European Union Immigration Law
The Treaty Basis and the Common Immigration Policy
The Treaty on the Functioning of the European Union (TFEU) provides the legal foundation for the common immigration policy at Articles 77 to 80. Article 79 TFEU mandates the development of a common immigration policy aimed at ensuring the efficient management of migration flows, the fair treatment of third-country nationals residing lawfully in member states, and the prevention of illegal immigration and trafficking in human beings. Article 79(5) preserves the right of member states to determine volumes of admission for labour migrants, reflecting the sensitivity of labour migration policy. The common immigration policy is subject to qualified majority voting for most aspects of illegal immigration, while legal immigration measures concerning the conditions of entry and residence of member state nationals require unanimity in the Council and consultation with the European Parliament.
The Schengen Acquis
The Schengen acquis, incorporated into the EU legal framework by the Treaty of Amsterdam, establishes the area without internal borders in which the free movement of persons is guaranteed. The Schengen Borders Code (Regulation 2016/399) abolishes internal border controls between Schengen states and establishes common rules on the crossing of external borders. External border checks are conducted in accordance with the Schengen Borders Code, which requires systematic border checks on all persons crossing external borders, including EU citizens and third-country nationals. The short-stay visa regime, governed by the Schengen Visa Code (Regulation 810/2009), permits third-country nationals to stay in the Schengen area for up to 90 days in any 180-day period. The Visa Information System (VIS) stores biometric data and visa application information, while the Schengen Information System (SIS) contains alerts on persons who should be refused entry or apprehended.
The EU Blue Card and the Single Permit
The EU Blue Card Directive (Directive 2009/50/EC), revised in 2021 (Directive 2021/1883), establishes a fast-track procedure for admitting highly qualified third-country nationals. The revised Directive lowers the minimum salary threshold to between 1.0 and 1.6 times the average gross annual salary in the member state, expands the scope to beneficiaries of international protection, and reduces the period before Blue Card holders can move between member states from 18 months to 12 months. The Single Permit Directive (Directive 2011/98/EU) simplifies administrative procedures by establishing a single application procedure for a combined work and residence permit and a common set of rights for third-country workers. The Long-Term Residents Directive (Directive 2003/109/EC) grants EU long-term resident status after five years of continuous legal residence, conferring equal treatment with nationals in employment, education, and social security.
Family Reunification and Student Migration
The Family Reunification Directive (Directive 2003/86/EC) establishes the right of third-country nationals who hold a residence permit valid for at least one year and who have reasonable prospects of obtaining permanent residence to be joined by their spouse and minor children. Member states may require the sponsor to have adequate accommodation, sickness insurance, and stable resources. The Students and Researchers Directive (Directive 2016/801/EU) harmonises the conditions of entry and residence of third-country nationals for research, study, training, voluntary service, pupil exchange, and au pairing. The Directive permits students to work at least 15 hours per week and allows researchers to move between member states under simplified procedures.
The Return Directive and Temporary Protection
The Return Directive (Directive 2008/115/EC) establishes common standards and procedures for returning illegally staying third-country nationals. The Directive requires member states to issue a return decision, which must provide a voluntary departure period of between 7 and 30 days. Where there is a risk of absconding, detention may be ordered for a maximum of six months, extendable under certain conditions to 18 months. The Temporary Protection Directive (Directive 2001/55/EC) provides immediate protection in cases of mass influx of displaced persons. The Directive was activated for the first time in March 2022 in response to the Russian invasion of Ukraine, granting temporary protection to persons fleeing Ukraine until at least 4 March 2025. The European Border and Coast Guard Agency (FRONTEX) coordinates operational cooperation at the external borders.
The Common European Asylum System
The Common European Asylum System (CEAS) comprises four principal legislative instruments. The Qualification Directive (Directive 2011/95/EU) harmonises the criteria for granting refugee status and subsidiary protection. The Asylum Procedures Directive (Directive 2013/32/EU) establishes common procedures for granting and withdrawing international protection. The Reception Conditions Directive (Directive 2013/33/EU) sets standards for the reception of asylum seekers, including access to housing, food, employment, and healthcare. The Dublin III Regulation (Regulation 604/2013) determines the member state responsible for examining an asylum application, generally the state of first irregular entry. The Eurodac fingerprint database facilitates the application of the Dublin system by storing the fingerprints of asylum seekers. The 2020 New Pact on Migration and Asylum proposes comprehensive reforms including mandatory solidarity mechanisms for member states facing migratory pressure and a revised screening and border procedure.