persons attending classes as guest students.28 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’. 7

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 for the former Students Directive 2004/114/EC excludes evening classes as one example not covered by the term.29 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. 11 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 24(3) gives some 10

22

Commission Proposal, COM (2002)542, p. 11. Council doc. 15143/03 of 28 November 2003, p. 10; Council doc. 5528/04 of 2 February 2004, p. 6; Council doc. 7589/04 of 19 March 2004, p. 6. 24 German: ‘Zertifikat’, French: ‘certificats’, Italian: ‘certificati’, Spanish: ‘certificado’. 25 Commission Proposal, COM(2002) 548, p. 28. 26 Commission Proposal, COM(2013) 151, p. 36. 27 Article 2(1) Decision 819/95/EC (OJ 1995 L 87/10) ‘Socrates’. 28 Commission Proposal, COM(2002) 548, p. 8. 29 Ibid. 23

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guidance: an economic activity within the limits set by the Member State according to Article 24(3) ought not prevent the qualification of studies as the main activity. A person may disqualify from being a student also by being a highly qualified worker within the meaning of Article 2(2)(g) (see above Article 2 MN 10). d) Preparatory courses or compulsory training. It is left to national legislation whether 12 persons doing preparatory courses are regarded as students and which kinds of studies are considered to be preparatory courses. Examples for possible preparatory courses are language courses or the attendance of a foundation year. Whereas under the former Students Directive 2004/114/EC it was questionable, whether practical trainings and other practical activities previous to the commencement of studies could equally be covered,30 Article 3(3) of the Students and Researchers Directive (EU) 2016/801 clarifies that such activities are captured if they are compulsory in the context of the studies concerned.

4. School pupil (4) ‘School pupil’ covers persons following a recognised programme on the level of 13 secondary education. The original definition in the Commission’s proposal for the former Students Directive 2004/114/EC 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’.31 The Directive therefore covers the mobility of pupils only in the context of exchange schemes run by an education establishment recognised for that purpose by the Member State concerned in accordance with Article 12(1)(c), but not individual mobility which remains subject to national legislation.32 The term ‘education establishment’ is defined in Article 3(11) and presupposes an official recognition. Upon the recommendation of the Council three important modifications, that were 14 not part of the 2016 Commission’s proposal33, have been integrated in the definition. First, it is clarified that secondary education is meant to be equivalent to level 2 or 3 of the International Standard Classification of Education. This means that the programme of secondary education can ‘either correspond to lower secondary or upper secondary education’34. Secondly, the definition compasses secondary education programmes to be recognized ‘at a state or regional level’35. And thirdly, school pupils cannot only be admitted to exchange schemes but also to other ‘educational projects’ which, as the Council emphazised, do ‘not require an exchange of pupils’36. The term ‘educational project’ is defined in Article 3(12). All these refinements are meant to ‘cater for different national systems’ in order to extend the scope of Article 12.

5. Trainee (5) Whereas the former Students Directive 2004/114/EC only covered unremunerated 15 trainees, the Commission proposed to add remunerated trainees.37 The Council rejected 30 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, Ausländerrecht Kommentar, § 16 AufenthG MN 12. 31 Article 2(d) Commission Proposal, COM(2002) 548. 32 Ibid., p. 8. 33 See Commission Proposal, COM(2013) 151, p. 33. 34 Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 44. 35 Ibid. 36 Ibid. 37 Commission Proposal, COM(2013) 151, pp. 33, 43.

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the distinction between remunerated and unremunerated trainees and opted for a ‘general category of trainees’38 embracing paid and unpaid training activities. Furthermore, the Council argued for a narrow definition, only covering persons holding a degree of higher education or studying for such a degree.39 Together with several additional conditions, a trainee must meet to be admitted to the territory of a Member State, the Council also advocated ‘sufficient safeguards to make sure that no abuses take place’, taking into account ‘that there is a risk that trainees can be used to substitute employees with worse conditions and terms of employment’40. All these suggestions were finally integrated in Article 3(5) and Article 13 (see below Article 13 MN 1). 16 As for the definition in Article 3(5), a third-country national can only be a trainee in terms of the Directive if he/she ‘holds a degree of higher education or is pursuing a course of study in a third country that leads to a higher education degree’. As set out in Article 13(1)(b), the applicant must ‘provide evidence of having obtained a higher education degree within the two years preceding the date of application or of pursuing a course of study that leads to a higher education degree’, which additionally limits the definition. The term ‘higher education’ is not defined in Article 3, where merely ‘higher education institutions’ are specified in Article 3(13). The term ‘higher education’ shall be interpreted widely, as it is foreseen in recital 14, and ‘encompasses all tertiary institutions which may include, inter alia, universities, universities of applied science, institutes of technology, grandes écoles, business schools, engineering schools, IUTs, colleges of higher education, professional schools, polytechnics and academies.’ Hence, a ‘a course of study […] that leads to a higher education degree’ is a rather vague concept, too. Although the Directive uses the formal term ‘degree’, no substantive distinction can be made to the term ‘certificate’ used in Article 3(3) (see above MN 8). 17 People receiving complete vocational training, e. g. people in an apprenticeship, are not covered by the Directive and therefore remain – until the introduction of a separate Directive41 – subject to national 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 used,42 and the French version which uses the term ‘stagiaire’ instead of ‘apprenti’. Already in the context of Article 2(d) of the former Students Directive 2004/114/EC this followed from the definition element ‘training period’ which in Article 3(5) of this Directive is, without any change in its meaning, converted in ‘training programme for the purpose of gaining knowledge, practice and experience in a professional environment’. The exclusion of apprenticeships also follows from the restriction on activities connected to higher education which includes vocational training only on a tertiary level (see below MN 30).

6. Volunteers and voluntary service schemes (6, 7) 18

The definition of ‘volunteer’ is closely linked to the term ‘voluntary service scheme’. A volunteer is a third-country national admitted for the purpose of participating in such a scheme. Due to an uncommented amendment by the Council, the definition in the Commission’s proposal of a ‘voluntary service scheme’ in the context of the former 38

Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 44. Ibid. 40 Ibid. 41 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). 42 Commission Proposal, COM(2002) 548, p. 16. 39

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Students Directive 2004/114/EC was changed and then read to be a ‘programme of activities of practical solidarity based on a Community or State scheme, pursuing objectives of general interest.43 Article 3(7) of this Directive adapts this definition with minor changes. For the EU action programme ‘European Voluntary Service for Young People’44 it is of importance that the application of this Directive is mandatory for the Member States whereas it is optional concerning national service schemes (see Article 2(1)). The voluntary service is characterized by ‘pursuing objectives of general interest for a non-profit cause’. Concerning its proposal for the former Students Directive 2004/114/EC, the Commis- 19 sion elucidated 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 should not be gainful and may not be remunerated; benefits in kind and pocket money were not regarded as remuneration.45 Accordingly, Article 3(7) now clarifies that ‘reimbursement of expenses and/or pocket money’ do not alter the nonprofit cause of the voluntary engagement.

7. Au pairs (8) Unlike the former Students Directive 2004/114/EC, this Directive covers au pairs, as 20 defined in Article 3(8). The application of the Directive to au pairs is optional for the Member States (see Article 2(1)). The special admission conditions are laid down in Article 16. Au pairs are temporarily received by a family in order to improve their linguistic skills and knowledge. In exchange, au pairs are obliged to do light housework and take care of the children. The definition resembles Article 2 of the European Agreement on ‘au pair’ Placement46 which was settled within the legal framework of the European Council47 but has only been ratified by five EU Member States,48 although the Commission early recommended49 to ratify the Agreement. The Commission also stated that ‘this Agreement provides a suitable vehicle for introducing, at European level, a specific status’ for au pairs.50 Article 16 provides for several safeguards to avoid misuse of au pairing, amongst them an agreement between the au pair and the guest family is of main importance (Article 16(1)(a)). In order to preserve the typical character of an au pair placement, the mutual duties 21 are not subject to free bargain. Therefore, Article 16(1)(a) obliges the family to give some pocket money and to let enough time to attend (language) courses. Article 3(8) limits the duties of the au pair to light housework and taking care of the children. This is congruent to Article 9 of the European Agreement on ‘au pair’ Placement where au pair duties are restricted to ‘family services’. Nursing activities regarding family members in need of care should not be considered as such services.

8. Research (9) The adopted definition of ‘research’ comes from the ‘Frascati-Manual’ produced by 22 the OECD for surveys on research and experimental development. The definition is to 43 Article 2(h) Commission Proposal, COM(2002) 548 compared with Article 2(f) of the final Students Directive; the italicised words were added by the Council. 44 Decision 1686/98/EC (OJ 1998 L 214/1) establishing the ‘European Voluntary Service for Young people’. 45 See Commission Proposal, COM(2002) 548, p. 9. 46 See Commission Proposal, COM(2013) 151, p. 10. 47 See also Hailbronner/Lehner, in Hailbronner, Ausländerrecht Kommentar, BeschV MN 101. 48 Denmark, France, Italy, Luxemburg, Spain (as of 3/12/2021). 49 Commission Recommendation 85/64/EEC (OJ 1985 L 24/27). 50 Ibid.

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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.51 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.52 23 The requirement of creative work undertaken on a systematic basis, on the other 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. 24 The definition obviously leaves the competent authority with some discretionary power. It is intended as a guide to assist Member States in determining whether an organisation should be approved.53 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.54 Further guidelines may be found in the Frascati-Manual.55

9. Research organisation (10) Decisive criterion is that the organisation conducts research, whether commercial or not. The conduct of research does not have to be the organisation’s 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. 26 The term ‘public or private organisations’ clarifies that any private organisation, whether a ‘firm’ in a legal sense or not,56 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. 27 Unlike Article 2(c) of the former Researchers Directive 2005/71/EC, the definition set out in Article 3(10) of this Directive does not require that the organisation ‘has been approved for the purposes of this Directive by a Member State’. According to Article 9 the Member States ‘may decide to provide for an approval procedure’ in order to host a researcher under the admission procedure laid down in this Directive. Whereas the Commission’s recast proposal provided for an obligatory approval procedure for research organisations,57 upon the recommendation of the Council Article 9 in its final version includes only an optional approval procedure. 25

51

See Kluth, Aufenthalt von Forschern, p. 234. Commission Proposal for the Researchers Directive 2005/71/EC, COM(2004) 178, p. 13 referring to the Frascati-Manual, 6th edn (OECD 2002), p. 30, available at https://www.oecd-ilibrary.org/docserver/ 9789264199040-en.pdf?expires=1619549390&id=id&accname=guest&checksum=6D61481D1D86AC0FFEC3785E007E3007 [last accessed 27 April 2021]. 53 Commission Proposal, COM(2004) 178, p. 13. 54 Ibid. 55 Frascati-Manual, 6th edn (OECD 2002), p. 30, available at https://www.oecd-ilibrary.org/docserver/ 9789264199040-en.pdf?expires=1619549390&id=id&accname=guest&checksum=6D61481D1D86AC0FFEC3785E007E3007 [last accessed 27 April 2021]. 56 Compare Article 2 Commission Proposal, COM(2004) 178 with final Directive. 57 Article 9 Commission Proposal, COM(2013) 151. 52

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10. Education establishment, educational project (11, 12) Both definitions were not part of the former Students Directive 2004/114/EC and are 28 closely linked to the notion of ‘school pupil’ as set out in Article 3(4). The admission of pupils (see Article 12) under the Directive is not restricted to exchange programmes, but also concerns other ‘educational projects’. Furthermore, the scope of Article 12 compasses lower and upper secondary education based on the wider definition in Article 3(4). Therefore, Article 3(11) specifies that any ‘public or private secondary education establishment recognised by the Member State concerned or whose courses of study are recognised in accordance with national law or administrative practice on the basis of transparent criteria’ can participate in exchange programmes and educational projects under the Directive. Although educational projects do not require the exchange of pupils (see above MN 14), Article 3(12) presupposes a bi- or multilateral structure of the project based on cooperation with a similar establishment in another state.

11. Higher education institution (13) Whereas the Commission’s recast proposal included the general term ‘educational 29 establishment’,58 thereby following Article 2(e) of the former Students Directive 2004/ 114/EC (‘establishment’), as a catchall definition for universities, schools, etc., in the final version of the Directive there is a distinction between ‘education establishments’ (Article 3(11)) concerning the admission of ‘school pupils’ (Article 3(4)) and ‘higher education institutions’ referring to the admission of ‘students’ (Article 3(3)). The latter institution has to offer ‘recognised higher education degrees or other recognised tertiary level qualifications, whatever such establishments may be called’. This definition element is connected to Article 3(5) which requires trainees to hold or to pursue a course of study leading to such a degree, and to recital 14 which names several examples of tertiary institutions offering such studies (see above MN 16). Alternatively, Article 3(13) refers to institutions offering ‘vocational education or 30 training at tertiary level’. Under this Directive, unlike under the former Students Directive 2004/114/EC, higher education does not only cover academic education. In recital 14, higher education is linked to universities as well as to ‘professional schools’. Vocational education or training has to be offered on a tertiary level which excludes apprenticeships carried out in a dual structure, as it is common in Germany, where vocational education beneath tertiary level is offered collaboratively by companies and vocational schools. This interpretation can be supported by the German version of recital 14 where ‘professional schools’ is translated with ‘Fachschulen’ which is the common term for vocational schools on a tertiary level, whereas vocational schools within the framework of ‘dual vocational education’ (‘duale Ausbildung’) are called ‘Berufsschulen’. For the same reason, apprentices cannot be admitted as trainees under the Directive (see Article 3(5)).

12. Host entity (14) The term was integrated in Article 3 upon recommendation of the European Parlia- 31 ment.59 It refers to all entities hosting third-country nationals whether they are 58

Article 3(l) Commission Proposal, COM(2013) 151. Position of the European Parliament at first reading of 25 February 2014 (OJ 2017 C 285/348), Article 3(la). 59

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researchers, students, school pupils, volunteers or trainees. The host entity is subject to several provisions that are laid down in the Directive irrespective of the type of entity (research organisation, higher education institution, education establishment, etc.). For example, if a Member State opts for an approval procedure for a certain category of host entities under national law (see Article, 9, 15) and if a particular host entity is not approved accordingly, the application of the third-country national who wishes to be hosted by this entity has to be rejected, see Article 20(1)(c)). The special admission rules concerning volunteers and trainees which are laid down in Article 13 and 14 also use the term ‘host entity’. As a matter of fact, Article 3(14) implies a very technical definition whose meaning varies according to the particular context.

13. Host family (15) 32

This term also results from a suggestion of the European Parliament60 and serves the same purpose as ‘host entity’ in Article 3(14). ‘Host family’ represents – so to speak – the ‘host entitity’ the ‘host entity’ for au pairs. The definition includes typical elements of an au pair placement, such as the temporary reception or the participation in the family life which refers to au pair duties (light housework, taking care of children) as set out in Article 3(8). Several conditions, which a host family must meet under the Directive, are laid down in Article 16.

14. Employment, employer (16, 17) 33

Both definitions reflect that within the scope of the Directive employment relationships are possible, particularly concerning au pairs, volunteers and trainees, but also students which are entitled to work to some extent (see Article 24(3)). The definitions are borrowed from the Employers Sanctions Directive 2009/52/EC.61

15. First and second Member State (18, 19) 34

The distinction between first and second Member States works as a legal pattern for the provisions set out in Article 27–32 concerning the mobility of third-country nationals admitted in one Member State as researchers, students, etc. This state is called ‘first Member state’ whereas the ‘second Member State’ is any other Member State. The terminology is borrowed from the Blue Card Directive 2009/50/EC (see interpretation Herzog-Schmidt/Lehner Article 2 MN 9, 10).

16. Union or multilateral programmes that comprise mobility measures (20) 35

Article 3(20) refers to mobility rights for students laid down in Article 31. Students, who are covered by Union or multilateral programmes that comprise mobility measures and who hold a valid authorisation issued by a Member State for the purpose of studies in the framework of such a programme, can move to other Member States under simplified conditions (see Article 27, 31). The Commission’s recast proposal included a provision governing the intra-EU mobility of researchers and students covered by such programmes. For that reason, the EU programmes ‘Erasmus mundus’ (students) and ‘Marie Curie’ (researchers) are referred to in the proposal. Upon the recommendation of the Council, the mobility rules concerning researchers distinguish between shortterm (Article 28) and long-term mobility (Article 29). These rules apply for researchers 60 Position of the European Parliament at first reading of 25 February 2014 (OJ 2017 C 285/348), Article 3(lb). 61 OJ L 168, 30.6.2009, p. 24.

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covered by programmes comprising mobility measures as well as for researchers not covered by such programmes. As a result, programmes that comprise mobility measures mainly have legal consequences for students under the Directive. However, researchers covered by such a programme shall receive an authorisation 36 of a longer duration (see the second subparagraph of Article 18(1): at least two years instead of one). Within this period, a researcher can move into a second Member State to carry out his/her research even for a long-term stay on the basis of a simple notification, but only if the second Member State decides to apply the notification procedure (see Article 29(1)(a)) which is the regular procedure for short-term mobility of researchers (see Article 28). Hence, being covered by a programme that comprises mobility measures bears advantages for students and for researchers as well. Apart from Union programmes, multilateral programmes that comprise mobility 37 measures are also referred to in Article 18(1 and 2), 27(1) and 31(1). These are programmes that are not funded by the Union but by several Member States in order to promote mobility of third-country nationals in the Member States participating in the respective programmes.

17. Authorisation, residence permit, long-stay visas (21, 22, 23) ‘Authorisation’ works as a generic term for residence permits and long-stay visas. 38 Article 5(3) stipulates that a third-country national meeting the general and the relevant specific conditions for an admission shall be entitled to an authorisation. In its second subparagraph it is stated that Member States only issuing residence permits on their territory shall issue long-stay visas instead. Hence, under the Directive Member States are free to admit a third-country national applying to stay on a Member State’s territory by either issuing a residence permit or a long-stay visa respective to the national rules for entry and residence. The format for a residence permit is laid down in Regulation (EC) No 1030/2002 39 laying down a uniform format for residence permits for third-country nationals. 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. Long-stay visas have to be distinguished from Schengen visas. The latter are 40 defined in 2(2)(a) of the Visa Code Regulation (EC) No 810/200962 as authorisations issued by a Member State with a view to an intended stay on the territory of the Member States not exceeding 90 days in any 180-day period. Therefore, Article 2(23) of the Directive refers to Article 18 of the Convention implementing the Schengen Agreement where it says: ‘Visas for stays exceeding three months shall be national visas issued by one of the Contracting Parties in accordance with its national law.’

18. Family member (24) The Directive provides for residence (Article 26) and mobility rights (Article 30) for 41 the benefit of researchers’ family members. Article 3(24) refers to Article 4(1) of the Family Reunification Directive 2003/86/EC on the right to family reunification. Hence, a researcher’s spouse, his or her minor children and the minor children of the spouse are family members under this Directive. 62

OJ L 243, 15.9.2009, p. 1.

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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 Union or the Union and its Member States and one or more third countries; or (b) bilateral or multilateral agreements concluded 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 third-country nationals to whom this Directive applies with respect to point (a) of Article 10(2) and Articles 18, 22, 23, 24, 25, 26, 34 and 35. 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.63 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.64 2 Whereas Article 4(2) of the former Students Directive 2004/114/EC as well as Article 4(2) of the former Researchers Directive 2005/71/EC referred to all Directive provisions, Article 4(2) of this Directive limits the possibility to adopt or maintain more favourable provisions to those provisions enumerated in Article 4(2). Hence, more favourable provisions can be set out in regards to Article 10(2)(a) (demand of specifying the title or purpose of the research activity or research area in hosting agreements between researchers and research organisations), Article 18 (duration of authorisations), Article 22–26 (individual rights) and Article 34–35 (procedural guarantees, access to information). 3 Whether a provision can be considered more favourable may be debatable. In the 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 ‘[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’.65 4 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 1

63 Concerning more favourable provisions clauses in general, see above Thym, Constitutional Framework, MN 28–33. 64 See for the explicit statement of this in recital 21 of the recast Directive, Council doc. 13974/15 of 20 November 2015, p. 11. 65 Commission Report, COM(2011) 587, p. 3–4.

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Article 4.66 In Payir, the ECJ affirmed that Member States may deviate from the Directive’s strict rules in Article 17 of the former Students Directive 2004/114/EC on access to the labour market (Article 24 of this Directive, see also below MN 7) and hence affirmed that Member States may deviate from the Directive even where it is mandatory.67 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.68 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.69 Article 4(1) is to ensure that bilateral or multilateral agreements of the EU or the 5 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 6 higher and vocational education, e. g. the EU-US programme ‘Atlantis’70 or the cooperation between the EU and Canada71. The EFTA States Norway, Iceland and Lichtenstein72 and Turkey73 participate in the intra-EU programme ‘Erasmus’, while Switzerland74 did, but was suspended in 2014.75 Also, bilateral and multilateral agreements which are not directed specifically at the 7 categories of persons covered by the Directive may still include provisions which lead to a more favourable treatment of them. E. g., according to the EU-Turkey Association Agreement interpreted in Gürol, Turkish nationals studying in an EU Member State can claim maintenance grants.76 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 1/80,77 and may then rely upon the – more favourable – rights granted by the 66 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. 67 ECJ, Payir and Others, C-294/06, EU:C:2008:36. 68 See on this generally, above Thym, Constitutional Framework, MN 28–33. 69 ECJ, B and D, joined cases C‐57/09 and C‐101/09, EU:C:2010:661, para 115 et seqq; see below Dörig, Asylum Qualification Directive 2011/95/EU, Article 3 MN 8. 70 Council Decision 2006/910/EC (OJ 2006 L 346/33) Agreement between the EC and the US. 71 Council Decision 2006/964/EC (OJ 2006 L 397/14) Agreement between the EC and Canada. 72 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. 73 IP/03/56 of 16 January 2003. 74 Council Decision 2010/195 (OJ 2010 L 87/7) Agreement between the EU and the Swiss Confederation. 75 Switzerland’s participation had been suspended following a Swiss referendum in February 2014 that limits access to Switzerland for EU citizens. Hence, a Swiss programme has been installed (‘SwissEuropean Mobility Programme’, ‘SEMP’) in order to promote studies in the EU for Swiss students. Although the referendum has been transposed in a way not derogating free movement of EU citizens, Switzerland has not returned to ‘Erasmus’ yet. 76 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, Gürol, C-374/03, EU:C:2005:435, paras 19 et seqq. and 38. 77 Ibid.

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Association Council Decision 1/80.78 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.79 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.80 It ensures the primacy of Association Law as international agreement over EU secondary legislation81 and the uniform application of it.82

CHAPTER II ADMISSION Article 5 Principles 1. The admission of a third-country national under this Directive shall be subject to the verification of documentary evidence attesting that the third-country national meets: (a) the general conditions laid down in Article 7; and (b) the relevant specific conditions in Article 8, 11, 12, 13, 14 or 16. 2. Member States may require the applicant to provide the documentary evidence referred to in paragraph 1 in an official language of the Member State concerned or in any official language of the Union determined by that Member State. 3. Where all the general conditions and relevant specific conditions are fulfilled, the third-country national shall be entitled to an authorisation. Where a Member State issues residence permits only on its territory and all the admission conditions laid down in this Directive are fulfilled, the Member State concerned shall issue the third-country national with the requisite visa. Content I. General remarks .............................................................................................. II. Verification of documentary evidence ....................................................... III. Member State discretion ...............................................................................

mn. 1 3 6

I. General remarks 1

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. The conditions referred to in Article 5(1) are mandatory as 78

ECJ, Payir and Others, C-294/06, EU:C:2008:36. 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). 80 E. g. ECJ, Ertanir, C-98/96, EU:C:1997:446, para 19 et seqq. 81 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 Thym, Constitutional Framework, MN 57. 82 Peers, Turkish visitors and Turkish students, p. 197, 202. 79

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can be concluded from Article 4(2) where Member States are enabled to adopt or maintain more favourable provisions and Article 5 is not referred to. This interpretation is supported by the German of version Article 5(1) (‘wird nach dieser Richtlinie nur zugelassen, wenn’). Due to concerns of some Member States that the Commission’s proposal for the 2 former Students Directive 2004/114/EC restricted their practice to grant separate permits for entry and residence,83 Article 5 of the former Students Directive 2004/114/ EC did not contain any reference to a certain type of authorisation, but instead spoke in general of ‘admission’. The Students and Researchers Directive (EU) 2016/801 has put an end to the unclarity around this by speaking of ‘authorisation’ which includes residence permits and visas (see Article 3(21)). Indeed, Article 5(1) of the Directive still uses the term ‘admission’. According to Article 5(3), a third-country national who fulfils all admission conditions is entitled to an authorisation. Hence, the authorisation can be regarded as the legal tool to implement the admission.

II. Verification of documentary evidence The clause on verification of documentary evidence in Article 5(1) precedes the 3 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 7(1)(c) in contrast to the provision of proof concerning the fee in Article 7(1)(d)). Recital 41 covers evidence, but limits itself to the ‘grounds of the application’, hence 4 the question, if the applicant is really planning to study/volunteer/be trained/be an au pair. Concerning these ‘grounds of the application’, recital 41 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.84 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.85 Whether the migration authority finds there to be doubt concerning the grounds of application, remains within a wide discretion of that authority (see below MN 6–10). Which evidence the Member States require from the applicants is not specified in the 5 Directive and hence is left to the Member States’ discretion which naturally may lead to different requirements and thus 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.86 However, according to Article 5(2) a Member States has the right to demand a translation into one’s own official language or the one of the EU. 83

Council doc. 15143/03 of 28 November 2003, p. 4, 8. Some Member States have transformed the equivalent provisions of the Students Directive 2004/114/ EC by requiring a plan of studies, see e. g. for the Spanish legislation Abarca Junco/Gómez-Urrutia, El régimen jurídico de los estudiantes e investigadores extranjeros, p. 1, 9. 85 See on the issue of abuse, above Thym, Legal Framework for EU Immigration Policy, MN 48–49. 86 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. 84

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III. Member State discretion One fundamental issue concerning the Directive is of Member States’ discretion over first admission. States traditionally have an affinity to keeping admission decisions within their national sovereignty. Whereas under the former Students Directive 2004/114/EC, the question of mandatory first admission was disputed,87 Article 5(3) of this Directive now clarifies that Member State’s discretion is limited to the examination of the admission conditions. Once a Member State authority finds these conditions to be fulfilled, there is no space left for Member State’s discretion. This was already the case under Article 7(3) of the former Researchers’ Directive 2005/71/EC, and is now clearly so regarding all categories of admission under the Directive. In its first subparagraph, Article 5(3) clarifies that the fulfillment of all admission conditions leads to an enfocreable claim to be issued an authorisation. The second subparagraph takes into account the distinction between residence permits and visas which are both covered by the generic term ‘authorisation’ (see Article 3(21–23)). Member States, such as Germany, which generally require for the issuing of a residence permit that the applicant ‘has entered the country with the necessary visa’88, therefore comply with their obligation to admit the third-country national by issuing a visa for the purpose of studies, research, etc.89 When, after entering the territory, the visa expires, the third-country national has to apply for a residence permit. 7 The unclarity on the fundamental issue concerning the Member States’ discretion under the former Students Directive 2004/114/EC had arisen from its drafting history. The original wording stated that ‘Member States may issue a (student/pupil exchange/ unremunerated trainee/volunteer) residence permit only if …’90 and hence arguably left discretion to the Member States if they did or did not issue the residence permit.91 Although the respective articles were amended upon the recommendation of the Council so that the wording was unclear (see Article 6 of the former Students Directive 2004/114/EC: ‘A third-country national who applies…shall’), 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.92 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. 8 However, the ECJ in Ben Alaya93, concerning a Tunisian who applied for a student visa under the Directive in order to study in Germany, 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.94 The Court’s reasoning 6

87 See on this Peers and others (eds), EU Immigration and Asylum Law Vol. 2, p. 203; Wiesbrock, Free Movement, p. 455, 466. 88 See Section 5, paragraph 3 of the German Residence Act (‘Aufenthaltsgesetz’). 89 See e.g. Section 6, paragraph 3 of the German Residence Act. 90 Ibid.; emphasis added. 91 Commission Proposal, COM(2002), 548, p. 13 stressing the ‘general discretion’ Member States have regarding first admission; like this also Kocharov, What lntra-Community mobility, p. 913, 918. 92 Council doc. 15143/03 of 28 November 2003, p. 8; 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, Turkish Nationals, p. 387, 399–400. 93 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187. 94 Before the judgment like this: Wiesbrock, Legal Migration, p. 424; Hoogenboom, Turkish Nationals, p. 387, 397–400.

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concluded from the structure of the articles in the former Students Directive 2004/114/ EC laying down the general and specific admission conditions that the Member State ‘is to issue a student residence permit’ if the Directive’s conditions are fulfilled.95 Next, the ECJ argued with the objective of the Directive being ‘to promote the 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.’96 In Conclusion, the ECJ held that a Member State is ‘obliged to admit to its territory a third-country national […], where that national meets the conditions for admission exhaustively listed in Articles 6 and 7’ of the former Students Directive 2004/114/EC.97 Article 5(3) translates Ben Alaya by stressing the obligation to grant the authorisation (including residence permits and visas) once all the conditions are fulfilled. However, without discussing this in any detail, the Court stated that the Member 9 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 “[…]”.98 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 810/2009.99 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. The German Federal Administrative Court (Bundesverwaltungsgericht) concluded that 10 national authorities have a wide scope for fact-finding discretion (‘Beurteilungsspielraum’)100 concerning particularly Article 32(1)(b) of the Visa Code Regulation (EC) No 810/2009 according to which the visa application shall be rejected ‘if there are reasonable doubts as to … 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.’ The legal doctrine taken into account by the court (‘Lehre vom Beurteilungsspielraum’) is based on the idea that the legislator can enable the authorities to evaluate some legal conditions set out in a provision autonomously. Therefore, it is of importance that the authorities’ discretion must be deduced from the wording of the provision. In the context of the Visa Code, this can be asserted for legal conditions such as the applicant’s intention to leave the territory or the consideration that the entry of the applicant is a threat to public policy, internal security or public health.101 Concerning the Member State’s discretion under the Students and Researchers Directive (EU) 2016/801, this discretion may be wider when the respective admission condition requires a closer examination of the individual situation. For example, if there is strong indication that the applicant will use the admission in order to do things other than studying/researching/etc., the national authorities should have a rather wide discretion (see also 95 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, Turkish Nationals, p. 387, 398. 96 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 29–30. 97 Ibid., para 36. 98 Ibid., para 33; emphasis added; the German text speaks here of ‘Beurteilungsspielraum’ whereas in the remainder of the judgments, it speaks of ‘Ermessen’. 99 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 6. See also ECJ, Upjohn, C-120/97, EU:C:1999:14, para 34. 100 German Federal Administrative Court, judgment of 17 September 2015, BVerwG 1 C 37.14, paras 21 et seqq. 101 See on this Lehner, ‘Gemeinsame Visapolitik’, in: Enzyklopädie Europarecht, Vol. 10, 3rd edn (Nomos, 2020), § 31, para.42.

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Article 20(2)(f)). Similar to Article 32(1)(b) of the Visa Code Regulation (EC) No 810/ 2009, this evaluation requires a prediction of the prospective behaviour of the applicant. Contrariwise, conditions concerning the presentation of documents (see for example Article 11(1)(a)), which must not be fraudulently acquired, falsified, or tampered with (see Article 20(1)(b)), are less open to this kind of discretion (see below Article 20 MN 4).

Article 6 Volumes of admission This Directive shall not affect the right of a Member State to determine, in accordance with Article 79(5) TFEU, the volumes of admission of third-country nationals referred to in Article 2(1) of this Directive, with the exception of students, if the Member State concerned considers that they are or will be in an employment relationship. On that basis, an application for authorisation may either be considered inadmissible or be rejected. 1

Article 6 was added upon recommendation of the Council102 and can be seen as the Council’s reaction to the insertion of Article 5(3). By allowing for rules on admission volumes to be a reason for rejection or inadmissibility, Article 6 opens the door for Member States to override Ben Alaya (see above Article 5 MN 6–10). The stipulation that when a Member State does introduce such an admission volume, it has to act ‘in accordance with Article 79(5) TFEU’, complicates the issue, however. Article 79(5) TFEU speaks 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’.103 This does not comprise students who, sensibly, are explicitly excluded from admission volumes by Article 6. For all other relevant groups (researchers, trainees, volunteers, au pairs), national volumes of admission are only permissible if the Member State concerned considers the entire group or a defined sub-category of the group to be in an employment relationship. This said, it could be questioned if a researcher, who shall be admitted ‘for the purpose of research’ (see Article 8(1)) can at the same time even be considered to be admitted for the purpose of work, which would be necessary to make the case for a permissible volume cap under Article 79(5) TFEU.

Article 7 General conditions 1. As regards the admission of a third-country national under this Directive, the applicant shall: (a) present a valid travel document, as determined by national law, and, if required, an application for a visa or a valid visa or, where applicable, a valid residence permit or a valid long-stay visa; Member States may require the period of validity of the travel document to cover at least the duration of the planned stay; (b) if the third-country national is a minor under the national law of the Member State concerned, present a parental authorisation or an equivalent document for the planned stay; 102 103

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(c) present evidence that the third-country national has or, if provided for in national law, has applied for sickness insurance for all risks normally covered for nationals of the Member State concerned; the insurance shall be valid for the duration of the planned stay; (d) provide evidence, if the Member State so requires, that the fee for handling the application provided for in Article 36 has been paid; (e) provide the evidence requested by the Member State concerned that during the planned stay the third-country national will have sufficient resources to cover subsistence costs without having recourse to the Member State’s social assistance system, and return travel costs. The assessment of the sufficient resources shall be based on an individual examination of the case and shall take into account resources that derive, inter alia, from a grant, a scholarship or a fellowship, a valid work contract or a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs. 2. Member States may require the applicant to provide the address of the thirdcountry national concerned in their territory. Where the national law of a Member State requires an address to be provided at the time of application and the third-country national concerned does not yet know the future address, Member States shall accept a temporary address. In such a case, the third-country national shall provide his or her permanent address at the latest at the time of the issuance of an authorisation pursuant to Article 17. 3. Member States may indicate a reference amount which they regard as constituting ‘sufficient resources’ as referred to under point (e) of paragraph (1). The assessment of the sufficient resources shall be based on an individual examination of the case. 4. The application shall be submitted and examined either when the third-country national concerned is residing outside the territory of the Member State to which the third-country national wishes to be admitted or when the third-country national is already residing in that Member State as holder of a valid residence permit or longstay visa. By way of derogation, 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 or long-stay visa but is legally present in its territory. 5. Member States shall determine whether applications are to be submitted by the third-country national, by the host entity, or by either of the two. 6. Third-country nationals who are considered to pose a threat to public policy, public security or public health shall not be admitted. Content mn. I. General remarks .............................................................................................. 1 II. General requirements (Article 7(1), (6)) ................................................... 2 1. Documents (Article 7(1)(a) and (b))...................................................... 2 2. Sickness insurance (Article 7(1)(c)) ....................................................... 4 3. Payment of procedure fees (Article 7(1)(d)) ........................................ 5 4. Sufficient resources (Article 7(1)(e), (3)) .............................................. 6 5. No threat to public policy, public security or public health (Article 7(6)) ................................................................................................ 11 III. Optional address requirement (Article 7(2))............................................ 20 IV. Application modalities (Article 7(4), (5)).................................................. 21

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I. General remarks 1

Article 7(1), (6) lays down the general conditions for admission to be met by a thirdcountry national in addition to the specific conditions set up by Article 8–16. Article 7 (2), (3) gives the Member States the right to define further requirements. Article 7(4), (5) specifies the application modalities.

II. General requirements (Article 7(1), (6)) 1. Documents (Article 7(1)(a) and (b)) According to Article 7(1)(a) an applicant for a residence permit has to present a valid travel document, i. e. a passport or an equivalent travel document. The term ‘as determined by national legislation’ specifies 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. Article 7(1) also requires the presentation of legal documents concerning the right to enter the Member State (e.g. visa) or the application to do so. The Council considered ‘it necessary, for the purpose of clarity, to list, in addition to the valid travel document, all possible documents that can be required for entry purposes, depending on the specific national system or the specific situation of the third-country national.’104 As the admission that the third-country national applies for is granted by issuing an authorisation (see Article 5(3)) which includes a long-stay visa or a residence permit (see Article 3(21)), this clarification seems to be redundant or even inconsistent. When a third-country national applies for admission, i.e. a residence permit or a long-stay visa, obviously the latter cannot be required to be presented before. In this case, of course, the applicant has to present an application for a visa or, if he/she wants to apply for a residence permit in the territory of the Member State, another authorisation allowing him/her to enter the territory, e.g. a (short-stay) visa. 3 Additionally, in case the applicant is a minor – as defined under the national legislation of the host Member State – her/she needs a parental authorisation or an equivalent document for the planned stay, see Article 7(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 national legislation. The term ‘equivalent document’ was not included in Article 6(1)(b) of the former Students Directive 2004/114/EC. The Commission’s 2016 recast proposal105, where the term was introduced, lacks any explanation. Reasonably, ‘equivalent document’ can only mean a paper fulfilling the function of a parental authorisation. Hence, any document giving evidence to the authorisation of a legal guardian meets the condition. 2

2. Sickness insurance (Article 7(1)(c)) 4

The requirement of Article 7(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 national legislation. A sickness insurance not covering diseases which are already known 104 105

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at the beginning of the insurance coverage is not sufficient.106 As Article 7(1)(c) clarifies in its second sentence, travel sickness insurance is only sufficient, if it covers the whole period of the stay and not just part of it. Article 11(2) determines that students, who as a result of their enrolment in an establishment of higher education automatically qualify for a sickness insurance in the sense of Article 7(1)(c), shall be presumed to satisfy the condition. Whereas Article 6(1)(c) of the former Students Directive 2004/114/EC required that the applicant shall ‘have’ sickness insurance, according to Article 7(1)(c) of this Directive Member States may provide that the application for a sickness insurance is sufficient. This amendment, which has been added upon the recommendation of the Council107 without any explanation108, obviously refers to national insurance systems where insurance protection is granted from the date of application.

3. Payment of procedure fees (Article 7(1)(d)) Another requirement is the proof of payment for the application fee according to 5 Article 36. 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.109 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 justify the required fees.110

4. Sufficient resources (Article 7(1)(e), (3)) Article 7(1)(e) requires applicants to prove that they have sufficient resources to 6 cover their subsistence 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 generally needed in the Member State concerned. Article 7(3) explicitly gives the right to the Member States to ‘indicate a reference amount which they regard as constituting “sufficient resources”’. This clause has been introduced upon recommendation of the Council.111 However, this amount has to be transparent. According to Article 35, also added on the 7 Council’s suggestion, ‘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 conditions’. This includes ‘where applicable, the level of the monthly sufficient resources, including the sufficient resources needed to cover the study costs or the training costs’, as is set out in the second sentence of Article 35. Thus, the transparency clause shall ‘provide clear information to applicants and others concerned’112. The ‘sufficient resources’ requirement implies that the publicly proclaimed minimum 8 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 a student has access to low-cost university accommodation or resources in kind like accommodation or food that the candidate may receive without charge from family Hailbronner, Ausländerrecht Kommentar, § 2 AufenthG MN 64. Position (EU) of the Council at first reading (OJ 2016 C 170/1). 108 See Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40). 109 ECJ, Sahin, C-242/06, EU:C:2009:554, para 71. 110 Ibid., paras 72 et seqq. 111 Position (EU) of the Council at first reading (OJ 2016 C 170/1). 112 Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 42. 106 107

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members. Also, the publication of national reference amounts, as called for by Article 35, does not make the individual case examination dispensable. The type of evidence of sufficient resources acknowledged by the host state may vary. 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, or the notification of the granting of maintenance grants from the country of origin. Article 7(1)(e) gives some examples that can be taken into account such as scholarships and fellowships. The listing is not exhaustive as this would contradict the obligation to examine all circumstances in each individual case. This has been emphasized by the Council upon whose recommendation these examples were added; as the Council pointed out, the provision offers ‘for the purpose of clarity, an open list of sources where sufficient resources can derive from’, working as a useful guide to help ‘Member States in making the assessment of “sufficient resources”’.113 9 Explicitly excluded by Article 7(1)(e) is any ‘recourse to the Member State’s social assistance system’. This provision was introduced by Council arguing for coherence ‘with the corresponding provisions of the ICT Directive (Article 5(5)) and the Seasonal Workers Directive (Article 5(3))’.114 10 Fees charged by the higher education institutions do not form part of the minimum amount required as these are expressly covered by Article 11(1)(b). The same is true as regards sufficient resources to cover the study costs (see Article 11(1)(d)). This optional requirement, added upon the recommendation of the Council, covers expenses for books or study materials,115 and is therefore to be distinguished from resources covering the proper subsistence of the third-country national during his/her stay. Article 7(1)(e) does not cover accommodation costs if accommodation requirements are set out in the specific admission conditions as is the case for school pupils who have to be accommodated by families or adequate facilities (see Article 12(1)(d)).

5. No threat to public policy, public security or public health (Article 7(6)) 11

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.116 For EU citizens and their third-country national family members, these case-law guidelines have been codified in Directive 64/221/EEC117 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.118 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’.119 113

Ibid. Ibid. Ibid., p. 44. 116 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 SchmidDrüner, Der Begriff der öffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewählter EUMitgliedstaaten (Nomos 2007), p. 389 et seqq. 117 Directive 64/221/EEC (OJ 1964 56/850) on the coordination of special measures on grounds of public policy, public security or public health. 118 ECJ, van Duyn, C-41/74, EU:C:1974:133, para.18. 119 ECJ, Regina v. Bouchereau, C-30/77, EU:C:1977:172. 114 115

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Whether these principles may be applied by analogy to the legal status of third- 12 country nationals under this Directive depends on the comparability of the interests affected and the wording and purpose of Article 7.120 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.121 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 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.122 From this, it can be concluded that the interests are not comparable. Also, the wording of Article 7 (6) differs considerably from the wording of Article 27 Free Movement Directive 2004/ 38/EC and the former Directive 64/221/EC123 and as the same wording of Article 6(1) (d) of the former Students Directive 2004/114/EC was discussed in the drafting process (see below MN 17), 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 36 states that the admission ‘may be refused on duly justified grounds’. This 13 supports the interpretation that unlike restrictions for EU citizens and their family members, restrictions based on Article 7(6) 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 recital 36, ‘a potential threat to public policy or security’ does already satisfy the prerequisites in Article 7(6). Recital 11 of the preamble of the Students Directive 2004/114/EC set out that such a threat ‘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’. Although this clarification is not part of recital 36 of the preamble of this Directive, these cases can generally still establish a relevant threat. The clause in the original proposal former Students Directive 2004/114/EC – ‘[p]ublic 14 policy or public security grounds shall be based exclusively on the personal conduct of the third-country national concerned’124 – was met with criticism in the Council and was deleted.125 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. 120 See on parallel interpretation of similar terminology of EU law in general, above Thym, Constitutional Framework, MN 18. 121 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. 122 Peers and others (eds), EU Immigration and Asylum Law Vol. 2, p. 202 see no link between Article 6 of the former Students Directive 2004/114/EC and Article 72 TFEU. 123 Directive 64/221/EEC (OJ 1964 56/850) on the coordination of special measures on grounds of public policy, public security or public health). 124 Commission Proposal, COM(2002) 548, p. 26. 125 Council doc. 15143/03 of 28 November 2003, p. 9.

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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)(e). 16 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. 17 During the drafting process of the former Students Directive 2004/114/EC, a phrase on documentary evidence to be provided by the applicant in order to prove his/her innocuousness was deleted.126 The deletion, which is still relevant under Article 7(6), does 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 3–5). 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.127 Actually, compared to Article 6(1)(d) of the former Students Directive 2004/114/EC, Article 7(6) of this Directive is based on a different systematic approach. Whereas in the Commission’s 2016 recast proposal the ‘no threat’ condition was put into the first paragraph therefore serving as a positive admission condition to be fulfilled and hence to be proven by the applicant, the clause was transferred into a separate paragraph upon the recommendation of the Council. As the Council with regards to other migration law directives pointed out: 15

‘In the Commission proposal, a similar provision appears in paragraph 1 of this Article concerning the evidence and proof the applicant is requested to provide as part of the application. The Council considers that this provision should rather appear as a ground for inadmissibility with the burden of proof being on Member States. A similar approach is being used in the ICT Directive (Article 5(8)) and the Seasonal Workers Directive (Article 6(4)).’128 18

Hence, it is the responsibility of the Member States to conduct investigations and thereby carrying the burden of proof. This also follows from recital 36 which stipulates that refusing admissions have to be based on ‘an assessment of the facts in an individual case and taking into account the principle of proportionality’. However, this does not ban the Member States to demand information in the context of their investigations and in order to fulfill their obligations. National authorities must be entitled to demand for documents such as police clearance certificates or extracts from police records. This also follows from Article 34(3) where it says: ‘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.’ One could argue that the wording ‘information or documentation supplied in support of the application’ only refers to the conditions that must be fulfilled and not to inadmissibility grounds as the latter are to be supported by evidence to be supplied by the national authorities. Nonetheless, documentary evidence which for practical 126

Council doc. 5528/04 of 2 February 2004, p. 5. Commission Proposal, COM(2002) 548, p. 11. 128 Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 43. 127

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reasons only can be supplied by the applicant has to be subject to legitimate procedural requirements set out by the Member States. This interpretation has been supported by the ECJ for the equivalent provision in Article 18(2) of the former Students Directive 2004/114/EC: ‘If the information provided in support of the visa application is inadequate for assessing whether there is a threat to public security, Article 18(2) of the directive states that the authorities may require the applicant to provide the further information that they need.’129 It is worth mentioning that the court, with reference to Ben Alaya (see above Article 5 MN 8–9), has already taken into account ‘the distribution of the burden of proof’ concerning Article 6(1)(d) of the former Students Directive 2004/114/EC and arguing for the authorities’ responsibility to supply ‘evidence necessary to assess the coherence of the application for admission’.130 If a third-country national is to be considered a threat to public policy, security or 19 health, according to Article 7(6) he/she ‘shall not be admitted’. The denial of admission is not left to the discretion of the Member States. However, Member States have a ‘factfinding’ discretion with regard to the assessment of the relevant facts (see above Article 5 MN 8–10). This applies particularly for Article 7(6). As the ECJ ruled out in Fahimian131, a case concerning the equivalent provision in Article 6(1)(d) of the former Students Directive 2004/114/EC, ‘the competent national authorities have a wide discretion in assessing the facts’ and therefore ‘judicial review is limited, as far as that assessment is concerned, to the absence of manifest error’.132 The case was about the application for an admission of an Iranian national who had been accepted as a doctoral student by a German research institution that is specialised on security technologies. The research project, the applicant was designated to participate in, was about ‘security of mobile systems, esp. intrusion detection on smartphones to security protocols’. The application was rejected by German authorities due to concerns ‘that the situation in Iran gives reason to fear that the knowledge Ms Fahimian would acquire during her stay for study purposes would later be misused in her country of origin.’ The authorities referred to findings about an Iranian ‘large scale cyber-programme by which it hopes to gain access to confidential information in western countries’ and about Iranian hackers ‘searching essentially for sensitive data from the air and aerospace sectors and the arms industry’.133 According to the ECJ, the German court has the competence to take into account that the applicant obtained her degree from an Iranian University that is black-listed by the EU for its close affiliation to the Iranian military sector and that the research to be conducted in Germany had been related ‘to the sensitive field of information technology security’.134

III. Optional address requirement (Article 7(2)) Article 7(2), added upon recommendation of the Council135, enables Member States 20 to require the presentation of the address the applicant will reside at in the Member State’s territory. If national law makes this requirement at the time of application, a 129

ECJ, Fahimian, C-544/15, EU:C:2017:255, para.44. See Ibid., paras 44 and 45. 131 Ibid. 132 Ibid., para.46. 133 See on all of this Ibid., para. 2 134 Ibid., para. 4 135 See Position (EU) of the Council at first reading (OJ 2016 C 170/1). 130

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Chp. 17 Art. 8

Students and Researchers Directive (EU) 2016/801

provisional address must satisfy providing that the final address is delivered at least at the time of the issuing of the authorisation.

IV. Application modalities (Article 7(4), (5)) In Article 7(4) and (5) some application modalities are laid down. These provisions could also have been put into Chapter VII as procedural issues are concerned. As the proper filing of application is, of course, also a ‘general condition’, the legislator had a point to put them within the framework of Article 7. In its first subparagraph, Article 7(4) makes it mandatory to accept applications that are submitted by thirdcountry nationals residing outside or inside the territory of the Member State concerned. The Member States’ obligation to accept applications from third-country nationals already residing in the territory of the relevant Member State is limited to cases where the respective persons hold a valid residence permit or a long-stay visa. This excludes third-country nationals who are legally residing in the Member State’s territory without such an authorisation, e.g. nationals from countries who hold a short-stay visa or are exempt from the requirement to hold a such a visa when crossing the external borders of the Member States.136 However, in its second subparagraph Article 7(4) enables the Member States to derogate from the latter prerequisite and to accept applications from third-country nationals that are only authorised or entitled for a short stay. 22 According to Article 7(5) Member States may determine whether the third-country national wishing to be admitted shall submit the application or the host entity (see Article 3(14)) or both of them. As a matter of fact, even where a Member States demands for a submission by the host entity, the third-country national who wishes to be admitted is the applicant as in legal terms. In this respect, Article 7(5) gives Member States the right to decide whether the applicant can submit his or her application on his/her own or if he/she is to be represented by the host entity (or if both options are to be considered equivalent). 21

Article 8 Specific conditions for researchers 1. In addition to the general conditions laid down in Article 7, as regards the admission of a third-country national for the purpose of research, the applicant shall present a hosting agreement or, if provided for in national law, a contract, in accordance with Article 10. 2. Member States may require, in accordance with national law, a written undertaking from the research organisation that, in the event that a researcher remains illegally in the territory of the Member State concerned, that research organisation is responsible for reimbursing the costs related to the 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. Where the right of residence of the researcher is extended in accordance with Article 25, the responsibility of the research organisation referred to in the first 136 See Article 3(1), 4(1) with Annex I and II of the Regulation (EU) 2018/1806 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).

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subparagraph of this paragraph shall be limited until the starting date of the residence permit for the purpose of job-searching or entrepreneurship. 3. A Member State which has established an approval procedure for research organisations in accordance with Article 9 shall exempt applicants from presenting one or more of the documents or evidence referred to in paragraph 2 of this Article or in points (c), (d) or (e) of Article 7(1) or in Article 7(2), where the third-country nationals are to be hosted by approved research organisations. Content I. II. III. IV.

General remarks and drafting history........................................................ Mandatory conditions (Article 8(1)) .......................................................... Optional conditions (Article 8(2)) .............................................................. Facilitated admission procedure (Article 8(3)) ........................................

mn. 1 3 6 9

I. General remarks and drafting history Article 8 includes the specific condition admissions for researchers and corre- 1 sponds by and large to Article 7 of the former Researchers Directive 2005/71/EC. It must, as is the case with Article 11, 12, 13, 14 and 16, be read together with Article 7 where the general admission conditions are set out. Once the general and the specific conditions are met, the applicant is entitled to be issued an authorisation (see Article 5(3)). The Commission’s proposal regarding Article 8137 was very close to Article 7 of 2 the former Researchers Directive 2005/71/EC except for adding several clauses concerning the application modalities which were later transferred into Article 7(4) and (5), now applying to all categories of third-country nationals under the Directive. The clause in Article 8(2) concerning the option for Member States to establish a financial responsibility of the research organisation for ‘its’ researchers was transferred there from its former position within a provision regarding a mandatory approval procedure that research organisations had to go through (see Article 5(3) of the former Researchers Directive 2005/71/EC and draft Article 8(3) of the Commission’s proposal138). On suggestion of the Council139, this responsibility has been limited in cases where the researcher is entitled to stay in the Member State’s territory to search for an employment or to set up a business after the completion of his/her research according to Article 25 to until the starting date of the residence permit issued for this purpose. Furthermore, the Council successfully promoted for a facilitated admission procedure as is set out in Article 8(3).140 This clause has to be read together with Article 9 where national approval procedures for research organisations are, also upon the Council’s recommendation, defined as optional. When Member States opt for approval procedures and a research organisation has been approved under national law, third-country nationals who have been accepted by this organisation shall be exempted ‘from presenting one or more of the documents or evidence’ to be demanded by Member States (see below MN 9). 137

Article 7 of the Proposal, COM(2013) 151, p. 38. Ibid., p. 39. 139 Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 43. 140 See Position (EU) of the Council at first reading (OJ 2016 C 170/1). 138

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Chp. 17 Art. 8

Students and Researchers Directive (EU) 2016/801

II. Mandatory conditions (Article 8(1)) Article 8(1) lists exhaustively all conditions which applicants have to fulfil, besides the general conditions laid down in Article 5, in order to be admitted under the Directive. 4 The conditions differ from the usual admission conditions for third-country nationals insofar as a number of requirements which usually have to be fulfilled may be considered as sufficiently guaranteed by checking the hosting agreement which in turn can only be signed under the conditions of Article 10(2). This includes particularly that the purpose of the admission has to be laid down in detail in the hosting agreement between the researcher and the research organisation; one of the means of the Directive’s concept to outsource immigration control to research organisations. 5 Checking the hosting agreement does not mean to recheck whether the conditions set out in Article 10 are fulfilled. Whether e.g. the estimated duration for respective research activity (see Article 10(2)(d)) is plausible, must not be assessed by national authorities. Otherwise one goal of the Directive, which is to defer major elements of control from immigration authorities to research organisations, would be foiled. According to Article 7(2) of the former Researchers Directive 2005/71/EC, Member States were competent to ‘check the terms upon which the hosting agreement has been based and concluded’. This provision was added 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. But there has never been a 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 10.141 This notion is now underlined by the deletion of the ‘check the terms’ clause in this Directive. If Member States have doubts about the ‘quality’ of hosting agreements that are presented to them, then they are, of course, free to make approval procedures mandatory for research organisations (see Article 9). 3

III. Optional conditions (Article 8(2)) 6

In its first subparagraph Article 8(2) gives Member States the right to require a written undertaking by the research organisation concerning the organisation’s responsibility for certain costs arising from an illegal stay of the researcher after the duration of his/her authorisation. In order to limit the risks of an incalculable financial responsibility for the research organisation and to avoid such organisations feeling discouraged to host third-country researchers, which would be at odds with the purpose of the Directive to attract third-country researchers, Article 8(2) needs to be interpreted restrictively. It should be taken into account that research organisations usually have not caused the illegal stay in the first place and in any case are incapable to do anything about ending the illegal stay of the third-country researcher. 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.142 Another limitation would be to exclude financial responsibility for costs incurred arising 141 142

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from a termination of the researcher’s authorisation to reside as a result of circumstances which were not foreseeable for the research organisation. In any case the responsibility of the research organisation is terminable, ending ‘at 7 the latest six months after the termination of the hosting agreement’, according to the second sentence of the fist subparagraph. When the researcher has completed his or her research and receives a residence permit according to Article 25(1) for the purpose to search for an employment or to set up a business, the organisation’s responsibility is terminated, too. The ‘dead-line’ here is the starting date of the new residence permit. However, Article 25 does not demand for a specific date for the submission of the application. Therefore, the second subparagraph of Article 8(2) does not exempt the research organisation from its financial responsibility if the researcher procrastinates the application under Article 25, unless the six months period set out in the second sentence of the first subparagraph is expired. Though, according to Article 25(5) Member States may require for the application to be submitted 30 days before the expiry of the previous authorisation which generally corresponds with the duration of the research activities. This is of importance, as usually under national law the thirdcountry national’s stay remains legal even after the expiry of a previous authorisation when an application, filed in due time, is still under examination by the migration authorities.143 In this case, the responsibility of the research organisation may already end with the completion of the third-country national’s research. Costs incurred from the stay of a researcher which do not result from his/her 8 remaining illegally in the territory of the Member State concerned do not fall under Article 8(2). 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 8(2) may not include costs arising from the researcher’s illegal stay in another EU Member State144 as the wording ‘remains illegally in the territory of the Member State concerned’145 speaks clearly against an extension of the financial responsibility to living expenses incurred in another EU Member State than the host state.146

IV. Facilitated admission procedure (Article 8(3)) Article 8(3) refers to Article 9 that enables Member States to provide for approval 9 procedures for research organisations. When a Member State decides to establish such procedures, it has to exempt applicants from at least one admission condition out of all conditions referred to in Article 8(3). As Article 8(3) demands for an exemption of ‘one or more of the documents or evidence referred to in’ the aforementioned paragraphs, at least one of these conditions has to be refrained of. Which requirement may be regarded as dispensable is left to the Member State’s discretion. However, some of the conditions to be exempted from are optional ones. Member 10 States are not obliged to demand for the applicant’s designated address or for the undertaking of the research organisation. They are free to define which evidence is 143 See e.g. Section 81 paragraph 4 Aufenthaltsgesetz (German Residence Act), BGBl. I, p. 162 (2008) as subsequently amended. (‘Fortbestehensfiktion’). 144 This is provided for by section 81(3) German Residence Act. 145 Emphasis added. 146 Like this also Wiesbrock, Legal Migration, p. 453; Peers and others (eds), EU Immigration and Asylum Law Vol. 2, p. 135.

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Chp. 17 Art. 9

Students and Researchers Directive (EU) 2016/801

necessary concerning the sufficient resources and to condition the admission on the payment of the procedure fee. Only the applicant’s presentation of a sickness insurance is mandatory. When a Member State already has abstained from one or more of the optional conditions, the requirement set out in Article 8(3) must in any case be regarded as satisfied. Otherwise, Member States already doing without the optional conditions would be disadvantaged. 11 The wording ‘exempt applicants from presenting one or more of the documents or evidence’ only refers to the verification of the respective admission conditions and not to the conditions as such. Nevertheless, as the exemption of submitting documents or other evidence makes it impossible to examine e.g. whether the applicant has a sickness insurance, this makes no difference. 12 Another main effect of the application of Article 9 is the shortening of the period as set out in Article 34 for the processing of the applications. According to Article 34(1) national authorities ‘shall adopt a decision on the application … as soon as possible but not later than 90 days from the date on which the complete application was submitted’. When, however, Member States adopt approval procedures according to Article 9 and if the research organisation concerned has been accordingly approved, the application shall be processed within at the most 60 days. This ‘fast-track procedure’ is based on a Council’s suggestion referring to a similar suggestion of the European Parliament.147

Article 9 Approval of research organisations 1. Member States may decide to provide for an approval procedure for public and/ or private research organisations wishing to host a researcher under the admission procedure laid down in this Directive. 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 State concerned. Applications for approval by research organisations shall be made in accordance with those procedures and be based on their statutory tasks or corporate purposes as appropriate and on evidence 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. A Member State may, among other measures, refuse to renew or decide to withdraw the approval where: (a) a research organisation no longer complies with paragraph 2 of this Article, Article 8(2) or Article 10(7); (b) the approval has been fraudulently acquired; or (c) a research organisation has signed a hosting agreement with a third-country national fraudulently or negligently. Where an application for renewal has been refused or where the approval has been withdrawn, the organisation concerned may be banned from reapplying for approval for a period of up to five years from the date of publication of the decision on non-renewal or withdrawal. 147 See Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 43; Position of the European Parliament at first reading of 25 February 2014 (OJ 2017 C 285/348), Article 29 a.

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Content I. General remarks .............................................................................................. II. Approval procedure (Article 9(2)) .............................................................. III. Refusal or withdrawal (Article 9(3))...........................................................

mn. 1 3 5

I. General remarks Article 5 of the former Researchers Directive 2005/71/EC provided for a mandatory 1 approval procedure concerning research organisations as defined in Article 3(10). The Commission’s 2016 recast proposal adopted this provision, however the Council successfully argued for a systematic change towards a non-mandatory approach. According to Article 9, Member States are now free to maintain approval procedures. When they decide to abstain from such procedures, a facilitated application procedure shall apply, including the exemption of (at least) one condition admission (see Article 8(2)), as well as a fast-track procedure (see Article 34(2)). Article 9(2) sets out a rudimental framework for approval procedures. Article 9(3) 2 specifies refusal and withdrawal grounds concerning an application for approval.

II. Approval procedure (Article 9(2)) For the application for an approval as well as for the approval as such, national law 3 shall apply. Therefore, the approval conditions are generally left to the discretion of the Member States. However, according to the second sentence of the first subparagraph of Article 9(2), the applications of research organisations shall ‘be based on their statutory tasks or corporate purposes as appropriate and on evidence that they conduct research’. Hence, the assessment of research organisations must be based on these criteria, too. While implementing Article 9, Member States have to respect the academic freedom. In a case concerning the Hungarian law of higher education, the ECJ recently stated with regards to Article 13 of the Charter of Fundamental Rights of the EU that ‘academic freedom in research and in teaching should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and to distribute knowledge and truth without restriction’.148 Hence, refusal and withdrawal grounds as set out in Article 9(3) have to be interpreted restrictively. Generally, the approval shall be granted for a period of at least five years according to 4 the second subparagraph of Article 9(2). Only in exceptional cases, defined by national law, a shorter period is possible.

III. Refusal or withdrawal (Article 9(3)) A refusal or a withdrawal of an approval can only be based on the grounds laid 5 down in Article 9(3). With regards to Article 13 of the Charter of Fundamental Rights of the EU this list must be regarded as exhaustive. Once, a Member State’s authority has found one of the grounds of Article 9(3) to be fulfilled, the application of Article 9(3) is within its discretion which means that a refusal or withdrawal is not 148

ECJ, Commission v. Hungary, C-66/18, EU:C:2020:792, para.225.

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Chp. 17 Art. 10

Students and Researchers Directive (EU) 2016/801

mandatory even when a ground is found to be fulfilled. Particularly, Member States can take ‘other measures’, which clarifies that non-renewal and withdrawal are not the only measures Member States may take; the list of possible measures is nonexhaustive.149 According to the last sentence of Article 9(3), a temporary ban on reapplying may follow the non-renewal/withdrawal. In each case, the Member State’s choice has to reflect the principle of proportionality, the protection of legitimate trust as well as the rule of law.

Article 10 Hosting agreement 1. A research organisation wishing to host a third-country national for the purpose of research shall sign a hosting agreement with the latter. Member States may provide that contracts containing the elements referred to in paragraph 2 and, where applicable, paragraph 3 shall be considered equivalent to hosting agreements for the purposes of this Directive. 2. The hosting agreement shall contain: (a) the title or purpose of the research activity or the research area; (b) an undertaking by the third-country national to endeavour to complete the research activity; (c) an undertaking by the research organisation to host the third-country national for the purpose of completing the research activity; (d) the start and end date or the estimated duration of the research activity; (e) information on the intended mobility in one or several second Member States if the mobility is known at the time of application in the first Member State. 3. Member States may also require the hosting agreement to contain: (a) information on the legal relationship between the research organisation and the researcher; (b) information on the working conditions of the researcher. 4. Research organisations may sign hosting agreements only if the research activity has been accepted by the relevant instances in the organisation, after examination of: (a) the purpose and estimated duration of the research activity, and the availability of the necessary financial resources for it to be carried out; (b) the third-country national’s qualifications in the light of the research objectives, as evidenced by a certified copy of the qualifications. 5. The hosting agreement shall automatically lapse if the third-country national is not admitted or when the legal relationship between the researcher and the research organisation is terminated. 6. Research organisations shall promptly inform the competent authority of the Member State concerned of any occurrence likely to prevent implementation of the hosting agreement. 7. Member States may provide that, within two months of the date of expiry of the hosting agreement concerned, the research organisation shall provide the competent authorities designated for that purpose with confirmation that the research activity has been carried out. 149 For a different view on Article 5(6) of the former Researchers Directive 2005/71/EC see Peers and others (eds), EU Immigration and Asylum Law Vol. 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.

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8. Member States may determine in their national law the consequences of the withdrawal of the approval or the refusal to renew the approval for the existing hosting agreements, concluded in accordance with this Article, as well as the consequences for the authorisations of the researchers concerned. Content I. II. III. IV. V. VI. VII.

mn. General remarks and drafting history........................................................ 1 Mandatory conditions (Article 10(2))........................................................ 4 Optional conditions (Article 10(3)) ............................................................ 6 Automatic termination (Article 10(5)) ...................................................... 7 Information duties (Article 10(6)) .............................................................. 8 Confirmation that research work has been carried out (Article 10(7)) 9 Consequences of the withdrawal of the approval or the refusal to renew the approval (Article 10(8)) ............................................................. 10

I. General remarks and drafting history Article 10 resembles by and large Article 6 of the former Researchers Directive 1 2005/71/EC. The constituent parts, as set out in Article 10(2), are described more precisely compared with Article 6(2) of the former Researchers Directive 2005/71/EC. Upon Council’s recommendation150 several mandatory provisions (information on the legal relationship between research organisation and researcher as well as on working conditions, financial resources for the research activity to be carried out, the thirdcountry national’s qualifications in the light of the research objectives) were changed into optional ones (see Article 10(3)). The hosting agreement is a legal agreement by which the researcher undertakes to 2 complete the research project and the research organisation undertakes to host the researcher for that purpose. Article 10(1) clarifies in its second sentence that contracts containing all elements required for a hosting agreement shall be regarded as equivalent. As the Council, who suggested this amendment, pointed out, this ‘modification stems from the current practice in some Member States’151. It is obvious, that the legal form of the agreement shall not be decisive. The hosting agreement or contract is concluded subject to the authorisation 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 10 are met. The hosting agreement is a cornerstone in the Directive’s division of roles between 3 research organisations and the immigration authorities of the Member States; a central innovation established by the former Researchers’ Directive 2005/71/EC.152 According to the Directive’s concept, the determination, if the conditions in Article 10 for signing an agreement are fulfilled, is primarily the responsibility of the research organisation. However, Member States may still check whether the conditions are indeed fulfilled.153 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 (see on this Article 8 MN 5).154 150

Position (EU) of the Council at first reading (OJ 2016 C 170/1). Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 43. 152 See also Kluth, Aufenthalt von Forschern, p. 234. 153 Commission Proposal, COM(2004) 178, p. 8. 154 Ibid. 151

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Chp. 17 Art. 10

Students and Researchers Directive (EU) 2016/801

II. Mandatory conditions (Article 10(2)) The mandatory conditions as a whole have been reformulated by the Commission’s proposal.155 The mandatory conditions as were set out in Article 6(2) of the former Researchers Directive 2005/71/EC have in part been changed into optional ones (see Article 10(3)) or transferred into the general admission conditions (sickness insurance, sufficient resources) as laid down in Article 7 (see Article 7(1)(c) and (e)). Article 10(2) demands for a rather detailed description of the hosting agreement or contract. One should point out that Article 10(2)(e) provides information on intended intra-EU mobility. This was added upon recommendation of the Council and is ‘considered important in the context of the mobility scheme devised for researchers under this Directive (Articles 28 and 29)’156. 5 According to Article 10(4) Member States must additionally require that the research project has been accepted by the relevant instances inside the organisation and that this acceptance is dependent upon an examination procedure by these instances. 4

III. Optional conditions (Article 10(3)) 6

Although the Directive does not regulate the kind of legal relationship and the underlying working conditions, a researcher ought to have with the research organisation (employment contract, scholarship, etc.),157 Article 10(3)(a) and (b) allows Member States to require that the legal relationship between researcher and research organisation as well as 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.158

IV. Automatic termination (Article 10(5)) 7

As an example for a termination according to Article 10(5), the Commission Proposal specifically mentions the case that a researcher subject to an employment contract is dismissed.159 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 10(6)) 8

Article 10(6) 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 155

Article 9(1) of the Commission Proposal, COM(2013) 151. Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 43. 157 Commission Proposal, COM(2004) 178, p. 9; Hofmann, Researcher’s Directive, p. 3. 158 Commission Report, COM(2011) 901, p. 4. 159 See on Article 6(4) of the former Researchers Directive 2005/71/EC, Commission Proposal, COM (2004) 178, p. 17. 156

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duty does not only apply to misdemeanours 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.160

VI. Confirmation that research work has been carried out (Article 10(7)) The provision enables the authorities responsible for approving research organisa- 9 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.

VII. Consequences of the withdrawal of the approval or the refusal to renew the approval (Article 10(8)) Article 10(8) has to be read together with Article 9(3) according to which the 10 approval of a research organisation can be withdrawn or refused to be renewed under given conditions. As the approval procedure is optional (see Article 9(1)), the same is true for the withdrawal or refusal of renewal and for the legal consequences with respect to existing hosting agreements and granted authorisations. Article 10(8) leaves these consequences to Member States’ discretion. However, the principle of proportionality, the protection of legitimate trust as well as the rule of law have to be respected not only when withdrawing or refusing to renew the approval (see above Article 9 MN 5), but also when determining the ramifications for the individual researcher.

Article 11 Specific conditions for students 1. In addition to the general conditions laid down in Article 7, as regards the admission of a third-country national for the purpose of studies, the applicant shall provide evidence: (a) that the third-country national has been accepted by a higher education institution to follow a course of study; (b) if the Member State so requires, that the fees charged by the higher education institution have been paid; (c) if the Member State so requires, of sufficient knowledge of the language of the course to be followed; (d) if the Member State so requires, that the third-country national will have sufficient resources to cover the study costs. 2. Third-country nationals who automatically qualify for sickness insurance for all risks normally covered for the nationals of the Member State concerned as a result of enrolment at a higher education institution shall be presumed to meet the condition laid down in point (c) of Article 7(1). 160

Ibid.

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3. A Member State which has established an approval procedure for higher education institutions in accordance with Article 15 shall exempt applicants from presenting one or more of the documents or evidence referred to in points (b), (c) or (d) of paragraph 1 of this Article or in point (d) of Article 7(1) or in Article 7(2), where the third-country nationals are to be hosted by approved higher education institutions. Article 11(1) lays down specific conditions which students have to fulfil in addition to those provided for by Article 7. Article 11(1)(a) as the only mandatory provision requires the applicant to be accepted by a higher education institution to follow a course of study (for the interpretation of these terms see above Article 3 MN 16, 29–30). 2 Article 11(1)(b)-(d) set out optional requirements, Member States may adopt concerning the payment of tuition fees, knowledge of language and sufficient resources to cover study costs. The latter provision complements the general requirement for sufficient resources to cover subsistence costs (see Article 7(1)(e)) where study costs, as well as fees, are excluded (see Article 7 MN 10). 3 Article 11(2) refers to Article 7(1)(c) and determines that students who as a result of the enrolment to an establishment of higher education automatically qualify for a sickness insurance, shall be presumed to satisfy this condition. 4 Article 11(3) resembles Article 8(3) in providing for a facilitated admission procedure. Hence, Member States demanding for an approval procedure for higher education institutions according to Article 15 shall at least exempt applicants from one admission condition as specified in Article 11(3); additionally a fast-track procedure concerning a student’s application for admission shall take place according to Article 34(2) (see mutatis mutandis Article 8 MN 9–12). 1

Article 12 Specific conditions for school pupils 1. In addition to the general conditions laid down in Article 7, as regards the admission of a third-country national for the purpose of a pupil exchange scheme or an educational project, the applicant shall provide evidence: (a) that the third-country national is neither below the minimum nor above the maximum age or grade set by the Member State concerned; (b) of acceptance by an education establishment; (c) of participation in a recognised, state or regional programme of education in the context of a pupil exchange scheme or educational project operated by an education establishment in accordance with national law or administrative practice; (d) that the education establishment, or, insofar as provided for by national law, a third party accepts responsibility for the third-country national throughout the stay in the territory of the Member State concerned, in particular as regards study costs; (e) that the third-country national will be accommodated throughout the stay by a family, in a special accommodation facility within the education establishment or, insofar as provided for by national law, in any other facility meeting the conditions set by the Member State concerned and selected in accordance with the rules of the pupil exchange scheme or educational project in which the third-country national is participating. 1090

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Chp. 17

2. Member States may limit the admission of school pupils participating in a pupil exchange scheme or educational project to nationals of third countries which offer the same possibility for their own nationals. School pupils must fulfil specific requirements in addition to the general conditions of 1 Article 7. First, they have to be within the age limit determined by every Member State. Second, they have to prove evidence of their acceptance by an education establishment (see above Article 3 MN 28). The third condition is that school pupils must participate in a pupil exchange scheme programme or educational 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 national competence. Unlike with students and trainees, school pupils’ resources are not to be verified by migration authorities. Instead, the applicant must, as a fourth condition, provide evidence that the organisation running the exchange scheme assumes liability in particular for his/her study costs. Unlike Article 9(1)(d) of the former Students Directive 2004/114/EC, Article 12(1)(d) of this Directive does not refer to subsistence, health care and return costs. The wording ‘in particular’ implies that a responsibility concerning these costs can also be demanded by Member States but is no longer mandatory. Fifth, school pupils have to be accommodated by a host family or, as added upon the Council’s recommendation161, in equivalent accommodation facilities. According to Article 12(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 13 Specific conditions for trainees 1. In addition to the general conditions laid down in Article 7, as regards the admission of a third-country national for the purpose of training, the applicant shall: (a) present a training agreement, which provides for a theoretical and practical training, with a host entity. Member States may require that such training agreement is approved by the competent authority and that the terms upon which the agreement has been based meet the requirements established in national law, collective agreements or practices of the Member State concerned. The training agreement shall contain: (i) a description of the training programme, including the educational objective or learning components; (ii) the duration of the traineeship; (iii) the placement and supervision conditions of the traineeship; (iv) the traineeship hours; and (v) the legal relationship between the trainee and the host entity; (b) provide evidence of having obtained a higher education degree within the two years preceding the date of application or of pursuing a course of study that leads to a higher education degree; (c) provide evidence, if the Member State so requires, that during the stay the thirdcountry national will have sufficient resources to cover the training costs; 161

Position (EU) of the Council at first reading (OJ 2016 C 170/1).

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(d) provide evidence, if the Member State so requires, that the third-country national has received or will receive language training so as to acquire the knowledge needed for the purpose of the traineeship; (e) provide evidence, if the Member State so requires, that the host entity accepts responsibility for the third-country national throughout the stay in the territory of the Member State concerned, in particular as regards subsistence and accommodation costs; (f) provide evidence, if the Member State so requires, that, if the third-country national is accommodated throughout the stay by the host entity, the accommodation meets the conditions set by the Member State concerned. 2. Member States may require the traineeship to be in the same field and at the same qualification level as the higher education degree or the course of study referred to in point (b) of paragraph 1. 3. Member States may require the host entity to substantiate that the traineeship does not replace a job. 4. Member States may require, in accordance with national law, a written undertaking from the host entity that, in the event that a trainee remains illegally in the territory of the Member State concerned, that host entity is responsible for reimbursing the costs related to the stay and return incurred by public funds. The financial responsibility of the host entity shall end at the latest six months after the termination of the training agreement. Article 13 lays down specific conditions which trainees have to fulfil in addition to the general conditions provided for by Article 7. The provision has to be read together with Article 3(5) defining trainees in a wider sense, therefore embracing paid and unpaid training activities, but also restricting the scope of Article 13 by only covering persons holding a degree of higher education or studying to obtain such a degree (see above Article 3 MN 15–17). 2 Article 13(1)(a) 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 trainee and the host entity, as defined in Article 3(14) (see above Article 3 MN 31). 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 in particular are not employed in place of proper workers in order to prevent a circumvention of national labour law.162 Similar to Article 10(1) concerning hosting agreements for researchers, Article 13(1) enlists the constituent parts of the training contract. 3 Article 13(1)(b) requires the applicant to provide evidence of having obtained a higher education degree within the two years preceding the date of application or of pursuing a course of study that leads to a higher education degree (for the definition of higher education see above Article 3 MN 16, 29–30). Article 13(1)(c) refers to sufficient resources but is, in addition to Article 7(1)(e) and similar to Article 11(1)(d), limited to study costs. It is left to the discretion of each Member State to impose this requirement. The same is true about Article 13(1)(d)-(f) concerning language knowledge, the host entity’s responsibility for other relevant costs (see mutatis mutandis above Article 12 MN 1) and the accommodation of the trainee. As for language knowledge, it is not necessary that trainees already possess sufficient language knowledge. Hence, the 1

162 See for Article 10 of the former Students Directive 2004/114/EC Commission Proposal, COM(2002) 548, p. 14.

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Chp. 17

provision is more flexible than the corresponding one for students (see Article 11(1)(c)), as language knowledge is regarded less necessary for vocational training than for studies. Article 13(2)-(4) provide for several ‘safeguards’ in order to avoid abuses and the 4 illegitimate substitution of proper employees (see above Article 3 MN 15). Therefore, Member States may define specific requirements concerning the equivalence of training field and qualification level, the assurance that no regular jobs are replaced by trainees and the financial responsibility of the host entity.

Article 14 Specific conditions for volunteers 1. In addition to the general conditions laid down in Article 7, as regards the admission of a third-country national for the purpose of voluntary service, the applicant shall: (a) provide an agreement with the host entity or, insofar as provided for by national law, another body responsible in the Member State concerned for the voluntary service scheme in which the third-country national is participating. The agreement shall contain: (i) a description of the voluntary service scheme; (ii) the duration of the voluntary service; (iii) the placement and supervision conditions of the voluntary service; (iv) the volunteering hours; (v) the resources available to cover the third-country national’s subsistence and accommodation costs and a minimum sum of money as pocket money throughout the stay; and (vi) where applicable, the training the third-country national will receive to help perform the voluntary service; (b) provide evidence, if the Member State so requires, that, if the third-country national is accommodated throughout the stay by the host entity, the accommodation meets the conditions set by the Member State concerned; (c) provide evidence that the host entity or, insofar as provided for by national law, another body responsible for the voluntary service scheme has subscribed to a third-party insurance policy; (d) provide evidence, if the Member State so requires, that the third-country national has received or will receive a basic introduction to the language, history, political and social structures of that Member State. 2. Member States may determine a minimum and maximum age limit for thirdcountry nationals who apply to be admitted to a voluntary service scheme without prejudice to the rules under the European Voluntary Service. 3. Volunteers participating in the European Voluntary Service shall not be required to present evidence under point (c) and, where applicable, point (d) of paragraph 1. Article 14 lays down specific conditions which volunteers have to fulfil in addition to 1 the general conditions provided for by Article 7. In Article 14(1)(a) and (c) the mandatory conditions are set out. The first condition concerns the participation in a voluntary service scheme. According to Article 14(1)(a), the volunteer must present an agreement concluded with the host entity (see Article 3(14)). The specifics of the Lehner/Gies

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agreement are laid down in lit. i)-vi). As follows from Article 14(1)(c), the volunteer has to provide evidence that the organisation running the scheme has subscribed to a thirdparty insurance policy. This insurance policy must cover all activities of the volunteer stipulated by the agreement pursuant to Article 14(1)(a). However, volunteers participating in the European Voluntary Service (see above Article 3 MN 18) are exempted from the insurance requirement according to Article 14(3). 2 Article 14(1)(b), (d) and (2) provide for additional requirements left to Member States’ discretion. The first of these conditions concerns adequacy of the accommodation if provided for by the host entity. The second condition refers to the cultural education of the volunteer. 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. The cultural education criterion is not requirable for volunteers participating in the European Voluntary Service according to Article 14(3). The last condition as is set out in Article 14(2) refers to the age of the applicant and is drafted in the same way as for school pupils in Article 12(1)(a); however, Member States are free to abstain from determining a definite age range. If they do determine one, it does not concern the admission of volunteers participating in the European Voluntary Service.

Article 15 Approval of higher education institutions, education establishments, organisations responsible for a voluntary service scheme or entities hosting trainees 1. For the purposes of this Directive, Member States may decide to provide for an approval procedure for higher education institutions, education establishments, organisations responsible for a voluntary service scheme or entities hosting trainees. 2. The approval shall be in accordance with procedures set out in the national law or administrative practice of the Member State concerned. 3. Where a Member State decides to establish an approval procedure in accordance with paragraphs 1 and 2, it shall provide clear and transparent information to the host entities concerned about, inter alia, the conditions and criteria for approval, its period of validity, the consequences of non-compliance, including possible withdrawal and non-renewal, as well as any sanction applicable. According to Article 15 Member States may provide for approval procedures for host entities (see Article 3(14)) except for research organisations. Approval procedures concerning the latter are covered by Article 9. Unlike Article 9, Article 15 gives no specific guidelines for the approval criteria and fully refers to national law. Article 15(3) demands for the publication of all relevant information on the approval conditions as well as on procedural issues. This information has to be clear and transparent. A list of all host entities approved under Article 15 has to be published as well (see the second subparagraph of Article 35). 2 The approval procedure, which is optional for Member States, has some legal consequences as are laid down in Article 11(3) and Article 34(3). According to Article 11(3) students applying for an admission shall be exempted from documentary evidence concerning at least one specific admission condition (see above Article 11 MN 4). Article 34(3) demands for a fast-track procedure in cases, where the applicant has been accepted by an approved host entity. The applications then shall be proceeded within 60 days. 1

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Art. 16

Chp. 17

Article 16 Specific conditions for au pairs 1. In addition to the general conditions laid down in Article 7, as regards the admission of a third-country national for the purpose of au pairing, the thirdcountry national shall: (a) provide an agreement between the third-country national and the host family defining the third-country national’s rights and obligations as an au pair, including specifications about the pocket money to be received, adequate arrangements allowing the au pair to attend courses and the maximum hours of family duties; (b) be between the age of 18 and 30. In exceptional cases, Member States may allow the admission of a third-country national, as an au pair, who is above the maximum age limit; (c) provide evidence that the host family or an organisation mediating au pairs, insofar as provided for by national law, accepts responsibility for the third-country national throughout the stay in the territory of the Member State concerned, in particular with regard to living expenses, accommodation and accident risks. 2. Member States may require the third-country national who applies to be admitted as an au pair to provide evidence: (a) of basic knowledge of the language of the Member State concerned; or (b) of having secondary education, professional qualifications or, where applicable, of fulfilling the conditions to exercise a regulated profession, as required by national law. 3. Member States may determine that the placement of au pairs shall only be carried out by an organisation mediating au pairs under the conditions defined in national law. 4. Member States may require the members of the host family to be of different nationality than the third-country national who applies to be admitted for the purpose of au pairing and not to have any family links with the third-country national concerned. 5. The maximum number of hours of au pair duties per week shall not exceed 25 hours. The au pair shall have at least one day per week free from au pair duties. 6. Member States may set a minimum sum of money as pocket money to be paid to the au pair. Article 16 lays down specific conditions which au pairs (see Article 3(8)) have to fulfil 1 in addition to the general conditions provided for by Article 7. Article 16(1)(a) demands for an agreement between the au pair and the host family (see Article 3(15)) determining the rights and duties of the au pair. The au pair’s duties must be limited to light housework and taking care of the children (see above Article 3 MN 20, 32). The upper time limit is settled in Article 16(5). Certain duties of the host family are also determined in Article 16(1)(a). The family must give some pocket money and let enough time to attend (language) courses. According to Article 16(6) Member States may determine a minimum amount of pocket money. The applicant generally shall be between 18 and 30 years old, according to 2 Article 16(1)(b), and only in exceptional cases Member States can admit older au pairs. Whereas the Commission had proposed a minimum age of 17 years,163 it was the 163

Article 14 lit. (a) of the Commission Proposal, COM(2013) 151.

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Council’s suggestion to rise the age to 18 years, following ‘the current practice in several Member States’164. In this respect, Article 16(1)(b) deviates from Article 4(1) of the European Agreement on ‘au pair’ Placement (see on this above Article 3 MN 20). Similar to Article 12(1)(d) and Article 13(1)(e) concerning the financial responsibility of host entities, Article 16(1)(c) demands for a mandatory responsibility of the host family concerning living expenses and other costs. The accommodation of the au pair is also required, thereby following Article 8(1) of the European Agreement on ‘au pair’ Placement according to which the received au pair shall be granted ‘board and lodging’ by the receiving family and, in doing so, be provided with a ‘separate room’, where it is possible. 3 The Council suggested additional restricting requirements concerning the admission of au pairs that are all laid down in Article 16(2), (3) and (4).165 According to these provisions, which are all optional, Member States can demand for further admission conditions to be fulfilled. Article 16(2) refers to, so to speak, ‘qualifications’ of the applicant in terms of language knowledge or educational or professional qualifications as set out by national law. Carrying out the placement of au pairs can be restricted to organisations mediating au pairs under the conditions defined in national law, according to Article 16(3). In this case, such organisations are subject to financial responsibilities according to Article 16(1)(c) as well. Article 16(4) gives Member States the right to require dissimilarity of nationalities between au pair and host family as well as the non-existence of family links in order to ensure that the main purpose of an au pair placement – that is the improvement of linguistic skills and knowledge (see above Article 3 MN 20) – will be served. The legal approach of Article 16(4) is slightly different from, for example, the course of action in German law generally requiring that the host family’s first language is German.166

CHAPTER III AUTHORISATIONS AND DURATION OF RESIDENCE Article 17 Authorisations 1. When the authorisation is in the form of a residence permit, Member States shall use the format laid down in Regulation (EC) No 1030/2002 and shall enter the term ‘researcher’, ‘student’, ‘school pupil’, ‘trainee’, ‘volunteer’ or ‘au pair’ on the residence permit. 2. When the authorisation is in the form of a long-stay visa, Member States shall enter a reference stating that it is issued to the ‘researcher’, ‘student’, ‘school pupil’, ‘trainee’, ‘volunteer’ or ‘au pair’ under the heading ‘remarks’ on the visa sticker. 3. For researchers and students coming to the Union in the framework of a specific Union or multilateral programme that comprises mobility measures, or an agreement between two or more recognised higher education institutions, the authorisation shall make a reference to that specific programme or agreement. 4. When the authorisation for long-term mobility is issued to a researcher in the form of a residence permit, Member States shall use the format laid down in 164

Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 45. See ibid. 166 See on this Hailbronner/Lehner, in Hailbronner, Ausländerrecht Kommentar, BeschV MN 103. Germany has decided only to apply the mandatory provisions of this Directive which is not the case for Article 16 (see above Article 2 MN 2), see on this German Bundestag, Drucksache 18/11136, p. 2. 165

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Art. 18

Chp. 17

Regulation (EC) No 1030/2002 and enter ‘researcher-mobility’ on the residence permit. When the authorisation for long-term mobility is issued to a researcher in the form of a long-stay visa, Member States shall enter ‘researcher-mobility’ under the heading ‘remarks’ on the visa sticker.

Article 18 Duration of authorisation 1. The period of validity of an authorisation for researchers shall be at least one year, or for the duration of the hosting agreement where this is shorter. The authorisation shall be renewed if Article 21 does not apply. The duration of the authorisation for researchers who are covered by Union or multilateral programmes that comprise mobility measures shall be at least two years, or for the duration of the hosting agreement where this is shorter. If the general conditions laid down in Article 7 are not met for the two years or for the whole duration of the hosting agreement, the first subparagraph of this paragraph shall apply. Member States shall retain the right to verify that the grounds for withdrawal set out in Article 21 do not apply. 2. The period of validity of an authorisation for students shall be at least one year, or for the duration of studies where this is shorter. The authorisation shall be renewed if Article 21 does not apply. The duration of the authorisation for students who are covered by Union or multilateral programmes that comprise mobility measures or by an agreement between two or more higher education institutions shall be at least two years, or for the duration of their studies where this is shorter. If the general conditions laid down in Article 7 are not met for the two years or for the whole duration of the studies, the first subparagraph of this paragraph shall apply. Member States shall retain the right to verify that the grounds for withdrawal set out in Article 21 do not apply. 3. Member States may determine that the total time of residence for studies shall not exceed the maximum duration of studies as defined in national law. 4. The period of validity of an authorisation for school pupils shall be for the duration of the pupil exchange scheme or the educational project where this is shorter than one year, or for a maximum of one year. Member States may decide to allow the renewal of the authorisation once for the period necessary to complete the pupil exchange scheme or the educational project if Article 21 does not apply. 5. The period of validity of an authorisation for au pairs shall be for the duration of the agreement between the au pair and the host family where this is shorter than one year, or for a maximum period of one year. Member States may decide to allow the renewal of the authorisation once for a maximum period of six months, after a justified request by the host family, if Article 21 does not apply. 6. The period of validity of an authorisation for trainees shall be for the duration of the training agreement where this is shorter than six months, or for a maximum of six months. If the duration of the agreement is longer than six months, the duration of the validity of the authorisation may correspond to the period concerned in accordance with national law. Member States may decide to allow the renewal of the authorisation once for the period necessary to complete the traineeship if Article 21 does not apply. Lehner/Gies

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7. The period of validity of an authorisation for volunteers shall be for the duration of the agreement referred to in point (a) of Article 14(1) where this is shorter than one year, or for a maximum period of one year. If the duration of the agreement is longer than one year, the duration of the validity of the authorisation may correspond to the period concerned in accordance with national law. 8. Member States may determine that, in case the validity of the travel document of the third-country national concerned is shorter than one year or shorter than two years in the cases referred to in paragraphs 1 and 2, the period of validity of the authorisation shall not exceed the period of validity of the travel document. 9. Where Member States allow entry and residence during the first year on the basis of a long-stay visa, an application for a residence permit shall be submitted before the expiry of the long-stay visa. The residence permit shall be issued if Article 21 does not apply.

Article 19 Additional information 1. Member States may indicate additional information in paper format or store such information in electronic format, as referred to in Article 4 of Regulation (EC) No 1030/2002 and point (a) 16 of the Annex thereto. This information may relate to the residence and, in cases covered by Article 24 of this Directive, the economic activities of the student and include in particular the full list of Member States that the researcher or student intends to go to in the framework of mobility or relevant information on a specific Union or multilateral programme that comprises mobility measures or an agreement between two or more higher education institutions. 2. Member States may also provide that the information referred to in paragraph 1 of this Article shall be indicated on the long-stay visa, as referred to in point 12 of the Annex to Council Regulation (EC) No 1683/95(22). Content mn. I. General remarks .............................................................................................. 1 II. Form................................................................................................................... 2 III. Period of validity............................................................................................. 3 1. Researchers (Article 18(1)) ....................................................................... 3 2. Students (Article 18(2), (3)) ..................................................................... 4 3. School pupils (Article 18(4)).................................................................... 6 4. Au pairs (Article 18(5))............................................................................. 7 5. Trainees (Article 18(6))............................................................................. 8 6. Volunteers (Article 18(7))......................................................................... 9 7. Further requirements (Article 18(8), (9)) ............................................. 10

I. General remarks 1

Article 17–19 determine the form and the period of validity, but not the conditions for first admission. (22) 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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Chp. 17

II. Form Article 17(1) provides for the specific form of a residence permit, Article 17(2) for 2 the form of a visa, both constituting the authorisation according to Article 3(21). Article 17(3) and (4) demand for the account of specific information concerning intraEU mobility rights as referred to in Article 17–29. According to Article 19 Member States may indicate additional information.

III. Period of validity 1. Researchers (Article 18(1)) Article 18(1) states as a basic principle a duration of one year unless the planned 3 research project is shorter in which case the permit covers the duration of the project. Member States are 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. In the second subparagraph a general duration for two years is demanded concerning researchers who are covered by Union or multilateral programmes that comprise mobility measures (see Article 3(20)). Unless the general admission conditions as laid down in Article 7 are not fulfilled for a whole year, the one-year duration provision shall apply. Article 18(1) applies with no prejudice to the migration authorities’ competence to withdraw an authorisation according to Article 21.

2. Students (Article 18(2), (3)) According to Article 18(2), the first authorisation for students shall, in principle, be 4 issued for a period of at least one year. In the second subparagraph a general duration for two years is demanded concerning students who are covered by Union or multilateral programmes that comprise mobility measures (see Article 3(20)). In cases, in which the course of study is shorter than two years, the period of validity of the authorisation shall not exceed beyond the duration of the course of study. The application of the second subparagraph follows the same rules as is the case for the second subparagraph of Article 18(1). Member States are generally free to issue an authorisation for more than one year to 5 cover the full duration of the course of study. According to Article 18(3) Member States may also limit the total time of residence for studies to the maximum duration of studies as defined in national law. When this maximum is expired and studies have been successfully finished, Article 25, however, entitles the students to stay for another period of at least nine months in order to search for employment or to set up a business. This additional period can therefore not be restricted under Article 18(3).

3. School pupils (Article 18(4)) Authorisations for school pupils shall be issued for no more than one year. Upon 6 Council’s recommendation167 Article 18(4) explicitly states an exception for cases in which pupil exchange schemes or educational projects last longer than one year. In these cases, authorisations may be renewed, but only once. However, as Article 4(2) 167

Position (EU) of the Council at first reading (OJ 2016 C 170/1).

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entitles Member States to adopt more favourable provisions in regard to Article 18, they are also free to renew respective authorisations more than once.

4. Au pairs (Article 18(5)) 7

Authorisations for au pairs shall be issued for no more than one year. However, Member States are free to renew the authorisation once and for a period of another six months upon the ‘justified request’ of the host family. As a matter of fact, this limitation is without prejudice for the Member States’ right to adopt more favourable conditions as follows from Article 4(2).

5. Trainees (Article 18(6)) 8

As regards trainees, residence permits shall be issued for the maximum time of six months. In this regard, Article 18(6) is more restrictive than Article 14 of the former Students Directive 2004/114/EC which provided for a maximum time of one year. The limitation was introduced by the Council168 and must be considered together with further restrictions concerning the admission of trainees (see above Article 3 MN 15). For longer agreements, however, Member States may provide for a longer duration according to national law. A one-time renewal may be provided for as well. This limitation is without prejudice for the Member States’ right to adopt more favourable conditions as follows from Article 4(2).

6. Volunteers (Article 18(7)) 9

Authorisations for volunteers shall be issued, in principle, for no more than one year. For longer agreements, however, Member States may provide for a longer duration according to national law.

7. Further requirements (Article 18(8), (9)) 10

The general durations as are set out in Article 18(1)-(2) are with reservation of Article 18(8), providing for shorter durations according to the validity of the travel document. As follows from Article 18(9), applications for residence permits must be submitted before the expiry of a long-stay visa in cases where a third-country national was admitted by issuing the latter (see above Article 5 MN 6).

CHAPTER IV GROUNDS FOR REJECTION, WITHDRAWAL OR NON-RENEWAL OF AUTHORISATIONS Article 20 Grounds for rejection 1. Member States shall reject an application where: (a) the general conditions laid down in Article 7 or the relevant specific conditions laid down in Articles 8, 11, 12, 13, 14 or 16 are not met; (b) the documents presented have been fraudulently acquired, or falsified, or tampered with; 168

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Art. 20

Chp. 17

(c) the Member State concerned only allows admission through an approved host entity and the host entity is not approved. 2. Member States may reject an application where: (a) the host entity, another body as referred to in point (a) of Article 14(1), a third party as referred to in point (d) of Article 12(1), the host family or the organisation mediating au pairs has failed to meet its legal obligations regarding social security, taxation, labour rights or working conditions; (b) where applicable, the terms of employment as provided for in national law or collective agreements or practices in the Member State concerned are not met by the host entity or host family that will employ the third-country national; (c) the host entity, another body as referred to in point (a) of Article 14(1), a third party as referred to in point (d) of Article 12(1), the host family or the organisation mediating au pairs has been sanctioned in accordance with national law for undeclared work or illegal employment; (d) the host entity was established or operates for the main purpose of facilitating the entry of third-country nationals falling under the scope of this Directive; (e) where applicable, the host entity’s business is being or has been wound up under national insolvency laws or no economic activity is taking place; (f) the Member State has evidence or serious and objective grounds to establish that the third-country national would reside for purposes other than those for which he or she applies to be admitted. 3. Where a third-country national applies to be admitted to enter into an employment relationship in a Member State, that Member State may verify whether the post in question could be filled by nationals of that Member State or by other Union citizens, or by third-country nationals lawfully residing in that Member State, in which case it 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. 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 mn. I. General remarks .............................................................................................. 1 II. Mandatory grounds ........................................................................................ 3 1. Non-fulfilment of admission conditions (Article 20(1)(a)) .............. 3 2. Fraudulently acquired or false documents (Article 20(1)(b)) .......... 4 3. Non-approved host entity (Article 20(1)(c))........................................ 5 III. Optional grounds ............................................................................................ 6 1. Non-observance of legal obligations (Article 20(2)(a)) ..................... 6 2. Non-observance of terms of employment (Article 20(2)(b)) ........... 7 3. Sanctioned entities (Article 20(2)(c))..................................................... 8 4. Bankrupt entities (Article 20(2)(e))........................................................ 9 5. Misuse of hosting (Article 20(2)(d), (f)) ............................................... 10 6. Labour market test (Article 20(3)).......................................................... 11

I. General remarks Article 20 has a predecessor neither in the former Students Directive 2004/114/EC 1 nor in the former Researchers Directive 2005/71/EC. However, in regard to the former Lehner/Gies

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Chp. 17 Art. 20

Students and Researchers Directive (EU) 2016/801

Students Directive 2004/114/EC, in Ben Alaya169 the ECJ held that Member States are obliged to admit applicants who fulfil the Directive’s admission conditions (see above Article 5 MN 8). As a consequence, Article 20 enumerates possible grounds to reject an application for admission, thereby compiling an exhaustive list. Whereas Article 20(1) sets out mandatory rejection grounds, Article 20(2) gives further rejection grounds that are optional for the Member States, as a result of a Council’s suggestion.170 The same is true for Article 20(3) concerning national labour market tests leading to a rejection. When rejecting an application, national authorities are obliged to take into account the specific circumstances of the case and to act proportionally, according to Article 20(4). 2 Article 20 only governs the rejection of a first application. The rejection of renewal applications as well as the withdrawal of given authorisations is specified in Article 21.

II. Mandatory grounds 1. Non-fulfilment of admission conditions (Article 20(1)(a)) 3

The application shall be rejected if either the general admissions as are set out in Article 7 or the specific conditions concerning the respective category of applicants (researchers, students, trainees, etc.) are not met.

2. Fraudulently acquired or false documents (Article 20(1)(b)) 4

Article 20(1)(b) deals with documents that lack authenticity or truth. The provision is common to EU migration law (see Article 8(1) of the Blue Card Directive 2009/50/ EC171). Therefore, a well-established doctrine can be adopted for the context of this Directive. ‘Fraudulently acquired’ refers to the case that the authority issuing the documents has been deceived prior to issuing the document. ‘Falsified’ refers to documents that have not been issued by the competent authority but instead been produced by another person. The term ‘tampered with’ refers to documents that were issued correctly but have been manipulated afterwards, hereby also becoming a false document (see also interpretation Herzog-Schmidt/Lehner, Blue Card Directive 2009/ 50/EC, Article 8 MN 2).

3. Non-approved host entity (Article 20(1)(c)) 5

Article 20(1)(c) has to be read together with Article 9 and 15 providing for optional approval procedures for research organisations and all (other) forms of host entities. Although the term ‘host entity’ generally has to be distinguished from ‘research organisation’ (see Article 3(10) and (14)), the drafting history of this provision, added upon Council’s recommendation,172 strongly supports a broader meaning of the term ‘host entity’ in the context of Article 20 than in Article 3(14). The Council itself has used this term in regard to both Article 15 and 9.173 For systematic reasons as well, Member States deciding to adopt approval procedures for research organisations as is allowed for in Article 9 must have the right to reject applications when the respective organisation has not been approved under national law.

169

ECJ, Ben Alaya, C-491/13, EU:C:2014:2187. Position (EU) of the Council at first reading (OJ 2016 C 170/1). 171 OJ L 155, 18.6.2009, p. 17. 172 Position (EU) of the Council at first reading (OJ 2016 C 170/1). 173 See Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 43. 170

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Art. 20

Chp. 17

III. Optional grounds 1. Non-observance of legal obligations (Article 20(2)(a)) Article 20(2)(a) enumerates host entities and other relevant actors and refers to the 6 non-observance of legal duties ‘regarding social security, taxation, labour rights or working conditions’. The legal obligations concerned must have a connection with the Directive’s purpose which is the admission of third-country nationals to be hosted by entities or persons in a Member State. A restrictive interpretation of this provision can be supported by a systematic analysis of all rejection grounds listed in Article 20(2) aiming at the prevention of misuse of hosting agreements or the exploitation of the applicants. Therefore, for example, a host family being prosecuted for tax evasion cannot be banned from hosting an au pair under this Directive, as this infringement has nothing to do with legal duties in the context of au pair placements. Furthermore, Article 20(2)(a) must be applied in respect of the principle of proportionality (see Article 20(4)). The rule of law must be particularly respected in this regard, for example concerning the statute of limitations.

2. Non-observance of terms of employment (Article 20(2)(b)) Host entities and families not observing the terms of employment as are provided for 7 at the Member State level can be banned from employing third-country nationals under this Directive which applies to researchers, trainees, volunteers and au pairs. As the provision ‘aims to protect third-country nationals from exploitation and to avoid social dumping’174, it must be interpreted rather extensively. For example, an organisation mediating au pairs while infringing labour laws in matters of the employment of a secretary, can be banned from hosting au pairs under this Directive, respective applications can be rejected.

3. Sanctioned entities (Article 20(2)(c)) Article 20(2)(c) enumerates host entities and other relevant actors and refers to 8 sanctions having been imposed against those concerning undeclared work or illegal employment. As far as sanctions are taken into account, Member States have to respect the principle of proportionality as well as the rule of law (see above MN 6).

4. Bankrupt entities (Article 20(2)(e)) Host entities being wound up under national insolvency laws or without any 9 economic activity may also be banned by Member States.

5. Misuse of hosting (Article 20(2)(d), (f)) Article 20(2)(d) and (f) deal with misuses of a hosting under this Directive. Whereas 10 Article 20(2)(d) targets host entities misusing the hosting of trainees, volunteers or au pairs by facilitating the mere entry of third-country nationals, Article 20(2)(f) envisages applicants trying to use the admission under this Directive to enter a Member State for a purpose other than training, volunteering or au pairing. An abuse under Article 20 (2)(d) might be indicated when only third-country nationals are employed within a host entity. However, following from Article 20(4) and more generally from the rule of law, 174

Ibid., p. 46.

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Chp. 17 Art. 21

Students and Researchers Directive (EU) 2016/801

all circumstances of the case have to been taken into account. Hence, the overall employment of third-country nationals can serve only as an indication and can be customary within the specific sector, as is for example generally the case for au pair placements.

6. Labour market test (Article 20(3)) 11

On suggestion of the Council, Article 20(3) was added during the drafting process. The provision enables Member States to conduct labour market tests ‘as it is important for Member States to be able to manage their labour markets’175. Article 20(3) is coherent with other EU migration law such as Article 8(2) of the Blue Card Directive 2009/50/EC. Hence, Member States may first verify if an employment vacancy can 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 (see also interpretation Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC, Article 8 MN 4). The principle of EU preference as can be set out in provisions of acts of accession shall not be affected.

Article 21 Grounds for withdrawal or non-renewal of an authorisation 1. Member States shall withdraw or, where applicable, refuse to renew an authorisation where: (a) the third-country national no longer meets the general conditions laid down in Article 7, except for Article 7(6), or the relevant specific conditions laid down in Articles 8, 11, 12, 13, 14, 16 or the conditions laid down in Article 18; (b) the authorisation or the documents presented have been fraudulently acquired, or falsified, or tampered with; (c) the Member State concerned only allows admission through an approved host entity and the host entity is not approved; (d) the third-country national is residing for purposes other than those for which the third-country national was authorised to reside. 2. Member States may withdraw or refuse to renew an authorisation where: (a) the host entity, another body as referred to in point (a) of Article 14(1), a third party as referred to in point (d) of Article 12(1), the host family or the organisation mediating au pairs has failed to meet its legal obligations regarding social security, taxation, labour rights or working conditions; (b) where applicable, the terms of employment as provided for in national law or collective agreements or practices in the Member State concerned are not met by the host entity or host family employing the third-country national; (c) the host entity, another body as referred to in point (a) of Article 14(1), a third party as referred to in point (d) of Article 12(1), the host family or the organisation mediating au pairs has been sanctioned in accordance with national law for undeclared work or illegal employment; (d) the host entity was established or operates for the main purpose of facilitating the entry of third-country nationals falling under the scope of this Directive; (e) where applicable, the host entity’s business is being or has been wound up under national insolvency laws or no economic activity is taking place; 175

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Art. 21

Chp. 17

(f) with regard to students, the time limits imposed on access to economic activities under Article 24 are not respected or a student does not make sufficient progress in the relevant studies in accordance with national law or administrative practice. 3. In the event of withdrawal, when assessing the lack of progress in the relevant studies, as referred to in point (f) of paragraph 2, a Member State may consult with the host entity. 4. Member States may withdraw or refuse to renew an authorisation for reasons of public policy, public security or public health. 5. Where a third-country national applies for renewal of the authorisation to enter into or continue to be in an employment relationship in a Member State, with the exception of a researcher who continues the employment relationship with the same host entity, that Member State may verify whether the post in question could be filled by nationals of that Member State or by other Union citizens, or by thirdcountry nationals who are long-term residents in that Member State, in which case they may refuse to renew the authorisation. 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. 6. Where a Member State intends to withdraw or not renew the authorisation of a student in accordance with points (a), (c), (d) or (e) of paragraph 2, the student shall be allowed to submit an application to be hosted by a different higher education institution for an equivalent course of study in order to enable the completion of the studies. The student shall be allowed to stay on the territory of the Member State concerned until the competent authorities have taken a decision on the application. 7. Without prejudice to paragraph 1, any decision to withdraw or refuse to renew an authorisation shall take account of the specific circumstances of the case and respect the principle of proportionality. Content I. General remarks .............................................................................................. II. Mandatory grounds (Article 21(1)) ............................................................ 1. Non-fulfilment of admission conditions (Article 21(1)(a)) .............. 2. Fraudulently acquired or false documents (Article 21(1)(b)), nonapproved host entity (Article 21(1)(c) ................................................... 3. Applicant’s misuse of his/her authorisation (Article 21(1)(d))........ III. Optional grounds (Article 21(2), (4), (5))................................................. IV. Applying to another higher education institution (Article 21(6)).......

mn. 1 4 4 5 6 7 9

I. General remarks The conditions for the non-renewal and withdrawal of authorisations are laid down 1 in Article 21 including general conditions as well as specific conditions for renewal concerning each category of persons. Similar to Article 20, Article 21 enumerates several mandatory and optional grounds for the withdrawal or non-renewal. Depending on the category, renewal might be possible in general or in exceptional cases only; the details are laid down in Article 18. Therefore, Article 21 has to be read together with Article 18 when an application for 2 renewal is submitted. Article 18 sets out the positive conditions for a renewal depending on the specific category of the applicant and hereby defining the maximum period.

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Chp. 17 Art. 21

Students and Researchers Directive (EU) 2016/801

If a positive condition is not met, the application for renewal shall be rejected as follows from Article 18(1)(a) (‘the third-country national no longer meets … the conditions laid down in Article 18’). When the conditions in Article 18 are fulfilled, in a second step migration authorities have to check if any one of the negative conditions as set out in Article 21 are met. If this is the case, the application shall (Article 21(1)) or may (Article 21(2), (4) (5)) be rejected as well. 3 As is the same for Article 9 of the Blue Card Directive 2009/50/EC, the refusal and withdrawal grounds in Article 21 are exhaustive (see also interpretation HerzogSchmidt/Lehner, Blue Card Directive 2009/50/EC, Article 9 MN 1). According to Article 21(7), national authorities are obliged to take into account the specific circumstances of the case and to act proportionally when rejecting a renewal application or withdrawing an authorisation, except in the case of a mandatory ground.

II. Mandatory grounds (Article 21(1)) 1. Non-fulfilment of admission conditions (Article 21(1)(a)) 4

The renewal application shall be rejected or the authorisation be withdrawn if either the general admissions as are set out in Article 7 (except paragraph 6, see below MN 8) or the specific conditions concerning the respective category of applicants (researchers, students, trainees, etc.) are no longer met. The specific conditions include the provisions in Article 18, concerning the maximum duration period and the general renewability of the respective authorisation.

2. Fraudulently acquired or false documents (Article 21(1)(b)), non-approved host entity (Article 21(1)(c)) 5

The provisions are the same as in Article 20(1)(b) and (c) (see above Article 20 MN 4).

3. Applicant’s misuse of his/her authorisation (Article 21(1)(d)) 6

The provision is the same as in Article 20(2)(f) (see above Article 20 MN 10). However, Article 21(1)(d) is not optional. Unlike Article 20(2)(f), the provision does not demand for ‘serious and objective grounds’. Therefore, the threshold for a rejection of renewal or a withdrawal is lower than in the case for a rejection of the application for first admission. The lowering of the burden of proof in Article 21(1)(d) is justified because of the fact that the third-country national in the context of Article 21 has already been staying in the territory of the Member States for a specific purpose under this Directive. In the context of Article 20, however, the authorities’ assessment can only be based on a prognosis, therefore demanding for an even more profound justification. Nevertheless, a decision based on Article 21(1)(d) must also refer to objective grounds, which follows from Article 21(7) and more generally the rule of law. Particularly, migration authorities can take into account the recent (non-)performance of relevant activities (e.g. searching for an employment instead of studying) during his or her stay.

III. Optional grounds (Article 21(2), (4), (5)) 7

The relevant provisions set out in Article 21(2)(a)-(e) are the same as in Article 20(2) (a)-(e), Article 20(5) is the same as Article 20(3) (see above Article 20 MN 6–9, 11). 1106

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Art. 22

Chp. 17

Article 21(1)(f) entails a specific rejection or withdrawal ground for students that were admitted according to Article 7 and 11. It refers to progress in studying as set out by national law and to the employment limitations as set out in Article 24. Article 21(3) was added during the drafting process, after the European Parliament had demanded for a mandatory consultation of the respective higher education institution in cases where there is no sufficient progress in studying.176 In the final version of the Directive, the consultation clause is however not mandatory but only optional. Article 21(4) refers to Article 7(6) (see above Article 7 MN 11–19) and leaves it to the 8 Member States’ discretion to reject a renewal application or to withdraw an authorisation for grounds of public policy, etc. The wording of Article 21(4) is more flexible than the one of Article 7(6) (‘considered to pose a threat’) (on the same issue see interpretation Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC, Article 9 MN 7).

IV. Applying to another higher education institution (Article 21(6)) Article 21(6) reflects the fact that Article 21(2) envisages several situations ‘where 9 withdrawal or non-renewal is considered for reasons that do not concern the student’177, as was pointed out by the Council, thereby consenting to a suggestion made by the European Parliament178. The third-country national’s right to stay in the Member State is limited to the period of assessing his or her application for a new admission, following to the acceptance of another higher education institution.

CHAPTER V RIGHTS Article 22 Equal treatment 1. Researchers shall be entitled to equal treatment with nationals of the Member State concerned as provided for in Article 12(1) and (4) of Directive 2011/98/EU. 2. Member States may restrict equal treatment as regards researchers: (a) under point (c) of Article 12(1) of Directive 2011/98/EU, by excluding study and maintenance grants and loans or other grants and loans; (b) under point (e) of Article 12(1) of Directive 2011/98/EU, by not granting family benefits to researchers who have been authorised to reside in the territory of the Member State concerned for a period not exceeding six months; (c) under point (f) of Article 12(1) of Directive 2011/98/EU, by limiting its application to cases where the registered or usual place of residence of the family members of the researcher for whom he or she claims benefits lies in the territory of the Member State concerned; (d) under point (g) of Article 12(1) of Directive 2011/98/EU by restricting access to housing. 176 Position of the European Parliament at first reading of 25 February 2014 (OJ 2017 C 285/348), Article 19(2)(g) second sentence. 177 See Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 46. 178 Position of the European Parliament at first reading of 25 February 2014 (OJ 2017 C 285/348), Article 19(2a).

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Chp. 17 Art. 23

Students and Researchers Directive (EU) 2016/801

3. Trainees, volunteers and au pairs, when they are considered to be in an employment relationship in the Member State concerned, and students shall be entitled to equal treatment with nationals of the Member State concerned as provided for in Article 12(1) and (4) of Directive 2011/98/EU subject to the restrictions provided for in paragraph 2 of that Article. 4. Trainees, volunteers, and au pairs, when they are not considered to be in an employment relationship in the Member State concerned, and school pupils shall be entitled to equal treatment in relation to access to goods and services and the supply of goods and services made available to the public, as provided for by national law, as well as, where applicable, in relation to recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures. Member States may decide not to grant them equal treatment in relation to procedures for obtaining housing and/or services provided by public employment offices in accordance with national law. Article 22(1) provides for equal treatment of researchers admitted under the Directive, thereby referring to the Single Permit Directive 2011/98/EU. However, not all elements of Article 12 of the Single Permit Directive are mandatory. According to Article 22(2) Member States may restrict some equal treatment rights in regard to researchers ((a) and (d)) or their family members ((b) and (c)). As it was the case with Article 12 of the former Researchers Directive 2005/71/EC, equal rights have to be granted in particular as to working conditions, freedom of association and affiliation, the recognition of diplomas, social security and the access to goods and services. 2 Trainees, volunteers and au pairs benefit from equal treatment rights as well, if they are considered to be in an employment relationship by national law. If so, according to Article 22(3), they have the same rights as are set out for researchers in Article 22(1) and (2). If they are considered to be non-employees, they have the right to equal access to certain goods and services in terms of Article 12(1)(g) of the Single Permit Directive 2011/98/EU (except housing) as well as to the recognition of diplomas, etc. (see Article 12(1)(d) of the Single Permit Directive), according to Article 22(4); the same is true for for school pupils. As far as procedures for obtaining housing are considered, the second subparagraph of Article 22(4) explicitly states that Member States are free not to grant equal treatment in this field. 1

Article 23 Teaching by researchers Researchers may, in addition to research activities, teach in accordance with national law. Member States may set a maximum number of hours or of days for the activity of teaching. 1

Article 23 entitles researchers to teach, though Member States keep the right to determine the details. Whereas the Commission’s explanatory memorandum concerning Article 11 of the former Researchers Directive 2005/71/EC indicated that there needs to be a connection between the researcher’s scientific research and his/her teaching activities,179 the adopted text as well as Article 23 of this Directive do not support this view. 179 Commission Proposal, COM(2004) 178, p. 19: ‘may lecture on previous work or on the ongoing research they are involved in’.

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Art. 24

Chp. 17

Furthermore, Article 13 of the Charter of Fundamental Right of the EU generally demands that ‘academic freedom in research and in teaching should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and to distribute knowledge and truth without restriction’.180 According to the second sentence, Member States are allowed to set a maximum 2 number of hours or of days 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 24 Economic activities by students 1. Outside their study time and subject to the rules and conditions applicable to the relevant activity in the Member State concerned, students shall be entitled to be employed and may be entitled to exercise self-employed economic activity, subject to the limitations provided for in paragraph 3. 2. Where necessary, Member States shall grant students and/or employers prior authorisation in accordance with national law. 3. 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 15 hours per week, or the equivalent in days or months per year. The situation of the labour market in the Member State concerned may be taken into account. According to Article 24(1), the right to work is granted to students, as regards 1 employment, whereas it is left to the discretion of the Member States concerning selfemployment. 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. Article 24(2) obligates Member States who require students to have a work permit in order to work, to grant it. Unlike Article 17(3) of the former Students Directive 2004/114/EC, Article 24 does not allow Member States to restrict labour market access in the first year. Students who work will usually fulfil the definition of worker in the sense of 2 Article 45 TFEU (of course without giving them any kind of free movement rights as they are not EU citizens). They might also fulfil the conditions of Article 6(1) Decision 1/80181 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 1/80.182 Article 24(3) provides for some restrictions. In its first sentence, it limits the labour 3 time, intending to preserve the prime objective of the student’s stay, which is to study. According to the second sentence, Member States may take into account the situation of their labour market. As the ECJ ruled out in Sommer, Member States may ‘take into 180

ECJ, Commission v. Hungary, C-66/18, EU:C:2020:792, para. 225. 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. 182 ECJ, Payir and Others, C-294/06, EU:C:2008:36; Peers, Turkish visitors and Turkish students, p. 197; Peers, EC immigration law and EC association agreements, p. 628; Welte, Assoziationsrecht, p. 53; Auer, Voraussetzungen eines Aufenthaltsrechts, p. 223. 181

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Chp. 17 Art. 25

Students and Researchers Directive (EU) 2016/801

account the situation of the labour market only after having exhausted the possibilities … to determine the maximum number of hours worked outside of study time, and that taking into account of the situation of the labour market can only take place in exceptional circumstances and provided that any planned measures to that effect are justified and proportionate with regard to the aim being pursued.’183 It has to be noted that the ECJ interpreted the former Students Directive 2004/114/EC in the context of its Article 17(3), allowing Member States to completely restrict labour market access for the first year. One could argue that the threshold for any labour market test after that year was considered to be rather high, because of this additional possibility to protect national labour markets. However, the Commission stated in its 2016 recast proposal, where the first-year restriction was already eliminated, that considering the labour market situation ‘should be done in a proportionate way in order not to systematically endanger the right to work’184. It appears, that the second sentence of Article 24(3) is still to be interpreted restrictively.

Article 25 Stay for the purpose of job-searching or entrepreneurship for researchers and students 1. After the completion of research or studies, researchers and students shall have the possibility to stay on the territory of the Member State that issued an authorisation under Article 17, on the basis of the residence permit referred to in paragraph 3 of this Article, for a period of at least nine months in order to seek employment or set up a business. 2. Member States may decide to set a minimum level of degree that students shall have obtained in order to benefit from the application of this Article. That level shall not be higher than level 7 of the European Qualifications Framework(23). 3. For the purpose of stay referred to in paragraph 1, Member States shall, upon an application by the researcher or the student, issue a residence permit to that third-country national in accordance with Regulation (EC) No 1030/2002 where the conditions laid down in points (a), (c), (d) and (e) of Article 7(1), Article 7(6) and, where applicable, in Article 7(2) of this Directive are still fulfilled. Member States shall require, for researchers, a confirmation by the research organisation of the completion of the research activity or, for students, evidence of having obtained a higher education diploma, certificate or other evidence of formal qualifications. Where applicable, and if the provisions of Article 26 are still met, the residence permit provided for in that Article shall be renewed accordingly. 4. Member States may reject an application under this Article where: (a) the conditions laid down in paragraph 3 and, where applicable, paragraphs 2 and 5 are not met, (b) the documents presented have been fraudulently acquired, or falsified, or tampered with. 5. Member States may require that the application under this Article of the researcher or the student and, where applicable, the members of the researcher’s

183

ECJ, Sommer, C‐15/11, EU:C:2012:371, para.42. Commission Proposal, COM(2013) 151, p. 12. (23) Recommendation of the European Parliament and of the Council of 23 April 2008 on the establishment of the European Qualifications Framework for lifelong learning (OJ C 111, 6.5.2008, p. 1). 184

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family shall be submitted at least 30 days before the expiry of the authorisation issued under Article 17 or 26. 6. If the evidence of having obtained a higher education diploma, certificate or other evidence of formal qualifications or the confirmation by the research organisation of the completion of the research activity are not available before the expiry of the authorisation issued under Article 17, and all other conditions are fulfilled, Member States shall allow the third-country national to stay on their territory in order to submit such evidence within a reasonable time in accordance with national law. 7. After a minimum of three months from the issuance of the residence permit under this Article by the Member State concerned, the latter may require thirdcountry nationals to prove that they have a genuine chance of being engaged or of launching a business. Member States may require that the employment the third-country national is seeking or the business he or she is in the process of setting up corresponds to the level of research or of studies completed. 8. If the conditions provided for in paragraph 3 or 7 are no longer fulfilled, Member States may withdraw the residence permit of the third-country national and, where applicable, his or her family members in accordance with national law. 9. Second Member States may apply this Article to researchers and, where applicable, the members of the researcher’s family or students who reside or have resided in the second Member State concerned in accordance with Article 28, 29, 30 or 31. Content I. General remarks and mandatory provisions ............................................ II. Optional provisions ........................................................................................

mn. 1 5

I. General remarks and mandatory provisions Article 25 entitles researchers and students to stay in the territory of the Member 1 State after the completion of his or her research or studies in order to seek employment or to set up a business. The residence permit to be issued for this purpose shall be valid for at least nine months and is not to be renewed. A renewal is, however, possible under national law due to Article 4(2). Article 25 does not govern the issuing of residence permits in case the third-country national succeeds in finding employment or setting up a business. The conditions for the issuing of a residence permit in order to work as an employee or a self-employed person are to be set out by national law unless the Blue Card Directive 2009/50/EC applies. Article 25(1) refers to the Member State that issued an authorisation under Article 17. 2 As according to Article 29(5) positive decisions on the authorisations for long-term mobility shall be issued under Article 17(4), one would consider that in these cases a second Member State should also be obliged to issue an authorisation according to Article 25. However, Article 25(9) clarifies that in all forms of intra-EU mobility the second Member State is free to apply Article 25. According to the second sentence of Article 25(3), Member States shall require the 3 presentation of documents proofing the completion of the third-country national’s research or studies. This provision, that has been added upon Council’s recommendation,185 is modified by Article 25(6) for cases where the documents are not available in time. 185

Position (EU) of the Council at first reading (OJ 2016 C 170/1).

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Chp. 17 Art. 26

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Third-country nationals are therefore entitled to stay in the Member State’s territory ‘in order to submit such evidence within a reasonable time in accordance with national law’. 4 Family members still meeting the specific conditions as laid down in Article 26 shall be issued an equivalent new authorisation according to the third sentence of Article 25(3). According to the first sentence of Article 25(3), the issuing of an authorisation for the purpose of job-searching or entrepreneurship presupposes that the general admission conditions as set out in Article 7(1)(a, c-e), (6) and (2), where applicable, are still fulfilled (see above Article 7 MN 11–19).

II. Optional provisions Article 25(4), upon Council’s recommendation, ‘additionally provides for grounds of rejection of an application’.186 Hence, even in cases where the general admission conditions as set out in Article 7 are concerned (Article 25(4)(a)), (3) first sentence) the rejection is not mandatory. The same is true for cases where the documents presented have been fraudulently acquired, or falsified, or tampered with (Article 25(4) (b)) or have not been presented at all (Article 25(4)(a), (3) second sentence). The wording of Article 25(4) (‘may’) is utterly clear on this point. Another rejection ground is the non-fulfillment of the optional conditions Member States may introduce according to Article 25(2) and (5) concerning the demand for a minimum level of degree and for early submission of the application. Although the rejection grounds are nonmandatory, they must be considered exhaustive due the systematic approach of the Directive (see above Article 5 MN 6–10, Article 20 MN 1). 6 If the conditions as laid down in Article 25(3) are no longer met, Member States may withdraw the authorisation according to Article 25(8). The same is true for cases where Member States demand for a proof of a ‘genuine job chance’ (Article 25(7)) and this proof cannot be produced by the third-country national. 7 Member States may, additionally to the conditions as set out in Article 25(1) and (3) demand for an early submission of the third-country national’s and his or her family member’s application (Article 25(5)), for a ‘genuine job chance’ (Article 25(7)) or for a student’s minimum level degree (Article 25(2)). The latter shall not be higher than a master’s degree but could exclude third-country nationals with only a bachelor’s degree. The ‘genuine chance’ condition may only be set after a minimum of three months from the authorisation’s issuance. After this time, Member States may demand the thirdcountry national to proof that he or she has a genuine chance to get a job. Member States may also, according to the second subparagraph, connect the prospective job to the level of the previous studies or research. As the authorisation according to Article 25(1) shall be issued for a period of at least nine months, Member States opting for Article 25(7) cannot limit the period of validity to e.g. three months. However, Article 25(8) provides the opportunity to withdraw the authorisation in cases where the third-country national fails to produce the proof as is demanded for in Article 25(7). 5

Article 26 Researchers’ family members 1. For the purpose of allowing researchers’ family members to join the researcher in the first Member State or, in the case of long-term mobility, in the 186

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second Member States, Member States shall apply the provisions of Directive 2003/ 86/EC with the derogations laid down in this Article. 2. By way of derogation from Article 3(1) and Article 8 of Directive 2003/86/EC, the granting of a residence permit to family members shall not be made dependent on the requirement of the researcher 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 a residence permit. 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 concerned shall process the application for the family members at the same time as the application for admission or for long-term mobility of the researcher, in case where the application for the family members is submitted at the same time. The residence permit for family members shall be granted only if the researcher is issued an authorisation under Article 17. 5. By way of derogation from Article 13(2) and (3) of Directive 2003/86/EC, the duration of validity of the residence permit of family members shall end, as a general rule, on the date of expiry of the authorisation of the researcher. This shall include, where applicable, authorisations issued to the researcher for the purpose of job-searching or entrepreneurship in accordance with Article 25. Member States may require the period of validity of the travel documents of family members to cover at least the duration of the planned stay. 6. By way of derogation from the second sentence of Article 14(2) of Directive 2003/86/EC, the first Member State or, in the case of long-term mobility, the second Member States shall not apply any time limit in respect of access for family members to the labour market, except in exceptional circumstances such as particularly high levels of unemployment. Article 26 contains some derogations from the requirements of the Family Re- 1 unification Directive 2003/86/EC concerning researchers’ family members. The provision aims ‘to increase the EU attractiveness to third-country national researchers’.187 The derogations are basically the same as in Article 15 of the Blue Card Directive 2009/50/EC with few differences in the details. For the relevant modifications of the family reunification rules see interpretation Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC, Article 15. Regarding the following points, Article 26 of this Directive provides for even more favourable rules. First, Article 26(4) derogates from the first subparagraph of Article 5(4) of the Family 2 Reunification Directive 2003/86/EC, which requires the competent authorities to come to a decision no later than nine months from the date on which the application was lodged. Whereas Article 15(4) of the Blue Card Directive 2009/50/EC demands for a processing time of at the most six months, Article 26(4) of this Directive requires a decision within a period of 90 days. Provided that the researcher is issued an authorisation under Article 17, the family member receives his or her residence permit together with his or her sponsor’s authorisation. 187

Commission Proposal, COM(2013) 151, p. 13.

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Like Article 15(5) of the Blue Card Directive 2009/50/EC, Article 26(5) stipulates that the duration of validity of residence permits for family members must be the same as for the researcher. Article 26(5) clarifies that this includes the researcher’s authorisation for the purpose of job-searching or entrepreneurship according to Article 25. 4 Finally, Article 26(6) diminishes Member States’ competence to apply a time limit for the family member’s access to the labour market which is in any case limited to twelve months according to Article 14(2)(2) of the Family Reunification Directive 2003/ 86/EC. Unlike Article 15(6) of the Blue Card Directive 2009/50/EC, Article 26(4) of this Directive allows the application of such a time limit only ‘in exceptional circumstances such as particularly high levels of unemployment’. 3

CHAPTER VI MOBILITY BETWEEN MEMBER STATES Article 27 Intra-EU mobility 1. A third-country national who holds a valid authorisation issued by the first Member State for the purpose of studies in the framework of a Union or multilateral programme that comprises mobility measures or of an agreement between two or more higher education institutions, or for the purpose of research may enter and stay in order to carry out part of the studies or research in one or several second Member States on the basis of that authorisation and a valid travel document under the conditions laid down in Articles 28, 29 and 31 and subject to Article 32. 2. During the mobility referred to in paragraph 1, researchers may, in addition to research activities, teach and students may, in addition to their studies, work, in one or several second Member States in accordance with the conditions laid down in Articles 23 and 24 respectively. 3. When a researcher moves to a second Member State in accordance with Article 28 or 29, family members holding a residence permit issued in accordance with Article 26 shall be authorised to accompany the researcher in the framework of the researcher’s mobility under the conditions laid down in Article 30. 1

Article 27–32 govern the intra-EU mobility of researchers and students. Whereas in the Commission’s proposal, trainees188 and in the Parliament’s position trainees and volunteers189 were also to be covered, the Directive now only gives mobility rights to researchers and students. According to Article 27(1), researchers benefit from mobility rights as are set out in Articles 28 and 29, distinguishing between short-term and longterm mobility. Article 30 governs the accessory mobility rights of the researchers’ family members, as can be followed from Article 27(3). As regards students, Article 27(1) states that the mobility rights set out in Article 31 are only granted to third-country nationals that have been admitted ‘in the framework of a Union or multilateral programme that comprises mobility measures or of an agreement between two or more higher education institutions’. Therefore, ‘individual students’ are not covered by Article 31 and 188

See Article 26(2) of the Commission Proposal, COM(2013) 151. See Position of the European Parliament at first reading of 25 February 2014 (OJ 2017 C 285/348), Article 27. 189

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must submit an application to be admitted in a second Member State as if it were an initial application (see the second subparagraph of Article 31(1)).190 When benefitting from their intra-EU mobility rights, researchers are entitled to 2 teach and students have the right to work, according to Article 27(2). The general conditions for teaching (Article 23) and working (Article 24) apply in these cases.

Article 28 Short-term mobility of researchers 1. Researchers who hold a valid authorisation issued by the first Member State shall be entitled to stay in order to carry out part of their research in any research organisation in one or several second Member States for a period of up to 180 days in any 360-day period per Member State, subject to the conditions laid down in this Article. 2. The second Member State may require the researcher, the research organisation in the first Member State or the research organisation in the second Member State to notify the competent authorities of the first Member State and of the second Member State of the intention of the researcher to carry out part of the research in the research organisation 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 researcher was admitted to the first Member State, as soon as the intended mobility to the second Member State is known. 3. 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 7, the mobility of the researcher to the second Member State may take place at any moment within the period of validity of the authorisation. 4. 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 authorisation. 5. The notification shall include the valid travel document, as provided for in point (a) of Article 7(1), and the valid authorisation issued by the first Member State covering the period of the mobility. 6. The second Member State may require the notification to include the transmission of the following documents and information: (a) the hosting agreement in the first Member State as referred to in Article 10 or, if the second Member State so requires, a hosting agreement concluded with the research organisation in the second Member State; (b) where not specified in the hosting agreement, the planned duration and dates of the mobility; (c) evidence that the researcher has sickness insurance for all the risks normally covered for nationals of the Member State concerned as provided for in point (c) of Article 7(1); 190

See Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 49.

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(d) evidence that during the stay the researcher will have sufficient resources to cover subsistence costs without having recourse to the Member State’s social assistance system, as provided for in point (e) of Article 7(1), as well as the travel costs to the first Member State in the cases referred to in point (b) of Article 32(4); The second Member State may require the notifier to provide, before the start of mobility, the address of the researcher concerned in the territory of the second Member State. The second Member State may require the notifier to present the documents in an official language of that Member State or in any official language of the Union determined by that Member State. 7. Based on the notification referred to in paragraph 2 the second Member State may object to the mobility of the researcher to its territory within 30 days from having received the complete notification, where: (a) the conditions set out in paragraph 5 or, where applicable, paragraph 6 are not complied with; (b) one of the grounds for rejection set out in points (b) or (c) of Article 20(1) or in paragraph 2 of that Article applies; (c) the maximum duration of stay as referred to in paragraph 1 has been reached. 8. Researchers 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. 9. The competent authorities of the second Member State shall, without delay, inform the competent authorities of the first Member State and the notifier in writing about their objection to the mobility. Where the second Member State objects to the mobility in accordance with paragraph 7 and the mobility has not yet taken place, the researcher shall not be allowed to carry out part of the research in the research organisation in the second Member State. Where the mobility has already taken place, Article 32(4) shall apply. 10. After the period of objection has expired, the second Member State may issue a document to the researcher attesting that he or she is entitled to stay on its territory and enjoy the rights provided for in this Directive. The distinction between short-term and long-term mobility is borrowed from the ICT-Directive 2014/66/EU191 and has been introduced by the Council ‘[f]or reasons of consistency’192. According to Article 28(1), researchers that have been admitted into a Member State are entitled to move to another Member State to conduct their research for a period of 180 days within a 360-day period per Member State. This is double the time as is provided for in Article 2(2)(a) of the Visa Code Regulation (EC) No 810/2009193 regarding short-time visas (Schengen Visa: 90 days in any 180-day period). 2 The second Member State may require a notification procedure, according to Article 28(2). In this case, either the researcher or one of the research organisations involved must notify the first and the second Member State’s authorities of the intention to perform the mobility rights. Member States may demand for a notification as soon as possible which is at the time of the application in the first Member State or, when the intention to move has occurred later, immediately after the occurrence. As the second Member State can raise objections, which follows from Article 28(7), an early notification at the time of the first application may hamper the mobility rights. According to 1

191

OJ L 157, 27.5.2014, p. 1. See Statement of the Council’s reasons, 2013/0081 (OJ 2016 C 170/40), p. 47. 193 OJ L 243, 15.9.2009, p. 1. 192

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Article 28(3), the mobility may not take place until the second Member State has refrained from raising objections. However, Article 28(7) sets out a time limit of 30 days for such an objection. Hence, the mobility can, at the latest, take place after the expiry of the objection period. According to Article 28(10), the second Member State deciding not to object may issue a document attesting the entitlement to move to its territory. In cases where the researcher’s intention to use his/her mobility rights is notified only during his or her stay in the first Member State, mobility can take place immediately, according to Article 28(4). Article 28(5) and (6) specify the documents, which the second Member States may 3 demand for when requiring a notification procedure. On the basis of the notification, a second Member State can raise objections, 4 according to Article 28(7). The objection grounds, which are exhaustive, refer to the insufficient presentation of documents as is demanded for in Article 28(5) and (6) as well as to general rejection grounds from Article 20(1) and (2) with the exception of Article 20(1)(a) concerning the general and specific conditions for the first admission. The latter shall only be assessed by the first Member State. The legal consequences of an objection depend on whether the third-country national has already performed his or her mobility rights or not. If so, the second Member State may request the thirdcountry national to leave its territory, according to Article 28(9), relegating to 32(4)(a). The first Member State is then obliged to take back the third-country national, see Article 32(4)(b). If the mobility has not yet taken place, however, the researcher’s mobility rights cannot come into existence at all. Furthermore, the second Member State shall not allow a third-country national to enter its territory, if he/she is a threat to public policy, public security or public health, see Article 28(8).

Article 29 Long-term mobility of researchers 1. In relation to researchers who hold a valid authorisation issued by the first Member State and who intend to stay in order to carry out part of their research in any research organisation in one or several second Member States for more than 180 days per Member State, the second Member State shall either: (a) apply Article 28 and allow the researcher to stay on the territory on the basis of and during the period of validity of the authorisation issued by the first Member State; or (b) apply the procedure provided for in paragraphs 2 to 7. The second Member State may define a maximum period of the long-term mobility of a researcher which shall not be less than 360 days. 2. When an application for long-term mobility is submitted: (a) the second Member State may require the researcher, the research organisation in the first Member State or the research organisation in the second Member State to transmit the following documents: (i) a valid travel document, as provided for in point (a) of Article 7(1), and a valid authorisation issued by the first Member State; (ii) evidence that the researcher has sickness insurance for all the risks normally covered for nationals of the Member State concerned as provided for in point (c) of Article 7(1); (iii) evidence that during the stay the researcher will have sufficient resources to cover subsistence costs without having recourse to the Member State’s social Lehner/Gies

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assistance system, as provided for in point (e) of Article 7(1), as well as the travel costs to the first Member State in the cases referred to in point (b) of Article 32(4); (iv) the hosting agreement in the first Member State as referred to in Article 10 or, if the second Member State so requires, a hosting agreement concluded with the research organisation in the second Member State; (v) where not specified in any of the documents presented by the applicant, the planned duration and dates of the mobility. The second Member State may require the applicant to provide the address of the researcher concerned in its territory. Where the national law of the second Member State requires an address to be provided at the time of application and the researcher concerned does not yet know his or her future address, that Member State shall accept a temporary address. In such a case, the researcher shall provide his or her permanent address at the latest at the time of the issuance of the authorisation for long-term mobility. The second Member State may require the applicant to present the documents in an official language of that Member State or in any official language of the Union determined by 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 complete application was submitted to the competent authorities of the second Member State; (c) the researcher shall not be req