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Researching Immigration & Asylum Law

E.U. Immigration Legal Framework

When researching European Union migration and border policy, understanding the distinct aspects of the E.U. and its legal framework are important. Member states within the E.U. must comply with E.U. immigration and asylum policies and law, making the E.U. a unique entity with regards to immigration and asylum law. 

1. The Treaty on the Functioning of the European Union (TFEU) establishes much of the E.U.'s immigration and asylum policies.

- TFEU establishes the Court of Justice of the E.U. (CJEU) as the judicial authority that answers questions on E.U. immigration, asylum, and external border policy

- Article 67: establishes the E.U. as an area of freedom, security and justice with respect to the fundamental rights of all persons and establishes that the E.U. shall frame a common policy on immigration, asylum, and border control.

- Article 77: establishes the common external border policy

- Article 78: establishes the common asylum policy

- Article 79: establishes the common immigration policy, which aims to create efficient management of migration flows and fair treatment of legally residing immigrants. It also stipulates that the E.U. may establish measures to support member states to integrate migrants into society

- Article 80: establishes the principles of Solidarity and Fair Sharing of Responsibility between E.U. member states as the guiding principles of E.U. migration and asylum policy

2. The E.U. Common Visa and Common External Border Policy

- The Schengen External Border Acquis established the Schengen External Border Code. This agreement, originally signed by five European countries in 1985, now applies to 27 European nations. It establishes a common external border and stipulates that each E.U. member state must apply the common external border policy at all external borders. It allows for legal visitors from enumerated countries to enter the external Schengen border easily, but beefs up internal security once those visitors are within the Schengen area. It also provides a 90 day tourist visa to enter the Schengen area for those countries who are listed as requiring one. 



E.U. Asylum Legal Framework

1. Common European Asylum System (CEAS)

- The CEAS is the legislative framework to regulate asylum, subsidiary protection and temporary protection for asylum seekers.

  • Article 78 of the TFEU establishes the parameters and competences of the CEAS
  • Subsidiary protection refers to protections given to migrants who do not qualify as refugees, but have substantial grounds to fear suffering if they were to be returned to their country of origin.
  • Temporary protection refers to the minimum standards of protection required in the event of a mass influx of displaced persons. It also promotes the balance of effort between the member states in receiving that massive influx of persons. 

2. The 1990 Dublin Convention

- This convention determined which EU member states are responsible for examining an application for asylum. The convention essentially dictates that the EU member state where an asylum application is lodged is responsible for examining that application, in order to prevent secondary movement of asylum seekers within the EU.

3. The EU Charter of Fundamental Rights

- Article 18: guarantees the right to seek asylum within the EU

- Article 19: prohibits collective expulsions of asylum seekers within the EU

4. The 2013 Dublin III Regulation and Eurodac Regulation

- The 2013 Dublin Regulation enforced the principles of the 1990 Dublin Convention, determining which member states are responsible for handling asylum applications based on the point of irregular entry.

- The 2013 Eurodac Regulation facilitated communication between member states by providing an infrastructure for member states to dialogue about border, asylum and concerns.

5. The 2020 New Pact on Migration & Asylum

- This pact reformed the CEAS making it broader and more balanced by bringing all aspects of asylum and migration policy together.

- 3 pillars:

  • Surveillance of external borders
  • Intensifying the return and removal policy of irregular migrants
  • Establishing a new solidarity mechanism for information sharing databases

- Asylum and Migration Management Regulation: the mechanism for solidarity and criteria for examining asylum applications

  • Solidarity a la carte: the New Pact does not propose mandatory quotas for the distribution of asylum seekers throughout the EU, however, member states have the ability to choose relocation quotas for receiving migrants and pay penalties to expel migrants

- 2023 New Pact Reform Mandates

  • As of April 2023, the European Parliament voted on mandates to reform the 2020 New Pact on Migration & Asylum
  • The reforms considered deal with the screening of third-country nationals, asylum and migration management, crisis situations, and a long-term resident directive.