Diapositiva 1

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EU Migration Law Master di I livello
in Politiche di pace e cooperazione allo
sviluppo nellarea del mediterraneo Alexandra
Gatto agatto_at_iom.int
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Plan of the session

• Development of an EU migration policy
• The origin
• Current development
• Legal Migration
• Short term permits
• Trafficking in human beings
• Family reunification and combating marriages of
  convenience
• Long term permits
• Non discrimination and integration
• Illegal Migration
• Common principles
• Mutual recognition of expulsion decisions
• Returns

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Development of an EU Immigration Policy

• 1985 Schengen Agreement
• 1992 Maastricht
• 1997 Amsterdam
• 1999 Tampere
• 2004 The Hague Programme
• 2005 A Global Approach to Migration

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Rationale

• Origin Internal market functioning
• Developments
• External dimension
• Relationships between legal and illegal migration
• Circular Migration
• Further integration

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Immigration Policy in the Treaty of Amsterdam

• Article 63(3) of the Treaty of Amsterdam
• () the Council , (), shall within a period of
  five years after the
• entry into force (1997) of the Treaty of
  Amsterdam, adopt
• measures on immigration policy within the
  following areas
• conditions of entry and residence
• standards on procedures for the issue of
  long-term visas and residence permits, including
  those for family reunification
• illegal immigration and illegal residence,
  including repatriation of illegal residents

• Article 63(4) of the Treaty of Amsterdam
• () the Council , (), shall within a period of
  five years after the
• entry into force of the Treaty of Amsterdam,
  adopt
• measures defining rights and conditions under
  which nationals of
• third countries who are legally resident in a
  Member State may
• reside in other Member States

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Community Code on the rules governing the
movement of persons across borders (Schengen
Borders Code)

• 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)
• This Regulation modifies existing legislation on
  border checks carried out on people. It is
  intended to improve the legislative part of the
  integrated border management policy by setting
  out the rules on crossing external borders and on
  reintroducing checks at internal borders.

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Uniform Format for Residence Permits

• Council Regulation (EC) No. 1030/2002 of 13 June
  2002
• laying down a uniform format for residence
  permits for third
• country nationals
• DEFINTION of residence permit
• any authorisation issued by the authorities of a
  Member State allowing a third-country national to
  stay legally on its territory.
• DEFINITION of third-country national
• any person who is not a citizen of the EU
• (Art. 17(1) Amsterdam Treaty)

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Contents of the Residence Permit

• title of the document and document number
• names of the holder
• period of validity
• place and date of issue
• type of permit and remarks necessary for national
  use
• signature seal of issuing authority and/or
  signature of holder
• national emblem
• machine readable area
• metallised latent image effect and optically
  variable device
• identity photograph
• date and place of birth, nationality and gender
  of the holder
• remarks
• Council Regulation (EC) No. 1030/2002
• additional security features and requirements
• technical processes and rules
• other rules
• ? secret/not published

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Short Term Residence Permits for Specific
Categories of Residents

• Residence Permit WORKER
• Residence Permit SEASONAL WORKER
• Residence Permit INTRA-CORPORATE TRANSFEREE
• Residence Permit TRAINEE
• Residence Permit YOUTH EXCHANGE/AU PAIR
• Residence Permit SELF-EMPLOYED PERSON
• Residence Permit RESEARCHER
• Residence Permit STUDENT

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Common Requirements for the issuing of Residence
Permits

• valid passport or equivalent travel document
• sufficient resources
• sickness insurance
• public policy, public security, public health

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Rights of Holders of Residence Permit Worker
and Residence Permit Self-Employed Person

• entry and re-entry to the territory of the host
  Member State
• passage through other Member States
• residence in the host Member State
• exercise of the activities authorised under the
  residence permit
• equal treatment with regard to
• working conditions
• access to necessary vocational training
• recognition of qualifications
• social security including healthcare
• access to goods and services including public
  housing
• freedom of association

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Council directive 2005/71/EC on a specific
procedure for admitting third-country nationals
for the purpose of scientific research

• Article 8- MS shall provide residence permit for
  at least one year and also renew it if his/her
  conditions for admission are met.
• Article 10- Withdrawal or Refusal- fraudulently
  acquired or the holder did not or do no longer
  meet the conditions
• Article 15 - Procedural Safeguards regarding
  granting and rejections
• Give decision as soon as possible
• Authorities inform the applicant
• Notification shall specify the possible redress
  procedures available
• Right to mount a legal challenge

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Temporary Residence Permit for Victims of
Trafficking

• 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
• validity at least 6 months renewable
• expiry of reflection period
• opportunity presented for investigations or
  judicial proceedings
• intention to cooperate
• severence of all relations with those suspected
  of offences defined in the Directive
• public policy and national security

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Protection and Rights of Victims of Trafficking

• consideration of stay on other grounds
• access to the labour market
• pursuance of vocational training and education

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Residence Permits issued to long-term residents

• Council Directive 2003/109/EC of 25 November 2003
  concerning
• the status of third-country nationals who are
  long-term residents
• Validity
• valid for at least 5 years
• automatic renewal upon expiry
• issued in the form of a sticker or stand-alone
  document
• Conditions for the granting of long-term
  residents status
• duration of residence
• stable and regular resources
• sickness insurance
• public policy and public security
• Optional
• integration conditions
• appropriate accommodation

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Rights of Long-Term Residents

• Employment
• access to employment and self-employed activity
• recognition of professional qualifications
• freedom of association and affiliation
• Education
• educational and vocational training
• Social benefits
• social security, social assistance and social
  protection
• tax benefits
• Freedoms
• access to goods and services
• free access to the entire territory of the host
  State

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Withdrawal or Loss of Long-Term Residents Status

• Art. 9 Council Directive 2003/109/EC
• detection of fraudulent acquisition of long-term
  residents status
• adoption of an expulsion measure
• absence from the territory of the EC for a period
  of
• 12 consecutive months
• threat to public policy (? not ground for
  expulsion!)
• Art. 10 Council Directive 2003/109/EC -
  procedural guarantees
• provision of reasons
• redress procedures
• proportionality considerations

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The Right to Family Reunification

• Council Directive 2003/86/EC
• of 22 September 2003 on the right to family
  reunification
• DEFINITION of family reunification
• the entry into and residence in a Member State
  in order to preserve the family unit, whether the
  family relationship arose before or after the
  residents entry
• DEFINITION of sponsor
• ? 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

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Conditions for Family Reunification

• Article 3(1) Council Directive 2003/86/EC
• holding a residence permit issued by a Member
  State for a period of validity of one year or
  more
• AND
• reasonable prospects of obtaining the right of
  permanent residence,
• documentary evidence of the family relationship
• compliance with conditions such as dependency,
  age etc.
• and at the discretion of the Member State
  concerned
• accommodation
• sickness insurance
• stable and regular resources
• compliance with integration measures

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Included Family Members

• Article 4(1) Council Directive 2003/86/EC
• spouse of the sponsor
• minor children of the sponsor and his/her spouse,
  including adopted children
• minor children of the sponsor, including adopted
  children, where the other party sharing custody
  has given his/her agreement
• minor children of the spouse, including adopted
  children, where the other party sharing custody
  has given his/her agreement

• Article 4(2) Council Directive 2003/86/EC
• first degree relatives in the direct ascending
  line of the sponsor or his/her spouse
• adult unmarried children of the sponsor and/or
  his/her spouse
• an unmarried partner with whom the sponsor is in
  a duly attested stable long-term relationship

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Rights of Family Members

• Sponsors family members shall be entitled, in
  the same way as the sponsor, to
• access to education
• access to employment and self-employed activity
• ?? maximum time limits 12 months
• ? possible restriction for dependent family
  members
• access to vocational guidance, initial and
  further training and re-training
• Autonomous residence permit not later than 5
  years of residence

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Rejection and Withdrawal of Family Reunification

• Article 16 Council Directive 2003/86/EC
• where the conditions for family reunification are
  not or are no longer satisfied
• where the sponsor and his/her family member(s) do
  not or no longer live in a real marital or family
  relationship
• where it is found that the sponsor or the
  unmarried partner is married or is in a stable
  long-term relationship with another person
• where false or misleading information, false or
  falsified documents were used, fraud was
  otherwise committed or other unlawful means were
  used
• the marriage, partnership or adoption was
  contracted for the sole purpose of enabling the
  person concerned to enter or to reside in a
  Member State
•  

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Combating Marriages of Convenience

• Art.16 Council Directive 2003/86/EC
• reason for refusal and withdrawal of family
  reunification andconduction of specific checks
• 1997 Council Resolution on measures to be adopted
  on the
• combating of marriages of convenience
• factors which may provide grounds for believing
  that a marriage is one of convenience

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EU Principles of Non-Discrimination

• Article 21 EU Charter of Fundamental Rights
• Any discrimination based on 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 shall be prohibited.
• Article 13 Treaty Establishing the European
  Community
• (), the Council, (), may take appropriate
  action to combat discrimination based on sex,
  racial or ethnic origin, religion or belief,
  disability, age or sexual orientation.
•  
• Council Directive 2000/43/EC of 29 June 2000
  implementing the principle of equal treatment
  between persons irrespective of racial or
  ethnic origin
• applicable to all persons resident in the Member
  States
• scope employment, vocational guidance, training,
  social protection, education, access to and
  supply of goods and services

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Forms of Discrimination

• DEFINITION of direct discrimination
• ? a situation in which one person is treated less
  favourably than another is, has been or would be
  treated in a comparable situation on grounds of
  racialor ethnic origin
• DEFINITION of indirect discrimination
• ? where an apparently neutral provision,
  criterion or practice would put persons of a
  certain racialor ethnic origin at a particular
  disadvantage compared with other persons, unless
  such treatment is objectively justified
• DEFINITION of harassment
• ? when an unwanted conduct that is related to the
  racialor ethnic origin of a person takes place
  with the purpose or effect of violating the
  dignity of that person and of creating an
  intimidating, hostile, degrading, humiliating or
  offensive environment

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• Positive obligations to ensure non discrimination
• obligation to inform the public
• provision of independent assistance
• conduction of independent surveys
• publication of independent reports
• recommendations
• Action Programme to promote measures to combat
  direct or indirect discrimination
• to improve the understanding of issues related to
  discrimination
• to develop the capacity to prevent and address
  discrimination effectively
• to promote and disseminate the values and
  practices underlying the fight against
  discrimination

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Judicial, Administrative and Conciliation
Procedures

• Article 7 Council Directive 2000/43/EC
• Member States shall ensure that
• judicial and/or administrative procedures,
  including () conciliation procedures for the
  enforcement of obligations under this Directive
  are available to all persons who consider
  themselves wronged by failure to apply the
  principle of equal treatment to them
• associations, organisations or other legal
  entities, which have, (), a legitimate interest
  in ensuring that the provisions of this Directive
  are complied with, may engage () in any judicial
  and/or administrative procedure provided for the
  enforcement of obligations under this Directive

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Integration of Third-Country Nationals

• Common Agenda for Integration, policy plan (2005)
• Integration two way process based on mutual
  rights and corresponding obligations of
  legally resident third-country nationals and
  the host society
• labour market
• education and language skills
• housing and urban issues
• health and social services
• social and cultural environment
• nationality and civic citizenship
• respect for diversity

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Illegal Migration

• Commission Communication on Policy Priorities in
  the fight against Illegal immigration of third
  country nationals COM (2006) 402 final,
  19.7.2006
• Cooperation with third countries
• Secure borders integrated management of external
  borders
• Fight against human trafficking
• Combating illegal employment
• Return policy
• Carriers' Liability Directive 2001/51/EC
• Directive
  2004/83/EC
• Obligation to
  communicate passengers data

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Return policy

• Return in full respect of fundamental rights,
  remains a cornerstone of EU migration policy
• Priorities
• Readmission agreements
• Organisation of joint return flights
• Common standards for the training of responsible
  officers
• Return Action Programme Council Doc. 14673/02,
  25.11.2002
• immediate enhanced practical cooperation
• common minimum standards
• country specific programmes
• intensified cooperation with third countries

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EU Policy on Voluntary Return

• Commission Green Paper on a Community Return
  Policy on Illegal Residents
• To all extents possible, priority should be
  given to voluntary return for obvious humane
  reasons.
• Voluntary return requires less administrative
  efforts than forced return.
• Tools
• enhanced practical cooperation/information
  exchange
• common minimum standards
• country specific programmes
• intensified cooperation with third countries
• proof of exit
• legal consequences of voluntary or forced return

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Voluntary return Main Instruments

• Exchange of Information Concerning Assistance for
  the Voluntary Repatriation of Third-Country
  Nationals (Council Decision of 26 May 1997)
• Best Practices of Voluntary Return
• European Return Fund - Decision No. 575/2007/EC
  of the European Parliament and of the Council of
  23 May 2007
• Improving the organisation and implementation of
  return management
• Enhancing co-operation between MS
• Promoting the application of common standards on
  return

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Harmonisation on Expulsion

• Council Directive 2001/40/EC of 28 May 2001 on
  the mutual recognition of decisions on the
  expulsion of third-country nationals
• to make possible the recognition of an expulsion
  decision issued
• by a competent authority in one Member State
  against a third-
• country national present within the territory of
  another Member
• State
• Council Decision of 23 February 2004 setting out
  the criteria and practical arrangements for the
  compensation of the financial imbalances
  resulting from the application of Directive
  2001/40/EC
• criteria and practical arrangements required for
  the implementation of the provisions of Article
  24 of the Schengen Convention
• Council Decision 2004/573/EC of 29 April 2004 on
  the organisation of joint flights for removals
  from the territory of two or more Member States
  of third-country nationals who are subjects of
  individual removal orders

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Council Directive on Mutual Recognition of
Decisions on Expulsion of Third-Country Nationals

• An expulsion pursuant to Article 1(1) of the
  Directive shall apply to
• a third-country national who is the subject of an
  expulsion order based on a serious and present
  threat to public order or to national security
  and safety, taken in the following cases
• conviction of a third-country national by the
  issuing Member State for an offence punishable by
  a penalty involving deprivation of liberty of at
  least one year
• the existence of serious grounds for believing
  that a third-country national has committed
  serious criminal offences or the existence of
  solid evidence of his intention to commit such
  offences within the territory of a Member State
• a third-country national who is the subject of an
  expulsion decision based on failure to comply
  with national rules on the entry and residence of
  aliens

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Compensation of the Financial Imbalances
Resulting from the Application of Directive
2001/40/EC

•  transport costs
• administrative costs
• mission allowances
• per diem for the escorts
• accommodation costs for the escorts
• accommodation costs for the returnee
• medical costs

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Common Guidelines on Security Provisions for
Joint Removals by Air

• PRINCIPLE no removal at all costs
• coordinate joint removals by air, from one or two
  Member States, of third-country nationals who are
  subjects of individual removal orders
• ensure that the legal situation of each returnee
  allows for removal.
• ensure that returnees are in an appropriate state
  of health
• ensure that for each returnee valid travel
  documents and other necessary additional
  documents, certificates or records are available
• coercion may only be used on individuals who
  refuse or resist removal
• coercive measures shall be proportionate and
  shall not exceed reasonable force

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The way forward

• Communication on Common Immigration Policy for
  Europe (COM(2008) 359 final)
• Prosperity and Immigration Clear rules and a
  level playing field
• Prosperity and Immigration Matching skills and
  needs
• Prosperity and Immigration Integration is the
  key to successful immigration
• Solidarity and Immigration Transparency, trust
  and cooperation
• Solidarity and Immigration Effective and
  coherent use of available means
• Solidarity and Immigration Partnership with
  third-countries
• Security and Immigration A visa policy that
  serves the interests of Europe
• Security and Immigration Integrated border
  management
• Security and Immigration Stepping up the fight
  against illegal immigration and zero tolerance
  for trafficking in human beings
• Security and Immigration Sustainable and
  effective return policies

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Sources

• http//eur-lex.europa.eu/it/index.htm
• http//europa.eu/scadplus/leg/en/s17000.htm
• http//www.ulb.ac.be/assoc/odysseus/
• http//www.carim.org/

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Questions Answers

• Thank you!