The EU Dimension

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The EU Dimension

• Migrant Workers and Human Rights Conference
• Cathryn Costello, BCL LLM BL
• Senior Research Fellow in EC Public Law,
  Worcester College, Oxford

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Overview

• Citizenship of the European Union
• EU and Family Reunification
• Emerging EU Immigration Policy
• EU Denizenship the Long Term Residents
  Directive
• Ireland and the European Union

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I. Citizenship of the Union

• EU Member State nationality (accession / birth /
  naturalisation)
• Under international law, it is for each Member
  State, having due regard to Community law, to lay
  down the conditions for the acquisition and loss
  of nationality. However, it is not permissible
  for the legislation of a Member State to restrict
  the effects of the grant of nationality of
  another Member State by imposing an additional
  condition for recognition of that nationality
  with a view to the exercise of the fundamental
  freedoms provided for in the Treaty. (Micheletti
  (1992))
• Treaty of Amsterdam EU Citizenship
• complement not replace national citizenship
• Treaty of Nice New Member States treated
  differently

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I. Citizenship of the Union

• Free movement for the economically active
• Free movement for the rich non-economically
  active
• Equal treatment with nationals with some limits
• Case C-184/99 Grzelzcyk student grant
• Case C-138/02 Collins habitual residence
  requirement prohibited for work seeker allowance

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I. Citizenship of the Union

• Right not dependent on authorisation
• Case 48/75 Royer 1976 ECR 497
• Very Limited Derogations and Discretion
• Family Unification as of Right

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II. Family Reunification

• ECHR on Family Reunification Article 8
• EU Citizens Families
• TCNs Families

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II. Family Unification

• Article 8 ECHR
• Everyone has the right to respect for his private
  and family life, his home and his correspondence.
• There shall be no interference except such as
  is in accordance with law and is necessary in a
  democratic society in the interests of national
  security, public safety or the economic
  well-being of the country, for the prevention of
  disorder or crime, for the protection of health
  or morals, or for the protection of the rights
  and freedoms of others.

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II. Family Unification

• Article 8 ECHR - The Scope of Family Life
• Practical Ties
• Non-marital Families (Johnston v Ireland)
• Transsexual Families (Goodwin v UK)
• Gay Families? (Karner v Austria 14 8)

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II. Family Unification

• Article 8 ECHR - Interference
• Entry / Removal
• Abdulaziz cf Ciliz
• Nowhere else to go
• Abdulaziz
• Sorabjee
• Gul
• Ahmut
• NEW APPROACH Sen v Netherlands

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II. Family Unification

• EC Law on Families
• TCN Family Members of EU Citizens
• Family Reunification Directive

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II. Family Unification

• 1. TCN Family Members of EU Citizens
• Definition (for EU Migrant Workers Families)
• Spouse (Netherlands v Reed)
• Descendants under 21 / dependant
• Ascendants dependent
• New Citizenship Directive
• Caselaw

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II. Family Unification

• TRANSBORDER ELEMENT FOR EU CITIZENSHIP
• Morson Jhanjan
• Surinder Singh (the Dublin Hop!)
• Carpenter
• Chen
• URGENT
• How do families with IBC bring themselves within
  the scope of Community law?

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II. Family Unification

• EC Citizenship mobility ECHR family protection
  is a potent mix
• To avail of protection crossborder element
• What to do about families of IBC citizens in
  Ireland?
• Move
• Irish equality
• EC equality (Netherlands v Reed, Kaba I and II)

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II. Family Unification

• 2. Family Reunification Directive
• 30 April 2006
• Non-married partners
• Right to remain for families

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II. Family Unification

• Article 4 definition
• Below age of majority set by MS
• Exception Conditions of integration
• Before 15
• Article 8
• Sponsor 2 years before permitted
• 22 December 2003 EP Legal Challenge

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II. Family Unification

• Opinion of AG Kokott in Case C-540/03 European
  Parliament v Council
• Time Limit provisions violate fundamental rights
  Others must be interpreted in light of
  fundamental rights
• No severance of offending provisions hence
  inadmissible.

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III. Emerging EU Immigration Policy

• ENTRY CONTROL SYSTEM
• Visas Prior Certification of Entry
• Carriers Sanctions Remote Control
• Schengen Information System Negative Mutual
  Recognition
• Common operations and an Agency for guarding /
  managing borders

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III. Emerging EU Immigration Policy

• The EU Borders Agency performs inter alia the
  following tasks
• coordinates and develops the operational
  cooperation between Member States in the field of
  control and surveillance of the external borders
• - supports cooperation between experts in
  emergency situations and- coordinates
  operational cooperation between Member States in
  the field of removal of third-country nationals
  illegally residing in the Member States.

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III. Emerging EU Immigration Policy

• When is migration illegal?
• Illegal immigration represents one of the basic
  criteria for the determination of those third
  countries whose nationals are subject to visa
  requirements, besides other criteria such as
  public policy, security, EUs external relations,
  regional coherence and reciprocity.
• Commission Communication to the Council and
  Parliament on a common policy on illegal
  immigration COM (2001) 672 final, at p. 4.

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III. Emerging EU Immigration Policy

• Listing and delisting Case C-51/03 Georgescu 31
  March 2004
• Residence Permit for Victims of Trafficking
• (Ireland and UK do not participate)

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III. Emerging EU Immigration Policy

• No general rules on entry and residence
• Proposal for a Directive on the Conditions of
  Entry and Residence of Third Country Nationals
  for the Purpose of Paid Employment or
  Self-Employment withdrawn
• Lots of negative mutual recognition
• Dublin II, Mutual Recognition of Expulsion
  Decisions, Schengen Information System
• LCD Harmonisation
• Family Reunification
• One example of positive mutual recognition
• Directive on Long Term Residents

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III. Emerging EU Immigration Policy

• Lots of litigation
• Infringement proceedings Commission v France
  (MU Expulsion French Initiative)
• Annulment Proceedings
• EP v Council (Family Reunification)
• UK v Council (Border Guard)
• Few preliminary references both to date
  inadmissible (only final courts may refer)

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III. Emerging EU Immigration Policy

• ENTRY AND RESIDENCE
• Leaves entry decision largely to the Member State
• Negative mutual recognition amplifies illegality
• Operational cooperation
• RIGHTS OF MIGRANTS ON ENTRY
• Long-Term Residents Only (or naturalize!)
• Race Directive (immigration exception)

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IV. EU Denizenship and the Long Term Residents
Directive

• Long term 5 years
• Some equal treatment
• Right to move to other Member States (positive
  mutual recognition)
• Ireland and the UK remain out

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V. Ireland and the European Union

• Selective Participation
• Policy Frame
• Institutional Context

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V. Ireland and the European Union

• Ireland, the UK and Denmark have opted-out of the
  Schengen Integration Protocol and Title IV EC.
• To opt-in to Title IV EC measures, Ireland (or
  UK) may opt in within three months of its
  presentation to the Council, or take part after
  its adoption.
• To opt-in to Schengen measures, this must be
  approved by the Council unanimously.

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V. Ireland and the European Union

• In the Declaration on Article 3 of the Protocol
  on the position of the United Kingdom and
  Ireland, Ireland undertook to exercise its right
  to opt-in to Title IV measures to the maximum
  extent compatible with the maintenance of its
  Common Travel Area with the United Kingdom.
• Protocol on the application of certain aspects of
  Article 7a of the EC Treaty to the UK and to
  Ireland (Common Travel Area)
• The dividing line between Schengen-building
  measures and Title IV measures has taken on
  heightened salience in light of UK v Council
  (Border Guard). Ireland intends to intervene in
  support of the UK position.

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V. Ireland and the European Union

• Policy Frame
• Community preference
• Preferring EU migrant workers to TCNs is explicit
  Irish policy
• Non-ratification of the UN Migrant Workers
  Convention
• would have implications for our relations with
  our EU partners.. (DJELR Discussion Document, p
  64)

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V. Ireland and the European Union

• Institutional Context
• Migration as an internal security issue
• Intensive transnationalism
• Operation cooperation

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Conclusions

• 1. EU Citizenship is the most valuable status
  available to migrants.
• Naturalization of migrant workers means they
  acquire this status
• Concern Permanent resident status should not
  come to be seen as an alternative to
  naturalization (from the States perspective)

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Conclusion

• 2. The emerging EU immigration policy enhances
  Member State discretion around admissions.
  Ireland benefits from the buffer of the EU
  entry-control system, but does not participate in
  the two rights-based instruments, the Long-Term
  Residents Directive and the Trafficking Victims
  Directive.

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Conclusions

• 3. European Human Rights Law
• ECHR provides valuable, but limited protection
  (Article 8 ECHR cf Article 8 EU Citizenship
• Article 6 ECHR inapplicable to immigration and
  asylum (Moouia / Mamatkulov cf. EC position)

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Thanking You!