Migration Law
This part of the course is Migration Law from a European perspective
Important documents are the analytical questions and readings
- Read the analytical questions first => then go through the readings
- Reading materials and questions about the reading materials are all examples
of exam questions
o The texts of authors is just a fall back, we have to know the legal
documents and the case law and answer the analytical questions
o Official documents of the EU with an * => highly important
EXAM: answer analytical questions + an official document to comment
1
,Lecture 1. History, Institutional Framework & Legal Migration
The motto of the European Union: "United in diversity" => finding a fair balance of unity
and acknowledging that MS are not having the same challenges => it is thus difficult
to achieve compromises at EU level
There needs to be a degree of political support from the MS
I – The evolution of EU competences in the field of migration & asylum
A. Historical evolution of EU competences
You find the evolution of EU competences in the field of migration and asylum in the
treaties
- Treaty of Rome (1957): establishing European economic community
o Mostly concerned with free movement of workers and providing services
or establishment in other MS => economic focus
- Single European Act (1986)
- Treaty of Maastricht (1992): eliminates the fact that EEC is only about economy
o EU community going beyond economic integration
o TEU is created: next to the TEC first competences for EU on migration and
asylum
- Treaty of Amsterdam (1997): EU starts to have real competences, yet transition
period of 5 years was needed
o Since 1992, the TFEU and TEU include competences on migration and
asylum
o SO: everything we discuss all happened very recently => this policy is still
a baby
1. The establishment of an internal market within the EEC
The internal market as ‘an area without internal frontiers’ (since the Single
European act in 1986) in which the free movement of goods, persons, services and
capital is ensured in accordance with the provisions of the Treaties’ (Art. 26(2) TFEU)
o = an area you can cross without internal border controls
o This is at the core of EU asylum & migration law
o This applies for EU citizens
o In some situations, these principles of the internal market also apply to TCN
(third country nationals)
2
, If family members (e.g. spouses, children, etc.) or posted workers
(e.g. a company of another MS in the construction sector posts
TCN workers in another MS) are TCN
o People covered by specific international agreements (e.g. Turkey)
So TCN who benefit from specific migration rights thanks to
international agreements between EU and third countries
This is to consolidate European integration
E.g. If someone from turkey is employed in the EU, they benefit
from same rights as EU citizens
o BUT: they have no self-standing free movement rights => their rights
depend on something else (family, undertaking or internal agreement)
E.g. CJEU Vatsouras
Single European Act => not only EU citizens have the right to go through the border,
but also the right to go to other MS without being checked => area without internal
frontiers
o The SEA doesn’t explain how we are going to do concretely, just posted
the objective to eliminate internal frontiers within the EU
o These initiatives to eliminate the objectives have had influence on TCN =>
If you want EU citizens to move freely without internal controls => then
other nationals will also be needed to be allowed to move freely without
controls => need for common policy on external borders
Questions related to migration and asylum are dealt with elsewhere, if at all..
- Schengen Agreement – (signed 1985, entered into force 1986)
- Schengen Convention (signed in 1990, implemented in March 1995)
- Dublin Convention – (signed in 1990, entered into force in 1997)
o Dublin Convention came to complement Schengen
!! During this time: migration and asylum is largely in the hands of MS of EU
SO: not the EU itself organising => characteristics of EU law (e.g. direct effect,
supremacy, jurisdiction CJEU) do not apply
BUT: This changed with treaty of Maastricht
2. The Treaty on European Union (also called ‘Maastricht Treaty’, signed in 1992,
entered into force in 1993)
Since Treaty of Maastricht, the EU itself develops its own tools to regulate migration
and asylum next to the MS regulating via international agreements
It created three pillar structure => important for migration and asylum law as it
was part of the 3rd pillar (Justice and Home Affairs) => highly intergovernmental
3
, o The 3rd pillar relies heavily on intergovernmental structure: it is not about
regulations and directive, others types => no jurisdiction of CJEU, no EP
=> decision taken by MS in the council mostly by unanimity
3. ‘Communautarisation’ of the competences in the field of
borders/migration/asylum with the Treaty of Amsterdam (signed in 1997,
entered into force in 1999)
In the late 90s the agreements of the MS start entering into force => the EU will have
stronger powers
- Transfers part of the cooperation from the EU pillars (borders, migration and
asylum) to the EC pillar (or Pillar I) to enhance their supranational nature
o Title IV “Visas, Asylum, Immigration and Other Policies Related to Free
Movement of Persons”
Communautarisation = competences of migration and asylum are
moved from 3rd to 1st pillar => they become part of EU community,
where supranational nation prevails
EP will have a say + CJEU has jurisdiction + will be
adopted by regulations and directives and thus direct
effect and supremacy
Features of EU migration and asylum policy as part of Pillar I:
intergovernmentalism still present, period of transition
o Today: there is a full set of competences for EU in the area => proper EU
competences on migration and asylum
!! Differentiated integration = there exist areas of EU law where MS have negotiated a
special status to have a different regime applicable to them (this is the exception)
This is very typical for migration and asylum
Examples: Croatia only joined Schengen area very lately, Ireland and Denmark also
have special regimes under Schengen regimes
B. EU competences in the field as they stand today after the Treaty of Lisbon
(signed on 13.12.2007, entered into force on 1.12.2009)
1. General observations
Definitions of EU migration & asylum law as part of the so-called ‘AFSJ’ (area of
freedom, security and justice)
- Article 3(2) TEU:
4
This part of the course is Migration Law from a European perspective
Important documents are the analytical questions and readings
- Read the analytical questions first => then go through the readings
- Reading materials and questions about the reading materials are all examples
of exam questions
o The texts of authors is just a fall back, we have to know the legal
documents and the case law and answer the analytical questions
o Official documents of the EU with an * => highly important
EXAM: answer analytical questions + an official document to comment
1
,Lecture 1. History, Institutional Framework & Legal Migration
The motto of the European Union: "United in diversity" => finding a fair balance of unity
and acknowledging that MS are not having the same challenges => it is thus difficult
to achieve compromises at EU level
There needs to be a degree of political support from the MS
I – The evolution of EU competences in the field of migration & asylum
A. Historical evolution of EU competences
You find the evolution of EU competences in the field of migration and asylum in the
treaties
- Treaty of Rome (1957): establishing European economic community
o Mostly concerned with free movement of workers and providing services
or establishment in other MS => economic focus
- Single European Act (1986)
- Treaty of Maastricht (1992): eliminates the fact that EEC is only about economy
o EU community going beyond economic integration
o TEU is created: next to the TEC first competences for EU on migration and
asylum
- Treaty of Amsterdam (1997): EU starts to have real competences, yet transition
period of 5 years was needed
o Since 1992, the TFEU and TEU include competences on migration and
asylum
o SO: everything we discuss all happened very recently => this policy is still
a baby
1. The establishment of an internal market within the EEC
The internal market as ‘an area without internal frontiers’ (since the Single
European act in 1986) in which the free movement of goods, persons, services and
capital is ensured in accordance with the provisions of the Treaties’ (Art. 26(2) TFEU)
o = an area you can cross without internal border controls
o This is at the core of EU asylum & migration law
o This applies for EU citizens
o In some situations, these principles of the internal market also apply to TCN
(third country nationals)
2
, If family members (e.g. spouses, children, etc.) or posted workers
(e.g. a company of another MS in the construction sector posts
TCN workers in another MS) are TCN
o People covered by specific international agreements (e.g. Turkey)
So TCN who benefit from specific migration rights thanks to
international agreements between EU and third countries
This is to consolidate European integration
E.g. If someone from turkey is employed in the EU, they benefit
from same rights as EU citizens
o BUT: they have no self-standing free movement rights => their rights
depend on something else (family, undertaking or internal agreement)
E.g. CJEU Vatsouras
Single European Act => not only EU citizens have the right to go through the border,
but also the right to go to other MS without being checked => area without internal
frontiers
o The SEA doesn’t explain how we are going to do concretely, just posted
the objective to eliminate internal frontiers within the EU
o These initiatives to eliminate the objectives have had influence on TCN =>
If you want EU citizens to move freely without internal controls => then
other nationals will also be needed to be allowed to move freely without
controls => need for common policy on external borders
Questions related to migration and asylum are dealt with elsewhere, if at all..
- Schengen Agreement – (signed 1985, entered into force 1986)
- Schengen Convention (signed in 1990, implemented in March 1995)
- Dublin Convention – (signed in 1990, entered into force in 1997)
o Dublin Convention came to complement Schengen
!! During this time: migration and asylum is largely in the hands of MS of EU
SO: not the EU itself organising => characteristics of EU law (e.g. direct effect,
supremacy, jurisdiction CJEU) do not apply
BUT: This changed with treaty of Maastricht
2. The Treaty on European Union (also called ‘Maastricht Treaty’, signed in 1992,
entered into force in 1993)
Since Treaty of Maastricht, the EU itself develops its own tools to regulate migration
and asylum next to the MS regulating via international agreements
It created three pillar structure => important for migration and asylum law as it
was part of the 3rd pillar (Justice and Home Affairs) => highly intergovernmental
3
, o The 3rd pillar relies heavily on intergovernmental structure: it is not about
regulations and directive, others types => no jurisdiction of CJEU, no EP
=> decision taken by MS in the council mostly by unanimity
3. ‘Communautarisation’ of the competences in the field of
borders/migration/asylum with the Treaty of Amsterdam (signed in 1997,
entered into force in 1999)
In the late 90s the agreements of the MS start entering into force => the EU will have
stronger powers
- Transfers part of the cooperation from the EU pillars (borders, migration and
asylum) to the EC pillar (or Pillar I) to enhance their supranational nature
o Title IV “Visas, Asylum, Immigration and Other Policies Related to Free
Movement of Persons”
Communautarisation = competences of migration and asylum are
moved from 3rd to 1st pillar => they become part of EU community,
where supranational nation prevails
EP will have a say + CJEU has jurisdiction + will be
adopted by regulations and directives and thus direct
effect and supremacy
Features of EU migration and asylum policy as part of Pillar I:
intergovernmentalism still present, period of transition
o Today: there is a full set of competences for EU in the area => proper EU
competences on migration and asylum
!! Differentiated integration = there exist areas of EU law where MS have negotiated a
special status to have a different regime applicable to them (this is the exception)
This is very typical for migration and asylum
Examples: Croatia only joined Schengen area very lately, Ireland and Denmark also
have special regimes under Schengen regimes
B. EU competences in the field as they stand today after the Treaty of Lisbon
(signed on 13.12.2007, entered into force on 1.12.2009)
1. General observations
Definitions of EU migration & asylum law as part of the so-called ‘AFSJ’ (area of
freedom, security and justice)
- Article 3(2) TEU:
4
