Elspeth Guild

Competence, discretion and third country nationals: The European Union's legal struggle with migration

Abstract With the Amsterdam Treaty the European Community has been granted a wide competence over the treatment of third country nationals seeking to come to or become resident in the European Union. This includes third country nationals who are seeking asylum in the territory of the Union. How this new competence will be exercised and what the results will be are still unclear, In this article 1 argue that there is a consistent approach in Community law towards migration which has developed from the principle of free movement of persons which has constituted an objective of the Community since the original Treaty in 1957. In the exercise of these powers the Community, as regards nationals of the member states, has devised clear rules which provide a maximum of choice to the individual at the expense of member state discretion. Can a consistent and coherent approach be applied towards third country nationals either within the territory of the Union or seeking to enter? This challenge which arises with the...

Challenges and Prospects for the EU's Area of Freedom, Security and Justice: Recommendations to the European Commission for the Stockholm Programme

The upcoming Swedish presidency of the EU will be in charge of adopting the next multiannual programme on an Area of Freedom, Security and Justice (AFSJ), during its tenure in the second half of 2009. As the successor of the 2004 Hague Programme, it has already been informally baptised as the Stockholm Programme and will present the EU’s policy roadmap and legislative timetable over these policies for the next five years. It is therefore a critical time to reflect on the achievements and shortcomings affecting the role that the European Commission’s Directorate-General of Justice, Freedom and Security (DG JFS) has played during the last five years in light of the degree of policy convergence achieved so far. This Working Document aims at putting forward a set of policy recommendations for the DG JFS to take into consideration as it develops and consolidates its future policy strategies, while duly ensuring the legitimacy and credibility of the EU’s AFSJ within and outside Europe.

The French Presidency's European Pact on Immigration and Asylum: Intergovernmentalism vs. Europeanisation? Security vs. Rights?

The intersection between the Commission Communication on a Common Immigration Policy for Europe, another on a Policy Plan on Asylum and the various drafts of the French Presidency’s European Pact on Immigration and Asylum, raises a number of questions: First, what are the nature, context and key issues of the Pact? Does it present anything really new to the current state of affairs in EU law and policy? Second, does the EU really need a pact on immigration and asylum, given the already ongoing processes of Europeanisation surrounding these policy domains? And third, are the EU interests and the Commission’s priorities fully compatible with the logic driving the Pact, or does it represent a competing model between ‘more Europe’ and the principle of subsidiarity and security versus rights in the area of immigration, borders and asylum?

Discretion, Competence and Migration in the European Union

This article considers the underlying structure of Community law on migration. It examines the fundamental elements of the Community legal order as they apply to immigration and how those elements have been used to regulate the position of third country nationals. It then looks at the inter-governmental approach to immigration and asylum policy which the Member States have pursued and poses some questions about how these two strands of law and policy meet within the new competences of the Community in respect of immigration and asylum.

EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition

Since 1999, the EU has adopted legislation harmonizing many areas of immigration law, in particular rules on borders, visas, legal migration, and irregular migration. The much-enlarged and fully updated second edition of this book contains the text of and detailed commentary upon every significant measure in this field proposed or adopted up until 1 September 2011. It includes commentary on the EU visa code, the Schengen Borders Code, the Frontex Regulation, the Returns Directive, the Directives on family reunion, long-term residents and single permits for migrant workers, and many more besides. This is the essential guide for any lawyers, academics, civil servants, NGOs and students interested in this area of law. Also available as a set of 3 volumes see isbn 9789004222304

Understanding Immigration Detention in the UK and Europe

In a number of European states there appears to be substantial use of administrative detention against foreigners. In the UK, for example, at any given time there are likely to be between 2000 and 3000 foreigners in immigration detention. In total, the number of persons passing through immigration detention annually accounts for between 26,000 and 28,000 persons (figures for 2009–2011). In this chapter, I will examine the practice of detention in the UK with regard to the legal framework in Europe.

The EU Charter of Fundamental Rights and Immigration and Asylum Law

The tension between a rights-based approach to immigration and asylum policy and states’ desire to control their borders and populations as an essential aspect of their sovereignty is well-known. Inevitably, when the European Union (EU) institutions finally, after decades of discussion, decided to draw up a European Union Charter of Fundamental Rights, immigration and asylum matters proved to be controversial issues. With the enhanced legal effect of the Charter resulting from the entry into force of the Treaty of Lisbon, and the subsequent pre-eminence of the Charter in the relevant case law of the Court of Justice, the Charter is now playing a significant role in the development of EU immigration and asylum law.

Immigration Regulation as a Battleground: The European Union’s Anxiety over Federalism

The EU is not a federal state but as the competences of the EU have been extended to the field of immigration and as it has adopted an ever increasing number of measures in the field of immigration, the position can be loosely assimilated to that of a federal state. The EU, while consisting of 28 sovereign states which have entered into an international agreement to cede sovereignty in a number of areas to it, nonetheless enjoys a system of law which requires the Member States faithfully to apply EU law in the area of immigration. While some areas of immigration are not regulated by the EU (as yet) such as low skilled migration, many others are.

Visa Information System

Since 1999, the EU has adopted legislation harmonizing many areas of immigration law, in particular rules on borders, visas, legal migration, and irregular migration. The much-enlarged and fully updated second edition of this book contains the text of and detailed commentary upon every significant measure in this field proposed or adopted up until 1 September 2011. It includes commentary on the EU visa code, the Schengen Borders Code, the Frontex Regulation, the Returns Directive, the Directives on family reunion, long-term residents and single permits for migrant workers, and many more besides. This is the essential guide for any lawyers, academics, civil servants, NGOs and students interested in this area of law. Also available as a set of 3 volumes see isbn 9789004222304

Schengen Information System

Since 1999, the EU has adopted legislation harmonizing many areas of immigration law, in particular rules on borders, visas, legal migration, and irregular migration. The much-enlarged and fully updated second edition of this book contains the text of and detailed commentary upon every significant measure in this field proposed or adopted up until 1 September 2011. It includes commentary on the EU visa code, the Schengen Borders Code, the Frontex Regulation, the Returns Directive, the Directives on family reunion, long-term residents and single permits for migrant workers, and many more besides. This is the essential guide for any lawyers, academics, civil servants, NGOs and students interested in this area of law. Also available as a set of 3 volumes see isbn 9789004222304