EU Migration Law: Forced and Unforced Migration - Seminar notes
Seminar 1 - Wednesday 8 February 2023
Schengen (Luxembourg, 1958) - a three-border point with France & Germany + Belgium & the Netherlands
- No longer border posting points.
- Two Schengen treaties (1958, 1990)
- 1958: agreement on the gradual abolition of checks at the common borders.
● Art. 17 → ‘’... first to harmonize, where necessary, the laws, regulations and
administrative provisions concerning the prohibitions and restrictions on which the
checks are based …’’ = free movement of people.
- 1990: Schengen Implementing Convention
● Common visa policies, common databases/information system, police & justice
cooperation → basis for a European arrest warrant, common asylum policy. ←
harmonization between the Schengen countries.
- Amsterdam (1997), Lisbon (2007)
- Lisbon: created the TEU + TFEU → larger competencies; more harmonization within the EU.
- Enlargement (1985: 5 Schengen/10 EU members; now: 27/27)
- Opt-outs: Ireland (EU) & Denmark (Schengen)
- ‘opt-ins’: Switzerland, Liechtenstein, Norway, Iceland
- Not yet ‘Schengen-proof’: Bulgaria, Romania, Cyprus
- ‘Schengen-proof’: a state must be satisfactory according to the Commission and the
member states (member states have a veto).
- Brexit
Exam about for ex. Ireland or Denmark:
1. What EU law applies in that State? → due to the opt-out from Title V TFEU!
Multilevel jurisdiction
● Worldwide international law
- Refugee Convention, ICCPR, CAT
● Regional international law
- European Convention on Human Rights (ECHR)
● EU law
- TFEU, EU Charter of Fundamental Rights
- Regulations & directives
● Regulations = a binding legislative act. It must be applied in its entirety across the
EU.
● Directives = a legislative act that sets out a goal that all EU countries must achieve.
However, it is up to the individual countries to devise their own laws on how to reach
these goals.
- Association Treaties / EEA
● National law
→ UN, Treaty monitoring bodies (national courts); Council of Europe, ECtHR (national courts); EU, CJEU,
national courts
Council of Europe = organization of European countries that seeks to protect democracy and human rights and
to promote European unity by fostering cooperation on legal, cultural, and social issues.
1
,Categories
● EU citizens vs. third-country nationals (tcn)
● Migrants vs. refugees
○ unforced vs. forced migrations
○ art. 79 TFEU v. art. 78 TFEU
● Citizens vs. non-citizens (= nationals vs. aliens)
● Legal vs. illegally residing (and working) tcn (undocumented, irregular, sans papier)
Third-country national: a negative definition
- ‘third-country national’: any person who is:
- Not a citizen of the EU;
- Not a third-country national who is a family member of an EU citizen exercising his or her
right to free movement; and
- Not a person who, under an agreement between the EU and a third-country, enjoys rights of
free movement equivalent to those of EU citizens
(cf. art. 2(5) Schengen Borders Code (reg 2016/399); art. 3 Return Directive (2008/115/EC))
● Turkish people have a privileged position due to several treaties between Turkey and EU states. → but
still third-country nationals.
○ Turkey is not within Schengen but within the Customs Union. Traveling between Turkey and
the EU is therefore very easy.
The EU external border, how to get there, and cross it
- ex. Fareed from Afghanistan, speaks English → wants to go to Amsterdam. What is your (legal)
advice?
A. He should buy an airline ticket to Amsterdam
B. He should hire the services of a smuggler (Qatar - Libya - Italy - NL)
● Visa requirements for Afghans → can travel to Qatar without a visa.
C. He will never make it to Amsterdam and should stay home with his family - valid advice, but not when
there are security issues in Afghanistan. Maybe he can try to go to another country that is closer and
less dangerous.
D. He should opt for Rome instead of Amsterdam (via Libya)
● It is very difficult for third-country nationals to enter the EU/Schengen area without a visa.
Also dangerous due to border control, also at sea.
Schengen Borders Code
● Replaces (in part) Schengen Implementing Agreement
● No internal border controls (art. 22 = key provision), but exceptions: art. 25-35
○ Norway & Denmark temporarily reintroduced internal border control due to the war in
Ukraine → fear of illegal arms coming into their territory.
● Common rules on external border controls, art. 5-14
○ SBC has direct effect in the member states + harmonization into national law.
Article 6 Schengen Borders Code - Entry conditions:
- Valid travel document (passport)
- Sufficient funds for stay and return
- In possession of a valid visa, if required pursuant to Regulation EU 2018/1806
- No SIS alert (see SIS II Regulation): fugitive convicts, suspects, aliens with entry bans
- No threat to public policy, internal security, public health
- (or a residence permit or a long-stay visa)
2
, Art. 14 (1) Schengen Borders Code:
- A tcn who does not fulfill all the entry conditions laid down in art. 6(1) (...) 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
or the issue of long-stay visas.
When applying for a uniform visa, the applicant shall present:
- 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.
Carrier sanctions, art. 26 SIC (supplemented by Directive 2001/51/EC)
1. [...]
a. if aliens are refused entry into the territory of one of the contracting parties, the carrier which
brought them (...) shall be obliged to return the aliens to the third state from which they
were transported (...).
2. the contracting parties undertake [...] to impose penalties on carriers that transport aliens who do not
possess the necessary travel documents by air or sea from a third state to their territories.
The prohibition of collective expulsion (art. 4 protocol 4 ECHR)
- ECtHR N.D. and N.T. v. Spain - pulling migrants from fences and returning them to Morocco
without procedure - no violation: could go to border checkpoint
- ‘’All migrants must have a genuine and effective possibility of submitting arguments against their
expulsion’’.
- Migrants shall not be expelled on a group basis due to certain characteristics. → individual procedure.
The situation of each migrant must be examined.
● Grant Chamber → no violation; these migrants could have also gone to the border checkpoint.
The Lithuanian-Belarus border
- ECtHR M.A. v. Lithuania
- Family of seven from Chechnya refused 3 times at the Lithuanian border
- Asked for asylum, but claims were not looked into/were sent away without
procedure.
- ‘’Azul’’ → asylum in English.
- Positive obligation: border guards must speak/read the language of the bordering
countries, in order to understand people trying to cross the border.
- When member states refuse a person entry, must give that person a refusal form with the
reason why they are refused. Can be appealed in court → specified on the form.
EU-Turkey agreement
● Turkey would take any measures necessary to stop people traveling irregularly from Turkey to the
Greek islands.
● Anyone who arrived on the islands irregularly from Turkey could be returned there.
● For every Syrian returned from the islands, EU Member States would accept one Syrian refugee who
had waited inside Turkey.
In exchange, Turkey would receive €6 billion to improve the humanitarian situation faced by refugees in
the country, and Turkish nationals would be granted visa-free travel to Europe.
3
Seminar 1 - Wednesday 8 February 2023
Schengen (Luxembourg, 1958) - a three-border point with France & Germany + Belgium & the Netherlands
- No longer border posting points.
- Two Schengen treaties (1958, 1990)
- 1958: agreement on the gradual abolition of checks at the common borders.
● Art. 17 → ‘’... first to harmonize, where necessary, the laws, regulations and
administrative provisions concerning the prohibitions and restrictions on which the
checks are based …’’ = free movement of people.
- 1990: Schengen Implementing Convention
● Common visa policies, common databases/information system, police & justice
cooperation → basis for a European arrest warrant, common asylum policy. ←
harmonization between the Schengen countries.
- Amsterdam (1997), Lisbon (2007)
- Lisbon: created the TEU + TFEU → larger competencies; more harmonization within the EU.
- Enlargement (1985: 5 Schengen/10 EU members; now: 27/27)
- Opt-outs: Ireland (EU) & Denmark (Schengen)
- ‘opt-ins’: Switzerland, Liechtenstein, Norway, Iceland
- Not yet ‘Schengen-proof’: Bulgaria, Romania, Cyprus
- ‘Schengen-proof’: a state must be satisfactory according to the Commission and the
member states (member states have a veto).
- Brexit
Exam about for ex. Ireland or Denmark:
1. What EU law applies in that State? → due to the opt-out from Title V TFEU!
Multilevel jurisdiction
● Worldwide international law
- Refugee Convention, ICCPR, CAT
● Regional international law
- European Convention on Human Rights (ECHR)
● EU law
- TFEU, EU Charter of Fundamental Rights
- Regulations & directives
● Regulations = a binding legislative act. It must be applied in its entirety across the
EU.
● Directives = a legislative act that sets out a goal that all EU countries must achieve.
However, it is up to the individual countries to devise their own laws on how to reach
these goals.
- Association Treaties / EEA
● National law
→ UN, Treaty monitoring bodies (national courts); Council of Europe, ECtHR (national courts); EU, CJEU,
national courts
Council of Europe = organization of European countries that seeks to protect democracy and human rights and
to promote European unity by fostering cooperation on legal, cultural, and social issues.
1
,Categories
● EU citizens vs. third-country nationals (tcn)
● Migrants vs. refugees
○ unforced vs. forced migrations
○ art. 79 TFEU v. art. 78 TFEU
● Citizens vs. non-citizens (= nationals vs. aliens)
● Legal vs. illegally residing (and working) tcn (undocumented, irregular, sans papier)
Third-country national: a negative definition
- ‘third-country national’: any person who is:
- Not a citizen of the EU;
- Not a third-country national who is a family member of an EU citizen exercising his or her
right to free movement; and
- Not a person who, under an agreement between the EU and a third-country, enjoys rights of
free movement equivalent to those of EU citizens
(cf. art. 2(5) Schengen Borders Code (reg 2016/399); art. 3 Return Directive (2008/115/EC))
● Turkish people have a privileged position due to several treaties between Turkey and EU states. → but
still third-country nationals.
○ Turkey is not within Schengen but within the Customs Union. Traveling between Turkey and
the EU is therefore very easy.
The EU external border, how to get there, and cross it
- ex. Fareed from Afghanistan, speaks English → wants to go to Amsterdam. What is your (legal)
advice?
A. He should buy an airline ticket to Amsterdam
B. He should hire the services of a smuggler (Qatar - Libya - Italy - NL)
● Visa requirements for Afghans → can travel to Qatar without a visa.
C. He will never make it to Amsterdam and should stay home with his family - valid advice, but not when
there are security issues in Afghanistan. Maybe he can try to go to another country that is closer and
less dangerous.
D. He should opt for Rome instead of Amsterdam (via Libya)
● It is very difficult for third-country nationals to enter the EU/Schengen area without a visa.
Also dangerous due to border control, also at sea.
Schengen Borders Code
● Replaces (in part) Schengen Implementing Agreement
● No internal border controls (art. 22 = key provision), but exceptions: art. 25-35
○ Norway & Denmark temporarily reintroduced internal border control due to the war in
Ukraine → fear of illegal arms coming into their territory.
● Common rules on external border controls, art. 5-14
○ SBC has direct effect in the member states + harmonization into national law.
Article 6 Schengen Borders Code - Entry conditions:
- Valid travel document (passport)
- Sufficient funds for stay and return
- In possession of a valid visa, if required pursuant to Regulation EU 2018/1806
- No SIS alert (see SIS II Regulation): fugitive convicts, suspects, aliens with entry bans
- No threat to public policy, internal security, public health
- (or a residence permit or a long-stay visa)
2
, Art. 14 (1) Schengen Borders Code:
- A tcn who does not fulfill all the entry conditions laid down in art. 6(1) (...) 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
or the issue of long-stay visas.
When applying for a uniform visa, the applicant shall present:
- 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.
Carrier sanctions, art. 26 SIC (supplemented by Directive 2001/51/EC)
1. [...]
a. if aliens are refused entry into the territory of one of the contracting parties, the carrier which
brought them (...) shall be obliged to return the aliens to the third state from which they
were transported (...).
2. the contracting parties undertake [...] to impose penalties on carriers that transport aliens who do not
possess the necessary travel documents by air or sea from a third state to their territories.
The prohibition of collective expulsion (art. 4 protocol 4 ECHR)
- ECtHR N.D. and N.T. v. Spain - pulling migrants from fences and returning them to Morocco
without procedure - no violation: could go to border checkpoint
- ‘’All migrants must have a genuine and effective possibility of submitting arguments against their
expulsion’’.
- Migrants shall not be expelled on a group basis due to certain characteristics. → individual procedure.
The situation of each migrant must be examined.
● Grant Chamber → no violation; these migrants could have also gone to the border checkpoint.
The Lithuanian-Belarus border
- ECtHR M.A. v. Lithuania
- Family of seven from Chechnya refused 3 times at the Lithuanian border
- Asked for asylum, but claims were not looked into/were sent away without
procedure.
- ‘’Azul’’ → asylum in English.
- Positive obligation: border guards must speak/read the language of the bordering
countries, in order to understand people trying to cross the border.
- When member states refuse a person entry, must give that person a refusal form with the
reason why they are refused. Can be appealed in court → specified on the form.
EU-Turkey agreement
● Turkey would take any measures necessary to stop people traveling irregularly from Turkey to the
Greek islands.
● Anyone who arrived on the islands irregularly from Turkey could be returned there.
● For every Syrian returned from the islands, EU Member States would accept one Syrian refugee who
had waited inside Turkey.
In exchange, Turkey would receive €6 billion to improve the humanitarian situation faced by refugees in
the country, and Turkish nationals would be granted visa-free travel to Europe.
3
