lecture 7 Flashcards
(21 cards)
When does law typically intervene in the migration process?
Often at a later stage, after individuals have already faced obstacles like money, family pressure, or informal procedures
EU competence in asylum and migration
treaties timeline
Part of the Amsterdam treaty 1999
- When title 5 was added (area of freedom, justice and security, incl border control; asylum, immigration)
- Title 4 on free movement was there, but there is a difference
- What is your nationality and what is that of your family members?
2007 Lisbon Treaty (amending Treaty on EU Treaty establishing EC)
- Clarifying powers of the Union (exclusive, shared, support of ms policies)
- EU Charter on Fundamental Rights is binding law
2012 consolidated texts Treaty on the EU (TEU)/Treaty of the functioning of the EU (TFEU)
Relevant articles of Title 5 in the TFEU
To develop a common policy on asylum (Art. 78) and immigration (Art. 79) in accordance with international conventions like the Geneva Convention.
Art 78 TFEU: as union we shall have a common policy on asyslum ➞ in accordance with the Geneva convention
Art 79 TFEU: on migration. Immigration policy is something you should be able to manage efficiently, etc ➞ family law and the rights which people have
- if you go from a TCN to EU, then you can say sorry, we are full
- If you have a person from Senegal who lives in Belgium and then wants to go to the NL, then the NL can’t say sorry we are full because they were already in the EU
➞ both articles are about the competence
numbers in immigration vs asylum
extra info:
We have EU citizens and non-eu (third country nationals, TCN)
But there are ways to get away from par 5 ➞ thats why in Brussels want to harmonize migration policies, but EU MS aren’t as keen on this
The first generation directives on migration law
In 1999 the competence came, and the first directive took 4 years
* Family Reunification Dir 2003/86
* Long-Term Residence Dir 2003/109
* Students Dir 2004/114
* Researchers Dir 2005/71
* Blue Card Directive Dir 2009/50
* Employer Sanctions Dir 2009/52
objectives of the EU long-term residence permit based on directve 2003
- economic goal: common market ➞ functions best when peiple here are secure about their rights, working, have the option to be mobile, etc. so near to equal EU citizens (not fully as said in the directive)
- Socio-political goal: bringing peace, bringing people together
- Integration: as an outcome of a secure status or precondition for secure status to be granted
- Near equal to EU citizens? Art. 11(3) (4)LTR: thirds country national are not equal to EU nationals
Basics of the long-term residence directive
-
Terms for conferring and withdrawing long term residence and rights
(art. 1) -
Scope has been expanded a bit along the way. First refugees weren’t entitles to it, but now they are
- Now our country wants to take away this from refugees.
- Exluded are: students (so American student who is here with a study recidence permit and has been here for 5 years, they can’t apply for it, because study is temporary); temporary grounds; diplomats; temporary protecte
-
Duration of residence (art 4) = 5 years ➞ rules on how to meet this
- Students ➞ they only count for half. So a student with 4 years of residence, only has 2 years. So then they would still need 3 years of working after this to apply
-
Conditions for acquiring (art 5/6/7)
- Income, health insurence
- No public order/securty threat
- Withdrawel
- When away for more than 12 months
- Security threat
Equal treatment under LTR DIR
LTR-status enjoy equal treatment (Art. 11) with nationals
* Access to employment
* Access to education / recognition qualifications
* Social security
* Proof of language skills – for education
Some restrictions can apply ➞ case ECL Land Oberosterreich v KV
ECL Land Oberosterreich v KV
➞ on housing benefits
Long term residence of turkish family now for 10 years already. Then a new law came, and only benefits for those who passed test, and their housing benefit got denied.
They went to court. The case can be interesting for the content, but also the Austia’s responce to the advocate general’s opinion. They came with an answer to the AG, but that isn’t how it goes usually.
- court said no, not another hearing just because you don’t agree with AG
ECJ: depends if housing is “core benefit”
- If yes, it falls within the meaning of 11(4) LTRdir and the Charter of fundamental rights: then we must see if there is discrimination
➞ Yes, they do
If a rule applies without ethnic or racial distinction to all TCNs, it is generally permitted. However, if such distinctions are made, it is not permitted, as this would conflict with Article 21 of the Charter of Fundamental Rights of the EU
near to equal when you have LTR even when a TCN, so there are benefits
When is it not permitted to withdraw housing benefits from a long-term resident TCN under EU law?
💡 [Based on the case ECL Land Oberösterreich v KV]
It is not permitted to withdraw housing benefits after a TCN has obtained long-term residence if new conditions (e.g., language tests) are introduced after the fact.
- Such conditions violate Art. 11 LTR Directive, which ensures equal treatment.
- Housing benefits are considered core benefits.
- Imposing new requirements creates indirect discrimination and undermines legal security for LTR holders.
The mirgration and asylum PACT 2024
➞ zooming out again
A whole set of regulation, especially on asyslum but not just
- there is the idea to do everything together
- Firm and fair rules
- Normalizing migraiton, yet providing the MS with flexibility because they all want something else
- About protecting people in need
➞ so hard to answer to all these ambitions
mirgration and asylum PACT 2024 - four pillar system
- Asylum Migration Management
Regulation - Qualification Regulation
- Reception Conditions Directive
- Asylum Procedure Regulation
- Secure external borders
- Fast and efficient pricedyrs
- Effective system of solidarity and responsibility
- Embedding migration in international partnerships
- Small portion: propoting legal pathways
Godar from Iraq - EU harmonization and the impact on the individual
Qualification Regulation recital 66
Having applied for asyslum in MS Portugal.
With that status, one can stay in Portugal, but not a status which gives acces to the rest of the EU. But if it was granted in greece and he can’t find a home or work etc, so he decides to try his luck in anohter MS holding his status in greece
–
what do we call this?
= secondary movement
- What happened in the past, we saw that a lot of secondary movement is from Italy and spain before people are allowed to move (so with LTR).
- EU promotes movement for eu citizens or qualified people, but refugees get punished ➞ exlusion from integration.
- Recital 66: counting for 5 years then starts again.
- This is an example of the lack of trust between the MS in who they admit (with the refugees, but also sometimes on highly qualified
Mike - EU harmonization and the impact on the individual
Article 18 Blue Card Directive
Mike is a Canadian, higly skilled working in the gaming industry (art 18 blue card directive) and wants to go back to canada to take care of his father.
His company says go, he checks the Blue card directive
He is not yet holding a LTR permit. If he moves however, he can move, go away from the EU, just as long as it isn’t longer than 12 months
- understanding what it means in practice is something else than what it says
- After 11 months he came back, and after 5 years he applied for LTR
- His application was denied, because during that year he was not a blue card holder. The case said that it only goes for blue card holders, so the company otherwise should’ve kept paying him during the whole year for it to count as an entire year
- So he can’t go away and him come back and then just count the year for that time ➞ that’s the interpretation
The court eventually said that they got it wrong. Now with new implementation of the directive and what it means, the implemetnation in the NL is reversed. Now, if you are away, you have to keep living up to the requirements of holding a blue card. That is a dead letter, because what company will keep paying you when you aren’t working…
Circular mobility for LTR - different forms
First form = while awaiting application for LTR during first 5 years
- the general rule for TCN is, that if you are away during the first 5 years. And away for 6 months or longer, then you lose your status (and in total of 10 months)
- For mike (with blue card directive) it is different, 6 months for normal people, but 12 months for him as he is highly educated
Second form = while holding LTR after 5 years in the EU
- for reasons of work, study or just when you have money (as long as you can support yourself)
- These people can be away for up to 2 months
- There may be exceptional reasons if you exceed the 12 months, and not be held against you
Looking at the same clause for EU citizenship
- they can be mobile only for specific reason
- More than 6 months? Then not held against you
- More than 2 years? Then you lose the status of that other MS
C-432/20 - Landeshauptmann von Wien
They reiterate EU law here: they refered to the recitals (4) ➞ it is within that framework that they made the decision
- here it was about someone who had left, but not more than 12 months. But only touched base for one week in Italy and then left again
Is that enough to keep your status?
- Court says: that is what it is ➞ it is that freedom to come and go that you award someone. Touching base for only a couple days is enough to secure your status
Recast process-regression on integration
➞ LTR COM
You can’t have the people to come to another MS, and so it is all very resticted.
So a new pact, to be more welcoming etc
- EU parliament agreed and saw benefit
- In dec 2023 the first negotiations started and ended because the council was apposed to opening up more free movement and rights to LTR ➞ so moving back
- The EU parliament didn’t want to go backward, so leave it at what we have, but the commission keeps pushing
Why apply for LTR when you can apply for citizenship?
- cost, takes longer, etc
- But, language tests are usually the same
- There is one downside = a lot of them don’t offer dual citizenship.
What is one critique of the LTR recast process?
It reflects regression, as MSs resist greater rights and mobility for LTR holders
Why is harmonization in migration law difficult in the EU?
National interests often override EU-level ambitions, and vague legal language complicates implementation
What does the Landeshauptmann von Wien case clarify?
Even short returns to EU territory maintain continuous residence for LTR eligibility
