Immigration policy

A forward-looking and comprehensive European migration policy, based on solidarity, is a key objective for the European Union. Migration policy is intended to establish a balanced approach to dealing with both regular and irregular immigration.

Legal basis

Articles 79 and 80 of the Treaty on the Functioning of the European Union (TFEU).

Competences

Legal migration: the EU has the competence to lay down the conditions of entry and residence for third-country nationals entering and residing legally in one Member State for purposes of family reunification. Member States still retain the right to determine admission rates for people coming from third countries to seek work.

Integration: the EU may provide incentives and support for measures taken by Member States to promote the integration of legally resident third-country nationals; however, there is no provision for harmonisation of national laws and regulations.

Fight against illegal migration: the European Union is required to prevent and reduce irregular immigration, in particular by means of an effective return policy, with due respect for fundamental rights. An irregular migrant is a person who comes to the EU without a proper visa or permit or who overstays after the expiry of their visa.

Readmission agreements: the European Union is competent to conclude agreements with third countries for the readmission to their country of origin or transit of third-country nationals who do not or no longer fulfil the conditions for entry, presence or residence in one of the Member States.

Objectives

Defining a balanced approach to immigration: the EU aims to set up a balanced approach to dealing with legal migration and fighting illegal immigration. Proper management of migration flows entails ensuring fair treatment of third-country nationals residing legally in Member States, enhancing measures to combat illegal immigration and promoting closer cooperation with non-member countries in all fields. It is the EU’s aim to develop a uniform level of rights and obligations for legal immigrants, comparable with that of EU citizens.

Principle of solidarity: according to the Treaty of Lisbon, immigration policies should be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States (Article 80 TFEU).

Achievements

a.Institutional developments brought about by the Treaty of Lisbon

The Lisbon Treaty, which entered into force in December 2009 (1.1.5), introduced codecision and qualified majority voting on legal migration and a new legal basis for integration measures. Now the ordinary legislative procedure applies to both illegal and legal immigration policies, making Parliament a co-legislator on an equal footing with the Council. It may be noted, however, that the provisional measures to be instituted in the event of a sudden inflow of third-country nationals are to be adopted by the Council alone, after consulting Parliament (Article 78(3) TFEU).

The Lisbon Treaty also clarified that the competences of the EU in this field are shared with the Member States, notably concerning the number of migrants allowed to legally enter a Member State to seek work (Article 79(5) TFEU). Finally, the Court of Justice now has full competence in the field of immigration and asylum.

b.Recent policy developments

1.The ‘Global Approach to Migration and Mobility’

The ‘Global Approach to Migration and Mobility’ adopted by the Commission in 2011 establishes a general framework for the EU’s relations with third countries in the field of migration. It is based on four pillars: legal immigration and mobility, illegal immigration and trafficking in human beings, international protection and asylum policy, and maximising the impact of migration and mobility on development. The human rights of migrants are a cross-cutting issue in this approach.

The Global Approach focuses on regional and bilateral dialogue between countries of origin, transit and destination. One of the main instruments of the Global Approach is the possibility of concluding ‘mobility partnerships’ with third countries. Such partnerships include not only readmission agreements, but a whole set of measures ranging from development aid to temporary entry visa facilitation, measures on circular migration, and the fight against illegal migration.

2.The strategic guidelines of June 2014

The Stockholm Programme (‘An open and secure Europe serving and protecting citizens’), adopted in December 2009 as a successor to the multiannual programmes adopted at Tampere (1999) and The Hague (2004), expired in December 2014. In March 2014, the Commission published a new communication presenting its vision on the future agenda for Home Affairs, entitled ‘An open and secure Europe: making it happen’, to enable the European Council and Parliament to debate the strategic guidelines in June 2014.

In accordance with Article 68 TFEU, the European Council then, in its conclusions of 26 and 27 June 2014, defined the ‘strategic guidelines for legislative and operational planning within the area of freedom, security and justice’ for the period 2014-2020. These no longer constitute a programme but rather guidelines focusing on the objective of transposing, implementing and consolidating the existing legal instruments and measures. The guidelines stress the need to adopt an overall approach to migration, making the best possible use of legal migration, affording protection to those who need it, combating irregular migration and managing borders effectively.

3.European Agenda on Migration

On the basis of a European Commission proposal (10-point action plan), Member States undertook, on 23 April 2015 (see the European Council statement) to take measures quickly to save lives and step up the EU’s action in the field of migration. A European Parliament resolution was adopted a few days later, on 29 April.

The Commission then published the European Agenda on Migration on 13 May 2015, reflecting its stated intention of making immigration a central priority. The Agenda proposes immediate measures to cope with the crisis in the Mediterranean and measures to be taken in the next few years to manage all aspects of migration better.

In the medium and long term the Commission proposes guidelines in four directions: reducing incentives for irregular migration; border management – saving lives and securing external borders; developing a solid common asylum policy based on the implementation of Europe’s Common European Asylum System, but also assessing and, possibly, revising the Dublin Regulation in 2016; and lastly establishing a new policy on legal migration, modernising and revising the ‘blue card’ system, establishing fresh priorities for integration policies, and optimising the benefits of migration policy for the individuals concerned and countries of origin, for example by facilitating cheaper, faster and more secure remittance transfers.

Among the emergency measures, the Commission has proposed an immediate tripling of the capacities and resources available in 2015 and 2016 for Frontex’s joint operations Triton and Poseidon, on the basis of an amending budget for 2015 and a new Triton Operational Plan. Above all, however, it has made practical proposals for acting on the principle of solidarity laid down in Article 80 TFEU: on the one hand, by means of a temporary system for distributing asylum-seekers, to be supplemented at the end of 2015 by a proposal for a permanent European relocation system to be applied in urgent situations where there is a massive inflow; on the other hand, by means of an EU-wide resettlement programme for displaced persons who manifestly require international protection in Europe (see fact sheet on asylum policy). These proposals were adopted by the Council on 14 and 22 September 2015. Lastly, the agenda proposes that, as part of the Common Security and Defence Policy (CSDP), consideration be given to a possible operation in the Mediterranean to dismantle smuggling networks and to combat trafficking in migrants.

c.Recent legislative developments

Since 2008 a number of important directives relating to immigration and asylum have been adopted and some other relevant directives are due to be revised in the near future.

1.On legal migration

Following the difficulties encountered in adopting a general provision covering all labour immigration in the EU, the current approach consists in adopting sectoral legislation, by category of migrants, in order to establish a legal migration policy at EU level.

Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment creates the ‘EU blue card’, a fast-track procedure for issuing a special residence and work permit, under more attractive conditions, for third-country workers to take up highly qualified employment in the Member States. The first report on the implementation of this directive was published in May 2014, and the Commission has stated that it intends in March 2016 to revise the system currently in place, which is functioning properly only in an extremely limited number of Member States.

The Single Permit Directive (2011/98/EU) sets out a common, simplified procedure for third-country nationals applying for a residence and work permit in a Member State, as well as a common set of rights to be granted to regular immigrants. The first report on its implementation is due by December 2016.

Directive 2014/36/EU, adopted in February 2014, regulates the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers. Migrant seasonal workers are allowed to stay legally and temporarily in the EU for a maximum period of between five and nine months (depending on the Member State) to carry out an activity dependent on the passing of seasons, while retaining their principal place of residence in a third country. The directive also clarifies the set of rights to which such migrant workers are entitled.

Directive 2014/66/EU on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer was adopted on 15 May 2014. It is to be transposed by 29 November 2016, and will make it easier for businesses and multinational corporations to temporarily relocate their managers, specialists and trainee employees to their branches or subsidiaries located in the European Union. The first report on its implementation is due by the end of November 2019.

On 25 March 2013, the Commission put forward a new proposal (COM(2013) 151) for a directive improving the existing legislative instruments applicable to third-country nationals seeking entry to the EU for the purposes of study or research (Directives 2004/114/EC and 2005/71/EC). The European Parliament and the Council reached a political agreement at the end of 2015. The final text will be published at the beginning of 2016 and will then enter into force.

Finally, the status of third-country nationals who are long-term residents in the European Union is still regulated by Council Directive 2003/109/EC, as amended in 2011 to extend its scope to refugees and other beneficiaries of international protection.

2.On integration

Directive 2003/86/EC sets out provisions on the right to family reunification. The 2008 report on its application concluded that it was not fully and correctly applied in the Member States: as a consequence, a green paper was published in 2011, opening a process of public consultations. In April 2014, the Commission published a communication providing guidance to the Member States on how to apply the directive.

In April 2010, the Commission presented the third edition of the Handbook on Integration for policy-makers and practitioners, and in July 2011 it adopted the European Agenda for the Integration of Third-Country Nationals. In addition, since 2009 two instruments have been created to deal with the issue of integration: the European Integration Forum (organised by the Commission and the European Economic and Social Committee) and the European Website on Integration (http://ec.europa.eu/ewsi/en/). In January 2015, the scope of the European Integration Forum was extended, transforming it into the European Migration Forum.

3.On irregular migration

The EU has adopted two major pieces of legislation to fight irregular migration:

  • The ‘Return Directive’ (2008/115/EC) sets out common EU standards and procedures for returning irregularly staying third-country nationals. Member States were called upon to transpose the directive by 24 December 2010. The first report on its implementation was adopted in March 2014. The main areas for further action include ensuring its proper implementation, promoting consistent and fundamental rights-compatible practices, improving cooperation between Member States and enhancing the role of Frontex. One of the main tasks of the teams supporting national authorities at hotspots in Italy and Greece is to actually return people. On 9 September 2015, the European Commission published a European Union action plan on return (COM(2015) 453 final), which was endorsed by the Council the following October.
  • Directive 2009/52/EC specifies sanctions and measures to be applied in Member States against employers who infringe the prohibition on employing illegally staying third-country nationals. Member States were required to transpose the directive by 20 July 2011. The first report on the implementation of the directive was submitted on 22 May 2014.

The EU is, at the same time, negotiating and concluding readmission agreements with countries of origin and transit for purposes of returning irregular migrants and cooperating in the fight against trafficking in human beings. These agreements include reciprocal cooperation commitments between the EU and its third-country partners. The negotiations completed with the following countries resulted in the entry into force of such agreements: Hong Kong, Macao, Sri Lanka, Albania, Russia, Ukraine, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Montenegro, Pakistan, Serbia, Moldova, Georgia, Armenia, Azerbaijan and Cape Verde. In February 2014, Parliament approved the conclusion of a readmission agreement with Turkey, which was finally signed on 16 December 2014.

Role of the European Parliament

Parliament actively supports the introduction of a European immigration policy. On the admission of third-country nationals, it has called for the development of legal means, and, in particular, measures to reduce incentives for irregular immigration.

In its resolution on the Stockholm Programme, adopted on 25 November 2009, Parliament urged that integration, immigration and asylum policies be built on full respect for fundamental rights. It once again deplored refoulement and collective expulsions to countries where human rights are not respected. Parliament has always stressed the importance of addressing the needs of the most vulnerable groups, such as refugees and minors.

Since the entry into force of the Lisbon Treaty, Parliament has been actively involved in the adoption of new legislation dealing with immigration. For instance, it played a pivotal role in the drafting and approval of the ‘Return’ and ‘Single Permit’ Directives.

In response to the arrival of increasing numbers of migrants on the Mediterranean coasts of the Union and the growing number of shipwrecks since the end of 2013, Parliament adopted a resolution on 17 December 2014 on the situation in the Mediterranean and the need for a holistic EU approach to migration, which mandated Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) to draft an own-initiative report. The draft report was submitted in committee on 18 January 2016, before being tabled in plenary for adoption by the European Parliament as a whole. This report, which deals with an increasingly topical subject, provides the European Parliament with a general framework for its future positions in this field, particularly for the two packages which the European Commission has announced for March 2016 on asylum (see fact sheet on asylum policy) and economic migration.

Céline Chateau

01/2016