The Migration Trail living analysis focuses on directions and improvements of European migration policies. To do so it is important to outline first how these policies are embedded within international regulations. This article therefore outlines the most important regulations on migration at the level of the European Union (EU) and United Nations (UN).
The overarching EU regulation relevant for irregular migration is the EU Charter of Fundamental Rights. Since 2009, this charter is a legally binding treaty for member states which outlines fundamental rights for everyone within the borders of the EU, regardless of their migration status. This also involves the right to asylum and the prohibition of expulsion and removal of individuals if there is a life threatening risk.
Furthermore, EU policies regarding irregular migration can be subdivided into two categories: asylum policies and immigration policies. They have been financed by the EU Refugee Fund in 2008-2013 as well as the Asylum, Migration and Integration Fund in 2014-2020.
The EU has adopted a Common European Asylum System (CEAS) for all its member states, with two exceptions. First, the Republic of Ireland and United Kingdom have an opt-out for all its instruments where they can opt-in to any regulation if they want. Secondly, Denmark has no part in the CEAS but has opted in to the Dublin Regulation. The CEAS was installed to prevent ‘asylum shopping’ (migrants making multiple asylum claims in different countries following a rejection in one state) and the perceived influx of migration in countries with higher recognition rates and social benefits. The CEAS incorporates amongst others the following regulations:
- Dublin regulation (2013) 1: this regulation determines which EU member states are responsible for the processing of asylum-seekers applications. Its core principle is that of first country of entry. This country is responsible for examining a person’s asylum application and is the country the person will be transferred back to if he/she decides to leave to another EU country.
- Temporary protection directive (2001): as a response to the influx of displaced persons from former Yugoslavian countries during the 1990s, this directive aimed to provide uniform guidelines amongst member states for immediate and temporary protection for displaced persons in the situation of mass influx. It formulates socio-economic rights and provisions for the return of displaced persons and promotes transfers and cooperation between member states.
- Directive for minimum standards of the reception of asylum seekers (2003): this directive, based on the protocols of the Geneva Convention, outlines the minimum standards on the rights of asylum seekers. This includes basic needs, access to labor markets, attention for people with special needs and the reasons and conditions for detention.
The EU's main regulation for immigration from non-member states is the Schengen borders code (outlined below). The responsibility for the control and protection of the EU external borders lies with the member states. However, the EU also installed the agency Frontex for an effective implementation of EU border management policies such as the Schengen code. The following regulations are related to immigration:
- Schengen borders code (2006) 2: this code sets out the rules for the control of external borders of the EU. The rules include, amongst others, the border crossing points, the checks which EU and non-EU citizens have to undergo and the documents required for border-crossing. Its most important feature however, is the abolishment of border controls within the Schengen area, which is comprised of the 26 Schengen countries. An important feature is the possibility of a temporary reintroduction of border controls at internal borders 'where there is a serious threat to public policy or internal security'.
- Visa code (2009): this code outlines the requirements for visas for transit through or intended stays on the territory of the member states not exceeding 90 days in any 180-day period. It applies to family members of EU citizens and those meeting the requirements through bilateral agreements between member states and third countries. It outlines three types of visas, of which the Limited Territorial Validity Visa (LTV visa) is the visa irregular migrants usually can apply for. The LTV is only valid in a Schengen State without possibility of access to or transit through the territory of any other Schengen country. Article 25(1) of the Visa code obliges member states to issue the LTV visa either on humanitarian grounds, for reasons of national interest or because of international obligations.
- Directive on trafficking in human beings (2011): this directive lays down minimum common rules for determining offences of human trafficking and the punishment of offenders. It also provides measures for improved prevention of human trafficking and protection of victims.
- EUROSUR regulation (2013): this regulation establishes the European Border Surveillance System (EUROSUR) for the exchange of information and for the cooperation between member states and the Frontex agency in order to improve situational awareness and increase reaction capability at the external borders of the EU for the purpose of detecting, preventing and combating illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants.
- Directive on common standards and procedures for return of illegally staying third-country nationals (2008): this directive sets out the standards and procedures for the return of third-country nationals staying illegally on the territory of a member state. It contains definitions of illegal stay, refugee protection and human rights obligations, and outlines the proceedings for the return of illegal staying third-country nationals.
United Nations regulations
The UN, particularly the United Nations High Commissioner for Refugees, has adopted several conventions and protocols related to irregular migrants.
- The Universal Declaration of Human Rights (1948): this declaration of universal human rights outlines amongst others the freedom of movement within the territory of a country (Article 13(1)), the right to leave any country and the right to return to his or her own country (Article 13(2)).
- The Convention and Protocol Related to the Status of Refugees (1951) 3: this convention, more commonly referred to as the Geneva Convention, outlines minimum international standards regarding the requirements for the status of refugee, the rights of asylum seekers and the responsibilities of member states that grant asylum. Three elements stand out:
- The definition of a refugee as 'a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it' (Article 1).
- There are responsibilities of member states that grant asylum. It outlines the principle of non-refoulement, which forbids a nation to render a refugee to its country of origin. Moreover, it outlines the legal protection a refugee can expect from a country. For instance, Article 34 reads 'the contracting states shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings'.
- The treatment of refugees is equal to citizens. Non-discrimination is a principle (Article 3) but applies to discrimination amongst refugees. In fact, the articles on wage-employment (Article 17) and housing (Article 21) demand 'treatments as favourable as possible' and 'not less favourable than that accorded to aliens generally in the same circumstances' from the hosting nation.
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990): this convention serves as a moral guideline for the recognition of migrant workers’ human rights. It aims at guaranteeing equal treatment between migrants and nationals in terms of the working conditions, particularly in temporary work.
- Protocol to Prevent, Suppress and Punish Trafficking in Persons (2000): this protocol, supplementing the International Convention against Transnational Organized Crime (ICTOC), provides a definition of human trafficking and policies for prevention and penalization of human trafficking with a particular focus on trafficking of children and women. It obliges ratifying member states to introduce national trafficking legislation.
- Protocol Against the Smuggling of Migrants by Land, Sea and Air (2000): this protocol, also supplementing the ICTOC, aims to protect the rights of migrants and reduce the power and influence of organized smuggling groups. It refers to irregular migrants instead of migrants only, and targets the facilitators of smuggling. It demands criminalization of smuggling (Article 5), exchanges of information and evidence from member states (Article 10-14) and measures to prevent human smuggling, such as developing programmes and cooperation 'paying special attention to economically and socially depressed areas, in order to combat the root socio-economic causes of the smuggling of migrants, such as poverty and underdevelopment' (Article 15(3)).
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This regulation is also referred to as Dublin III Regulation. The original Dublin Convention stems from 1990 and came into force in 1997. The amendments made in Dublin II (2003) and Dublin III mainly involved the formulation of exact rules and responsibilities of member states.
The initial Schengen Agreement stems from 1985 and was supplemented by the Schengen Convention in 1990 to abolish internal border controls and create common visa systems. The Schengen borders code resulted from the incorporation of the Schengen Convention into European Union Law, as agreed upon in the Amsterdam Treaty (1997).
This Convention relates to refugees before 1951 as a result of World War II. The 1967 Protocol on the Status of Refugees removed temporal and geographic restrictions of the required circumstances for refugee status.