EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

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Galina Cornelisse, Professor of Courts and Transnational Justice, VU Amsterdam

European border agency Frontex’ involvement in human rights violations has received considerable attention over the last few years. In a political order based upon the rule of law, any arguable claim that individual rights have been violated should be subject to an effective judicial remedy. However, when it comes to Frontex’ operational activities, such remedies are not readily available. Case T-600/21, in which the General Court (GC) dismissed a claim for damages by a Syrian family against Frontex, did not only suffer from a faulty application of the legal criteria for establishing liability of the EU – which can and hopefully will be righted by the Court of Justice upon appeal. Much more fundamentally, it exemplifies the urgent need for the EU judicial order to provide remedies that acknowledge the fundamental changes that have occurred in the institutional set-up of the EU, exemplified as they are in the conferral of coercive powers to an EU agency in the area of border control and return.

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SERIES OF BLOG POSTS ON MIGRATION AND TRADE PUBLISHED UNDER THE SUPERVISION OF PROF. ELSPETH GUILD

NUMBER 6

By Amanda Bisong, Policy Officer at ECDPM Center for Africa-Europe Relations

This series of blog posts on Trade & Migration is published upon the initiative of Prof. Elspeth Guild  in relation with the controversial proposal for a regulation on the scheme of preferences for developing countries that the Commission links to the issue of readmission of irregular migrants.

Several EU Member States have called on the commission to explore using all relevant EU policies, instruments and tools to promote effective returns from the EU to countries of origin. Some of these tools include development cooperation, visas, pathways for legal migration and now discussions are ongoing on how to leverage trade policy instruments in promoting the return of third country nationals in an irregular situation to their countries of origin. In response to these discussions, several opinions have examined the legality of the proposals on the basis of WTO law, international law and other commitments.

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By Daniel Thym, Director of the Research Center Immigration & Asylum Law, University of Konstanz

Germany has EU’s largest economy and is among the first countries to be hit perceptibly by demographic change. That makes it a perfect test for how European economies with robust welfare states may regulate labour migration in the future. No less than three years after a first round of substantial reforms, the Bundestag opened the labour market even further. While the new points system receives much attention, another element may prove more significant.

The future Germany rulebook will rest on four pillars. First, the government used the transposition of the revised Blue Card Directive to further liberalise the entry of the highly skilled with university degrees. In doing so, it built upon the previous reform, including for workers with professional training in accordance with German standards. Secondly, the new ‘points system’ appears to emulate the Canadian and Australian model, even though its field of application will remain much more limited. That is why a third entry channel, hidden in an executive regulation, may prove critical. The ‘experience pillar’ generally opens the German labour market for skilled workers with a job-offer, thus unearthing a sizeably reservoir of potential immigrants. Finally, the same executive regulation introduces new pathways for the unskilled, which could breathe life into the EU project of ‘talent partnerships’, also for purposes of indirectly managing the asylum system.

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SERIES OF BLOG POSTS ON MIGRATION AND TRADE PUBLISHED UNDER THE SUPERVISION OF PROF. ELSPETH GUILD

NUMBER 5

By Sandra Lavenex, University of Geneva

This series of blog posts on Trade & Migration is published upon the initiative of Prof. Elspeth Guild  in relation with the controversial proposal for a regulation on the scheme of preferences for developing countries that the Commission links to the issue of readmission of irregular migrants.

The proposal to temporarily withdraw trade preferences under the EU’s Generalized System of Preferences (GSP) towards countries that fail to readmit their own nationals (COM (2021) 579, Art. 19) follows on a long trajectory of including readmission and other migration control commitments in EU trade agreements. The Commission’s proposal however introduces two major changes. Firstly, it shifts the EU’s approach from one based on positive conditionality, that is, based on incentives, to one based on negative conditionality, i.e. the threat of sanctions. Secondly, it elevates a one-sided interest of the EU, readmission, at the same level as alleged global public goods hitherto subsumed under GSP conditionality.

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By Jean-Yves Carlier and Eleonora Frasca, Université catholique de Louvain (UCLouvain), members of the Equipe droits et migrations (EDEM)

This is a revised version of the commentary appeared in “Free movement of persons in the EU”, the yearly case law review published in French in the Journal de droit européen, No. 298, April 2023, pp. 198-213.

1. Interpreting or reforming Schengen?

In the Landespolizeidirektion Steiermark (NW) (C-368/20 & C-369/20) judgment of April 2022, the Court of Justice opted for a strict interpretation of the Schengen Borders Code (SBC) by prohibiting, in principle, Member States from reintroducing internal border controls for a total period of more than six months, even with the implicit approval of the European Commission. The Court was unusually firm and departed from the opinion of Advocate General Saugmandsgaard Øe, presented on the eve of the end of his term of office at the Court. The Advocate General tried to reach a conciliatory interpretation between the principle of the abolition of internal border controls and the exceptions on the grounds of public order or internal security. According to him, exceeding the maximum duration of six months could be subject to a refined proportionality test, thus leaving a certain margin of appreciation to the Member States. The Advocate General’s opinion was widely criticised (Leclercq), while the Court’s judgment was generally welcomed as particularly bold (Tometen; Bornemann; Cebulak and Morvillo). This common praise was tempered only by a few more in-depth comments that, while remaining positive, questioned the consequences of the judgment regarding reforms to the Schengen Code (Thym; Leboeuf; Marinai; Rom; Martins Pereira).

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SERIES OF BLOG POSTS ON MIGRATION AND TRADE PUBLISHED UNDER THE SUPERVISION OF PROF. ELSPETH GUILD

NUMBER 4

Simon Tans, Radboud University Nijmegen

This series of blog posts on Trade & Migration is published upon the initiative of Prof. Elspeth Guild  in relation with the controversial proposal for a regulation on the scheme of preferences for developing countries that the Commission links to the issue of readmission of irregular migrants.

There is a difficult relationship between service trade liberalisation and migration, including the manner in which this topic has played out so far within the WTO framework. The main point is that WTO trade commitments tend to favour the interests of developed countries and that the inclusion of migration related conditionalities in the Generalized System of Preferences (GSP) further undermines reciprocity between the EU and developing WTO Members.

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