Saturday, 3 May 2008

EU TFEU: Common immigration policy

The EU Treaty of Lisbon introduces the objective of a common immigration policy and qualified majority voting in the Council and the ordinary legislative procedure for legal immigration, subject to the member states’ continued competence to regulate the inflow of migrants from third countries.


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Article 79 of the Treaty on the Functioning of the European Union (TFEU) deals with the development of the EU’s common immigration policy. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; pages 101–102), with the location of the provision added from the table of equivalences (page 460 to 463):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 2 ‘Policies on border checks, asylum and immigration’

Article 79 TFEU
(ex Article 63, points 3 and 4, TEC)

1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas:

(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification;

(b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States;

(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;

(d) combating trafficking in persons, in particular women and children.

3. The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States.

4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.

5. This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.

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In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of Article 63a TFEU (ToL), which became Article 79 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58, 60–61).

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The current Article 63, points 3 and 4 of the Treaty establishing the European Community (TEC), to be replaced, is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/67–68):

Article 63 TEC

The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

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3. measures on immigration policy within the following areas:

(a) conditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion;

(b) illegal immigration and illegal residence, including repatriation of illegal residents;

4. measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States.

Measures adopted by the Council pursuant to points 3 and 4 shall not prevent any Member State from maintaining or introducing in the areas concerned national provisions which are compatible with this Treaty and with international agreements.

Measures to be adopted pursuant to points 2(b), 3(a) and 4 shall not be subject to the five-year period referred to above.

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The European Convention proposed the following Article III-168 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):

Article III-168 Draft Constitution

1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.

2. To this end, European laws or framework laws shall establish measures in the following areas:

(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion;

(b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States;

(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;

(d) combating trafficking in persons, in particular women and children.

3. The Union may conclude readmission agreements with third countries for the readmission of third-country nationals residing without authorisation to their countries of origin or provenance, in accordance with Article III-227.

4. European laws or framework laws may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.

5. This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.

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Article III-267 of the Treaty establishing a Constitution for Europe made cosmetic changes in paragraph 2 and 3 without altering the substance of the draft (OJ 16.12.2004 C 310/116).

Between the IGC 2004 and the IGC 2007 ‘European laws or framework laws’ became ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure’, as in the rest of the amending treaties. In paragraph 2(a) ‘family reunion’ became the less festive ‘family reunification’.

Essentially, Article 79 TFEU is the creation of the European Convention.

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What changes between the current TEC and the new Article 79 TFEU (Article 63a ToL)?

‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), by the UK Foreign and Commonwealth Office (FCO), offers a quick view, almost in SMS text message style:

“Draws on Article 63(3) and (4), with changes reflecting the new objective of developing a common immigration policy. Measures on legal migration move to co-decision.”

The useful FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

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The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed ‘Borders, asylum, immigration and visas’ on pages 133 to 137.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

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As an afterthought to the comment by Alfred the Ordinary on the previous blog post, which dealt with the genesis of Article 78 TFEU on the common policy on asylum, subsidiary protection and temporary protection, here is an attempt to distinguish between different kinds of movement of persons:

I Inside: EU citizens and dependants moving inside the European Union are dealt with in TFEU Part Two ‘Non-discrimination and citizenship of the Union’ (Articles 18 to 25) and in Title IV ‘Free movement of persons, services and capital’, especially Chapter 1 ‘Workers’. The basic act of secondary legislation is the so called Citizenship Directive 2004/38/EC. A patchwork of temporary restrictions applies across many member states as regards the 2004 and 2007 accession countries.

II Outside 1: Applicants for refugee status and those awarded protection fall within the scope of Article 78 TFEU, the subject of yesterday’s blog post.

II Outside 2: The common immigration policy aims at the efficient management of migration flows from third countries (outside the EU). The bare bones treatment of Article 79 TFEU, the new treaty base for action, was the theme of today’s blog article.

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In the real world, these distinct areas are both important and contentious, with human, economic, societal and political consequences in a European Union with an ageing population and looming skills shortages.


Ralf Grahn