European Migration Law

Gerrie Lodder holds a master's degree in law and political science. She is a Senior Researcher and Lecturer at the Leiden Institute of Immigration Law and a member of the Editorial Board of the Commentary on European Migration Law.Cornelis (Kees) Wouters is the senior refugee law advisor at the Division of International Protection of UNHCR in Geneva. In the past he has worked as a researcher and lecturer at the Institute of Immigration Law at Leiden Law School, where in 2009 he obtained his doctoral (PhD) degree with his thesis on International Legal Standards for the Protection from Refoulement. He has worked for various non-governmental organisations in the Netherlands, such as Amnesty International and the Dutch Council for Refugees and was also a member of the sub-Committee on Asylum and Refugee Law of the Permanent Committee of Experts on International Immigration, Refugee and Criminal Law (Meijers Committee). He has also worked in Asia as a staff member and lecturer at the Office of Human Rights Studies and Social Development of Mahidol University in Thailand (2000-2004) and as a lawyer for the Centre on Housing Rights and Evictions (COHRE). In 2005 he joined COHRE where he was responsible for setting up and managing the national office of COHRE in Sri Lanka. In 2007 and 2008 he worked as a consultant and legal officer for COHRE's Asia and Pacific Programme and was involved in various projects concerning housing, land and property restitution for refugees and displaced persons.

CONTENTS Series Preface Preface to the Second Edition Contents - Summary PART I. INTRODUCTION 1. INTRODUCTION 1.1. General Remarks 1.1.1. Outline 1.1.2. Voluntary and Forced Migration 1.1.3. Structure of the Book 1.2. Basic Concepts of Migration Law 1.2.1. What is Migration? 1.2.2. State, Territory and Borders 1.2.3. Nationality 1.2.4. Statelessness 1.2.5. State Sovereignty and Immigration Control 1.2.6. The Position of Individuals Under International Law 1.2.7. Discrimination and Distinction according to Nationality in Migration Law 1.3. The Multi-Level Structure of European Migration Law 1.3.1. Sources of European Migration Law 1.3.2. The Relationship between National Law and Human Rights Treaties 1.3.3. The Relationship between National Law and EU Law 1.3.4. The Relationship between the ECHR and the EU 1.4. European Migration: a Brief Historic Survey 1.4.1. A Concise History of European Migration 1.4.2. The Formation of European Migration Law 1.5. EU Citizens and Third-Country Nationals: the Development of Movement of Persons in the EU 1.5.1. Movement of Persons in the EU: an Ongoing Development with Ups and Downs 1.5.2. Free Movement of the Market Citizen 1.5.3. Intergovernmental Cooperation relating to Immigrants from Third Countries: Schengen and Dublin 1.5.4. The Treaties of Maastricht, Amsterdam and Lisbon 1.5.5. EU Citizens and Third-Country Nationals: Refining the Distinction 1.6. The System of Entry, Residence and Return Under Union Law 1.6.1. Introduction 1.6.2. Entry into the Schengen Area 1.6.3. Residence Rights 1.6.4. Border Control and Internal Control Mechanisms 1.6.5. Individual Control Measures: Expulsion, Detention, Entry Bans 1.7. The Elementary Significance of the EU Charter of Fundamental Rights 1.7.1. The Charter and Its Scope of Application 1.7.2. Choosing between ECHR and Charter PART II. VOLUNTARY MIGRATION 2. FREE MOVEMENT OF EU CITIZENS AND MEMBERS OF THEIR FAMILY 2.1. Introduction 2.1.1. Three Levels 2.1.2. Reverse Order of Desciption 2.2. The Citizens' Directive 2.2.1. Right of Residence 2.2.2. Family Members 2.2.3. Administrative Formalities 2.2.4. Termination of Residence 2.2.5. Expulsion 2.2.6. Prohibition to Leave 2.2.7. Exclusion 2.2.8. Procedural Safeguards 2.2.9. Abuse of Rights 2.3. Treaty Freedoms 2.3.1. Free Movement Rights in the Case Law of the Court of Justice 2.3.2. General Approach of the Court 2.3.3. Free Movement of Workers 2.3.4. Freedom of Establishment 2.3.5. Freedom to Provide and Receive Services 2.3.6. Posting of Workers Directive and Services Directive 2.3.7. Prohibition of Discrimination on Grounds of Nationality 2.3.8. Rights of Family Members 2.3.9. Strictly Internal Situations 2.4. Union Citizenship 2.4.1. The Fundamental Status of Union Citizenship 2.4.2. Union Citizenship and the Deprivation of Nationality 2.4.3. Union Citizenship and Residence Rights in Other Member States 2.4.4. Union Citizenship and a Right to Equal Treatment concerning Social Assistance in Other Member States 2.4.5. Union Citizenship and National Migration Law of the Member States 2.5. Final Remarks Further Reading 3. RESIDENCE RIGHTS OF TURKISH NATIONALS UNDER THE ASSOCIATION AGREEMENT 3.1. Association and Cooperation Treaties 3.1.1. Introduction 3.1.2. Migration Aspects of Association and Cooperation Treaties 3.1.3. The European Economic Area and the Association with Switzerland 3.1.4. Cooperation with Mediterranean Countries 3.1.5. Europe Agreements 3.2. The Association Treaty with Turkey 3.3. Workers 3.3.1. Gradual Access of Turkish Workers to the Labour Market 3.3.2. 'Worker' 3.3.3. 'Being Duly Registered as Belonging to the Labour Force' 3.3.4. 'Legal Employment' 3.3.5. Termination of the Residence Right of a Worker 3.3.6. Ceasing to Belong to the Labour Force 3.3.7. Exceptions of Public Policy, Public Security and Public Health 3.4. Family Members 3.4.1. Rights of Family Members 3.4.2. Independent Rights to Residence for Family Members 3.4.3. Period of Legal Residence with a Turkish Worker 3.4.4. Vocational Training 3.4.5. Termination of Residence Rights of Family Members 3.5. Standstill Clauses 3.5.1. Impact of the Standstill Clauses 3.5.2. The Standstill Clause of Article 41(1) Additional Protocol and the Rights of Self-Employed Turkish Nationals 3.5.3. The Standstill Clause of Article 13 Decision 1/80 3.6. Final Remarks Further Reading 4. MOVEMENT AND RESIDENCE RIGHTS OF THIRD-COUNTRY NATIONALS 4.1. Introduction, Scope 4.2. Family Reunification 4.2.1. Introduction 4.2.2. History 4.2.3. Scope and Definitions 4.2.4. The Sponsor 4.2.5. Optional Conditions relating to the Sponsor 4.2.6. Family Members Eligible for Family Reunification 4.2.7. Optional Derogations relating to Children 4.2.8. Optional Categories of Eligible Family Members 4.2.9. Conditions for the Exercise of the Right to Family Reunification 4.2.10. Public Policy, Public Security and Public Health 4.2.11. Housing, Health Insurance, Means of Subsistence 4.2.12. Integration Measures 4.2.13. Grounds for Refusal, Non-Extension and Withdrawal 4.2.14 Submission and Examination of the Application 4.2.15. Access to Work and Education 4.2.16. Autonomous Right of Residence 4.2.17. Family Reunification of Refugees 4.2.18. Family Reunification: Final Remarks 4.3. Workers, Students and Researchers from Third Countries 4.3.1. Introduction 4.3.2. The Blue Card Directive 4.3.3. Conditions, Procedure for Blue Card Applicants 4.3.4. Rights of Blue Card Holders 4.3.5. Family Members of Blue Card Holders 4.4. The Researchers Directive 4.4.1. Mobility Between Member States 4.4.2. Additional Rights 4.5 The Students Directive 4.5.1. Mobility Between Member States 4.6. The Single Application Procedures Directive 4.6.1. Single Application Procedure, Permit 4.6.2. Equal Rights 4.7. Long-Term Residence 4.7.1. Introduction 4.7.2. History 4.7.3. Scope 4.7.4. Requirements for Long-Term Residence Status in the First Member State 4.7.5. Equal Treatment in the First Member State 4.7.6. Protection against Expulsion for Reasons of Public Order and Public Security in the First Member State 4.7.7. Withdrawal and Loss of the Status in the First Member State 4.7.8. Residence Rights in Other Member States 4.7.9. Protection against Expulsion for Reasons of Public Order and Public Security in the Other Member State 4.7.10. Withdrawal and Loss of Residence Permit in the Other Member State 4.7.11. Family Members 4.7.12. The Rights of the Long-Term Resident Under the Directive put in Perspective 4.7.13. Long-Term Residence: Final Remarks Further Reading 5. FAMILY REUNIFICATION AND PROTECTION OF SETTLED MIGRANTS UNDER ARTICLE 8 ECHR 5.1. Introduction 5.2. Other Relevant Human Rights Sources 5.3. Respect for Family Life Under Article 8 ECHR - Positive and Negative Obligations 5.4. Family Life 5.5. Private Life 5.6. Interferences and Justifications 5.7. Termination of Lawful Residence After Divorce or Separation when a Child is Involved 5.8. Childrens' Interests and the Weight of Illegal or Fraudulent Stay 5.9. Termination of Lawful Residence on Grounds of Public Order 5.10. State Obligations to Accept New Immigrants to Reside for Reasons of Family Life 5.11. Is there a Nationality-Linked Right to Live with One's Family in One's Own Country? 5.12. Sufficient Means of Subsistence 5.13. Non-Discrimination Within the Ambit of Family Life 5.14 Concluding Remarks Further Reading PART III. FORCED MIGRATION 6. THE COMMON EU ASYLUM SYSTEM 6.1. Asylum in International Law 6.2. The Harmonisation of EU Asylum Law 6.2.1. Towards Harmonisation of Asylum Policies 6.2.2. Legal Basis and Scope of the Common European Asylum System 6.2.3. Overview of Secondary Asylum Legislation 6.2.4. The Interrelated Character of the Regulation and the Directives 6.3. Dublin Regulation 6.3.1. The Allocation Criteria 6.3.2. The Obligation to be a Safe State 6.3.3. The Humanitarian and Discretionary Clauses 6.3.4. Procedural and Administrative Principles: Taking Charge and Taking Back. 6.3.5. Eurodac: Fingerprints for Dublin 6.3.6. Notes on the Dublin system 6.4. Reception Conditions Directive 6.4.1. Reception Conditions 6.4.2. Detention of Asylum Seekers 6.4.3. Reduction and Withdrawal of Reception Conditions 6.4.4. Notes on the Reception Conditions Directive 6.5. The Procedures Directive 6.5.1. The Right to a Fair Asylum Procedure 6.5.2. Basic Principles and Guarantees 6.5.3. Procedures at First Instance 6.5.4. Withdrawal and Appeals Procedures 6.5.5. Notes on the Procedures Directive 6.6. The Temporary Protection Directive 6.7. Practical Cooperation and Burden Sharing 6.7.1. The European Asylum Support Office 6.7.2. Financial Burden Sharing Further Reading 7. REFUGEE PROTECTION 7.1. Introduction 7.2. Background to the Refugee Convention 7.3. The Definition of a Refugee 7.3.1. General Observations 7.3.2. Well-Founded Fear 7.3.3. Acts of Persecution 7.3.4. Reasons for Persecution 7.3.5. Connection Between Acts of Persecution and the Reasons for Persecution 7.3.6. People Fleeing Armed Conflict 7.4. Common Criteria for International Protection 7.4.1. International Protection 'Sur Place' 7.4.2. Actors of Persecution and Serious Harm and Actors of Protection 7.4.3. Internal Protection 7.5. Evidence, Proof and the Benefit of Doubt 7.5.1. The Burden of Proof 7.5.2. Evidence 7.5.3. The Benefit of the Doubt 7.6. Exclusion, Cessation and Ending of Refugee Status 7.6.1. Cessation Under Article 1C 7.6.2. Exclusion Under Article 1D 7.6.3. Exclusion Under Article 1E 7.6.4. Exclusion Under Article 1F 7.6.5. Denial and Termination of Refugee Status 7.7. Content of Refugee Status Further Reading 8. SUBSIDIARY PROTECTION 8.1. Introduction 8.2. Non-Refoulement in Human Rights Law 8.3. Qualification for Subsidiary Protection 8.3.1. Real Risk 8.3.2. Serious Harm 8.4. Diplomatic Assurances 8.5. Cessation, Exclusion and Ending of Subsidiary Protection 8.5.1. Cessation of Subsidiary Protection 8.5.2. Exclusion from Subsidiary Protection 8.5.3. Denial and Termination of Subsidiary Protection 8.5.4. Absolute Character of the Prohibition of Refoulement 8.6. Content of Subsidiary Protection Further Reading PART IV. ENFORCEMENT AND PROCEDURAL PROTECTION 9. EXTERNAL BORDER CONTROLS, VISAS AND EXPULSION MEASURES 9.1. Introduction 9.1.1. General Remarks 9.1.2. Structure of the Chapter 9.2. Border Controls 9.2.1. Abolition of Controls at the Internal Borders 9.2.2. Entry: the Schengen Borders Code 9.2.3. Entry Conditions Under the Schengen Borders Code 9.3. Visas 9.3.1. Visas: Short-Term and Long-Term Visas 9.3.2. Visas: the Schengen Visa 9.3.3. Conditions for Obtaining a Schengen Visa 9.3.4. Visas: the Legal Character of Short-Term Stay 9.4. Return and Removal 9.4.1. The Returns Directive 9.4.2. Returns Directive: What is not Covered? 9.4.3. The Return Decision as the Basis of the Returning Procedure 9.4.4. Voluntary Return and Removal 9.4.5. Detention 9.4.6. Detention Conditions Under the Returns Directive 9.4.7. Detention: Unforeseen Situations 9.5. Employers' Sanctions 9.5.1. The Employers' Sanctions Directive 9.5.2. Sanctions 9.5.3. Rights of Employees 9.6. Exclusion 9.6.1. Listing in the SIS and Entry Ban 9.6.2. Conditions for Entering an Alert in the SIS II and for Issuing an Entry Ban Under the Returns Directive 9.7. Data Storage 9.8. Operational Cooperation Further Reading 10. PROCEDURAL GUARANTEES FOR MIGRATING INDIVIDUALS 10.1. Introduction 10.2. The Charter of Fundamental Rights 10.2.1. The Charter and the Principles 10.2.2. Article 47 of the Charter 10.2.3. The Right to Good Administration 10.3. Effective Procedural Protection in EU Migration Law 10.3.1. Introduction 10.3.2. Union Citizens and Third-Country Nationals 10.4. Entry Procedures 10.4.1. Introduction 10.4.2. Visa Code 10.4.3. Schengen Borders Code 10.5. Procedures Applying for Legal Stay 10.5.1. Introduction 10.5.2. Voluntary Migration 10.5.3. Asylum 10.6. Expulsion Procedures 10.6.1. Introduction 10.6.2. Good Administration on Expulsion Under the ECHR 10.6.3. Judicial Review of Expulsion Under the ECHR 10.7. Detention Procedures 10.8. Entry Ban and SIS-Alert 10.9. Final Remarks Further Reading List of Cases Index About the authors