(Immigration and Asylum Law and Policy in Europe) Steve Peers, Nicola Rogers (Eds.) - EU Immigration and Asylum Law - Text and Commentary-Martinus Nijhoff - Brill (2006)

EU Immigration and Asylum Law
IMMIGRATION AND ASYLUM LAW AND POLICY IN EUROPE
Volume 12
Editors
Elspeth Guild
Kingsley Napley Solicitors, London,
Centre for Migration Law, Radboud University Nijmegen
Jan Niessen
Migration Policy Group, Brussels
The series is a venue for books on European immigration and asylum law and
policies where academics, policy makers, law practitioners and others look to
find detailed analysis of this dynamic field. Works in the series will start from
a European perspective. The incresed co-operation within the European Union
and the Council of Europe on matters related to immigration and asylum
requires the publication of theoretical and empirical research. The series will
contribute to well-informed policy debates by analysing and interpreting the
evolving European legislation and its effects on national law and policies. The
series brings together the various stakeholders in these policy debates: the legal
profession, researchers, employers, trade unions, human rights and other civil
society organisations.
The titles published in this series are listed at the end of this volume.
EU Immigration and Asylum Law:
Text and Commentary
Edited by
Steve Peers and Nicola Rogers
Martinus Nijhoff Publishers

Leiden • Boston
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Short Table of Contents
Preface Nicola Rogers and Steve Peers xvii
Section I Framework of EC Immigration and Asylum Law 1

Chapter 1 Overview 3
Chapter 2 From Black Market to Constitution: The Development
of the Institutional Framework for EC Immigration and
Asylum Law 19
Steve Peers
Chapter 3 The EU Institutions and Title IV 47
Steve Peers
Chapter 4 Out of the Ghetto? The Personal Scope of EU Law 81
Elspeth Guild and Steve Peers
Chapter 5 Human Rights in the EU Legal Order: Practical
Relevance for EC Immigration and Asylum Law 115
Steve Peers
Chapter 6 Enlargement of the EU and Title IV 139
Judit Tóth
Section II Visas and Border Controls 167

Chapter 7 Border Controls 169
Chapter 8 Visa List 185
Chapter 9 Visa Policy 201
Section III Asylum 219

Chapter 10 Responsibility for Applications for Asylum 221
Chapter 11 Eurodac 259
Chapter 12 Minimum Standards for Reception 297
Chapter 13 Refugee Definition and Subsidiary Protection 323
Chapter 14 Asylum Procedures 367
Chapter 15 Temporary Protection 453
Chapter 16 Massive Refugee Flows and Europe’s Temporary
Protection 487
Geza Tessenyi
Chapter 17 Challenges to Forging a Common European Asylum
System in Line with International Obligations 505
Frances Nicholson
Chapter 18 Gender and EU Asylum Law 539
Nathalia Pendo Berkowitz
Section IV Legal Migration and Integration 571

Chapter 19 Family Reunion 573
Chapter 20 Long-term Residents 615
Chapter 21 Migration for Employment and Self-employment 661
Chapter 22 Admission of Students and Others 725
Chapter 23 Social Security 753
Chapter 24 The Socio-Economic Agenda of EC Immigration and
Asylum Policy 769
Section V Irregular Migration 785

Chapter 25 Mutual Recognition of Expulsion Decisions 787
Chapter 26 Carrier Sanctions 799
Chapter 27 Trafficking in Human Beings 809
Chapter 28 Facilitation of Irregular Entry, Residence and Movement 827
Chapter 29 Victims of Trafficking or Smuggling 845
Chapter 30 Transit for Expulsion 863
Chapter 31 EC Readmission Agreements 881
Chapter 32 Control of Irregular Migration and EU Law and Policy:
A Human Rights Deficit 899
Ryszard Cholewinski
Annexes 943
Annex I Proposed and Adopted Title IV Measures (as of 1 Jan.
2006) 945
Annex 2 EC Treaty Provisions on Immigration and Asylum 983
Annex 3 December 1998, Vienna European Council 989
Annex 4 Excerpt from Conclusions, Tampere European Council 993
Annex 5 Excerpts from Conclusions, Laeken, Seville and
Thessaloniki European Councils 997
Annex 6 Excerpts: The Hague Programme 1009
Annex 7 EU Constitutional Treaty (excerpt) 1023
vi
Table of Contents
Preface Nicola Rogers and Steve Peers xvii
Section I Framework of EC Immigration and Asylum Law 1

Chapter 1 Overview 3
1 Introduction 3
2 Legal Context 3
3 Political Context 5
4 Specific Policies 7
4.1 Visas and Borders 7
4.2 Asylum 7
4.3 Legal Migration 9
4.4 Irregular Migration 10
4.5 Administrative Cooperation 12
4.6 External Relations 13
5 The Nature of Community Law 14
Chapter 2 From Black Market to Constitution: The Development
of the Institutional Framework for EC Immigration and
Asylum Law 19
Steve Peers
1 Introduction 19
2 Treaty on European Union (Maastricht Treaty) 20
3 Treaty of Amsterdam 22
4 The Treaty of Nice 28
5 Developments in 2004 33
6 Constitutional Treaty 35
7 Conclusions 44
Table of Contents
Chapter 3 The EU Institutions and Title IV 47

Steve Peers
1 Introduction 47
2 Creating EC Powers: The Treaty Framework 48
3 Existence and Extent of Title IV Powers 53
3.1 Introduction 53
3.2 Visas and Borders 54
3.3 Asylum 55
3.4 Migration law 59
3.5 Other Powers 64
3.6 Conclusions 66
4 Exercise of Title IV Powers in Practice 66
4.1 Legislative Powers 67
4.2 Executive Powers 71
4.3 Judicial Control 73
4.4 Instruments 77
5 Conclusions 78
Chapter 4 Out of the Ghetto? The Personal Scope of EU Law 81
1 Introduction 81
2 Interpreting the EC and EU Treaties 83
2.1 Approaches to Interpretation 83
2.2 Initial EC Treaty Provisions 84
2.3 Citizenship 85
2.4 Free Movement of Goods 86
2.5 Free Movement of Capital and Payments 88
2.6 Title IV: Immigration, Asylum and Civil Cooperation 90
2.7 Transport 91
2.8 Competition, State Aids, Taxes and Harmonisation 92
2.9 Flanking Policies 93
2.9.1 EMU 94
2.9.2 Social Policy 94
2.9.3 Health, Consumer and Environment Policy 97
2.9.4 External Policies 98
2.10 EU Treaty 100
3 Free Movement of Persons 101
3.1 Free Movement of Workers 101
3.2 Establishment and Services 105
3.3 Social Security 110
3.4 Article 12 EC 110
3.5 Visas, Border Controls and Family Members 113
4 Conclusion 113
viii
Table of Contents
Chapter 5 Human Rights in the EU Legal Order: Practical

Relevance for EC Immigration and Asylum Law 115
Steve Peers
1 Introduction 115
2 Current Legal Framework 116
2.1 Outline of the Current Legal Framework 116
2.1.1 General Principles of Law 116
2.2 Developments in the Current Legal Framework 124
2.2.1 Developments in the General Principles of Law 124
2.2.2 Developments in the European Court of Human Rights 127
2.2.3 The EU Charter of Fundamental Rights 129
3 Framework in the EU Constitutional Treaty 132
3.1 Charter of Rights 132
3.2 ECHR Accession 135
3.3 General Principles 136
3.4 Cross-overs 136
4 Conclusions 137
Chapter 6 Enlargement of the EU and Title IV 139
Judit Tóth
1 Parallels 139
2 Pan-European Security 142
3 A Common Policy 146
4 The Partnership of Stakeholders 148
5 Minimal and Maximal Protection 150
6 Emancipation and Integration of Migrants 153
7 Combating Unwanted Migration 155
8 Mutual Trust 157
9 Flexibility 160
10 Summary 162
Section II Visas and Border Controls 167

Chapter 7 Border Controls 169
1 Summary of Content 169
1.1 Schengen Rules 169
1.2 Community Rules 170
1.3 Community Policy 174
2 Background and Legislative History 178
3 Legal Analysis 180
4 Comments 182
Chapter 8 Visa List 185
ix
Table of Contents
1.1 Regulation 539/2001 185

1.2 Regulation 2414/2001 188
1.3 Regulation 453/2003 188
1.4 Regulation 851/2005 189
2.2 Regulation 2414/2001 194
2.3 Regulation 453/2003 195
2.3 Regulation 851/2005 195
4 Comments 197
Chapter 9 Visa Policy 201
1.1 Existing Schengen Rules 201
1.2 Community Acts 203
2.1 EC Powers 208
2.2 Implementing Powers 209
2.3 Visa Formats 210
2.4 Visas at the Border 212
4 Comments 216
Section III Asylum 219

Chapter 10 Responsibility for Applications for Asylum 221
1 Summary 221
4 Comments 230
4.1 General Comments 230
4.2 Hierarchy of Criteria for Taking Charge Cases 231
4.3 Procedure 234
4.4 Taking Back Cases 234
Chapter 11 Eurodac 259
1 Summary 259
2 History and Legislative Background 263
4 Comments 272
Chapter 12 Minimum Standards for Reception 297
4 Comment 303
x
Table of Contents
Chapter 13 Refugee Definition and Subsidiary Protection 323

1 Summary 323
4 Comments 334
Chapter 14 Asylum Procedures 367
1 Summary 367
4 Comments 384
4.1 Introduction 384
4.2 Scope 385
4.3 Basic Standards 389
4.4 Special Rules 392
4.5 Appeals 408
4.6 Conclusion 410
Chapter 15 Temporary Protection 453
1 Summary 453
4 Commentary 462
4.1 General Observations 462
4.2 Observations on Specific Provisions in the Directive 463
4.3 Relationship with other EC Measures on Asylum 465
4.4 Relationship with National Law and Practice 466
Chapter 16 Massive Refugee Flows and Europe’s Temporary
Protection 487
Geza Tessenyi
1 Scope 487
2 Evolving International Standards 490
3 Consolidating European Standards 497
Chapter 17 Challenges to Forging a Common European Asylum
System in Line with International Obligations 505
Frances Nicholson
1 Introduction 505
2 Early Impetus for and Experience of Harmonisation 506
3 Title IV of the EC Treaty 510
4 Changed Decision-making – From Inter-governmental
Accords towards Qualified Majority Voting under the
Treaty of Nice 512
xi
Table of Contents
5 Increased Emphasis on Fundamental Principles and

Human Rights – The Charter of Fundamental Rights
and the Constitution for Europe 514
6 Judicial and Democratic Supervision – The Role of the
European Court of Justice and the European Parliament 516
7 Continuing Variations in Approach and Application 518
8 The Effect of Security Concerns on Asylum Policy since
September 2001 521
9 Political Compromise Undermines Principles 523
10 The Consequences of EU Enlargement 528
11 Global Impact of EU Harmonisation of Asylum Policies 530
12 Challenges on the Road Ahead 533
13 Conclusion 536
Chapter 18 Gender and EU Asylum Law 539
Nathalia Pendo Berkowitz
1 Terminology and the Experiences of Women 540
2 What Has Happened at the
European / International / State Level? 542
2.1 Gender Guidelines 543
2.2 Legislative Responses 543
3 Gendered Issues and the draft Directives 544
3.1 Women as Asylum Seekers in Europe 544
3.2 The Experiences of Women 545
4 Refugee Protection and the EU Proposals 548
5 Harm Justifying Protection under the Draft Directive on
Refugee Definition 549
5.1 Harm Suffered by Men and Women 549
5.2 The Qualification Directive 549
5.3 Military Service 551
5.4 Sexual Violence by State Agents 552
5.5 Sources of Harm 552
5.6 State of Origin Protection 553
5.7 Protection from State-like Authorities 555
5.8 Internal Protection Alternative 555
5.9 Persecution and Subsidiary Protection 556
6 Convention Grounds 557
6.1 For Reasons of 557
6.2 Race and Nationality 558
6.3 Religion 558
6.4 Political Opinion 559
6.5 Particular Social Group 561
7 Procedures and Evidence – Gendered Aspects 561
xii
Table of Contents
7.1 Access 562

7.2 Disclosure 563
7.3 Country Evidence 565
7.4 Documentary Evidence / Corroboration 566
7.5 Credibility; Coherence and Plausibility 567
7.6 Accelerated Procedures 567
8 Training and Staff Issues 568
9 Conclusion 568
Section IV Legal Migration and Integration 571

Chapter 19 Family Reunion 573
2.1 Family Reunion and EU Law 576
2.2 Proposed Family Reunion Directive: 1999 and 2000
Versions 579
2.3 Proposal for a Family Reunion Directive: 2002 Version 583
4 Comments 591
4.1 1999 and 2000 Versions 591
4.2 2002 Version 592
4.3 Final Text 593
5 Conclusions 598
Chapter 20 Long-term Residents 615
1 Summary 615
2.1 The “Maastricht era” 618
2.2 The Tampere Conclusions and Commission proposal 619
2.3 Council negotiations 623
4 Comments 629
4.1 Scope of the Directive 630
4.2 Status in the First Member State 631
4.3 Movement to the Second Member State 632
4.4 Family Members in the Second Member State 633
4.5 UK and Irish Position 638
5 Conclusion 639
Chapter 21 Migration for Employment and Self-employment 661
1.1 General Rules 662
1.2 Researchers 666
xiii
Table of Contents

2.1 Background 670
2.2 Legislative History 671
2.2.1 General Rules 671
2.2.2 Researchers 675
4. Comments 678
4.1 General Rules 678
4.1.1 Compatibility with Human Rights and other
International Rules 678
4.1.2 Further Comments 682
4.2 Researchers 686
Chapter 22 Admission of Students and Others 725
1 Summary of content 725
2.1 Education and Migration in EC law 726
2.2 Background to the Directive 728
2.3 Directive 2004/114 730
4 Comments 735
Chapter 23 Social Security 753
1 Summary 753
2 History and Legislative Background 754
4 Comments 761
Chapter 24 The Socio-Economic Agenda of EC Immigration and
Asylum Policy 769
1 Introduction 769
2 The Employment Strategy 770
3 Mobility 775
4 Integration 778
5 Anti-discrimination 780
Section V Irregular Migration 785

Chapter 25 Mutual Recognition of Expulsion Decisions 787
1 Summary 787
4 Comments 792
xiv
Table of Contents
Chapter 26 Carrier Sanctions 799

1 Summary 799
3 Legal Issues 802
4 Comments 803
Chapter 27 Trafficking in Human Beings 809
1 Summary 809
4 Comments 818
Chapter 28 Facilitation of Irregular Entry, Residence and Movement 827
1 Summary 827
4 Comments 834
Chapter 29 Victims of Trafficking or Smuggling 845
1 Summary 845
2 Legislative History 848
4 Comments 851
Chapter 30 Transit for Expulsion 863
4 Comments 869
Chapter 31 EC Readmission Agreements 881
1.1 Introduction 881
1.2 Contents 882
2.1 “Maastricht-era” Measures 886
2.2 Implementing the Treaty of Amsterdam 887
4 Comments 893
Chapter 32 Control of Irregular Migration and EU Law and Policy:
A Human Rights Deficit 899
Ryszard Cholewinski
1 Introduction 899
2 Human Rights of Irregular Migrants 902
3 EU Law and Policy on Irregular Migration 905
xv
Table of Contents
3.1 Criminalisation of Irregular Migration 907

3.2 Cross or Mutual Recognition of National Decisions 911
3.3 Exporting Control Policies on Irregular Migration 917
3.4 Irregular Migrants as Victims of Human Rights Abuses 919
3.5 Return Policy on Irregular Residents 924
4 Restoring the Human Rights Deficit 926
5 Conclusion 940
Annexes 943
Annex I Proposed and Adopted Title IV Measures (as of 1 Jan.
2006) 945
Annex 2 EC Treaty Provisions on Immigration and Asylum 983
Annex 3 December 1998, Vienna European Council 989
Annex 4 Excerpt from Conclusions, Tampere European Council 993
Annex 5 Excerpts from Conclusions, Laeken, Seville and
Thessaloniki European Councils 997
Annex 6 Excerpts: The Hague Programme 1009
Annex 7 EU Constitutional Treaty (excerpt) 1023
xvi
Preface
The idea for this book came when the Commission began publishing its pro-
posals for immigration and asylum measures under Title IV of the Treaty. At
that time there was a good deal of optimism that the measures would be con-
cluded with relative speed and be adopted in due course. A conference was held
in London on Asylum and Immigration under Title IV at the British Institute of
International and Comparative Law in 2002. All the guest contributors to this
book presented papers at the conference on topics of general application in the
asylum and immigration field. As general editors we intended to provide com-
mentary on the texts of the specific measures adopted under Title IV.
Years passed, some measures were rejected altogether by the Council and
others were the subject of protracted negotiation. Publishing commentary on
texts that were very likely to be changed before adoption seemed unattractive
from our perspective not least because the book would date so quickly. How-
ever we could not have anticipated that it would take until late 2005 for the
final major asylum directive, the Asylum Procedures Directive to be agreed and
adopted.
We apologise particularly to the contributors who have waited years for
their papers to be published, although these papers have been fully updated for
publication. However we hope that the book will now stand the test of time
and be useful to academics, students and practitioners alike whose work might
engage study or use of the many regulations, directives and other measures con-
cluded under Title IV of the Treaty.
Section I, entitled “Framework of EC Immigration and Asylum Law”, con-
stitutes a number of papers including an examination of the historical develop-
ment of the institutional framework and the workings of the EC institutions
from the asylum and immigration law perspective in two papers by Steve Peers.
In a paper by Elspeth Guild and Steve Peers “Out of the Ghetto: The Personal
Scope of EC Law” the extension of the personal scope of EU law to third coun-
try nationals is examined. Steve Peers’ paper on Human Rights and EC Immi-
gration and Asylum Law presents an analysis of the part that human rights law
Nicola Rogers and Steve Peers
has to play in the interpretation and application of immigration and asylum law
measures. Finally in this section Judith Toth’s paper looks at EC Immigration
and Asylum law from the perspective of Enlargement. This paper remains very
relevant following the enlargement of 2004, as the issues around that enlarge-
ment and future enlargement remain thorny where immigration and asylum law
are concerned.
Sections II – V cover visas and border controls, asylum, legal migration and
integration and irregular migration in turn. Sections III-V contain the second-
ary legislation of primary importance for asylum, legal migration, and irregular
migration. All that legislation is separately commented upon each chapter. A
chapter on a particular piece of legislation includes a summary of the main
features of that legislation, the legislative background to the measure, analysis
of the main legal issues arising from that legislation and commentary on the leg-
islation. The text of the legislation is then included for ease of reference. For the
most part the legislation examined has been adopted by the EC. However, due
to its importance, the book also examines one measure which was not adopted
(the proposed Directive on employment and self-employment).
The chapters on specific texts of legislation are all written by the editors
and the contributors bear no responsibility for them. Most of the sections con-
clude with a paper or papers by contributors examining topical issues relevant to
that section. These contributions do not analyse specific measures concluded or
proposed at EU level since these are separately analysed in the preceding chap-
ters. The contributions are intended to provide a wide framework for analysis of
specific measures or the agenda of the EU in the relevant fields.
Section II on visas and border controls is relatively short with the three
main issues in this area commented upon.
In Section III on asylum in addition to the text and commentary on the six
major asylum measures, three papers are presented by contributors. The first
paper by Geza Tessenyi on Massive Refugee Flows and Europe’s Temporary
Protection examines the background to mass influxes to Europe and elsewhere
and questions whether a measure on temporary protection was in fact even
needed when the 1951 Convention on the Status of Refugees arguably provides
the appropriate framework for protection in mass influx situations. What is
notable is the fact that although the Directive on Temporary Protection was
amongst the first of the Title IV measures to be adopted, the instances of mass
influx into Europe have been extremely rare if they have occurred at all. Frances
Nicholson’s paper on the Challenges to Forging a Common European Asylum
System examines the process of harmonisation in the asylum field. The paper
looks at the road to harmonisation, the interaction with human rights law and
practice, the impact on individual Member States’ laws and the effect that an
EU Common Asylum System might have internationally. The final paper in Sec-
tion III is by Nathalia Berkowitz, and is on Gender and EU Asylum Law. As is
argued in the paper gender can have an impact on the whole asylum determi-
xviii
Preface
nation process as well as how people arrive in the EU and their experiences in
their countries of origin. The paper looks at the various aspects of the asylum
determination process that require gender neutrality and questions the extent to
which Member States are providing an approach that is truly gender neutral.
Section IV on Legal Migration and Integration includes the text and com-
mentary of the five major measures in this area. The section concludes with a
paper on The Socio-Economic Agenda of EC Immigration and Asylum Policy
by Jan Niessen. This paper charts the gradual insertion of immigration on the
European Union’s socio-economic agenda. It looks at mobility into and within
the European Union and issues of integration which is sorely lacking from the
EU agenda.
Section V on Irregular Migration includes the text of and commentary
upon seven measures in this area. The section ends with a contribution by Rys-
zard Cholewinski on Control of Irregular Migration and EU Law and Policy: A
Human Rights Deficit. In this paper the human aspects of illegal migration are
examined. The paper argues that although absent from the EU agenda, issues
around the human rights of illegal migrants need addressing at EU level. This is
examined against the international legal framework and the measures that could
be employed by the EU to alleviate the human rights deficit in this area are sug-
gested and analysed.
We are very grateful for all the help that we have received with this book. It
has take n years to complete and had undoubtedly impacted on our professional
colleagues as well as our private and family lives. We are particularly grateful to
Elspeth Guild who as always has been both encouraging and enthusiastic about
this book. We are grateful to Lindy Melman at Brill Publishers who has not
bemoaned once the delays in presenting the final text of the book. The text and
commentary is correct as of 1 January 2006. All the errors in the text and com-
mentary chapters are our own.
Nicola Rogers and Steve Peers
xix
Section I Framework of EC Immigration and
Asylum Law
Chapter 1 Overview
1 Introduction
Since entry into force of the Treaty of Amsterdam on 1 May 1999, the EU has
considered, and in many cases adopted, many proposals for legislation or mea-
sures implementing legislation in the area of immigration and asylum law. These
measures run the gamut from highly technical operational matters to broad
measures covering basic aspects of immigration and asylum law. Between them,
the proposed or adopted measures cover virtually every possible issue in relation
to immigration or asylum.
This book contains the text of and commentary upon a large number of
these measures proposed or adopted up until 1 January 2006, including all of
the most important ones. It also includes the text of the key measures concern-
ing asylum, legal migration and irregular migration. A full list of the measures
with references to their legislative history is provided in Annex 1. The purpose
of this chapter is to give an integrated overview of all of the various proposals,
including their relationship with measures agreed or proposed before the Treaty
of Amsterdam and with the overall political context.
2 Legal Context
This book takes as a starting point the entry into force of the Treaty of Amster-
dam because only at that point was it possible for the European Community
to adopt measures dealing with most or all aspects of immigration and asylum
law. Before that point, the Community’s power was limited to measures con-
cerning aspects of visa policy (from 1993 to 1999) and matters largely relating
to Community nationals and their family members (from the inception of the
Community). But the exact scope of these limits of the Community’s “classical”
powers were (and still are) a subject of dispute, as analysed further in Chapter
4. They remain a subject of dispute because the institutional rules relating to
Steve Peers and Nicola Rogers (eds.), EU Immigration and Asylum Law ... pp. 3-17.
© 2006 Koninklijke Brill NV. Printed in the Netherlands. ISBN 90 04 15374 8.
Section I – Framework of EC Immigration and Asylum Law
“regular” Community law, including the rules for possible “opt-outs” from EC
law, are, despite the Treaty of Amsterdam, still different in several respects from
the rules governing EU immigration and asylum law, found in “Title IV” of Part
Three of the EC Treaty (Articles 61-69 of that Treaty). The text of Title IV is
found in Annex 2; Chapter 3 analyses the functioning of the Community institu-
tions in this distinct legal and institutional context; and Chapter 2 examines the
historical development of the EU’s legal and institutional framework for adopt-
ing immigration and asylum law, including the potential effect of the proposed
Constitutional Treaty.
Prior to the Treaty of Amsterdam, there were two distinct phases in the
development of EU immigration and asylum law. In the first phase, before the
entry into force of the Treaty on European Union in November 1993, there was
no formal Treaty context for the adoption of rules on immigration and asylum
at all within the European Communities, except for the highly disputed possibil-
ity that the regular rules of the “Community method” could be used. During
this “informal intergovernmental” period, the Dublin Convention setting out
rules on responsibility for asylum requests was agreed, although it did not come
into force until 1997.1 A number of non-binding Resolutions and Recommenda-
tions were also agreed.2
In the second phase, the “Maastricht era” from 1993 to 1999, the Com-
munity gained its limited initial powers over visas, but the main powers were
granted to the “European Union”, which was a “formal intergovernmental”
system.3 But given Member States’ reluctance to agree any binding measures
during this period, the output of this era consists largely of non-binding mea-
sures such as Resolutions and Recommendations.4
There are three other important aspects to the legal context. First of all,
the Treaty of Amsterdam terminated a parallel development, begun with the
1985 Schengen Agreement and continuing with the 1990 Schengen Convention
and a huge number of implementing measures. The Schengen process was a
system agreed among most (but not all) Member States to provide for aboli-
tion of internal border controls between Member States, an integrated system
of external border controls and common rules on short-stay visas, along with
nearly identical rules on responsibility for processing asylum applications. There
were also flanking rules on criminal justice and police cooperation, including the
creation of a database (the Schengen Information System, or SIS) which inter
alia contained a list of persons to be denied entry to the entire Schengen area.
These rules were integrated into the scope of the European Community and
1 See discussion of later developments in Ch. 10.

2 On these, see particularly Chs. 14, 19, 29 and 30.
3 On these powers, see Chs. 8 and 9.
4 On these, see particularly Chs. 12-15, 20-22, 27, 29 and 30.
4
Chapter 1 Overview
European Union legal system by the Treaty of Amsterdam.5 Since the Schengen
system began operating in March 1995 and resulted in agreement on far more
immigration measures than proved possible within the EU before the Treaty of
Amsterdam, a number of chapters in this book examine what has happened to
the previous Schengen rules (the “Schengen acquis”) after the Schengen acquis
was integrated into the EU legal framework.6
Secondly, the developments within this field obviously have an important
impact on protection of human rights, within the scope of the European Con-
vention on Human Rights (ECHR), the Geneva Convention on the status of
refugees and other treaties. This aspect is considered throughout the book, with
a particular focus in Chapter 5.
Thirdly, the enlargement of the European Union loomed larger and larger
over developments in this field since the entry into force of the Treaty of Amster-
dam. By the end of 2002, it was agreed that enlargement would in principle take
place, with ten new Member States joining on 1 May 2004 – the same day on
which the transitional period established by the Treaty of Amsterdam for adop-
tion of EU immigration and asylum law ended. The impact of EU immigration
and asylum rules on the new Member States is considered further in Chapter 6.
3 Political Context
The European Union has consistently attempted to agree on the broad lines of
immigration and asylum policy at the summit meetings of heads of state and
government (“European Councils”). It is often forgotten that back in December
1991, the Maastricht European Council agreed an initial detailed immigration
and asylum policy to be implemented once the new Treaty on European Union
entered into force.7 But in practice, almost no concrete measure to implement
this policy was ever actually adopted.
This time around, the EU first of all agreed a detailed Action Plan on imple-
mentation of Justice and Home Affairs (JHA) policy in December 1998, which
was ultimately endorsed by the Vienna European Council later that month.8
But further attention to the issue was deemed necessary, and so a special Euro-
pean Council to that end was held in Tampere, Finland in October 1999. This
summit meeting set out broad principles in relation to JHA matters and appar-
5 See the Decisions in OJ 1999 L 176.

6 See Chs. 6-9, 25, 26, 28 and 29.
7 For the text, see Guild and Niessen, The Developing Immigration and Asylum Poli-
cies of the European Union: Adopted Conventions, Resolutions, Recommendations,
Decisions and Conclusions (Kluwer, 1996), 449-491.
8 OJ 1999 C 19. For the immigration and asylum provisions of that Plan, see Annex
3.
5
ently endorsed a relatively liberal and balanced migration and asylum policy for
the European Union.9
Nevertheless, by the time to review the Tampere conclusions at the end of
2001, little had in fact been agreed. However, the Laeken European Council in
December that year did nothing to help matters, simply “passing the buck” back
to the Commission to come up with revised proposals in several areas where the
Council had failed to reach agreement and weighting the balance of EU policy
further towards control of external borders and illegal immigration10. Shortly
afterwards, highly detailed “Action Plans” were agreed on those specific sub-
jects. In the meantime, by the spring of 2002, events took another turn, with a
perceived increase in the political sensitivity of immigration and asylum matters
following French and Dutch elections.
As a result, immigration and asylum policy became the centrepiece of the
Seville European Council in June 2002, with a four-part plan adopted.11 Firstly,
there were deadlines to adopt all of the outstanding asylum proposals and two
of the outstanding migration proposals. Secondly, the agreed detailed plan for
control of EU external borders was endorsed and certain aspects of that plan
were highlighted for early agreement. Thirdly, objectives for control of illegal
immigration were set, building on the agreed action plan in that area. Finally,
detailed principles were agreed on the relationship between EU external rela-
tions and migration law, involving an ill-defined “carrots and sticks” approach
to inducing non-EU countries to help the EU achieve its migration control
objectives.12
By the start of 2003, a number of key immigration and asylum measures
had been formally adopted or at least informally agreed, although a number of
key measures remained outstanding. With the continued political importance of
the asylum issue, some Member States urged a shift toward external processing
of asylum seekers. This potential shift in policy was examined by the Thessalon-
iki European Council in June 2003, which also took account of developments in
implementing the Seville Action Plan.13 At the same time, the EU Convention
on the future of the EU completed its work, recommending major changes in
the institutional framework applicable to EU immigration and asylum law.
A batch of further key immigration and asylum measures were agreed or
adopted between June 2003 and the end of the transitional period on 1 May
2004. The future of immigration and asylum law in the EU will now develop in
9 For the immigration and asylum provisions of the European Council conclusions,
see Annex 4.
10 See excerpts from the Laeken European Council conclusions in Annex 5.
11 See excerpts from the Seville European Council conclusions in Annex 5.
12 For more detailed comment on the summit conclusions, see Peers, “EU Immigra-
tion and Asylum Law after Seville”, 16 IANL Journal (2002) 176.
13 See excerpts from the Thessaloniki European Council conclusions in Annex 5.
6
Chapter 1 Overview
the framework of the “Hague Programme” conclusions of the European Coun-

cil of November 2004,14 and (if it is ratified, which seems unlikely) the draft Con-
stitutional Treaty of the European Union, which followed the recommendation
of the EU’s Constitutional Convention in agreeing to fundamental changes in
the institutional framework governing EU immigration and asylum law.15
4 Specific Policies
4.1 Visas and Borders
Since the “Schengen acquis” already contained a number of measures on visas
and border controls, the Tampere conclusions did not focus much on devel-
opment of legislation on these issues, despite the detailed Community powers
granted by Article 62 EC. As regards visas, an early priority was the completion
of a fully common list of countries whose nationals did or did not require visas
to enter the Union.16 Other visa measures included amendments to the common
visa format, creation of new common formats for certain types of visas, adop-
tion of special ad hoc visa arrangements (for the Olympics and Kaliningrad),
development of a planned Visa Information System and agreement on rules for
the amendment of the Common Consular Instructions and associated manuals.
The latter measures were in turn used to amend the EU visa rules to set up a
common form for visa applications, to charge a fee for visa applications (rather
than for the issue of visas), to harmonise these fees and to adopt common rules
on considering collective applications submitted by travel agents.17 Further
development of the Schengen rules on freedom to travel for three months was
hindered by complex arguments over whether the EU could or should agree rules
permitting an extended stay for non-visa nationals, and if so, how to arrange for
such extensions.18 As for border controls, from mid-2001 the development of
policy, and eventually legislation, concerning borders assumed growing impor-
tance.19
4.2 Asylum
The EC Treaty sets out a number of specific powers for the Community over
asylum and other forms of international protection in Article 63(1) and 63(2).
However, in most cases the EU legislation is expressly limited by the EC Treaty
14 OJ 2005 C 53. See excerpts from the Hague Programme in Annex 6. A plan to imple-
ment the Hague Programme in more detail was subsequently adopted in June 2005
(OJ 2005 C 198).
15 OJ 2004 C 310. See excerpts from the EU Constitutional Treaty in Annex 7.
16 See Ch. 8.
17 See Ch. 9.
18 The freedom to travel proposals are not considered in detail in this book.
19 See Ch. 7.
7
to setting only “minimum standards”. Nevertheless, back in Tampere, EU lead-

ers decided that the ultimate goal was the creation of a “Common European
Asylum System” in two phases, with the legislation to establish the first phase
proposed in 2000 and 2001.20
By 1 January 2006, all of the principal “first phase” measures had been
formally adopted, setting out a model temporary protection system which the
EU could take “off the shelf ” and use in the event of a future perceived crisis,21
agreeing minimum standards on reception conditions for asylum-seekers,22
replacing the Dublin Convention rules on responsibility for the the examination
of asylum applications,23 defining “refugee” and subsidiary protection (along
with the content of the connected status);24 and setting out minimum rules on
asylum procedures.25 These discussions were affected by enhanced concerns
about security following the events of 11 September 2001, as a Commission
Communication on security issues was followed by a widening of the exclusion
clauses during Council discussions on the definitions Directive and new propos-
als in the revised proposed Directive on asylum procedures.26
In the meantime, before discussions on the “core” proposals got fully
underway, the EU had been able to agree on certain ancillary issues. A further
measure purportedly implementing the Dublin Convention was agreed by the
“Article 18 Committee” set up by that Convention in 2000.27 A “European Refu-
gee Fund” was agreed in September 2000, distributing very modest Community
funds between the Member States.28 Shortly afterward, in December 2000, the
20 On the development of this system, see Ch. 17. On the specific gender issues in EU
asylum policy, see Ch. 18. The Commission has offered an overview of the system
in an initial communication (COM (2000) 755, 22 Nov. 2000) and follow-up reports
(COM (2001) 710, 28 Nov. 2001 and COM (2003) 152, 26 Mar. 2003).
21 Directive 2001/55 (OJ 2001 L 212/12), which Member States had to implement by
the end of 2002. On this Directive, see further Ch. 15. On the broader issues sur-
rounding temporary protection, see Ch. 16.
22 See discussion of Directive 2003/9 (OJ 2003 L 31/18) in Ch. 12.
23 Reg. 343/2003 (OJ 2003 L 50/1). See Ch. 10.
24 Directive 2004/83 (OJ 2004 L 304/12). See Ch. 13.
25 Directive 2005/85 (OJ 2005 L 326/13). See Ch. 14. Furthermore, Austria tabled an
initiative for a Reg. on “safe third countries” late in 2002 (OJ 2003 C 17/6), but it
lapsed on 1 May 2004 when Member States lost the power of initiative over EC
immigration and asylum law.
26 See Communication (COM (2001) 743, 5 Dec. 2001).
27 OJ 2000 L 281/1.
28 Decision 2000/596/EC (OJ 2000 L 252/12); the Fund was later extended (OJ 2004 L
381/52). The Fund is not considered in detail in this book; on the 2000 Decision, see
Peers, “Key Legislative Developments on Migration in the European Union [2000]”
3 EJML (2001) 231 at 233-235.
8
Chapter 1 Overview
Council formally adopted a Regulation establishing “Eurodac”, a system allow-

ing for comparison of fingerprints of asylum-seekers in order to assist the opera-
tion of the EU rules on responsibility for asylum applications; the “Eurodac”
system began operations over two years later on 15 January 2003.29 Next, early
in 2001, the Council approved the conclusion of a treaty between the Commu-
nity and Norway and Iceland on asylum applications, associating those states
with the existing rules in the Dublin Convention and the planned future rules in
the “Dublin II” Regulation.30 The Council subsequently gave the Commission a
mandate to negotiate treaties extending these rules to Switzerland (in June 2002)
and to Denmark (in May 2003); negotiations were concluded by summer 2004,
and the relevant treaties were awaiting ratification as of 1 January 2006.31
By that point, the asylum agenda had moved on, with the Commission con-
sidering a British initiative to establish asylum processing centres in the regions
of origin or transit of asylum-seekers.32 This is likely to prove an increasingly
important and controversial issue.
4.3 Legal Migration

The EC has powers to adopt measures on legal migration (Article 63(3)(a) EC)
and on third-country nationals’ change of residence between Member States
(Article 63(4) EC). To implement these powers, the Tampere European Council
called for swift agreement on proposals covering much of this area.33 But it took
until 2003 for the Council to adopt or to agree upon significant legislation in
this area,34 with the adoption of a Regulation on social security for third-coun-
29 Reg. 2725/2000 (OJ 2000 L 316/1); Communication on start of operations (OJ 2003
C 5/2). See Ch. 11.
30 Decision 2001/258 (OJ 2001 L 93/38). The treaty entered into force on 1 April 2001
(OJ 2001 L 112/16). It is not discussed in detail in this book; for analysis see Peers,
n. 28 above, 241-243.
31 COM (2004) 593, Sep. 2004 and COM (2004) 594, Sep. 2004.
32 See the Commission Communication on asylum systems (COM (2003) 315, 3 June
2003), the conclusions of the June 2003 Thessaloniki European Council (Annex 5),
the Communication on managed entry of asylum-seekers and external protection
(COM (2004) 410, 4 June 2004), and the Communication on regional protection
(COM (2005) 388, 1 Sep. 2005).
33 For an overview of the issues, see the Commission Communications on immigra-
tion policy (COM (2000) 757, 22 Nov. 2000) and on immigration, integration and
employment (COM (2003) 336, 3 June 2003). For more on integration policy, see the
2005 Commission communication (COM (2005) 389, 1 Sep. 2005).
34 The only measure adopted earlier was Reg. 1030/2002 on a common residence
permit (OJ 2002 L 157/1), in force 15 June 2002; a proposed amendment to this
Regulation (COM (2003) 558, 24 Sep. 2003) was agreed in principle in November
2003. This Regulation is not considered in detail in this book. For comments, see
Peers, “Key Legislative Developments on Migration in the European Union [2001]”
9
try nationals who moved within the Community and of Directives on family
reunion and long-term resident third-country nationals.35 Furthermore, at the
end of 2004, the Council adopted a Directive to regulate the status of students,
pupils, trainees and volunteers moving to the EU.36 However, as of autumn
2005, the Council had never really begun serious negotiations on a four-year
old proposal on migration for employment and self-employment, and so the
Commission withdrew its proposal.37 However, the Council was able to agree on
a Directive on admission of researchers from non-EU countries.38 Moreover, an
ambitious Commission initiative to set up a system of “open coordination” for
migration policy was not taken up by the Member States either.39 The Commis-
sion subsequently attempted to re-open debate on this issue with a Green Paper
released at the start of 2005,40 followed by a “policy plan” on legal migration
released at the end of the year.41
4.4 Irregular Migration

The EU has shown a particular enthusiasm for using the powers granted by
Article 63(3)(b) EC to agree measures concerning illegal migration, and it has
also used the relevant policing and criminal law powers in the intergovernmen-
tal “third pillar” to address this subject.42 Soon after the entry into force of the
Treaty of Amsterdam, the Council adopted a third-pillar Decision on counter-
feit documents as well as a Resolution establishing an early-warning system.43
Early initiatives for Regulations concerning airport transit visas and governing
readmission between Member States were not agreed.44 Next came a package
of four French proposals in 2000 on mutual recognition of expulsion decisions,
4 EJML (2002) 85 at 112-113; Peers, “Key Legislative Developments on Migration

in the European Union [2001-2002]” 4 EJML (2002) 339 at 362; and Peers, “Key
Legislative Developments on Migration in the European Union [2002]” 5 EJML
(2003) 107 at 126.
35 See Chs. 24, 19 and 20 respectively.
36 See Ch. 22.
37 See Ch. 21.
38 See ibid.
39 COM (2001) 387, 11 July 2001. See discussion in Ch. 24.
40 COM (2004) 811, 11 Jan. 2005.
41 COM (2005) 669, 22 Dec. 2005.
42 For an overview see Ch. 31.
43 Respectively OJ 2000 L 81/1 and Council doc. 7965/99, 11 May 1999. These mea-
sures are not considered in detail in this book.
44 See respectively Council doc. 10867/99, 9 Sep. 1999 (amended by Council doc.
10867/1/99, 10 Oct. 1999); and Ch. 30. The airport transit visas initiative is not con-
sidered in detail in this book. These Member State initiatives lapsed on 1 May 2004
(see n. 25 above).
10
Chapter 1 Overview
carrier sanctions, and criminalisation of facilitation of irregular entry and resi-

dence. These were all agreed by spring 2001, although the facilitation measures
were not formally adopted due to national parliamentary scrutiny delays until
November 2002.45 In the meantime the Commission had proposed a third pillar
measure on criminal sanctions against trafficking in persons, agreed later in 2001
after a dispute over the level of penalties was settled, but not formally adopted
until July 2002.46 A German proposal for a formal Decision concerning use
of the early-warning system was set aside when the Council’s working groups
instead informally agreed new working methods regarding the system.47 Simi-
larly, the Council did not initially pursue the adoption of a proposed Recom-
mendation on voluntary return,48 although it adopted conclusions on this issue
in October 2005.49
But these measures proved to be only the beginning of EC policy on this
issue. Negotiations for eleven readmission agreements had been approved by 1
January 2006, with agreement reached on five such agreements, and readmission
clauses had been inserted into a number of general treaties between the Com-
munity and third states.50 The Commission released a detailed Communication
on irregular migration in autumn 2001 with a view to further developing policy
in this area,51 and the Council, at the urging of the Laeken European Council,
swiftly agreed an Action Plan on this issue in February 2002.52 This initiative
had left largely aside the issue of expulsions (or “return”, as the Community
institutions preferred to call it), because the Commission had intended to tackle
this issue in even more detail. A Green Paper on a Community return policy was
duly issued in spring 2002, and at the urging of the Seville European Council,
the Council agreed an Action Plan on return (along with a specific Action Plan
on returns to Afghanistan) in November 2002.53
45 See respectively Directive 2001/40 (OJ 2001 L 149/34); Directive 2001/51 (OJ 2001 L
187/45); Directive 2002/90 on facilitation (OJ 2002 L 328/17); and Framework Deci-
sion on facilitation (OJ 2002 L 328/1). For analysis, see Chs. 25, 26 and 28.
46 OJ 2002 L 203/1; see Ch. 27.
47 For the proposal, see Council doc. 14165/1/00, 2 Mar. 2001; for the revised working
methods, see Council docs. 8049/01, 19 Apr. 2001 and 10100/01, 19 June 2001 and
earlier Council Conclusions (Press Release of JHA Council, 30 Nov./1Dec. 2000).
This proposal is not considered in detail in this book.
48 Council doc. 6283/00, 18 Feb. 2000.
49 For the text, see the JHA Council press release, 12 Oct. 2005. This issue is not con-
sidered in detail in this book.
50 See generally Ch. 31.
51 COM (2001) 672, 15 Nov. 2001.
52 Published at OJ 2002 C 142/23.
53 See respectively COM (2002) 175, 10 Apr. 2002; COM (2002) 564, 14 Oct. 2002;
Council doc. 14673/02, 25 Nov. 2002; and Council doc. 15215/02, 4 Dec. 2002.
11
Between them, these two Action Plans contain a formidable agenda for
future legislation.54 By 1 January 2006, further legislative measures had been
adopted: a Directive on the residence status of “victims” of trafficking and facil-
itation of illegal migration, with the goal of increasing convictions of traffick-
ers and smugglers;55 a Decision on financing explusions;56 a Directive on transit
for expulsions by air;57 new functions for the SIS;58 amendment of the related
SIRENE manual;59 the creation of an immigration liaison officers’ network;60
obligations for passenger carriers to transmit data on travellers to immigration
authorities;61 a Decision on joint expulsion flights;62 and a Decision on develop-
ment of the network for Member States’ migration management services.63 In
May 2003 the Council adopted a third pillar Decision on “screening” asylum-
seekers to see whether they should be handed over to the International Criminal
Court.64 As for proposals, the Commission has proposed measures establish-
ing a European Return Fund (April 2005), the second version of the Schengen
Information System (May 2005)65 and common standards on expulsions (Sept.
2005).66
4.5 Administrative Cooperation

Article 66 of the EC Treaty gives the Council power to adopt measures con-
cerning administrative cooperation between the Member States and between
54 On implementation of the plans, see the Commission’s Communications (COM

(2003) 323, 3 June 2003 and SEC (2004) 1349, 25 Oct. 2004).
55 Directive 2004/81 (OJ 2004 L 261/19); see Ch. 29.
56 OJ 2004 L 60/55, discussed in Ch. 25.
57 Directive 2003/110 on assistance for expulsions via air transit (OJ 2003 L 321/26);
see Ch. 30.
58 Reg. 871/2004 (OJ 2004 L 162/29). See also the parallel third-pillar Decision adopted
in February 2005 (OJ 2005 L 68/44). These measures are not considered in detail in
this book.
59 Reg. 378/2004 (OJ 2004 L 64/5). This Regulation is not considered in detail in this
book.
60 Reg. 377/2004 (OJ 2004 L 64/1). This Regulation is not considered in detail in this
book.
61 Directive 2004/82 (OJ 2004 L 261/24). This Directive is not considered in detail in
this book.
62 OJ 2004 L 261/28. This Decision is not considered in detail in this book.
65 COM (2005) 236, 31 May 2005. This proposal is not considered in detail in this
book.
66 COM (2005) 391, 1 Sept. 2005. This proposal was released too late to be considered
in detail in this book.
12
Chapter 1 Overview
the Member States and the Commission concerning matters within the scope
of Title IV. Here the Council has also been busy, agreeing at the end of 2001 a
Regulation (with a parallel third pillar Decision) funding the development of the
next version of the SIS from the Community budget.67 Subsequently the Council
agreed a funding programme for assisting the adoption and implementation of
EC migration, asylum and borders legislation (the “ARGO” programme).68
4.6 External Relations

In addition to the planned or adopted treaties concerning the Schengen acquis,
readmission and asylum responsibility mentioned above, the EC and China have
concluded a treaty on “Approved Destination Status”, to address certain issues
relating to the legal status of Chinese tourists.69 The Council has also signed
the Protocols to the UN Convention on organised crime concerning smuggling
and trafficking in persons.70 More broadly, as noted above, the Seville Euro-
pean Council endorsed a policy of enhanced encouragement and pressure by
the European Union upon third States. The first steps in this process were con-
clusions of the General Affairs and External Relations Council in November
2002, targeting initial countries for enhancing or beginning migration coopera-
tion with the EU, followed by a Commission communication on migration and
development, which also addressed the extent of Community funds available
to assist non-EU countries with migration issues.71 Subsequently, the Council
adopted conclusions on migration and development in May 2003; the Council
and European Parliament adopted a funding measure to assist non-EU coun-
tries who cooperated with EU migration and asylum policy;72 and the Thessa-
loniki European Council agreed in June 2003 to a regular review of the extent
of third states’ cooperation on migration and asylum matters.73 The Commis-
67 Reg. 2424/2001 (OJ 2001 L 328/4) and Decision 2001/886/JHA (OJ 2001 L 328/1).
These measures are not considered in detail in this book; see Peers, “Key Legislative
Developments [2001-2002]”, n. 30 above at 364; Commission Communication on
the development of SIS II (COM 2001 720, 18 Dec. 2001); Commission working
paper on the development of SIS II (SEC (2003) 206, 18 Feb. 2003); and the discus-
sion of certain institutional issues concerning the SIS in Ch. 3.
68 Decision 2002/463 (OJ 2002 L 161/11). An amendment to this Decision was adopted
in 2004 (OJ 2004 L 371/48).
69 OJ 2004 L 83/12.
70 See Decision on signature (OJ 2001 L 30/44).
71 COM (2002) 703, 3 Dec. 2002.
72 Reg. 491/2004 (OJ 2004 L 80/1).
73 See respectively Council doc. 8927/03, 5 May 2003; COM (2003) 355, 11 June 2003;
and Annex 7. For an initial report, see SEC (2003) 815, 9 July 2003 (Council doc.
11450/03, 15 July 2003). These issues are not considered in detail in this book. For
analysis, see Peers, “Illegal Immigration and EU External Relations” in Bogusz,
13
sion has subsequently released a communication on migration and development

policy, and issued its first review of third states’ cooperation with the EU on
asylum and migration issues.74
5 The Nature of Community Law

The subject-matter of immigration and asylum is now extensively regulated
– although not fully regulated – by Community law. It is thus always useful to
keep in mind the nature of Community law, most obviously its legal effect – its
supremacy over conflicting national law and its “direct effect”, conferring rights
that individuals can enforce in national courts. Throughout this book, there is
an analysis of which provisions of the most important Directives are capable of
conferring directly effective rights.
Another issue to keep in mind is that Community law should in principle
receive a Community-wide uniform interpretation, not an interpretation depen-
dent upon differing national law. The Court of Justice has ruled that unless
there is a reference to national law in EC legislation, then in principle a uniform
EC-wide interpretation of the terms in that legislation should apply. But where
legislation does refer to national law, as it does frequently in much EC immigra-
tion and asylum legislation, are Member States granted full discretion to do as
they wish? An example of the Court of Justice’s approach to such references is
the case of Pokrzeptowicz-Meyer, which is of direct relevance as it concerns the
status of migrants.75 The case concerned Article 37(1) of the Europe Agreement
between the EC and Poland, which provided:
Subject to the conditions and modalities applicable in each Member State:

– the treatment accorded to workers of Polish nationality legally employed
in the territory of a Member State shall be free from any discrimination
based on nationality, as regards working conditions, remuneration or dis-
missal, as compared to its own nationals, […]76
Yet despite the reference to national conditions and modalities, the Court of
Justice found that there was a directly effective right to equal treatment in work-
ing conditions.77
Even where a Directive refers to ‘national law’ to determine its scope, the
Court of Justice may give that scope a common definition. In the judgment in
Cholewinski, Cygan, and Szyszczak, eds., Irregular Migration and Human Rights
(Martinus Nijhoff, 2004).
74 See respectively COM (2005) 391, 1 Sept. 2005 and COM (2005) 352, 28 July 2005.
75 Case C-162/00 [2002] ECR I-1049.
76 OJ 1994 L 348/1; emphasis added.
77 See also the later judgment in Case C-438/00 Kolpak [2003] ECR I-4135.
14
Chapter 1 Overview
Jaeger,78 Article 2(1) of Directive 93/104 (the working time Directive) specified
that “working time shall mean any period during which the worker is working,
at the employer’s disposal and carrying out his activity or duties, in accordance
with national laws and/or practice”.79 The Court of Justice nevertheless held,
despite the relevant German labour law, that:80
... the concepts of working time and rest period within the meaning of Direc-
tive 93/104 may not be interpreted in accordance with the requirements of the
various legislations of the Member States but constitute concepts of Community
law which must be defined in accordance with objective characteristics by refer-
ence to the scheme and purpose of that directive ... Only such an autonomous
interpretation is capable of securing for that directive full efficacy and uniform
application of those concepts in all the Member States.
Accordingly, the fact that the definition of the concept of working time refers
to national law and/or practice does not mean that the Member States may uni-
laterally determine the scope of that concept. Thus, those States may not make
subject to any condition the right of employees to have working periods and cor-
responding rest periods duly taken into account since that right stems directly
from the provisions of that directive. Any other interpretation would frustrate
the objective of Directive 93/104 of harmonising the protection of the safety
and health of workers by means of minimum requirements ...
The same approach can be seen when the issue is not the scope of a Directive,
but the interpretation of a reference to national law in order to determine the
conditions for the exercise of a right, an issue also highly relevant for much EC
immigration and asylum legislation. In BECTU,81 the issue was the interpreta-
tion of Article 7 of the working time Directive, which provides as regards annual
leave:
1. Member States shall take the measures necessary to ensure that every worker
is entitled to paid annual leave of at least four weeks in accordance with the
conditions for entitlement to, and granting of, such leave laid down by national
legislation and/or practice.82
78 Case C-151/02 [2003] ECR I-8389.

79 OJ 1993 L 307/18; emphasis added.
80 Paras. 58 and 59 of the judgment.
81 Case C-173/99 [2001] ECR I-4881.
82 N. 79 above (emphasis added).
15
In the circumstances, particularly given the status of annual leave as a basic

social right, the Court ruled that:83
Legislation of a Member State, such as that at issue in the main proceedings,

which imposes a precondition for entitlement to paid annual leave which has the
effect of preventing certain workers from any such entitlement not only negates
an individual right expressly granted by Directive 93/104 but is also contrary to
its objective ...
Furthermore, rules of the kind at issue in the main proceedings are liable to give
rise to abuse because employers might be tempted to evade the obligation to
grant the paid annual leave to which every worker is entitled by more frequent
resort to short-term employment relationships ...
The expression “in accordance with the conditions for entitlement to, and granting
of, such leave laid down by national legislation and/or practice” must therefore be
construed as referring only to the arrangements for paid annual leave adopted in
the various Member States. As the Advocate General observed in point 34 of
his Opinion, although they are free to lay down, in their domestic legislation,
conditions for the exercise and implementation of the right to paid annual leave,
by prescribing the specific circumstances in which workers may exercise that
right, which is theirs in respect of all the periods of work completed, Member
States are not entitled to make the existence of that right, which derives directly
from Directive 93/104, subject to any preconditions whatsoever.
Contesting the interpretation of Directive 93/104 given in paragraphs 52 and

53 of this judgment, the United Kingdom Government contends, first, that
it is undermined by the fact that the arrangements for paid annual leave vary
considerably from one Member State to another and that certain national rules
do not provide for a right to such leave from the first day of employment.
As to that, it must be borne in mind that Directive 93/104 merely lays down
minimum requirements for harmonisation of the organisation of working
time at Community level and leaves Member States to adopt the requisite
arrangements for implementation and application of those requirements.
Those measures may therefore display certain divergences as regards the condi-
tions for exercising the right to paid annual leave but, as the Court has held in
paragraphs 52 and 53 of this judgment, that directive does not allow Member
States to exclude the very existence of a right expressly granted to all workers.
83 Paras. 48, 51, and 53 – 56 of the judgment.
16
Chapter 1 Overview
Moreover, even if other national rules contained a condition comparable to that

appearing in the legislation at issue in the main proceedings, it need merely be
pointed out that such a condition is manifestly contrary to Directive 93/104
and that, according to settled case-law, a Member State cannot justify its fail-
ure to fulfil obligations under Community law by relying on the fact that other
Member States are also in breach of their obligations (see Case C-146/89 Com-
mission v United Kingdom [1991] ECR I-3533, paragraph 47).
So it appears that references to national law in Directives and in international

agreements ratified by the Community cannot be assumed to confer limitless
discretion upon Member States.
A further issue worth examining is the temporal scope of EC legislation.
Some EC immigration and asylum legislation specifies its temporal scope very
clearly: for example, the Directive on asylum procedures and the Regulation on
responsibility for asylum applications both expressly apply only to applications
for asylum lodged after specific dates. It is more usual, however, for legislation to
remain silent on this important issue. This issue is obviously relevant to persons
who have applications pending at the date when the legislation must be applied;
for example, to persons who had a family reunion application pending as of 3
October 2005 (the deadline to apply the family reunion Directive) or an asylum
and/or subsidiary application application pending as of 6 February 2005 (the
deadline to apply the reception conditions Directive) or 10 October 2006 (the
deadline to apply the refugee definition Directive). But it is also relevant to per-
sons whose legal position has a continued effect as of the deadline to apply the
legislation. So, for example, can persons who have already been granted the right
to family reunion before 3 October 2005 rely on the provisions of the family
reunion directly as regards expulsions or access to employment? Can persons
who already have refugee status as of 10 October 2006 argue that the refugee
definition Directive governs their rights to benefits such as access to employ-
ment? Moreover, can persons who were denied refugee status, but who received
subsidiary protection status or whose claims for protection failed entirely, revive
a claim after 10 October 2006 to the extent that the Directive widens the defni-
tion of “refugee” or “subsidiary protection” as compared to the prior national
law and practice?
The answer to this question is that as a general rule, EC law applies immedi-
ately upon its deadline for application to pending procedures or to the continu-
ing effect of prior legal decisions.84 All of the above cases should therefore be
decided in accordance with the new rules brought about by EC legislation.
84 For example, see Pokrzeptowicz-Meyer (n. 75 above) and the detailed analysis of the
relevant case law in Peers, EU Justice and Home Affairs Law, 2nd ed. (OUP, 2006),
ch 4.
17
Chapter 2 From Black Market to Constitution:
The Development of the Institutional
Framework for EC Immigration and
Asylum Law
Steve Peers
1 Introduction
Cooperation among EU Member States on issues of asylum and immigration
began back in 1986, in the form of informal intergovernmental negotiations
aimed at agreeing on Conventions and soft law resolutions and recommen-
dations of ministers. This process began shortly after signature of the initial
Schengen Convention, which aimed at more intensive integration among a core
group of Member States. By the start of 2006, the Schengen rules had long since
been elaborated in detail, extended to most Member States, and integrated into
the EU’s legal order; and asylum and immigration cooperation among all EU
Member States had been, via a series of incremental steps, subjected almost
completely to the “Community method” of qualified majority voting (QMV)
in the EU’s Council of Ministers, co-decision in the European Parliament (EP),
the sole initiative of the European Commission, the jurisdiction of the Court
of Justice, and directly effective Community legislation. In the space of twenty
years, cooperation on asylum and immigration issues has gone from the “black
market” of European integration, developed by secret meetings of interior
ministry officials evading any effective parliamentary or judicial scrutiny, to an
increasingly important subject of EC law, largely dealt with like any other area.
Moreover, the EU’s Constitutional Treaty, would, if ratified, fully complete the
application of the “Community method” to asylum and immigration law, and
further expand EU competence over these issues. Although ratification of the
Treaty seemed a distant prospect at the end of 2005, the decision-making rules
applying to EC asylum and immigration law had already largely been trans-
formed.
The purpose of this Chapter is to trace the development of EU and EC
competence and decision-making rules, along with jurisdiction of the Court of
Justice, concerning asylum and immigration law. The background to the role of
Steve Peers
the EU institutions in Title IV is clear from a detailed analysis of Member States’

positions during Treaty negotiations, particularly the negotiations of the Trea-
ties of Maastricht (Treaty on European Union), Amsterdam and Nice, as well as
the EU’s Constitutional Treaty. It can be seen that on each of the first three occa-
sions, the original suggestion for a gradual move to ordinary Community meth-
ods was watered down considerably. But major changes to the decision-making
rules took place in 2004, and further changes to competence, decision-making
and Court jurisdiction were negotiated fairly easily as part of discussions on the
EU’s planned Constitutional Treaty. Of course, the prospects that this Treaty
will ever enter into force now look quite dim, leaving us with the current mixture
of intergovernmental and communautaire rules for the time being.1
2 Treaty on European Union (Maastricht Treaty)

The first opportunity to re-examine the informal intergovernmental approach
that initially governed cooperation between Member States on immigration
and asylum matters came with the 1991 negotiations at the Intergovernmental
Conference (IGC) to establish “a political union”, that ultimately concluded in
agreement on the Treaty on European Union (TEU, or Maastricht Treaty), in
force from 1 November 1993.
At an early stage in the IGC negotiations, the Luxembourg Council Presi-
dency proposed the “pillar structure” that was to become a defining feature of
the EU until the Constitutional Treaty (assuming it is ratified). The Presidency’s
initial “non-paper” suggested distinct provisions on “Justice and Home Affairs”
(JHA) that would eventually become the “third pillar”, with a view to formal-
ising the informal intergovernmental cooperation on these subjects that had
existed since the 1970s (and since 1986 as regards asylum and immigration).2
Article A of the draft provisions listed Member States’ “common interests” on
which they would cooperate, including asylum and immigration matters. Article
C set out the forms of action which could be used as regards most issues (includ-
ing asylum and immigration). These comprised: “coordination”, possibly result-
ing in a “common position”; the adoption of “joint action” or “Conventions”
by the Council, voting unanimously (with the possibility of majority voting on
implementing measures yet to be discussed); or the adoption of Community
measures, on a unanimous vote following a Commission proposal. So either
Community or intergovernmental acts could have been adopted, depending
on the political will of the Council. The European Parliament would only be
informed and consulted generally on the intergovernmental measures,3 while its
1 The existing rules, along with their practical application since the Treaty of Amster-
dam entered into force, are examined in detail in Ch. 3.
2 Non-paper of 12 April 1991, published in Corbett, The Treaty of Maastricht (Long-
man, 1995), 267.
3 Article G of the text; this is comparable to the final Art. K.6 of the TEU.
20
Chapter 2 The EC Institutions and Immigration and Asylum Law
role in adoption the Community measures remained to be determined. It would

be specified that the new provisions would have no effect on EC powers and that
the Court of Justice would only have powers as regards Conventions and any
Community measures adopted in this area.4
These proposals were modified only slightly in the draft Treaty which the
Presidency presented in June.5 At this point, a review of these provisions at a
future IGC to be held in 1996 was added,6 and it was expressly stated that the
Court of Justice would have jurisdiction to police the boundary between the
JHA provisions and the Community provisions.
Subsequently, taking account of the objections of the Commission and
a (narrow) majority of Member States to the proposed pillar structure, the
Dutch Presidency suggested a radically different system in its version of the
draft treaty of September 1991.7 In place of the pillar system, JHA and foreign
policy powers would co-exist with Community powers in a single treaty. But
nonetheless, the Dutch proposed an essentially intergovernmental process for
JHA law. An Article 220a of the EC Treaty would have governed the adoption
of measures concerning, inter alia, immigration and asylum law. But this clause
would have provided for cooperation between Member States, not adoption of
EC legislation; the Commission would have shared the initiative with Member
States on immigration and asylum issues; the jurisdiction of the Court of Justice
would have been optional; the EP would only have been informed and (gen-
erally) consulted; and decision-making would have been by “common accord”
(unanimity) of the Member States, with the possibility of adopting implementa-
tion measures by QMV. There was no prospect of an alternative use of EC law
to address these issues. Rather, the Dutch proposed carving out aspects of the
subject-matter that would be subject to EC law as such: the “entry and move-
ment of ” third-country nationals on the territory of Member States would be
subject to EC legislation, entailing a unanimous vote in the Council and consul-
tation of the EP.8
This Dutch draft was comprehensively rejected by the other Member States,
and so the Dutch returned to the pillar system. The last draft Treaty available
before the conclusion of negotiations returned to the proposed separate Title
on JHA outside the EC Treaty, as proposed by Luxembourg.9 By this point the
jurisdiction for the Court of Justice on Conventions would only be optional,
not mandatory, and, as mooted in the first Dutch draft, there was no alternative
4 Art. J of the text.

5 Draft Treaty of 18 June 1991, published in Corbett (n. 2 above), 293.
6 Art. J of the revised text.
7 Draft Treaty of 24 September 1991, published in Corbett (n. 2 above), 329.
8 Art. 100a bis of the proposal
9 Draft Treaty of 8 Nov. 1991, published in Corbett (n. 2 above).
21
Steve Peers
prospect of adopting EC law measures on the relevant subjects. However, the

“carve-out” of topics which would have been addressed by EC law was made
more precise; it would have concerned external borders and the entry and move-
ment of third-country nationals for short stays. Decision-making would have
required unanimous voting in the Council with consultation of the EP, although
the Council could have extended the use of QMV by the same procedure and
would have have had to vote by QMV on the issues of a common visa list and
common visa format. It would also be possible to extend EC powers to certain
other issues within the scope of the separate JHA Title.
The final Treaty on European Union, as is well-known, left only the issues
of visa formats and visa lists expressly within the scope of EC law.10 Moreover,
the Council was obliged to vote on the subject of visa lists by a unanimous vote
until 1 January 1996, after which point voting shifted to QMV.11 Other issues
relating to borders, immigration and asylum were within the scope of what
became known as the “third pillar” of the Treaty on European Union, although
the issue of conditions of employment for third-country nationals fell within
the special Agreement on Social Policy applying to all Member States except the
UK.12 All of the key features of the third pillar present throughout most drafts
of the Treaty were retained as regards immigration and asylum law: the shared
initiative of the Member States and Commission; the limited position of the EP;
the optional jurisdiction for the Court of Justice, over Conventions only; una-
nimity in the Council; the use of different legal instruments not conferring the
effect of EC law; and the possible transfer of certain issues to EC law.13 Because
of these important distinctions, the dividing line between the third pillar and EC
law was contentious, particularly as regards visas and internal borders.14
3 Treaty of Amsterdam
As a compromise between Member States with different levels of enthusiasm
for European integration, the more communautaire Member States accepted
less than they had hoped for in the TEU in return for a commitment to a fur-
ther Inter-Governmental Conference to renegotiate the Treaties in 1996, which
would inter alia review the pillar system. This IGC was preceded by a “Reflec-
10 Art. 100c EC, inserted into the EC Treaty by the TEU, and rescinded by the Treaty
of Amsterdam.
11 Voting on the uniform visa format was subject to a qualified majority from the
outset.
12 Decisions on this subject required a unanimous vote in Council and consultation of
the EP.
13 The transfer powers (set out in Article K.9 of the EU Treaty) were never used.
14 See Case C-170/96 Commission v Council [1998] ECR I-2763 and the overview of
these disputes in Peers, EU Justice and Home Affairs Law, 1st edition (Longman,
2000), Ch. 4.
22
tion Group” of Member States’ representatives, who spent considerable time

discussing the issues of Justice and Home Affairs. The Reflection Group’s initial
report noted that a “large majority” of Member States believed that the provi-
sions of Title VI of the EU Treaty (the third pillar) were “inappropiate” [sic], in
particular because of the lack of objectives and a timetable and inappropriate
instruments.15 The Title should therefore be brought “at least partially…into the
Community sphere”, using EC legislative measures, increasing the role of the EP
and the Court of Justice, and applying majority voting in the Council, “without
prejudice to the continued use of unanimity – at least for a certain length of time
– in particularly sensitive areas”. Many of those Member States identified immi-
gration and asylum issues as an area which “must” be subject to EC law, with
some arguing in particular for a common status for legally-resident third-coun-
try nationals. However, “[s]ome” Member States attributed the imperfections
of the Title “solely to the lack of adequate experience and political will and to
over-complex structures”, but argued that “separation of the pillars is essential
for intergovernmental management of matters linked to national sovereignty”.
At this point, the Reflection Group asked a series of questions about which
aspects of Title VI should be shifted to EC law and what distinct institutional
arrangements should apply. The final report of the Group fleshed out each of
these positions, without achieving any consensus.16
The IGC, which ultimately negotiated the Treaty of Amsterdam, began
during the Italian Presidency in the spring of 1996. That Presidency’s progress
report indicated that not all of Title VI EU could be brought within EC law, but
that “the most suitable areas would be: visas, asylum and immigration; gradual
incorporation into the Community sphere might also facilitate the process”.17
The first suggested text for what became Title IV was submitted by the
Commission in September 1996.18 It contained in particular Articles A-C, which
set out in turn general objectives for the EC part of JHA policies, powers over
visas and border controls, and powers over asylum and immigration. Article B
is clearly recognisable as the current Article 62 EC, differing in several respects:
there would have been no cross-reference to Article 14 EC as regards abolition
of internal border controls; the visa powers would not have been expressly lim-
ited to short-stay visas; the power over visa conditions and procedures would
have included powers over “the categories of visas and their territorial validity”;
there would have been no power to adopt measures concerning uniform visas;
and would have been no time limit concerning the movement of third-country
15 SN 509/1/95, 1 Sep. 1995, p. 24.

16 Doc. SN 520/95, 5 Dec. 1995.
17 CONF 3860/1/96, 17 June 1996, p. 17.
18 CONF/3912/96, 18 Sept. 1996. See also the Irish Presidency paper of the same date
(CONF/3908/96, which raised general questions about JHA matters for discussion.
23
Steve Peers
nationals on Member States’ territory. The phrase “freedom to travel” would not
have been used either.
As for asylum and immigration, Article C of this initial proposal is clearly
comparable to the current Article 63 EC. The “Dublin” power would have been
the same as the current power in Article 63(1)(a), but the other asylum powers
would have been worded differently than the current powers, comprising powers
over “the basic rules on the right of asylum”, “the procedure for granting ref-
ugee status”, “the conditions under which asylum-seekers are received”, “the
rights of nationals of third countries who cannot be sent back to their country
of origin” (in place of any reference to temporary or subsidiary protection) and
“measures directed towards an even balance of effort, between Member States,
to receive asylum seekers”. The immigration powers (which, like the other
powers, would also have been subject to deadlines to adopt legislation) would
have comprised:19
– the harmonization of conditions of entry and residence, and of procedures
for the issue by Member States and residence permits, including those for
the purpose of family reunion;20
– measures to combat illegal immigration and illegal residence on the territory
of the Member States, by nationals of third countries, including the expulsion
of illegal immigrants and their readmission to the third country of origin or
transit;21
– the rights of nationals of third countries who are legally resident, including
their rights in other Member States.22
However, this text left the role of the institutions (including the Court of Jus-
tice), and the deadlines to adopt legislation, for later discussion.
The consolidated text of Treaty amendments suggested by the Irish Council
Presidency at the end of its term in December 1996 still left the Title IV insti-
tutional issues open, although the Council Presidency did suggest deadlines by
which the Council would have to take decisions: one year for measures on visas
and borders, and two years for asylum and immigration matters, except for the
rights of legally resident third-country nationals and their movement between
19 Provisions which would have constituted additions to the current Articles 63(3) and
(4) are in italics. Deletions are noted in the footnotes.
20 Compared to the current Article 63(3)(a) EC, there would have been an objective of
harmonisation and no reference to long-stay visas.
21 The final phrase was replaced by “repatriation of illegal residents” in the final text
of Article 63(3)(b).
22 Compare with the current Article 63(4), concerning “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.”
24
Member States (three years).23 The Irish also made reference to a potential
restriction on the role of the Court of Justice for “workload” reasons, without
suggesting any detail.
However, this Presidency text did amend the provisions concerning pro-
posed EC competence in detail, with these provisions more closely resembling
their final versions. In particular, the visa powers were now limited (as in the
current Treaty) to visas for “intended stays of no more than three months”,
and the power over conditions and procedures for issuing visas had reached its
final form, although there was no power over a “uniform visa” added yet. The
“freedom to travel” power had evolved so that it only applied for a period of “no
more than three months”, and was restricted to non-residents; the words “free
movement” were now used, but not yet “freedom to travel”. As for asylum, the
refugee powers had been revised to include powers over “standards” on recep-
tion conditions for asylum-seekers, “common rules” on “qualification” of refu-
gees, and “standards” on procedures; and from this point on, the powers over
qualification and responsibility were restricted in scope to third-country nation-
als only. A separate paragraph now dealt with temporary and subsidiary pro-
tection and burden-sharing, although the former issue was still expressed more
generally as “the rights of displaced persons from third countries who cannot be
sent back to their country of origin”. The immigration admission powers now
included powers over long-stay visas, the power over irregular migration now
referred to “return” rather than expulsion or readmission, and the powers over
residents now referred to “their right of establishment and their right to seek
employment in other Member States”. A power over administrative cooperation
was added.
The Conference soon began to discuss institutional issues. An early text
submitted by the Dutch Council Presidency left the provisions on competence
alone (except for the addition of the “emergency” power found in the current
Article 64(1) EC), took out the deadlines for action for later discussion, and
suggested that the general decision-making rule should be qualified majority
voting (with the role of the European Parliament to be determined), following
an undetermined transitional period during which proposals would be adopted
by a unanimous vote, with a shared right of initiative between the Commission
and Member States and the EP’s role still left open.24 The transitional decision-
making rules would not apply to the two visa issues already subject to the “Com-
munity method” following Maastricht, or to customs cooperation (which was
later moved out of the draft Title IV altogether). As for the Court of Justice, in
view of the “large number” of expected cases, the Council Presidency listed four
options. First, the number of preliminary rulings could be limited, by making
them optional or restricting them to final courts only. Secondly, the Court of
23 CONF/2500/96, 5 Dec. 1996.

24 Doc. 3823/97, 19 Feb. 1997.
25
Steve Peers
Justice could be allowed to filter requests coming from national courts. Thirdly,
there could be provisions ensuring quick proceedings, by means of sending all
cases to chambers of the Court or providing for accelerated proceedings. Finally,
there could be power for the Court to rule where national rulings conflict.
By late March 1997, following intensive negotiations, the IGC texts resem-
bled the final Treaty very closely.25 The negotiators had settled on the five-year
deadline to take Title IV decisions, with the three exceptions from that dead-
line,26 that was confirmed in the final version. But at this stage, this deadline
was not matched by a five-year transitional period for the institutions. In fact,
from this point until the very end of the negotiations, the drafts contemplated a
three-year transition period with unanimous voting, a shared right of initiative
and consultation of the EP. In this draft, the only immediate exceptions related
to the two visa matters previously covered by Article 100c EC (the visa list and
visa format) and to rules on a uniform visa, which would be subject to qualified
majority voting, EP consultation and a Commission monopoly on initiative right
away. Following the end of the three-year period, the normal EC method would
apply to all matters (although the EP’s role had yet to be determined) except for
measures relating to burden-sharing of refugees and residence of third-country
nationals in other Member States (the final Article 63(2)(b) and 63(4)). Also, the
Council Presidency had not yet tabled a text relating to the Court of Justice.
At this stage, the provisions on competence closely resembled the final text.
A power concerning rules on a uniform visa was added; the “freedom to travel”
power gained its proper name and was extended in scope to all third-country
nationals, not just non-residents; the powers on reception conditions and asylum
procedures were now confined to “minimum standards” (although the “quali-
fications” provision would still have conferred the power to adopt “common
rules”); the explicit reference to temporary protection and implicit reference to
subsidiary protection (“persons who otherwise need international protection”)
had been added; the legal admissions power no longer concerned “harmonisa-
tion”, although the powers over both legal and irregular migration were termed
“approximation” powers; the power over irregular migration was truncated so
that it concerned only “combating illegal immigration and illegal residence”;
and the power over long-term residents now only referred to their residence and
access to employment in other Member States.
In a draft from 15 May 1997,27 the Council Presidency maintained essen-
tially the same proposals on the institutions, although by this point it had given
25 SN 2017/1/97 REV 1, date unknown. See also an unnumbered and undated docu-
ment, published in European Report, 26 Mar. 1997, which contains identical provi-
sions.
26 Art. 63(2)(b), 63(3)(a) and 63(4), concerning asylum burden-sharing and legal
migration.
27 SN 2555/97.
26
up the suggestion that more communautaire procedures apply immediately to

rules concerning a uniform visa. It also suggested a text on the role of the Court
of Justice, according to which no preliminary rulings would be possible. Rather
the Member States, the Commission (but not the Council) and Member States’
final courts or tribunals would be able to send the Court a “request for inter-
pretation” that would not affect judgments that were res judicata. At this point,
the competence over qualification as a refugee had been truncated to “minimum
standards” powers only.
By the end of May, the Council Presidency had suggested two further excep-
tions to the move to the normal EC method after the transition: initial migration
of third-country nationals and civil law (the final Articles 63(3)(a) and 65).28 In
addition, the proposal on the Court was amended to provide for preliminary
rulings, obliging final courts to refer if it was necessary to give judgements, leav-
ing the Commission and the Member States (but still not the Council) the power
to send requests for interpretation. The competence clauses were amended so
that the immigration powers no longer concerned “approximation”, the powers
over irregular migration again included “repatriation of illegal residents”, and
the powers over resident third-country nationals no longer referred to access to
employment.
Therefore, it was only in the final stages of negotiation that the remaining
aspects of Articles 67 and 68 EC were agreed: the five-year transitional period
with no automatic transition to QMV and co-decision at that point, except
(presumably as a compromise with the more communautaire Member States) as
regards the automatic monopoly of initiative for the Commission and the auto-
matic switch to QMV and co-decision as regards the rules on visa procedures
and conditions and on the rules on a uniform visa. The “security” restriction
on the Court’s jurisdiction, in Article 68(2), and the power for the Council to
send a “request for interpretation” to the Court of Justice were also added at
this late stage. Furthermore, the obligation for the Council to amend both the
decision-making and judicial rules after the five-year transitional period was
inserted at this very last stage of negotiations, doubtless again at the insistence
of the more communautaire Member States. At least the final text of Article 67
made clear that any future changes would entail co-decision powers for the EP,
a point left open by the negotiators throughout all the earlier texts. Lastly, in the
final stages of the negotiations, the Protocols on the UK, Irish and Danish opt-
outs from Title IV and the UK and Irish opt-outs from border control abolition
28 SN 600/97, 30 May 1997.
27
Steve Peers
were negotiated,29 and a final limitation on the EC’s immigration powers was
added.30
It should be stressed that none of the drafts discussed during the Treaty of
Amsterdam negotiations suggested amending the substantive aspects of Articles
42, 49, 137 or 310 EC, which to some extent govern the status of third-country
nationals as regards social security, provision of services, conditions of employ-
ment and association agreements,31 although the clause on conditions of employ-
ment was inserted into the general social policy provisions of the Treaty with the
abolition of the separate Protocol on Social Policy. In practice, this meant only
that the UK would be covered by these powers. Also, the drafts of the Treaty
suggesting an extension of the EC’s commercial policy powers to cover more
aspects of services and intellectual property expressly excluded the entry and
stay of third-country nationals from that power, provided that such measures
“are not applied in a manner which frustrates international obligations entered
into by the Community”.32 Ultimately, the negotiators agreed on a new Article
133(5) EC, which made any extension of the Community’s commercial policy to
include additional aspects of services and intellectual property dependent upon
a unanimous vote of the Council. This power was never exercised.
4 The Treaty of Nice

It was not obvious at the time of agreeing the Treaty of Amsterdam that the
issue of qualified majority voting would be taken up in future. However, sev-
eral Member States attached a declaration to the Final Act of the Treaty of
Amsterdam, asserting that they would raise the issue in future talks. As a result,
the issue, including in particular the extension of QMV in asylum and immigra-
tion matters, was ultimately considered an “Amsterdam left-over” that had to
form a part of the negotiations on the Treaty of Nice, which took place in an
IGC taking place from February to December 2000. It also became clear that
wherever QMV was extended on legislative matters, the question arose as to
whether to grant “co-decision” powers over the same matters to the European
Parliament.33
29 A draft Protocol on the Schengen acquis had been under discussion since the Italian
Presidency report of June 1996.
30 The final provisions of Article 63, providing that “[m]easures adopted by the Coun-
cil pursuant to points 3 and 4 [of Article 63] 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.”
31 See further Ch. 4.
32 SN 600/97, n. 28 above.
33 On the initial IGC agenda, see “Efficient Institutions After Enlargement: Options
for the Intergovernmental Conference” (Council doc. 13636/99, 7 Dec. 1999).
28
Also, this time around, given the disputes that had arisen in practice follow-
ing the entry into force of the Treaty of Amsterdam concerning the boundary
between Title IV and other provisions, the discussions focussed not only on the
institutional rules within Title IV, but on the relationship between Title IV and
Articles 42 (social security) and 137 (conditions of employment) in particular.
But in contrast, the possibility that the EC’s power over the common commer-
cial policy would cover service provision by third-country nationals was not con-
troversial as such, and the final version of Article 133 as revised by the Treaty of
Nice clearly appears to cover this issue.
The Commission’s detailed submissions at the outset of the IGC that nego-
tiated the Treaty of Nice suggested a complete move to a qualified majority vote
and co-decision for all aspects of Title IV at the end of the five-year period.34
Later Commission communications raised the question of whether the limita-
tions placed upon the Court by Article 68 EC should be dropped,35 and sug-
gested that Article 42 EC should not only be subject to QMV but also extended
to apply to all persons, with the capacity of the Council (acting by QMV with
co-decision for the EP) to extend the social security rules partly or wholly to
legally-resident third-country nationals.36
In the meantime, the Portuguese Council Presidency had submitted the first
discussion papers on the issue of qualified-majority voting. Its first paper on
social policy recommended QMV for conditions of employment for third-coun-
try nationals, on the grounds that this issue should be treated in parallel with the
free movement of Community national workers.37 The Council Presidency also
suggested a move to QMV for Article 42, without raising the issue of personal
scope. A separate paper on JHA matters raised the possibility of an early move
to QMV and co-decision throughout some or all of Title IV once the new Treaty
entered into force, or deciding in advance which parts of Title IV would be sub-
ject to QMV and co-decision after the expiry of the transitional period.38
Six weeks later, the Council Presidency reported that early discussions had
shown a willingness to continue discussing the extension of QMV to Title IV
at technical level.39 A provisional list of Treaty Articles which could be subject
to QMV was duly drawn up,40 including visa matters and all of Articles 63, 65
and 66.41 An initial redraft of Article 42 suggested extending it to self-employed
34 COM (2000) 34, 26 Jan. 2000.

35 COM (2000) 109, 1 March 2000.
36 COM (2000) 114, 14 March 2000.
37 Doc. CONFER/4708/00, 22 Feb. 2000.
38 Doc. CONFER/4710/00, 22 Feb. 2000.
39 Doc. CONFER/4734/00, 4 Apr. 2000.
40 Doc. CONFER/4737/00, 20 Apr. 2000.
41 Note that at this stage, Arts. 62(1), 62(2)(a) and 62(3) were implicitly excluded.
29
Steve Peers
persons, but was silent on the nationality of persons covered, while the pros-
pect of applying QMV for conditions of employment for third-country nation-
als (Article 137) had already been dropped at this early stage. A separate paper
suggested extensions of the EP’s co-decision powers to the existing Article 49
(concerning service provision by third-country nationals) as well as to all the
Title IV Articles which could become subject to QMV.42 Also, an experts’ group
on the Court of Justice had considered the possible abolition of the limits placed
by Article 68, and reported that this idea had received broad support, although
with several reservations.43 The Portuguese Council Presidency concluded by
bringing together all these suggestions for institutional reform, with the addi-
tion of the suggestion that the “legal base” for adopting rules on the conditions
of employment for third-country nationals should be reworded and moved to
Title IV, to become a new Article 63(3)(c) EC.44
It fell to the incoming French Council Presidency to continue discussions.
It suggested that the IGC also consider extending QMV to the rest of Article 62
EC, and suggested that Article 42 should be extended to cover all workers “and
persons treated as such”.45 A note clarified that this ambiguous wording was
intended to extend Article 42 to all persons currently governed by EC legislation
adopted pursuant to Article 308 EC. A subsequent proposal from Austria sug-
gested simply that Article 42 extend to workers and self-employed persons, with
power for the Council (also pursuant to QMV and the co-decision procedure) to
extend the relevant rules to all persons who migrate within the Community.46
The Council Presidency soon submitted to a ministerial meeting a discus-
sion paper and texts concerning all of the possible extensions of QMV still under
discussion.47 The discussion paper asked the ministers if they wanted to move
forward the EC method as regards visa powers, and also whether they wanted to
move the EC method forward as regards other Title IV issues, possibly subject
to a further transition period or continued control of the Council. The accom-
panying texts suggested a complete abolition of the transitional period for Title
IV as regards decision-making, although the nature of the EP’s powers was left
open. However, the abolition of Article 68 was no longer in prospect; instead,
the Council Presidency suggested QMV for adapting the jurisdiction of the
Court in future, although the exercise of this power would no longer be subject
to a deadline. As for Article 42, the Council Presidency suggested that it extend
42 Doc. CONFER/4740/00, 10 May 2000.

43 Doc. CONFER/4747/00, 31 May 2000.
44 Doc. CONFER/4750/00.
45 Doc. CONFER/4767/00, 29 Aug. 2000.
46 Doc. CONFER/4769/00, 11 Sep. 2000.
47 Doc. CONFER/4770/00 and 4770/00 add 1, 14 Sep. 2000.
30
to workers, self-employed persons, students and pensioners, with other persons

potentially added.
This proved to be the high-water mark of the attempts to extend the “Com-
munity method” to Title IV issues. Throughout the remainder of the negotia-
tions, drafts suggested narrower and narrower reforms to Title IV and to Article
42 EC. So the Council Presidency soon indicated that the majority of Member
States would not consider any extension of the co-decision procedure to the
EP except for Treaty Articles which became subject to QMV as a result of the
new Treaty.48 This meant that there was no prospect of extending co-decision to
Article 49 EC. A subsequent revised draft of the QMV provisions at the end of
September began to list possible exceptions from the suggested full and immedi-
ate application of the EC method to Title IV.49 First, Article 66 would only be
subject to consultation with the EP, rather than co-decision. Secondly, the sensi-
tive issues of internal border controls and secondary residence of third-country
nationals (Articles 62(1) and 63(4)), while becoming subject to the sole right of
initiative of the Commission, would remain subject to unanimous voting and
consultation of the EP for five years after the new Treaty entered into force, with
power for the Council to act unanimously to decide on a shift to QMV at that
point. However, all other measures would still immediately have been subjected
to co-decision. In mid-October, a redraft of the amendments to Article 42 left
open the possibility that this Article would be expressly limited to EC nationals.50
At that time, the idea of moving the conditions of employment of third-country
nationals into Title IV was also dropped. Then at end October, Article 67 was
redrafted again, adding all asylum law (except for temporary and subsidiary
protection) and initial immigration by third country nationals (Article 63(3)(a))
to the list of measures which would remain subject to unanimous voting and
consultation of the EP, until such time as the Council (no longer subject to any
time-limit) subjected itself to QMV and co-decision.51 The Council would still
have power to amend the Court of Justice’s powers by QMV, except for any
changes to the restriction set out in Article 68(2), which would have to be agreed
unanimously.
By early November, when the Council Presidency first compiled all texts
under discussion, the proposals had narrowed in scope again.52 Any changes to
the Court’s role in Title IV would now have to be agreed by a unanimous vote, as
before, but with no obligation for the Council to adopt changes; this would have
been a deterioration compared to the situation following the Treaty of Amster-
48 Doc. CONFER/4771/00, 20 Sep. 2000.

49 Doc. CONFER/4776/00, 28 Sep. 2000.
50 Doc. CONFER/4784/00, 18 Oct. 2000.
51 Doc. CONFER/4789/00, 26 Oct. 2000.
52 Summary (doc. CONFER/4790/00, 3 Nov. 2000).
31
Steve Peers
dam. However, in this draft, the Council would be compelled to make changes
to the decision-making concerning the sectors “excluded” from the “normal”
EC decision-making process before 1 June 2004. The suggested redraft of Article
42 distinguished between EU national workers, self-employed persons and stu-
dents, along with third-country nationals covered by treaties, refugees and state-
less persons on the one hand, who would be covered by QMV and co-decision,
and everyone else on the other hand, where measures would be subject to unani-
mous voting and consultation of the EP. This was the first of several attempts
to draw a distinction between the existing social security rules, which would be
subject to QMV, and any extension of those rules, which would not.
Within a week, the options narrowed again. Although asylum measures
(apart from burden-sharing) were restored to the group of “non-sensitive” mea-
sures which would immediately be governed by the normal EC method, the
Council Presidency suggested for the first time that further amendments to be
made to Article 67 in future by the Council (now before 1 May 2004) should
be spelled out in the form of a Declaration – an approach that was to prove
appealing to the negotiators.53 Indeed, the Council Presidency noted that such
a Declaration could be agreed in place of any amendment to Article 67. Simul-
taneously, as regards Article 42, the Council Presidency suggested that while
stateless persons and refugees should remain within the “core” group of persons
whose social security rights could be adopted by QMV, social security for all
other third-country nationals should be moved expressly to Article 63(4).54 A
week later,55 the Council Presidency’s note to ministers now suggested three pos-
sible approaches to reform of Article 67: an immediate move to the normal EC
method, as set out in the texts previously under discussion (which the Presidency
cautioned would not likely prove satisfactory); an automatic move to the full EC
method from 1 May 2004; or a Declaration regarding the Council Decision to be
taken by 1 May 2004. Alternatively, a combination of the three options could be
agreed. This note suggested that QMV should only apply to the persons covered
by Article 42 when the Treaty of Nice entered into force; any extension would
require a unanimous vote and consultation. The idea of amending Article 63(4)
was dropped.
Another week passed, and options were narrowing further still. The Coun-
cil Presidency now spelled out two options regarding Article 67. The first option
maintained the prior approach of an automatic early move to the normal EC
53 Doc. CONFER/4795/00, 9 Nov. 2000.

54 The “included” groups would have been spelled out in a Protocol, which the Council
could have amended unanimously. This proposal was sloppily drafted, as the pro-
posed amendment to Art. 63(4) would not have expressly exempted stateless persons
and refugees from its scope, and it is not clear whether amendments to the Protocol
could have brought other third-country nationals within the scope of Art. 42.
55 Doc. CONFER/4800/00, 16 Nov. 2000.
32
method, with a note added regarding reservations about extending the EC

method to family law. The second option would in effect have simply maintained
the rules set in place by the existing Article 67, except that Article 66 would
have moved immediately to QMV, consultation of the EP, and Commission sole
initiative; changes to the ECJ rules would not have been subject to a deadline;
and a Declaration would have urged the Council to agree a move to QMV as
regards external borders, short-term free movement, asylum (except burden-
sharing), irregular migration and civil law (again with a note on family law) on 1
May 2004. As for Article 42, QMV would apply to free movement of “persons”
governed by existing rules, but any further extension to “other citizens of the
Union” would be subject to consultation of the EP and unanimity in the Coun-
cil. So there would be no express provision anywhere dealing with extension to
third-country nationals, and moreover the text wrongly suggested that no third-
country nationals were covered presently.56 Soon after, the Council Presidency
proposed a final narrowing of Option 2, whereby the present Article 67 would
have remained exactly the same; even Article 66 would not become subject to
QMV until the later Decision by the Council.57
At Nice, the heads of state and government were unable to agree on any
amendment to Article 42 EC, given the implacable opposition of the UK to
any form of compromise. As a result the Treaty of Nice did not offer any clarity
on the personal scope of Article 42, since this Treaty Article was not amended
in any way.58 For Article 67, the result was a compromise comprising three ele-
ments, as the French Presidency had suggested: immediate movement to the EC
method for Article 65, except for family law; conditional early movement to the
EC method for asylum law, except for burden sharing; a Declaration concerning
a move to QMV and co-decision from May 2004 for Articles 62(2)(a), 62(3) and
63(3)(b) (concerning external borders, freedom to travel and irregular migra-
tion); and a Protocol requiring a shift to QMV and consultation of the EP from
1 May 2004 as regards Article 66 EC (administrative cooperation).
5 Developments in 2004
The Title IV transitional period ended on 1 May 2004, with no decision to
change the Title IV decision-making rules or to adapt the provisions relating to
the Court of Justice. However, the end of the transitional period did have the
immediate impact of imposing a Commission monopoly on making propos-
als, QMV and co-decision of the EP on visa rules, and QMV with consultation
of the EP on administrative cooperation issues. The former change meant that
any initiatives by Member States outstanding as of 1 May 2004 would lapse on
56 Doc. CONFER/4810/00, 23 Nov. 2000.

57 See Docs. CONFER/4816/00, 6 Dec. 2000 and CONFER/4815/00, 30 Nov. 2000.
58 For subsequent developments on this issue, see Chapter 4.
33
Steve Peers
that date, so there was a rush to adopt several such initiatives by the deadline.59
Several others lapsed.60 Furthermore, in view of the deadline, Member States
stopped making Title IV proposals after July 2003.61
The question of changing the decision-making and jurisdictional rules
pursuant to Article 67(2) EC was soon raised as part of discussions on the
new multi-annual JHA programme. This was adopted in November 2004, and
became known as the Hague Programme.62 It called for the Council to apply
Article 67(2), in order to adopt a Decision changing the decision-making rules
to QMV and co-decision for the adoption of all asylum and immigration mea-
sures not already subject to QMV, with the exception of legal migration matters.
A Decision to this end was duly adopted in December 2004, and took effect
from 1 January 2005.63 At this point, measures concerning internal border aboli-
tion, external border control, freedom to travel, burden-sharing and irregular
migration became subject to QMV and co-decision. The adoption of imple-
menting measures concerning the Common Consular Instructions and the Bor-
ders Manual also became subject to QMV, rather than unanimity.64
This leaves decisions concerning legal migration subject to unanimity in
Council and consultation of the EP. The adoption of the asylum procedures
directive was also still subject to the same procedure; but following the adoption
of that Directive on 1 December 2005, Article 67(5) EC now entails the adop-
59 The following measures, based on Member States’ initiatives, were adopted between
1 Jan. 2004 and 30 April 2004: Reg. 377/2004 on immigration liaison officers’ net-
work (OJ 2004 L 64/1); Reg. 378/2004 on amending the Sirene manual (OJ 2004 L
64/5); Reg. 871/2004 on future functionalities for the SIS (OJ 2004 L 162/29); Direc-
tive 2004/82 on transmitting passenger information by carriers (OJ 2004 L 261/24);
a Decision on joint expulsion flights (OJ 2004 L 261/28); and a Decision on signs
at border crossing points (OJ 2004 L 261/119). Indeed, the last three measures were
adopted on the last possible date (29 April 2004).
60 The lapsed initiatives were: an Austrian initiative for a Regulation on safe third
countries (OJ 2003 C 17/6); a Finnish initiative for Regulation on airport transit
visas (Council doc. 10867/99, 9 Sep. 1999); a Portuguese initiative for a Regulation
on freedom to travel for non-visa nationals after three months (OJ 2000 C 164/6);
a Finnish initiative for Regulation on readmission of third-country nationals as
between Member States (“internal readmission”) (OJ 1999 C 353/6); and a German
initiative for Decision on illegal immigration networks (Council doc. 13165/1/00).
61 The final initiatives by a Member State were two Italian proposals (OJ 2003 L 223/3
and /5).
62 OJ 2005 C 53.
63 OJ 2004 L 396/45.
64 For more on the implementation of the Decision, see Ch. 3. For an overview of
the background and impact of this Decision, see Peers, “Transforming Decision-
Making on EC Immigration and Asylum Law”, 33 ELRev. (2005) 283.
34
tion of all future asylum measures by QMV and co-decision.65 Also, the Coun-
cil did not adopt a Decision amending the jurisdiction of the Court of Justice,
although the Treaty legally obliges it to do so.66 This issue will be addressed by a
Commission proposal due in 2006, according to the Hague Programme and its
implementation plan.67
6 Constitutional Treaty
The EU’s draft Constitutional Treaty was initially negotiated within the frame-
work of a Constitutional Convention, made up of delegates from national gov-
ernments and parliaments and EU institutions, held from February 2002 to July
2003. Immigration and asylum issues fell within the scope of one of the eleven
working groups specialising in particular issues on the agenda. This Working
Group (Working Group X) took evidence from various national and EU offi-
cials, and ultimately suggested sweeping amendments to various aspects of the
EU rules concerning justice and home affairs cooperation.
An initial working paper framed a number of questions concerning the
development of EU immigration and asylum law.68 There were three basic ques-
tions: should Article 63 EC be redrafted to give effect to the Tampere objective
of a developing common European policy on asylum, rather than minimum
standards only? Should co-decision and QMV in the Council extend beyond the
agreements reached during the Treaty of Nice negotiations? Should the principle
of “solidarity” extend to all areas of immigration, asylum and border control?
As regards migration, the working paper asked if it was appropriate to limit the
scope of the policy with a view to facilitating agreement on extension of QMV
and co-decision.
A separate section on external borders raised several questions: should there
be a simplified provision on EU powers over visas? Should this provision cover
other forms of cooperation (training, cooperation, exchange of information,
financial solidarity)? It appeared from discussions within the working group that
the idea of creating a European border guard was “for the long term”. In the
meantime, the questions were whether it was appropriate for the EU to comple-
ment Member States’ needs, and whether there was a need for joint teams of
different Member States’ officials. The working paper was very critical of the
limits on the Court of Justice jurisdiction in this area, raising the question as to
whether the working group would consider whether the general rules on jurisdic-
tion of the Court of Justice should become applicable.
65 See Ch. 3. On the substance of the Directive, see Ch. 14.

66 For details of this argument, see Peers, “The EU judicial system and EC immigra-
tion and asylum law”, forthcoming.
67 Point 3.1 of the Hague Programme (n. 62 above) and point 1.3 of the implementa-
tion plan, adopted by the Council in June 2005 (OJ 2005 C 198/1).
68 Working document 5 of Working Group X, 6 Nov. 2002.
35
Steve Peers
A subsequent paper from the JHA Commissioner set out the Commission’s
view at length,69 arguing for a wider scope of asylum powers (specifically on
external matters), after observing that “[i]nevitably the degree of ambition
expressed in the initial Commission proposals has been reduced in the process of
negotiation”. On the issue of immigration, the Commission interpreted the cur-
rent Treaty powers broadly, but noting that Member States alone should retain
competence over certain issues, including the acquisition of national citizenship.
Again it was noted that “once discussion begins in the Council”, there was “a
lowering of the degree of ambition by comparison with the Commission’s pro-
posal”. The Commissioner made specific mention of the importance of continu-
ing “the objective of ensuring fair treatment of third-country nationals” who
were legally resident, and so argued for “supplementing the existing provision
to allow the adoption of measures covering a wider range of rights for third-
country nationals”. There should be a “[p]articular priority” for “the right to
fully participate in political life at local level”. On the subject of integration of
third-country nationals, the best level to address the issue was local, regional or
national, but “there is a strong case for a specific Treaty base allowing Union
level action where this can genuinely add value”, such as exchange of informa-
tion on best practice. In conclusion, the Commission argued that even though
the current powers are broad, the current Treaty “does not fully acknowlege the
notion of a common European immigration policy as an autonomous objective
that justifies the taking of measures towards its construction”. So the Constitu-
tion should provide “a general provision allowing the adoption of all measures
needed to put in place a common immigration policy, including measures on
illegal immigration and illegal residence”; the Commission took the view that
“it remains particularly important that criminal law measures remain part of the
tool-kit for fighting illegal immigration” and trafficking in persons.
As for visas and border controls, the Commission interpreted the current
powers to mean that the Treaty “provides the potential for full harmonisation
of both substantive and procedural law at Union level in all of the areas set out
in Article 62 EC”. Nonetheless, there should be an express Treaty provision on
the creation of a system of integrated border management. Also, “the politi-
cal objective of a common visa policy should be clearly written into the new
Treaty”, replacing the reference to four separate visa powers as at present with a
power to adopt “all measures needed for the common visa policy”.
The Commission made a case for a general move to qualified majority
voting and co-decision in the area of immigration and asylum, stating that una-
nimity in the Council “is one of the factors which has led to the greatest difficul-
ties in the adoption of measures”, and arguing that “[e]ven where the will to act
has been made clear at the highest levels, individual Member States have used
their power to postpone and block the adoption of measures, forcing last minute
36
compromises and derogations which have a detrimental effect on the ambition

and coherence of the measures concerned”. Furthermore, co-decision with the
EP should apply to all legislative measures, “to ensure the democratic legitimacy
of the action taken”. However, unanimity might be retained for the creation of
a European border guard. Finally, as regards the Court of Justice, the Commis-
sion argued that given the power to set up special “judicial panels” pursuant to
Article 225a (introduced by the Treaty of Nice), it should not be necessary to
limit references for preliminary rulings to the final courts of Member States in
future. The other specific rules relating to the Court in Article 68 EC should be
abolished, as they had either fallen in desuetude (Article 68(3), on “requests for
interpretation”) or limited the Court’s powers too much, given the importance
of the issue (Article 68(2), concerning decisions on internal border crossing).
The subsequent draft final report of the group drew heavily upon the Com-
mission’s analysis.70 It argued that unanimity in Council had jeopardised the
deadline for adopting asylum measures and would jeopardise the objective of
agreeing a Common European Asylum System, particularly after enlargement.
Furthermore the wording of the asylum provisions of the Treaty was outdated.
Therefore the Treaty should provide for QMV and co-decision in all areas,
should provide a legal base for a “common” policy on refugees and asylum,
including “modernised protection” in addition the Geneva Convention, along
with providing for “full respect for” that Convention; and should provide for
“solidarity” in all aspects of asylum, immigration and borders. On immigration,
the working group agreed with the analysis that current powers are broad, but
“the Member States will in practice, according to a generally shared understand-
ing, remain responsible for the volumes of admission of third-country nationals
and for their integration into the host country”. The EU could add value to
national integration policy without adopting legislation, and it was understood
that powers over “illegal” immigration include criminal aspects. So the group
had not discussed substantive changes to the EC’s immigration powers, except
to call for QMV and co-decision for these issues.
The EC’s visa powers should be replaced by a single provision conferring
power on all aspects of visa policy, while a special legal base should be created
concerning management of external borders, possibly including the longer-term
prospect of an EU border guard. Finally, the draft report argued that the general
rules on the Court of Justice’s jurisdiction should apply, and that any increased
workload could be addressed by the Treaty of Nice provisions on reform of the
Court’s functioning.
The next draft and the final version of the working group report made some
changes to the conclusions on immigration and asylum.71 On migration, the

71 See respectively Working document 18 rev 1 of Working Group X, 26 Nov. 2002,
and Conv 426/02, 2 Dec. 2002.
37
Steve Peers
final report included a reference to readmission agreements (stating that their

negotiation “has proved more effective when conducted at Union level than by
Member States individually”), and called for a reference to the objective of a
common immigration policy in the Treaty, along with a provision on assistance
for national integration policies. It was noted that some members of the work-
ing group wanted to add provisions concerning EU powers to adopt measures
concerning the rights of third-country nationals in their first Member State of
residence. A footnote also specified that the issue of social security for third-
country nationals would be dealt with in the context of social policy.
The report of the social policy working group (Working Group XI) was
issued subsequently.72 This report noted that some of its members believed that
the current Article 42 EC, concerning social security coordination for workers,
should be extended to cover all citizens and residents (presumably including
third-country nationals).73 Most members of that group also wanted QMV in
Council to apply to Article 42 EC,74 and the group recommended that the cur-
rent social policy power concerning conditions of employment of third-country
nationals should be moved to the immigration provisions of the Treaty (where it
would be subject to QMV and co-decision, along with other immigration mea-
sures in future).75
The next step in the Convention proceedings was the proposals of the Con-
vention Presidium for Treaty text to give effect to the proposals of the JHA
working group.76 This text proposed a revised clause on visa and border control
powers,77 which would amend the existing Article 62 EC by adding a specific
power over “any measure necessary for the gradual establishment of a common
integrated management system for external borders”, distill the current visa
powers into a single, clearly non-exhaustive power to regulate short stays (“con-
ditions of entry for a short stay for nationals of third States, including the visa
requirement and exemption from this requirement, the rules, procedures and
conditions of issue of permits for crossing external borders, and the uniform
format for such permits”) and broaden powers over freedom to travel so that
they covered travel “for a short period” (the current powers cover travel only
for periods of “no more than three months”). The current powers over exter-
nal border controls and abolition of internal border controls would be retained
72 Final report of Working Group XI, Conv 516/1/03, 4 Feb. 2003.

73 On the scope of the current Art. 42, see Chs. 4 and 23.
74 At present, the decision-making rule is unanimity in the Council with co-decision of
the EP.
75 On the scope of the current power in Art. 137 EC, see particularly Ch. 4. This
would also have entailed that the UK, Danish and Irish opt-outs would apply to this
power.
76 Conv. 614/03, 14 Mar. 2003.
77 Art. 10 of the proposal.
38
without essential changes. These measures would be subject to the normal leg-
islative procedure (QMV in Council and co-decision of the EP). The changes
to the freedom to travel power had not been discussed in the working group,
and were presumably suggested in order to settle certain practical difficulties
agreeing legislation on the basis of the current powers, given that some non-EU
countries want to retain the possibility for their citizens to stay for up to three
months in each Schengen State (so for more than three months in the entire
Schengen area).78
Next, asylum and immigration would be subject to separate clauses. The
asylum clause would provide first of all that:79
1. The Union shall develop a common policy on asylum and temporary

protection with a view to offering appropriate status to any third-coun-
try national requiring international protection and ensuring compliance
with the principle of non-refoulement. This policy must be in accordance
with the Geneva Convention of 28 July 1951 and the Protocol of 31 Janu-
ary 1967 relating to the status of refugees and other relevant treaties.
A series of powers were then listed:
2. For this purpose, the European Parliament and the Council, in accor-
dance with the legislative procedure, shall adopt laws or framework laws
to establish a common European asylum system comprising:
– a uniform status of asylum for nationals of third countries, valid
throughout the Union;
– a uniform status of subsidiary protection for nationals of third
countries who, without obtaining European asylum, are in need of
international protection;
– a uniform status of temporary protection for displaced persons in
the event of a massive inflow;
– a common procedure for the granting and withdrawing of asylum
status or subsidiary or temporary protection status;
– criteria and mechanisms for determining which Member State is
responsible for considering an application for asylum or subsidiary
protection;
– standards concerning the reception of applicants for asylum or sub-
sidiary or temporary protection.
78 On the details of this issue, see Peers, EU Justice and Home Affairs Law, 2nd edition
(forthcoming, OUP, 2006), Ch. 3.
39
Steve Peers
A third paragraph contained an emergency powers clause, comparable to the

current Article 64(2) of the EC Treaty (which has never been used):
2. In the event of one or more Member States being confronted by an emer-

gency situation characterised by a sudden inflow of nationals of third
countries, the Council, by a qualified majority, may adopt regulations or
decisions comprising provisional measures for the benefit of the Member
State(s) concerned. It shall act on a proposal from the Commission after
consulting the European Parliament.
The proposed new clause differed from the current Article 64(2) in three respects:
the apparent restriction to asylum-related situations; the absence of a temporal
limitation of the emergency measures to a six-month maximum; and the require-
ment to consult the European Parliament.
As for immigration, the proposed new Article would first of all set out the
Union’s objectives:
1. The Union shall develop a common immigration policy aimed at ensur-

ing, at all stages, the efficient management of migration flows, fair treat-
ment 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.
The Union would then have powers to implement the objective:
2. To this end, the European Parliament and the Council, in accordance

with the legislative procedure, shall adopt laws or framework laws in the
following areas:
– 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;
– 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;
– illegal immigration and unauthorised residence, including removal
and repatriation of persons residing without authorisation;
– combating trafficking in persons, in particular women and chil-
dren.
The EU would also be a granted a new express external relations power,

concerning readmission treaties:
40
3. The Union may conclude agreements with third countries for the read-
mission of third-country nationals residing without authorization to
their countries of origin or provenance.
Finally, as proposed by the Working Group, an express power to adopt measures

concerning integration of third-country nationals would be added:
4. The European Parliament and the Council, in accordance with the legis-
lative procedure, may adopt laws or framework laws providing incentives
and support for the action of Member States with a view to promoting
the integration of third-country nationals residing legally in their territo-
ries
Also, the proposed text would abolish all of the provisions limiting the immigra-
tion and asylum jurisdiction of the Court of Justice.80
Subsequently, a number of members of the Convention submitted pro-
posed amendments to the relevant Articles, with some aiming to widen EU
competence, for instance as regards the creation of a European border guard,
and others aiming to restrict it, for instance as regards access to employment.81
Equally, some wished to restrict the extension of QMV in the Council, but some
wished to retain it. The plenary Convention debate on the proposed Articles also
revealed a wide spread of opinion on these issues.82
Ultimately the Convention Presidium proposed a redrafted text of the rel-
evant provisions (as part of a full draft of the main text of the entire Consti-
tutional Treaty).83 The substantive changes made to the text were (as regards
visas and borders) competence to adopt a “common policy on visas and other
short-stay residence permits” in place of a list of the various visa powers, and
the addition of a new paragraph specifiying that this Article “shall not affect the
competence of the Member States concerning the geographical demarcation of
their borders, in accordance with international law.”84 As regards asylum,85 the
revised text referred to a “common system” of temporary protection in place of
a “uniform status”, and also dropped references to temporary protection issues
forming part of the powers over reception conditions and procedures. A specific
new power over the external aspects of asylum was also added, concerning:
80 Art. 9 of the text.

81 See Conv. 644/03, 1 April 2003 and Conv. 644/1/03, 7 May 2003.
82 Summary report of the plenary debate on 3-4 April 2003 (Conv. 677/03, 9 April
2003).
83 Conv. 727/03, 27 May 2003.
84 Art. III-161 of this draft.
41
Steve Peers
(g) partnership and cooperation with third countries for the purpose of man-
aging inflows of people applying for asylum or subsidiary or temporary
protection.
Finally, as regards migration,86 powers over trafficking in persons were at this

point removed, on the grounds that such powers were covered by the EU’s
powers over irregular migration and substantive criminal law harmonization,
and it was specified that the EU’s powers over incentive measures for integra-
tion “exclud[ed] any harmonisation of the laws and regulations of the Member
States”.
In the final weeks of discussions over the more technical part of the Con-
stitutional Treaty (Part III), the power over trafficking in persons was reintro-
duced,87 and more importantly, a new paragraph 5 was added to the immigration
Article in order to overcome “deal-breaking” objections by Germany:88
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.
This last set of amendments to the immigration and asylum provisions was an
important part of the final compromise in the Convention,89 allowing it to reach
agreement on Part III of the Constitutional Treaty.90
The Convention also dealt with the social policy issues addressed by
the social policy working group. Taking account to some extent of the view
of this working group, the Convention’s Presidium initially suggested that the
EC powers over social security for migrant workers (Article 42 EC) and over
conditions of employment for third-country nationals (Article 137 EC) should
become subject to QMV in Council and co-decision with the EP.91 At the same
time, the Presidium also suggested that the current Article 49 EC, governing
the provision of services by self-employed third-country nationals resident in
the EC, should become subject to QMV and co-decision (it is currently subject
to QMV and no role for the EP).92 Subsequently, the Presidium proposed that

87 Conv. 836/03, 27 June 2003.
88 Conv 847/03, 8 July 2003; see the summary report of the plenary session, 4 July 2003
(Conv. 849/03, 14 July 2003).
89 See the summary report of the plenary session, 9-10 July 2003 (Conv. 853/03, 23 July
2003).
90 The final Convention version of the agreed text of the Constitutional Treaty is at OJ
2003 C 169.
91 See Arts. III-18, III-26 and III-99 in Conv. 725/03, 27 May 2003.
92 On the scope of this power, see Ch. 4.
42
the social security powers should be expanded to cover the self-employed, and
dropped its suggestion for changes to the decision-making rules applicable to
any of the social policy powers.93
Subsequently, an Intergovernmental Conference (IGC) was convened in
October 2003 to discuss the Convention’s draft Constitutional Treaty formally.
The IGC collapsed in December 2003, then reconvened in spring 2004 and was
able to agree the text of the Constitutional Treaty in June 2004, following which
the proposed Treaty was signed in October 2004.94 Strikingly, compared to the
previous three rounds of Treaty negotiations, immigration and asylum (includ-
ing the provisions concerning the Court of Justice) were not an issue in the
negotiations. A few Member States expressed misgivings about the Convention’s
draft text on these issues,95 but they did not pursue the issue at the IGC. The
only amendments to the Treaty’s immigration and asylum provisions resulting
from the IGC took the form of technical legal amendments agreed by a work-
ing group of legal experts, who agreed on two revisions worth noting.96 First,
the asylum clause was redrafted to state that the EU’s objectives included a
common policy on subsidiary protection as well as a common policy on asylum
and temporary protection. Second, the provision on irregular migration so that
it defined more precisely who it applied to: “third-country nationals who do not
or who no longer fulfil the conditions for entry, presence or residence in the ter-
ritory of one of the Member States”.
In related areas, in its final stages, the IGC decided to amend the deci-
sion-making procedure relating to social security for migrant workers and self-
employed persons to allow Member States to invoke an “emergency brake” in
order to invoke a veto under certain circumstances.97 A declaration to the Con-
stitutional Treaty stated that in the same circumstances, the interests of Member
States would be duly taken into account following a draft immigration law pro-
posal.98 This declaration appears to assume that the issue of social security for
third-country nationals is within the scope of the immigration law provisions,
not the social security provisions, although it does not state so expressly. The
IGC left alone the Convention’s text concerning the provision of services by
93 The former amendment first appeared in Conv. 836/03 (n. 87 above), as part of the
compromises agreed during the final discussions on Part III of the Constitutional
Treaty; the latter amendment is dated from the second full draft of the Constitu-
tional Treaty (Conv. 802/03, 12 June 2003).
94 The signed text is published at OJ 2004 C 310. For the full text of the immigration
and asylum provisions, see Annex 7.
95 IGC 38/03, 24 Oct. 2003.
96 IGC 50/03, 25 Nov. 2003.
97 See the final Article III-136 of the Constitutional Treaty.
98 Declaration 14 to the Final Act of the Constitutional Treaty.
43
Steve Peers
resident third-country nationals and the conditions of employment of third-

country nationals.99
As for the common commercial policy, the final text of the Constitutional
Treaty would extend the scope of qualified majority voting, remove any prospect
of shared Community competence with Member States in favour of exclusive
Community competence, give the Community power over internal legislation
as regards all aspects of the CCP, and extend the EP’s power over the adoption
of CCP legislation and treaties. This would have an impact on all immigration
issues falling within the scope of the CCP.100
7 Conclusions
It can be seen that, until the Constitutional Treaty negotiations, the Treaty
amendments relating to Title IV have consistently been narrowed in scope during
negotiations. The five-year institutional transition period was extended from the
initial proposed period of three years at the very end of the Amsterdam nego-
tiations, and the attempt to (in effect) return to the initial proposal for a three-
year period failed at Nice, except as regards part of civil law and (conditionally)
asylum law. It appears that the most sensitive issues were consistently second-
ary migration of third-country nationals and burden-sharing, later joined by
abolition of internal border controls, which was not considered sensitive during
the Amsterdam negotiations, and followed closely by initial migration of third-
country nationals. Conversely, the least sensitive matters were consistently been
visa matters, followed by asylum law (apart from burden-sharing), irregular
migration, border controls and short-term free movement, and now joined by
civil law (apart from family law), which had been a more sensitive issue during
the Amsterdam negotiations (perhaps because family law had not yet been sepa-
rated from the rest of civil law). By 2004, the only remaining sensitive issues were
legal migration and family law; but the Constitutional Treaty would even take
legal migration out of the “sensitive” category by protecting Member States’
powers to limit entry to work-seekers from outside the EU.
Similarly, it appears that views on the jurisdiction of the Court of Justice
during negotiations have oscillated between support for the normal EC rules
and even greater movement away from them. The Constitutional Treaty, agreed
by all Member States in June 2004, would require a change to the normal EC
rules, but Member States could not bring themselves a few months later to apply
the normal rules (or even to begin a move toward them).
99 A legal service report had argued that there was an overlap between the EU’s immi-
gration powers and the social policy clause, and suggested either dropping the social
policy clause or indicating that it was lex specialis as compared to the immigration
policy clause (IGC 4/1/03 rev 1, 4 Oct. 2003).
100 For further details, see Peers, n. 14 above, ch. 4.
44
The change of approach to institutional issues which the Constitutional

Treaty entailed is quite striking. Furthermore, it is possible that the decreased
sensitivity of many immigration and asylum issues, leading to the decision to
change the decision-making rules immediately as part of the Hague Programme,
can also be accounted for by the agreement upon the Constitutional Treaty,
since Member States had already accepted a political commitment to change
those rules when they accepted that Treaty. The question is therefore what led to
the change in approach? The likely answer is a combination of the more open
decision-making procedure leading up to the adoption of the Constitutional
Treaty (in particular the involvement of national parliaments and the European
Parliament in Treaty drafting), the difficulties adopting EC legislation in this
area while subject to the rule of unanimity, the criticism of the standards set out
in many of the EC measures which resulted, and Member States’ feeling of reas-
surance because they were still able to control the substantive agenda for future
legislation by means of their veto on the text of the Hague Programme.
45
Chapter 3 The EU Institutions and Title IV
Steve Peers
1 Introduction
It will be seen throughout the substantive chapters of this book that the EU
was still, by the start of 2006, some distance short of the objective of creating
an effective and balanced immigration and asylum policy. To what extent is this
failure a consequence of the institutional framework established by the Treaties?
Certainly it is clear that the “Maastricht era” of formal intergovermentalism from
1993 to 1999 failed to achieve the objectives that Interior Minsters set themselves
in 1991. Indeed almost no binding acts were agreed in the area, in contrast with
the modest results in the areas of civil law, criminal law and policing. In moving
immigration and asylum law from the “third pillar” to the “first pillar” pursuant
to the Treaty of Amsterdam, the Member States were implicitly acknowledging
the failure of the fully intergovernmental approach to these issues. But although
immigration and asylum became matters of Community law, they were subject
to a transitional period of five years in which the “Community method” of a
strong role for the Commission, EP and Court of Justice and qualified majority
voting in the Council was set aside. During this period, it could be said that the
intergovernmental system of decision-making had been abolished de jure for
immigration and asylum law, but de facto intergovernmentalism (the “modified
Community method”) still applied. The position is different as from 1 January
2005 as regards decision-making, but not concerning the first asylum procedures
Directive, the issue of legal migration, or the jurisdiction of the Court of Justice,
all cases where de facto intergovernmentalism still reigns.
This chapter argues that in practice, Member States used the modified Com-
munity method to retain almost unlimited discretion over the development of
EU immigration and asylum law, explaining the delay and difficulties in agreeing
many measures and the relatively low minimum standards in many measures
which have been agreed. Some Member States also used the apparently ambigu-
Steve Peers
ous wording of the powers granted to the Community by Title IV to insist that
some matters are outside the scope of Community law altogether, with the result
that they must be addressed either in the remaining third pillar, where decision-
making is even more intergovernmental, or left entirely to national law. In most
cases, these legal arguments are weak, but since the critics were able to exercise a
veto because the requirement of unanimous voting in the Council allowed them
to prevent the Community from acting in certain important areas.
The inevitable consequence of retaining de facto intergovernmentalism was
that a Community policy going much beyond the lowest common denomina-
tor – which was very low indeed in some areas – could not really develop. This
meant that the Tampere objective of developing an effective and balanced immi-
gration and asylum policy could not be realised.
To demonstrate this, the following chapter examines in turn the Treaty
framework, the existence and extent of the current powers of the EC and the
exercise of those powers in practice since the entry into force of the Treaty of
Amsterdam. The focus is on developments before the changes to the decision-
making rules in most areas that took place in 2004 and 2005, because it is too
early to tell whether those changes will lead to a significant difference in the
content of EC legislation.
2 Creating EC Powers: The Treaty Framework

Prior to the entry into force of the Treaty of Amsterdam, apart from certain
powers over migration and status of third-country nationals conferred upon the
Community by the internal market and social policy provisions of the EC Treaty,1
the EC had express immigration and asylum power only over the issues of visa
lists, visa formats and related emergency decisions. Article 100c EC, inserted by
the Treaty on European Union (Maastricht Treaty), gave the Council power to
adopt measures on these issues by a qualified majority vote following a proposal
from the Commission and consultation of the European Parliament.2 With the
entry into force of the Treaty of Amsterdam, Articles 67 and 68 EC provided
for a system for decision-making, judicial control and territorial scope that was
in part unique and in part unusual in comparison to the rest of Community law.
The central features of the system up until 1 May 2004 were:
a) there was a limited role for the European Parliament (EP), which was merely
consulted on legislative proposals;
1 On the scope of these powers, see further Ch. 4.

2 In fact, there was an initial transition period as regards the visa list, where the Coun-
cil had to act unanimously until 1 January 1996. As regards emergency measures,
according to Art. 100c(2), the Council acted on a recommendation from the Com-
mission, rather than a proposal, which meant that it did not need a unanimous vote
to alter the Commission text (see Art. 250 EC).
48
b) all proposed legislation needed the unanimous support of Member States’

delegations in the Council, with the exception of the measures (the list of
third countries whose nationals do or do not require visas, the format of a
uniform visa and emergency measures) which were already previously sub-
ject to the communautaire provisions of the former Article 100c;3
c) the power to make proposals was shared between the Commission and
Member States, except as regards the same two visa issues subject to quali-
fied majority voting in the Council;
d) while a “final” court in a Member State had to send questions on the inter-
pretation of Title IV or the validity or interpretation of Title IV measures
to the Court of Justice, “if it considers that a decision on a question is nec-
essary to enable it to give judgment”, there was no power for lower courts
or tribunals to do so; also the Court of Justice had no “jurisdiction to rule
on any measure or decision taken pursuant to Article 62(1) relating to the
maintenance of law and order and the safeguarding of internal security”,
and the Council, Commission or a Member State could request the Court
to give its interpretation of Title IV or any measure adopted pursuant to
it;
e) the UK and Ireland had a Protocol allowing them, deciding separately, to
opt in or opt out of any Title IV measure, along with a Protocol permit-
ting them to apply to participate in the “Schengen acquis” and a Protocol
preserving the effect of border controls as between the UK and Ireland on
the one hand and other Member States on the other;
f) Denmark was subject to a Protocol which does not permit it to opt in to
individual Title IV measures, with the exception of measures relating to
the list of third countries whose nationals require visas and the format of
a uniform visa; Denmark could also agree to apply individual measures
building on the Schengen acquis within six months of their adoption, but
those measures would only apply as “international law” in Denmark.
As we shall see below, the first three of these six features changed as from 1
May 2004, and the first two features have changed again since, but the other
three have remained intact. Compared to the rest of the EC Treaty, the first two
features were merely unusual, as there were (and are) still other cases in which
the EP is merely consulted on legislation or on which the Council votes unani-
3 However, the power to adopt emergency measures, now in Art. 64 EC, is now
broader (see further Ch. 8), and the Commission had more power from the outset
of the Treaty of Amsterdam because the Council had to act on a proposal from the
Commission, so it would need a unanimous vote to alter the Commission’s text (see
ibid.).
49
Steve Peers
mously.4 But the other two institutional features were unique, as there was (and
is) no other part of the EC Treaty where the Commission shared its monopoly
on proposing legislation (leaving aside rules on the functioning of EC institu-
tions or other EC bodies) or where the Court’s power to receive references from
all courts or tribunals was limited.5 Similarly, as regards the two limitations on
the territorial scope of Title IV, there are no “opt-outs” elsewhere in the EC
Treaty identical to those for the UK, Ireland and Denmark as regards Title IV
of the Treaty, although there are “opt-outs” for the UK and Denmark relating
to monetary union.
However, the institutional features of the system applied in principle only
for a transition period lasting five years, expiring on May 1, 2004. After that
point, the first unique institutional feature terminated: only the Commission is
able to propose Title IV measures. The two unusual institutional features were
moderated, as there was an automatic shift to qualified majority voting and the
co-decision procedure as regards the conditions for obtaining a visa and the
rules for a uniform visa. However, any further change in those two features, and
any change in the jurisdiction of the Court, was subject to a decision which the
Council “shall” take, acting unanimously, after the five-year transition period,
according to Article 67(2) EC.
It follows that during the transition period, Title IV was entirely different
from other parts of the EC Treaty as regards its territorial scope, judicial control
and the role of the Commission, and largely different from the rest of the Treaty
as regards the role of the Council and EP.
The Treaty of Nice, which entered into force on 1 February 2003, brought
three further changes. First of all, a new Article 67(5) EC moved civil law (except
for “aspects relating to family law”) and asylum measures (except for burden-
sharing) to the procedure of Article 251 EC, which entails a qualified majority
vote (QMV) in the Council, co-decision of the EP and a monopoly over making
proposals for the Commission. However, for asylum measures, this was subject
to prior agreement on “Community legislation defining the common rules and
basic principles governing these issues”. Leaving aside the distinction between
family law and other civil law measures, this change is legally ambiguous, and is
considered in more detail below.6 Secondly, a new Protocol attached to the EC
Treaty subjected Article 66 EC (concerning cooperation between Member States’
authorities and those authorities and the Commission) to qualified majority
voting in the Council and consultation of the EP from 1 May 2004.
4 For example, the EP is still only consulted on agricultural and fisheries measures
(Art. 37 EC) and the Council still votes unanimously on indirect tax measures (Art.
93 EC).
5 The other two rules applied to the Court by Article 68 EC are also unique in the EC
Treaty.
6 See s. 3.3.
50
Thirdly, Declaration 5 attached to the Final Act of the Treaty of Nice set
out a political commitment: the decision which the Council must take pursuant
to Article 67(2) EC would from 1 May 2004 apply the co-decision procedure
and qualified majority voting to short-term freedom to travel for third-country
nationals and irregular migration, and will apply the same procedure to mea-
sures on external border controls dependent upon prior agreement between
the UK and Spain regarding Gibraltar. The Declaration also stated that the
Council “will…endeavour” to apply the co-decision procedure “applicable from
1 May 2004 to the other areas covered by Title IV or parts of them”. Also, in the
absence of any amendment to Article 67(2), the Council was (and is) still obliged
by that provision to adapt the role of the Court after 1 May 2004.
During the autumn of 2004, the negotiations on the “Hague Programme”
for the future of JHA law adopted by the European Council on 5 November
2004 called upon the Council to change the decision-making rules as regards all
immigration and asylum issues not yet subject to QMV, by 1 April 2005 at the
latest, to QMV and co-decision, with the exception of measures on legal immi-
gration and most asylum measures, which remained subject to Article 67(5).7
On the other hand, the Dutch Presidency of the Council has rejected any move
to change the jurisdiction of the Court of Justice, on the grounds that “at the
moment the Court’s workload would not allow for treatment of asylum cases
within acceptable delays”.8 The Hague Programme does state that “in the per-
spective of the future Constitutional Treaty, thought should be given to setting
up a more formal solution to handle requests for preliminary rulings concerning
the area of freedom, security and justice, in particular by amending the Statute
of the Court . The Commission is invited to come forward – after consultation
of the Court of Justice – with a proposal to that effect”. It is not clear whether
this would take place before or after the Constitutional Treaty comes into force
– a prospect which of course now seems highly unlikely. In the meantime, the
Action Plan to implement the Hague Programme, approved by the Council
in June 2005, calls upon the Commission to make a proposal on this issue in
2006.9
The Council decision requested by the Hague Programme amending the
decision-making rules concerning most immigration and asylum measures, was
adopted in December 2004 and took effect from 1 January 2005.10
Following the transition period and the institutional changes taking effect
from the start of 2005, Title IV is still totally different from the rest of the EC
Treaty as regards territorial scope, although the differences as regards the Com-
7 OJ 2005 C 53/1.
8 Summary of remarks of Dutch Justice Minister, Council doc. 13502/04, 18 Oct.
2004.
9 Point 1.3 of the Action plan (OJ 2005 C 198/1).
10 OJ 2004 L 396/45.
51
Steve Peers
mission have definitely been repealed,11 and the differences as regards the Coun-
cil and EP and possibly the Court (in future) have been reduced or removed
to some extent – but not removed entirely. It is therefore essential, even after
1 January 2005, to distinguish between Title IV and the rest of the Treaty; this
subject is addressed in detail in Chapter 4 of this book.
The net result of the changes taking effect in 2003, 2004 and 2005 was that
from 1 January 2005, the role of the EU political institutions as regards Title IV
measures was far more heterogeneous than it was during the transitional period.
The following table sets out the decision-making procedures that apply to each
EC Title IV power from that date:
1) Article 62(1) internal border controls QMV and co-decision

2) Article 62(2)(a) external border controls QMV and co-decision
3) Article 62(2)(b)(i) & (iii) visa list and format QMV and consultation
4) Article 62(2)(b)(ii) & (iv) visa conditions; uniform visa QMV and co-decision
5) Article 62(3) short-term free movement QMV and co-decision
6) Article 63(1)(a)-(c) & 2 asylum QMV and co-decision
7) Article 63(1)(d) asylum procedures unanimity and consultation
8) Article 63(3)(a) & 63(4) legal migration unanimity and consultation
9) Article 63(3)(b) irregular migration QMV and co-decision
10) Article 64 emergency measures QMV, no consultation
11) Article 65 civil law (not family law) QMV and co-decision
12) Article 65 family law unanimity and consultation
13) Article 66 cooperation QMV and consultation
So after 1 January 2005, decision-making on immigration and asylum matters

was subject to three types of rules. A first, more “intergovernmental” group
of Treaty Articles was still subject to unanimity and consultation of the EP:
Articles 63(1)(d), 63(3)(a) and 63(4). A second group of Articles was subject to
QMV and consultation: Articles 62(2)(a)(i), 62(2)(a)(iii) and 66.12 A third group
was subject to the full “Community method” of QMV and co-decision: Articles
62(1), 62(2)(a), 62(2)(b)(ii) and 62(2)(b)(iv), 63(1)(a) to (c), 63(2) and 63(3)(b).
From 1 December 2005, as explained below, asylum procedures moved fom the
first to the third category. But in any event, the distinctions between the various
Title IV powers are far more important than they previously were. This parallels
the position with other Community powers where the different decision-making
11 A number of legislative proposals by Member States therefore lapsed as of 1 May

2004: see Annex 1 and Ch. 2 for details.
12 But note that there will then be a distinction within this group: Denmark will not be
subject to Article 66 measures as Community law.
52
rules relating to different aspects of those powers have led to litigation concern-
ing the dividing lines within a single “legal base”.13
Also, it should be noted that only the Commission can negotiate and then
propose the signature and conclusion of any treaty within the scope of Title IV,
as far as EC competence is concerned, because Title IV makes no derogation
(even during the transitional period) from the procedure for agreeing external
treaties set out in Article 300 EC.14 There is, however, an implicit exception from
these rules in the Schengen Protocol, as regards the Schengen association trea-
ties with Norway and Iceland.
In future, there could be a series of further changes in the Treaty framework
for agreeing immigration and asylum law. This would follow the entry into force
of the EU Constitution, signed on 29 October 2004 and now subject to ratifica-
tion by all of the Member States, if the Constitution obtains sufficient support
to enter into force. These potential changes are discussed further in Chapter 2.
3 Existence and Extent of Title IV Powers

3.1 Introduction
The successive Treaty negotiations have created a framework of powers for the
Community to exercise, along with detailed decision-making rules concerning
the exercise of these powers. There are three intertwined questions here: what
powers does Title IV confer upon the Community; how do these powers relate
to each other; and how do they relate to other provisions of the EC Treaty? The
third question is considered elsewhere in this volume,15 but the first two ques-
tions are considered here.
Before 1 May 2004, the relationship between the various Title IV immigra-
tion and asylum powers was not that significant, since only the visa list, visa
format and emergency powers were subject to a different decision-making pro-
cedure (and a different territorial scope) than the other powers. But as outlined
above, the position regarding a number of issues has changed since that date.16
So it is necessary to examine how the various provisions might cross over with
each other, alongside the scope of those powers. Although some of these ques-
tions are examined in more detail in various other Chapters of the book, the
following is an overview of the relevant legal issues.
13 See Cases C-36/98 Spain v Council [2001] ECR I-779 (Art. 175 EC) and C-168/98
Luxembourg v Council and EP [2000] ECR I-9131 (Art. 47 EC).
14 On the treaty-making powers as regards readmission treaties, see Ch. 30.
15 See Ch. 4.
16 This section does not consider the possible effect of the EU’s proposed Constitu-
tional Treaty; see Ch. 2 on that issue.
53
Steve Peers
3.2 Visas and Borders

There are three questions concerning the Community’s short-term visa powers
granted by Article 62(2)(b). First, do the four powers over short-term visas listed
in Article 62(2)(b) EC constitute an exhaustive list of powers or a non-exhaus-
tive list? As argued elsewhere, this is a non-exhaustive list, but this means that
those residual powers over short-term visas not listed in this sub-paragraph
remain subject to unanimous voting in the Council after 1 May 2004, unless the
Council takes a decision to apply the co-decision procedure to these residual visa
powers (or alternatively, to the entirety of Article 62(2)(b) EC).17
Secondly, do any of the Community’s short-term visa powers extend to air-
port transit visas? This question follows from a judgment of the Court concern-
ing the Community’s powers over visa lists during the “Maastricht era”, in which
the Court found that the power to establish visa lists did not extend to drawing
up a list of countries whose nationals would be required to have airport transit
visas.18 The Commission assumed as a result of this judgment that airport tran-
sit visas still fell outside the Community’s visa list powers following the Treaty of
Amsterdam.19 Indeed the Commission even questioned whether the Community
had any powers to regulate the issue, in the absence of an express reference to
such powers in Title IV. But since the Court’s reasoning in the 1998 judgment
was based on the prior wording of the Community’s objectives in Article 3 EC,
which has since been amended by the Treaty of Amsterdam, it is questionable
whether the Community powers over visa lists is still limited in this way.20 In
the alternative, since the purpose of issuing transit visas is primarily to control
unauthorised migration, Article 63(3)(b) is the logical legal base for a measure
setting out a list of countries whose nationals need a visa.21 In any event, Article
62(2)(b)(ii) is clearly the correct legal base for adopting measures on the proce-
dures and conditions for issuing such visas.
Thirdly, does the issue of filling in the visa format concern the format itself
or the issue of procedures and conditions to obtain a visa? As argued elsewhere,
the answer depends on whether the visa is being filled in purely as a technical
exercise, or whether the process of filling in the visa is instrinsically involved
with examination of the substantive decision over whether to issue a visa or the
system for making such decisions.22
17 See Ch. 8.
18 Case C-170/96 Commission v Council [1998] ECR I-2763.
19 See Commission working paper on visas (SEC (1999) 1213, 16 July 1999).
20 For elaboration of this argument, see Peers, EU Justice and Home Affairs Law
(Longman, 2000) at 78-79.
21 Indeed, this was the “legal base” for a Finnish proposal on this issue (Council doc.
10867/99, 9 Sep. 1999).
22 See Ch. 8.
54
The next question is the scope of Article 62(3), concerning freedom to

travel. Does it cover extensions of stay for additional periods or measures con-
cerning freedom to travel for persons with long-term visas? As argued elsewhere,
the first issue is covered instead by Article 63(3)(a), but the latter issue is indeed
covered by Article 62(3), contrary to the legal base of a Regulation adopted in
2001.23
3.3 Asylum
Perhaps the most important question here is the scope of the Community’s
powers over subsidiary protection. First, does the Community have such powers
at all? It appears obvious from the wording of Article 63(2)(a) that the Commu-
nity has power over the issue of temporary protection and over other forms of
protection – in particular, subsidiary protection. In the absence of any express
or implied limitation on these powers, they are not limited to specific issues. Sec-
ondly, how far can such measures extend? Again, it appears that these powers
can cover all of the issues addressed as regards Geneva Convention refugee
status by Article 63(1), but that the Community cannot regulate such issues
(responsibility for applicants, reception conditions, definitions and procedures)
unless Article 63(2)(a) is used as a “legal base” to do this.
As to the extent of powers over the access to employment of any category
of persons obtaining or seeking protection status, this issue, for all third-country
nationals, falls within the scope of the “conditions of employment” of third-
country nationals in Article 137 EC. In the alternative, this issue falls within the
scope of Articles 63(3)(a) for recognised refugees, 63(2)(b) for asylum-seekers
and 62(2)(a) for persons applying for or receving temporary or subsidiary pro-
tection, on the grounds that the issue is “ancillary” to the main EC powers in
this field.24
What about the relationship between asylum and migration law? More
technically, what is the distinction between Article 63(1) and (2) on the one
hand, and Article 63(3) and (4) on the other? Since there is nothing to limit the
scope of Article 63(3)(a) to persons without protection needs,25 or to suggest
that the Treaty drafters wanted to preclude the Community from addressing
the migration status of persons with protection needs, it logically follows that
Article 63(3)(a) and 63(4) can be used to govern the legal status of refugees and
23 See Peers, EU Justice and Home Affairs Law (2nd ed., OUP, 2006), Ch. 3.
24 See Ch. 4 and s. 3.4 below.
25 It could be argued that Art. 63(1) and (2) are lex specialis as regards EC powers to
regulate persons seeking or needing protection and therefore exhaustively set out
EC powers on this issue. But the better view, in the absence of any indication of any
limit on the personal scope of Art. 63(3) and (4), is that the former provisions are
lex specialis only as regards the powers to regulate specific issues, not an exhaustive
list of EC powers to regulate the status of persons seeking or needing protection.
55
Steve Peers
displaced persons in areas falling outside the scope of Article 63(1) and (2).
Similarly Article 63(3)(b) can be used as regards illegal residence and entry of
such persons, although of course its use is almost entirely precluded in practice
by international refugee and human rights law.26 In practice, this means that
Article 63(3)(a) must be used as regards family reunion for recognised refugees
and the legal status of recognised refugees in a Member State (including issues
such as residence permits and access to benefits) since Article 63(1) does not
provide for such powers;27 and Article 63(4) must be used for movement to other
Member States of any persons with protection needs. The impact of this is pos-
sible increased difficulty adopting comprehensive texts on issues like refugee and
subsidiary protection status due to the differences between the decision-making
procedures on these issues.
Next, does the EC’s power over reception conditions for asylum-seekers
apply to the area of education, or is that precluded by the limits on EC power
over education set by Article 149 EC? As argued elsewhere, there is no ground
for such a restrictive reading of the Treaty.28
The final asylum-related question is the scope of Article 67(5) EC, altering
the EC’s decision-making rules on most asylum matters subject to the condi-
tion that “common rules and basic principles” have previously been adopted in
the form of “Community legislation”. This “Community legislation” criterion
clearly ruled out the prospect that the “Dublin II” Regulation had to be adopted
by QMV in Council and the “co-decision” procedure, since the prior Dublin
Convention was manifestly not Community legislation.
But there are still four remaining questions relating to Article 67(5). First,
on what date does (or did) it take effect? Second, does the Council have to take
a decision in order to give effect to it? Third, can it apply in stages to different
aspects of asylum law? Fourth, what are “common rules and basic principles”?
On the first issue, surprisingly, Commissioner Vitorino initially appeared
to take the view that Article 67(5) did not apply until 1 May 2004, although the
Commission altered its position later.29 For their part, the Council and EP also

27 However, Article 63(2)(a) is broad enough to cover all issues related to subsidiary
and temporary protection, except for the lex specialis issue of access to employ-
ment, governed by Art. 137 EC.
28 See further generally Ch. 22.
29 See Working Document 18 submitted to Working Group X of the EU Convention
(dealing with JHA issues), part 3.2, online at: <http://european-convention.eu.int>.
However, the Commission’s formal paper on changes to legislative procedures after
entry into force of the new Treaty accepted that Art. 67(5) took effect immediately
as regards civil law proposals (COM (2003) 61, 6 Feb. 2003). See the amended pro-
posal for a Regulation creating a European enforcement order (COM (2003) 341,
11 June 2003), the proposal for the “Rome II” Regulation (COM (2003) 427, 22 July
56
took the more communautaire view.30 It is surely clear beyond any doubt that
the institutions’ interpretation was correct: the new paragraph applied from the
entry into force of the Treaty of Nice, not from 1 May 2004. This conclusion
results from the clear wording of the new provision. As an express derogation
from Article 67(1) EC, which sets out the rules governing the transitional period,
Article 67(5) could begin to apply during that transitional period. Article 67(5)
can obviously be compared to Article 67(3) (which provides for express deroga-
tions from Article 67(1) and (2), governing the transitional period and the period
after 1 May 2004) and to Article 67(4) (which provides for an express derogation
from Article 67(2), governing the period after 1 May 2004). So if the criteria for
the application of Article 67(5) are met, it applied from 1 February 2003 (or, for
asylum law, a later date in advance of the end of the transitional period, when
the criteria for its application are met).
However, at first sight, Article 67(5) cannot apply after 1 May 2004, with
the result that if the criteria for its application were not met before 1 May 2004
(a question discussed below), the ordinary rules governing the post-transition
period in Article 67(2) would now apply in full and any changes to decision-
making on asylum matters would remain subject to a unanimous decision of
the Council, which would not need to show that the “common rules and basic
principles” have been adopted before taking this decision. This strictly literal
interpretation should be rejected, for it would ignore the context of the inser-
tion of Article 67(5) into the Treaty. First of all, the new paragraph was obvi-
ously meant to have effect beyond 1 May 2004; it cannot seriously be argued
that civil law decision making reverted to unanimity with consultation on that
date. It would be consistent to accept that the paragraph can first be “triggered”
after 1 May 2004. Secondly, the Treaty required the relevant asylum measures
to be adopted by 1 May 2004; a different wording of Article 67(5) would have
been inconsistent with that obligation. Finally, the underlying purpose of Arti-
cle 67(5) was to facilitate the transition to QMV and co-decision. Considering
that the original decision-making provisions of Title IV were expressly intended
to be transitional in any event, an interpretation that frustrated the intent of
Article 67(5) merely because the relevant asylum measures were adopted after
2003) and the proposal for a European payment order (COM (2004) 173, 19 Mar.
2004). After 1 May 2004, see the proposed Directive on mediation (COM (2004)
718, 22 Oct. 2004), the proposed Regulation establishing a European small claims
procedure (COM (2005) 82, 15 Mar. 2005), the proposed Decision establishing a
European ‘Civil Justice’ programme (COM (2005) 122, 6 April 2005), the proposed
Regulation amending the Regulation on service of documents (COM (2005) 305, 7
July 2005) and the proposed ‘Rome I’ Regulation (COM (2005) 650, 15 Dec. 2005).
30 The European enforcement order was in fact adopted prior to 1 May 2004 and pur-
suant to the co-decision procedure: see recital 26 of the preamble to Reg. 805/2004
of the EP and Council creating the enforcement order (OJ 2004 L 143/15).
57
Steve Peers
1 May 2004 would clearly be inconsistent with the context and purpose of that
provision.
On the second issue, it appears that there is no need for a Council decision
to put the new decision-making rules into effect. This follows from the wording
of the provision, which does not refer to the Council decision to be taken pursu-
ant to Article 67(2) EC or to any need for a Council decision before Article 67(5)
applies. Also, in practice no Council decision was taken to put Article 67(5) into
effect as regards civil law measures.
As for the third issue, it is not expressly clear from the English text of para-
graph 5 whether it applies to individual asylum issues or whether the criteria
must be met in respect of all the relevant aspects of asylum policy before the
change in decision-making procedure takes effect. Since the special decision-
making rules applying to Title IV are in principle only transitional, any restric-
tions upon the movement to the co-decision procedure and qualified majority
voting should logically be interpreted restrictively in case of ambiguity. It fol-
lows that that Article 67(5) applies to individual aspects of asylum policy. With
the adoption of the asylum procedures Directive in December 2005, the point
is now moot since the EC has adopted measures in all areas of asylum policy,
assuming that those measures in fact satisfy the criteria set out in Article 67(5)
of being “common rules” on asylum.
This brings us to the final point: when are the criteria for the application of
Article 67(5) met? On one interpretation, they cannot ever be met within the cur-
rent Treaty framework except as regards criteria and mechanisms for deciding
asylum responsibility, for in all other cases the Community is presently limited to
adopting only “minimum standards”, which would usually preclude the adop-
tion of “common rules”. But it must be assumed that the Treaty is not internally
contradictory. The two concepts must therefore be read together, with the result
that the co-decision procedure applies whenever the Community has adopted
minimum standards that establish binding rules applicable to the Member States
(therefore constituting “common rules”) in a particular area.
What does Article 67(5) mean in practice? On any view of the final issue, it
means that, if the conclusions on the first three points are correct, future mea-
sures concerning Eurodac must be adopted using the co-decision procedure and
QMV (with Commission monopoly over proposals) from the entry into force
of the Treaty of Nice. So, on the same reasoning, must any measures on the
criteria for asylum responsibility, from the date of the formal adoption of the
“Dublin II” Regulation. On the broader view of the final issue, the procedure
for adopting measures on an EC temporary protection regime and on reception
conditions for asylum-seekers changed from the entry into force of the Treaty
of Nice, as Directives on both subjects were adopted before 1 February 2003.
But the rules on adoption of measures on the definition of refugee and sub-
sidiary protection did not change until April 2004, when the relevant Directive
was adopted, and the rules on adoption of asylum procedures measures did not
58
change until adoption of the relevant Directive in December 2005.31 Moreover, it

is arguable that if the Community wants to extend the application of its existing
rules to another area of asylum law (for example, extending Eurodac to persons
applying for subsidiary protection), the new procedures will apply only if all the
common rules and basic principles have been agreed in respect of all the relevant
areas (in this scenario, measures on both Eurodac and subsidiary protection had
been adopted by April 2004; but it is even arguable that a first measure applying
Eurodac to subsidiary protection applications must be adopted by unanimity
and consultation in any case, and only later measures would be subject to QMV
and co-decision). An extension of rules outside the area of asylum (for example,
to adopt a measure on the use of Eurodac for purposes unrelated to asylum law)
would need the use of legal bases outside the EC’s asylum law powers.
3.4 Migration law

The most pressing question about the scope of EC migration law is the location
and extent of EC powers over access to employment by third-country nationals.
As argued elsewhere, this power can only be exercised on the basis of Article
137 EC in the first Member State a third-country national moves to, and subse-
quently by Article 39 EC if the third-country national moves, exercising freedom
of movement as one of the “workers of the Member States”, to another Member
State.32 In the alternative, Article 63(3)(a) and (4) grant sufficient legal power to
the Community to address these issues,33 at least where the issue is ancillary to
the main issue being regulated by Community legislation. For that matter, the
overall framework of Title IV suggests a broad interpretation of the concept of
“conditions” in Articles 63(3)(a) and 63(4) is necessary, given the broad objec-
tives of Title IV as set out in Articles 3(1)(d) and 61 of the Treaty.34
The idea that no provision of the Treaty gives the Community the power to
regulate the access to employment of third-country nationals is simply unten-
able. When drafting the social policy provisions of the Treaty, a number of
express limitations on EC power were inserted in Article 137(5) EC. These do
not include limits on the powers as regards access to employment by third-coun-
try nationals. Similarly, the drafters of Title IV EC were careful to provide for
limits on the power of the institutions, on the intensity of EC action (usually
limiting it to adoption of minimum standards) and on the territorial scope of
the Treaty; they also expressly provided for national reserve powers in Article 64.
So why would they not at that point expressly state that the EC lacks powers to
regulate migration for employment? Moreover, there is no suggestion of such a
31 See further Chs. 14 and 15.

34 See ibid.
59
Steve Peers
limit among the various clauses limiting EC power over matters such as educa-
tion and health or in the limitation clauses in the final Part of the Treaty. Given
the inevitable effect of access to employment by third-country nationals on the
EC’s internal market and social policies, as recognised by the Court as far back
as 1987,35 it would obviously take express wording to preclude EC powers to
regulate this issue.
The next question is the distinction between the two parts of Article 63(3),
dealing with legal and irregular migration, which became subject to different
decision-making rules from January 2005.36 Already the Council has adopted
five measures with “Article 63(3)” as a legal base (on mutual recognition of
expulsion measures, a uniform residence permit, long term residents, financing
expulsion and victims of human trafficking or facilitation of illegal entry or
stay). Are these really measures on both legal and irregular migration, or should
the Council have chosen one legal base found within Article 63(3) or the other?
The answer obviously has implications for the “legal base” of measures adopted
after 1 January 2005.
As a starting point, basic principles about the distinction between the two
heads of power should be established. It could be argued that any rule concern-
ing the termination of legal residence concerns both “illegal residence” and the
“conditions” of legal stay, and so both powers apply. However, the better view
is that such rules are essentially conditions about whether stay is legal or not,
and so, along with associated “procedures”, go to the heart of the Community’s
power to regulate legal migration. As such they fall within the scope of Article
63(3)(a) only (or Article 63(4), where third-country nationals move between
Member States), although some of the Commission’s proposals on legal migra-
tion fail to recognise this.37 In contrast, rules which solely concern persons who
indisputably were never legally resident or are no longer legally resident are
within the scope of Article 63(3)(b). It follows that any measure setting out rules
on when legal residence could or must be terminated would have to be based at
least partly on Article 63(3)(a).38
35 Joined Cases 281, 283-285 and 287/85 Germany and others v Commission [1987]
ECR 3203.
36 In fact there is already a legal distinction between these two heads of power: Art.
63(3)(b) is subject to a five-year deadline to adopt measures, but Art. 63(3)(a) is not.
But this distinction became moot as of 1 May 2004.
37 The family reunion proposal was based on “Article 63”, while the long-term res-
idents’ proposal included “Article 63(3)” as well as Article 63(4) as a legal base.
However, the Council adopted the former Directive using the legal base of Article
63(3)(a). See further Chs. 19-22.
38 The proposed Directive on expulsion standards follows this distinction (COM
(2005) 391, 1 Sep. 2005).
60
How do these principles apply to measures which have already been adopted
or proposed? The Directive on mutual recognition of expulsion decisions is
based on the premise that a second Member State will take its own decision to
implement an expulsion decision taken by a first Member State, and explicitly
states that it could be applicable to a person who has already received a residence
permit from the second Member State. As such it touches on the termination of
legal residence and indeed had to be adopted using Article 63(3)(a) as well as
Article 63(3)(b).39
Next, the Regulation establishing the uniform residence permit should have
been based on Article 63(3)(a) alone, since such a permit is only issued to persons
who have been authorised to stay by a Member State.40 Here it is necessary to
distinguish between the purpose and the content of the measure; although both
are relevant in determining the correct “legal base” of a proposal, it appears
from the jurisprudence of the Court of Justice that the content is crucial. In this
case, although the measure has the objective of preventing irregular residence,
the content of the Regulation only concerns persons with authorised status.
Article 63(3)(b) would only apply to rules on documents issued to persons with
no legal residence status, perhaps as part of a Community measure on the status
of persons in “limbo” (who are subject to expulsion decisions, but who cannot
be expelled for legal or practical reasons).41
Similarly, the Directive on the residence status of victims of trafficking
and smuggling has the obvious objective of preventing and combatting irregu-
lar entry and residence.42 But the means it uses to achieve this objective solely
involve measures related to legal migration: the issue of residence permits to
certain persons. The Commission argued in its explanatory memorandum that
since the proposal involves a change in migration status from an unauthorised to
an authorised status, it must entail use of the Community’s powers over irregu-
lar migration. However, applying the general principles about the distinction
between the two legal powers set out above, a rule about the acquisition of legal
status falls solely within the scope of Article 63(3)(a), just like a rule about the
loss of such status. Only if the measure also contained measures about the treat-
ment of persons denied legal residence status (which it does not) could it also
use Article 63(3)(b) as a legal base. The same reasoning would apply equally to
any Community act concerning regularisation of irregular migrants. Likewise,
the Council was correct to adopt the family reunion Directive on the basis of
Article 63(3)(a) alone, as this Directive only regulates the acquisition and loss of
39 Directive 2001/40 (OJ 2001 L 149/34). The same reasoning applies to the Decision
on financing such expulsions (OJ 2004 L 60/55).
40 See Art. 1(2) of Reg. 1030/2002 (OJ 2002 L 157/1).
41 The proposed Directive on expulsion standards (n. 38 above) does not contain any
such rules.
42 Directive 2004/81 (OJ 2004 L 261/19).
61
Steve Peers
legal status; following the same reasoning, the Council should have adopted the
Directive on long-term residence using only Article 63(3)(a) and 63(4).
The next issue is the scope of Article 63(3)(b) as regards irregular employ-
ment, as distinct from irregular entry and residence. At first sight, the Commu-
nity clearly has no powers over irregular employment as such, either in Title IV
or as part of the EC’s social policy powers provided by Article 137 EC. However,
the Commission has argued that the Community does have such powers because
irregular employment violates the conditions of legal stay and so automatically
leads to an irregular residence situation. But the Commission does not try to
prove that this is the situation in each Member State; it is possible that in some
Member States irregular employment will not necessarily result in termination of
legal residence. For instance, it would surely violate the Geneva Convention on
the status of refugees and additionally or alternatively the ECHR if a Member
State were to expel a recognised refugee or a person with a subsidiary protection
need purely for taking up unauthorised employment. Applying the principles set
out above as regards the scope of Article 63(3), it follows that where the EC uses
Article 63(3)(a) to set out conditions for legal residence, it can also set out the
circumstances in which unauthorised employment will terminate that status.43
The EC can also, using its powers in Article 63(3)(b), regulate the position of
persons who have definitively lost their legal status because of irregular employ-
ment or who engaged in irregular employment despite never having such legal
status. But the Community lacks the power to adopt measures concerning irreg-
ular employment in and of itself; it can only act on the issue where it is ancillary
to one of the powers which clearly has been conferred upon the Community.
To what extent does Article 63(3)(b) cover criminal law aspects of irregular
migration and residence? The underlying issue here is the distnction between
Title IV of the EC and Title VI of the EU Treaty, the remaining “third pillar”. If
both these Treaties are read together, the EC Treaty gives powers to define irreg-
ular entry and residence but the EU Treaty concerns powers to adopt criminal
law measures concerning this issue.44 This would mean that the EU acts concern-
43 For example, the Directive on the entry of students and other persons expressly
regulates this issue (see Ch. 22). However the Directives or proposals on family
reunion, migration for employment or self-employment, and various protection
issues do not expressly regulate the issue, and nor does Directive 2001/55 on tem-
porary protection (see further Chs. 19-21 and 12-15). Nor does Directive 2001/40
on mutual recognition of expulsion decisions, Directive 2002/90 on facilitation of
illegal entry or residence or Article 96 of the Schengen Convention refer to breach
of national law on the employment of third-country nationals (see Chs. 25 and 28).
44 For this argument in full, see Peers, “Caveat Emptor? Integrating the Schengen
Acquis into the European Union Legal Order”, in Ward and Dashwood, eds., Cam-
bridge Yearbook of European Legal Studies Volume 2 (Hart, 2000) 87 at 111-116.
62
ing facilitation of irregular entry were rightly split into two different measures (a
Directive and a Framework Decision).45
However, the approach of the Court of Justice in a judgment of September
2005, in which it annulled a Framework Decision on environmental crime, is
that since the third pillar cannot affect EC law,46 in the event of any dispute as
to whether an act should be adopted on a first pillar or third pillar legal base,
the extent of the first-pillar power should be examined first to see if the aim and
content of the measure in question fall within the scope of that power.47 Follow-
ing this approach, if it is equally applicable outside the field of environmental
law, it is arguable that a Directive should have been used to harmonise criminal
law as regards irregular migration, perhaps including not only smuggling but
also trafficking in persons, at least as regards the basic obligation to criminalise
the activity and to impose penalties of some form on legal persons.48 It seems
clear that the EC’s powers over “illegal immigration and illegal residence” could
just as easily encompass criminal law measures as the EC’s environmental law
powers do; in fact the former powers seem rather more apt to cover criminal law
issues, given their express application to “illegal” acts without any qualification.
However, the Court’s judgment did not address the question of whether a first
pillar or third pillar legal base should apply to detailed harmonisation of pen-
alty levels, as found in the Framework Decisions on smuggling and trafficking
in persons,49 because the Framework Decision on environmental crime which it
annulled did not harmonise penalty levels. Also, the judgment did not address
whether a third pillar or first pillar legal base should apply to the issue of crimi-
nal jurisdiction, because the Commission did not challenge the Framework Deci-
sion on environmental crime on this point. But the Court of Justice nevertheless
annulled the Framework Decision on environmental crime, since the provisions
on extradition and jurisdiction were indivisible from the rest of the measure. It
follows from this analysis that the Framework Decision on irregular migration
is invalid in its entirety, and that a national court must refer the question of its
validity to the Court of Justice to confirm this if the issue is raised before it.50
45 See Ch. 28 for details.

46 Art. 47 EU; see also Art. 29 EU.
47 Judgment of 15 Sep. 2005 in Case C-176/03 Commission v Council (environmental
crime), not yet reported.
48 For the Commission’s interpretation of the issue see its communication (COM
(2005) 583, 23 Nov. 2005), which argues inter alia that the Framework Decision on
facilitation is invalid but does not make any argument against the validity of the
Framework Decision on trafficking in persons. For more detailed analysis, see ch. 8,
s. 4 of Peers, EU Justice and Home Affairs Law (n. 23 above).
49 See Chs. 28 and 29.
50 At first sight, it might appear that only the national courts in Member States which
have opted in to the Court’s third pillar jurisdiction over preliminary rulings (see
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Steve Peers
It follows; that the “victims” Directive was rightly based solely on the EC
Treaty since, despite its objective of facilitating the conduct of criminal trials,
its content only concerns migration status; and the EU Decision on counterfeit
documents should have been split so that a first pillar act accompanied the third
pillar act.51
Finally, does Article 63(4) cover the issue of social security for some or all
third-country nationals moving to another Member State? This question con-
cerns the choice between Title IV and other parts of the Treaty, and so is consid-
ered further elsewhere.52
3.5 Other Powers

The Community has not used its “emergency” powers in Article 64(2) EC. Nor
was the predecessor power in the former Article 100c(2) EC ever used. So argu-
ments over the scope of this power remain for the future. Given the wording of
the provision and its exceptional character, it is arguable that it can only be used
where there is an actual “influx” of people, rather than the threat of one; that it
cannot be used to amend existing EC legislation; that it can only be used to assist
all Member States if all of them are faced with an “influx”; and that it can only
be used once in relation to a given emergency.53
As for Article 66, to what extent does it cover the SIS and how does it relate
to Articles 62 and 63? These two questions are relevant to any decision-making
concerning the creation of new information exchange systems (such as the Visa
Information System) or the extension of existing information systems (such as
the SIS). The distinction between Article 66 and the third pillar on the one hand
and Articles 62 and 63 on the other is relevant because from 2004 and 2005
decision-making concerning this Article has been subject to qualified major-
ity voting, with Commission proposals only but consultation of the EP – less
communautaire than most of Articles 62 and 63 EC, because of the EP’s limited
Art. 35 EU) should be able to send such a question to the Court. But it is arguable
that since the argument concerns the correct scope of Title IV of the EC Treaty, that
the Title IV rules in Art. 68 EC should apply instead. The latter interpretation would
entail greater scope to refer the point from the national courts of eleven Member
States (the UK, Ireland and all “new” Member States except the Czech Republic),
but a more limited possibility to refer from the national courts of another twelve
Member States (all the other “old” Member States except Spain and Denmark).
Alternatively, a “most favourable jurisdiction” rule should apply to resolve the con-
flict. See Peers, “Who’s Judging the Watchmen: The Judicial System of the Area of
Freedom, Security, and Justice” 18 YEL (1998) 337 at 397-399.
51 For the Commission’s view on the facilitation measures, see n. 48 above.
52 On the general issue of the distinction between Title IV and the rest of the Treaty,
see Ch. 4; on the specific issue of powers over social security for third-country
nationals, see Ch. 23.
53 For elaboration of this argument, see Peers (n. 23 above), ch. 3.
64
powers pursuant to Article 66 EC, but less intergovernmental than those provi-
sions still subject to unanimous voting or the third pillar.
As argued elsewhere,54 Title IV is the correct legal basis for Article 96 of
the Schengen Convention and any rules concerning the operation and function-
ing of the SIS in relation to Article 96 data. The Council has now apparently
recognised this, despite its failure to allocate the SIS provisions of the Schengen
acquis initially, in adopting two separate first and third pillar measures regarding
amendments to the SIRENE Manual, the funding of future SIS development
and amendments to the rules governing the operation of the SIS.55 This is the
correct approach to the division between the pillars, but what about the division
within the first pillar? Here the Spanish originally proposed joint use of Articles
62, 63 and 66 EC for their SIS proposal of 2002, but this was narrowed to use
of Article 66 EC, apparently following the advice of the Council legal service.56
Is this correct? The same issue arises with respect to the proposed Regulation
establishing SIS II, where the Commission has proposed Articles 62(2)(a) and
66 as legal bases.57 The best interpretation of the distinction between Article
66 on the one hand and Articles 62 and 63 on the other is that any measures
which concern or which are directly connected to the substantive rules concern-
ing checks on individuals at the border, consideration of visa applications, the
conditions for freedom to travel, the entry and residence of legal migrants, or
the detection, registration or expulsion of irregular migrants, including the col-
lection of or processing of personal data to those ends, clearly fall within the
scope of Articles 62 or 63, as such measures fall within the scope of their core
subject-matter.58 Therefore, Article 66 must govern cooperation between admin-
istrations where the subject-matter does not relate to regulating the movement
of persons in concrete situations, governing instead issues such as exchanges of
personnel. So, for example, any measure amending Article 96 of the Schengen
Convention to alter the criteria for including data, or to expand the situations in
which data is used, would also have to be based on Articles 62(2)(a), 62(2)(b)(ii),
62(3), and 63(3)(a) in the former case (because of the impact upon authorisa-
tion to cross the border, conditions for issue of a visa freedom to travel, and the
54 See ibid.
55 See respectively Reg. 378/2004 and Decision on amending Sirene manual (OJ 2004
L 64/5 and 45); Council Reg. 2424/2001 (OJ 2001 L 328/4) and Decision 2001/886/
JHA (OJ 2001 L 328/1); Reg. 871/2004 (OJ 2004 L 162/29) and Decision 2005/211/
JHA (OJ 2005 L 68/44). See also EP and Council Reg. 1160/2005 on the use of the
SIS by vehicle registration authorities (OJ 2005 L 191/18), adopted using the EC’s
transport law powers.
56 See Reg. 871/2004, ibid. The legal service opinion (Council doc. 13713/02, 5 Nov.
2002) is unknown.
57 COM (2005) 236, 31 May 2005.
58 This argument is based on Peers (n. 23 above), Ch. 3, s. 2.3.
65
Steve Peers
issue and renewal of residence permits) or the legal base(s) most relevant to the
additional use of the data in the latter case. Similarly, the legislation governing
the Visa Information System will need the legal base of Article 62(2)(b)(ii); the
legality of the June 2004 Decision establishing the VIS, with the legal base of
Article 66,59 is therefore highly questionable.60 On the other hand, the Council
adopted the Spanish initiative concerning the SIS before 1 May 2004, at a time
when Article 66 was in any event subject to the same decision-making process
as the relevant provisions of Articles 62 and 63. The idea that the application of
Article 96 of the Schengen Convention could be extended without adequate par-
liamentary control at either the European or the national level (because of the
use of QMV in the Council, preventing national parliaments from controlling
their governments) is deeply disturbing, but fortunately there is a sound legal
argument against the use of Article 66 EC alone for such a development, which
the Commission at least has rightly accepted.
3.6 Conclusions
It can be seen that the arguments over the distinction between the Community’s
many separate immigration and asylum powers, and the extent of those powers,
are manifold. As long as the decision-making rules are relatively uniform, the
first set of arguments did not matter; but as we have seen, that has recently
changed. The second set of arguments, when coupled with unanimous voting,
led to inhibited use of Community powers; the dispute over the correctness
of the critics’ view has become more relevant now that decision-making has
recently moved largely to qualified majority voting, as the critics might be out-
voted and the Court may then be asked to annul the EC’s measures. Certainly
one might wish for a standard approach to decision-making coupled with unam-
biguous provisions on the extent of each of the Community’s powers, so that
the Community can focus on the substance of the measures. In the absence of
this, Member States’ political arguments will take legal form and with the sharp
reduction in unanimous voting, these disputes could move from the political
arena to the EU courts.
4 Exercise of Title IV Powers in Practice

Like its Member States, the EU has legislative, executive and judicial branches.
The Community method gives a substantial role in legislation to the Commission
(through its monopoly of initiative) and the EP (through the co-decision pro-
cedure) and attenuates the Member States’ power over adoption of legislation
within the Council through the general application of qualified majority voting.
59 OJ 2004 L 213/5.
60 The Commission has proposed the legal bases of Arts. 62(2)(b)(ii) and 66 EC for the
Reg. establishing the VIS in detail (COM (2004) 835, 28 Dec. 2004), entailing the
co-decision procedure. This is correct, in light of the analysis above.
66
As for executive power, in principle Member States are obliged to implement

EC law, but where implementing measures are to be adopted at EU level, the
Community method allocates power to the Commission in most cases. Judicial
power is held by the Court of Justice, which has the abolity to play a significant
role controlling the legality of EC action and ensuring uniform interpretation of
EC acts by means of its power to receive references from all national courts and
tribunals. Coupled with the “direct effect” of EC law, this means that individu-
als can insist on the enforcement of Community law rights, reducing Member
States’ discretion over their application.
4.1 Legislative Powers

It is striking that the Commission proposed nearly every asylum measure and
legal migration measure during the transitional period.61 Member States essen-
tially only exercised their power to present initiatives in the fields of visas, exter-
nal borders and irregular migration. In the case of visas (Article 62(2)(b)), it was
striking that until mid-2003 (when Member States ceased to use their power to
make Title IV initiatives), the Commission made only three proposals (regarding
Kaliningrad and visas for Olympic athletes) outside the two areas where it had a
monopoly over making proposals; and it only began to make proposals concern-
ing internal or external border controls (Article 62(1) and 62(2)(a)) from autumn
2003. During the transitional period, the Commission made only two proposals
concerning illegal immigration (on funding expulsion measures, where Direc-
tive 2001/40 conferred the power to propose this measure on the Commission
exclusively, and on the legal status of victims of trafficking). Although the Com-
mission’s “third pillar” proposal on trafficking in humans arguably overlapped
with the French proposals on facilitation of illegal entry and residence,62 the
Commission was anxious to argue that there was no overlap.63
Taken as a whole, then, the Commission and the Member States largely
divided their energies during the transitional period, with most areas subject in
practice either nearly wholly to the Commission’s proposals or nearly wholly to
Member States’ initiatives. The only overlaps were in the areas of short-term
freedom to travel, where the Commission’s proposal sought to incorporate
an adopted measure and a proposed measure;64 visas for unrecognised enti-
ties, where the Commission initiative followed failed proposals from Member
States;65 and asylum procedures, where the Austrian proposal for a Regulation
61 The sole exception was the Austrian initiative for a Reg. on “safe third countries” (OJ
2003 C 17/6), which lapsed on 1 May 2004 at the end of the transitional period.
63 See the explanatory memorandum (COM (2000) 854, 21 Dec. 2000).
64 See COM (2001) 388, 10 July 2001.
65 See Ch. 8.
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Steve Peers
on “safe third countries” competed with the Commission’s more general pro-
posed Directive on asylum procedures.66
A connected issue of great practical importance to the European Parlia-
ment is the extent to which proposals are amended following the issue of the
EP’s opinion. The Commission’s practice of amending its proposals in light of
the EP’s opinions considerably enhances the EP’s position under the consulta-
tion procedure, because of the additional status such amendments then have
as a consequence of forming part of the Commission’s official proposal. In
fact, the EP/Commission framework agreement specifies that in principle the
Commission should take the “utmost account” of the EP’s opinions during the
legislative procedure.67 But a close examination of all binding EC immigration
and asylum measures adopted by the Council following a Commission proposal
after May 1999 shows that the Commission amended fewer than one-fifth of its
immigration and asylum proposals following the EP’s opinion: in only five out
of twenty-eight cases.68 The five amendments concerned the Eurodac regula-
tion, the first European Refugee Fund, the visa list,69 family reunion and asylum
procedures (although the latter amendment was also due to a request from the
European Council). The twenty-three failures to amend proposals concerned
“Dublin II”, the definition of refugee, reception conditions, the second Refugee
Fund, temporary protection, long-term residents, migration for employment or
self-employment, admission of students et al, admission of researchers, freedom
to travel, social security, the three proposals from 2001 on the formats of visas
and residence permits, the proposals on Kaliningrad and Olympic visas (from
2003), the “ARGO” programme (twice), the proposals on the border agency,
stamping of documents and EU passports, and the “Iconet” proposal on a net-
66 See Ch. 14.

67 OJ 2001 C 121/122, point 5. On this framework agreement, see Case T-236/00
Stauner [2002] ECR II-135 and earlier interim measures rulings (Cases T-236/00
R [2001] ECR II-15 and II-2943). A revised framework agreement was approved in
2005: see the Annex to the EP’s resolution of 26 May 2005 (not yet published; see
<http://www.europarl.eu.int/oeil/file.jsp?id=5245672>). The previous commitment
to take account of the EP’s views in amended Commission proposals is found at
point 31 of the revised agreement.
68 For technical details of the legislative history of each measure, see Annex 1.
69 In fact, although the Commission amended its initial proposal for complete har-
monisation of the EC visa list (which became Council Reg. 539/2001) in light of
the EP’s vote, it did not amend two of its later proposals for amending that Reg.
(which became Council Regs. 453/2003 and 851/2005) following EP votes. I have dis-
regarded these failures to amend the proposals. The issue was not relevant to a third
amendment (which became Council Reg. 2414/2001), because the EP supported the
Commission proposal without suggesting any amendments.
68
work for migration management.70 Furthermore, it is clear that the Commis-

sion’s failure to amend its proposals to take account of EP votes has continued
after the end of the transitional period.71 In contrast, in the sphere of civil law,
the Commission has amended its proposals following the EP’s vote in two-thirds
of cases (six out of nine).72
As for initiatives by Member States, the Member States had no political
or legal obligation to redraft their proposals in light of the EP’s vote and no
Member States ever did so formally – although of course each Council Presi-
dency redrafts proposals frequently during Council discussions in response to
comments from delegations. In any event, the point was almost moot as the EP
voted to reject the majority of Member States’ immigration and asylum initia-
tives.73 However, these votes were ineffective; there is not even a political obliga-
tion, as there is on the Commission pursuant to the EP/Commission framework
agreement, to consider withdrawing a proposal following rejection by the EP.74
70 This list leaves aside the proposals for Decisions on funding expulsion decisions and
on the VIS, both of which the EP voted to reject. For technical details of the legisla-
tive history of each measure, see Annex 1.
71 The proposals on the second Refugee Fund, ARGO (in 2004), the admission of
students and researchers, the border agency, stamping of documents, EU passports,
and “Iconet” were all adopted by the Council after the expiry of the transitional
period.
72 See the amended proposals on jurisdiction over and enforcement of matrimonial
and custody judgments (COM (2000) 151, 17 Mar. 2000; OJ 2000 C 274 E/13), ser-
vice of documents (COM (2000) 75, 29 Mar. 2000; OJ 2000 C 311 E/112), jurisdic-
tion over and enforcement of civil and commercial judgments (COM (2000) 689, 26
Oct. 2000; OJ 2001 C 62 E/243), the European Judicial Network (COM (2001) 234,
27 Apr. 2001; OJ 2001 C 240 E/101), the general framework for EC civil law activity
(COM (2001) 705, 22 Nov. 2001; OJ 2002 C 51 E/390) and the European enforce-
ment order (n. 29 above). The exceptions are the legislation on legal aid (proposal in
COM (2002) 13, 21 Jan. 2002), on a one-year extension of the Grotius programme
(proposal in COM (2000) 516, 6 Sep. 2000) and on a further parental responsibil-
ity Regulation (proposal in COM (2002) 222, 3 May 2002). Again, this leaves aside
measures not yet adopted by the Council.
73 It voted to reject Directives 2001/40, 2001/51 and 2002/90, Regs. 789/2001 and
790/2001 and the proposed Regulations on readmission between Member States and
extension of freedom to travel, and “safe third countries” and the proposed Direc-
tive on transit for expulsion. However, it supported Regs. 1091/2001, 2424/2001,
415/2003, 377/2004, 378/2004 and 871/2004. It also declined to vote on Directive
2004/82 on passenger data information transfer and the Decision on joint expulsion
flights, due to its opposition to these measures. See Annex 1 for more details. This
leaves aside implementing measures proposed by Member States, as the EP has no
role in such cases.
74 See Annex I, point 7(iii) of the 2000 EP/Commission framework agreement; point
33(iii) of the 2005 revised agreement (n. 69 above).
69
Steve Peers
The EP has an enhanced opportunity to influence the debate only when

it is reconsulted by the Council on proposed legislation. This has to take place
whenever the final text “differs in essence” for the text on which the EP was con-
sulted.75 Since the Treaty of Amsterdam, the EP has been reconsulted three times
on Title IV measures, on the visa list Regulation due to substantive changes; on
the Eurodac Regulation due to the decision to give most implementing powers
to the Council, rather than the Commission; and on the asylum procedures
directive, again due to substantive changes.76 But in all these cases, the EP’s views
when reconsulted were not taken on board by the Council.
In fact, it is hard to find any example where the EP’s views have been adopted
by the Council. There are cases where the EP’s views coincide with amendments
adopted to a proposal by the Council, but usually it can be demonstrably shown
that the Council was considering the relevant amendment anyway. A detailed
analysis of the legislative history of the Eurodac Regulation and the temporary
protection Directive shows that the Council almost entirely ignored the EP’s
views during the Community legislative process, but that paradoxically the EP’s
opinions on previous “third pillar” versions of these measures seemed to have
an influence.77 So it seems that, during the transitional period, the EP’s influence
on immigration and asylum law was even diminished in practice compared to
the “Maastricht era”.
As for the Council, it is striking to note that in the areas already subject to
qualified majority voting (visa lists and visa format) throughout the five-year
transitional period, the Council’s summaries of its proceedings consistently
falsely claimed that the Council was still acting by unanimity.78 In fact, in the
case of visa formats, even the Commission inaccurately claimed in 2001 that the
Council had to vote unanimously upon its proposals, even though QMV has
applied to such issues since November 1993.79 The Council’s confusion contin-
ued even after the transition period ended, with a claim that the Council acted
by unanimity when adopting Decisions pursuant to Article 66 EC in June 200480
75 For instance, see Case C-392/95 EP v Council [1997] ECR I-3215.

76 For more detail, see Chs. 7 and 11.
78 See Monthly Summaries of Council acts for Mar. 2001, Dec. 2001, Feb. 2002 and
Mar. 2003 (Council docs. 8051/01, 19 Apr. 2001; 15585/01, 31 Jan. 2002; 6961/02, 11
Mar. 2002; and 8618/03, 24 Apr. 2003).
79 See explanatory memorandum to original proposal (COM (2001) 157, 23 Mar.
2001).
80 The Decision establishing the Visa Information System (OJ 2004 L 213/5); see sum-
mary of Council acts for June 2004 (Council doc. 11474/04, 15 July 2004.)
70
and December 2004.81 But this was corrected when adopting a measure based on
Article 66 EC in March 2005.82
As for the co-decision procedure, since its application to EC immigration
and asylum law until 1 January 2006, the EP and Council fully concluded the
process for two measures, in both cases reaching agreement on the text at its
first reading.83 Ten other co-decision proceedings were underway.84 In one case,
a proposal to amend the Regulation on the EU borders agency, the consultation
procedure has been wrongly applied instead of the co-decision procedure.85
4.2 Executive Powers

Article 202 EC sets out the general rule that powers to implement Community
legislation should be conferred on the Commission, with the possibility that the
Council can confer implementing power on itself. The rules for control of the
Commission’s implementing powers (“comitology rules”) are agreed by a unani-
mous vote in the Council; such rules were first adopted in 1987 and then amended
in 1999.86 These rules provide for three types of committee staffed by Member
States’ officials (advisory, management and regulatory committees) which pro-
vide for successively more Member State control of Commission action.87 The
Court has ruled that the “essential elements” of legislation cannot be subject to
implementing powers, and that implementing measures cannot be ultra vires the
powers delegated by the parent measure.88
81 The Decision amending the ARGO decision: see summary of Council acts for Dec.
2004 (Council doc. 16383/1/04, 23 Feb. 2005, p. 4).
82 See the summary of Council acts for March 2005 (Council doc. 8559/05, 29 April
2005, p. 3), regarding the adoption of the “Iconet” decision by QMV.
83 These concern a recommendation on the issue of visas to researchers and a Regula-
tion on Olympic visas; see Annex I for technical details.
84 These concerned three funding measures, a Directive on expulsion standards, the
VIS, SIS II, and proposals on a border code, transit visas (two proposals) and
border traffic rules. The EP and Council reached an agreement in June 2005 on the
border code, and had apparently reached agreement in Dec. 2005 on the border traf-
fic Regulation. None of the other measures had yet been the subject of agreement
in the Council, or reached a first-reading vote in the EP plenary. See Annex I for
technical details.
85 COM (2005) 190, 13 May 2005.
86 Decision 87/393 (OJ 1987 L 197/33); Decision 1999/468 (OJ 1999 L 184/33).
87 From a large literature, see Andenas and Turk, eds., Delegated Legislation and the
Role of Committees in the EU (Kluwer, 2000); Joerges and Vos, eds., EU Commit-
tees: Social Regulation, Law and Politics (Hart, 1999); and Lenaerts and Verhoeven,
“Towards a Legal Framework for Executive Rule-Making in the EU? The Contribu-
tion of the new Comitology Decision” 37 CMLRev. (2000) 645.
88 See particularly Case 25/70 Koster [1970] ECR 1161; Case C-93/00 EP v Council
[2001] ECR I-10119.
71
Steve Peers
The practice of the Council regarding immigration and asylum law was
initially to confer implementing power on itself in three key cases, as regards
amendments to most of two key manuals (the Common Consular Instructions
on Visas and the Common Manual on external borders, along with several con-
nected visa manuals) and to the Eurodac Regulation.89 Otherwise, the Council
has widened the power the Commission already enjoyed to adopt rules imple-
menting the EU visa format; given the Commission equivalent powers over
another visa format and Kaliningrad document formats, the issue of visas at the
border, EU passports, and standard forms for expulsion proceedings; conferred
powers on the Commission to implement the “ARGO” programme; transferred
powers from the Council to the Commmission to adopt implementing rules
concerning the common EU residence permit; and conferred powers on the
Commission to amend most of the “Sirene” manual and to manage a migra-
tion management network.90 It has also conferred power on the Commission
as regards the project management of SIS II and the Visa Information System,
tasked the Commission (without any “comitology” control) to draw up standard
forms for reports by Member States’ liaison officers (and to summarise these
reports regularly), and transferred the power to implement asylum responsibil-
ity rules from the old “Article 18 Committee” set up by the Dublin Convention
to the Commission.91 However, the choice of the type of committee to supervise
the Commission’s implementation of the SIS rules proved controversial.92 Of
these cases, the Commission sued the Council as regards the powers over the
CCI and the Common Manual and threatened to sue it in regard to the SIS II
89 See respectively Chs. 8 and 11. Certain powers to implement the Eurodac Regula-
tion have been conferred on the Commission, but they have not been used in prac-
tice.
90 On the first two measures, see Ch. 8. On the others, see respectively Art. 4 of
Reg. 694/2003 concerning Kaliningrad documents (OJ 2003 L 99/15); Art. 3 of
Reg. 415/2003 on the issue of visas at the border (OJ 2003 L 64/1); Art. 5 of Reg.
2252/2004 on EU passports (OJ 2004 L 385/1); Art. 9 of Directive 2003/110 on
expulsion for transit (OJ 2003 L 321/26); Decision 2002/463 (OJ 2002 L 161/11);
Reg. 1030/2002 (n. 40 above); Reg. 378/2004 (OJ 2004 L 64/5); and Art. 6 of the
Iconet decision (OJ 2005 L 83/48). The Council has also conferred implementing
powers over civil law measures to the Commission in all but one case: for details, see
Peers (n. 23 above), Ch. 2.
91 See Reg. 2424/2001 (n. 55 above); Art. 5 of the VIS Decision (n. 59 above); Art. 6(2)
and (3) of Reg. 377/2004 on ILOs (OJ 2004 L 64/1); and Art. 27 of Reg. 343/3003
(OJ 2003 L 50/1). On the latter, see further Ch. 10.
92 On the issue of the choice of committee under the 1999 “comitology” rules, see the
judgment in Case C-378/00 Commission v EP and Council [2003] ECR I-937 and the
opinion of 15 Sep. 2005 in Case C-122/04 Commission v EP and Council, pending.
72
and Eurodac Regulations, but ultimately backed off.93 But the Court of Justice
upheld the Council’s decision to confer implementing power upon itself regard-
ing visas and border control rules, inter alia because in 2001 the issues had until
recently been dealt with pursuant to the “third pillar”, the transitional period
was still in force and the Council had committed itself to review the delegation
to itself by 2004.94 Subsequently the Council has agreed in principle to confer
implementing powers regarding borders on the Commission,95 although it has
not yet carried out a review regarding visas.
4.3 Judicial Control

The Court had by 1 January 2006 received only one admissible reference from
a national court concerning a Title IV immigration or asylum measure;96 two
cases had been ruled inadmissible.97 This is not surprising, because only a lim-
ited number of measures were applicable at that date,98 and the limitation of
reference powers to final courts obviously restricts access, particularly since the
Court has taken a narrow definition of “final court” where a leave to appeal
93 On the Eurodac dispute, see further Ch. 11. On the SIS dispute, see Statement 159/01
in the Monthly Summary of Council acts for Dec. 2001 (n. 78 above). See also
Statement 158/01 on the limits to the Commission’s implementing powers (idem.).
94 Judgment of 18 Jan. 2005 in Case C-257/01 Commission v Council [2005] ECR I-
345; see Ch. 9 for a criticism of this judgment.
95 See the agreement on the proposed Borders Code Regulation, referred to in in Ch.
7.
96 Case C-241/05 Bot, pending, concerning the Schengen freedom to travel rules. By
the same date, the Court had received ten references on Title IV civil law matters,
of which two had been found inadmissible as they had been referred from lower
courts, and one had been withdrawn. One of the remaining seven cases had reached
the stage of a judgment of the Court of Justice, and a further four had reached the
stage of an Advocate-General’s Opinion. For further details, see Peers, n. 23 above,
Ch. 2.
97 Order in Case C-51/03 Georgescu, concerning the 2001 visa list Regulation, which
was inadmissible as it was not referred by a final court ([2004] ECR I-3203), and
Case C-45/03 Dem’Yanenko (order of the Court of Justice, 18 March 2004, unre-
ported), both inadmissible because they had not been referred by a final court.
98 Member States had to comply with the first Title IV Directives in December 2002
(Directive 2001/40 on mutual recognition of explusion decisions and 2001/55 on
temporary protection), while Directive 2001/51 on carrier sanctions had to be
applied by February 2003 and Directive 2002/90 on facilitation of illegal entry and
residence had to be applied by December 2004. Directive 2003/86 on family reunion
was subject to a deadline of 3 October 2005 and Directive 2003/110 on expulsion
transit had to be applied by December 2005. See further respectively Chs. 25, 15, 26,
28, 19 and 30. However, various visa and borders Regulations and implementing
measures have entered into force since 2001.
73
Steve Peers
system has been established.99 But the limited number of cases is more surprising
as regards the Schengen acquis, where a considerable body of law already exists,
the Court had jurisdiction to receive references as from May 1999 and there were
already references concerning the criminal law aspects of the Schengen acquis.100
However, the Court had received a reference from a Belgian court incidentally
concerning the 1995 version of the visa list Regulation.101
For that matter, the Court had not received any “requests for interpretation”
pursuant to Article 68 EC. However, one annulment action had been decided,102
and three further annulment actions were pending.103 As noted above, the Com-
mission did not bring a challenge to the Eurodac Regulation or the 2001 SIS
II Regulation; it also backed off a challenge to the Council Decision on charg-
ing fees for visa applications, which the Commission argued had breached of
the basic rules in the Schengen Convention.104 The challenge against the family
reunion Directive indicates that the prospect of annulment actions has increased
following amendment of Article 230 EC by the Treaty of Nice to permit the EP
to bring challenges on any ground, not just in defence of its legislative preroga-
tives. Moreover, now that more aspects of Title IV decision-making have shifted
to QMV and co-decision, it is more likely that some outvoted Member States
will bring an annulment action against a Community act they disagree with.
99 Case C-99/00 Lyckesog [2002] ECR I-4839.

100 Joined Cases C-187/01 Gözütok and C-385/01 Brugge, [2003] ECR I-1345; Case C-
469/03 Miraglia [2005] ECR I-2009; Case C-491/03 Hiebeler, withdrawn; C-436/04
Van Esbroek, pending (Opinion of 20 Oct. 2005); and Cases C-467/04 Gaspardini,
C-150/05 Van Straaten, C-272/05 Bowens and C-288/05 Kretzinger (all pending), all
concerning cross-border double jeopardy. See also the judgments of the Court of
First Instance concerning Schengen Secretariat staff: Case T-107/99 R Garcia de
Retortillo v Council [1999] ECR II-1939; Joined Cases T-164/99, T-37/00 and T-38/00
Leroy and others v Council [2001] ECR II-1819; and Case T-166/99 Andres de Dios
v Council [2001] ECR II-1857. The Court has also received two references on third
pillar Framework Decisions (Case C-105/03 Pupino, judgment of 16 June 2005, not
yet reported; Case C-303/05 Advocaten voor der Wereld, pending) and three annul-
ment actions (Cases C-160/03 Spain v Eurojust [2005] ECR I-2077, C-176/03 Com-
mission v Council, n. 47 above, and C-440/05 Commission v Council). The Court of
First Instance has received a number of staff cases concerning Europol, two of have
resulted in judgments to date (Cases T-143/03 Smit and T-258/03 Mausolf, judg-
ments of 1 March 2005).
101 Case C-459/99 MRAX [2002] ECR I-6591.
102 Case C-257/01 Commission v Council (n. 94 above).
103 Cases C-540/03 EP v Council (validity of the family reunion Directive); C-77/05 UK
v Council (validity of UK exclusion from Border Agency Regulation); C-137/05 UK
v Council (validity of UK exclusion from passports Regulation).
74
Similarly, the Commission’s use of its implementing powers may attract chal-
lenges from Member States or the EP over time.
As for infringement actions, in late 2004 the Commission brought thirteen
cases to the Court concerning various Member States’ failure to implement the
first three Title IV Directives.105 By 1 January 2006, this had resulted in five judg-
ments,106 six withdrawn cases (presumably because the relevant Member States
had finally implemented the Directives),107 and two cases still pending.108 Two
infringement proceedings on EC free movement law have incidentally concerned
Title IV issues.109
It is surely clear that from practice to date that the Court will not receive sig-
nificant numbers of references from national courts on immigration and asylum
law until all national courts and tribunals can send references to it. Any thought
that the jurisdiction over “requests for interpretation” would make up for the
lack of preliminary rulings has obviously also been disappointed to date. As a
result, there is no prospect that the Court can play a significant role in ensur-
ing the uniform interpretation of EC law until its jurisdiction is reformed. It is
therefore regrettable that the opportunity to reform the Court’s Title IV juris-
diction was wasted during the Nice negotiations, given the other considerable
reforms to the Court’s functioning agreed in that Treaty.110 These reforms further
weaken the already weak argument that any increase in the Court’s jurisdiction
105 The cases concerned Directives 2001/40 on mutual recognition of explusion deci-
sions, 2001/55 on temporary protection and 2001/51 on carrier sanctions. On the
deadlines to implement Directives in this field of EC law, see further n. 98 above.
106 Cases C-448/04 Commission v Luxembourg (Directive 2001/40), judgment of 8
Sept. 2005, unreported; C-449/04 Commission v Luxembourg (Directive 2001/51),
judgment of 21 July 2005, unreported; C-454/04 Commission v Luxembourg (Direc-
tive 2001/55), judgment of 2 June 2005, unreported; C-462/04 Commission v Italy
(Directive 2001/40), judgment of 8 Sept. 2005, unreported; and C-476/04 Commis-
sion v Greece (Directive 2001/55), judgment of 17 Nov. 2005, unreported.
107 Cases: C-450/04 Commission v France (Directive 2001/40); C-460/04 Commission
v Netherlands (Directive 2001/51); C-461/04 Commission v Netherlands (Directive
2001/55); C-474/04 Commission v Greece (Directive 2001/40); C-515/04 Commis-
sion v Belgium (Directive 2001/55); and C-516/04 Commission v Belgium (Directive
2001/51).
108 Cases C-451/04 Commission v France and C-455/04 Commission v UK (both con-
cerning Directive 2001/55).
109 See Case C-157/03 Commission v Spain [2005] ECR I-2911 and Opinion of 10
March 2005 in Case C-503/03 Commission v Spain, pending, judgment due 31 Jan.
2006.
110 For a detailed analysis, see Dashwood and Johnston, eds., The Future of the Judicial
System of the European Union (Hart, 2001); Kapteyn, “Reflections on the Future of
the Judicial System of the European Union after Nice” 20 YEL (2001) 173.
75
Steve Peers
over Title IV matters would “deluge” the Court.111 Moreover, the Court’s dire
predictions from 1999 about the unmanageable flood of cases expected under
its current jurisdiction have proven to be wholly inaccurate, as the Court’s case
load has stabilised since 1999, most of the predicted “growth areas” for litigation
have yielded few or no cases since that date, and the volume of trademark cases
lodged before the Court of First Instance has been far less than estimated.112
On the “supply side”, the EU courts’ functioning has been improved pursu-
ant to the Treaty of Nice amendments, which have been implemented in part to
create a new staff tribunal and to redistribute cases between the Court of Justice
and Court of First Instance. Furthermore, several changes have been made to
the Courts’ Rules of Procedure and their practical operation to improve their
efficiency. Finally, both Courts benefited from a 67% increase in judicial man-
power from spring 2004, following enlargement of the EU; it will be a long time,
if ever, before enlargement by itself results in a 67% increase in either Court’s
workload.113
So the Court’s fears of general “judicial overload” proved unfounded, and
the Treaty of Nice provides powers for further reforms if they are necessary
(the creation of further third-level judicial panels, the appointment of additional
judges for the Court of First Instance, the transfer of more direct actions or
some preliminary rulings to the Court of First Instance). Given the Council’s
obligation to change the rules concerning the Court’s jurisdiction after the end of
the transitional period and the indefensible limits on its jurisdiction at present, it
is highly objectionable that the Council could not find the political will in 2004
to extend the usual EC Treaty judicial rules to the Court.114
Once the Council decides (or is forced by litigation) to implement its obliga-
tion to alter the Court’s jurisdiction, the question will arise whether amendments
to the judicial system will be needed, to deal with any significant increase in the
Court’s workload that may result and/or to ensure that judgments in asylum
and immigration cases are delivered more quickly than the norm. It would be
desirable, at first, to try ad hoc system of special procedures for these cases in
the Court of Justice, coupled with general reforms to the judicial architecture to
111 See Guild and Peers, “Deference or Defiance? The Court of Justice’s Jurisdiction
over Immigration and Asylum” in Guild and Harlow, eds., Implementing Amster-
dam (Hart, 2000), 267.
112 For detailed analysis of developments in the Court’s workload and “supply side”
improvements in the Court’s functioning, see Peers, “The EU judicial system and
EC immigration and asylum law”, forthcoming.
113 It should be recalled that although the number of Member States (and therefore
judges on each Court) increased by 67%, the population of the enlarged Union
increased by far less.
114 For a detailed analysis of the current rules governing the Court’s jurisdiciton in this
area, see Peers, “The EU judicial system” (n. 112 above).
76
reduce the Court of Justice’s overall workload. The next-best option would be
to transfer some of these cases to the Court of First Instance, on condition of
appointment of additional specialist judges in that Court. If necessary, a more
radical reform of the EU judicial system should start with general changes to the
system, by curtailing or abolishing Advocate-Generals and infringement proce-
dures in their present form. Finally, if absolutely necessary, a final radical reform
could permit the creation of a specialist court at EU level that could answer
questions for a preliminary ruling, particularly in asylum and immigration cases,
on condition that the Court of Justice could review its decisions.115
4.4 Instruments
To date, there has been a clear distinction between the use of Regulations and
the use of Directives by the EC institutions as regards immigration and asylum
measures. In keeping with the EC’s usual approach to areas fully harmonised by
a “common policy”, such as transport, agriculture and the common commer-
cial policy, the proposed and adopted measures concerning visas and borders
have all been in the form of Regulations, with one exception. This was the pro-
posed Directive on freedom to travel, but in fact this proposal has in any event
been withdrawn.116 In comparison, asylum and migration measures have almost
entirely been adopted or proposed in the form of Directives, except where the
acts in question are to be applied uniformly (conflict rules for asylum-seekers
or readmission, the uniform residence permit, social security coordination) or
are administered by the Community institutions (the Refugee Fund).117 In these
cases, Regulations or Decisions are used because Directives would be inappro-
priate, for (respectively) the planned uniformity would be affected by divergent
national implementation and the application of the measure is principally the
responsibility of the Community, not the Member States’ administrations. Deci-
sions are also used to conclude treaties with third states. The approach followed
within the scope of Title IV is consistent with the approach in other areas of
Community law.118 As a result, the mix of Regulations and Directives largely
constrains the Member States in the field of visas and border controls, where
Regulations apply; but Member States will have more flexibility as regards most
aspects of immigration and asylum law.
115 For the background to these conclusions, including an assessment of the options for
the future EC judicial system in this area, see Peers, “The future of the EU judicial
system and EC immigration and asylum law” (forthcoming, EJML).
116 See Annex I.
117 Both factors apply to Eurodac.
118 On Title IV civil law measures, see Peers (n. 23 above), Ch. 7.
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Steve Peers
5 Conclusions
During the transitional period, it seems that the Title IV drafters were largely
successful at achieving their goal of ensuring maximum control of the Commu-
nity’s immigration and asylum policy by the Member States. The unanimity rule
meant that no Member State had to change its immigration or asylum policy
(except as regards visa lists) without its consent. Moreover, this veto, to a large
extent, even applied even to implementing measures because of the Council
decision to allocate some key powers to itself and to take decisions unanimously
in such cases. Although there was a gradual shift toward awarding implement-
ing powers to the Commission, this was limited in the case of “Dublin II” by
insisting that some of the provisions from the implementing rules were inserted
into the basic act.
Normally, the Commission’s power of initiative is a less powerful weapon
where the Council votes unanimously, because the rule that Member States must
vote unanimously to change a Commission proposal (Article 250 EC) means
little when they must vote unanimously to adopt that proposal in any case. But
even in those cases the monopoly on initiative means that at least the Commis-
sion controls the agenda, since it can prevent particular proposals being made in
the first place and withdraw its own proposals if it dislikes the approach which
the Council is taking to them. However, within Title IV, Member States’ vigor-
ous use of their right of initiative as regards irregular migration, borders and
visas diminished the authority of the Commission during the transitional period
and prevented it from controlling the agenda. In particular, the four French pro-
posals on irregular migration of summer 2000, issued before any Commission
legislative proposals on asylum or legal migration (apart from the proposals on
temporary protection, the Refugee Fund and family reunion) clearly established
the Council’s emphasis on irregular migration matters from an early date.
Certainly the Member States did not lose power to the EP or Court of
Justice either during the transitional period. The consultation power of the EP
proved far weaker in the Title IV area than in other areas, given the lack of rules
governing Member States’ exercise of their initiative during the transition period
and the Commission’s unwillingness to redraft its immigration and asylum pro-
posals following EP votes. As for the Court, it has been all but removed as an
actor so far as a result of the limits on its preliminary rulings jurisdiction.
This successful preservation of de facto intergovernmentalism had a cost. It
meant delays before agreement on core legislation relating to asylum and legal
migration (with the proposal on migration for employment dropped altogether),
with most adopted or agreed measures setting standards at or near the lowest
common denominator which existed in Member States’ national law previously.
The measures which were adopted or agreed during the transitional period as
a result fall far short of the Tampere goal of a harmonised policy – never mind
the goal of a balanced policy with fair treatment of third-country nationals and
equal treatment of long-term residents. But unanimous voting can co-exist with
78
effective policy-making if there is a political will to compromise, as there clearly

has been in regard to civil law, criminal law and policing matters in the Coun-
cil.119 While de facto intergovernmentalism could possibly in theory co-exist
with an effective and balanced development of immigration and asylum law, the
practice has shown that Member States will always use the intergovernmental
method as a vehicle to avoid it, insisting instead upon maintaining intact almost
every detail of national immigration and asylum law. There is thus a stark choice
to be made between de jure or de facto intergovernmentalism on the one hand
and development of an effective and balanced immigration and asylum policy
on the other.
Since the start of 2005, we now have “half a loaf ” in this area, with QMV
and co-decision applying to most areas, but with key exceptions, and with the
Court of Justice still nearly entirely excluded as an actor. Time will tell whether
half a loaf in this area will be better than none.
119 This leaves aside the question of whether the EU’s criminal law and policing policies
have been balanced.
79
Chapter 4 Out of the Ghetto? The Personal Scope of
EU Law
1 Introduction
Our understanding of the modern world has been fundamentally changed by
the discussion about globalisation and its consequences. Susan Strange’s retreat-
ing state in the modern world is one in which the exercise of authority in society
and over economic transactions is not longer the monopoly of the state but
rather legitimately exercised by agents other than states.1 Beck’s modern world is
one “through which sovereign national states are criss-crossed and undermined
by transnational actors with varying prospects of power, orientations, identities
and networks.”2 The development of the European Union is often analysed and
presented as an example of the fate of the post modern state, its powers ceded
on the one hand to a supra national structure which in turn, or more correctly
in tandem with developments at the national level, cedes power to non-state
private actors.
As control over many of the nation-state’s fields of sovereignty is dimin-
ished, attention has become increasingly focussed on those areas remaining or
apparently remaining within the control of the state. Torpey’s examination of
the appropriation by the nation state of a monopoly over the legitimate means
of movement of persons across international borders3 and the bureaucratic
requirements of documenting who are nationals of one state and who of another
in order to achieve this appropriation fall clearly within this debate. Interest and
1 Strange, Retreat of the State: The Diffusion of Power in the World Economy, Cam-
bridge University Press: Cambridge (1996), pp. 12-15.
2 Beck, What is Globalisation? (Polity Press, 2000), p. 11.
3 Torpey, The Invention of The Passport: Surveillance, Citizenship and the State, (OUP,
2000), p. 6.
attention are focussed on the remnants of state sovereignty, most specifically the
right to define individuals.
The tension between the project of the European Union – the ever closer
union of the peoples of Europe – and state sovereignty has, over the past 20
years found expression in particular in this space of the definition of individuals
and borders. The highly disputed relationship between individuals, citizenship
and the crossing of borders at EU level has contributed to the creation of a
whole new treaty governing cooperation between the Member States (the Treaty
on European Union was necessitated, inter alia, by the unwillingness of some
Member States to countenance the inclusion of third country nationals within
the competence of the EC Treaty)4 and a further international treaty competing
with the EC Treaty agreed by some of the Member States.5
The changing nature and place of EU borders has been characterised by
their de-linking from territory. Increasingly they apply to persons not on the
basis of their physical position but on the basis of their nationality and indi-
vidual characteristics. The law of borders is no longer homogeneous. Instead
it has become increasingly like the legal order of the French Ancien Régime,
dependent on the personal characteristics of the individual.6 Furthermore, bor-
ders are controlled by a variety of different agents – Member States on behalf of
one another, private actors on behalf of Member States individually and third
countries on behalf of Member States. As borders become increasingly complex
and difficult to identify so the more powerful of the private sector seek to be
exempted from their application at all.7
This emphasis on defining individuals (citizens or foreigners) as the mea-
sure of state sovereignty and thus the bulwark against globalisation on the one
hand and European integration on the other, has resulted in the development
of an orthodoxy regarding Community law, which holds that citizens of third
countries and stateless persons (“third-country nationals”) are excluded from
the personal scope of the EC Treaty except where specifically included.
This attempt to create an orthodoxy limiting the personal scope of the
EC Treaty, along with the EU Treaty, is based on the premise that the trea-
ties are designed solely to confer rights and impose obligations upon citizens
4 Guild, Immigration Law in the European Community (Kluwer, 2001).

5 Schengen Implementing Agreement 1990 which sought to implement the present
Article 14 EC. See generally Pauly, Schengen en panne (EIPA, 1994).
6 Dubost & Sahlins, Et si on fait payer les etrangers? Louis XIV, les immigrés et
quelsques autres, Flammarion: Paris (1999) as quoted in Noiriel, Etat, nation et
immigration vers une histoire du pouvoir, Paris (2001), p. 241.
7 Guild, “The Single Market, Movement of Persons and Borders”, in Scott and
Barnard, eds., The Law of the Single European Market (Hart 2002) 295. See also
Guiraudon & Lahav “A Reappraisal of the State Sovereignty Debate: The Case of
Migration Control”, 33 Comparative Political Studies (2000) 163.
82
Chapter 4 Out of the Ghetto? The Personal Scope of EU Law
of the European Union. In this view, third-country nationals are only affected
by Community law as family members or employees of EC companies, and this
is only in the context of free movement law. Following the Treaty of Amster-
dam, the EC Treaty now allows adoption of measures concerning third country
nationals, but this is only in the limited context of Title IV of Part Three of the
EC Treaty (“Title IV”). In turn, Title IV forms an institutional “ghetto” within
the EC Treaty, subject to opt-outs from three Member States, distinct decision-
making rules for an initial transitional period (since expired) and limited judicial
control by the Court of Justice, at least initially.8
However, there are strong reasons to challenge this view. In fact, as we dem-
onstrate in this chapter, the exclusion of third-country nationals from the scope
of EC law is the exception, not the rule. If third-country nationals were consid-
ered excluded from all EC law apart from Title IV measures, the result would
not simply be a reduction in the rights and benefits that third-country nationals
can claim. Even if it were considered acceptable, even laudable, in the inter-
ests of boosting EU citizenship, to (for example) leave third-country national
children unprotected by EU rules on child pornography and prostitution or to
subject all third-country nationals to unsafe products, food and water, polluted
air and unscrupulous traders, most EU policies could not work effectively with-
out applying to third-country nationals. For the other side of excluding third-
country nationals from the scope of EU law would be to preclude them from
prosecutions pursuant to criminal law harmonised by third pillar measures, to
exempt them from criminal or administrative liability for breaching prohibitions
imposed by EC law and to exclude them from the common agricultural and
fisheries policies.
In this analysis we will examine the EC Treaty and subsidiary legislation,
with passing reference also to the TEU from the perspective of the personal
scope of its provisions. In our view, the orthodoxy cannot be sustained by any
reasonable interpretation of the Treaty. Indeed the jurisprudence of the Court
of Justice consistently counters the “ghetto” approach to third-country nation-
als. The exceptions are indeed that – exceptions to the general rule that third
country nationals are fully within the European construction.
2 Interpreting the EC and EU Treaties

2.1 Approaches to Interpretation
There are several possible approaches to assessing the personal scope of Com-
munity law outside the Title IV “ghetto”. We could apply a “presumed inclu-
sion” approach, meaning that third-country nationals would always be included
8 Articles 67 and 68 EC and Protocols on Denmark, Schengen, border controls and

Title IV. The Treaty of Nice and the Hague Programme, adopted November 2004,
changed decision-making in Title IV but did not change the opt-outs or the role of
the Court of Justice (see further Ch. 3).
83
by Community law, except where specified otherwise. Alternatively, we could

apply a “presumed exclusion” approach, meaning that third-country nation-
als are included only where specified by Community law. Furthermore, stronger
versions of both views are possible: under an “obliged inclusion” approach, it
would be illegal to exclude third-country nationals from the effect of second-
ary Community legislation unless this was expressly authorised or required by
the EC Treaty; and under an “obliged exclusion” approach, it would be ille-
gal to bring third-country nationals under the scope of secondary legislation
unless this was expressly authorised or required by the EC Treaty. The orthodox
view, at least in the version defended by the United Kingdom, is largely one of
“presumed exclusion”. As this chapter demonstrates, the “presumed inclusion”
interpretation is clearly the correct one, and in some cases at least, the “obliged
inclusion” rule applies.
To examine the applicability of Union law to third country nationals, it is
necessary to examine the text of the Treaties, along with legislation and case
law. The following analysis begins with the opening provisions of the EC Treaty,
then examines the non-personal aspects of the internal market (goods, capital),
then examines other EC and EU policies, then addresses the personal aspects of
internal market (persons and services). However, it is necessary at the outset to
consider one argument that potentially could settle the issue of personal scope
very simply.
Could we not simply conclude that it is up to Member States to decide
whether to extend EC law to third-country nationals or not, except where the
Treaty requires or permits an extension of personal scope or the secondary leg-
islation expressly extends it? On this view, even where it might be useful or even
essential to extend Community provisions to third-country nationals in other
cases, it is up to Member States to decide whether to do so, and they may wish
to do so only in part or in a manner which differs from the application of those
rules to EU citizens. At first sight, the principles of subsidiarity and proportion-
ality could be invoked to defend this view. However, this argument is uncon-
vincing because, as explained below, much of the EC Treaty and EC legislation
would be undermined if Member States had the option of excluding or applying
that legislation differently to third-country nationals.
2.2 Initial EC Treaty Provisions

If the EC Treaty drafters had intended to limit the personal scope of the Treaty
in most or all cases to EU citizens alone, we would expect to find provisions set-
ting this out expressly or by clear implication in Part One of the Treaty (Articles
1-16 EC). However, there is no provision in Part One which does so.
First of all, the preamble to the EC Treaty refers to the “peoples” of Europe
or the Member States, not to “citizens”. Within Part One of the Treaty, the EC’s
tasks in Article 2 make no distinction based on citizenship. Similarly, the EC’s
activities in Article 3 make no distinction based on citizenship: Article 3(1)(c)
84
refers to free movement of “persons”, rather than citizens, and Article 3(1)(d)
refers to “the entry and movement of persons” as regards Title IV. In the rest
of Part One, the only reference to citizenship was in the prior version of Article
11(1)(c), but this reference was dropped with the entry into force of the Treaty
of Nice.9 The other significant provisions in Part One are Article 5, which sets
out principles limiting the existence and exercise of Community powers; Article
10, which requires Member States to take appropriate measures to implement
the Treaty; Article 12, which prohibits discrimination on grounds of nationality
“[w]ithin the scope of application of this Treaty and without prejudice to any
special provisions contained therein”; Article 13, which provides a legal base to
adopt measures banning discrimination on six grounds besides nationality; and
Article 14(2), which defines the internal market as an area in which “the free
movement of goods, persons, services, and capital is ensured in accordance with
the provisions of this Treaty”. The wording of Article 14 clearly suggests that its
personal scope is dependent upon the personal scope of the relevant Treaty pro-
visions, which are considered separately in detail,10 although it should be noted
at the outset that Articles 61(a) and 62(1) EC expressly state that third-country
nationals are among the “persons” covered by Article 14. Articles 12 and 13 are
also considered in detail elsewhere.11
2.3 Citizenship
Article 17(1) creates the citizenship of the Union and Article 17(2) states that
Union citizens “shall enjoy the rights conferred by the Treaty and shall be sub-
ject to the duties imposed hereby”. Does Article 17(2) mean that only Union citi-
zens enjoy the rights set out in the EC Treaty and are subject to duties thereby?
This could be dubbed the “wholly excluded’ approach to the issue of personal
scope, and on the face of it, it is a plausible interpretation. However, on closer
examination, this interpretation contradicts the text of the EC Treaty. Article
61(b) EC expressly gives the Community power to adopt measures pursuant to
Article 63 “safeguarding the rights of nationals of third countries”, and Article
63(4) EC in particular confers powers to adopt measures concerning “rights”
of third country nationals who move between Member States. Also, unless one
distinguishes between “rights” and “freedoms”, the EC has the power to adopt
legislation concerning the “freedom to travel” for nationals of third countries,
according to Article 62(3). So Article 17(2) EC cannot logically be interpreted
to mean that EC secondary legislation can never confer rights on third country
nationals.
9 The provision had expressly prohibited the adoption of flexibility measures that
“concern the citizenship of the Union or discriminate between nationals of Member
States”.
10 See Sections 2.4 (goods), 2.5 (capital), 3.1 (workers) and 3.2 (services).
11 See Sections 3.4 (Art. 12) and 2.9.2 (social policy).
85
One might still be tempted to argue that Article 17(2) means at least that
the rights and duties conferred directly by the Treaty are limited to EC nationals.
But again the Treaty does not support such an interpretation: Articles 194, 195
and 255 EC each expressly refer to a “right” which can be exercised by citizens
or residents of the Union.12 Article 17(2) EC therefore cannot mean that third-
country nationals are “wholly excluded” from primary or secondary EC law.
Does Article 17(2) support instead a “presumed exclusion” or “obliged
exclusion” approach? On one reading, a case could be made in light of Article
17(2) that only the specific Treaty provisions conferring express power to act
in regard to third-country nationals allow the Community to adopt measures
concerning those persons, or that secondary legislation only applies to such per-
sons where it makes express reference to them. But a “presumed inclusion” or
“obliged inclusion” interpretation of the Treaty could also be reconciled with
Article 17(2), since that provision remains silent on the question of whether non-
nationals of the Community also enjoy rights and duties. Therefore, in our view,
only a detailed examination of other Treaty provisions and case law can deter-
mine the correct approach to personal scope.
2.4 Free Movement of Goods

The provisions of Part Three of the EC Treaty, setting out Community policies
(Articles 23-181), differ widely as regards their personal scope. Title I on free
movement of goods (Articles 23-31) is not specifically concerned with national-
ity, but Article 23(2) specifies that the customs union and the ban on quantita-
tive restrictions apply not just to goods produced in Member States, but also to
goods from third countries in free circulation. Moreover, increasing trade with
third countries is one goal of the customs union provisions;13 and the grounds
upon which Member States can restrict trade in goods do not relate expressly
to citizenship.14 However, Article 31(1) on state monopolies refers only to non-
discrimination between EC nationals.
In the absence of specific provisions on nationality, except for Article 31(1),
it is submitted that the crucial issue as regards free movement of goods is the
location of the sale or destination of the goods within the Community. Indeed,
goods produced in third countries which enter the Community in free circula-
tion will almost always have been produced and transported at least as far as the
external border by third-country nationals. Also, third-country nationals resi-
12 Furthermore, the EU Charter of Fundamental Rights (OJ 2000 C 364/1) also

extends the right of “communication with the EU institutions” in Art. 21 EC, third
indent, to “everyone”, not just EU citizens (Art. 41(3), Charter). On the personal
scope of the Charter, see Peers, “Immigration, Asylum and the European Union
Charter of Fundamental Rights”, 3 EJML (2001) 141, at 146-148.
13 Art. 27(a).
14 Art. 30.
86
dent or even visiting the Community inevitably purchase goods and a number
of such persons sell goods within the Community as well. Moreover, for cultural
and linguistic reasons, certain goods, such as particular foodstuffs, books, news-
papers, magazines, videotapes and clothes, are disproportionately purchased and
sold by third-country nationals. This is even more true of such goods when they
come from third countries and enter free circulation in the Community. There
is no indication in the text of Articles 28-30 that sales to and by third-country
nationals fall outside the scope of the Treaty, and it is hard to see how a Member
State could invoke Article 30 EC to defend restrictions on movement of goods
based on the nationality of buyers and sellers. The same would hold true of any
secondary legislation concerning the free movement of goods which purported
to distinguish between EC and non-EC nationals.15 Moreover, restrictions on the
sale or purchase of goods on grounds of non-EC nationality of the participants
to the transaction would also undermine several tasks and other objectives of
the Community, and would in most or all cases directly breach the EC’s obliga-
tions under the World Trade Organisation (WTO) and bilateral agreements with
third states. Although Article 31(1) EC refers to non-discrimination against EC
nationals, the text and context of the goods provisions suggests that this provi-
sion is lex specialis, and indeed its existence supports an a contrario interpreta-
tion of the other provisions on goods.
This interpretation is supported by secondary legislation on customs union,
which regulates the entry of goods accompanying persons (including third-
country nationals) on entry into the Community in considerable detail. Such
legislation includes rules on moving the personal effects of “natural persons
transferring their normal place of residence from a third country to the customs
territory of the Community”, with specific rules on the entry of personal effects
after marriage, when furnishing a secondary residence, taking up self-employ-
ment or studying in the Community.16
Title I applies equally to the agricultural and fisheries rules in Title II (Arti-
cles 32-38), except where special agricultural provisions specify otherwise.17 But
there are no agricultural provisions based on citizenship: EC agricultural law
is concerned with using “labour”; at ensuring “a fair standard of living for the
agricultural community”, particularly “by increasing the earnings of persons
engaged in agriculture”; and with ensuring “that supplies reach consumers at
15 On invalidity of EC legislation for breach of Article 28 EC, see, for example, Case
C-51/93 Meyhui [1994] ECR I-3879.
16 Art. 2 and Arts. 11-15, 20-28 and 38 of Reg. 918/83 (OJ 1983 L 105/1), setting out
common rules on exemption from customs duties.
17 See Art. 32(2); this assumes that the “common market” referred to in that para-
graph is a reference to Title I.
87
reasonable prices”.18 It is clear that the Common Agricultural Policy (CAP) or

Common Fisheries Policy (CFP) would be difficult, if not impossible, to admin-
ister without applying their rules to third-country national farmers or fishermen
resident in the Community. The simple reason for this is that if any group of
persons were exempt from agricultural quotas or other means of enforcing the
CAP, or from the fishing limits imposed by the CFP, the limitations imposed
upon Community nationals would be far less effective. Similarly, all third-coun-
try nationals resident or visiting the Community (except possibly during very
short transit) are obviously “consumers” of food.19
2.5 Free Movement of Capital and Payments

Free movement of capital and payments, in Chapter 4 of Title III of Part Three
of the Treaty (Articles 56-60), is comparable to free movement of goods. The
capital and payments rules make no reference to nationality.20 Instead, the Treaty
simply refers to movement of capital and payments between Member States or
Member States and third countries. Obviously some of the capital and payments
moved between Member States, and much of the capital and payments moved
between Member States and third countries, will involve third-country nation-
als as senders or recipients. These Treaty provisions were drafted as part of the
Treaty on European Union (TEU), long after the other Treaty free movement
provisions, so it was open to the Treaty drafters to take account of the contro-
versy over the personal scope of the other free movement rules and expressly
exclude third-country nationals if they wished.
Moreover, the previous Treaty provisions on capital referred to abolition
of restrictions on movement between persons “resident in Member States”,21
and this wording was reflected in the secondary legislation which completed
the abolition of capital restrictions within the Community.22 Since the amend-
ments made by the TEU were intended to enhance the scope of free movement
as compared to the prior Treaty provisions, it follows that the current Articles
18 See respectively Arts. 33(1)(a), 33(1)(b), and 33(1)(d) (emphases added), and see also
Art. 37(3)(a), referring to “the producers concerned” by a common market organisa-
tion.
19 This is true even of persons who only consume foods produced in third countries,
since CAP rules regulate the entry of such food if it falls within the scope of the
CAP.
20 See particularly the reference to “taxpayers” in other countries in Art. 58(1)(a). This
provision is not expressly limited to taxpayers in other Member States (some of
whom will be third-country nationals in any event), and logically is intended to refer
to taxpayers in third countries as well in light of the scope of Art. 56, to which Art.
58(1) expressly refers.
21 Arts. 67(1) and 70(2) EEC.
22 Art. 1 of Dir. 88/361 (OJ 1988 L 178/5).
88
still retain the personal scope of the former provisions. This interpretation is
confirmed by the first judgment on the scope of the revised Treaty provisions
on capital and payments, which in part concerned a Turkish national wishing
to move banknotes from Spain to Turkey.23 Here, the application of the capital
rules to third-country nationals was uncontested.
Can Member States invoke an exception on grounds of third-country
nationality? There is a possible derogation in this field which does not apply
in the context of free movement of goods. Article 57(1) of the Treaty permits
Member States to apply pre-1994 restrictions on free movement of certain types
of capital to and from third countries, so any such “grandfathered” rules will
still be valid, even if they discriminate against third-country nationals on the
basis of nationality, unless Article 12 EC applies to third-country nationals or
such a rule infringes an international agreement concluded by the Community.
Nevertheless, this clause only permits pre-existing restrictions as regards some
types of capital movement; it does not permit pre-existing restrictions against
movement of other types of capital, or as regards free movement of payments,
and would not protect any pre-existing restrictions on third-country nationals
resident within the Community on grounds of nationality. Nor does it apply to
the movement of capital to and from Norway, Iceland and Liechtenstein, due to
the European Economic Area treaty, which applies the EC Treaty capital rules
fully to those States.24 Any such restrictions would relate to “internal” move-
ment between Member States and so could instead only be defended pursuant
to Article 58(1) EC, which sets out general exceptions to the free movement of
capital and payments. Given the Court’s restrictive interpretation of these excep-
tions, it is hard to imagine that a Member State could justify a restriction based
solely on the third-country nationality of a person sending or receiving capital
or payments.25
It could also be argued that Article 58(2) EC, which states that the capital
and payments rules are “without prejudice to” the “restrictions” on the freedom
of establishment compatible with the Treaty, limits the application of the capital
and payments rules to Community nationals. But logically, Article 58(2), which
23 Joined Cases C-163, 165 and 250/94 Sanz de Lera [1995] ECR I-4821. See also Case
C-452/01 Ospelt [2003] ECR I-9743, on the application of the free movement rules
to nationals of Liechtenstein, Norway or Iceland. Further cases on the movement
of capital to or from non-EU countries are pending: Cases C-513/03 Van Hilten-van
der Heijden, Opinion of 30 June 2005; C-452/04 Fidium Finanz; C-492/04 Lasertec;
C-524/04 Test Claimants in the Thin Cap Group Litigation; C-101/05 A; C-102/05 A
and B; and C-157/05 Holbock.
24 On the restriction to certain types of capital movement, see Sanz de Lera (ibid.); on
the non-application to the EEA, see Ospelt (ibid.).
25 On these exceptions, see Peers, “Free Movement of Capital: Learning Lessons or
Slipping on Spilt Milk?”, in Scott and Barnard (n .7 above), 333.
89
has not yet been interpreted by the Court, could only apply where a person is
simultaneously enjoying establishment rights and capital rights. It follows that
Article 58(2) cannot apply to third-country nationals, since they have no free-
dom of establishment pursuant to the EC Treaty in the first place.
2.6 Title IV: Immigration, Asylum and Civil Cooperation

It is obvious that most provisions of Title IV (Articles 61-69) principally apply
to third-country nationals. But only certain provisions apply only to third-coun-
try nationals: the rules on visa lists, freedom to travel for up to three months,
responsibility for asylum-seekers, the definition of “refugee”, temporary protec-
tion, residence in another Member State and provisional measures in an emer-
gency situation.26 However, the provisions concerning other aspects of visa law
and legal and irregular migration also logically apply to third-country nationals
only,27 given the lex specialis rules in Title III concerning (inter alia) movement
of Member States’ nationals and the content of those rules. But the provision
concerning internal borders expressly refers to citizens of the Union as well as
third-country nationals,28 and the provisions concerning external borders, recep-
tion for asylum-seekers, asylum procedures, “subsidiary” protection, “burden-
sharing”, civil cooperation and administrative cooperation make no express
reference to nationality and could at least theoretically apply in practice regard-
less of nationality.29 In practice, the civil cooperation measures adopted to date
have made no distinction on grounds of nationality, with the preamble to the
first “Brussels II” Regulation expressly confirming that this Regulation applies
to third-country nationals “whose links with the territory of a Member State are
particularly close”.30
Civil cooperation was previously governed by Article 220 EEC (now Arti-
cle 293 EC), which refers expressly to EC nationality. But even those treaties
adopted pursuant to Article 293 did not in practice refer to the nationality of a
26 Respectively Arts. 62(2)(b)(i), 62(3), 63(1)(a), 63(1)(c), 63(2)(a), 63(4) and 64(2).
27 Respectively Arts. 62(2)(b)(ii) to (iv) and 63(3).
28 Art. 62(1), which also expressly defines the scope of Art. 14.
29 Respectively Arts. 62(2)(a), 63(1)(b), 63(1)(d), 63(2)(a) and (b), 65 and 66.
30 Regs. 1346/2000 (OJ 2000 L 160/1); 1347/2000 (OJ 2000 L 160/19); 1348/2000 (OJ
2000 L 160/37), particularly recital 8; 44/2001 (OJ 2001 L 12/1); 1206/2001 (OJ 2001
L 174/1); and 805/2004 (OJ 2004 L 143/15). Directive 2003/9 on legal aid (OJ 2003
L 26/41) expressly specifies a rule of non-discrimination between EU citizens and
“third-country nationals residing lawfully in a Member State” (Art. 4). The “Brus-
sels II” Regulation has now been replaced by Reg. 2201/2003 (OJ 2003 L 338/1), but
there is nothing in the later Regulation to indicate that it has a narrower personal
scope.
90
plaintiff.31 In Groupe Josi, the Court ruled that the Canadian domicile of a plain-
tiff was usually irrelevant for the purpose of applying the Brussels Convention;
the important question was in most cases where the defendant was domiciled
in a Member State.32 Moreover, the Court expressly ruled that “it must be con-
cluded that the system of rules of conferment of jurisdiction established by the
Convention is not ... based on the criterion of the nationality of the parties.”33
2.7 Transport
Title V, concerning transport (Articles 70-80), makes no reference to nationality.
This is not surprising as transport within the Community sometimes inevita-
bly involves journeys to and from third countries as well as journeys within the
Community,34 either of which could involve the provision of services by third-
country nationals or their employment by a Community service provider. The
former aspect of the transport rules is reflected by secondary legislation, which
expressly refers to movement to and from third countries in some cases,35 while
the latter aspect is also reflected in adopted or proposed secondary legislation.36
In practice, the Court has taken a “presumed inclusion” approach to transport
legislation, finding in Awoyemi that in the absence of express wording excluding
third-country nationals from the scope of the Directive on mutual recognition
of drivers’ licences, a Nigerian national usually resident in the UK could rely
on it.37 This was despite the preambular reference in the Directive to the free
31 See the consolidated texts of the Brussels and Rome Conventions (OJ 1998 C 27).
See also the Opinion in the Ingmar case, n. 108 below, drawing a link between the
personal scope of the commercial agents’ directive and the personal scope of the
Rome Convention.
32 Case C-412/98 [2000] ECR I-5925. Subsequently the Court has ruled that the
Convention applies even where a dispute involves only one Contracting State and
non-Member State(s): judgment of 1 March 2005 in Case C-281/02 Owusu, not yet
reported.
33 Paras. 53 and 54 of judgment, ibid.
34 See the Court’s interpretation of the present Article 71(1)(a) EC in Case 22/70 Com-
mission v Council (ERTA) [1971] ECR 263.
35 See Regulation 3820/95 (OJ 1985 L 370/1) on driving time, particularly Art. 2(2),
and Case C-313/92 Van Sweiten [1994] ECR I-2177 and C-439/01 Cipra and Kvas-
nicka [2003] ECR I-745; on maritime issues, see for instance Case C-435/00 Naftil-
iaki [2002] ECR I-10615; and on aviation, see Regs. 868/2004 (OJ 2004 L 162/1) and
847/2004 (OJ 2004 L 157/7) and Directive 2004/36 (OJ 2004 L 143/76).
36 See particularly the proposed Regulation on maritime cabotage and Directive on
manning conditions between Member States (COM (1998) 251, 29 Apr. 1998; the
latter proposal was amended by COM (2000) 437, 13 July 2000), and Reg. 484/2002
on driver attestation (OJ 2002 L 76/1).
37 Case C-230/97 [1998] ECR I-6781.
91
movement of persons.38 It might seem odd that transport services have a wider
personal scope than other services, but the Treaty clearly recognises the distinc-
tiveness of the transport sector, by stating expressly that transport services are
governed by Title V, rather than Chapter 3 of Title III.39
2.8 Competition, State Aids, Taxes and Harmonisation

Like Title V on transport, no provision of Title VI of Part Three of the EC
Treaty (Articles 81-97) expressly restricts its personal scope. This is borne out by
the case law. First, since the test for applying Articles 82 and 83 EC is whether
“trade between Member States” is affected, the Court has consistently held that
the competition provisions of the Treaty and secondary legislation might apply
to activities concluded outside the EU which have an effect within it.40 This nec-
essarily entails application of the Treaty at least to legal persons established in
non-member countries. Similarly, Advocates-General have argued in two cases
that the competition rules preclude certain aspects of the football transfer system
regardless of the nationality of the persons involved;41 in the case of Balog, this
was expressly clear because the player was Hungarian. Moreover, Advocate-
General Stix-Hackl argued in her Balog Opinion that the Treaty’s competition
provisions could even preclude rules concerning transfers of players from the
Union to third countries.42
As for the state aids provisions, according to Article 87(1), they also apply
whenever “trade between Member States” is affected, although they usually
have no direct application to natural persons. Indeed, in Sloman Neptun, a case
involving alleged state aid for the employment of third-country nationals, the
Court implicitly presumed that the Treaty rules could apply regardless of the
nationality of the employees in question.43
As for tax, it would be bizarre indeed if the secondary legislation imple-
menting Articles 90-92 drew distinctions on the basis of nationality, since those
Treaty Articles refer only to taxation of products of Member States, without
distinctions as regards the nationality of purchasers or sellers. Value-Added Tax
and excise duties are generally payable by all final consumers in the Community,
with exceptions for exports outside the Community; it would obviously be an
38 See also the link between the Schengen acquis and secondary transport legislation
drawn in the Opinion in Case C-70/99 Commission v Portugal [2001] ECR I-4845.
39 Art. 51(1) EC.
40 Case 6/72 Continental Can [1973] ECR 215; Joined Cases 89/85, 104/85, 114/85,
116/85, 117/85 and 125/85 to 129/85, Ahlstrom and others [1988] ECR 5193; Case
T-102/96 Gencor [1999] ECR II-753.
41 Case C-415/93 Bosman [1995] ECR I-4921; Case C-264/98 Balog, Opinion of 29
March 2001, unreported (case withdrawn).
42 Transfers from third countries were not at issue in the case.
43 Joined Cases C-72 and 73/91 [1993] ECR I-887.
92
enormously complex and expensive exercise to exempt third-country nation-

als from such taxes, to say nothing of the considerable loss of revenue. This is
reflected by the lack of nationality distinctions in secondary legislation.44
Finally, Article 95, granting the Community power to harmonise national
laws that affect the functioning of the internal market, contains a well known
exemption as regards measures “relating to the free movement of persons” in
Article 95(2). Nevertheless, the legislation adopted pursuant to that provision is
often relevant to natural persons, who might either derive rights or be subject to
obligations as a consequence of the legislation. Since the legislation in question
usually relates to the free movement of goods, the comments above regarding the
personal scope of Title I of Part Three are applicable.45 Additionally, in this field
it is obvious that excluding third-country nationals from legislation designed
to ensure freer movement of goods and avoid distortion of competition will
likely undercut those objectives, particularly the latter one.46 Also, the reference
to Article 14 EC in Article 95(1) must logically in part incorporate third-country
nationals in part, since Article 14 incorporates such persons.47
2.9 Flanking Policies

The remainder of Part Three of the EC Treaty contains several categories of
Titles. First, a number of Titles make no express distinction based on national-
ity, even though they are directly relevant to natural persons. These are Title VII,
concerning economic and monetary union (EMU); Title XII, concerning cul-
ture; Title XIII, on public health; Title XIV, on consumer protection; and Title
XIX on environment. Secondly, a number of Titles similarly draw no distinction
based on nationality, but are indirectly relevant to natural persons: Titles XV
to XVIII concerning trans-European networks, industry, economic and social
44 See particularly Directive 83/183 (OJ 1983 L 105/64) on excise tax exemptions,
which contains rules on personal effects coming from third countries; compare with
the longer customs rules on the same issue (n. 16 above).
45 S. 2.4 above. For example, see EC intellectual property legislation, which usually
makes no reference to nationality but on occasion draws a distinction between EC
and non-EC nationals and/or non-EC residents (see Art. 3 of Dir. 87/54 on pro-
tection of semiconductors (OJ 1987 L 24/36), although a subsequent amendment
has revoked discrimination against nationals or residents of other WTO members
(Decision 94/284, OJ 1994 L 349/201); Art. 7 of Dir. 93/98 on the term of protection
for copyright (OJ 1993 L 290/9); Art. 11 of Dir. 96/9 on the protection of databases
(OJ 1996 L 77/20); and Art. 7 of Dir. 2001/84 on resale rights for artists (OJ 2001 L
272/32).
46 On the objectives of measures adopted pursuant to Article 95, see Case C-376/98
Germany v EP and Council (tobacco advertising) [2000] ECR I-8419 and C-491/01
BAT [2002] ECR I-11453.
47 See the discussion of the provisions on free movement of goods, capital, persons
and services (ss. 2.4, 2.5, 3.1 and 3.2).
93
cohesion and research. Third, there are several provisions which necessarily con-
cern relations with third countries: Title IX on the common commercial policy;
Title X on customs cooperation; Title XX on development cooperation; and
(following the entry into force of the Treaty of Nice) Title XXI on cooperation
with other third states. Finally, there are two related Titles where the position of
third-country nationals is highly relevant but also potentially ambiguous. These
are Title VIII, concerning employment policy, which makes no direct reference
to nationality, and Title XI, concerning social policy, youth, education and voca-
tional training. Several Titles are worth more detailed consideration.
2.9.1 EMU
First, it is hardly surprising that the Treaty provisions on EMU do not distin-
guish between nationals of Member States and non-Member States, for EMU
simply would not work unless it applied to all persons in the territory of partici-
pating states. It would be technically possible to require resident and/or visiting
third-country nationals to use a different currency, but the cost to business and
government would be substantial, and no useful objective of such a requirement
is apparent. As for the economic aspects of EMU, it would simply be impossible
to develop an economic policy that applied only to EC nationals as distinct from
third-country nationals.
2.9.2 Social Policy

The substantive provisions of Article 137 in Title XI only refer to nationality
at one point, conferring power on the Community in Article 137(1)(g) to adopt
measures concerning the “conditions of employment for nationals of third coun-
tries legally residing on Community territory”.48 To date, no such measures have
been adopted by the Council, or even proposed by the Commission. Addition-
ally, Article 136 refers to the Community Social Charter and the Council of
Europe Social Charter; Member States “hav[e] in mind” the rights in those two
Charters when setting out the objectives of the social policy chapter of Title
XI (Articles 136-148). The former Charter arguably restricts the rights set out
therein to EC nationals, by virtue of a clause in the preamble which states that
“it is for Member States to guarantee that workers from non-member countries
and members of their families who are legally resident in a Member State of the
European Union are able to enjoy, as regards their living and working conditions,
treatment which is comparable to that enjoyed by workers who are nationals of
the Member State concerned”. The latter Charter is explicitly restricted in scope
to nationals of the Contracting Parties, plus refugees. So we apparently have two
good arguments for concluding that third-country nationals are not generally
covered by EC social policy legislation, unless measures pursuant to the spe-
48 This was Art. 137(3), fourth indent, before the entry into force of the Treaty of
Nice.
94
cific clause on conditions of employment for third-country nationals are adopted

by the Council: an a contrario and lex specialis argument based on the specific
Council power to adopt such rules, and the limited personal scope of the two
Charters which form the basis of the objectives of the social policy chapter.
These appear at first sight to be convincing arguments, but we submit that
they are not correct. As regards the two Charters, Article 136 states that “the
Community and the Member States, having in mind fundamental social rights
such as those set out in” the two Charters, has certain social goals. This word-
ing suggests strongly that the Community and Member States have in mind the
substantive provisions of those Charters, not their personal scope. If the Treaty
drafters had wanted to indicate that the Community and Member States had
in mind all aspects of those Charters, they could have used different wording,
instead referring to the EC and Member States “having in mind” the two Char-
ters generally, rather than the substantive rights within them. Second, as regards
Article 137(3), its wording should be compared to Article 49, which creates rights
for EC nationals to provide services then confers power to extend the services
chapter to established third-country nationals. The wording of the latter Article
indicates clearly that third-country nationals have no primary rights to provide
or receive services until the Council has acted (“[t]he Council may…extend the
provisions of this Chapter to nationals of a third country…”); but the differ-
ent wording of the former, which refers to adoption of rules on conditions of
employment for third-country nationals, rather than the extension of existing
rules to them, suggests the opposite conclusion – that third-country nationals
are covered by EC social legislation in the absence of special rules adopted by
the Council. Furthermore, this interpretation is supported by the underlying
objectives of Community social policy set out in Article 136. If Member States
were free to exempt third-country nationals from EC social legislation, a signifi-
cant section of the workforce would have limited prospects of “improved living
and working conditions” and there would be little progress towards “combating
of exclusion” – rather the reverse. In fact, if third-country nationals could be
subject to poorer working conditions than EC nationals, employers might be
tempted to hire third-country nationals instead to save costs, undercutting the
standards applicable to EU citizens in the workforce, hindering the accomplish-
ment of the Community’s social policy objectives for all workers and arguably
hindering the free movement of workers who are EU citizens (since employers
would choose to hire poorly paid resident third-country nationals instead of the
nationals of other Member States, who are entitled to equal treatment with the
nationals of that Member State). The same holds true of the Treaty provisions
on equality between men and women. This interpretation is confirmed by the
Court’s judgments in Germany and others v Commission,49 holding that access to
49 Joined Cases 281, 283-285 and 287/85 [1987] ECR 3203. See now the Opinion in
Case C-171/01 Birklite ([2003] ECR I-4301), in which Advocate-General Jacobs
95
employment and working conditions of third-country nationals affects the EC’s

social policy, and in Suzen,50 which assumed that a Turkish national fell within
the scope of the acquired rights Directive, a much-litigated measure which gov-
erns transfers of employment contracts.51 It is also expressly supported by the
Opinion in Sloman Neptun.52 Finally, this interpretation matches the position
expressly set out in the Directives implementing Article 13 EC,53 although these
are not technically social policy measures as they were not adopted pursuant to
Title XI EC.54
So what does the power over the conditions of employment of third-coun-
try nationals in Article 137(1)(g) consist of ? In our view, it consists of three ele-
ments. The first is the power to extend equality in working conditions to aspects
of social law that fall within the scope of the Community’s powers,55 but which
have not yet been subject to measures adopted pursuant to Article 137.56 The
second is the power to ensure that where Member States apply higher social
law standards regarding matters within the scope of EC powers than the mini-
mum standards set out in EC social legislation, pursuant to the second indent
of Article 137(4), those higher standards are extended equally or to some lesser
argued that excluding Turkish nationals from trade union rights would violate the
social policy principles set out in Art. 136 EC.
50 Case C-13/95 [1997] ECR I-1259.
51 Dir. 77/187 (OJ 1977 L 61/27), later amended (Dir. 98/50, OJ 1998 L 201/88) and
then consolidated (Dir. 2001/23, OJ 2001 L 82/16).
52 Para 3, n. 43 above.
53 See Art. 3(2) of Dirs. 2000/43 and 2000/78 (OJ 2000, L 180/22 and L 303/6), which
state that third-country nationals are within the scope of the relevant directives,
excepting measures related to their immigration status (see also recitals 13 and 12
respectively).
54 Since these two Directives are not social policy measures, we rely on them only to
show that Article 13 is subject to the same underlying reasoning as social policy
measures as regards personal scope. We do not suggest that the personal scope of
the Directives necessarily means that Article 13 has the same personal scope as the
social policy chapter. Conversely, it cannot be argued a contrario from Art. 3(2) of
each of the Article 13 Directives that in the absence of an explicit provision bringing
third-country nationals within the personal scope of a social policy measure, such
measures are limited in scope to EU citizens. Rather we suggest that the personal
scope of Article 13 and of the social policy Chapter must be determined indepen-
dently. There is no reference to nationality in the proposed or agreed text of the
Article 13 Directive concerning sex equality (COM (2003) 657, 5 Nov. 2003; agreed
text in Council doc. 13137/04, 6 Oct. 2004).
55 See Article 137(5) EC, which sets out exclusions from those powers.
56 For example, stress at work, which has not yet been the subject of a health and
safety directive.
96
extent to third-country nationals.57 The third element is access to employment

for third-country nationals, an issue considered further below.58
As for education and vocational training (Articles 149 and 150), follow-
ing objections by the United Kingdom, a Recommendation on encouraging
mobility within the Community for students, trainees, volunteers, teachers and
trainers was watered down so that it did not explicitly govern third-country
nationals, although the final position is ambiguous.59 While the definition of the
persons covered is not limited by nationality, a recital in the preamble claims
that the Recommendation is only “aimed” at EU nationals, while a substantive
clause refers expressly to them.60 In our view, following a “presumed inclusion”
approach, the Community’s powers on education and vocational training apply
fully to third-country nationals, except where more specific provisions concern-
ing social security and moving residence between Member States apply. This is
confirmed by the practice of including third-country nationals within Commu-
nity programmes.61
2.9.3 Health, Consumer and Environment Policy

It would be difficult or even impossible to restrict many aspects of these policies
to EC nationals only, in particular as regards general measures which aim to pre-
vent contagious diseases, control advertising or packaging or limit pollutants in
the soil, water or air. Indeed, environmental law applied solely within the Com-
munity will often inevitably affect residents of third countries, for example as
regards air or water pollution. While it would be technically possible to limit cer-
tain aspects of these policies to EU citizens only, providing for instance that only
EU citizens could invoke the unfair contract terms directive in courts or insist
upon an environmental assessment of a planned project, it is hard to see how
those policies would be enhanced by the exclusion of third-country nationals.
Rather they would be more difficult and expensive to administer. In the absence
57 Article 137(1)(g) does not require the relevant measures to ensure equality between
third-country nationals and EC nationals, although a measure which did not do
so might be legally suspect on grounds that it breached human rights and the EC’s
agreements with third countries, many of which require equal treatment for nation-
als of the signatory state.
58 See s. 3.1 below.
59 Recommendation 2001/613 (OJ 2001 L 215/30); compare with initial and amended
proposals (COM (1999) 708, 21 Jan. 2000 and COM (2000) 723, 9 Nov. 2000) and
see 27th and 29th reports of the House of Commons Select Committee on Euro-
pean Scrutiny (1999-2000).
60 See the Annex, recital 20 and point I(1)(h) of the Recommendation (ibid).
61 See now the “Erasmus Mundus” programme designed solely for third-country
national students coming from outside the European Union (OJ 2003 L 345/1).
97
of any textual limitation in the Treaty, it is therefore not convincing to suggest

that these policies are limited to EU citizens.
2.9.4 External Policies

Obviously it is inevitable that the Common Commercial Policy, customs coop-
eration policy, and policies on development, cooperation with industrialised
countries and association policies will impact on third country nationals. In fact,
a large number of association agreements concluded by the Community pursu-
ant to Article 310 EC do include specific rules on third-country nationals, par-
ticularly the treaties with Turkey, the Maghreb states, and Central and Eastern
Europe.62 The most significant issue following entry into force of the Treaty of
Amsterdam is the relationship between these provisions, particularly the asso-
ciation provisions, and Title IV. Following the Treaty of Amsterdam, the UK
insisted upon a clause in the Council Decision approving the various EC trea-
ties with Switzerland that the provisions relating to free movement of persons
with Switzerland only takes effect for the UK and Ireland as an international
law commitment, rather than a Community law commitment, even though the
package of treaties has been concluded by a Council Decision based on Article
310.63 Subsequently, the treaties between the Community, its Member States and
the former Yugoslav Republic of Macedonia (FYROM) and Croatia state that
the provisions in those treaties falling within the scope of Title IV EC shall only
apply to the UK and Ireland as Community law following a decision to “opt-in”
to those measures.64 Are these provisions valid?
Assuming that the Council was legally correct to sign the Swiss treaties in
the form of a single Decision based on Article 310 EC, the Council is nonethe-
less wrong to assert that aspects of a treaty based on Article 310 EC can be
“carved out” and treated as measures based on Title IV EC. The meaning of
Treaty provisions should not change unless their wording is altered expressly by
Treaty amendment or unless another provision of the Treaty which expressly
changes their meaning by reference or by necessary implication is amended or
inserted. Since the Court had long ago found that association agreements can
confer rights on nationals of third countries and that the immigration provisions
62 For an analysis of these treaties, including the relevant case law, see Hedemann-
Robinson, “An Overview of Recent Legal Developments at Community Level
in Relation to Third-Country Nationals Resident within the European Union,
with Particular Reference to the Case Law of the European Court of Justice,” 38
CMLRev. (2001) 525.
63 OJ 2002 L 114. This differs from the Commission’s proposal for separate approval
of each treaty using separate legal bases (see COM (1999) 229, 4 May 1999). See the
13th and 14th reports of the House of Commons European Scrutiny Committee
(1999-2000).
64 Preamble to treaties (OJ 2004 L 84/13 OJ 2005 L 26/3).
98
of such agreements fall within the scope of Community powers,65 the insertion of
Title IV into the EC Treaty could only change that situation by expressly altering
the scope and effect of Article 310 EC or by altering the scope of Article 310 by
implication. However, the Treaty of Amsterdam inserted only one express provi-
sion into the EC Treaty to alter the scope of Article 310: the Protocol on border
control for the UK and Ireland, which refers to all provisions of the EC Treaty
and any secondary measure or international treaty adopted pursuant to it. But
this Protocol could only affect the provisions of the agreement with Switzerland
which relate to crossing borders.
Alternatively, has the Treaty of Amsterdam amended the scope of Arti-
cle 310 EC by implication? The answer is clearly no, because the Court’s initial
reason for concluding that immigration provisions fell within the scope of the
Community’s powers over association agreements were that such agreements
gave the EC the power to extend the Community’s internal rules to associated
states.66 So free movement of Swiss nationals into the EC is linked to Title III of
Part Three of the EC Treaty, on the free movement of persons, not to Title IV,
on immigration and asylum. Therefore only those provisions of an association
agreement which govern immigration from none of the Contracting Parties to
that agreement (for example, provisions governing readmission of nationals of
non-contracting States) are linked to Title IV EC within the EC legal order.
In the alternative, even if the UK and Ireland are entitled to opt out of the
so-called “Title IV” provisions of the agreement with Switzerland, any decision
to opt in must entail opting into a Community act, not opting in intergovernmen-
tally. The Protocol on the application of Title IV in the UK and Ireland does
not provide for any possibility for those Member States to accept any Title IV
legislation merely as “an obligation under international law”, by contrast with
the Protocol on Denmark.67
As for the treaties with FYROM and Croatia, it can again be argued that
the limitation as regards Title IV matters only applies to rules which affect
asylum and immigration from non-contracting parties.68 In the alternative, if
it is considered that the opt-in provisions apply even to nationals of Croatia
and FYROM, the validity of those provisions can again be doubted in light of
the scope of Article 310 EC. In any event, even if the relevant provisions are
valid and apply to nationals of Croatia and FYROM, the “opt-out” does not
65 Case 12/86 Demirel [1987] ECR 3719.

66 See Demirel, ibid.
67 Compare Arts. 3 and 4 of the former Protocol (“adoption and application” of a
proposed measure, and “intention to…accept” an adopted measure) with Art. 5 of
the latter.
68 Unlike the EC-Swiss agreement on movement of persons, the two Stabilisation and
Association Agreements do contain provisions on immigration from outside the
contracting parties.
99
extend to the employment of workers or the provision of services by persons

established within the Community or to the provisions on working conditions or
social security in these treaties, since these are matters falling outside the scope
of Title IV.69
2.10 EU Treaty
As for the EU Treaty, the decisions of the Union must be taken as closely as
possible to the “citizen”, according to Article 1 EU. The creation of Union citi-
zenship is one of the objectives of the Union, according to Article 2 EU; the
other four objectives mentioned are not limited to EU citizens. Article 7(3) EU,70
like Article 309 EC, refers to the effect of suspending rights of a Member State
upon “natural and legal persons”, rather than upon citizens. Title V EU neces-
sarily concerns relations with third countries, and the Union’s objectives include
the development and consolidation of “democracy and the rule of law”, along
with “respect for human rights and fundamental freedoms”,71 issues of direct
importance to the citizens of third states. One provision of this Title concerns
the implementation of the citizenship provisions of the EU Treaty.72 As for Title
VI (the “third pillar”), the “chapeau” of Article 29 EU states that the Union’s
objective “shall be to provide citizens with a high level of safety” as a conse-
quence of developing criminal and policing policies.
The latter provision, although it does not refer to the precise legal concept
of citizenship of the Union, could be nevertheless be taken to suggest that third
pillar policies could, should or must aim to protect EU citizens alone, as distinct
from citizens of third countries. However, despite the Treaty text, such an exclu-
sion is not borne out by practice. The only third pillar measures which in practice
distinguish between EC nationals and third-country nationals are those relating
to immigration law,73 and these distinctions relate only to immigration status,
not to the nationality of victims or alleged perpetrators of crimes. In fact, these
measures show a clear awareness that third-country nationals may be victims of
crime.74 Other measures concern investigation, prosecution and punishment of
69 See Sections 2.9.4 (working conditions), 3.1 (workers), 3.2 (services) and 3.3 (social
security).
70 This paragraph was Art. 7(2) EU before the entry into force of the Treaty of Nice
on 1 Feb. 2003.
71 Art. 11(1) EU.
72 See Art. 20 EU.
73 Framework Decisions on trafficking in humans (OJ 2002 L 203/1) and on the facili-
tation of illegal entry, movement and residence (OJ 2002 L 328/1). See Chs. 27 and
28.
74 This is expressly clear from the later Directive concerning the immigration status of
third-country national victims of trafficking in persons (Directive 2004/81, OJ 2004
L 261/19); see Ch. 29.
100
crime regardless of the nationality of the victims,75 and indeed the Framework
Decision on the status of victims in criminal proceedings applies regardless of
those victims’ nationality.76 It might be objected that these secondary measures
are violating the apparent Treaty injunction to focus only on the safety of Union
citizens, but frankly the Treaty injunction does not make sense. Obviously, for
example, it is not possible for authorities to combat environmental crime on the
basis of victims’ nationality and they will often have no knowledge of the nation-
ality of the victims of child pornography until the end of an investigation, if at
all. It would hardly serve the objective of ensuring citizens’ safety if EU third
pillar measures addressed only crimes committed against EU citizens, since the
perpetrators of crimes committed against third-country nationals would then be
left at large to commit crimes against EU citizens in future. Therefore the refer-
ence to protecting “citizens” should be considered either a rhetorical flourish
or a non-exhaustive indication of the Union’s objectives, rather than a binding
limitation on the personal scope of Title VI.
3 Free Movement of Persons

3.1 Free Movement of Workers
Chapter 1 of Title III of Part Three of the Treaty, on free movement of workers
(Articles 39-42), contains no explicit reference to nationality. Chapter 1 refers to
“workers” in each of Articles 39, 40, 41 and 42 EC. However, it is not clear from
the Treaty whether “workers” has the same meaning in each Article, because only
Article 40 refers back to Article 39. The definition of “worker” is not expressly
limited to nationals of the Member States.
In an early judgment the Court of Justice indicated that third country
nationals did not enjoy primary rights under the EC’s social security legislation,
because (according to the Court), the relevant Regulation only applied to EC
nationals and members of their families and “[s]imilarly, Article [39] guarantees
free movement only to workers of the Member States.”77 This conclusion, by a
chamber of the Court, was of doubtful authority, because the social security
legislation in fact also refers expressly to stateless persons and refugees, there is
substantial case law which suggests that “worker” has a different meaning under
the social security legislation than it does under Article 39,78 and in any event
“workers” of the Member States are obviously not necessarily only “nation-
75 For example, the Framework Decision on environmental crime and the Framework
Decision on child pornography (OJ 2003 L 29/55 and OJ 2004 L 13/44).
76 OJ 2001 L 82/1. See also Directive 2004/80 (OJ 2004 L 261/15) on compensation
for crime victims from the State, which does not limit its scope to EU citizens alone
(recital 2 of the preamble refers to all persons with the freedom to visit another
Member State, not just to EU citizens).
77 Case 238/83 Meade [1984] ECR 2631, para 7.
78 On both points, see Section 3.3 below.
101
als” of those Member States. On one reading of the judgment, it is merely the
exclusion of (some) third-country nationals from the secondary legislation that
deprived the applicant of the benefit at issue.
However, another chamber of the Court later ruled on the issue again in the
1998 Awoyemi judgment.79 This case was primarily about transport, but the right
of a third-country national to non-discrimination in the application of penalties
could not be avoided. Mr Awoyemi was a Nigerian national who held a valid
UK driving licence. He was stopped by the police in Belgium and was charged
with driving a motor vehicle without being in possession of a Belgian driving
licence. Although the Court held that Mr. Awoyemi was covered by a transport
law Directive on mutual recognition of driving licences,80 it also held that the
right not to suffer disproportionate penalties arises from the right to free move-
ment of persons, and therefore “a national of a non-Member country who finds
himself in the same position as Mr Awoyemi may not effectively rely on the rules
governing the free movement of persons which, according to the settled case
law, apply only to a national of a Member State of the Community who seeks to
establish himself in the territory of another Member State or to a national of the
Member State in question, who finds himself in the situation which is connected
with any of the situations contemplated by Community law (see for example
Case C-147/91 Ferrer Laderer [1992] ECR-I-4097, paragraph 7).”81
What is not clear from the Court’s judgment is whether the regulation of
movement of third country nationals as workers is beyond the potential scope
of Article 39. After all, its conclusion on the applicability of transport law to
Mr. Awoyemi was based on the personal scope of the relevant legislation, so it
could be argued a contrario that its conclusion regarding free movement law was
also dependent upon the wording of the legislation.82 While the secondary legis-
lation, in particular Regulation 1612/68 and Directive 68/360 (and now Directive
2004/58), is limited to EU citizens (leaving aside their family members), this may
only be evidence of the fact that the full competence of the Community has yet
to be exercised. It could be argued that within the “legal base” of Article 39, the
Commission could propose and the Council could legitimately adopt a measure
regulating the movement of third country nationals who are already part of the
labour force of the Community.
There remains the question as to whether Article 40, which is the “legal
base” for the adoption of rules on free movement of workers, is wide enough
79 N. 37 above.
80 See s. 2.7 above.
82 The Court’s reference to the Laderer case is, with great respect, quite unconvinc-
ing, for the paragraph it quotes expressly only excludes third-country nationals
from freedom of establishment, which is clearly restricted to EU citizens only by the
explicit wording of Article 43 EC.
102
to support such an adoption of secondary legislation. The Court’s decisions

in Pokrzeptowicz-Meyer, Birklite and Deutsche Handballbund adds support to
the argument that it is not, as the Court expressly stated that Article 39 only
covers EU citizens,83 and Article 40 only gives the EC powers to adoption of
legislation on workers “as defined in Article 39”. On the other hand as these
cases were about Association Agreements and the scope of the prohibition on
discrimination in working conditions in those Agreements, it may be argued
that the reference to the scope of Article 39 is not the Court’s definitive word
on the matter. Indeed, as mentioned above, in the Meade decision the Court’s
judgment included rather loose wording regarding the scope of a free movement
Regulation where the question of the scope of Article 39 was not at the heart
of the case.
The obvious argument to the contrary is that Articles 63(4) or 137, respec-
tively concerning “rights and conditions under which” legally resident third-
country nationals “may reside in other Member States” and “conditions of
employment” for third country nationals, are better legal bases regarding access
to employment for third-country nationals moving within the Community. But,
applying the lex specialis principle, in fact Article 39 is a more specific legal base,
because Article 63(4) does not expressly refer to access to employment for third-
country nationals in another Member State, and Article 137, in common with the
rest of the “social chapter” of the Treaty, does not refer to movement of persons
between Member States.84 Pursuant to this interpretation, Article 63(4) would
remain the correct legal base for resident third-country nationals other than
workers who wished to reside in another Member State, and Article 137 would
remain the correct legal base for third-country nationals’ access to employment
in their initial host Member State.85 This distinction would respect the difference
in wording between the two provisions (“may reside in other Member States” as
compared to “legally resident in Community territory”).
In the alternative, if the Court intended in Meade, Awoyemi and the judg-
ments on association agreements to exclude third-country nationals from the
scope of Article 39 altogether, then Articles 63(4) and 137 apply in tandem to
regulate different aspects of the movement of third-country national workers:
the former is a more specific rule relating to residence, while the latter is a more
specific rule relating to access to employment. Following this scenario, Article
83 See respectively Case C-162/00 [2002] ECR I-1049; n. 49 above; and Case C-438/00
[2003] ECR I-4135.
84 It might be objected that social legislation can govern cross-border situations (for
instance, see Dir. 94/45 on European Works Councils (OJ 1994 L 254/64), but that
it is a different matter from regulating free movement of persons.
85 Art. 39 cannot govern the latter situation, since it only governs movement between
Member States: (Joined Cases 35 and 36/82 Morson and Jhanjhan [1982] ECR
3723).
103
137 would still be the only legal base governing access to employment in the
initial Member State.86
Under either alternative, there are two arguments against the application of
Article 137. First, it could be argued that Article 63(3)(a) in Title IV, the legal
base for measures on the conditions of residence for third-country nationals, is a
better legal base for measures relating to access to employment for third-country
nationals in the first Member State. However, in fact Article 137 is more specific,
because the Title IV clause does not expressly refer to employment. Secondly, it
might be objected that Article 137 only extends to working conditions, and does
not cover access to employment at all in any Member State. But now that the
previous Article K.1(3)(b), which gave the Union third pillar powers over “access
to employment” of third-country nationals, has been rescinded, the social policy
clause is the most specific legal base governing their access to employment. This
interpretation also best respects the earlier Germany v Commission judgment.87
It should be emphasised that whatever limits may apply to hiring third-
country nationals as employees pursuant to the free movement provisions, there
is no logical reason to restrict third-country nationals from invoking the Treaty
provisions on free movement of workers as employers, as EU citizens can do.88
Third-country nationals are consequently also bound as employers by the Treaty
provisions to observe the Treaty rules.89 For example, this means that an Ameri-
can expatriate living in London may employ a French housekeeper, and the UK
86 Bizarrely, the final report of the EU constitutional Convention working group on

social policy (online at: <http://www.european-convention.eu.int>) seemed to sug-
gest that Art. 137(1)(g) is only linked with access to employment by third-country
nationals who move between Member States. If anything, the absence of a refer-
ence to movement in Article 137 suggests that the power is only linked to access
to employment by third-country nationals in the initial Member State. It might be
arguable that Article 137 is linked to both Article 63(3)(a) and 63(4), but there is no
plausible case for linking it only to the latter provision. For more on the scope of
Article 63(3)(a) and 63(4), see Ch. 3.
87 N. 49 above. It is true that the Court gave a narrower interpretation of “working
conditions” in the El-Yassini judgment (Case C-416/96 [1999] ECR I-1209), but the
Court also in effect found in this judgment that the concept of “working condi-
tions” in the EC-Morocco agreement is different from the concept of “conditions
of employment” in the EC Treaty. In the Deutsche Handballbund judgment (n. 83
above), the Court distinguished between access to employment and conditions of
work in the Europe Agreements, applying EC free movement rules by analogy to the
latter concept (see also Birklite, n. 49 above). But this does not mean that “condi-
tions of work” in the association agreements has the same meaning as “conditions
of employment” in the social provisions of the EC Treaty.
88 See Case C-27/91 Le Manoir [1991] ECR I-5531 and Case C-350/96 Clean Car I
[1998] ECR I-2521.
89 See Case C-281/98 Angonese [2000] ECR I-4139.
104
office of the American firm which the expatriate manages may employ a Swedish
personal assistant. If Member States place restrictions on the ability of third-
country nationals to employ persons, such restrictions must not discriminate
between EC nationals as potential employees. This interpretation is in keeping
with the text of the Treaty and secondary legislation, which do not suggest any
restriction as regards the nationality of employers.90 Moreover, this interpreta-
tion is certainly in keeping with the intent of the Treaty, as it would enhance
employment opportunities for migrant Community workers.
3.2 Establishment and Services

Chapters 2 and 3 of Title III of Part Three of the Treaty concern respectively
freedom of establishment and free movement of services (Articles 42-48 and
49-55). The core right of establishment in Article 43 is expressly granted only to
nationals of Member States, but the Council’s powers in Article 44 are not clearly
limited to such persons. While Article 44(1)(e) refers to measures on acquisition
of land by nationals of Member States, Article 44(1)(d) refers instead to “work-
ers” and Article 44(1)(f) refers to “entry of personnel”. Also, Article 44(1)(g)
refers to measures for the protection of “members and others”, with no express
reference to EC nationals, and state aids pursuant to Article 44(1)(h) could also
distort conditions of establishment if they are granted to third-country nation-
als. Moreover, Article 46 refers to restrictions on “foreign” nationals, not nation-
als of other Member States. Article 47 grants powers as regards “self-employed
persons”, although it could be argued that there is an implicit cross reference to
Article 43 here. However, Article 48 in effect grants corporate citizenship of the
Union to any company or firm which is “formed in accordance with the law of
a Member State” and has its “registered office, central administration or princi-
pal place of business within the Community”. The wording of these provisions
suggests that while the core right belongs only to EC nationals, third-country
nationals can be sent as personnel or can rely on the free movement right indi-
rectly in their capacity as managers of an EC company; the latter point has now
been confirmed by the Court of Justice.91
Article 49 expressly limits the freedom to provide services to nationals of
Member States,92 but the services in question are those provided to a “person” in
another Member State. The second paragraph of Article 49 expressly gives the
Council power to extend this freedom to self-employed third-country nationals
90 For example, Art. 2 of Reg. 1612/68 (OJ 1968 L 257/2) refers to “[a]ny national of a
Member State” as an employee, on the one hand, and “any employer” on the other,
suggesting a contrario no restriction on the employer’s nationality.
91 On the former point, see Pasha, [1993] 2 CMLR 350 (IAT); on the latter point,
see judgment of 14 Oct. 2004 in Case C-299/02 Commission v Netherlands, not yet
reported.
92 See also Art. 54, which refers expressly to Article 49, para. 1.
105
established in the Community. This Article is subject to the deadline for estab-
lishing the internal market set out in Article 14(1),93 but the Commission did
not submit proposed legislation implementing this provision until 1999 and the
Council lacked the political will to agree the relevant proposal, despite its Treaty
obligations, so the proposal was withdrawn in 2004.94 In any event, EC compa-
nies can send their third-country nationals abroad as an aspect of their right
to provide services as corporate persons.95 In 1999, the Commission proposed
a Directive with the legal base of Articles 47 and 55 to facilitate the exercise of
this right; this proposal has been withdrawn, but a proposed general Directive
on the provision of services (under discussion in the Council as of 1 Jan. 2006)
now contains provisions on this issue.96
What is the borderline between the services chapter and Title IV? Following
the entry into force of the Treaty of Amsterdam, the UK government argued
that important aspects of the Commission’s two 1999 proposals were governed
by Title IV, rather than Articles 57 (with 66) and 59 EC (now Articles 47, 55 and
49 EC).97 Frankly, this argument is highly unconvincing. First of all, we submit
that the Commission used the correct legal bases for the two proposals when it
93 The Art. 14(1) deadline logically refers only to the powers regarding third-country
nationals in para. 2, since no other part of Art. 49 provides a “legal base” for adopt-
ing measures. Even if one regards Art. 14(1) more broadly, as referring to the Coun-
cil’s powers to adopt services legislation by means of other Treaty provisions (an
implausible interpretation, since Art. 14(1) also refers expressly to Arts. 47 and 80),
Art. 14(1) still must include an obligation to adopt rules on third-country nationals
in addition to EC nationals. If the drafters of the Single European Act (SEA) had
wished to confine the obligation in Art. 14(1) only to EC nationals’ service provi-
sion, they could have done so by referring in Art. 14(1) only to the first para. of Art.
49, just as Art. 54 does. This interpretation of Art. 14(1) also recognises the context
of the SEA’s principal goal of ensuring completion of the internal market, since
Art. 49 was among those internal market Treaty Articles never used before 1986 and
the SEA also relaxed the voting rule in Art. 49 from unanimity to qualified majority.
On the relevance of the SEA’s changes in voting rules, see Case 165/87 Commission v
Council [1988] ECR 5545. While the judgment in Wijsenbeek (Case C-378/97 [1999]
ECR I-6207) rules out the direct effect of Art. 14, it does not rule out the prospect
that the Article creates binding obligations for EC institutions.
94 COM (1999) 3, 26 Feb. 1999; amended version in COM (2000) 271, 8 May 2000. For
the withdrawal, see COM (2004) 542, 1 Oct. 2004, pp. 23-24.
95 Cases C-43/93 Van der Elst [1994] ECR I-3803 and C-445/03 Commission v Lux-
embourg [2004] ECR I-10191. See also Cases C-168/04 Commission v Austria and
C-244/04 Commission v Germany (Opinion of 15 Sept. 2005), both pending.
96 N. 94 above (initial proposals and withdrawal); COM (2004) 2, 5 March 2004 (gen-
eral services proposal), Art. 25.
97 See House of Commons, European Scrutiny Committee, 17th and 27th reports
(1998-99) and 8th, 13th and 23rd reports (1999-2000).
106
originally made its proposals, shortly before the Treaty of Amsterdam entered
into force. Since the right to post workers to other Member States is simply a
corollary of EC companies’ freedom to provide services, the proposal on posted
workers had (and still has) the correct legal bases. Although the Court only
answered questions relating to work permits in Van der Elst, this was simply
because these were the only questions referred. The Court did not indicate that
the entry and residence of the workers fell outside the scope of the corporate
right to post employees; in fact the Advocate-General expressly argued that the
host Member State was obliged to let the employees enter the territory. A right
to post workers without a right to insist upon their entry and residence would
clearly be deprived of any effet utile, as the corporation logically could not pro-
vide the relevant services unless its employees are present.98 The same reasoning
applies mutatis mutandis to rules on expulsion from the Member State. Since the
corporate right to provide services can only be restricted on grounds of public
security, public policy and public health pursuant to Articles 46 and 55 EC, it
follows that the corporate employees must be subject to the legislation govern-
ing expulsion of EC nationals (and their family members) which was adopted
pursuant to those Treaty provisions. As for the other proposal, since the prior
Article 59(2) EC expressly referred to the powers to “extend the provisions of
this Chapter” to third-country nationals, it logically followed that the Council
had powers to extend every aspect of the free movement of services to estab-
lished third-country nationals. The provisions of the two proposed Directives
governing readmission of third-country nationals must be regarded as corollary,
for it was logically necessary for the Directives to set out what will happen if the
conditions for movement of third-country nationals pursuant to the Directive
were no longer met. It is useful to draw an analogy between the corporate right
to post third-country national workers and EU citizens’ right to family reunion
with their third-country national family members and equal treatment of their
family members. In either case, there must be full equal treatment of the third-
country nationals as long as the link with the EC national is maintained, since
their position is an indispensable corollary to the free movement and any restric-
tion placed upon them would place a major obstacle to free movement.
98 For more on this point, see Peers, “Building Fortress Europe: The Development of
EU Migration Law”, 35 CMLRev. (1998) 1235 at 1262-1265. On the Commission’s
view, which summarises the Council legal service’s objections, see SEC (1999) 1879,
12 Nov. 1999; for the alternative view, which does not address the issue from the
perspective that Article 49 grants rights to EC employers in this scenario, see Hail-
bronner, Immigration and Asylum Law and Policy of the European Union (Kluwer,
2000), 201-209.
107
Did the Treaty of Amsterdam change the legal position? We submit that it
did not.99 There are several provisions of the new Title IV that expressly set out
the relationship between other Treaty provisions and the new Title.100 Addition-
ally, the Treaty drafters deleted certain provisions as a consequence of the new
Title,101 and inserted a reference to the Title in a “mainstream” Treaty clause.102
So the Treaty drafters were certainly keenly conscious of the relationship between
Title IV and other parts of the Treaty, but they still inserted no Treaty language
to govern the relationship between the services provisions and Title IV, and did
not provide in Title IV for any powers governing aspects of the provision of ser-
vices by established third-country nationals that are more specific than Article
49 EC. Article 63(4), which admittedly governs resident third-country nationals’
right of residence in another Member State, is nonetheless not as specific as the
services provisions. It must logically follow that the scope of the services chapter
as regards the position of third-country nationals is exactly the same as it was
before the Treaty of Amsterdam. This interpretation also respects the logic of
the Treaty, since Article 49 was part of the original provisions regarding creation
of a common market and then part of the SEA provisions regarding completion
of the internal market. Posting of third-country national employees is a natural
corollary of their employers’ free movement and the provision of services by
established third-country nationals is obviously closely linked to the internal
market, and does not raise the broader issues connected with the establishment
of the area of “freedom, security and justice”.
The next issue is whether third-country nationals can be recipients of ser-
vices within the Community. From the text of the Treaty, they obviously can,
as it is only necessary for the services to be provided to a “person” in another
Member State. The drafters of Article 49 were clearly aware of the distinctions
between EC nationals and third-country nationals and so the wording should
be taken to be conscious and deliberate. Moreover, a wide personal scope of
potential recipients enhances EC nationals’ right to provide services in other
Member States.103 The Court apparently accepted this interpretation in Svens-
son, a case concerning Swedish nationals resident in Luxembourg before Swed-
99 The Council and Commission have therefore correctly excluded the provision of
services by resident third-country nationals from legislation and proposals made
pursuant to Title IV: see Art. 3(2)(e) of Directive 2003/109 on long-term residents
(see Ch. 20) and Art. 3(3)(i) of the proposed Directive on migration for employment
or self-employment (COM (2001) 386, 11 July 2001; see Ch. 21).
100 Arts. 61(a), 62(1), 67(2), 67(4) and 68(1) EC.
101 The former Arts. 100c and 100d EC.
102 Art. 3(1)(d).
103 There is an obvious analogy with the right of third-country nationals to employ
migrant EC nationals: see s. 3.1 above.
108
ish accession, who wished to receive a service from a provider established in

another Member State.104
However, there is an argument against this apparently simple interpreta-
tion.105 The Court has interpreted the services provisions to mean that service
recipients also have rights to move to other Member States and receive services.106
Since third country nationals have no right pursuant to the services provisions to
move to receive services in another Member State,107 it would be illogical to hold
that they should have rights to receive services in any Member State. The reply
to this argument is that the text of the Treaty and intent of the services provi-
sions can still be respected by simply holding that third country nationals have
only a passive status under the services provisions. Put simply, third-country
nationals can either receive services if a Community national service provider
exercises the right to provide them across a border, or provide services if a Com-
munity national service recipient crosses a border to exercise the right to receive
them. Either way, there must be both a cross-border element and a Community
national exercising the free movement right involved. On the other hand, the
third-country nationals lack an active right to cross the border to enter another
Member State themselves in order to provide or receive services, until the Coun-
cil uses its powers pursuant to Article 49 EC to extend the services provisions to
third-country nationals established in the Community.
Application of aspects of free movement of services to third-country
nationals is supported by the judgment in Ingmar, concerning the commercial
agents directive, which was adopted pursuant to the services provisions of the
EC Treaty.108 The Court found that this Directive applies even where the prin-
cipal to an agency contract was established outside the Community, since such
an interpretation would support the purpose of the Directive to protect com-
mercial agents, to make the conditions of competition within the Community
uniform and to increase the security of commercial transactions. As a result, the
Directive must apply wherever there is activity is “closely connected with” the
Community, in particular where the agent carries on activity in the territory of
a Member State.109
104 Case C-484/93 [1995] ECR I-3955.

105 See para. 40 of the Opinion in Svensson, ibid.
106 Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377.
107 We leave aside here the implications for services of third-country nationals’ “free-
dom to travel” pursuant to the measures implementing Art. 62(3) EC or the relevant
Schengen acquis.
108 Case C-381/98 [2000] ECR I-9305.
109 Para. 25 of the judgment (ibid.). See the opinion of the Advocate-General, who
made a more explicit link with the case law on the territorial scope of the competi-
tion rules.
109
3.3 Social Security

At present, the Community’s rules on social security only cover EC nationals,
refugees and stateless persons and their family members, although either these
rules or other rules on social security have been extended to various other groups
of third-country nationals pursuant to treaties with their state of nationality.
The application of the Community rules to non-EC nationals was addressed in
the judgment in Khalil and others and Addou.110 Here the question was whether
stateless persons and refugees, along with their family members, can rely on the
rules even where they have not moved between Member States; but there was an
initial issue of whether such persons were validly included within the scope of
the rules. The Court found that the inclusion of refugees and stateless persons
within the EC rules is valid, on the grounds of historical context and the dif-
ference in the personal scope of Articles 39 and 42 which the Court has long
accepted. Both of these arguments would also serve to justify Article 42 as a
legal base for rules governing social security rules for all third-country national
workers, as the Commission initially proposed.111
3.4 Article 12 EC
Next, we come to Article 12 EC, the non-discrimination clause. It should be
noted at the outset that this well-known provision does not expressly distinguish
between EC nationals and non-EC nationals: it states simply that “[w]ithin the
scope of application of the Treaty, and without prejudice to any special pro-
visions contained therein, any prohibition on grounds of nationality shall be
prohibited”. The case law does not yet specify expressly whether the provision
can currently apply in any respect to third-country nationals. One line of cases,
concerning the particular issue of education rights in other Member States, only
mentions EC nationals,112 but then all the cases referred on this subject have
concerned EC nationals. In the important line of case law on the application of
Article 12 decided since Cowan,113 the Court has until recently taken great care
not to rule that Article 12 applies only to nationals of Member States. Rather
it has consistently stated instead that “[b]y prohibiting ‘any discrimination on
110 Joined Cases C-95/99 to C-98/99 and C-180/99 [2001] ECR I-7413. See case note by
Peers, 39 CMLRev. (2002) 1395.
111 COM (1997) 561, 10 Dec.1997; later replaced by a proposal and adopted Regulation
based on Art. 63(4) EC. This Regulation, and the correct “legal base” for proposals
on this issue, is discussed in Ch. 23. The judgment in Meade (n. 77 above) only con-
cluded that not all third-country nationals were within the scope of the Regulation
at the time; the Court was not asked about the competence of the Community to
include them.
112 Case 152/82 Forcheri [1983] ECR 2323; Case 293/83 Gravier [1985] ECR 593; Case
24/86 Blaizot [1988] ECR 379; Case 39/86 Lair [1988] ECR 3161.
113 Case 186/87 [1989] ECR 195.
110
grounds of nationality’, Article [12] of the Treaty requires that persons in a situ-
ation governed by Community law be placed on a completely equal footing with
nationals of the [host] Member State.”114 It has also consistently referred to
“non-discrimination against persons to whom Community law gives the right to
equal treatment”, along with insisting separately that Article 12 prohibits mea-
sures which restrict the exercise of fundamental freedoms guaranteed by the EC
Treaty.115 On the latter point, the Court has consistently found that rules which
“are liable to affect the economic activity of traders from other Member States”
or have “effects on intra-Community trade in goods and services” fall within the
scope of Article 12.116 Since, as discussed above, the Treaty rules on goods and
to some extent services apply to third-country nationals, it follows that Article
12 should apply to them to that extent at least.
In other cases, the most convincing interpretation of the personal scope of
Article 12 is that it should apply whenever third-country nationals are governed
by Community rules on a given subject. So, for instance, Article 12 should apply
to prohibit discrimination in respect of the freedom to travel provided by the
“Schengen acquis” and in respect of third-country national family members of
migrant EC nationals, but it would only be relevant to third-country nationals
who wish to move to another Member State once Directive 2003/109 on long-
term residents becomes applicable. The alternative “extreme” interpretations
(that Article 12 only applies to Community nationals and that Article 12 already
applies to prohibit all discrimination in any context as regards third-country
nationals) should be rejected. The exclusionary interpretation fails to consider
that third-country nationals have always expressly fallen within the scope of the
Treaty to some extent, whichever approach we adopt to interpreting its personal
scope. If the Treaty drafters had wanted to exclude third-country nationals from
Article 12 altogether or subject its application to them to the Council’s discre-
tion, they could have done so expressly as they did with Articles 42 and 49 EC.
Conversely, to interpret Article 12 to require abolition of any discrimination
between EC nationals and third-country nationals would fail to take account of
the “special provisions” of the Treaty as regards the differences between the legal
situation of EC and non-EC nationals, which are also evident on any interpreta-
tion of the Treaty.
114 Para. 11 of the judgment (emphasis added); the key phrase is repeated at para. 13 of
that judgment and subsequently in para. 32 of Phil Collins (Joined Cases C-92/92
and C-326/92 [1993] ECR I-5145); para. 16 of Data Delecta (Case C-43/95 [1996]
ECR I-4661; para. 18 of Hayes (Case C-323/95 [1997] ECR I-1711); and para. 25 of
Saldanha (Case C-122/96 [1997] ECR I-5325).
115 Para. 19 of Cowan; see subsequently para. 12 of Data Delecta para. 13 of Hayes,
and paras. 17, 19 and 21 of Saldanha (ns. 113 and 114 above).
116 Paras. 13 to 15 of Data Delecta; paras. 14 and 18 of Hayes (n. 114 above).
111
In recent judgments, the Court has apparently veered toward an “exclusion-

ary” interpretation. First, in its Khalil judgment, the Court stated that “Article 7
of the EEC Treaty, which prohibits discrimination against Community nationals
on grounds of nationality (see Case C-45/93 Commission v Spain [1994] ECR
I-911, paragraph 10)” is not relevant to the validity of the inclusion of refugees
and stateless persons in Regulation 1408/71.117 Later, in the Ricordi judgment,
the Court stated that “[Article 12 EC] requires each Member State to ensure that
nationals of other Member States in a situation governed by Community law are
placed on a completely equal footing with its own nationals”.118
What should we make of these statements? Technically, neither judgment
asserts expressly that Article 12 EC covers only EC nationals, although from
the context, that is apparently what the Court means by its statement in Khalil.
In Khalil, it was logically not necessary for the Court to interpret the scope of
Article 12, given its findings on the scope of Article 42 EC. Moreover, the Court
expressly limited its reasoning to the scope of EC powers in 1971, so its reason-
ing may no longer be applicable today, given the amendments to the EC Treaty
made by the Treaty of Amsterdam.119 Having said that, it is hard to see how a
subject can validly fall within the scope of secondary legislation, but outside the
scope of Article 12 EC, which applies “[w]ithin the scope of application of this
Treaty”. Also, even in 1971 secondary legislation covered third-country national
family members of EC nationals.120 The Commission v Spain judgment which the
Court cites as authority did not expressly exclude third-country nationals from
the scope of Article 12 and did not concern a distinction between EC nationals
and third-country nationals; in any event, this judgment concerned Articles 12
and 49 EC taken together.
In the Ricordi case, the application of Article 12 to third-country nationals
was not directly at issue, and with great respect, the paragraphs from the Phil
Collins judgment which the Court cites as authority do not indicate that Article
12 is confined to EC nationals only, referring instead to all persons within the
scope of EC law. So to date there is no entirely clear and unambiguous statement
by the Court that Article 12 EC is limited to Community nationals only; and
even if it were, it can still be argued that the general principle of equality forming
part of EC law covers third-country nationals to some extent.121
117 Para. 40 of the judgment (n. 110 above).

118 Case C-360/00 Ricordi [2002] ECR I-5089, para. 31.
119 See para. 39 of the judgment (n. 110 above).
120 See the Opinion in Case C-459/99 MRAX [2002] ECR I-6591.
121 This line of reasoning is bolstered by the Opinion in Spain v. Eurojust (Opinion
of 16 Dec. 2004 in Case C-160/03, judgment of 15 March 2005, not yet reported),
which expressly argues that a general principle of non-discrimination on grounds
of nationality exists independently of Art. 12 EC. Obviously it is possible that the
112
3.5 Visas, Border Controls and Family Members

Do the Title IV rules apply to visas for and border controls on family members?
Recent practice and an opinion from the Council legal service regarding the
proposed Directive on free movement and residence for EC nationals argues that
Title IV now regulates certain aspects of an issue that was previously regulated
by EC free movement law.122 This is not a convincing argument, given that the
movement of family members is clearly ancillary to movement of EC nation-
als, and it is even less convincing since the Court ruled in Carpenter that the
EC Treaty itself confers rights for family members where there is a link with
free movement.123 In fact, the final Directive 2004/58 on EU citizens regulates
the issue of visa requirements for those citizens’ third-country national family
members extensively; and the Commission’s proposed Regulation establishing a
Code on border control rules leaves the regulation of border controls as applied
to EU citizens’ family members entirely to EC free movement law.124 In light of
the analysis above, this approach is clearly correct.
4 Conclusion
In this article we began by placing the discussion about the personal scope of
EU law within the context of the tensions of globalisation and European inte-
gration. The legal argument that third country nationals are in general excluded
from the scope of Community law is better understood within the framework
of the evolving concept of sovereignty. As we have shown, in fact there are only
exceptional parts of Community law, primarily relating to the free movement of
workers as agents of their own movement, from which third country nationals
are excluded. We have further argued that this exclusion is not structural to the
EC Treaty itself, but rather a result of the choice of implementation through
secondary legislation.
It is clear that the EC Treaty was designed and worded with the inten-
tion that its provisions would in principle apply to all persons within its scope
general principle would have personal and/or material broader scope than Art. 12
EC.
122 See respectively Ch. 8 and Council doc. 10572/02, 10 July 2002. The latter indicates
that the legal service believes that EC free movement law cannot prescribe that a
residence permit is equivalent to a visa for a third-country national family member.
This is logically correct where those family members cross borders independently of
their EC national sponsor, but not when they cross them together.
123 Case C-60/00 [2002] ECR I-6279. See also the judgments in Case C-200/02 Chen
[2004] ECR I-9925; Case C-157/03 Commission v Spain [2005] ECR I-2911, and par-
ticularly paras. 37-38 and 52-53 of the Opinion in the latter case; and the Opinion of
10 Mar. 2005 in Case C-503/03 Commission v Spain, pending.
124 See respectively Arts. 4 and 5 of Directive 2004/58 (OJ 2004 L 229/35) and Arts.
2(7)(b) and 3(a) of the proposed Code (COM (2004) 391, 26 May 2004).
113
and jurisdiction, including third country nationals. The exceptions were speci-
fied. This “presumed inclusion” approach is hardly surprising, for third-coun-
try nationals play a significant part in the economy, society and culture of the
Union. However, between 1957 and 2005, the framework within which the
Treaty is understood has changed. The crisis of the nation state as the main
source of authority and legitimacy has had consequences for the interpretation
of the Treaties. As sovereignty has become increasingly synonymous with the
right to control movement of third country nationals, the Treaty has become
the victim of revisionist interpretation. In order to give legitimacy to the argu-
ment that the Member States as nation states are still “in control”, “control”
has become increasingly defined as control over the movement of third country
nationals and “in control” as a reserve of Member State authority to the exclu-
sion of Community law.
This re-interpretation of the Treaties cannot withstand critical legal analysis
as we have shown in this article. The positioning of the nation state’s symbolic
power in the right to control who is the “other” and what that “other” may do, is
misguided. Already the engagements of the Member States in Community law
make this an unsafe place and definition of power. Those Member States, such
as the UK, which have invested heavily in this definition of their sovereignty in
the end have only made their own compliance with Community law more dif-
ficult but no less inevitable.
114
Chapter 5 Human Rights in the EU Legal Order:
Practical Relevance for EC Immigration
and Asylum Law
Steve Peers
1 Introduction
To what extent does the protection for human rights1 guaranteed by the EU
legal system affect EC immigration and asylum law? This chapter answers that
question, first by examining the extent of human rights protection relevant to
immigration and asylum law within the current EU legal framework,2 domi-
nated by the “general principles of law” with a limited role for the EU’s Charter
1 The EU’s Court of Justice and other EU institutions usually refer to “fundamental
rights”, instead of “human rights”, probably because of the German tradition of
referring to “fundamental rights”. However, there is no evidence to suggest that
there is any difference between the two concepts in the EC legal order and it is
assumed throughout this chapter that the two concepts are equivalent. The phrase
“human rights” is used instead here because of its wider use in international law,
including the European Convention on Human Rights.
2 This chapter focuses on the judicial mechanisms within the EU for protection of
human rights. The current or planned non-judicial mechanisms are not examined.
They include particularly: Article 7 EU (permitting the EU to warn a Member State
off from committing potential serious and persistent breach of human rights, or to
suspend a Member State commits such a breach); the European Parliament’s annual
reports on human rights; the Commission’s Committee of Independent Experts on
Human Rights; the EU’s Ombudsman; and the planned Human Rights Agency. On
the latter, see the discussion paper from the Commission (COM (2004) 693, 25 Oct.
2004), and analysis of the role of the Agency regarding civil and political rights in
Peers, “Civil and Political Rights: the Role of an EU Human Rights Agency” in
Alston and De Schutter, eds., Monitoring Fundamental Rights in the EU: The Con-
tribution of the Fundamental Rights Agency (Hart, 2005). The Commission has now
proposed legislation to create the agency: COM (2005) 280, 30 June 2005.
Steve Peers
of Fundamental Rights, then examining the system for human rights protection
which would be established if the EU’s Constitutional Treaty is ratified.
It will be seen that both the current and the future system for human
rights protection within the EU could potentially have an important practical
impact on immigration and asylum issues within the scope of EC law. With
an ever-growing number of immigration and asylum issues covered by EC law,
this means that a full understanding of immigration and asylum law in the EU
requires an in-depth knowledge of how the EU’s human rights rules apply to
these issues.
2 Current Legal Framework

For over thirty years, the Court of Justice has stated that human rights are pro-
tected within the EU legal order as “general principles of law”. The following
discussion outlines the nature of that protection and its relevance to immigration
and asylum law. As the system for protection of human rights in EU law has not
been static, but rather has developed considerably in recent years, a second sub-
section looks in more detail at recent developments: refinements in the applica-
tion of the general principles; the role of the European Court of Human Rights
exercising “indirect review” of actions of the EC/EU and its Member States; and
the EU Charter of Rights, adopted in 2000.
The key point to keep in mind is that even before the entry into force of
the proposed Constitutional Treaty, the EU has developed a system of human
rights protection which could be quite relevant to the interpretation (or even
possibly the validity) of EC immigration and asylum law. Moreover, even if the
Constitutional Treaty is not ratified, the current system will continue to ensure at
least the current degree of protection for human rights, and the system is open to
clarification or development in a number of areas relevant to immigration and
asylum issues.
2.1 Outline of the Current Legal Framework

2.1.1 General Principles of Law
The main element in the current legal framework for the protection of human
rights in the EU legal order is the recognition of human rights as “general
principles of law” which the European Union protects. Human rights were
first recognised as general principles of law by the Court of Justice in case law
developed since the late 1960s, despite the absence of any direct reference to
human rights in the initial Community Treaties, following the insistence of the
national courts in several Member States that the supremacy of Community law
as asserted by the Communities’ Court of Justice could not be accepted if Com-
munity law jeopardised national constitutional human rights protection.3 The
3 From a huge literature on human rights as general principles of EC law, see de

Witte, “Past and Future Role of the European Court of Justice in the Protection of
116
Chapter 5 Human Rights in the EU Legal Order
existence of the general principles raises a series of key issues: the scope of the
human rights protection, the sources of the rights protected, and the legal effect
of those rights.
The scope of these general principles comprises acts of the EU institutions,
acts of Member States implementing EU measures, and acts of Member States
derogating from EC free movement law.4 The Court of Justice has not yet had
the opportunity to establish whether or not Member States’ derogations from
EU or EC measures in other areas, in particular within the sphere of immigra-
tion and asylum law, falls within the scope of the general principles. At some
point, given the number of important derogations from EC immigration and
asylum legislation, the issue is bound to arise; it will be necessary to argue vig-
orously that EC free movement law should not be considered as a special case,
and that the importance of ensuring effective human rights protection in the
EU legal order requires confirmation that the human rights principles apply to
national derogations from any EU rule in any area of law, in particular immigra-
tion and asylum law.
It follows in any event that, whatever the scope of the application of the EU
principles to national derogations, there are limits on the scope of the EU general
principles: they do not apply where there is an insufficient link to Community
law. An example of this limitation is the well-known Demirel judgment, where
the Court of Justice refused to rule on the human rights argument for the family
reunion of a Turkish worker resident in the Community with his spouse resident
in Turkey, because the EC-Turkey Association Agreement did not regulate the
initial admission of family members of Turkish nationals.5 Of course, the scope
of Community law (and therefore the scope of the general principles) continues
to develop: a dispute such as the Demirel case does fall within the scope of EC
Human Rights”, in Alston, ed., The EU and Human Rights (OUP, 1999), 859, with
further references.
4 See particularly Case 5/88 Wachauf [1989] ECR 2609 (national implementation)
and Case C-260/89 ERT [1991] ECR I-2925 (derogations).
5 Case 12/86 [1987] ECR 3719. On the right to family life under Article 8 of the
European Convention on Human Rights, see, for instance, from an extensive lit-
erature, van Dijk, “Protection of ‘Integrated’ Aliens against Expulsion under the
European Convention on Human Rights” in Guild and Minderhoud, eds., Security
of Residence and Expulsion: Protection of Aliens in Europe (Kluwer, 2001) 23. On
the intersection between the ECHR rights and EC law, including a critical analysis
of the ECHR case law, see (on non-protection cases) Peers, “Family Reunion and
European Community Law”, in Walker, ed., Towards an Area of Freedom, Secu-
rity and Justice (OUP, 2004) and (on protection cases) Peers, “EC law on family
members of persons seeking or receiving international protection” in Shah, ed., The
Challenge of Asylum to Legal Systems (Cavendish, 2005).
117
Steve Peers
law after October 2005, following expiry of the deadline for Member States to
implement the EC’s family reunion Directive.6
The sources of the general principles comprise human rights protection as
set out in national constitutions and international treaties on which Member
States have collaborated; the European Convention on Human Rights (ECHR)
has a particularly prominent place as a source of standards.7 The Court of Jus-
tice has never explicitly accepted that national constitutional sources or interna-
tional sources, even the ECHR apply as such within the EC legal order; rather
these sources set out guidelines to be followed. As for permissible limitations on
the rights, the Court of Justice has developed what might be called a “Commu-
nity standard”: “restrictions may be imposed on the exercise of [human] rights,
in particular in the context of a common organisation of the markets, provided
that those restrictions in fact correspond to objectives of general interest pur-
sued by the Community and do not constitute, with regard to the aim pursued,
a disproportionate and intolerable interference, impairing the very substance of
those rights”. The Court often also states that “fundamental rights are not abso-
lute rights but must be considered in relation to their social function.”8
In this context, the relationship between the EU/EC and the ECHR is par-
ticularly relevant. The EU’s Court of Justice has ruled that, within the current
legal framework, the EC cannot become a party to the European Convention
on Human Rights, because ratification of the Convention would entail the intro-
duction of a different institutional system for the protection of human rights in
the Community legal order.9 A recurring question, given this institutional frame-
work, is the extent to which the interpretation of rights in the ECHR diverges
between the EU Court of Justice and the European Court of Human Rights.10
The Court of Justice has not yet had the opportunity to confirm whether the
Geneva Convention on the status of refugees and the UN Convention against
Torture (now ratified by all Member States) can be considered sources of the
6 Directive 2003/86 (OJ 2003 L 251/12). For more on that Directive, see Ch. 19. On
the other hand, the EC-Turkey Association Agreement still does not cover the ini-
tial admission of family members. It should also be recalled that the UK, Ireland
and Denmark opted out of the family reunion Directive.
7 Case law beginning with Case 222/84 Johnston [1986] ECR 1651.
8 Joined Cases C-20/00 and C-64/00 Booker Aquaculture [2003] ECR I-7411, para.
68, quoting established case law. For an analysis of the issue of limitations of rights
under the general principles of law and the Charter of Rights, see Peers, “Taking
Rights Away? Derogations and Limitations” in Peers and Ward, eds., The EU Char-
ter of Rights: Politics, Law and Policy (Hart, 2004) 141.
9 Opinion 2/94 [1996] ECR I-1759.
10 From a huge literature on the ECJ/ECtHR relationship, see Spielmann, “Human
Rights Case Law in the Strasbourg and Luxembourg Courts: Conflicts, Inconsisten-
cies and Complementarities” in Alston, ed. (n. 3 above), 757.
118
general principles of Community law. If they are, then the next question would
be whether “soft law” such as the UNHCR Handbook and Executive Commit-
tee Conclusions, and the decisions of the Committee Against Torture, are also
sources of the general principles. There are good arguments that all of these
measures should be considered to be such sources, in particular in light of the
references to the Geneva Convention in the EC Treaty itself and in EC legisla-
tion.11 It appears that the International Covenant for Civil and Political Rights
(ICCPR) is a source of the general principles, although the Court of Justice
took a dismissive view of the impact of the opinions of the Human Rights Com-
mittee set up to monitor the implementation and application of the Covenant.12
The Court of Justice has also been willing to examine the compatibility of EC
legislation with international treaties if that legislation asserts its compatibility
with those treaties in its preamble;13 this rule could presumably also be applied
wherever the preamble or main text of EC immigration and asylum legislation
refers to human rights treaties, as much of that legislation does.
In any event, the Court of Justice has certainly confirmed that the protec-
tion of private and family life set out in Article 8 ECHR is among the rights
protected by the general principles of EC law, a finding of great importance
to immigration and asylum cases. This principle has indeed been applied in a
number of cases involving family members of EU citizens,14 although the Court
has not had had an opportunity to confirm its relevance to family members
of third-country nationals.15 But the Court has not yet had the opportunity to
confirm whether the human rights protected in the general principles of EC law
include a “Soering effect” protecting against (direct or indirect) removal to a
country where there is a real risk that the human rights of an individual would
11 For more detailed argument on these issues, see Peers, “Human Rights, Asylum and
European Community Law”, 24 RSQ (2005) 2:24.
12 Case C-249/96 Grant [1998] ECR I-621. On the ECJ’s references to international
human rights treaties other than the ECHR, see Rosas, “The European Union and
International Human Rights Instruments”, in Kronenberger, ed., The EU and the
International Legal Order: Discord or Harmony? (Asser Press, 2001).
13 Case C-377/98 Netherlands v EP and Council [2001] ECR I-7079.
14 Cases 249/86 Commission v Germany [1989] ECR 1263; C-60/00 Carpenter [2002]
ECR I-6079; C-459/99 MRAX [2002] ECR I-6591; C-413/99 Baumbast and R [2002]
ECR I-7091; C-257/00 Givane [2003] ECR I-345; C-109/01 Akrich [2003] ECR I-
9607; and C-482/01 and C-493/01 Orfanopolous and Olivieri [2004] ECR I-5257. Not
all of these judgments refer expressly to Article 8 ECHR, but some refer to judg-
ments of the Strasbourg Court (Carpenter, Akrich and Orfanopolous and Olivieri)
See further Peers in Walker, ed. (n. 5 above).
15 On this issue, see Demirel (n. 5 above) and the Opinions in Cases C-65/98 Eyup
[2000] ECR I-4747, C-275/02 Ayaz [2004] ECR I-8765, para. 44, and C-540/03 EP v
Council (pending).
119
Steve Peers
be violated, at least equivalent to the protection conferred by the ECHR.16 Nor

has the Court had the opportunity to determine whether the actions of the Com-
munity (or the Member States implementing or derogating from Community
law) outside the territory of the Community is subject to the general principles,
at least to the extent that the actions of Member States outside their territory are
subject to the ECHR.17 It is also still an open question whether the procedural
rights which legal migrants must enjoy on expulsion or the rights to free move-
ment, non-expulsion and entry of citizens and the ban on the collective expul-
sion of non-nationals, as set out in ECHR Protocols 4 and 7 and Articles 12 and
13 of the ICCPR, form part of the general principles of EC law.18
Although the ECHR plays a predominant role as a source of the general
principles of human rights protected in EC law, the Court of Justice has con-
firmed that a number of rights not set out in the ECHR additionally form part
of the general principles. This is critical for immigration and asylum disputes,
for it opens the door to the application of further rights besides ECHR rights
to immigration and asylum proceedings. For example, the Court of Justice has
accepted that EC law recognises a right to human dignity as part of the general
principles.19 Many arguments could be developed about the effect of this right
in immigration and asylum cases, for example as regards: conditions in deten-
tion or accommodation of any other kind; other aspects of reception conditions
(particularly as regards social welfare and health care); treatment during expul-
sion operations; and a “Soering effect” (no direct or indirect removal to a State
where human dignity would be infringed).
Also, the Court of Justice has on occasion recognised that a right protected
as part of the general principles of EC law, while inspired by the ECHR, has a
16 See the case law of the European Court of Human Rights starting with Soering v
UK (A-161), and particularly the decision in T.I. v U.K, 7 March 2000.
17 This applies where Member States control the territory or administration of another
country by invasion or consent, or where their authorities undertake actions on that
other country’s territory or which produce effects there: see particularly the Stras-
bourg Court’s decision in Bankovic v UK and others (Reports 2001-XII).
18 Although Protocols 4 and 7 have not been ratified by all Member States, the Court
of Justice and Court of First Instance have referred to rights which appear in both
Protocols (see respectively Case C-370/90 Singh [1992] ECR I-3265, para. 22, and
Case T-224/00 Archer Daniels Midland [2003] ECR II-2597, para. 85 (with further
references)). Besides the Singh judgment, the Court of Justice has referred to the
right of entry and non-expulsion of citizens in a number of other cases, although
the Singh judgment is the only occasion upon which the Court recognised the rule
as a human right: for the relevant cases, see note 31 in Peers, “Civil and Political
Rights” (n. 2 above). In any event, the ICCPR has been ratified by all Member
States.
19 See particularly Cases C-377/98 Netherlands v EP and Council (n. 13 above) and C-
36/02 Omega [2004] ECR I-9609.
120
wider scope than the ECHR right. This is particularly the case with the proce-
dural rights conferred by Articles 6 and 13 ECHR. Article 6 has no application
to immigration or asylum proceedings,20 but the Court of Justice has confirmed
repeatedly that the right to a fair trial and an effective remedy nevertheless applies
wherever there is a link to a right conferred by Community law, and has in par-
ticular expressly confirmed the application of this principle to disputes concern-
ing the admission of third-country nationals.21 The implication of this is that at
least some, and possibly all, immigration and asylum proceedings linked to EC
legislation are covered by the right to a fair trial and an effective remedy (the
precise scope of the principle depends on the question of whether a Community
law right is at issue). Depending on the scope of this principle, the question of
whether the procedural rights in the ICCPR and Protocol 7 ECHR concern-
ing expulsion of legal migrants form part of the general principles of EC law
(discussed above) may be moot, as third-country nationals could enjoy extensive
procedural rights in most or all proceedings concerning admission or expulsion
that fall within the scope of EC law.22 Even where EC legislation appears to
set out a minimum set of procedural rules, the general principles nevertheless
appear to require Member States to set a higher standard if necessary to ensure
effective procedural protection;23 this is obviously relevant to much EC immigra-
tion and asylum legislation, in particular the asylum procedures Directive. It is
also arguable that where the EC sets out certain rights in legislation (such as the
right to be recognised as needing subsidiary protection)24 but does not set out
any relevant procedural rules in its legislation, procedural rights nevertheless
exist by virtue of the general principles of EC law.
Finally, a dormant issue yet to be explored by the Court of Justice is the
potential application of Article 307 EC to human rights issues. This Article
specifies that in case of a conflict between EC law obligations and obligations
established by Member States’ international treaties concluded prior to their
membership of the EU, the conflicting EC obligations are inapplicable in the rel-
evant Member State(s). However, there is an eventual obligation for the relevant
Member States to amend or denounce any such external obligations that conflict
with their obligations to the Community.25 It might be arguable, in light of the
role of human rights treaties as sources of the general principles of EC law, that
20 Maaouia v France (Reports 2000-X).

21 Case C-327/02 Panayotova [2004] ECR I-11055.
22 For a detailed examination of the procedural rights of third-country nationals in
EC immigration and asylum law, see Peers, “Procedural Rights and Data Protection
Rights in EC Immigration and Asylum Law”, forthcoming.
23 Case C-185/97 Coote [1998] ECR I-5199.
24 See Directive 2004/83, discussed in Ch. 13.
25 Cases C-62/98 Commission v Portugal [2000] ECR I-5171, C-84/98 Commission v
Portugal [2000] ECR I-5215 and C-203/03 Commission v Austria [2005] ECR I-935.
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Steve Peers
Article 307 EC applies differently in human rights cases, so as to exempt the

Member States from having to amend or denounce international human rights
treaties they have ratified, particularly the ECHR in light of its paramount
importance to the general principles and the express reference to it in Article
6(2) EU.26 The issue could be relevant to immigration or asylum cases wher-
ever it is arguable that an EC law obligation conflicts with the ECHR (except in
France, which ratified the Community treaties before the ECHR) or the Geneva
Convention on refugee status, or with other human rights treaties depending on
each Member State’s date of conclusion of such treaties as compared to the date
of its EU membership.
As for the legal effect of the human rights protected as general principles
in EC/EU law, the rights can be used both to interpret EC/EU measures and to
rule on their validity,27 although validity challenges have rarely been successful.
To the extent that the general principles apply to actions of the Member States,
such actions could also be invalidated or interpreted in light of the general prin-
ciples.
The inclusion of human rights within the “general principles of law” was
first developed, as noted above, by the Court of Justice. But this case law has
since been confirmed by Treaty amendments. Following successive amendments,
Article 6(2) of the Treaty on European Union now provides that “[t]he Union
shall respect fundamental rights, as guaranteed by the European Convention for
the Protection of Human Rights and Fundamental Freedoms signed in Rome on
4 November 1950 and as they result from the constitutional traditions common
to the Member States, as general principles of Community law.” Article 46 of the
EU Treaty states that the Court of Justice has jurisdiction to interpret “Article
6(2) with regard to action of the institutions, insofar as the Court has jurisdic-
tion under the Treaties establishing the European Communities and under this
Treaty”.28 The Court has taken the view that Article 6(2) reflects its pre-existing
case law.29 It appears that the reference in Article 46 TEU to the Court’s limited
jurisdiction under the Treaties reflects the various limits on its jurisdiction over
26 This particular issue might be addressed by the Court in a pending case (Case C-
145/04 Spain v UK), in which Spain is challenging the UK’s decision to extend voting
rights in European Parliament elections to residents of Gibraltar, in order to imple-
ment its ECHR obligations (see judgment of the Strasbourg Court in Matthews
v UK, n. 51 below), as a breach of EC law. The Court of First Instance appears
to assume that there is no obligation for Member States to attempt to amend or
denounce their UN obligations pursuant to Article 307: see Cases T-306/01 Yusuf
and T-315/01Kadi, judgments of 21 Sept. 2005, not yet reported.
27 Opinion 2/94 (n. 9 above).
28 Art. 46(d) of the Treaty on European Union, as amended by the Treaty of Amster-
dam.
29 For instance, see the Order in Case C-17/98 Emesa Sugar [2000] ECR I-665.
122
foreign policy and justice and home affairs matters established by the Treaty of
Amsterdam.30
Human rights issues reach the EU judicial system by several means. Since
individuals have the greatest interest in enforcing human rights, many claims
are brought by individuals directly against the EU institutions in the Court of
First Instance; an appeal lies from that Court’s judgments to the Court of Jus-
tice. However, due to strict standing rules on challenging the validity of EU
acts directly, individuals often have to begin their challenges to EU acts in the
national courts, which can refer the question of invalidity to the Court of Justice
pursuant to Article 234 EC. Under the same procedure, the Court can receive
references from national courts on the interpretation of EU acts in light of
human rights principles, including references on the compatibility of national
legislation or decisions falling within the scope of EC law with the EU’s human
rights principles. There have also been several cases in which a Member State has
challenged the compatibility of an EU act with human rights principles,31 and
human rights issues are also occasionally raised when the Commission brings
infringement proceedings against Member States for alleged breaches of EC
law.32 In principle, the Commission could also sue to annul an act of the Council,
or Council and European Parliament, for breach of human rights principles.
In the sphere of immigration and asylum, the standing rules will likely
prevent any direct challenges to EC acts by individuals in the Court of First
Instance, and indirect challenges by individuals (or judicial review proceedings
brought by NGOs) will have to reach the final courts of Member States before
they can be referred, due to the restrictions on the Court’s rule set out in Article
68 EC. Also, with increased qualified majority voting in the Council,33 it is more
likely that an outvoted Member State will sue to annul EC action, possibly on
human rights grounds. This could well arise, for example, if the Council adopts
a list of supposed “safe countries of origin” by outvoting some Member States
which object to including some countries on that list on human rights grounds.34
The issue could be relevant to future infringement actions by the Commission as
well, so NGOs active in the field of immigrant or refugee protection should not
ignore the avenue of complaining to the Commission with a view to triggering
30 See Art. Art. 46(a), (b), (c) and (e) TEU as amended by the Treaty of Amsterdam
(since amended by the Treaty of Nice) and in particular, the restrictions applying to
immigration and asylum (Article 68 EC).
31 Netherlands v EP and Council (n. 13 above); Case C-280/93 Germany v Council
[1994] ECR I-4973 (see also interim measures ruling in this case, [1993] ECR I-
3667); and Case C-122/95 Germany v Council [1998] ECR I-973.
32 See Cases 249/86 Commission v Germany (n. 14 above) and C-62/90 Commission v
Germany [1992] ECR I-2575.
34 See Ch. 14.
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Steve Peers
an infringement action. Finally, as discussed below, the European Parliament

has already used its broader powers to bring annulment actions, awarded by the
Treaty of Nice, to attack EC immigration legislation for breach of human rights;
it could perhaps be convinced to use those powers again to attack EC asylum or
immigration legislation for breach of human rights standards in future.35
2.2 Developments in the Current Legal Framework

2.2.1 Developments in the General Principles of Law
The first recent development is some confusion about the scope of the general
principles of law, particularly where a case prima facie falls within the scope of
Community law but, after detailed analysis by the Court of Justice, the reliance
on Community law proves to be unfounded. Do the human rights principles of
EC law still apply in such cases? One might think that such cases were outside
the scope of the general principles, but recent judgments by the Court of Jus-
tice,36 particularly those concerning immigration and asylum issues,37 cast doubt
on this point. Also, in some cases, the Court of Justice is willing to find a breach
of the general principle of equality due to the manner in which a Member State
defines terms essential for the application of EC legislation, even where the defi-
nitions are left to national law;38 this principle could also be useful in the applica-
tion of EC immigration and asylum law.
The most important development in recent years has concerned the sources
of human rights law in the EU legal order. In particular, the role of the Euro-
pean Court of Human Rights as a source of law has been enhanced dramatically,
with the Court of Justice or Court of First Instance referring to the judgments
of the Court of Human Rights (or, in a few cases, the European Commission on
Human Rights) over thirty times since 1996.39 In several of these cases, Stras-
bourg case law concerning Article 8 ECHR and family reunion was referred
to by the Court of Justice.40 Moreover, in three such cases, the Court of Jus-
35 The most obvious candidate for an annulment action is all or part of the asylum
procedures Directive, which was adopted in December 2005 (see Ch. 14). The EP
could also attack the validity of implementing or secondary legislation on (inter alia)
human rights grounds: an example could (again) be the “safe country of origin”
lists that the Council plans to adopt pursuant to the asylum procedures Directive
(idem.)
36 See notably Case C-71/02 Karner [2004] ECR I-3025.
37 See Akrich (n. 12 above), Case C-63/99 Gloszczuk [2001] ECR I-6369 and Case C-
235/99 Kondova [2001] ECR I-6427.
38 Case C-442/00 Rodriguez Caballero [2002] ECR I-11915.
39 On this, see Peers, “The European Court of Justice and the European Court of
Human Rights: Comparative Approaches”, in Orucu, ed., Judicial Comparativism
in Human Rights Cases, Orucu, ed. (UKNCCL, 2003), pp. 107-129.
40 See n. 14 above.
124
tice made clear that it had to take account of the judgments of the Strasbourg
Court.41 This has entailed greater reference by the EU Courts to ECHR rules
on the limitation of rights, but the EU Courts have in some cases mixed the
ECHR rights with the EC limitation standard.42 The EU Courts’ approach to
Strasbourg case law inevitably reduces the concern that the standards of human
rights protection will “diverge” between the two Courts,43 although it should be
noted that this concern is misplaced (from a human rights perspective) as long
as the standard of protection in EU law is higher (rather than lower) than that
of the ECHR, since the ECHR sets only a minimum standard of human rights
protection.44 This approach also means that the Court of Justice is less likely
to require a higher standard of human rights protection than required by the
Strasbourg case law, where ECHR rights are concerned.
Moreover, it appears that in some circumstances at least, Strasbourg judg-
ments have an effect on EC law beyond simply serving as a source of the human
rights principles. In the K.B. judgment,45 the Court of Justice stated that national
legislation which was “in breach of the ECHR” (as determined by a judgment
of the European Court of Human Rights) and thus prevented persons from
fulfilling a requirement to benefit from an EC law rule “must be regarded as
being, in principle, incompatible with the requirements of Article 141 EC” (con-
cerning equal pay between men and women). However, in this case it was up
to the national courts to determine whether Article 141 could be invoked in
practice, since “the European Court of Human Rights has accepted” that “it is
41 See Case C-94/00 Roquette Freres [2002] ECR I-9011 (“For the purposes of deter-
mining the scope of [a human rights principle] ..., regard must be had to the case-
law of the European Court of Human Rights subsequent to the [ECJ] judgment in
Hoechst”); Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99
P to C-252/99 P and C-254/99 P LVM and others (“PVC II”) [2002] ECR I-8375,
para. 274 (“[t]he parties agree that, since Orkem, there have been further develop-
ments in the case-law of the European Court of Human Rights which the Commu-
nity judicature must take into account when interpreting the fundamental rights”);
Case C-276/01 Steffensen [2003] ECR I-3735, para. 72 (“account must be taken
of ... the right to a fair hearing before a tribunal, as laid down in Article 6(1) of
the ECHR and as interpreted by the European Court of Human Rights”); and C-
105/03 Pupino, judgment of 16 June 2005, not yet reported, para. 59 (“The Frame-
work Decision must thus [because of Article 6(2) EU] be interpreted in such a way
that fundamental rights, including in particular the right to a fair trial as set out
in Article 6 of the Convention and interpreted by the European Court of Human
Rights, are respected”).
42 For example, see Joined Cases T-222/99, T-327/99 and T-329/99 Martinez and de
Gaulle and others [2001] ECR II-2823.
43 On the divergence issue, see Spielmann (n. 10 above).
44 Art. 53 ECHR.
45 Case C-117/01 [2004] ECR I-541.
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for the Member States to determine the conditions under which” the breach of
the relevant ECHR right was remedied. This judgment appears to suggest that a
“breach of the ECHR”, as determined by the Strasbourg Court, interacts with
the application of Community law and could therefore be enforceable within that
context. Arguably it is only because the Strasbourg Court left it to the Member
States to establish remedies for implementing its judgment that the Court of
Justice did not insist on the national courts giving full effect to Community law
in this case – which could have entailed setting aside the national legislation
pursuant to the supremacy of Community law, a power that is not available
to any national courts in the UK where human rights issues alone are at stake.
Potentially, there may be immigration and asylum cases where, like K.B., there is
an enhanced effect of the ECHR within the framework of Community law.
The Court of Justice has also recently confirmed that in some cases, EC
legislation aims to give effect to rights set out in the ECHR, and so must be
interpreted in light of the ECHR, including the judgments of the Strasbourg
Court.46 This reasoning could be relevant to issues such as family reunion and
subsidiary protection, which are similarly addressed by EC law and within the
scope of the ECHR.
Another important recent development is the affirmation of the Court of
First Instance that human rights are jus cogens rules that take priority over the
international obligations of the Community, even those stemming from Security
Council resolutions. 47 Logically, this must also mean that jus cogens rules can
be taken into account when determining the validity or interpretation of Com-
munity law, in addition to or in the alternative to the general principles of law.
In any event, a decision by the Security Council requiring Member States to (for
example) return a person to face torture or other inhuman or degrading treat-
ment would be easily open to challenge.
A final point is a recent change in the dynamics of the protection of human
rights in the EU legal order. As noted above, the European Parliament gained
the power, with the entry into force of the Treaty of Nice, to challenge any act
of the Commission or Council in the Court of Justice, regardless of whether its
“legislative prerogatives” were affected or not. This has meant that the EP can
bring challenges against acts for breaches of human rights protection, and it has
been willing to do so as regards immigration legislation48 and measures indi-
rectly connected to immigration policy.49 An important substantive issue raised
46 Joined Cases C-465/00, C-138/01, and C-139/01 Osterreichischer Rundfunk [2003]

ECR I-4989.
47 See Yusuf and Kadi, n. 26 above.
48 Case C-540/03 EP v Council, n. 15 above, concerning the family reunion Directive;
for details, see Ch. 19.
49 Case C-317/04 EP v Council and C-318/04 EP v Commission, both pending, con-
cerning the transmission of EU passenger data information to US authorities. Tech-
126
by the first case is the link between human rights protection and the adoption of
EC measures setting only minimum standards. This point is particularly relevant
to immigration and asylum law, where the Community has to date largely set
only minimum standards for Member States, with certain exceptions where the
law has been more fully harmonised.50 Do the general principles oblige the Com-
munity, when it adopts minimum standards legislation, to set those minimum
standards at a minimum level required by the general principles of Community
law? Or is it sufficient to adopt minimum standards that might fall below the
level which the general principles would require if the Community harmonised
a subject more fully, leaving it to the Member States to meet any national or
international human rights obligations that require Member States to set higher
standards than those set out in the EC legislation? If the EC is bound by the
general principles to set a certain level of protection when adopting minimum
standards legislation, what should that level of protection be?
Hopefully the Court’s judgment will answer these important questions.
If the answer is that minimum standards legislation is obliged to set minimum
standards for human rights protection at a level required by the general prin-
ciples, this could have implications for the validity and interpretation of other
EC immigration and asylum law as well. In this case, the other legislation could
be vulnerable to indirect challenges in the national courts, taking account of
the principles developed by the Court of Justice. There is an underlying issue
at stake, too: will the EC’s immigration and asylum law follow the model of
the EC’s internal market (entailing mutual recognition of other Member States’
decisions) or the model of human rights law (requiring or permitting Member
States to disregard the decisions of other Member States)?51
2.2.2 Developments in the European Court of Human Rights

Another important recent development has taken place in the Strasbourg Court,
which has asserted its jurisdiction to assert some form of “indirect review” of EC
measures. This was implicitly asserted in the case of Cantoni v France, concern-
ing national implementation of EC legislation, and expressly asserted in the case
of Matthews v UK, concerning national application of a binding Community
obligation.52 The Matthews judgment left the scope of this indirect review open
in several respects, but the subsequent judgment of Bosphorus Airways v Ireland
nically, this is an issue of data protection law, not immigration or asylum law.
50 For example, the rules on allocation of responsibility for asylum applications (see
Ch. 10).
51 On this point more generally, see Peers “EU Immigration and Asylum Law: Internal
Market Model or Human Rights Model?”, in Tridimas and Nebbia, eds., EU Law
for the Twenty-First Century: Rethinking the New Legal Order, Vol. 1 (Hart, 2004).
52 See respectively Reports 1996-V and Reports 1999-I.
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Steve Peers
clarified some key issues.53 In its judgment, the Human Rights Court said that
where Member States had some discretion in the application of EC law, then
normal standards of review of Member States’ actions for compatibility with
the Convention would apply. However, where Member States have no discretion
but to implement EC law, then they would be subject to a lower standard of
review: as long as it could be shown that the EC guaranteed ‘equivalent’ protec-
tion for the human rights set out in the Convention (which means ‘comparable’,
rather than ‘identical’ protection), then their actions would be presumed to be
in compliance with the Convention, unless it could be shown on a case-by-case
basis that there was a manifest deficiency in application of the Convention.
The Court then ruled that in light of the protection of the substantive ECHR
rights as part of the general principles of EC law, and the procedural guarantees
offered to individuals by the normal rules of the EC judicial system, the EC
provided equivalent protection. Since the proceedings in this case (concerning
seizure of an airline pursuant to EC legislation implementing UN sanctions)
therefore benefited from the presumption, then the substantive arguments were
not reviewed by the Court in detail.
The crucial question following this judgment is whether immigration and asylum
issues fall within the scope of this principle. Given the Human Rights Court’s
stress in the Bosphorus Airways judgment on the importance of the preliminary
rulings system for the effective enforcement of ECHR rights within the scope
of EC law, then it is arguable that immigration and asylum cases linked to EC
law are not subject to lower standards of review by the Human Rights Court
as long as there is an extremely restrictive access to the Court of Justice for
individuals bringing claims in such cases via national courts. In any event, it
should be recalled that the lower standards of review for EC law as set out in
the Bosphorus Airways judgment only apply when a Member State lacks discre-
tion to act. Wherever the EC sets minimum standards (as is the case throughout
most immigration and asylum law, but not visas and borders law) then Member
States retain some discretion to act, and so arguably, to the extent that they
act within that discretion, they would be subject to the full review of the Stras-
bourg Court. In any of these cases, (hypothetical) disappointing judgments of
the Court of Justice on asylum and immigration could still be subject to full
review in Strasbourg, as long as there is a “victim” within the meaning of the
ECHR and an ECHR issue that could be the subject of a complaint. There will
likely also remain some immigration and asylum cases outside the scope of EC
legislation, in which case the Strasbourg court would certainly be able to exercise
full review.
53 Judgment of 30 June 2005, not yet published.
128
2.2.3 The EU Charter of Fundamental Rights

The most significant additional element in the current framework for human
rights protection in the EU is the EU Charter of Fundamental Rights, which
was signed in December 2000.54 So far, the legal effect of the Charter has been
limited: it has not yet been referred to by the Court of Justice, except where the
Court has simply noted that the parties to an action have referred to the Char-
ter.55 On the other hand, the Charter has been referred to on a number of occa-
sions by the Court’s Advocates-General,56 and by the Court of First Instance.57
Both the Advocates-General and the junior Court have generally indicated that
the Charter, although a non-binding act, should be treated as confirming the
general principles that already exist in EC law.58 Furthermore, the Charter has
been referred to repeatedly in the preambles of adopted or proposed EC or EU
legislation.59 This has been particularly the case as regards EC immigration and
asylum law.60 It might be arguable that the Charter should in particular be taken
into account where legislation expressly refers to it.
The sources of the rights set out in the Charter are the ECHR, other inter-
national human rights treaties, national constitutional traditions and EC/EU
constitutional and free movement law. Looking at the specific rights, as far as
54 OJ 2000 C 364/1.
55 For instance, see Case C-245/01 RTL Television [2003] ECR I-12489.
56 See Appendix I to Peers and Ward (n. 8 above). Notable examples are the Opinions
in Case C-353/99 P Hautala [2001] ECR I-9565 and Case C-173/99 BECTU [2001]
ECR I-4881.
57 See Appendix I to Peers and Ward (ibid.), and particularly Case T-177/01 Jego-
Quere [2002] ECR II-2365 and Joined Cases T-377/00, T-379/00, T-380/00, T-260/01
and T-272/01 Philip Morris and others [2003] ECR II-1.
58 See in particular the cases and Opinions cited in notes 56 and 57.
59 See Appendix I to Peers and Ward (n. 8 above).
60 The following adopted EC immigration and asylum measures refer explicitly to the
Charter in their preambles: Directive 2003/9 on asylum-seekers’ reception condi-
tions (OJ 2003 L 31/18); Reg. 343/2003 on asylum responsibility (OJ 2003 L 50/1);
Reg. 859/2003 on social security for third country nationals (OJ 2003 L 124/1);
Directive 2003/86 on family reunion (n. 6 above); Directive 2003/109 on long-term
residents (OJ 2004 L 16/44); the Decision on financing expulsion (OJ 2004 L 60/55);
the Decision on the Visa Information System (OJ 2004 L 213/5); Directive 2004/81
on victims of trafficking (OJ 2004 L 261/19); the Decision on joint expulsion flights
(OJ 2004 L 261/28); Directive 2004/83 on refugees and subsidiary protection (n.
24 above); Reg. 2007/2004 establishing the EU Borders Agency (OJ 2004 L 349/1);
Directive 2004/114 on the admission of students and others (OJ 2004 L 375/12); the
Decision establishing the second European Refugee Fund; (OJ 2004 L 381/52); the
Decision establishing a migration management service (OJ 2005 L 83/48); Directive
2005/71 and two Recommendations on researchers (OJ 2005 L 289); and Directive
2005/85 on asylum procedures (OJ 2005 L 326/13).
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Steve Peers
immigration and asylum law is concerned,61 the “affirming” role of the Char-
ter therefore reinforces the protection that the EC general principles currently
give to rights such as the protection of family life.62 But, more importantly, the
Charter contains some ECHR rights relevant to immigration and asylum law (in
particular, the right to life, freedom from torture or other inhuman or degrad-
ing treatment, restrictions on detention) which have not yet been recognised by
the Court of Justice as forming part of the general principles of Community
law.63 While it is unlikely that the Court of Justice would have rejected the inclu-
sion of these rights as part of the general principles, their express inclusion in
the Charter nonetheless strengthens the argument that they form part of the
general principles. The Charter also contains a right derived from the case law
of the European Court of Human Rights: the right to not to be removed to
countries where torture et al or the death penalty would be carried out.64 Again,
it is unlikely in light of its respect for ECtHR case law that the Court of Justice
would reject the existence of such a principle as part of EC law, but the express
inclusion of the principle in the Charter strengthens the argument that the prin-
ciple exists.
Also, the Charter contains some relevant rights not found in the ECHR or
the Strasbourg case law, in particular the right to human dignity and the right to
asylum.65 The former right has already been recognised as forming part of the
general principles,66 but its reiteration in strong terms in Article 1 of the Charter
suggests that it is an independent right with a strong effect, bolstering the case
for a robust interpretation of the right, inter alia in immigration and asylum
cases, as detailed above. The latter right is more tenuous as it appears in only a
minority of national constitutions and does not appear as such in any interna-
tional treaty binding the Member States, so its appearance within the Charter
could prove crucial in arguing that it is a general principle of Community law.67
This brings us to the question of interpreting the Charter. The current Char-
ter contains an Article 52 with three paragraphs, setting out a general rule on
61 On the Charter and immigration and asylum law, see Guild, “Citizens, Immigrants,
Terrorists and Others” in Peers and Ward, eds. (n. 8 above) 231; and Peers, ‘‘Immi-
gration, Asylum and the European Union Charter of Fundamental Rights”, 3
EJML (2001) 141.
62 This point has been specifically noted in the Opinions in Baumbast, Carpenter,
MRAX (n. 14 above) and EP v Council (Case C-540/03, n. 15 above).
63 Arts. 2, 4 and 6 of the Charter. The Court did mention Arts. 2 and 3 ECHR in pass-
ing in Case C-112/00 Schmidberger [2003] ECR I-5659.
64 Art. 19 of the Charter.
65 Arts. 1 and 18 of the Charter. However, the Strasbourg case law indicates that human
dignity underpins the express Convention rights: Pretty v UK (Reports 2002-III).
66 See the case law cited, n. 19 above.
67 For elaboration, see Peers, n. 11 above.
130
limitations from Charter rights, a rule on Charter rights that match EU or EC

Treaty rights, and a rule on Charter rights that “correspond” to ECHR rights;
such Charter rights are to have the “same meaning and scope” as those ECHR
rights, with the further proviso that this “shall not prevent Union law providing
more extensive protection”. Article 53 provides that the Charter shall not be
interpreted as lowering the standard set out in EU law, national constitutions or
international [human rights] agreements to which all Member States are party,
including the ECHR, “in their respective fields of application”. Between them,
Articles 52(3) and 53 appear to guarantee that the human rights protection of
EC law cannot fall below the level set out in the ECHR, a point which has never
expressly been confirmed by the EU courts. Indeed, the interpretation of ECHR
rights which appear in the Charter has to be consistent with the ECHR rights;
an express reference to the case-law of the European Court of Human Rights
appears in the Charter’s preamble. However, it is open to EU law to set levels of
protection higher than the ECHR; the conditions in which this would occur are
not set out in the Charter.
How is this relevant to immigration and asylum law? These rules are very
complex.68 However, it appears that the Charter rights of non-EU citizens are
covered by both Article 52(1) of the Charter (the general limitations clause)
and, as far as ECHR rights are concerned, by Article 52(3) ECHR. Article 52(3)
should mean that a “Soering effect” as well as a “Bankovic effect” applies to
any of the Charter rights which correspond to ECHR rights; in any event, as
noted above, a “Soering effect” regarding torture, et al and the death penalty
is expressly provided for in the Charter. The guarantee of a minimum standard
no lower than international human rights treaties surely guarantees that the
EC/EU cannot require Member States to violate the ECHR, the Convention
against Torture or the Geneva Convention on the Status of Refugees, although
the question of whether Community minimum standards could be set below the
international standards still appears to be left open. All this is only relevant at
the moment, of course, to the extent that the Charter is taken as confirmation of
the existing general principles. So far, there have been only limited references to
these horizontal rules by Advocates-General,69 and none by the Court of First
Instance or Community legislation.
It is also necessary to consider the scope of the Charter. Article 51 states
that it only applies to the bodies of the EU, and to Member States “implement-
ing” EU law. It is therefore not clear whether, like the general principles of law,
68 For more detailed analysis regarding immigration and asylum law, see Peers, n. 60
above; for more detailed analysis of the Charter interpretation rules in general, see
Peers, n. 8 above.
69 Moreover, these references have not considered Art. 53: see the Opinions in Baum-
bast (n. 14 above), Hautala (n. 54 above), Bidar (Case C-209/03 [2005] ECR I-2119)
and EP v. Council (n. 15 above).
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Steve Peers
the Charter applies to Member States when they are derogating from EU law.70
In any event, the wording does not suggest that the scope of the Charter is any
wider that the general principles are as regards Member States’ activities.71 So
it appears that the Charter adds nothing to the general principles as far as the
scope of EC human rights principles is concerned, whether in the area of immi-
gration and asylum law or any other area.
3 Framework in the EU Constitutional Treaty72

Although it appeared very unlikely by 1 Jan. 2006 that the proposed EU Consti-
tutional Treaty would ever come into force, some of its provisions (particularly
those concerning human rights) could still be relevant for the purpose of future
Treaty amendments. It is therefore worthwhile examining the provisions of the
proposed Treaty in order to discern their potential impact on human rights pro-
tection.
The proposed Treaty sets out a three-part system for protection of human rights
within the EU legal order. All three parts are set out in Article I-9 of the Treaty,
which provides that:
1. The Union shall recognise the rights, freedoms and principles set out in the
Charter of Fundamental Rights which constitutes Part II.
2. The Union shall accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms. Such accession shall not affect
the Union’s competences as defined in the Constitution.
3. Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms, and as they
result from the constitutional traditions common to the Member States,
shall constitute general principles of the Union’s law.
These three elements (Charter, ECHR and general principles) will be examined
in turn.
3.1 Charter of Rights

The most obvious change between the present Charter and the Charter in the
proposed Constitutional Treaty is that in the latter, the Charter would be legally
binding. So there would be no need to speculate whether the Court of Justice
might someday confirm the views of its Advocates-General and the Court of
70 See detailed analysis with further references by Carozza, “The Member States”, in
Peers and Ward, eds. (n. 8 above).
71 There is only one Advocate-General’s Opinion commenting on Art. 51 of the Char-
ter, arguing that the Charter has the same scope as the EC general principles: Opin-
ion in Omega (n. 19 above), para. 55 and note 29.
72 The text of the Constitutional Treaty is set out in OJ 2004 C 310.
132
First Instance that the Charter reaffirms the existing general principles, or to
wonder whether some provisions of the Charter in fact do not reaffirm the
existing principles to some extent. For if the Charter becomes a legally binding
document, all of the analysis of the text of the Charter as set out above would
become fully relevant, as the Charter could be relied on in its own right.
This does leave several important questions. One would be the temporal
scope of the binding effect of the Charter; if it only becomes binding as from
the entry into force of the Constitutional Treaty, it would be crucial to estab-
lish whether the Charter is indeed simply a reaffirmation in full of the general
principles, or whether there are some differences (of scope, substantive rights or
interpretation rules) between the two sources of human rights rules. If there are
some differences, it would be necessary to determine what falls within the tem-
poral scope of the binding Charter, and what falls only within the scope of the
general principles. The best approach would be to apply a “continuing effect”
test, similar to that applicable to the ECHR after its ratification by States.73
Another important question would be the legal effect of the Charter. As
a part of the Constitutional Treaty it would presumably have at least the same
effect as the general principles, serving as a rule applying to the validity and
interpretation of EU and national acts (where the national acts fall within the
scope of the Charter). But a new issue would arise: as Articles of the Consti-
tutional Treaty, could the provisions of the Charter (apparently unlike the gen-
eral principles) confer directly effective rights? This appears to be ruled out for
certain Charter rights (as discussed below), but it remains a possibility for the
others – including the rights most relevant to immigration and asylum law. Also,
as a set of Treaty Articles, the Charter, like all other EU law, has primacy over
all measures of Member States within its scope;74 that means that all national
courts and tribunals must be able to set aside provisions of national law, even
parliamentary legislation and national constitutions, that conflict with the Char-
ter.75 This is, for example, a stronger power than UK national courts have under
the Human Rights Act; it also applies to a wider range of rights and can be exer-
cised by a wider range of courts and tribunals.
A final key new question would be the effect of the four new provisions
which would be added by the Constitutional Treaty to the “interpretation”
clause, Article 52 of the Charter. Two of these new provisions appear to be irrel-
evant to immigration and asylum law. First of all, none of the main Charter
provisions relevant to immigration and asylum appear to set out “principles” as
distinct from “rights”, and so none of them would be subject to the attempt to
73 See Van Dijk and Van Hoof, Theory and Practice of the European Convention on
Human Rights, 3rd ed. (Kluwer, 1998) pp. 11-13.
74 Article I-6 of and Declaration 1 to the Constitutional Treaty.
75 Case 106/77 Simmenthal [1978] ECR 629 and Case C-213/89 Factortame [1991]
ECR I-2433.
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Steve Peers
limit the legal effect of such principles, as set out in Article 52(5) of the Charter.
Secondly, none of the relevant Charter provisions refer to potential limitations
set by national law, and so none would be caught by the new clause requiring
deference to national law in such cases (Article 52(6)).
That leaves two relevant new provisions. Article 52(4) requires Charter
rights based on national constitutions to be interpreted “in harmony” with
national traditions. It is not clear which clauses are covered by this provision
or what it means to interpret in harmony with those traditions; the authors of
this paragraph should perhaps take up writing music, instead of legal texts. It is
certainly arguable that the right to asylum is covered by this provision, but there
is a further argument that many of the rights corresponding to ECHR rights,
including rights such as the right to family life, are also rights derived from
national constitutions. In such cases, it is not clear whether the right is governed
by Article 52(3), Article 52(4), or both – or indeed alternatively or additionally
by the general limitations rule in Article 52(1).76
The other relevant new clause is Article 52(7), which requires the EU and
national courts to interpret the Charter having “due regard” to the explana-
tions of the Charter drawn up when the Charter was initially drafted, and then
revised during the negotiation of the Constitutional Treaty,77 which now appear
as Declaration 12 to the Constitutional Treaty. The implication of this change
for immigration and asylum issues is that the notes should be carefully examined
in any case where a Charter right might be relevant (including cases where the
“horizontal” rules in Articles 51-54 of the Charter could be relevant). In fact, it is
worth examining the current and revised versions of these notes even before the
entry into force of the Constitutional Treaty, as both versions have already been
referred to on several occasions by Advocates-General of the Court of Justice.78
Readers will find that the notes are very clear and helpful on some points, and
very unclear and unhelpful on others. For example, the notes give a very full list
and explanation of the cases in which the Charter rights wholly or partly “cor-
respond” to ECHR rights, and state clearly that the limitations and derogations
on those Charter rights must match the parallel limitations and derogations on
rights set out in the ECHR. They also state clearly that Charter standards can
never drop below those of the ECHR. However, they do not explain clearly what
the reference to Union law adopting more extensive protection could entail. Nor
76 For more detailed analysis, see Peers, n. 8 above.

77 A similar amendment was made to the Charter’s preamble.
78 See Opinions in BECTU (n. 54 above); Joined Cases C-122/99 P and 125/99 P D v
Council [2001] ECR I-4319; Hautala (n. 54 above); Omega (n. 19 above); and Case
C-141/02 P Max Mobil [2005] ECR I-1283. The Max Mobil Opinion specifically
urges taking account of the explanations to the Charter in light of the status con-
ferred upon them by the proposed Constitutional Treaty.
134
do they give any clear explanation of what the right to asylum entails – although
this leaves the door open to argue about the implications of this Charter right.
3.2 ECHR Accession

The second element of human rights protection in the draft Constitution is the
power (and apparently the obligation) for the EU to accede to the ECHR. It
should be noted, however, that the use of this power (or obligation) will not
affect the EU’s competences, and moreover that a declaration and Protocol to
the Constitution address a number of specific issues relating to the planned
accession in more detail.79
The powers to accede may have certain effects before accession, particularly
if it is interpreted as an obligation.80 But the key issues will have to be addressed
during the negotiation, implementation and interpretation of the agreement on
EU accession. These issues include: which substantive Protocols the EU will
ratify; the distinction between Member States and the EU as responsible parties
for alleged breaches (as defendants to a claim and as parties liable to imple-
ment rulings); the institutional arrangements for accession (for example, an EU
presence on the Court and monitoring bodies); the application of ECHR rules
such as the domestic exhaustion rule within the EU legal order; the jurisdiction
of the Court of Justice over the ECHR; the legal effect of the ECHR in the
EU legal order, including the legal effect of Strasbourg judgments; the creation
of a system for implementing adverse Strasbourg rulings concerning the EU
(and perhaps also its Member States when they implement or derogate from EU
law) and the temporal scope of accession.81 The answers to these questions will
inevitably be relevant to litigation and political debate concerning asylum and
immigration issues. The issue of legal effect is particularly worth stressing: it
should be recalled that most international treaties ratified by the EC have “direct
effect” in the EC legal order; the ECHR clearly appears to meet the test for
the application of this principle.82 Moreover, such treaties have supremacy over
secondary EU measures,83 and it should logically follow, national measures; pre-
sumably this entails that national legislation conflicting with the ECHR which
falls within the scope of the EU’s accession to the ECHR would have to be set
aside by any national court or tribunal, a power which would be stronger (and
more widely available) than the powers which UK courts have under the Human
Rights Act.
79 Protocol 32 and Declaration 2 to the Constitutional Treaty.

80 Compare with Case T-115/94 Opel Austria [1997] ECR II-39.
81 Presumably the “continuing effect” rule will apply: see n. 71 above.
82 See the test in Demirel (n. 5 above).
83 On the supremacy of international agreements over EC acts, see C-61/94 Commis-
sion v Germany [1996] ECR I-3989; on supremacy over national law, see Case C-
98/96 Ertanir [1997] ECR I-5179.
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Steve Peers
3.3 General Principles

Finally, the general principles of law are still mentioned separately in the Con-
stitutional Treaty, and so presumably must continue to exist as distinct source
of rights. Will they continue to have relevance beyond a historical function of
initially creating a system of human rights protection which the Charter eventu-
ally reaffirmed?
They could potentially have continued current relevance in several scenar-
ios. First, they could continue to be relevant if the Court interprets the Charter
to have a narrower scope than the general principles, in particular as regards
cases where Member States derogate from EU law. In that case, the gap left by
the Charter would logically be filled by the general principles. Secondly (and
most likely), they could have a function determining the existence of rights not
appearing in the Charter, but nonetheless found within the traditional sources of
the EU principles – international treaties and national constitutions. The most
important such right in the immigration and asylum context is the right to pro-
cedural protection for legal migrants during expulsion, assuming that it is not
subsumed by the wide procedural rights which EU law guarantees to migrants
as part of the general principles (which would be subsumed by Article 47 of
the Charter).84 From the perspective of judicial politics, the potential existence
of such additional rights could be useful as a “safety valve” in case national
or international courts threaten rebellion against the supremacy of EU law on
human rights grounds in future. Thirdly, the general principles could be relevant
if the Charter rules on limitations and derogations from rights are considered
to lower the standard of human rights protection as compared to the limitation
rules in the general principles. Finally, the general principles could still be rele-
vant if Article 53 of the Charter is interpreted as a clause limiting the supremacy
of EU law, as distinct from the general principles, which were developed by the
Court precisely to underpin that supremacy.85
3.4 Cross-overs
With three apparently distinct sources of human rights rules under the Con-
stitutional Treaty, it will be necessary to determine which source (or sources)
apply to a given case. In the absence of anything to indicate that only one of the
sources can be relied on, it will presumably be open to rely on as many as pos-
sible, suggesting a wide spectrum of possibilities for arguments to be brought,
particularly in immigration and asylum cases where more than one right set out
in each of the three sources could be relevant. It might be expected that the EU
Courts will strive for a consistent and coherent interpretation of the multiple
84 See discussion in s. 2 above.

85 On the issue of the Charter and the supremacy of EU law, see Carozza (n. 68 above)
and Liisberg, “Does the EU Charter of Fundamental Rights Threaten the Suprem-
acy of EU Law?” 38 CMLRev. (2001) 1171.
136
sources. Nonetheless, the Constitutional menu lists a wide variety of rights that
a discerning legal diner could attempt to order from the judicial kitchen.
4 Conclusions
The interaction of EC immigration and asylum law with the system for the pro-
tection of human rights in EC law is a critical issue in the practical application
of EC immigration and asylum legislation. This is obviously true if the Consti-
tutional Treaty is ratified, entailing human rights protection by means of a com-
bination of the Charter, ECHR accession by the EU, and the general principles
of EU law. But it is already true now, by virtue of the general principles of EC
law, comprising also an indirect impact of the ECHR (via the case law of the
Court of Justice and the indirect review of EU actions by the Strasbourg Court)
and entailing a limited role for the EU’s Charter of Rights.
It is therefore critical that anyone involved in disputes or proceedings which
fall within the scope of EC immigration and asylum legislation is sufficiently
familiar with both the current basic system for the protection of human rights
in the EC legal order and (if the Constitutional Treaty is ratified) with the system
provided for under the EU’s proposed Constitutional Treaty. This entails famil-
iarity with the sources of the basic rights that can be protected within the system,
the circumstances in which those rights can be invoked (the scope of the EC
rules) and the remedies which invoking those rights could entail (the legal effect
of the EC rules).
As discussed above, the sources certainly include the ECHR and the case law
of the ECtHR, but also include national constitutional principles (such as human
dignity, and potentially the right to asylum) and other international treaties,
potentially even treaties that do not have full effect in the domestic law of some
Member States (like the ICCPR or the Convention on the Rights of the Child)
and ECHR Protocols which some Member States have not ratified. The potential
impact of the Geneva Convention on Refugee Status and connected soft law upon
the development of EC human rights principles will be a critical issue.
It should always be recalled that the scope of the legal rules covers not just the
EU institutions, but also the Member States when implementing EU rules – which
will mean that most asylum decisions and many immigration decisions taken at
national level will fall within the scope of the human rights principles once the
deadlines for applying with the relevant legislation have passed. An important
issue still to be resolved definitively is whether national derogations from EC
immigration and asylum law fall within the scope of the EC human rights rules.
Finally, EC human rights rules benefit from the strong legal effect of Com-
munity law, and so can be used to attack the validity of national rules (even
national legislation) as well as the validity of Community measures. The obli-
gation to interpret national and Community law in light of the human rights
principles will be important also.
137
Chapter 6 Enlargement of the EU and Title IV
Judit Tóth
1 Parallels
The recent and forthcoming enlargement has led to consideration of institu-
tional transformation of the European Union due to its plan to agree accession
of a great number of new Member States. Enlargement raises issues such as
qualified majority voting in the Council, extension of the influence of the Euro-
pean Parliament in the decision making process and wider implementation of
enhanced co-operation. The necessary reforms were agreed before enlargement,
as decided at the Cologne European Council in June 1999. Regardless of the
success of this institutional transformation, accession negotiations had to be
opened with the most advanced candidate countries. In the light of these conclu-
sions the declaration on the future of the EU attached to the Nice Treaty, signed
on 26 February 2001 and in force 1 February 2003, envisaged the inter-govern-
mental conference (IGC) dealing with institutional reforms, with the involve-
ment of candidate Member States which signed accession treaties beforehand.
The Treaty of Accession with ten new Member States was signed in April 2003.
This proves that internal institutional transformation and eastward enlargement
can apply simultaneously.
With the entry into force of the Amsterdam Treaty, the field of “Visas,
asylum, immigration and other policies related to free movement of persons”
came under the first pillar, in the form of European Community law, under Title
IV of the EC Treaty (Articles 61-69). An area of freedom, security and justice
had to be implemented over a five-year period after the entry into force of the
Amsterdam Treaty, by May 2004.
The following fields moved into EC jurisdiction:
– border controls;
– the issue of visas;
Judit Tóth
– the circulation of nationals of third countries within the territory of the

Community;
– measures concerning asylum (jurisdiction for examining applications for
asylum, minimum standards governing the reception afforded to asylum
seekers, the attribution of the status of refugees and granting or withdraw-
ing of such a status);
– measures applicable to refugees and displaced persons (temporary protec-
tion, a balance of efforts between the states receiving the refugees and dis-
placed persons);
– measures in the field of immigration policy (conditions of entry and resi-
dence, issue of long-term visas and residence permits, including the ones for
family unification);
– irregular immigration and residence, including repatriation of irregular
migrants;
– measures governing the extent to which nationals of third countries can
stay in Member States other than the one in which they are legally resi-
dent.
Despite communautarisation of the issues of asylum, admission and residence of

third country nationals, and immigration, also incorporating much of the Schen-
gen acquis into the EC Treaty, there are a number of weaknesses. The binding
legal provisions and measures adopted by the Council of Ministers within the
framework of Title IV remain geographically partial in practice due to opt-outs
by the UK, Ireland and Denmark. In addition, the decision-making procedures
applicable until 2004 and 2005 (unanimity, the rules on which organs have right
to take legislative initiatives, the length of negotiations) increased the likelihood
that only lowest standards can be accepted. Further, neither the democratic con-
trol (by the European Parliament, at least until recently, and by national parlia-
ments), nor the legal control (by the European Court of Justice) has become
significantly stronger. The existence of these weaknesses in the EU may (indi-
rectly) contribute to the extension of a one-sided migration policy and to postpon-
ing the development of a comprehensive, effective immigration and asylum regime
in the candidate Member States (and in new Member States). For instance, in the
field of asylum the Commission found gaps such as the lack of an independent
appeal procedure and underdeveloped infrastructure for admission. Also, “addi-
tional efforts are to be made to integrate recognised asylum seekers in Bulgarian
society”.1
Abreast with this significant current change to secondary and supplementary
legislation under Title IV, the preparation for membership as well as accession has
been going on. The set of Europe Agreements concluded between the EC and its
1 Regular Reports from the Commission on Bulgaria’s Progress towards Accession

(2001).
140
Member States with the candidate states defined the institutions for dialogue,
the timescale for preparation and the legal obligations for associated countries
concerning approximation of legislation and reform of their public administra-
tion. Their implementation required an executive mechanism in the Community
as well as in the candidate states. Although the Europe Agreements contained no
special references on asylum and migration, the executive mechanism respon-
sible for home affairs had to be established in the second phase of the accession
efforts, when accession negotiations started. Further on, the Accession Treaties
include not only institutional, decision-making provisions, but also an obliga-
tion to apply the Schengen acquis without advantages in new Member States, a
temporary opportunity for (old) Member States to limit the movement of work-
ers from newly joined countries and for implementation of safety closure.
The Treaty establishing the Constitution for Europe was adopted in June
2004.2 The ceremonial signature in late October 2004 and its entry into force by
2007 would mean a continuous development in the EU with an extended area of
freedom, security and justice, as follows:
– Forming of an area of freedom, security and justice is not only an objec-
tive of the Union (Art I-3(2)) but it belongs to the shared competence of
the Member States with the Union (Art. I-14(2)(j)) although justice and
home affairs will become not a totally community policy, and protection of
public order and national security shall be considered as basic function of
Member State in Art. I-16(1) and III-262. The principle of subsidiarity, soli-
darity and the flexibility clause (Arts. I-11 (3), I-18 and I-44) also frame the
practice of this competence.
– Chapter IV (Arts. III-257-277) of Part III repeats the name and some com-
ponents of Title IV in force, such as:
– free movement of persons across the internal borders,
– common policy on asylum, immigration and control on external border
crossing (reception and legal status of refugees, temporary protected per-
sons, protection against refoulement, conditions of visa, entry and residence
permits, fight against illegal migration, integration of lawfully resident
migrants)
– combating extremism (racism, xenophobia) and crime including preven-
tion,
– but it is extended on co-operation in civil and criminal law matters (e.g.
through the mutual recognition of judicial and extrajudicial decisions) and
police issues in which the European Parliament and Member States obtain
entitlement for stronger control and legislative initiative (Art. I-42). The
pillar system would be dismantled, including the common foreign, security
and defence policy with specific decision making procedure (Art. I-16, I-40-
41).
2 OJ 2004 C 310.
141
Judit Tóth
– The regular voting rule will be based on majority in the Council (I-23(3)),
while unanimity in certain justice issues, enhanced co-operation, dominant
European framework laws provide more manoeuvring room for state sov-
ereignty in this field.
What is the interrelation between these parallel ongoing procedures? Is there

any? Are the candidate countries – and recently acceeded states – just passive
recipients of EU arrangements, or will they modify the character of the co-
operation and the pattern of problems in the field of immigration and asylum?
What are the major concerns in asylum and migration matters? The answer may
be given both from the perspective of the EU and of the candidate countries,
taking into account the fact that encouraging statements of the Tampere Euro-
pean Council were well received but their application was much less satisfactory
in the first five year period, thus a lot of measures need to be adopted in the
second five year period of a geographically and legally enlarged area of free-
dom, security and justice.
2 Pan-European Security
The values underlying the Amsterdam Treaty and the Tampere European
Council Presidency conclusions (15-16 October 1999) are encapsulated in the
upper cited phrase, “area of freedom, security and justice” that implies much
greater emphasis on legal and political rights and on benefits to the European
citizens than was the case in previous justice and home affairs co-operation,
which emphasised security. After the catastrophic events of 11th September
2001, and in particular of 11th March 2004 in Madrid and July 2005, security
has been put on the agenda again as a priority, and international developments
upgraded the Union’s external action on justice and home affairs. Beyond the
generalised threat, the enhanced co-operation between the border guards, intel-
ligence services and immigration and asylum authorities of the state concerned
and in EU level (e.g. an anti-terorist interministerial co-ordinating body was
set up in Hungary,3 the National Security Concept of Estonia was submitted
to the parliament evaluating the nation’s security situation, foreign policy goals
and activities necessary for achiving them4, or the co-operation among intelli-
gent services is enhanced in the framework of SITCEN5). The newly introduced
restrictions on entry or residence can violate human rights. For instance, “the
summary rejection of asylum-seekers at borders or points of entry may amount
3 Government Decision on the actual tasks of anti-terorism No.2112 of 2004, 7

May.
4 Main Guidelines of Estonia’s Foreign Policy (Speech of the Minister of Foreign
Affairs in the Parliament, 8 June 2004)
5 In subordination by Javier Solana, CFSP high-representative (Declaration adopted
by the European Council’s Meeting – 25-26 March 2004)
142
to refoulement”, and a mechanically implemented exclusion clause, with expul-

sion or extradition of protection seekers or refugees as suspected terrorists with-
out individual examination of the merits of their cases may erode the protection
system and encourage people to seek entry or stay through illegal means. The
UNHCR drew the international community’s attention to a set of concerns
referring to inter alia, the EU proposal for a Council Framework Decision on
combating terrorism (since adopted in June 2002).6 The linkage between internal
and external security is a logical consequence of the process of European integra-
tion while this relationship and necessity of co-ordination between the internal
and external policy was neglected up until the Tampere Conclusions. It is ques-
tionable which approach the EU would emphasise more in its policies: a political
and diplomatic approach or a law enforcement and military approach. The prior
approach is fundamentally inclusive and the second approach is rather exclusive.
The area in which divergences and contradictions between internal and external
security conceptions have become more apparent is probably represented by the
complex set of issues and dilemmas connected with the management and regula-
tion of the EU’s external borders during the process and completion of enlarge-
ment.7 For institutional and political reasons, a holistic approach to European
security is also desired in coming years. The governmental co-operation’s reac-
tion on security challenges of Eastward enlargement was much more effective
than on proliferation of constitutional values. The Constitutional Treaty intends
to restore the balance through a catalogue of fundamental rights, combating
exclusion and legitimacy of restrictive measures. The holistic approach is rather
a promise of future and introduction of biometric data of travellers’ storage or
reluctant regulation on accession of third country nationals for employment can
define the one-sided reality.
The interrelation of internal and external security is also a result of the
end of bipolarity, which makes the regional security and connections even more
relevant in our continent. On the one hand, co-operation in justice and home
affairs becomes increasingly important, both in view of the fight against terror-
ism and organised crime and the longer-term discussions on the possible cre-
ation of common border control arrangements. Cooperation now includes the
condemnation of terrorism and the establishment of a Plan of Action on this
issue, as adopted by the extraordinary meeting of the European Council on 21
September 2001 (and a further Anti-terrorist Plan of Action was adopted in
2004). Naturally, accession cannot hinder these security efforts.
6 UNHCR, Addressing Security Concerns without Undermining Refugee Protection

(Geneva, November 2001).
7 Pastore, Reconciling the “Prince’s Two Arms”: Internal-External Security Policy Co-
ordination in the European Union (Occasional Paper No.30, Institute for Security
Studies, WEU, Paris, 2001).
143
Judit Tóth
“The enlargement process makes Europe a safer place for its citizens and
contributes to conflict prevention and control in the wider world.”8 For this
reason in the same document the Commission emphasised that: “Enlargement
will also bring new challenges. It will heighten the need for the EU and its neigh-
bours to work closely on issues such as justice and home affairs. The EU is likely
to attract migrants from its neighbours and will want to develop with them ways
of planning for legal migration while combating illegal migration and trafficking
in human beings. Border management will take on increased importance with
close co-operation in areas ranging from customs and veterinary controls to
combating organised crime and drugs trafficking ... .The future borders of the
Union must not become a new dividing line”. Just for this purpose the Schengen
system will apply to all new Member States. But “full participation in it will be
based on a two-step process. The new Member States will first need to achieve
a high level of external border control upon accession whereas the lifting of
internal border controls with current Member States will take place only at a
later stage, subject to a separate decision by the Council.” This extended security
approach has upgraded the legislation for combating organised crime, terror-
ism, punishment of legal persons in candidate (and new member) states while
the accession efforts in visa, border control, and alien policing issues have been
developing slowly. This has been due partly to the regional context and partly to
high expenses. For instance, the Hungarian Government defined the necessary
measures and legislation related to the European Council’s extraordinary meet-
ing on 21st September 2001. The Government issued its own Resolution (No.
2298 of 2001) on 19th October and all of these measures were adopted by the
Minister of the Interior, the Government or the Parliament by 31st December
2001 (such as the Act Amending the Penal Code, No. 121 of 2001, Act on Com-
bating terrorism and Aggravation of Rules on Prevention of Money Laundering
No. 83 of 2001, Government Decree No. 299 as executive rules to the Act on
Prevention and Restraining of Money Laundering No.24 of 1994). These provi-
sions were passed relatively smoothly, targeting the universal enemies of terror-
ism and organised crime and their financing, although they introduced severe
limitations on civil rights.
On the other hand, the participation of candidates in the Common Foreign
and Security Policy (CFSP) has been evaluated on its merits only in a regional
context. For instance, the Commission Regular Report on Poland (1998) can enu-
merate only the Polish participation on regular meetings of political directors,
correspondents and working groups of CFSP and negotiations with NATO.9
8 Making a success of enlargement: Strategy paper and Report of the European

Commission on the progress towards accession by each of the candidate countries
(COM (2001) 700).
9 Regular Report from the Commission on Poland’s progress towards accession
(1998).
144
The other Reports took the same totally formal approach. The real develop-
ments and conflicts are indicated exclusively in the regional security framework.
For example, the previously mentioned Polish Report said: “Poland diverged
from the EU’s demarche on Belarus following the expulsion of European dip-
lomats.…Poland’s notable record of facilitating regional security has been rein-
forced with a positive chairmanship of the OSCE in 1998. In terms of regional
foreign policy Poland’s constructive relations with Lithuania have continued to
deepen.” Or the Commission’s Report on Hungary (2001) stresses that Hungary
“has continued to develop good-neighbourly relations with surrounding coun-
tries and promoted regional co-operation”, such as playing an active role in the
South East European Stability Pact, holding the presidency of the Visegrad dia-
logue and participating in the South East Co-operative Initiative.10
The enlargement makes the foreign policy a rather security oriented, while
the area of freedom, security and justice as part of communitarisation has a
local and regional dimension. “For the EU’s part, the whole range of the Union’s
policies (foreign, security, trade, development, environment and others) will need
to rise to meet this challenge. Stability, security and prosperity must be practi-
cal, achievable goals for both the EU and its neighbours.”11Consistency of the
new neighbourhood policy means the stronger co-operation with also Ukraine,
Russia or Moldavia in fight against terrorism, non-proliferation of weapons of
mass destruction, efforts towards the peaceful resolution of regional conflicts
and regular co-operation in justice and home affairs through the proper instru-
ments (MEDA, TACIS, budget contribution) as European Neighbourhood Instru-
ments (ENI).12 The Committee of Region points out that guaranteeing domestic
security is in many cases the task of regional and local level. The efforts for
establishing the area of freedom, security and justice is not being implemented
in an abstract legal space, but in the concrete context of each particular region
or locality, with its own particular characteristics, such as high concentration of
migrants, exclusion or marginalisation. Thus it recommends measures to main-
tain the level of security through cross-border co-operations (opening border
crossing, co-operation between local police authorities, youth work, etc.).13
Perhaps these prove the complexity of various aspects of regional security
and relations that are relevant to Title IV, area of freedom, security and justice and
10 Regular Report on Hungary’s Progress towards Accession (SEC (2001) 1748, 13

Nov. 2001).
11 Communication from the Commission to the Council and the European Parlia-
ment: Wider Europe- Neighbourhood: A new Framework for Relations with Eastern
and Southern Neighbours. (COM(2003) 104 final, 11 March 2003).
12 European Council’s conclusions, Meeting in Luxembourg, 14 June 2004.
13 Opinion of the Committee of the Regions on “The local and regional dimension of
the area of freedom, security and justice” (23 March 2004).
145
Judit Tóth
CFSP including the newborn neighbourhood policy issues during the enlargement
process and even afterward.
3 A Common Policy
Until the Maastricht Treaty, migration and asylum matters in the EC fell squarely
into the sovereign realm of the Member States. Since then, however, particu-
larly after the Amsterdam Treaty, the policy of asylum, the free movement of
persons, visa policy, rules governing the crossing of the EU’s external borders,
immigration policy and the rights of third country nationals, have all become
full Community responsibilities. The special meeting of the European Council
in Tampere agreed that “the separate but closely related issues of asylum and
migration call for the development of a common EU policy”. It elaborated the
political guidelines for the next years, including in the field of asylum and immi-
gration. Thus it was recognised that the EU needed a common immigration and
asylum policy composing of the following elements: partnership with countries
of origin; a common European asylum system; fair treatment of third country
nationals; and an effective management of migration flows. These developments
within the EU have direct implications for the rest of Europe, particularly for
acceding states.14
The main objective of refugee policy is the protection of persecuted indi-
viduals. All Member States have to give the same high level of protection to
such persons in accordance with international human rights obligations but
with clear differences between asylum and immigration policies. Migration is
a focus for demographic and economic reasons. In order to maintain its pres-
ent level of economic and social performance while its population is ageing,
the EU’s Member States may need migrants in the near future. The establish-
ment and further development of a common market requires the removal of
barriers for the free movement of persons between the Member States. The free
movement of legally residing third country nationals – including the residents
of candidate countries – should be promoted, as well as the free movement of
EU nationals. Third-country nationals also should profit from labour mobility,
student exchanges and the provision of services across internal borders. Both
immigration and asylum policies have to deal with the issues of visas, border
controls, family unification, criteria for admission, authorisation of residence,
social integration, equal treatment and anti-discrimination. In this way, only
common immigration and asylum policies can be effective. However, recognition
of de facto immigration15 is not enough to operate effectively a co-ordination
14 Jenny, “Global Migration Factors and the Evolution of Migration Policies in

Europe”, 20:2 Refugee Survey Quarterly (2001) 55-59.
15 Communication on immigration policy (COM (2000) 757, 22 Nov. 2000).
146
mechanism in the area of immigration that aims to set up a method for monitor-
ing the development of national immigration policies.16
The candidate and new member countries together form a new migration
space. In the last decade they may be characterised by the common patterns of
migratory movements and migration policy observed in Central Europe. The
number of immigrants has climbed whilst the number of emigrants has declined
or remained stable. The major groups of people coming into this region from the
East and South are migrant workers, small-scale traders, asylum seekers, refu-
gees and transit migrants trying to get further West. This region is also attrac-
tive for both lawful and illegal business entrepreneurs and criminal networks,
and there is an informal and formal side to these activities. The high number
of border crossings and vouchers granted to “tourists” in a visa free regime
disguises the fact that many are engaged in economic activities such as working,
trading, smuggling or trying to cross the border into the EU illegally. This kind
of migration is called “a circulation”, “a complex mosaic” or a “quasi-migra-
tion”, and poses challenges to traditional migration theories.17 In addition this
new space of migration has own special features in each state, such as ethnic
migration. The candidate and new member states consider themselves as non-
destination countries, and asylum seekers and migrants are in transit, thus immi-
grants cannot become residents, taxpayers or potential contributors to reducing
the demographic deficit. Growing prejudice toward all groups of migrants (at
least in Hungary, see Figures 1 and 2) cannot be reduced with economic delib-
erations.18 However, acceding states have not made economic and labour analy-
ses of the benefits of migration in receiving countries. Taking into account these
facts, a comprehensive asylum and migration policy was not prepared before acces-
sion.
The non-governmental sector has an important role to play in the shaping
of European immigration and asylum policies. It attempts to influence the deci-
sion-making process through information exchange, voicing concerns, inspir-
ing public debates and drawing up proposals for legislative measures, such as
the Amsterdam Proposals (2000) containing six proposals for directives on Title
16 Communication on open coordination and immigration policy (COM (2001) 387,

11 July 2001).
17 Wallace, “Conceptual Challenges from the New Migration Space”, in Wallace and
Stola, eds., Patterns of Migration in Central Europe (Palgrave, 2001) 45-71.
18 Tóth, Judit and Sik, Endre: Joining an EU identity. Integration of Hungary or the
Hungarians? (In: Europeanisation, National Identities and Migration. Changes in
Boundary Constructions between Western and Eastern Europe. Edited by Spohn,
W. and Triandafyllidou, A.) Routledge Advances in Sociology. Routledge (2003)
pp.223-244.
147
Judit Tóth
IV issues.19 The Treaty of Amsterdam has simplified the co-decision procedure

(Article 251), which will apply to some Title IV matters from 1 May 2004, and
NGOs must establish an influential European-wide network in order to partici-
pate in dialogue with the Commission, Parliament and the Council in prepara-
tory work of legislation as well as monitoring the implementation of policies. In
near future the NGOs from the acceding countries must make a great endeavour
to join this dialogue. “The non-governmental sector in the Czech Republic is not
as developed as in a number of neighbouring candidate countries, and foreign
assistance remains the main source of financing for most NGOs. This seems to be
for more historic, cultural reasons than due to the legal framework”.20 Moreover,
Government position papers, elements of the Government mandate and results
of negotiations were not publicly available in candidate countries although this
is information of general interest. The governmental agencies keep information
in their own hands, fuelling a “conspiracy theory” in light of the connection of
these issues with public order and the Ministries of the Interior. Consequently,
the civil sector or independent experts has not been able to obtain the relevant
information21 on the negotiations in a formalised way as a possible actor in a public
debate or reconciliation of views that has neither traditions nor institutions. We
hope that legal and financial obstacles gradually cease but historic and cultural
factors cannot be eliminated within a short period in the whole region.
4 The Partnership of Stakeholders

The partnership with countries of origin means that political circumstances,
human rights and development issues in the countries of origin and of transit
of migrants have to be taken into account. However, the High Level Working
Group on Asylum and Migration has prepared action plans for some of the
major sending countries without any direct reflection on the fact that (prior) can-
didate countries have also been sending countries and not only transit countries.
Examples of Gypsy asylum seekers, human trafficking or clandestine migra-
tory movements of aliens from (prior) candidate countries may be given. While
the distinction between source and destination countries is fading within the
EU, the asylum and immigration of third country nationals may reintroduce
the distinction in future. Recognition of asylum seeking Roma citizens from
Slovakia, Czech Republic or Hungary in some Member States in recent years
indicated the controversial roles that candidate countries were playing in migra-
tory movements. The Commission, when listing governmental steps for minority
19 The Amsterdam Proposals or how to influence policy debates on asylum and immigra-
tion, Niessen and Rowlands, eds. (ENAR-ILPA-MPG, 2000).
20 Regular Report on Czech Republic’s Progress towards Accession (1998).
21 Tóth, Judit: The NGO sector and its participation in legislation process in Hungary.
Conference paper (Central European University, 25/26 April 2002, Budapest)
148
protection in two pages, must draw the conclusion: “Despite these considerable
and acknowledged efforts, the integration of the Roma into economic and social
fabric is only at the beginning of what may be a long process”.22 In order to take
a short cut, the Accession Partnership included various Roma programmes.
According to surveys three interconnected factors appear to be very impor-
tant for explaining the patterns of destination for asylum seekers creating a chain
migration: existing communities of compatriots, colonial bonds and knowledge
of the language.23 Due to the absence of these major links, the candidate and
new member states are supposed to remain transit areas for (potential) asylum
seekers for the near future. Despite these facts, this context has been neglected
or instead addressed only as part of the issue of the prevention of trafficking of
human beings and illegal migration into the continent. Where is the dialogue on
these subjects? One of the objectives is to assist countries of origin and transit,
but its execution means “helping third countries to cope with their readmis-
sion obligations toward the Union and the Member States” or “development of
common minimum standards on repatriation” (see Commission Green Paper,
April 2002). What is the supposed role of candidate or newly acceded states
as transit countries while they are marching toward membership? The existing
documents deal with non-candidate countries.
An open method of co-operation for the immigration policy within a coherent
EU framework as it was proposed by the Commission 24neither can be endorsed
by, nor be widely discussed in the candidate (and new member) states due to the
absence of institutionalised domestic channel of communication of actors in
concern. “As the Communication proposed, setting up a national Action Plan
on Immigration Policy will be a real novelty, in particular its regular review and
evaluation that would inspire the establishment of co-operation between stake-
holders at national level in new member states”.25The ECOSOC urges the social
partners, civil society organisations and immigrant associations to participate
actively in the co-ordination and exchange of experiences, and it “can act as an
institutional focal point for the social organisations and work with the Commis-
sion, Parliament and Council on immigration and integration policy.”26 Briefly,
22 Commission Report (n. 4 above).

23 Böcker and Havinga, Asylum migration to the European Union: Patterns of origin
and destination (Nijmegen, 1997).
24 Communication from the Commission to the Council and the European Parlia-
ment on the open method of co-ordination for the Community immigration policy
(COM (2001) 387 final Brussels, 11.7.2001).
25 EU and US Approaches to the Management of Immigration. Comparative Perspec-
tives. Eds: Jan Niessen and Yongmi Schibel, Migration Policy Group, Brussels
(2003).
26 Opinion of the European Economic and Social Committee on the “Communica-
tion from the Commission to the Council, the European Parliament, the European
149
Judit Tóth
the institutional and political frame is forming for a common immigration and
integration policy involving all stakeholders in various level of development for
the open (never-ended) co-operation, and these circumstances can influence on
domestic dialogue with social partners and civil society in newly acceded coun-
tries.
5 Minimal and Maximal Protection

The first stage of the Common European Asylum System is over, at least accord-
ing to the Hague Programme of October 2004 (see Annex 6). What are the
results and constraints of this phase? The three intended goals of this common
system can be encapsulated in three terms: “Towards more accessible, equitable
and managed asylum systems”. But as the Committee of Regions summarised:
“Although there has been considerable progress in achieving a common asylum
system across the EU, further progress towards harmonisation is at present lim-
ited by the difficulty met by member states in moving beyond national agen-
das”.27
The prevention of (mass) influx or further movement of asylum seekers
has generated a multifunctional set of instruments. The joined, co-financed or
contributed programmes and readmission agreements with third countries or
assisted return can create greeter coherence between internal and external poli-
cies of the Union. Further on, “appropriate assistance available to third coun-
tries for implementing the clause on joint management of migratory flows and
compulsory readmission in cases of illegal immigration supports the capacity
building and respect for human right commitments, such as non-refoulement
and refugee status in third (neighbouring or/and sending, transit) countries. For
instance, through the AENEAS programme information campaign, legal advice
programmes would be financed (in 2004-2008 by 250 million euros).28 On the
base of emergency procedure and the European Refugee Fund, a financial cor-
rections and burden-sharing system29 has been gradually developed that would be
Economic and Social Committee and the Committee of the Regions on immigration,
integration and employment” (COM (2003) 336 final, Brussels, 10 December 2003).
27 Opinion of the Committee of the Regions on the “Communication from the Com-
mission to the Council and the European Parliament : Towards more accessible, equi-
table and managed asylum system” (27 January 2004)
28 Regulation No.491/2004 of the European Parliament and of the Council establish-
ing a programme for financial and technical assistance to third countries in the areas
of migration and asylum (AENEAS) (10 March 2004)2004.
29 96/198/JHA Council Decision of 4 March 1996 on alert and emergency procedure
for burden-sharing with regard to the admission and residence pf displaced per-
sons on a temporary basis; 2000/596/EC Council Decision of 28 September 2000
establishing a European Refugee Fund; 2001/275/EC Commission Decision of 20
March 2001 laying down detailed rules for the implementation of Council Decision
150
relevant and rather applicable for the new, peripheral member states and can-
didates unless they will be frightened at huge administrative requirements of
co-finance and mechanism can survive.
The provisions in the Council Directive on temporary protection following
mass influxes in the wake of crisis situations will be rather relevant to the periph-
ery of the (enlarged) EU, namely for candidate members. The Directive con-
cerns measures on reception and admission of forced migrants in a mass influx,
including especially financial support from the European Refugee Fund in prac-
tice. Involvement of the applicant countries in the preparation of secondary
and supplementary legislation was necessary due not only to their geographical
position but also to the absence of legal rules and clear practice on temporary
protection in those states – with certain exceptions. For instance, there are two
aspects to asylum rules in Slovenia. Beyond the recognition of refugees on the
basis of 1951 Geneva Convention, the Law on Temporary Refuge (No.1139 of
1997) and the Alien Act (No.1 of 1999) provide temporary residence on humani-
tarian grounds and temporary refugee status including different rights and sup-
ports. The law recognises temporary refuge to persons in danger, who have fled
from their country of origin in masses due to war, occupation or due to massive
violations of human rights. Temporary residence on humanitarian grounds is
issued because of the implementation of the non-refoulement principle in con-
nection with torture, inhuman or degrading treatment. In 1999 only about 4400
persons obtained protected migrant position while the total number of accom-
modated migrants in the country was 172,000 between 1992 and 1998. It means
that they were assisted and their residence was authorised on the base of tem-
porary rules.30 In Hungary the autonomous legislative regulation on temporary
protection in case of mass influx (Act No.139 of 1997) was replaced by a simple
reference on EU institution’s legal source, while the temporary protection for
individual applicants has been gradually restricted since 2001 regardless of prior
experiences and the growing number of migrants in legal limbo.
2000/596/EC as regards the eligibility of expenditure and reports on implementa-

tion in the context of actions co-financed by the ERF; 2002/307/EC Commission
Decision of 18 December 2001 laying down detailed rules for the implementation
of the Council Decision 2000/596/EC as regards management and control systems
and procedures making financial corrections in the context of actions co-financed
by the ERF. See now the second Refugee Fund (OJ 2004 L 381/52).
30 Tratar, “Slovenia: Conflicts between the European integration and the international
human rights obligations in the shaping of asylum policies in Central and Eastern
Europe (Country Reports)” in Nyiri, Toth and Fullerton, eds., Diasporas and Poli-
tics (Centre for Migration and Refugee Studies (2001)) 234.
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Although the directives and decisions on asylum accomplish the minimal

protection and the “one-stop shop” for protection seekers31 preventing their re-
migration, those state that they are in accordance with the 1951 Geneva Con-
vention as well as the principle of non-refoulement and the fairness of the whole
procedure. The respect for childrens’ rights and personal data protection are not
institutionally provided introducing some vague terms, such as of “unaccom-
panied minor” for instance in the Council Directive on minimum standards for
giving temporary protection in case of mass influx of displaced persons, perhaps
just to offer a tacit compromise for less developed border states.32 The “pro-
tection gap”33 is also recognized by the Council: Member States often provide
subsidiary protection with more frequency than protection based on Geneva
Convention for applications for international protection, and it is more rele-
vant and its panacea, the single protection procedure would be challenging the
new member and candidate states. It means less fear that detailed criteria for
determining the state responsible for examining an asylum application lodged in
one of the Member States, in particular for those new Member States that are
located next to countries of origin or have long external borders. The Regulation
excludes the citizens of member states34 from the procedure and logically from
recognition. Accession changes automatically the status of citizens from the new
Member States residing in the current Member States.
The requirements of an effective legal remedy will be included in the common
minimum standards in each phase of the refugee determination procedure in
Member States not including the process determining the state responsible for
examining the given asylum application. This would avoid misuse of readmis-
sion agreements, now with an almost world-wide spread, which push the appli-
cants (illegal migrants) back to the direction of the acceding states. In practice
the potential protection seekers have no chance for scrutiny of their individual
circumstances, but can only raise questions concerning technical obstacles to
readmission or expulsion, spending perhaps months in detention. Inserting a
clause into all readmission agreements obliging an investigation into the indi-
31 <http://europa.eu.int/comm/justice_home/doc_centre/asylum/studies/docs/study_
one_stop_shop_en.pdf>.
32 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving
temporary protection in the event of a mass influx of displaced persons and on
measures promoting a balance of efforts between Member States in receiving such
persons and bearing the consequences.
33 Communication from the Commission to the Council and the European Parliament
“A more efficient common European asylum system: the single procedure as the next
step” (COM (2004) 503 final, 19 July 2004)
34 Council Regulation 343/2003/EC 18 February 2003 establishing the criteria and
mechanisms for determining the member State responsible for examining an asylum
application lodged in one of the Member States by a third country national.
152
vidual conditions of foreigners who enter illegally together with commitment

to develop procedural rules would compensate minimally for the common treat-
ment of illegal migrants regardless of their need for protection. In addition to
this, the guarantees of fair procedure would demand a proper interpretation
and implementation of the “safe” country rules that are imported into the new
receiving countries without expertise.
The common minimum conditions for reception of asylum seekers is now
an equally revolutionary achievement within a diverse European Union from
2005.35 Although the implementation of the directive is accommodated to local
circumstances, the basis for the temptation of asylum seekers to move further to
another EU Member State in the EU, in particular from a new Member State
to a central one, would in principle be reduced. Or as the Commission’s JHA
Scoreboard (2001) puts it: “secondary movements by asylum seekers between
the Member States should be limited”.36
Perhaps these similar or uniform conditions would reduce the role of coun-
tries in transit when the rules on the recognition and content of refugee status are
approximated. The Justice and Home Affairs Council in late April 2004 formally
adopted the Council Directive on minimum standards for the qualification and
status of third country nationals and stateless persons as refugees or as persons
who otherwise need international protection, and it reached political agreement
on the amended proposal for the Council Directive on minimum standards
on procedures in Member States for granting and withdrawal refugee status,
the second stage of legislation in a rather Enlarged and less Common Asylum
System. The latter Directive was later formally adopted in December 2005.
6 Emancipation and Integration of Migrants

The Member States agreed in Tampere that a comprehensive integration policy
for legally resident third country nationals was vital.37 The goal is to grant them
rights and obligations comparable to those of European Union citizens and
which should, in long term, provide them with the same freedom of movement
within the Union, including family re-unification. However, this road towards
emancipation has been bumpy. While a set of measures to exclude third country
nationals was adopted within a short time (e.g. Directive on mutual recognition
on their expulsion, May 2001),38 the Directives concerning the status of third
country nationals who are long-term residents (proposed in March 2001) and
the right of family reunification (proposed in 1999, again in 2000 and 2002)
35 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards

for the reception of asylum seekers.
36 JHA Scoreboard for Second half of 2001 (COM (2001) 628, 30 Oct. 2001).
37 See the conclusions in Annex 4.
38 Council Directive 2001/40/EC on the mutual recognition of decision on the expul-
sion of third country nationals.
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Judit Tóth
faced long debates before agreement and adoption in 2003.39 At the same time,
the existing gap between the status of nationals and foreigners in the candidate
countries will not be narrower due to reluctant consent in the EU. For instance,
foreigners were excluded from more than 100 legally regulated [professions] in
the Hungarian legal system in 2001,40and its revision has remained in a mosaic
due to fast amendments on the eve of accession and to absence of clear immi-
gration policy. In addition to this, nationals of the candidate states will not be
able to enjoy the fruits of emancipation in the current Member States as an
important element of socialisation before becoming European Union citizens
on accession. Moreover, the temporary restrictions in free movement of workers
of the new member states toward (old) member states may raise a conflict with
EEA workers residing and employed freely in the territory of new member states in
the hallmark of legal status.
The major challenge facing the Czech and Polish governments now is to
establish the structures necessary to recognise the status of refugees and to inte-
grate them in society. According to the Amendment to the Act on Employment
(2001) all asylum seekers can seek employment without a labour permit. Despite
this significant change, their entry into the labour market is doubtful. This is due
to language barriers and the poor orientation of asylum seekers in the labour
market. Most problems related to social welfare for refugees are due to the fact
that the whole procedure is slow and leaves asylum seekers with no financial
means in the time before their application for social benefits is dealt with. Sev-
eral NGOs have suggested that the Ministry of Interior would offer migrants
with tolerated status a loan, which would be reimbursed from received social
benefits. There have been changes in family reunion policy related to refugees,
but the new Act on the Residence of Foreigners does not allow aliens staying
legally in the Czech Republic to extend that status to their children41.
This is crucial to promote social cohesion and to combat the rise of racism
and growing xenophobia in the whole continent. Fair treatment of third country
nationals inspires measures aimed at enhancing non-discrimination and fight-
ing racism and xenophobia but applying generally to all persons residing in the
39 Council Directive 2003/109/EC concerning the status of third-country nationals

who are long-term residents; Council Directive 2003/86/EC on family reunification;
see Chs. 20 and 19.
40 Tóth, “Választójog, népképviselet és állampolgárság az EU-ban és Magyarországon.
(Voting rights, Representation and Citizenship in the European Union as well as in
Hungary)”, in Bodnar, EU-csatlakozás és alkotmányozás (Accession to the EU and
Consitutional Reform) (Szeged, 2001) 209 (Hungarian).
41 Robert Scheunpflung – Lynette Tan: Impact of the EU Enlargement on Migration
and Asylum in Central and Eastern Europe taking examples of the Republic of
Czech and Poland. Churches’ Commission for Migrants in Europe and Interna-
tional Catholic Migration Commission (June 2000).
154
territory of the EU. Both aspects of this fairness must be accepted by the can-
didate and new member states, in which the level of prejudice against groups of
nationals (Romas) as well as aliens are apparent. Figures 1 and 2 from Hungary
illustrate the rate of prejudice in public opinion,42as well as the Figure 3 that
demonstrates the growing extramism is Slovakia.43 For this reason, training of
police or to punish racist actions in accordance with a proposed EU framework
decision (Commission’s proposal on racism and xenophobia, November 2001)
would also radiate to the officers in the CEE states through the pre-accession
partnership.44 Finally, this approach implies an inclusive definition of national
identity which embraces people of all origins and faiths.45
Among the third country nationals residing as migrant workers, family
members or students there are more and more persons from the candidate coun-
tries. For them, enlargement will mean personally tangible benefits but the other
citizens living at home will face a transition period with certain limitations on
their mobility within the EU. The details of the transition period for new member
states’ citizen are known today. Would it be better to be a legally residing third
country national in the EU than a citizen of a newly acceded Member State?
How can the candidate states handle jointly the non-discrimination and emanci-
pation in the entire society? “Roma continue to suffer from widespread discrimi-
nation. Political commitment from the Bulgarian Government to remedy their
problems has still not been matched by concrete action.” Also, “steps have been
taken to combat the precarious situation of Roma minority in Poland”; “[t]he
integration of recognised refugees into society is still difficult and the Hungarian
Government would need to take appropriate measures”; and “efforts to inte-
grate non-citizens need to be continued in Latvia”.46 The answers and solutions
may also influence the inclusive or exclusive definition of national identity and
vice versa.
7 Combating Unwanted Migration

Who are desired immigrants for the EU? The answer would be substantial while
it is framing the aims and method of the fight against unwanted immigrants.
Briefly, the postulates towards “ideal immigrant” are based on obscure economic
(including demographic and cultural) requirements and explicit public order.
For instance, a healthy, (at least) medium-skilled, culturally assimilated young
person with a clean criminal record and a proper financial cover coming from a
42 Toth-Sik, n. 18 above.
43 Annual Report on situation and development of extremism in the territory of the
Slovak Republic in 2001 (Bratislava, 2002) <www.minv.sk/en/ex/extrem.htm>.
44 COM (2001) 664, 28 Nov. 2001; OJ 2002 C 75 E/269.
45 Lewis, “An Immigration Policy for the European Union”, 20:2 Refugee Survey Quar-
terly (2001) 40.
46 Commission Strategy report (n. 4 above).
155
Judit Tóth
consolidating state may be admissible depending on the actual requirements of

the labour market. But the logic of rules is just the opposite: the legal measures
of prevention, applicable control and sanctions by authorities or state agencies
cover up substantial postulates. In this way the definition of desirable immi-
grants is brutally simplified to the term of “lawfully entered and residing third
country nationals”. The adopted measures, such as list of third countries whose
nationals must be in possession of visas when crossing the external borders and
those whose nationals are exempt from that requirement, and the proposed and
planned measures on the conditions of entry and residence of third-country
nationals for the purposes of paid employment and self-employed economic
activity and unpaid activities or study intend to balance these inclusive and
exclusive approaches to immigrants.47 The other substantial element of accepted
immigrant definition will be the family status. The fate of the proposed directive
on the right of family reunification has symbolised the difficulties of extending to
third-country nationals the same rights as the family members of EU nationals
who have moved within the Union, with regard to eligibility for family reunion
as well as access to education, employment and training.
Due to the extensive interpretation of security in external and internal con-
texts, the measures against illegal immigration were adopted faster and more
smoothly, such as mutual recognition of decisions on the expulsion of third coun-
try nationals (Directive 2001/40), harmonisation of financial penalties imposed
on carriers transporting into Member States third country nationals lacking
the documents necessary for admission (Directive 2001/51) or the measures on
strengthening the penal framework to prevent the facilitation of unauthorised
entry and residence of third country nationals (Directive 2002/90 and attached
Framework Decision). Further plans to combat illegal immigration are outlined
in numerous action plans, framework decisions and the work of Europol and
CIREFI relating to organised crime, trafficking in human beings and economic
exploitation of migrants.
There are further ramifications of the upgraded fight against illegal immi-
gration. International, universal and regional human rights obligations as well
as the principles of justice and freedom in the Union would be endangered
by new rules on issues such as the exchange of personal data, joint investiga-
tion and expulsion. The candidate countries are zealous partners of the EU in
the fight against organised crime, smuggling of persons and drug trafficking,
without having a strong civil society and a developed, vital practice of protect-
ing human rights. The similar effectiveness in co-operation combating irregular
migration would be necessary in the matters of social integration of refugees,
non-discrimination and data protection during the pre-accession period. What
message does the EU send to the prior candidate countries by its reluctance to
make the EU Charter of Fundamental Rights a binding instrument? How may
156
the upgraded combat hinder the respect for human rights that are newly received
and admitted in acceding states? Finally, EU co-operation has been reinforced to
achieve domestic policy objectives concerning the restriction of unwanted immi-
gration without public debate or discourse either in the Member States or in the
candidate countries.48 And new EU policy on immigration and asylum co-opera-
tion allows Member States to avoid domestic legal and political constraints that
inhibited their ability to restrict irregular migration.49
8 Mutual Trust
We can speak of trust of one another inside the EU and between the EU and
acceding states. The “Scoreboard” monitors progress in the adoption and imple-
mentation of the impressive range of measures needed to meet the targets set
by the Amsterdam treaty and the European Council. It is based on the gen-
eral acceptance of approximation or unification of different judicial traditions
and structures in the matters of asylum and migration. This regular monitoring
provides up-to date account of the results in the race for successful commu-
nautarisation. Citizens and political actors will be convinced that the most chal-
lenging issues facing society, such as migration, terrorism or crime can only be
usefully addressed at the level of the Union rather than by the Member States
acting alone. This tight co-operation demands further Community competences,
including common rules and joint actions. For instance, the incorporation of
the Schengen acquis has had an apparent impact on the Union’s work, Commu-
nity law or development of common practice, particularly as regards visas and
border controls at external borders.
Criteria of accession cover the ability of the candidate countries to imple-
ment the acquis that naturally include Community legislation in force as well as
mechanisms of co-operation in the field of asylum and migration. Negotiations
on aspects of justice and home affairs have been considered to be a prominent part
of the enlargement process diminishing the security risks as much as possible.
For this reason the candidate states must accept and be ready to implement the
Schengen acquis in its totality from the first moment of accession in principle,
subject to the “two-step” approach to applying Schengen in the new Member
States discussed above. This approach may contribute to a feeling of unequal
partnership.
In order to monitor the progress toward membership the Commission has
issued yearly reports measuring how the candidate countries meet the require-
ments of the acquis and JHA accession requirements since 1998. Also, the
Community has supported the applicant countries’ preparatory work via spe-
48 Geddes, “Asylum in Europe: States, the European Union and the International
System”, 20:2 Refugee Survey Quarterly (2001) 59.
49 Guiraudon, “European Integration and Migration Policy: Vertical Policy-making
as Venue Shopping”, 38 JCMS (2000) 251.
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Judit Tóth
cific projects under the Phare programme. Agenda 2000 and similar bilateral
mechanisms with Member State also relate to accession; and participation in
JHA programmes has made a material and professional contribution to can-
didate states’ ability to assume the obligations of membership. The pre-acces-
sion instruments financed by the Community provide support for institution
building and investment to strengthen the regulatory infrastructure needed to
ensure compliance with the acquis, including technical assistance. For instance,
the Phare programme allocated to Hungary during the period 1992 to 2001 was
1239.6 million EURO including the sum for Cross-Border Co-operation Pro-
grammes.50 These pre-accession instruments have provided considerable support to
border control, visa policy and combatting illegal migration while efforts to ensure
non-discrimination or create better conditions for asylum seekers have instead
been urged verbally. When setting the priorities for the accession partnerships
and the national programmes for the adoption of the acquis in applicant states,
the establishment of general preconditions of the rule of law, respect for fundamen-
tal rights and international obligations and their institutional guarantees should
have preceded the introduction of the special requirements of the acquis. It seems
that the accession criteria could become only rhetoric in the applicant states,
endangering the fragile new-born constitutional democracies.
Moreover, the accession process is administered by the government,
strengthening executive powers and diluting the powers of national parliaments in
each applicant country. This unintended consequence of pre-accession efforts
and negotiations comes partly from the internal division of competences in
the organisation of the Community, partly from the weakness of institutions
of public power in practice in the applicant states. In parallel with a profound
transformation of parliamentary functions, its institutional connections, and
internal activities can be demonstrated. In terms of new functions it is clear that
the legitimacy function of parliament has increased, not only in new democra-
cies where the existence of parliament is a proof of democratisation but also
in old democracies where its stability strengthens the democratic tradition. For
this reason government-parliament connections are relevant during the whole
period of integration, which is obviously influenced by accession. For instance,
there is a need to improve Polish MPs’ professionalism (according to surveys
their self-perceived level of political professionalism and knowledge about soci-
ety and methods and techniques of public activity must be developed). Also
MPs were hardly satisfied with the moral integrity of many of their colleagues.51
The prestige of the parliamentary committees is different but the Committee for
European Integration set up in 2000 belongs to the group with low-prestige in
the Czech Republic. It can be attributed to the fact that this committee is rather
50 Regular Report on Hungary, n. 6 above.

51 Wesolowski, “Change and Continuity: Four Polish Parliaments 1989-2001” 2:4
Central European Political Science Review (2001) 25.
158
new and is still defining the field of its activities.52 Consequently, the extent of
legal and political control which parliaments apply to government is less than the
constitution provides for in principle. Also the legality of the accession process
would be regularly scrutinised by the Constitutional Court or other responsible
organ. These kinds of control require non-confidential documents on accession
stages (e.g. position papers of the government), expertise in the controlling agen-
cies and a transparent mechanism.
Not only public trust in an evolving democracy but the equal partnership of
applicant states and the EU is challenged by accession. Due to blatant inequali-
ties in the history of the applicant states the sense of equality might be wounded
by the limited involvement in preparatory acts in the field of irregular migration
and security and control measures that are evaluated during the whole process of
enlargement. For instance, the European management concept on border control
emphasises the rapid inclusion of the applicant states in the closer co-operation,
thus the “High Impact Operation” also focused mainly on co-operation with
the candidate countries in the area of border control. Moreover, these initia-
tives highlighted the need to increase the efficiency of external border controls,
taking into account forthcoming EU enlargement. In this way the document on
this concept urged assistance to candidate states to organise controls at Europe’s
future external borders, by instituting operational co-operation. Despite all of
this, the Strategic Committee on Immigration, Frontiers and Asylum only invited
the candidate countries to only one meeting per year as a minimum,53 and their
presence did not involve “strategic” co-operation, consultation or consent.
Public opinion can dispute the equality of applicant states by rejecting acces-
sion during a referendum on membership, raising tangible evidence of bene-
fits of membership: restrictions on freedom of movement and an absence of
common currency inside the EU for a defined period of time while citizens of
current Member States (and third country nationals) will come and work in the
current Member States without similar restrictions. Are we equal indeed? The
ambivalences, fears for legal and cultural traditions, mass influx of labourers,
offenders, and uncertainties are reflected in the changing level of opposition
toward accession to the EU, not only in Hungary (see Figure 2) decreasing the
mutual trust that has been strong enough to create consent to adopt framework
decisions on European arrest warrant or combating terrorism.
52 Rakusanova, “The Role and Position of Committees of the House of deputies of

the Czech Republic in the Period of Transformation” 2: 4 Central European Politi-
cal Science Review (2001) 128.
53 European management concept on border control (Council doc. 14570/01, 27 Nov.
2001).
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Judit Tóth
9 Flexibility
The notion of flexibility has spread widely in political rhetoric including chances
to implement the acquis in a gradual way due to half-ready administrative capacity
or to obtain exceptions in the applicant states mainly for political reasons. Two
major fields of flexibility have been suggested or discussed: the visa and border
control regimes. They are overlapping in part each other as well as interrelated
to external and regional relations, economic losses and minority connections to
the kin-state. Allow us to give two examples.
In parallel to the development of secondary rules on visa restrictions, on
the format of visas, on the criteria to issue a visa and on the exchange of infor-
mation concerning the visa regime at EU-level, a “Schengen panic” rose among
ethnic Hungarians. They fear the rise of new walls on the Eastern borders of
Hungary, including border guards, visa requirements, mobile units, police and
labour authorisations, readmission agreements and immigration rules regulating
the entry and residence of third country nationals. Although several bricks of
the wall are already in place, the visas are considered to be the most brutal and
final element of the new construction. Not only Cuba or Mongolia but Mol-
dova, Belarus, the Former Yugoslav Republic of Macedonia, the Russian Fed-
eration and the CIS countries in Asia have been recently put on the list of states
whose nationals must be in possession of a visa in order to enter Hungary. The
visa-free system with Romania, Ukraine and Yugoslavia was kept until accession in
order to allow migrations of ethnic minorities into the country and to prevent stron-
ger anti-European feelings in public opinion. The principle or hope of flexibility
of the visa system was proved by deletion of Romania from the EU’s visa “black
list” from 1 January 2002. At the same time, the Law on Hungarians Living in
Neighbouring Countries entered into force, providing a one-sided regulation by
a kin-state in favour of ethnic Hungarians living outside Hungary who would
get beyond the new walls. It raised controversies with some neighbouring coun-
tries, some of whose citizens would receive benefits on economic, social, cultural
and labour matters by virtue of the Law on the principle of ethnic membership
in Hungarian communities. The Council of Europe’s Commission for Democ-
racy through Law criticised the law’s apparent conflict with prevailing European
standards of minority protection. Unilateral measures are granting benefits to
kin-minorities living in and citizens of other states are only legitimate if the
principles of territorial sovereignty of states, pacta sunt servanda, friendly rela-
tions among states and respect of human rights and freedoms, in particular the
prohibition of discrimination is respected.54 The European Commission passed
stricture on absence of due consultation with the neighbouring states in prepa-
54 European Commission for Democracy Through Law (Venice Commission), Stras-

bourg, 22 Oct. 2001 (CDL-INF (2001) 19 “Report on the preferential treatment of
national minorities by their kin-state” adopted by the Venice Commission at its 48th
Plenary Meeting (Venice, 19/20 Oct. 2001).
160
ration process. In addition, some provisions “will need to be aligned with the
acquis at the latest upon accession, since it is currently not in line with the prin-
ciple of non-discrimination laid down in the Treaty”.55 Following the adoption
of the Venice Commission’s Report, including by Hungary itself, Hungary has
however committed itself to comply with the Report’s findings, and bilateral
consultations have also started. Finally, the Law was modified in order to main-
tain exclusively cultural encouragement for Hungarian community in adjacent
states (Act.No.57 of 2003). The fate of the Law expresses how a state is looking
for compensatory measures against disadvantages of exclusion and visa restric-
tions and how measures intended to support national cohesion and to keep alive
the cultural heritage of ethnic minorities will impact on accession efforts, inter-
national legal obligations and political discourses.
The priority of the EU is to ensure that the new member states will be able
to implement the existing Schengen rules, including the new visa requirements.
The priority of the applicant states is to clear the way for accession to the EU as
soon as possible. Neither side has therefore yet given sufficient attention to the
need to make the new external Schengen frontiers of the EU as friendly as pos-
sible for the new borderland neighbours. The EU has not yet developed a posi-
tive, pro-active approach to minimising these problems. Many ways exist which
could alleviate undesired restrictive effects of the Schengen regime on the move-
ment of honest citizens in and out of the EU, without prejudice to the security
objectives of the EU. Examples include (1) provision of adequate consular ser-
vices for people living in frontier regions as well as capital cities, (2) upgrading of
border facilities to provide for rapid passage of large numbers without the long
queues as often experienced today, (3) special bilateral agreements for border
regions, such as long-term multi-entry national visas at low or zero charge, very
short-term visas for one or two days to facilitate local family contacts, tourism
and small scale commerce, and (outside the scope of Schengen rules) permanent
resident permits; (4) customer-friendly border services, with training of personnel
to eliminate the undignified interrogation styles, cut visa queues and delays, and
make available application forms by post or from internet sites; (5) planning in
neighbouring states for visa-free status, with help from the EU to prepare action
programmes for approaching the conditions under which visa requirements
may be lifted; (6) development of Euro-region programmes to boost co-opera-
tive regional development across the EU’s new external frontier, with revision
of segmented EU aid programmes to make them more border-region friendly;
(7) clarification of the rights of movement, residence and employment in the EU
of stateless persons, (8) sequencing in the introduction of Schengen, taking care
in managing the inevitably progressive application of the full Schengen regime
so as to minimise frictions between candidates and third countries; (9) possible
55 Regular Report on Hungary’s Progress towards Accession (n. 6 above) SEC (2001)
1748, 13 Nov. 2001).
161
Judit Tóth
easing of immigration policy by EU member states (or later by the EU). This
process should be launched by a Political Declaration from leaders of the Euro-
pean Union, in favour of a “Friendly Schengen Border Policy” (FSBP) giving due
weight to the external policy objective of the European Union. It may avoid new
dividing lines on the EU’s Eastern frontiers, alongside its internal policy priority
to achieve security objectives, social cohesion and solidarity, too.56
As these examples prove, applicant countries have different perspectives to
those of existing members on asylum and immigration policy, the significance
of the external border, and the methods of cross-border crime control. It may
promote a more flexible and open Union. The scope of flexibility is defined in
the Accession Treaties including temporary limitations of free movement and
mobility of citizens from the new Member States. An intellectually sound strat-
egy would be policy adapted to the enlarged Union which would avoid: con-
flict with other policy objectives; the inevitable public disillusionment where few
practical results flow from a general declaration of policy; erroneous policies
based on a commonly believed but perhaps exaggerated external threat (for
instance, the flood of immigrants) to the internal security of the EU; and a rigid
distinction between the “safe” region inside the EU (freedom through effective
law enforcement) and an “unsafe” region outside (the source of criminal threats,
corrupt law enforcement and political disorder).57
10 Summary
The issue of enlargement is connected in many ways to making European inte-
gration wider and deeper, to a large extent through the development of immi-
gration, asylum and home affairs rules. The new members will have to meet
the requirements of communautarisation of immigration and asylum policy, as
defined in the criteria for accession. On the other hand, the enlargement issues
are relevant to matters of asylum and migration as regards: (1) upgraded secu-
rity internally and externally; (2) preparation of secondary and supplementary
legislation in order to establish the area of freedom and justice, including asylum
and migration of third country nationals; (3) creation of migration and asylum
policies framing the co-operation and common actions with sending, destina-
tion and transit countries, such as applicant states and states surrounding them;
(4) institutional reform of the EU, in particular the decision making process
in Title IV matters and related competences, as well as through co-operation
56 Conference Report with Recommendations on the reshaping of Europe’s borders:

Challenges for EU and External Policy (Centre for European Policy Studies – Sitra
Foundation and Stefan Bathory Foundation, Brussels, 6/7 July 2001: New Euro-
pean Borders and Security Cooperation – Promoting Trust in an Enlarged Union).
57 JHA in an Enlarged Europe – Strategy for 2000-2005, Centre for European Political
Studies (CEPS) and SITRA Academic Network (report by Joanna Apap and Mal-
colm Anderson (2001)).
162
in readiness for enlargement; and (5) establishing mutual trust and flexibility
through Accession Partnerships, consultations, negotiations and a set of fair
Accession Treaties. However, the close linkage does not mean either an equal
interplay between these ongoing processes or a relaxation in the application of
an eternally changing and evolving acquis by the acceding states. Interactions
between the EU and its applicants have been unbalanced so far, and it is neces-
sary to establish partnership in the spirit of solidarity, cohesion and democratic
control with common aims and values, such as the rule of law, freedom of move-
ment, security and justice in the enlarged Europe.
The reform in institutional meaning (for instance passing towards majority
voting, Eurojust, Europol, Eurodac, immigration liaison offices network, Visa
Information System, EUMC), combating illegal migration, extremism and ter-
rorism through new legal instruments has been speeded up and strongly influ-
enced by eastward enlargement. On the other side, the parallels of accession and
reforms just in the field of justice and home affairs belonging to state souver-
eignty have reduced the chances of equal partnership with recently independent
candidate states with less developed human rights experiences, civil society and
professional policy makers to develop jointly the new area of freedom and jus-
tice. As the starting point of the history of Community was the sharing political
risks, the wider Europe also is built on common security policy. Transparency,
subsidiary, participating democracy and social inclusion of migrants are prom-
ises of the Treaty of the Constitution of Europe that is larger than the European
Union.
163
Judit Tóth
Figure 1 Would you agree that Hungary should accept all refugees, or none of
them, or some of them?” (%)
100
90
80
70
60 All
50 Some
40 None
30
20
10
0
1992 1993 1994 1995 1996 1997 1998 1999 1999 2000 2000 2001 2001 2001
02 08 02 11 02 10 11
Source: TÁRKI Omnibus 1992-2001
Figure 2 The expectation regarding the social effects of migration in the course
of EU accession of Hungary (%)
Source: TÁRKI Omnibus 1999, 2000
164
Figure 3 Data on committed crimes on the ground of racial, ethnical motovation

in Slovakia
1997 1998 1999 2000 2001
Detected cases 19 21 15 35 40
Investigated cases 8 15 11 25 23
Active perpetrators (2001): 572 (from them 476 right-winged)
Sympathisers (2001): 2834 (from them 2002 right-winged)
Source: Monitoring Centre of Racism and Xenophobia (established by the Order of

Ministry of the Interior, No.27/2001)
165
Section II Visas and Border Controls
Chapter 7 Border Controls
1 Summary of Content
1.1 Schengen Rules
The “Schengen acquis” on border controls was integrated into the European
Union legal framework by the Treaty of Amsterdam and ensuing Council Deci-
sions in 1999. As with other parts of the Schengen rules, the core provisions of
the acquis date from the 1990 Schengen Convention,1 with supplementary acts
adopted later by the Schengen Executive Committee. The Convention contains
the core obligation to abolish internal border checks in Chapter 1 of Title II
(Article 2), subject to the possibility to re-impose border checks in certain situa-
tions and the power to impose checks further inside national territory in place of
boder checks. External borders rules appear in Chapter II of that Title (Articles
3-8).
Article 3 sets out the obligation to cross border points only at fixed opening
hours. More detailed rules, including exceptions for minor border traffic and
exceptions for “special categories of maritime traffic”, were to be adopted by
the Executive Committee. Article 3(2) obliges the Member States to establish
penalties for crossing of borders at unauthorised points. According to Article 4,
airline passengers must be checked at the last airport before leaving the Schen-
gen area and the first airport at which they enter it, but (implicitly) not during
“internal” flights.
The central rules on crossing an external Schengen border for short-term
visits of less than three months are set out in Article 5.2 These rules are also
1 OJ 2000 L 239/19.
2 For a detailed analysis, see Cholewinski, “No Right of Entry: The Legal Regime on
Crossing the EU External Border” in Groenendijk, Guild and Minderhoud, eds., In
Search of Europe’s Borders (Kluwer, 2003) 105 at 115-127. On the national case law
Section II – Visa and Border Controls
relevant for obtaining a short-term visa (see Article 15),3 and for exercising the
freedom to travel (Articles 19-21). There are five criteria: possession of valid
documents determined as necessary to cross the border; possession of a visa if
required;4 “if applicable submission of documents substantiating the purpose of
the visit and sufficient means of support; absence from the list of persons banned
from entry set up within the Schengen Information System (SIS); and absence of
a “threat to public policy, national security or the international relations” of any
of the Schengen states. Article 5(2) permits entry of a person who does not meet
these criteria, if a Member State “considers it necessary” to derogate from the
criteria on humanitarian grounds, national interest or international obligations;
but in such a case the permission to enter should be limited to the territory of
that Member State.
Article 6 provides for detailed rules concerning checks on the external bor-
ders, with more thorough checks required on persons entering than persons
exiting. Article 7 concerns cooperation between the Member States as regards
exchange of information, training and the use of liaison officers. Finally, Article
8 gives the Executive Committee powers to adopt rules on the practical aspects
of border checks and surveillance.
As for secondary rules, the most important measure is the Common Manual
on border controls.5 There were also measures solely concerning internal border
abolition,6 measures solely concerning external border checks,7 and measures
partly concerning external checks.8
1.2 Community Rules

Article 62(1) EC gives the Community power to adopt measures “ensuring, in
compliance with Article 14, the absence of any controls on persons, be they
citizens of the Union or nationals of third countries, when crossing internal bor-
on the issue, see Staples, “Adjucating the Schengen External Border” in idem., 215
at 233-234.
3 See Ch. 9.
4 On the question of who needs a visa to enter the territory, see Ch. 8.
5 A consolidated text of the Manual updated to Dec. 2002, absent certain classified
provisions, is at OJ 2002 C 313/97. The Manual has been amended since by various
Council Decisions (see discussion below) and by the 2003 Treaty of Accession (OJ
2003 L 236, pages 727-751).
6 Decisions on obstacles to traffic flows, bringing the Convention into force and pro-
cedures for reintroducing border checks (OJ 2000 L 239/154, 130 and 133).
7 Decisions on introducing the Schengen system and the activities of a task force (OJ
2000 L 239/168 and 191).
8 Decisions on entry and exit stamps, an action plan to combat illegal immigration
and a manual of documents to which visas may be affixed (OJ 2000 L 239/166, 203
and 298).
170
Chapter 7 Border Control
ders”. In turn, Article 62(2)(a) EC gives the Community power to adopt mea-
sures concerning “standards and procedures to be followed by Member States in
carrying out checks on persons” at the external borders.
No measures based on Article 62(1) had been adopted by 1 January 2006,
although the Commission proposed a Regulation establishing a Borders Code,
including provisions on both internal and external border checks, in May 2004.9
Moreover, the Court of Justice has made clear that Article 14 EC, the core obli-
gation to abolish internal border controls between Member States, does not
create directly effective rights but depends upon action by Community institu-
tions for its implementation.10 So the legal position is still entirely based on the
Schengen acquis.11
As for external border checks, the first measure adopted in this area was
a technical Regulation, based on Article 62(2)(a) and 62(2)(b) EC (concerning
the EC’s visa powers), enabling the Council to amend most provisions of the
Common Manual by means of adopting implementing rules.12 This Regulation,
like the parallel Regulation concerning amendment of the Common Consular
Instructions (CCI),13 irritated the Commission because it arguably breaches the
principle in Article 202 EC that the Commission should usually be granted the
power to implement Community acts. As a result, the Commission sued the
Council to annul the Regulation, but this challenge was unsuccessful.14
Article 1 of the Regulation permits the Council to amend many provisions
of the Common Manual, acting unanimously on a proposal from a Member
State or the Commission. From 1 January 2005, this Article was amended so
that the Council acts by a qualified majority.15 Article 2 permits changes to be
made to certain provisions by a Member State acting alone. Unlike the parallel
Regulation on amendment of the CCI, there is no obligation of prior consulta-
tion with other Member States first. Article 4 provides that thirteen Annexes of
the Common Manual can be amended only by means of that parallel Regula-
9 COM (2004) 391, 26 May 2004.

10 Case C-378/97 Wijsenbeek [1999] ECR I-6207.
11 On the application of the exceptions to Article 2 of the Convention, see Statewatch
European Monitor, February 2003, which records 26 suspensions over the previous
two years, and analysis by Groenendijk in “Reinstatement of Controls at the Inter-
nal Borders of Europe: Why and Against Whom?” 10 ELJ (2004) 150-170. On the
use of checks inside the external borders, see Groenendijk, “New Borders Behind
Old Ones: Post Schengen Controls Behind the Internal Borders--Inside the Nether-
lands and Germany” in Groenendijk, Guild and Minderhoud, eds., n. 2 above.
12 Reg. 790/2001 (OJ 2001 L 116/5).
13 Reg. 789/2001 (OJ 2001 L 116/2); see further Ch. 9.
15 Art. 3(2) of the Decision amending decision-making rules for Title IV (OJ 2004 L
396/45).
171
tion, since they are identical to those CCI Annexes. Between these provisions,
every Annex of the Common Manual and most operative provisions of Parts I
and II can be amended by means of an implementing procedure.
This power has been exercised four times. The first two Decisions amend-
ing the Common Manual were essentially technical changes designed to update
the Manual and to “prune” it of provisions deemed not strictly necessary. The
first amendment, adopted in April 2002, deleted two Annexes concerned largely
with national law and made some detailed changes to Part I of the Manual. In
turn, the second amendment, adopted in July 2002, made a number of technical
changes to Part II, which included a reference to the legal position of EC nation-
als and their family members.16 The third amendment required border guards
to pay attention to all minors, not just where (as before) they were travelling
unaccompanied, while the fourth amendment added a standard form to be used
where admission was refused at the border.17 Also, several other amendments
to the Common Manual have been made incidentally alongside amendments
to the CCI,18 or as consequential amendments when EC visa legislation was
adopted.19
There have been five other adopted measures on external border control.
In April 2004, the Council adopted a Greek initiative for a Decision concern-
ing signs used by Member States’ authorities at external borders (updating the
Schengen rules on this issue) as well as a Spanish initiative for a Directive on
the transmission of passenger data to border authorities.20 In October 2004, the
Council adopted a Regulation establishing a European Borders Agency, which
began operations as of 1 May 2005.21 Finally, in December 2004, the Council
adopted a Regulation to regulate the stamping of travel documents at external
borders,22 along with a Regulation which sets out standard rules for security
16 Decision 2002/587 (OJ 2002 L 187/50).

17 OJ 2004 L 157/36 and OJ 2004 L 261/36.
18 See respectively: Art. 1(2), 1(4) and 1(5) of Decision 2001/329 (OJ 2001 L 116/32);
Art. 3 of Decision 2001/420 (OJ 2001 L 150/47); Art. 2 of Decision 2002/44 (OJ
2002 L 20/5); the Decision on fees for considering visa applications (OJ 2003 L
152/82); Decisions 2003/585 and 2003/586 on transit visa requirements (OJ 2003 L
198/13 and 15); and Art. 2 of Decision 2004/17 on travel medical insurance require-
ments (OJ 2004 L 5/79). These Decisions are considered in Ch. 9.
19 Art. 7(2) of Reg. 539/2001 (OJ 2001 L 81/3); Art. 2 of Reg. 334/2002 (OJ 2002 L
53/7); Art. 5(2) and (3) of Reg. 453/2003 (OJ 2003 L 64/1); and Art. 11(2) of Reg.
693/2003 (OJ 2003 L 99/8). On the substance of these Regs., see Chs. 8 and 9.
20 Respectively OJ 2004 L 261/119 and OJ 2004 L 261/24. The latter Directive also has
the “legal base” of Art. 63(3)(b) EC.
21 Reg. 2007/2004, OJ 2004 L 349/1. The Agency is based in Warsaw (see Council
Decision in OJ 2005 L 114/13).
22 Reg. 2133/2004, OJ 2004 L 369/5.
172
measures to be included in EU citizens’ passports, including “biometric” data

(digital photos and fingerprints).23
Further proposals are pending. The Commission proposed two Regulations
in August 2003 to develop an “acquis” harmonising the rules on local border
traffic, particularly in light of the enlargement of the EU.24 These were subse-
quently replaced by a single proposal on the same subject in February 2005.25
Furthermore, in May 2004, the Commission presented a proposal for a Com-
munity borders code,26 which would restructure the Common Manual, all the
borders provisions of the Schengen Convention and two Executive Committee
decisions into a single legislative code. Among other things, the Code would
remove the provisions in the Manual relating to visas, revise some existing provi-
sions, add new material and confer implementing powers on the Commission.
A separate practical, non-binding guide will likely be created for border guards’
operational use. Finally, in August 2005, the Commission proposed two Deci-
sions relating to transit through new Member States and from Switzerland; one
of these proposed measures has a “legal base” solely concerning external bor-
ders, while the other measure also has a visas “legal base”.27
The Regulation on the border code was agreed in principle by the Council
in June 2005, following successful negotiations with the European Parliament
in order to reach a first-reading agreement in the co-decision procedure.28 All of
the other proposed measures are presently under discussion in the Council, and
all are subject to the co-decision procedure with the European Parliament.
The Hague programme, adopted in November 2004,29 set out a future
agenda for borders measures, consisting of: the abolition of internal border
checks with the new Member States following the start of operations of the
second-generation Schengen Information System (SIS II) in 2007; a review of
the Borders Agency in 2007, with the view to conferring powers concerning inter
alia customs checks upon the Agency; the creation of “teams of national experts
23 Reg. 2252/2004, OJ 2004 L 385/1. See the parallel proposal on biometrics and short-
term visas, discussed in Ch. 9.
24 COM (2003) 502, 14 Aug. 2003. See the Commission staff working paper on this
subject (SEC (2002) 947, 9 Sep. 2002; Council doc. 11933/02, 16 Sep. 2002) and the
Commission’s later Communications on the Council’s 2002 Action Plans (COM
(2003) 323, 3 June 2003 and SEC (2003) 1349, 25 Oct. 2004).
25 COM (2005) 56, 23 Feb. 2005.
26 N. 9 above. See earlier the Commission’s working paper (SEC (2003) 736, 20 June
2003; Council doc. 10843/03, 24 June 2003) and also the Thessaloniki European
Council conclusions (Annex 5).
27 COM (2005) 381, 22 Aug. 2005.
28 Council doc. 10588/05, 18 July 2005.
29 OJ 2005 C 53; see Annex 6. See also the Hague implementation plan (OJ 2005 C
198).
173
that can provide rapid technical and operational assistance to Member States
requesting it, following proper risk analysis by the Border Management Agency
and acting within its framework, on the basis of a proposal by the Commis-
sion on the appropriate powers and funding for such teams, to be submitted in
2005”; the establishment of a “Community border management fund by the
end of 2006 at the latest”; and a proposal “to supplement the existing Schengen
evaluation mechanism [which inter alia checks whether Member States comply
the Schengen acquis on external borders] with a supervisory mechanism, ensur-
ing full involvement of Member States experts, including unannounced inspec-
tions”. The possible creation of a European border guard will be examined when
the tasks of the Borders Agency are reviewed.
To implement the Hague Programme in part, the Commission has proposed
a Regulation establishing a European Borders Fund,30 which is under discussion
in the Council.
1.3 Community Policy 31

The EC institutions have been very active in developing policy on external bor-
ders control. A detailed Action Plan agreed by the Council in June 2002 had
“five mutually interdependent components”: a common operations coordina-
tion and cooperation mechanism; common integrated risk analysis; personnel
and inter-operational equipment; a common corpus of legislation; and burden-
sharing between Member States and the Union.32 Border guard heads began
meeting within SCIFA (the Strategic Committee on Immigration, Frontiers and
Asylum; these special meetings were known as “SCIFA+”), and were initially in
charge of the common mechanism, with their main task to supervise a highly
decentralised network of ad hoc centres, mostly set up by summer 2003, that
contributed to the application of the plan.
The issues addressed by the centres were: setting up an immigration liai-
son officer network at international airports; setting up an immigration liaison
officer network in non-Member States, or at Member States’ headquarters; a
network of centres for forged documents; the creation of an integrated secured
intranet between different national border police units; the creation of a uniform
practical guide for border control guards; personnel exchange among border
checking points; common risk assessment; common training; rationalising repa-
triation operations; setting up a rapid response unit; creating an expert group for
missions abroad; coordinated criminal investigations; creation of a permanent
30 COM (2005) 123, 6 April 2005.

31 This sub-section, and the related background and comments below, draw upon an
article, “The European Border Guard: Developing by Stealth?”, contributed to the
Statewatch Bulletin, Vol. 12, no. 5 (2002), updated to take account of later develop-
ments.
32 Council doc. 10019/02, 14 June 2002.
174
technical support facility and new technical equipment for border guards; qual-
ity management; centres for border police and customs at external borders; and
a common core curriculum.
The institutional framework for this cooperation was initially very light.
There was no agreement to set up a secretariat to assist with further detailed
coordination as the sixteen elements got going, because some Member States did
not want to give the appearance of the institutionalisation of borders coopera-
tion. Instead, the activities of the ad hoc centres were simply to be coordinated
by the meetings of the heads of border guards. Each of the sixteen issues was
to be coordinated by one or more lead Member States, and it was also possible
for a Member State to coordinate more than one. It was up to Member States to
volunteer for this task, and so between July and September 2002 many Member
States submitted detailed suggestions for operations they could lead.33 Other
Member States could then decide which of the projects they wished to partici-
pate in. The Council plan also provided for continued joint operations, which to
some extent crossed over with the work of the ad hoc centres.
The plan was endorsed by the Seville European Council in June 2002,
which set deadlines to achieve several elements: end 2002 for joint operations,
pilot projects and a network of immigration liaison officers, and June 2003 for a
common risk analysis model, a common core curriculum and consolidation of
EU border rules and a Commission study on EU financial support for border
control.34
An initial batch of project proposals comprised Austrian and Swedish pro-
posals on border guards’ curriculum, a German proposal for the exchange of
personnel and the organisation of operations at external land borders, a Finn-
ish proposal on risk analysis and French proposals on coordinating criminal
33 For further details of the developments described here, see Council docs. 10919/02,
11 July 2002 (initiation of joint operations); 11030/02, 19 Sep. 2002 (overview of
project proposals); 11388/02, 29 July 2002 (French proposals for projects); 11401/02,
29 July 2002 (guidelines for joint operations); 11438/02, 31 July 2002 (Greek pilot
project on control of the Eastern external land borders); 11829/02, 10 Sep 2002
(note by Portuguese delegation); 11905/02, 11 Sep. 2002 (visa control operation in
international airports); 11974/02, 12 Sep. 2002 (interim report on project on cur-
riculum for training border guards); 11967/02, 12 Sep. 2002 (project for operation
of control and assessment of risks posed by illegal immigration in the ports of the
European Union); 11996/02, 13 Sep. 2002 (joint operations for the control of the
south-eastern external maritime borders of the Mediterranean EU Member States);
11994/02, 13 Sep. 2002 (Centre of Excellence at Dover--Mobile Detection Unit);
12129/02, 25 Sep. 2002 (common projects on sea border control); 12765/02, 7 Oct.
2002 (inclusion of candidate countries in projects); 12361/02, 25 Sep. 2002 (network
of centres for forged documents); and 11399/02, 12448/02 and 12518/02, 2 Oct. 2002
(outcome of proceedings of SCIFA+, 22 July, 15 Sep. and 26 Sep. 2002).
34 See Annex 5.
175
investigations and setting up expulsions by means of “group returns”. SCIFA+

approved the German, Finnish and Austrian/Swedish proposals in July 2002,
and also approved guidelines on joint operations, covering both joint operations
carried out by Member States within their own country (essentially a decision
to launch a group of separate national operations of the same type in parallel)
and the delegation of Member States’ border guards to another Member State
to provide “expert/specialist and technical support” but not “basic frontier con-
trol duties”. The Danish Presidency also suggested a joint operation concerning
illegal immigration through use of fraudulent visas. Subsequently, the Italians
proposed a project on air borders control at international airports, the Greeks
proposed projects on control of eastern land borders and south-eastern mari-
time borders, the Spanish proposed an operation in EU ports, the UK proposed
a centre of excellence for mobile detection equipment, a project inside Serbia/
Montenegro and a sea borders project, and the Norwegians (involved with the
process as Schengen associates) suggested a joint project on northern sea border
control.
A first SCIFA+ meeting in September 2002 approved the earlier French
proposals and the Italian proposal. Then a second meeting of SCIFA+ in Sep-
tember approved the Greek plan on eastern borders, a combined Spanish, Greek
and British plan on sea borders (into which the Norwegian proposal might be
integrated), and the UK plan on mobile equipment. However, it was decided
not to pursue a project on a network of centres for forged documents, on the
grounds that the long-planned separate “FADO” system designed to deal with
this issue was coming to fruition. By this time, Member States had also realised
that the Council plan inexplicably made no mention of the involvement of EU
candidate countries, and so SCIFA+ approved the idea that the project leader of
each ad hoc centre could involve candidate countries as it saw fit. In particular,
it was considered that the projects on maritime borders, eastern land frontiers,
international airports, mobile equipment, expulsion and joint operations would
be open to the new associates. Many projects would apply for funding from the
EU’s “ARGO” programme.35
A report to the JHA Council indicated the extent of developments by June
2003.36 First of all, the two core projects (on risk analysis and a core curriculum)
had progressed considerably. Next, the ad hoc centres, set up “[d]espite the lack
of a suitable legal basis”, should, in the view of the report’s authors, be placed
on a more permanent footing in future. The land borders centre was intended
35 See Decision 2002/463 (OJ 2002 L 161/11).

36 Council doc. 10058/1/02, 11 June 2003. See earlier Council docs. 14708/02, 26 Nov.
2002 and 7504/03, 17 Mar. 2003. On the creation of a network of immigration liai-
son officers, see Conclusions of the JHA Council in November 2002 and Council
Regulation 377/2004 (OJ 2004 L 64/1). See further the conclusions of the Thessa-
loniki European Council (Annex 5).
176
to be permanent, enjoyed the participation of 12 Member States and 7 appli-

cant States, functioned under agreed guidelines and included the establishment
of “focal point offices” for long-term staff exchanges. Although the centre had
already carried out four joint operations, the report argued that it needed to
be placed on a secure legal footing, by means of a Community act that would
confer “executive powers” on guest officers (under the host State’s command),
permit wearing of uniforms and “carrying of arms for self-defence”, address
civil and criminal liability (“possibly immunity” for guest officers) and permit
access to host State data and sharing of data. “[P]ools of specialists” should
be created for longer-term projects, and the operations should be carried out in
conjunction with the “Risk Analysis Centre”, which had been created to imple-
ment the Common Risk Analysis Model.
The Risk Analysis Centre began its risk analysis work in April 2003, with
the first analysis due to be submitted in mid-June 2003. However, the equipment
centre at Dover was not going ahead as originally planned by the UK, because
the Commission turned down the request for “ARGO” funding and Member
States were divided on whether the centre should manage joint operations itself
or simply provide a forum for exchange of information. However, “the proj-
ect continues to receive support from Member States determined to find other
means of utilising the UK’s expertise in clandestine detection technology”.
As for pilot projects, the French project on expulsion was still under devel-
opment, focussing on making joint expulsion flights possible. The projects on
cross-border crime, international airports, Operation Deniz (a UK-led project
involving Turkey) and Operation Immpact 2 (a UK-led project in Serbia-Mon-
tenegro) were all developing.
A number of joint operations had also taken place. A large sea borders
operation (Ulysses), coordinated by Spain, had taken place in two phases, with
the result that “454 illegal immigrants were detained and 15 boats intercepted”.
Although the final evaluation report was still pending at the time, it is under-
stood that this project suffered a number of communication and coordination
problems. Another sea borders operation (Triton) coordinated by Greece, was,
according to Europol analysis, “a successful High Impact Operation”, with
“more than 200 ships checked, 226 illegal entrants and 6 facilitators appre-
hended in 11 incidents”. A ports operation (Rio IV) led by Spain apprehended
“249 illegal immigrants ... and 6 people smugglers”. The Orca operation run
in Norway (with other States only as observers) reported results in improved
cooperation. As for land borders, a large project coordinated by Greece reported
that “the main aims and objectives of the pilot program ... were not achieved”.
This was due to some participant countries not forwarding the required data to
analyse the results, “a weakness in the follow-up to the implementation of the
project”, and a failure to discuss the difficulties when raised in SCIFA+. Finally,
an air borders operation (Visa), led by Denmark, aiming to uncover the extent
of (inter alia) false visas, reported that following investigations in 22 airports in
177
17 countries, “the aims and objectives…were not entirely met during the course
of the operation, nor was it possible to assess the threat posed to the EU by this
type of visa abuse”. In fact, “there were no cases of suspicion of facilitation
whatsoever and in the three cases where visa requirements were reportedly not
met, only one suggests overt criminal intent”.
Given this operational evidence, one might that that the EU would rethink
the idea of spending hundreds of millions of euro to establish a Visa Identifica-
tion System. But in fact, the Thessaloniki European Council simply reaffirmed
its intention to establish such a System. More broadly, at no point does the
report indicate how much each operation cost the taxpayers of the participating
States, or how much EU taxpayers paid through support from the ARGO pro-
gramme. There is also no indication of how many irregular migrants would have
been intercepted at the relevant borders in the absence of the operations, which
would indicate how much “added value” each operation had.
As for the institutional structure, the June 2003 JHA Council agreed in
light of practice to strengthen the institutional framework, redubbing SCIFA+
as the “Practitioners’ Common Unit” and assigning it a more operational role,
with SCIFA in charge of strategy, in particular the monitoring, evaluation and
analysis of operations. Centres at the air borders and sea borders to match the
land borders centre should be created, and the EU aimed at the widest pos-
sible participation by candidate States. The Council’s General Secretariat was to
assist the Common Unit, assisted by detached experts from Member States.
By the autumn of 2004, a Commission report on the implementation of
the Council’s borders plan reported that a Training Centre had established a
core curriculum for border guard training and run courses; that the risk analysis
model had been developed and applied to produce some general and specific
risk analyses; and that the sea, land and air centres had been involved in further
activities, in particular as regards the application of a detailed plan on increas-
ing controls on the EU’s maritime borders, approved by the Council in 2003.37
This institutional structure has now been superseded by the creation of the
European Borders Agency, which has taken over running the various opera-
tional projects as of 1 May 2005.
2 Background and Legislative History

Initially, any prospect for practical regular use of the borders manual outside
national authorities was obviously hindered by the continuing decision not to
37 For the Commission’s 2004 report, see n. 24 above. For the maritime borders plan,
see Council doc. 15445/03, 28 Nov. 2003, adopted by JHA Council, 27/28 Nov.
2003. For the prior feasibility study, see Council doc. 11490/1/03, 19 Sep. 2003. On
the application of the plan, see Council doc. 6885/04, 27 Feb. 2004.
178
publish the Manual, on the grounds that it remained confidential.38 The JHA
Council then decided in November 2000 to declassify Part I of the Manual and
almost all of the Annexes.39 Only the three Annexes of the Manual which corre-
spond to confidential CCI Annexes remain confidential. A further declassifica-
tion of the entire Part II of the Manual was agreed in April 2002.40 At that point,
the Schengen classification rules were repealed as far as they relate to the CCI
and the Common Manual. Instead, from now on the Council’s general security
rules govern the classification of these Annexes.41
The proposed Regulation on granting the Council the power to implement
the borders Manual was circulated during the Portuguese Presidency early in
2000, but the Council decided to wait for progress on the parallel proposal on
powers to implement the CCI. Finally, the proposal was published and sent to
the EP for consultation early in 2001.42 However, as the EP always objects in
principle to the Council conferring implementing powers upon itself, it rejected
the proposal by a large majority.43 The Council nonetheless adopted it, despite
Dutch misgivings. When the proposal was formally adopted, the Commission
and the Netherlands issued statements objecting to the principle of conferring
powers on the Council, identical to their objections to the parallel Regulation
on the CCI.44
The subsequent measures exercising implementing powers were largely
uncontroversial, with the exception of the provisions of the second amending
Decision referring to EU citizens’ family members. Objecting to these provi-
sions, the Commission released a Statement asserting that third-country national
family members of EC nationals exercised rights under EC free movement law,
and so could not be covered by a Decision concerning the external borders.45
However, the Commission did not follow through on its threat to sue the Coun-
cil.
As for the development of external borders policy, it should be emphasised
that the idea of enhanced border controls pre-dates the perceived rise in the
political sensitivity of immigration and asylum issues in the spring of 2002. In
38 See Schengen Executive Committee confidentiality decisions (OJ 2000 L 239/127

and 139).
39 Decision 2000/751/EC (OJ 2000 L 303/29).
40 Decision 2002/353 (OJ 2002 L 123/49).
41 See Art. 3 of Decision (ibid.).
42 OJ 2001 C 73/8.
43 OJ 2001 C 343.
44 See Statements 32 and 33/01 in the Monthly Summary of Council Acts for Apr.
2001 (Council doc. 9018/01, 21 May 2001). On the parallel Statements on the CCI
Regulation, see Ch. 9.
45 Statement 128/02, in the Monthly Summary of Council Acts for July/Aug. 2002
(Council doc. 12399/02, 27 Sep. 2002).
179
fact, the idea of moving toward “European border management” was first raised
during the Belgian Council Presidency in autumn 2001.46 At that time it was
agreed that the chiefs of EU border police would meet regularly in the forum
of SCIFA (in the format later dubbed “SCIFA+”). By the spring of 2002, Italy,
assisted by other Member States, had prepared a detailed plan for a movement
toward a “European border guard”, the Commission had released a Commu-
nication on the same subject and a workshop managed by Finland, Belgium
and Austria and funded by the EU’s Oisin programme had also examined the
topic.47 Elements from these three programmes (but particularly the Italian proj-
ect) were then merged in a matter of weeks into the detailed Council border
control programme approved in June 2002 – without waiting for any input from
national parliaments, the European Parliament or civil society.
3 Legal Analysis
The issue of the allocation of implementing powers to amend the Common
Manual is considered elsewhere, alongside the issue of the validity of the paral-
lel Regulation on amendments to the CCI.48 Similarly, the issue of the inclusion
of EU nationals’ family members within the border control rules is considered
along with other issues on the personal scope of EC law.49
The first issue considered here is the joint “legal base” of Articles 62(2)(a)
and 62(2)(b) for adoption of Regulation 790/2001. Was this possible? Until 1
May 2004, Article 62(2)(a), concerning external border controls, required a
unanimous vote in the Council after a proposal by the Commission or an ini-
tiative by a Member State for adoption of a measure. But Article 62(2)(b) is
sub-divided into four areas, two of which follow the same legislative procedure
but two of which follow the communautaire procedure of a proposal solely from
the Commission and a qualified majority vote. It is also arguable that the list of
visa powers in Article 62(2)(b) is not exhaustive and that other visa powers exist.
In that case such powers would be subject to the usual Title IV procedure of a
unanimous Council vote with a shared power of initiative.50 The Council did
not make clear whether it was using some or all of the listed powers in Article
62(2)(b), and which specific powers it was using if it was only using some of
them. Similarly there was no indication of whether the Council was alterna-
tively or additionally using the non-exhaustive powers in this provision. As a
result, quite apart from the question of the validity of conferring implementing
46 See Council doc. 14570/01, 27 Nov. 2001.

47 On the Italian feasibility study, see <http://www.statewatch.org/news/2002/sep/
EUborderpolice.pdf>; for the Commission Communication, see COM (2002) 233,
7 May 2002.
48 See Ch. 9.
49 See Ch. 4.
180
powers on the Council, the validity of the Regulation was questionable whether
the Council intended to use the communautaire parts of Article 62(2)(b) EC
or not. If the Council did intend to use those powers, the Regulation is invalid
beyond any doubt, because it was adopted unanimously following the proposal
of a Member State while Article 62(2)(b)(i) and (iii) require a qualified majority
vote following the proposal of the Commission. If it did not intend to use those
powers, the reasoning for adoption of the Regulation would appear to be defec-
tive, for the Council has an obligation to clearly indicate which legal base it is
using when it adopts legislation.51
The second legal question is the correct “legal base” for EU external borders
measures. It seems clear that some of the projects undertaken as part of the EU
borders policy do not actually concern border controls at all (the French project
on expulsion, the Portuguese proposal for in-country checks of foreigners), and
the external borders agency seems likely to conduct expulsion operations at least.
Since these operations appear to be significant, rather than purely ancillary to
external borders control, the Border Agency will be exercising powers in relation
to irregular migration as well as external borders control. Therefore, clearly a
different legal base than the “external borders” legal base should have been used
to confer power on the Agency to conduct such activities (although at the time
of adoption of the Regulation establishing the External Borders Agency, the
issue was moot, because the adoption of measures concerning irregular migra-
tion was subject to the same procedure as measures concerning external border
control). Furthermore, it is misleading to develop such projects under the rubric
of external borders control.
The next legal issue is whether the EC had any power under the current legal
framework to adopt the passports Regulation, using the legal base of Article
62(2)(a) or any other legal base.52 It is submitted that it did not, because Article
18(3) EC clearly specifies that the EC has no power to harmonise passport leg-
islation pursuant to the EC’s citizenship law powers, and the use of passports
is only connected in part with external border control; it is also connected with
internal border controls, in-country proof of identity and checks by non-EU
countries.
Next, it seems clear that the present Article 64(1) EC, which specifies that
Title IV “shall not affect the exercise of the responsibilities incumbent upon
Member States with regard to the maintenance of law and order and the safe-
guarding of internal security”, rules out the creation of a European border con-
trol force with coercive powers, such as exercising surveillance of the external
51 See Case 45/86 Commission v Council [1987] ECR 1493. The legal obligation to state
reasons for the EC institutions’ actions is set out in Art. 253 EC.
52 The following comments are based on an analysis for Statewatch, online on the
Statewatch website: <http://www.statewatch.org/news/2004/feb/27legal-analysis-
EU-biometric-passports.htm>.
181
borders and questioning, detaining or refusing entry to persons at the border.

The creation of any European Union entity with such powers, or the grant of
such powers to an existing EC institution, would be bound to “affect” Member
States’ powers in this field because Article 64(1) allocates a monopoly over coer-
cive powers in this field to Member States. On the other hand, it is arguable that
this is all that Article 64(1) does, as the exercise of the Community’s powers over
visas, borders, immigration or asylum in the rest of Title IV would be bound to
“affect” the exercise of controls by national authorities in the broad sense. The
Treaty drafters cannot logically have intended to grant purely nugatory powers
to the Community. Of course, a Treaty amendment expressly permitting the cre-
ation of a European Border Guard with specified coercive powers would change
the legal position.
Finally, the UK has attempted to opt in to both the Regulation on the exter-
nal borders agency and the Regulation on EU citizens’ passports. The Council
has rejected the possibility of UK participation in both measures. It is submitted
that the Council legal service has wrongly interpreted the relationship between
the Protocols on the Schengen acquis and the Protocol on the UK’s opt-out
from Title IV measures – although in the case of the passport Regulation, this
argument is moot if the legislation is invalid in any case, as suggested above.53
The UK has challenged its exclusion from the Borders Agency Regulation and
the passports Regulation, and so the Court of Justice will have the opportunity
to clarify the issue.54
4 Comments
If the EU intended to create a “European border guard” in the short term, the
issues of accountability, legality and control would be starkly obvious already.
However, even with this idea on the back burner for the time being, the alterna-
tive approach of establishing a complex system of coordination between national
border authorities still raises questions as to the adequacy of arrangements for
accountability, and many aspects of the EU’s developing plans raise serious civil
liberties concerns.
For one thing, there will be extensive deployment of one Member State’s
guards on the territory of another Member State. The German plan for exchange
of personnel foresees integration of guest border guards into the “work shifts”
of the host state, and “as soon as possible the border police officers active in the
host country will be given intervention powers at the lowest level, for example the
right to stop and interview persons”. This is to lead to standardisation of inter
alia, “command and control/tactics”. Moreover, the German plan makes exten-
sive reference to a number of such exchanges already agreed with the German
53 For a full version of this argument, see Peers, EU Justice and Home Affairs Law, 2nd
edition (forthcoming).
54 Cases C-77/05 and C-137/05 United Kingdom v Council, pending.
182
authorities,55 and the German authorities have more recently called for EC leg-
islation that would grant “guest” border guards extensive powers Obviously the
powers enjoyed by guards in this scenario would extend to “basic frontier control
duties”, even though such duties were ruled out in the agreed rules concerning
joint operations. But there is no system of accountability planned or foreseen.
However, it should be kept in mind that the case law of the European Court of
Human Rights imposes liability for acts of a Member State’s forces outside its
territory, and that the ECHR (as regards Convention rights) and other interna-
tional treaties (more broadly) ban discrimination by State authorities, even if
they are exercising their powers on the territory of another country.56
Secondly, there is the issue of the participation of the UK, which has for-
mally opted out of EU border control rules. Despite this, the UK has expressed
an intention to participate in the German land borders project, the Finnish risk
analysis project, the French expulsion project and the new joint operation on
visa checking at airports, on top of proposing three projects of its own. One can
ask why the UK considers it legitimate to participate in these measures when
it has not abolished internal border checks with other Member States. For the
UK, the “external borders” are its own ports, airports, coastline, land border
with Ireland and Channel tunnel exit in Kent – not the sea, air or land borders
of any other Member State. But the UK clearly wishes to have it both ways.
Thirdly, there is a tendency to expand the plan beyond the normal scope of
border controls. The French plan on mass expulsions clearly concerns persons
already inside the country, and similarly the Portuguese argued that the new
joint operation should concern visa checks not just at airports, but in-coun-
try – effectively arguing for a massive coordinated check on “foreign-looking”
persons inside the EU. Although the Portuguese were rebuffed for now, the
French programme was approved. Member States will thus be participating in
joint expulsion operations without regard for whether the other participating
Member States meet the same basic standards on expulsions, and there may be
pressure to speed up and/or increase the number of expulsions in order to par-
ticipate in the plan. Furthermore, such measures would exceed the Community
powers over border controls, as noted above.
55 See description of the plan in Council doc. 11030/02, n. 34 above.

56 On the first point, see particularly: Loizidou v Turkey (Reports of Judgments and
Decisions 1996-VI); Bankovic and others v. Belgium and 16 other Contracting States
(admissibility decision, [2001] ECR-XII); Gentilhomme, Schaff- -Benhadji and Zer-
ouki v. France (judgment of 14 May 2002, not yet reported); Ocalan v Turkey (judg-
ment of 12 March 2003, not yet reported); Assanidze v Georgia (judgment of 8
April 2004, not yet reported); Iliascu and others v Moldova and Russia (judgment
of 8 July 2004, not yet reported); Issa v. Turkey (judgment of 16 Nov. 2004, not yet
reported). On the second point, see Regina v. Immigration Officer at Prague Airport
and another ex parte European Roma Rights Centre and others [2004] UKHL 55.
183
It should be noted that repatriation operations were not discussed in the

Commission communication on border controls and developments in the Coun-
cil on this topic preceded assessment of the results of the public consultation
launched by the Commission’s Green Paper on return of illegal immigrants
– rendering that consultation even more of a sham.57
Fourth, there seems no interest in ensuring that the right to asylum is
respected within the context of the EU’s borders plan. Will the common cur-
riculum deal with this issue, and will guards be trained to recognise a claim for
asylum and apply the international (and now EU) rules on this subject? Or do
some Member States see this is as an opportunity to train others in methods
of refusing applications at the border? Moreover, there is no recognition in the
plans for the new joint operation that fraudulent visas are sometimes used by
persons who wish to claim asylum.
Finally, the plans for “risk analysis” will require close examination. Essen-
tially, “risk analysis” is another form of “profiling” – trying to determine the
type of person likely to be an illegal immigrant and the likely methods used to
enter the EU. Will this approach be applied to persons living in-country, with
the result that there will be further calls for further registration, data collection
and control of foreign citizens? Will it take account of the “profiles” of those
who have, or who arguably have, a well-founded claim for asylum or other form
of international protection?
57 On that plan, see particularly Chs. 31 and 32.
184
Chapter 8 Visa List
1.1 Regulation 539/2001
Regulation 539/2001 harmonises the list of third countries whose nationals do,
or do not, need a visa to cross the external borders of the Member States.1 It is
applicable to Denmark, but not to the UK and Ireland.2 As a measure build-
ing on the “Schengen acquis”, Norway and Iceland are also bound to apply
it in principle.3 It entered into force on 10 April 2001.4 A first amendment to
the Regulation was adopted in December 2001,5 and a second amendment was
adopted in March 2003.6 The 2003 Accession Treaty also resulted in a technical
amendment (to remove the new Member States from the lists).7 Finally, a fourth
amendment was adopted in June 2005.8
Article 1(1) of the Regulation specifies that Annex I sets out a definitive list
of those third countries whose nationals must have visas to cross the external
borders (a “negative list”), while Article 1(2) specifies that Annex II sets out the
list of third countries whose nationals do not need visas to cross the external
borders of the Member States (a “positive list”). However, Article 8(2) initially
1 OJ 2001 L 81/1.
2 See recital 4 in the preamble.
3 See recital 3 in the preamble.
4 See Art. 8(1); the Regulation was published on 21 March 2001.
5 Reg. 2414/2001 (OJ 2001 L 327/1).
6 Reg. 453/2003 (OJ 2003 L 69/10).
7 OJ 2002 L 236/725. It should be noted that the new Member States were obliged to
apply the visa lists as from the date of accession.
8 Reg. 851/2005 (OJ 2005 L 141/3).
specified that the abolition of visas provided for in Article 1(2) would not apply
to nationals of countries listed in Annex II and designated with an asterisk,
until the Council took a further legislative decision following a report from the
Commission on “the undertakings [that country] is prepared to enter into on
illegal immigration and illegal residence, including repatriation of persons from
that country who are illegally resident”. In fact, the only country in Annex II
designated by an asterisk was Romania.
The negative list consisted initially of 130 countries and three “entities and
territorial authorities” which at least one Member State does not recognise (East
Timor, the Palestinian Authority and Taiwan). The positive list consisted ini-
tially of 44 countries and two “Special Adminstrative Regions” of China (Hong
Kong and Macao). In addition, nationals of Norway, Iceland and Liechtenstein
are exempt from a visa requirement when crossing the external borders of the
Member States, but the Regulation does not include them in the positive list,
because the visa exemption for these three countries flows from the agreement
on the European Economic Area.9
Geographically, the positive list initially included every other state in West-
ern Europe and all twelve states in Central, Eastern and Southern Europe which
were in 2001 negotiating membership of the European Union.10 As noted above,
the 2003 Accession Treaty later removed the ten new Member States of the EU
from the lists in the Regulation as from the enlargement of the EU on 1 May
2004, because Member States of the EU are not subject to the visa list legisla-
tion.11 Furthermore, as also noted above, visa abolition for Romanians was ini-
tially delayed. Elsewhere in Europe, the positive list includes only Croatia, which
leaves Albania, Turkey, the rest of the former Yugoslavia,12 and the remaining
European successor states of the former Soviet Union on the negative list.13 Out-
side Europe, the positive list includes most Latin American states: Argentina,
Bolivia, Brazil, Chile, Ecuador (initially), Paraguay, Uruguay and Venezuela in
South America, and Costa Rica, Guatemala, Honduras, Mexico, Nicaragua,
Panama and Salvador in Central America. Only Peru, Surinam, Guyana, Belize
and Colombia were on the negative list initially. The positive list also includes
the USA and Canada, but all Caribbean states are on the negative list.
9 OJ 1994 L 1/1. See recital 6 in the preamble.

10 Bulgaria, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta,
Poland, Romania, Slovakia and Slovenia.
11 Bulgaria and Romania will remain on the lists in the Regulation until they obtain
membership of the EU. This is currently planned for 1 January 2007, assuming that
the accession treaty providing for their EU membership, signed in April 2005, is
ratified by all of the current and new Member States.
12 Bosnia-Hercegovina, the Federal Republic of Yugoslavia and the Former Yugoslav
Republic of Macedonia.
13 Russia, Ukraine, Belarus, Moldova, Armenia, Azerbaijan and Georgia.
186
Chapter 8 Visa Lists
Every state in Africa, without exception, is on the negative list. The majority
of Asian states are also on the negative list, but there are important exceptions:
Japan and South Korea in North-East Asia, Israel in West Asia, and Brunei,
Malaysia and Singapore in South-East Asia (along with the Chinese regions of
Hong Kong and Macao). Finally, Australia and New Zealand are on the posi-
tive list, but all the “micro-states” in the Pacific are on the negative list.
Article 1(3) sets out rules which apply in the event that the third countries
listed in the two Annexes break apart. The successor states will automatically
be subject to the same list which applied to their predecessor state, unless the
Council decides otherwise by means of the legislative procedure to amend the
Regulation.
Article 1(4) set out a complex procedure in the event that any state on the
positive list imposes a visa requirement upon any Member State. Intially, the
Regulation provided that in that case, a Member State could inform the Com-
mission and the Council of this fact, with the result that a visa requirement
would automatically be imposed upon nationals of that third state 30 days after
notification unless the Council decided otherwise by a qualified majority. This
planned re-introduction must be published in the EU’s Official Journal. Also, the
Commission had to consider a request from a Member State or the Council that
it propose an amendment to the Regulation to move the third state in question
to Annex I from Annex II. If the third state waives the visa requirement on EU
nationals before the adoption of amendments to the Annexes by this procedure,
the Member State concerned must inform the Commission and Council, with
such notification published in the Official Journal. As a result, the provisional
re-introduction of visas shall be repealed seven days after publication of this
notice. This procedure was amended in June 2005 (see discussion below).
Article 2 defines “visa” for the purpose of the Regulation. The Regulation
only governs short-stay visas (for periods of less than three months) but does
not govern visas “for transit at an airport”.
Article 3 concerns stateless persons and recognised refugees, as defined by
the relevant international conventions. They must have a visa if they come from
a negative list country, but may be exempted for the visa requirement (at the
discretion of each Member State) if they come from a positive list country. This
provision is without prejudice to the 1959 Council of Europe Convention on the
abolition of visas for refugees.
Article 4 permits Member States to allow further exemptions. There are
three possible exemptions, which in turn permit Member States to derogate from
either list, from the negative list, or from the positive list. First of all, Article 4(1)
lists five categories of persons (essentially transport, emergency and diplomatic
personnel) who may be either exempted from a visa requirement or subject to
it, irrespective of whether they have the nationality of a state or entity on the
positive list or the negative list. Secondly, Article 4(2) allows Member States to
exempt school pupils from a visa requirement if they are travelling in a school
187
party from a positive list country. Finally, Article 4(3) allows Member States to
impose visa requirements on persons from positive list countries if they are car-
rying out a paid activity during their stay.
According to Article 5, information on the options which Member States
choose pursuant to Articles 3 or 4 must be communicated to the Commission
and published in the Official Journal.14 Article 6 states that the Regulation is
without prejudice to Member States’ competence regarding recognition of states
and other entities, and travel and identity documents issued by their authori-
ties.
Finally, Article 7 repeals or amends other instruments. Article 7(1) repeals
the 1999 Regulation on this issue, which listed only those third countries whose
nationals need a visa to cross the external borders of all Member States (a nega-
tive list).15 Article 7(2) alters the Annexes to the Schengen Common Consular
Instructions (CCI) and Common [Borders] Manual which set out the common
list.16 Article 7(3) repeals two Schengen Executive Committee Decisions dealing
with the same subject, which had almost fully harmonised the visa lists of the
Schengen states before the Treaty of Amsterdam entered into force.17

This Regulation, in force 1 January 2002, simply definitively moves Romania to
the positive list, along with consequential amendments.18

This Regulation, in force from 3 April 2003, added Ecuador to the negative list
as of 1 June 2003 (giving time for Member States to denounce any bilateral
treaties) and required the Commission to submit a report on the “reciprocity”
principle by 30 June 2003.19 Also, it made two technical changes, reclassifying
East Timor as a country rather than a territorial entity in light of that country’s
independence and recognition as a state, and removing Switzerland from either
list on the grounds that, like Norway, Iceland and Liechtenstein, visa abolition
now flows from a treaty requirement of the Community.20
14 Two such reports have been published: see OJ 2001 C 363/21 and OJ 2003 C 68/2.
15 Reg. 574/1999 (OJ 1999 L 72/2).
16 On these measures, see further Ch. 9. For the text of the CCI as it stood then,
see the Schengen Executive Committee Decision consolidating the CCI (OJ 2000 L
239/317). The consolidated text of the Border Manual was classified at that time; for
the subsequently published text, see OJ 2002 C 313/97.
17 For the text of these Decisions, see OJ 2000 L 239/186 and 206.
18 N. 5 above.
19 N. 6 above.
20 See EC-Swiss treaty on free movement of persons (OJ 2002 L 114).
188

The June 2005 amendment to the visa list Regulation, adopted following the
Commission report on reciprocity, has replaced the prior inflexible rule requiring
the visa obligation to be re-imposed against a non-EU State which is exempt from
a Schengen visa obligation for its nationals, but which places a visa requirement
on any of the EU Member States (except the UK and Ireland), upon complaint
by a Member State. There is instead now a more “political” procedure, allowing
the Commission to enter into negotiations with the non-EU States concerned,
following the notification of a new visa requirement imposed by such a non-EU
State. Member States are obliged to report such new visa requirements within
ninety days, and on existing such requirements by 24 July 2005; the Commission
must publish all such notifications in the EU Official Journal. Within ninety days
of publication, the Commission shall begin discussions with the non-EU State
concerned, and then report to the Council on the issue, which may (or may not)
entail a proposal to apply a visa requirement to the State concerned. The Coun-
cil must act on this proposal by a qualified majority within three months; but
a joint statement by the Council and Commission indicates that other forms of
sanction may be applied by the EU as well.21 Finally, as long as total reciprocity
has not been achieved, the Commission must report on the overall issue of non-
reciprocity in visas every two years (starting before 1 July 2006).
A first batch of notifications in the Official Journal indicated that visa
requirements were maintained by:22
– Brazil for Estonia, Latvia, Lithuania, Cyprus and Malta;
– Uruguay for Estonia;
– Bolivia for Latvia and Malta;
– Venezuela for Latvia and Germany;
– Panama for Slovakia, Estonia and Malta;
– Costa Rica for Slovakia and Estonia;
– Nicaragua for Latvia;
– the United States for Slovakia, Latvia, Lithuania, Greece, Czech Republic,
Poland, Cyprus, Malta and Hungary;
– Canada for Slovakia, Estonia, Latvia, Lithuania, Poland and Hungary;
– Malaysia for Latvia, Estonia and Greece;
– Brunei for Slovakia, Estonia, Latvia, Lithuania, Greece, Germany, Slove-
nia, Portugal, Cyprus, Malta, Hungary, Italy and Finland;
– Singapore for Estonia; and
– Australia for Slovakia, Estonia, Lithuania, Greece, Germany, Czech Repub-
lic, Poland, Slovenia, Cyprus, Malta, Hungary and Italy.
21 OJ 2005 C 172.
22 OJ 2005 C 251.
189
Since the publication of this first set of notifications was dated 11 October 2005,
the Commission must report regarding these notifications by 9 January 2006 at
the latest. The list above includes those states which admit citizens of some EU
Member States without a visa requirement, but only for a shorter time (such as
14 days or 30 days) than the 90-day visa-free period applied by EU States. An
earlier notification (technically under the previous version of the Regulation)
was made by the Czech Republic, listing Brazil, Brunei and Canada as countries
which maintained the visa requirement.23
A second batch of notifications indicated that visa requirements (as just
defined) were maintained by:24
– Brazil for Austria;
– Venezuela for Sweden and Austria;
– Nicaragua for Austria;
– Brunei for Sweden and Austria; and
– Australia for Denmark, Sweden and Austria
A third batch of notifications indicated that visa requirements were maintained

by: 25
– Paraguay for Iceland;
– Panama for Iceland and Norway;
– Nicaragua for Iceland;
– Brunei for Iceland and Norway; and
– Australia for Iceland and Norway.
Finally, a fourth batch of notifications indicated that shortly after adoption of

the visa reciprocity Regulation, Panama dropped its visa requirements for Slo-
vakia and Estonia. This is the first indication that the Regulation was having its
intended effect.26
It follows from these notifications up until 1 January 2006 that France,
Spain and the Benelux countries have not raised any complaints against non-EU
states regarding visa reciprocity. Conversely, Argentina, Chile, Guatemala, Hon-
duras, Salvador, Mexico, Croatia, Romania, Bulgaria, Switzerland, Andorra,
Monaco, San Marino, the Holy See, Israel, Japan, South Korea, Hong Kong,
Macao and New Zealand have not been the subject of any complaints. So four-
teen States on the “white list” have generated complaints, while twenty have not;
moreover, there is a broad range between States that have only generated one
complaint (Paraguay, Uruguay, Singapore) and States that have generated con-
23 OJ 2005 C 277.
24 OJ 2005 C 163.
25 OJ 2005 C 310.
26 OJ 2005 C 327.
190
siderably more (seven for Brazil, nine for the USA, seven for Canada, eighteen
for Brunei and seventeen for Australia). It remains to be seen how effective the
EU will be in demanding that visa requirements be dropped by relatively wealthy
and powerful countries that are subject to domestic pressure to maintain strict
immigration controls.

Regulation 539/2001 was adopted using the sole legal base of Article 62(2)(b)(i)
EC. This legal base requires a proposal from the Commission, consultation of
the EP and adoption in the Council by a qualified majority vote (see Article
67(3) EC). The reason for this comparatively communautaire voting procedure,
and the application of the Regulation to Denmark as EC law, is that even before
the Treaty of Amsterdam, the Community had the power to adopt a list of
countries whose nationals would need a visa to cross the external borders of
the Member States (a negative list), according to the former Article 100c EC,
which was first inserted into the EC Treaty by the Treaty on European Union
with effect from 1 November 1993. This power was originally subject to unani-
mous voting in the Council (Article 100c(1)), but then became subject to quali-
fied majority voting from 1 January 1996 (Article 100c(3)). Moreover, from the
start, the Commission had its traditional monopoly over proposals.27 The first
use of this power was to adopt a Regulation setting out a negative list in 1995.28
But that Regulation was annulled in 1997 for failure to reconsult the European
Parliament on the text,29 and was subsequently replaced in 1999 by a Regulation
with essentially the same wording.30 The Commission published regular updates
on the application of these Regulations by Member States.31
The 1995 and 1999 Regulations had not included a positive list. Instead,
they left it up to the Member States to decide whether to impose visas on states
not on the negative list. As a result the negative list was quite short. Also, they
did not govern the issue of airport transit visas. In order to move towards har-
monisation of policies on airport transit visas, the Council adopted a Joint
Action under the pre-Amsterdam version of the “third pillar”, and the Commis-
sion argued for its annulment, on the grounds that it should have been adopted
27 The adoption of rules on visa formats (see Ch. 9) was also subject to a communau-
taire procedure.
28 Reg. 2317/95 (OJ 1995 L 234/1). For an analysis of this Regulation, see Peers, “The
Visa Regulation: Free Movement Blocked Indefinitely” 21 ELRev. (1996) 150. On
the Community’s powers under the TEU, see Hailbronner, “Visa Regulations and
Third Country Nationals in EC law” 31 CMLRev. (1994) 969.
29 Case C-392/95 EP v Council [1997] ECR I-3213.
30 Reg. 574/1999 (n. 15 above).
31 See OJ 1996 C 379; OJ 1997 C 180; OJ 1998 C 101; OJ 1999 C 133; and OJ 2000 C
272.
191
pursuant to the Community powers to adopt a visa list instead.32 The Court of
Justice ruled for the Council, on the grounds that since persons in the airport
transit visa procedure had not crossed the legal borders of the Member States,
such persons were not participating in the internal market.33
While the 1999 Regulation required the Commission to consider propos-
als regarding further harmonisation of the visa lists in 2001, the Commission
proposed what became Regulation 539/2001, fully harmonising the visa lists, in
January 2000.34 The reason for the early proposal was the entry into force of the
Treaty of Amsterdam and the call in the Vienna Action Plan for an early adop-
tion of a measure on this subject.35 Also, in the meantime, the Schengen states
had almost completely agreed on a common visa list between them.36
Both the negative and positive lists in the proposed Regulation were almost
entirely simply taken over from those applied by the Schengen states, who had
proved able to agree on common negative and positive lists almost entirely by
end 1998. The only country left on the so-called “grey list”, which remained sub-
ject to visa requirements in some Schengen states but not others, was Colombia.
In its proposal, the Commission suggested amending the Schengen list only add
Colombia to the negative list and to shift of Romania, Bulgaria, Hong Kong
and Macao to the positive list.
The EP gave its opinion on the Commission proposal in July 2000.37 It sug-
gested the deletion of a proposed clause exempting residents of one Member
State from needing a visa to enter another Member State while in transit to their
usual Member State of residence. The EP also wanted to permit Member States
the option to drop visa requirements for students participating in EU youth pro-
grammes, to specify that Member States retained competence over recognition
of travel documents and to specify expressly that other aspects of the visa rules
in the Schengen acquis were not repealed by the new rules.
In the meantime, the Council working party on visas had begun to discuss
the measure, considering it at its meetings in March and April 2000.38 Follow-
ing further meetings of the visa working party and SCIFA, the key outstand-
ing issues were identified as the reciprocal imposition of visa requirements, the

33 The Court considered this issue from the perspective of the internal market because
of the link between Arts. 3(c) and 100c of the EC Treaty (these two Articles were
redrafted and abolished respectively by the Treaty of Amsterdam).
34 COM (2000) 27, 26 Jan. 2000; OJ C 177 E/66.
35 See Annex 3 for the Action Plan.
36 See the measures listed in Art. 7(3) of Reg. 539/2001.
37 OJ 2001 C 121/144.
38 See Council docs. 7142/00, 7744/00 and 8446/00, dated 22 March, 12 April and 11
May 2000 (outcomes of proceedings for meetings on 7 March, 7 April and 26 April
2000).
192
application of visa requirements to refugees and stateless persons, the compe-

tence of Member States regarding state recognition and travel documents, and
the list of states to be covered by the visa obligation.39 Following the EP vote and
discussions in the Council, the Commission amended its proposal in September
2000.40 The September 2000 JHA Council subsequently decided to settle the
issue of which third countries would be subject to visa obligations, by delaying
the entry into force of the visa abolition for some states. In response to this, the
enlargement Commissioner circumvented interior ministries by convincing the
General Affairs Council (made up of foreign ministers) of 20 November that
Romania and Bulgaria should be asked to make commitments on illegal migra-
tion and readmission issues as a condition of visa abolition for those states.
There was then agreement among Member States’ ambassadors to the EU in
Coreper in November 2000 that visas for Bulgarians should be dropped imme-
diately, while visa abolition for Romanians should be deferred.41 As part of the
overall compromise, the Council would also ask the Commission to table pro-
posals for readmission agreements with Macao and Hong Kong.42
Following this agreement, Coreper formally approved a finalised Regula-
tion on 29 November 2000,43 and the interior ministers duly reached a political
agreement on the proposal at the JHA Council session of 30 November and
1 December 2000.44 The EP was then reconsulted, because of the differences
between the initial proposal and the agreement in the Council.45 It proposed
several amendments to restore the Commission’s original proposal, as regards a
mandatory exemption from visa requirements for refugees and stateless persons
with a travel document from countries on the positive list and the immediate
abolition of visa requirements for Romanians. Furthermore, the EP reiterated
its position regarding EU youth programmes, competence over recognition of
travel documents and other Schengen visa rules. Finally, it suggested a six-month
limit upon the reimposition of visas for breach of the reciprocity principle. Fol-
lowing this second EP opinion, the proposal was adopted at the 15/16 March
2001 JHA Council. Spain abstained, apparently because of the imposition of
visa requirements on Colombia. In the meantime the Commission had com-
plied with the Council’s request for a prior report on Bulgaria’s and Romania’s
39 See Council doc. 11075/00, 5 Sep. 2000.

40 COM (2000) 577, 21 Sep. 2000; OJ 2000 C 376 E/1.
42 On the implementation of this, see Ch. 31.
43 They approved the version in Council doc. 13121/1/00, 28 Nov. 2000,
44 They approved the version in Council doc. 14076/00, 29 Nov. 2000 (identical to
ibid.).
45 OJ 2001 C 277/167. The EP was reconsulted on the basis of Council doc. 14191/00,
4 Dec. 2000 (identical to ibid.).
193
attempts to prevent illegal residence of their nationals in the Member States and
readiness to accept their readmission.46
The main changes made during negotiation of the text of Regulation
539/2001 were the deferred abolition of visa requirements for Romania; the reci-
procity provisions in Article 1(4); the deletion of the proposed Article 3, which
would have required Member States to exempt from the visa requirement per-
sons from negative list countries crossing the external borders who hold a resi-
dence permit from another Member State; deletion of the obligation to exempt
refugees and stateless persons from positive list countries from the visa require-
ment; permission for Member States to impose visa requirements on persons
who are coming to exercise a paid activity (Article 4(3)); and the addition of a
provision regarding Member States’ competence over recognition of states and
travel documents was added (Article 6).
Other technical amendments were made. Article 1(2) was clarified to specify
that visa abolition was only applicable for three months; the definition in Article
2 was aligned on the wording of Schengen provisions; and the definitions of two
of the categories of persons subject to Member States’ discretion to impose or
waive visa requirements were altered (Article 4(1)(d) and (e)).

Subsequently the Commission released a further report on Romania, as required
by the new Regulation, which recommended abolition of the visa requirement
for Romanians.47 This was followed by a formal proposal for a fresh Regula-
tion which would abolish this requirement.48 The Commission simply suggested
deleting several provisions of the Regulation placing Romania in the “waiting
room”. This proposal was discussed by the Council’s visa working party, which
made certain technical amendments,49 then referred to Coreper for a political
decision on the principle of moving Romania to the positive list de facto. Since
Italy and Austria had misgivings about the change, the issue was sent to the
Council,50 where decisions on the visa list are taken by a qualified majority vote.
So the Regulation was duly adopted by the JHA Council on 6/7 December 2001,
placing Romania on the positive list from 1 January 2002,51 albeit with a Council
statement on the importance of monitoring application by all the candidates
46 COM (2001) 61, 2 Feb. 2001. See the Belgian statement (number 27/01) regarding
Bulgaria, issued when the Regulation was adopted (summary of Council acts in
March 2001: Council doc. 8051/01, 19 Apr. 2001).
47 COM (2001) 361, 29 Jun. 2001.
48 COM (2001) 570, 8 Oct. 2001; OJ 2002 C 25 E/495.
49 Council doc. 13133/01, 26 Oct. 2001.
50 Council doc. 14869/01, 4 Dec. 2001.
51 Reg. 2414/2001, n. 5 above. The EP voted in favour on 29 Nov. 2001 (OJ 2002 C 153
E/233).
194
with the EU acquis on border controls, visa policy, travel and identity docu-
ments, immigration and asylum law, legislation on citizenship and statelessness,
readmission of third-country nationals and the “economic and social dimen-
sion”.52 Of this list, only the security of documents and readmission of a state’s
own nationals are in fact relevant to the requirement of a visa for that state, and
there is no EC acquis for several items.

This proposal was prompted first by the Council’s Action Plan on illegal migra-
tion of February 2002, which calls for annual review of the visa list. Subse-
quently, the Seville European Council reiterated the call for a review by the end
of 2002. The Commission issued a questionnaire to Member States in order to
find out their views on changes to the list, but despite Member States’ enthu-
siasm for this review, their response was initially sluggish.53 But eventually the
Commission released its proposal suggesting adding Ecuador to the negative list
because of “figures and statistics from a number of Member States” concerning
refoulements, expulsions, arrests and criminal convictions of Ecuador nationals.
No further details were given. Nevertheless the proposal was very quickly agreed
by SCIFA and endorsed by the Mixed Committee/JHA Council, approving the
Commission’s proposed text without amendment except for the addition of two
recitals concerning the relationship between the proposed Regulation and the
Schengen acquis.54 The Regulation was formally adopted in March 2003.

The Commission proposed to amend the rules on reciprocity in visas to provide
for a more political system in July 2004.55 The JHA Council reached a “general
approach” on this amendment, which was broadly similar to the Commission’s
proposal, in February 2005, and the Regulation was adopted on 2 June 2005,
entering into force on 24 June 2005.
3 Legal Analysis
The Council’s legal service issued two legal opinions during the course of nego-
tiation of this proposal. First of all, it gave its view on the application of the pro-
posal to Denmark, the question of whether the proposal built on the Schengen
52 See statement 161/01 in the Dec. 2001 summary of Council acts (Council doc.
15585/01, 13 Jan. 2002).
53 See outcome of proceedings of the visa working party, 21 Oct. 2002 (Council doc.
13660/02, 31 Oct. 2002).
54 See Council doc. 15392/02, 10 Dec. 2002, following SCIFA meeting on 9 Dec.
2002.
55 COM (2004) 437, 19 July 2004.
195
acquis and the possibility of adding a reciprocity clause.56 Secondly, it gave its
view on the effect of the Regulation on Member States’ pre-existing visa abo-
lition treaties with third states.57 It is not known what view the Council legal
service took on these issues, but it might be doubted whether Denmark could
be covered by the positive list obligations in the Regulation as matters of Com-
munity law, comparing the wording of Article 62(2)(b)(i) EC with the former
Article 100c(1) EC and the Protocol on Denmark.
Similarly, the non-application of the visa list Regulation to the UK and
Ireland raises questions. It could be argued on technical grounds that Regu-
lation 574/1999 still continues to apply to those two Member States, because
they did not participate in Regulation 539/2001, which repealed the 1999 mea-
sure. However, it seems unlikely that this was the intention of the drafters of the
Regulation. Also, the Regulation does not expressly limit the reciprocity provi-
sion in Article 1(4) to cases where a third country imposes a visa requirement
upon a Member State which participates in the Regulation. But it is arguable
that “Member State” for the purpose of Article 1(4) can logically only refer to a
Member State which is participating in the Regulation.
The Regulation excludes airport transit visas, presumably because of the
previous judgment of the Court of Justice in the Airport Transit Visas case.58 It
is not clear that this is correct, because the former Article 3(c) EC, which was the
basis for the Court’s decision in that judgment, is now worded differently.
Although the Regulation, like its predecessors, expressly only applies to
crossing the external borders, it appears to be regarded as relevant to crossing
internal borders as well. This was the implicit view of the Court of Justice in its
judgment in MRAX,59 and was confirmed by the 2004 Directive on the rights of
EU citizens and their family members to move and reside freely.60
There is no doubt that the positive list obligation is legally binding in Com-
munity law, and requires all participating Member States to drop visa require-
ments against all states in Annex II. This is an improvement upon the situation
prevailing under the Schengen acquis, where the legal effect of the positive list
was unclear.
The deletion of Article 3 of the Commission’s original proposal, concern-
ing an exemption from the visa requirement for persons crossing the external
border who hold residence permits from a Member State, is dubious. While it
is true that such an obligation is already set out in the Schengen Convention,
56 Council doc. 10552/00, 25 July 2000 (not released by Council).

57 Council doc. 6907/01, 7 March 2001 (not released by Council). For the issues
involved, see Council doc. 5800/01, 31 Jan. 2001.
58 N. 32 above.
59 Case C-459/99 [2002] ECR I-6591.
196
which has since been supplemented on this point by Regulation 1091/2001,61 it

would have been logically appropriate to incorporate it in this Regulation, since
it is simply a further exemption from the requirement to impose visas on nation-
als of countries in the negative list, just like the exemptions in Articles 3, 4(1)
and 4(3) of the final Regulation.62
It is unfortunate that the Member States could not bring themselves to
accept the abolition of visa requirements for refugees with Geneva Convention
travel documents. Most are still bound by the Council of Europe Agreement
of 1959 on the abolition of visas for refugees, although the UK subsequently
suspended it in February 2003, complicating travel to and from the UK for
recognised refugees.63 There are no convincing reasons for refusing to accept
visa-free travel of refugees where their readmission is guaranteed by the State
which issues them travel documents.
It is interesting to note that no Member State has yet invoked Article 9 of
the 1990 Schengen Convention, permitting emergency unilateral reimposition
of visa requirements.64 Nor has Article 64(2) EC, permitting emergency mea-
sures to be taken to benefit multiple Member States in the event of a mass influx,
been applied either.65 The previous EC Treaty clause (Article 100c(2)) allowing
reimposition of visas for six months on a non-EU country where there was an
“emergency” leading to a “threat of a sudden inflow” from that country was
never applied either. It seems that to date, the EC rules on visa lists have proved
adequate for the Member States without recourse to emergency measures.
Finally, it should be noted that there is no provision requiring a general
review of the application of the Regulation, although the second amendment to
the Regulation required a review of the reciprocity principle; this was carried out
and resulted in an amendment to the Regulation in 2005, as discussed above.
4 Comments
The removal of visa requirements from certain third states is the most signifi-
cant aspect of Regulation 539/2001. However, this raises a number of questions.
First of all, the Commission, the Council and the EP apparently only consid-
ered changes to the status of five states or entities when adopting Regulation
539/2001. While the Commission, in its explanatory memorandum, claimed to
61 OJ 2001 L 150/4.
62 See the discussion in Peers, n. 28 above.
63 ETS 31. It has been ratified by all of the “old” Member States except Austria and
Greece, plus the Czech Republic and Malta among the new Member States. Outside
the EU, it has been ratified by Liechtenstein, Norway, Iceland, Romania and Swit-
zerland.
64 OJ 2000 C 239/19.
65 On the interpretation of this clause, see Peers, EU Justice and Home Affairs Law
(Longman, 2000), 80-81.
197
take various factors into account when proposing the text, its nearly complete
transposition of the Schengen acquis suggests otherwise.66 To take one example,
do all the Pacific micro-states on the negative list really represent a threat of ille-
gal immigration into the Community? If the UK can live without a visa require-
ment for South Africans and several States in the Caribbean Commonwealth,
do continental Member States really need to impose such a requirement? For
that matter, the Commission did not consider whether any states on the Schen-
gen positive list ought to be moved to the negative list.
It can only be hoped that the Commission embarks upon a more objective
review of all the countries on the negative list, with a view to considering the
transfer of as many third states as possible to the positive list. It is questionable
whether the application of the current criteria in practice complies with non-dis-
crimination obligations imposed by international human rights law.67 However,
there is nothing to indicate that it did this when it first reviewed the list in 2002.
Moreover, despite the ostensibly objective test for deciding whether to apply a
visa requirement, the Commission offered no explanation why Colombia, the
one state left on the Schengen “grey” list, should be moved to the negative list
rather than the positive list. More recently, the Commission referred to evidence
for moving Ecuador to the negative list but did not give any further informa-
tion about this evidence, preventing any effective public debate about the alleged
problems and possible alternative solutions. Also, it does not appear that the
Commission has determined and applied any criteria for determining whether a
State should move to the positive list, instead of to the negative list.
While Bulgarians and (following the later amendment) Romanians are
doubtless pleased to be relieved of the requirement to obtain a visa to enter most
Member States, it may be questioned whether it was appropriate for the Com-
munity to demand as much as it did from these states before abolishing the visa
requirement.68 Certainly, before abolishing a visa requirement for a third state,
it is appropriate to consider whether that third state takes effective measures to
prevent counterfeiting of its passports and fraudulent means of passport acqui-
sition, and whether that state is willing to readmit its own nationals if they enter
the territories of the EU Member States illegally. However, it may be seriously
questioned whether it is appropriate in this context to demand any changes to
Romanian and Bulgarian policy as regards non-nationals of those states. What
66 Similarly, the Commission’s initial proposal for a visa “negative list” in 1993 simply
suggested adoption of the existing Schengen list without amendment: see Peers, n.
22 above. For detailed criticism of the criteria for the negative list and the list itself,
see Guild, “The Border Abroad: Visas and Border Controls” in Groenendijk, Guild
and Minderhoud, eds., In Search of Europe’s Borders (Kluwer, 2003) 87 at 98-103.
67 See Cholewinski, Borders and Discrimination in the European Union (ILPA, 2002), s.
1.3.1.
68 See further ibid.; Ch. 32 of this volume; and Guild, n. 66 above.
198
rational connection is there between such policies and the admission of Roma-
nians and Bulgarian nationals to Community territory?
The abolition of visa requirements for Romanians and Bulgarians has set
a precedent. If it was unacceptable in 2001 for some applicant states negotiat-
ing to join the European Union to be subject to visa requirements while others
were not, then it cannot be acceptable in 2006 for Turkey to be subject to the
visa requirement while Croatia is not (membership negotiations with both States
began in October 2005).69 Similarly, it cannot be acceptable to maintain visa
requirements for the former Yugoslav Republic of Macedonia if membership
negotiations begin with that country.70 More broadly, if the EU has sufficient
confidence that an applicant state is close enough to the criteria to qualify for
EU membership to endorse opening negotiations for membership, it is hard to
see any credible justification for continuing to impose a visa requirement on that
applicant state. In any event, in light of the standstill in a Protocol to the EC-
Turkey association agreement forbidding any new restrictions on establishment
and provision of services by Turkish nationals after 1973, it is arguable that
Community and national visa requirements imposed since that date on at least
some Turkish nationals are invalid.71
The British opt-out from participation in the EC visa list rules means that
the UK can maintain its own visa list, which in some respects is more liberal
than the EC regime, allowing entry of nationals of without a visa for nationals
of twenty-eight more states (the Bahamas, Barbados, Belize, Botswana, Domi-
nica, Grenada, Kiribati, Lesotho, Maldives, Mali, Marshall Islands, Mauritius,
Micronesia, Namibia, Nauru, Northern Marianas, St. Kitts, St. Lucia, St. Vin-
cent, Seychelles, Solomon Islands, South Africa, Swaziland, Tonga, Trinidad
and Tobago, Tuvalu, Vanuata and Western Samoa), and which in some respects
is more conservative, requiring visas for nationals of three more states (Bulgaria,
Croatia and Romania). In light of the UK’s opt-out from EC visa law, the legal-
ity of the UK’s imposition of visas on Bulgaria, Croatia and Romania cannot
be challenged as a breach of EC law (and neither can the UK’s remaining visa
exemptions for Commonwealth states in southern Africa, the Caribbean and
69 Since only one month passed between the decision to start accession negotiations
with Romania and Bulgaria in December 1999 and the Commission’s proposal to
drop the visa requirement for these States, the lack of a similar proposal regarding
Turkey was, in comparison, already overdue by December 2005.
70 The December 2005 European Council (summit meeting) decided that this State
should be considered a candidate for accession, but did not yet approve the start
of negotiations for accession, so it cannot yet be said that FYROM is in the same
position that Romania and Bulgaria were in 2000 and 2001.
71 On the standstill, see Case C-37/98 Savas [2000] ECR I-2927, Joined Cases C-317/01
and C-369/01 Abatay and others [2003] ECR I-12301 and Cases C-16/05 Tum and
Dari and C-296/05 Gunes, both pending.
199
Pacific). But there is an obvious political argument that the UK and the rest of
the EU should be learning from each other about best practices: surely the UK
should take into account the success of the visa exemption applied by other
Member States to Romania, Bulgaria and Croatia, just as the other Member
States should consider the success of the British visa exemption for a number of
Commonwealth countries?
Finally, the reluctance of Member States to allow admission of refugees
and stateless persons with travel documents from positive list countries without
a visa is disappointing. It is hard to see how a large number of such persons
could successfully claim asylum in the Community, given the provisions of the
existing Resolutions and the proposed Directive on asylum procedures.72 If there
is a concern that positive list countries will be unwilling to readmit such per-
sons, this could be addressed by agreeing in the Council on a list of positive list
countries where there is not such a threat, by encouraging more states to ratify
the 1959 Council of Europe Convention on visa abolition for refugees and by
considering bilateral or multilateral agreements to agree similar obligations with
non-European countries and to adopt equivalent rules for stateless persons.
72 See Ch. 14.
200
Chapter 9 Visa Policy
1.1 Existing Schengen Rules
The starting point for the EU’s visa policy is the rules on visas (for stays of under
three months) contained in the 1990 Schengen Convention.1 Visas are addressed
in Chapter 3 of Title II of the Convention, with comprehensive rules on short-
stay visas in Section 1 (Articles 9-17) and a provision on long-stay visas in Sec-
tion 2 (Article 18), which is limited to providing that persons with a long-stay
visa from a Member State have the right to cross the external borders of another
Member State in transit without having to obtain a visa to do so.
Basic rules on visa policy are set out in Article 9. Article 9(1) requires the
parties to establish a common policy on visas and as a consequence, Article
9(2) requires unanimous consent to any changes to national visa policy that was
already common when the Convention was signed or later. In “urgent” circum-
stances, a Member State can take a unilateral decision subject to prior consulta-
tion with other Member States.
Basic rules on a uniform visa (known as the “Schengen visa”) are set out
in Articles 10 and 11. Article 10(1) specifies that a uniform visa valid for all the
(Schengen) Member States for a period of three months shall be introduced.
Article 10(2) governs the transitional period prior to the introduction of the
uniform visa, while Article 10(3) permits each Member State to restrict the ter-
ritorial validity of a visa as a derogation, in accordance with common arrange-
ments. Article 11(1) defines the type of Schengen visas available, specifying that
they may either be a travel visa valid for one or more entries within a six month
period or a transit visa valid for five days maximum permitting travel through the
1 OJ 2000 L 239/19.
EU territory on the way to a third state. Article 11(2) permits the Member States
to issue another visa with limited territorial validity within that half year.
Articles 12-16 set out the conditions and procedures for the issue of Schen-
gen visas. The visa shall be issued by the diplomatic or consular authorities or
by another authority designated by the Schengen Executive Committee (Arti-
cle 12(1)). Article 12(2) specifies that the State responsible for considering the
application is the State of principal destination, or alternatively the state of
first entry, and Article 12(3) gives the Executive Committee power to determine
implementing arrangements and criteria. Next, Articles 13 and 14 governs the
relationship between travel documents and visas. Article 15 sets out the underly-
ing criteria for receiving a visa. An applicant must meet the same criteria as he
or she would need to cross the border according to Article 5 of the Convention:
possession of valid documents determined as necessary to cross the border; “if
applicable” submission of documents substantiating the purpose of the visit and
sufficient means of support; absence from the list of persons banned from entry
set up within the Schengen Information System (SIS); and absence of a “threat
to public policy, national security or the international relations” of any of the
Schengen states.2 However, if these criteria are not met, it is still possible to issue
a visa limited to the validity of a single Member State if that Member State
“considers it necessary” to issue a visa on humanitarian grounds, national inter-
est or international obligations (Article 16).
Finally, Article 17 sets out three categories of implementing powers for the
Executive Committee. According to Article 17(1), it must set out common rules
for considering visa applications and ensure they are enforced correctly. Article
17(2) requires it to agree rules on prior consultation with authorities of other
Member States prior to issue of a visa in certain circumstances. There are six
further powers granted by Article 17(3), comprising rules on: affixing a visa to
travel documents; the bodies responsible for issuing visas; the conditions govern-
ing the issue of visas at borders; the form, content and validity of visas “and the
charges to be imposed for their issue”; the conditions for extension and renewal
of visas; procedures for limiting territorial validity; and criteria for preparing a
common list of persons to be refused entry.
To give effect to the powers granted by the Convention, the Executive Com-
mittee adopted thirteen Decisions which the Council considered fell within the
scope of the EC’s visa powers and six Decisions which the Council believed fell
partly within the scope of those powers.3 The former comprise Decisions on:
extending the uniform visa; procedures for cancelling the uniform visa; issuing
uniform visas at the border; introducing a computerised procedure for the con-
sultation provided for in Article 17(2); a common visa policy; representation of
2 Art. 5 also requires the person crossing the border to possess “a valid visa if
required”, but this criterion obviously does not apply to visa applications.
3 See Council Decision “allocating” the Schengen acquis (OJ 1999 L 176/17).
202
other Member States when issuing visas; issuing visas at the borders to seamen
in transit; harmonisation of visa policy; exchange of visa statistics at local level;
stamping of passports of visa applicants; abolition of the visa “grey list”; the
manual of documents to which a visa may be affixed; and the introduction of a
harmonised form for sponsorship.4 The latter comprise Decisions on: the acqui-
sition of common entry and exit stamps; exchanges of statisical information on
visas; an action plan to combat illegal immigration; the coordinated deployment
of document advisors; the adoption of a consolidated text of the Common Con-
sular Instructions (CCI); and a manual of documents to which a visa may be
affixed.5 Certain provisions of the CCI are still confidential.6
1.2 Community Acts

Leaving aside the issue of visa lists and a Regulation essentially concerning free-
dom to travel,7 by 1 January 2006 the Community had adopted nine legislative
measures, fourteen implementing measures and one non-binding measure con-
cerning visa policy. These measures were essentially concerned with visa formats,
amendments to the Common Consular Instructions, and the Visa Information
System.
The first legislative measure was Regulation 789/2001, based on Articles
62(2) and 62(3) EC, which set out a procedure for amending the Common Con-
sular Instructions (CCI) and certain other measures.8 This Regulation derogates
from the normal principle (set out in Article 202 EC) that it is for the Commis-
sion to adopt measures implementing EC acts. Instead, the Regulation gives all
implementing power to the Council, subject to a review of the idea of confer-
ring such powers on the Commission at the end of the five-year transitional
period (although such a review had not taken place as of 1 April 2005). The
Council is allowed to update almost all the rules in the CCI and all the rules in
two connected manuals and the “Schengen Consultation Network” by means
of a simplified procedure not involving consulation of the EP. The Council acts
on the initiative of a Member State or the Commission when adopting certain
implementing measures amending the CCI (Article 1) and most of the Schengen
Consultation Network, but many other provisions of the CCI, the Schengen
Consultation Network and both manuals can simply be amended by Member
4 Published at OJ 2000 L 239/151, 154, 163, 165, 175, 180, 182, 186, 196, 200, 206, 207
and 299.
5 Published at OJ 2000 L 239/166, 173, 203, 298, 308 and 317.
6 See Schengen Executive Committee Decisions on confidentiality (OJ 2000 L 239/127
and 139), now repealed by Decision 2004/16 (OJ 2004 L 5/78), which specifies that
Annex 5 to the CCI is still classified.
7 See respectively Ch. 8 and Reg. 1091/2001 (OJ 2001 L 150/4).
8 OJ 2001 L 116/2.
203
States acting unilaterally (Article 2(1)).9 In several cases, other Member States
must be given a prior opportunity to comment before the latter amendments are
made (Article 2(2)). These procedures apply to the entirety of the two manu-
als, to six of the eight sections of the CCI,10 and to thirteen of the fifteen CCI
Annexes.11 The only CCI Annexes not subject to the implementing powers of
the Council are provisions relating to visa issues covered by the “normal” Com-
munity method (visa lists and visa format, in Annex 1 and Annex 8), and the
only CCI sections not subject to these powers are Parts I and IV on the scope of
visas and legal basis, which consist entirely of references to the 1990 Schengen
Convention. The Council acted unanimously until 1 January 2005, after which
point it votes by a qualified majority.12
Article 202 EC does permit the Council to confer implementing powers
upon itself, by way of exception to the normal rule. But the Commission took
the view that the Council had supplied insufficient reasons for this decision, and
so (unsuccessfully) sued the Council to annul the Regulation,13 along with the
parallel Regulation concerning amendments to the Common [Border] Manual.14
Despite voting for the proposal, the Dutch government intervened to support
the Commission’s position.15
The next two measures both concern visa formats, and were both based on
Article 62(2)(b)(iii) EC. Regulation 334/2002 amends the pre-Amsterdam Regu-
lation 1683/95 on a common visa format,16 by updating the committee procedure
for assisting the Commission when it implements the Regulation,17 extending the
Commission’s implementing powers and providing for a photo to be included
9 Arts. 1 and 2.
10 The exceptions are Part I (scope of visas) and Part IV (legal basis), which consists
entirely of references to the 1990 Schengen Convention.
11 The exceptions are Annex 1, which lists countries whose nationals do or do not
require a visa to cross the external borders and Annex 8, which comprises the Coun-
cil Regulation on the uniform visa format.
12 Art. 3(1) of the Decision amending decision-making rules for Title IV (OJ 2004 L
396/45).
13 Case C-257/01 Commission v Council [2005] ECR I-345. See Statement 30/01,
reproduced in the monthly summary of Council acts for April 2001 (Council doc.
9018/01, 21 May 2001).
14 Reg. 790/2001 (OJ 2001 L 116/5). See parallel Statement 32/01 (ibid).
15 See Statements 31/01 and 33/01 (ibid.) and subsequently Statements 50/02 and 51/02
in the monthly summary of Council acts for April 2002 (Council doc. 9250/02, 3
June 2002).
16 OJ 2002 L 53/7.
17 Such an update was necessary because new rules on committees which assist the
Commission when exercising its implementation powers (“comitology” rules) had
been agreed by Council Decision 1999/468 in 1999 (OJ 1999 L 184/23).
204
within the visa. Regulation 333/2002 establishes a common format for attaching
a visa sticker for a different category of persons, those who have travel docu-
ments from an entity which is not recognised.18 It has the same system as Regula-
tion 334/2002 for implementing the common format.
Fourth, in February 2003 the Council adopted Regulation 415/2003, based
on Article 62(2)(b)(ii) EC, which concerns examination of border applications
for a visa and issuing visas to seamen.19 This consolidated and recast the two
relevant Schengen Executive Committee Decisions and added the possibility of
issuing collective visas to seamen. Fifth and sixth, following agreement between
the EU and Russia on the future status of Kaliningrad, the Council adopted in
April 2003 Regulations 693/2003 and 694/2003 to implement the agreement.20
Seventh, in July 2003 the Council adopted a Regulation setting out special rules
for admission in relation to the summer 2004 Olympic Games.21 Eighth, in June
2004 the Council adopted a Decision establishing the Visa Information System.22
Finally, in December 2005, the Council and EP adopted a Regulation setting out
special rules for admission in relation the 2006 Winter Olympics. 23
Of the fourteen implementing measures, two are secret and thus unpub-
lished. First, a Decision from April 2001 updates Annex 10 of the CCI and
Annex 8 of the Schengen Consultation Network (dealing with technical speci-
fications). The confidential Annexes concern instructions on writing entries in
the section of a visa to be electronically scanned, while the consultation network
is a system to facilitate contacts between different Member States’ visa authori-
ties. Second, a Decision from December 2002 makes further amendments to the
Schengen Consulation Network.24
Of the remaining twelve measures, three are purely technical updates to
the CCI following other decisions. These measures simply give effect to changes
consequential on the extension of the Schengen area to Nordic countries, on the
adoption of Regulation 1091/2001 concerning freedom to travel for holders of
long-stay visas and on the adoption of Regulations 333/2002 and 334/2002 on
18 OJ 2002 L 53/4.
19 OJ 2003 L 64/1. For the initial proposal (by Spain) see OJ 2002 C 139/6.
20 OJ 2003 L 99/8 and /15. For the initial proposals, see COM (2003) 60, 5 Feb. 2003.
These Regulations are not considered in detail in this book.
21 Reg. 1295/2003, OJ 2003 L 183/1. For the proposal, see COM (2003) 172, 8 Apr.
2003. The Regulation is not considered in detail in this book.
22 OJ 2004 L 213/5. For the proposal, see COM (2004) 99, 12 Feb. 2004. The Decision
is not considered in detail in this book.
23 Reg. 2046/2005, OJ 2005 L 334/1. For the proposal, see COM (2005) 412, 7 Sep.
2005. The Regulation is not considered in detail in this book.
24 See Press Release of the JHA Council, 19 Dec. 2002 and Council doc. 13189/02, 4
Nov. 2002.
205
visa formats.25 In addition, other essentially technical amendments to the CCI

have been effected by legislative measures.26 Another two measures are essen-
tially technical updates to the categories of persons who are required to obtain
an airport transit visa and who are exempt from visa requirements because they
hold diplomatic passports.27
The other seven measures make substantive changes to the CCI. First, a
Decision purports to clarify that fees are charged for considering visa applica-
tions, not for the visa itself, while exempting family members of EC nation-
als from such fees.28 Second, a Decision adds a further common element to the
EC visa rules by creating a standard form for Schengen visa applications.29 A
third Decision sets out common rules on considering collective visa applications
submitted by travel agents.30 A fourth Decision standardised the fee for indi-
vidual visa applications at €35.31 The final three decisions, adopted in December
2003, enhanced the role of consulate interviews in the visa application process,
amended the rules relating to medical insurance conditions to obtain a Schengen
visa, and made it easier for one Member State to represent others when issuing
visas.32
Further technical amendments to the CCI were also introduced by the
Accession Treaty as from 1 May 2004.33 As a consequence of the various amend-
ments, the Council published a consolidated text of the CCI in December 2002,
December 2003 and December 2005.34
The formal non-binding measure adopted to date is a Recommendation on
facilitating the issue of short-stay visas to researchers, adopted in July 2005.35
25 See Decisions amending CCI Part VI and Annexes 3, 6 and 13 (OJ 2001 L 116/32);
Parts V and VI and Annex 13 (OJ 2001 L 150/47); and Part VI (OJ 2002 L 187/48).
26 See Art. 7(2) of Reg. 539/2001 (OJ 2001 L 81/1); Art. 2 of Reg. 1091/2001 (OJ 2002
L 150/4), amending Section 2.2 of Part I; Art. 2 of Reg. 333/2002 (n. 18 above); Art.
5(4) of Reg. 453/2003 (n. 19 above); and Art. 11(1) of Reg. 693/2003 (n. 20 above).
27 Decisions amending Annex 2, Schedule A of the CCI (OJ 2003 L 198/13) and Annex
3, Part 1 of the CCI (OJ 2003 L 198/15).
28 Decision 2002/44 amending Part VII and Annex 12 of the CCI (OJ 2002 L 20/5).
29 Decision 2002/354 amending Part III and creating a new Annex 16 CCI (OJ 2002 L
123/50).
30 Decision amending Parts III and VIII of CCI (OJ 2002 L 187/44).
31 OJ 2003 L 152/82.
32 See Decisions amending different provisions of Part V of the CCI (OJ 2004 L 5/74
and OJ 2004 L 5/79); and Part II of the CCI, also adding a new Annex (OJ 2004 L
5/76).
33 OJ 2003 L 236, pp. 718-725.
34 OJ 2002 C 313/1, OJ 2003 C 310/1 and OJ 2005 C 326/1.
35 OJ 2005 L 289/23.
206
Finally, there were several visa policy measures under discussion at the start
of 2006. First, the Commission’s proposals concerning local border traffic con-
tain provisions relevant to visa policy.36 Secondly, the Commission proposed in
September 2003 to amend the EC’s standard visa format, to insert “biometric”
data (fingerprints and digital photographs).37 Thirdly, the Commission made a
second proposal to set out more detailed rules for the functioning of the “Visa
Information System” in December 2004.38 Fourth, a proposed Decision con-
cerning transit through new Member States has “legal bases” concerning both
external borders and visas.39
One planned initiative initially fizzled out: the idea of joint consular offices
of the Member States, with a pilot project in Pristina, failed to take off due to
lack of interest.40 The idea of a joint consular office in Kinshasa was mooted in
spring 2003, but did not come to fruition.41 Similarly, an attempt by the Danish
Council Presidency to begin the process of harmonising appeal procedures for
visas was dropped due to opposition from Member States.42
The Hague Programme, setting out a further multi-year programme for
Justice and Home Affairs Law, and adopted in November 2004,43 contains a
number of objectives concerning visas: a Commission communication on
“inter-operability” of the VIS and other EU information systems (the SIS and
Eurodac) in 2005; Commission proposals on common visa application centres in
2005 and on a proposal concerning the CCI in early 2006 at the latest, following

37 COM (2003) 558, 24 Sep. 2003. The JHA Council agreed in principle on this pro-
posal in November 2003, but adoption of the legislation was delayed due to the
absence of an opinion from the European Parliament and technical difficulties that
came to light. On the latter issue, see Council doc. 6492/05, 17 Feb. 2005, online at:
<http://www.statewatch.org/news/2005/feb/6492.05.pdf> and the Statewatch story
with further documentation online at: <http://www.statewatch.org/news/2004/dec/
07visas-residence-biometrics.htm>.
38 COM (2004) 835, 28 Dec. 2004. See also the guidelines on the planned system
adopted by the JHA Council in Feb. 2004 (published in the press release for that
Council meeting). The Commission has also proposed a ‘third pillar’ Decision gov-
erning the access of law enforcement authorities to this data: COM (2005) 600, 24
Nov. 2005.
39 COM (2005) 381, 22 Aug. 2005.
40 See outcome of proceedings of the visa working party, 18 July 2002 (Council doc.
11503/02, 14 Aug. 2002).
41 See outcome of proceedings of the visa working party, May 2003 (n. 30 above) and
10-11 June 2003 (Council doc. 10717/03, 20 June 2003).
42 Ibid. See the information on Member States’ practice (Council docs. 8929/02, 21
May 2002 and 8929/1/02, 20 June 2002; analysis in Council doc. 10640/02, 10 July
2002).
43 OJ 2005 C 53/1.
207
a review of the CCI; the application of the VIS in practice in two phases (end
2006 for data and photographs; end 2007 for biometric data); and the possible
agreement on visa facilitation treaties with non-EU countries, in return for read-
mission treaties.44 The implementation plan fleshing out the Hague programme
refers further to proposals coming in 2005 concerning amendment of the CCI
as regards biometrics and visa fees.45 By the start of 2006, the Commission had
released its discussion paper on interoperability,46 and had reached agreement
with Russia on the first Community visa facilitation treaty.47

2.1 EC Powers
The Community’s powers over visas initially comprised only the power to adopt
a common visa format and a “negative” visa list, under the former Article 100c
EC as inserted by the TEU. Both measures were to be agreed by a qualified
majority vote of the Council on a proposal from the Commission after con-
sultation of the European Parliament, although the Council had to act unani-
mously when agreeing visa list measures until 1 January 1996. A regulation on a
common format for a visa was duly agreed in 1995.48 With the Treaty of Amster-
dam, Article 100c was rescinded and Article 62(2)(b), newly inserted into the
EC Treaty, gave the EC powers to adopt rules over short-term visas for under six
months “including” the previous powers (Article 62(2)(b)(i) and (iii)) and two
new powers over “the procedures and conditions for issusing visas by Member
States” and “rules on a uniform visa” (Article 62(2)(b)(iii) and (iv)). But despite
the additional EC powers over visas, the two categories of powers were still dis-
tinct because the decision-making rules concerning the “old” powers remained
communautaire and the decision-making rules for the new powers provided for
proposals by the Commission or a Member State, unanimous voting in the
Council and consultation of the EP. From 1 May 2004, according to Article
67(4) EC, the decision-making for the “new” powers moved automatically to
the “co-decision” procedure, so now there is still a distinction between the two
categories of powers, this time as regards the EP’s role in the procedure.
The Vienna Action Plan on implementing JHA policy after the Treaty of
Amsterdam called for measures within two years on procedures and conditions
for issuing visas by Member States (resources, guarantees of repatriation or
accident and health cover), a harmonised list of countries subject to an airport
transit visa requirement (abolition of the current grey list), a harmonised visa
44 On the Hague Programme, see Annex 6.

45 OJ 2005 C 198.
46 COM(2005)597, 24 Nov. 2005.
47 Not yet published.
48 Reg. 1683/95 (OJ 1995 L 163/1). On the visa list, see Ch. 8.
208
list and defined rules on a uniform visa.49 Discussions on the first two issues
petered out;50 the third topic was agreed within the two-year deadline;51 and dis-
cussions never began on the fourth issue. Within five years, the EU was to adopt
further measures on the visa format and the Schengen representation system; as
we have seen, it had addressed both issues by the end of 2003.
Subsequently, the Tampere conclusions called for a “common active policy
on visas and false documents...including closer co-operation between EU con-
sulates in third countries and, where necessary, the establishment of common
EU visa issuing offices.” As noted above, the idea of common offices has not
progressed yet. The Laeken European Council at the end of 2001 referred again
to the idea of common consular offices and asked the Council and the Member
States “to set up a common visa identification system”. Next, the Seville Euro-
pean Council of June 2002 specified dates for further steps setting up the visa
identification system; the Thessaloniki European Council of June 2003 called
for further development of the VIS and legislation on inclusion of “biomet-
ric” data in travel documents, starting with visas; and the October 2003 summit
called for agreement on the ensuing proposals by the end of 2003.52
2.2 Implementing Powers

The argument over the powers to implement the CCI began almost as soon
as the Treaty of Amsterdam entered into force,53 with an early consensus in
the Council visa working party that the “operative” Part of the CCI should
be amended by means of the legislative procedure and the Annexes should
be divided into three parts, which would in turn be agreed by the legislative
procedure, by amendment by the Council as an implementing measure and by
amendment by each Member State.54 The Finnish Presidency then presented a
text very similar to the final Regulation, which was effectively agreed within the
working party before it was submitted to the EP for consulation.55 During the
early Council negotiations, the only changes made were to create the category
of national amending measures in Article 2(2) which had to be the subject of
49 See Annex 3.
50 On the former issue, French proposals from 2000 and 2004 were discussed but not
agreed; on the latter issue, see the Finnish proposal mentioned in Ch. 1.
51 See Ch. 8.
52 On the summit conclusions, see Annexes 4 and 5.
53 See outcome of proceedings of visa working party on 18 June 1999 (Council doc.
9858/99, 6 July 1999).
54 See outcome of proceedings of visa working party on 22 Sep. 1999 (Council doc.
12387/99, 4 Nov. 1999).
55 The first draft was Council doc. 12973/99, 18 Nov. 1999; see later docs. 12973/1/99,
11 Jan. 2000; 12973/2/99, 9 Feb. 2000; and 12973/3/99, 6 Mar. 2000, before the
formal transmission of the text to the EP.
209
prior consultation with other Member States before they were adopted, and to
alter the wording of the crucial recital that explains the Council’s reasons for
deciding to confer implementing powers on itself. Originally this recital referred
to “the enhanced role of the Member States in this policy area, and in view of
the need of the need to meet the operational requirements of the requisite con-
sular authorities with the requisite degree of urgency” as grounds for conferring
powers on the Council, but the text which the Council first intended to send to
the EP referred to the Member States’ enhanced role as “reflecting the political
sensitivity of this area”.56 This was amended in the formal text sent to the EP
to refer to the enhanced role of the Member States as “reflecting the sensitivity
of this area, in particular involving political relations with third countries”.57
Later on, the Council decided to add the Schengen consultation network to the
scope of the proposal.58 Unsurprisingly, the EP, traditionally a supporter of the
Commission’s implementing powers, rejected this initiative.59
2.3 Visa Formats

As noted above, the EC has had powers over visa formats since 1993, and used
that power to adopt Regulation 1683/95 in 1995. But it could be questioned
whether this power extended to measures on visa stickers for persons with unrec-
ognised documents. Following entry into force of the Treaty of Amsterdam, the
scope of the “visa format” power was still a relevant issue, given the different
decision-making procedure for the EC’s two new visa powers.
Clearly some Member States took a narrow view of the Community’s “visa
format” powers, as they proposed a third-pillar Joint Action in 1997 which
would address visa stickers both for persons with unrecognised travel documents
and for persons with no documents.60 This measure was not agreed before the
Treaty of Amsterdam and so was proposed in the form of a Regulation based
on Article 62(2)(b)(ii) EC by Finland in 1999.61 Discussions on that proposal,
which would have conferred implementing powers on the Council acting unani-
mously, faltered until the Commission made its two visa format proposals in
March 2001.62
The Commission originally suggested it should have implementing powers
not just over setting security standards, which it had originally in Regulation
1683/95, but also over storage of the visas, “rules for the filling in of the uniform
56 Council doc. 6841/00, 29 Mar. 2000.

57 Council doc. 6841/1/00, 26 May 2000.
58 Council doc. 11834/00, 2 Oct. 2000.
59 OJ 2001 C 343.
60 Council doc. 11362/97, 23 Oct. 1997.
61 Council doc. 10865/99, 9 Sep. 1999; see later Council doc. 10865/1/99, 8 Oct. 1999.
62 COM (2001) 157, 23 Mar. 2001; OJ 2001 C 180 E/301 and 310.
210
visa” and “other conditions necessary for implementation of the uniform format
for visas”. Discussion of these proposals in the Council’s visa working party
resulted in deletion of the Commission’s broad power to adopt “other condi-
tions”, limitation of the Commission’s other powers to “additional measures
and security requirements” and “the technical methods and procedures” to be
used to fill in the visa, and an extension from one to two months for Member
States’ delegations to control the Commission in the event of a dispute over
a draft implementing measure.63 The Spanish delegation also insisted that the
Regulation should expressly not limit Member States’ competence over recogni-
tion of states, territorial entities and documents, and another new clause con-
cerned consequential changes to the CCI and the Common [Borders] Manual.
Then, following the events of 11 September 2001, the Commission issued a
fresh version of the proposal, which would require the insertion of a photo into
the visa.64 This would apply five years after adoption of the technical standards
to combat counterfeiting; the Commission would also have powers to amend the
colours on the visa sticker to combat counterfeiting. The Council’s visa work-
ing party quickly reached agreement on this proposal,65 and following the EP’s
vote in favour (with proposed amendments) in December 2001, the Regulation
was subsequently formally adopted in February 2002, applying from 15 March
2002.
The initial proposal for the Regulation on visas for persons with docu-
ments from unrecognised entities was nearly identical to Regulation 1683/95,
and so the Council’s visa working party first reached agreement on the proposed
amendments to that Regulation before discussing this proposal.66 Agreement
was then very quick, with amendments to the Commission’s text corresponding
to the amendments agreed to the parallel proposal, although this form of visa
will not include a photo. Subsequently, after the EP’s vote in favour, this measure
was formally adopted at the same time as its sister Regulation. It applied from
23 February 2002.
Finally, as noted above, the September 2003 proposal to bring forward the
date of including biometric photos in the standard visa format and to include
fingerprints of visa applicants also was quickly agreed in principle at the JHA
63 Council docs. 8798/01, 10898/01 and 12236/01 (outcomes of proceedings of the

working party on 11 May, 9 July and 24 Sept. 2001).
64 COM (2001) 577, 9 Oct 2001; OJ 2002 C 51 E/219.
65 Council docs. 13271/01 and 14362/01 (outcomes of proceedings of the working
party on 19 Oct. and 9 Nov. 2001). See subsequently Council doc. 15333/01, 14
Dec. 2001.
66 Council docs. 12239/01 and 14363/01 (outcomes of proceedings of the working
party on 24 Sept. and 19 Oct. 2001). See subsequently Council doc. 15333/01, 14
Dec. 2001.
211
Council of November 2003, but it had not yet been adopted officially by 1 Janu-
ary 2006.67
2.4 Visas at the Border

The Spanish proposal on issuing visas at the border had originally been proposed
in the form of an implementing measure replacing the then-current Annex XIV
of the Common (borders) manual on this subject.68 Subsequently it was decided
to propose a legislative measure instead. This proposal would still have replaced
Annex XIV of the borders manual, but it would also have replaced two Schen-
gen Executive Committee Decisions, putting in place a clearly drafted set of
rules on the issue of the exceptional grant of visas at the borders.
Following initial reaction from Member States,69 the technical detail of the
proposal was altered along with the addition of a provision making the excep-
tional nature of this procedure clearer, limiting it to cases where a person had
been unable to apply for a visa in advance. But there was a dispute over the
rules for amending the two Annexes to the Regulation, which set out in turn the
rules for issuing such visas and a common format for them. The Spanish had
suggested that such implementing measures should be adopted by the Council,
with a qualified majority vote following a proposal from the Commission or
a Member State, but the Commission wanted its usual power to adopt imple-
menting measures and the Dutch and Greeks wanted the Council vote to be
unanimous. Ultimately, the Council’s visa working party agreed that the deci-
sion would be taken by the Commission; it also agreed to clarify that the issue of
visas to seamen at the border would still be subject to prior consultation of other
Member States in the usual cases.70 The Mixed Committee meeting alongside
the JHA Council in December 2002 agreed to this text in principle, and the JHA
Council formally adopted Regulation 415/2003 in February 2003.
3 Legal Analysis
The main legal issue arising within the scope of EC visa policy has been the issue
of implementing powers. In practice, the question as to whether the Commis-
sion or the Council exercises these powers matters, because the Commission is
more likely to adopt an implementing decision that at least one Member States
disagrees with, especially where (as in the case of amending the CCI, associated
manuals and the Common Manual until 2005) the Council has limited itself to
67 For the agreed text, see Council doc. 14969/1/03, 21 Nov. 2003.
68 Council doc. 5015/02, 7 Jan. 2002. See Belgian comments in Council doc. 6324/02,
15 Feb. 2002.
69 See revised text in Council docs. 10883/02, 11 July 2002 and 11230/02, 16 Aug. 2002
(following the frontiers working party meetings on 28 May and 15 July 2002). On
specific German concerns, see Council doc. 9067/02, 22 May 2002.
70 See Council docs. 12477/02, 10 Oct. 2002 and 13382/02, 6 Nov. 2002.
212
taking implementing decisions by unanimity. It also matters because there is a

formal procedure for the Commission to take such decisions,71 which subjects the
Commission to a certain amount of public and parliamentary scrutiny.72 More-
over, where the “co-decision” procedure applies, as it has done for the issues of
visa conditions and the uniform visa from May 2004, the EP enjoys enhanced
scrutiny powers over Commission implementation. Its position would be even
further enhanced by proposed amendments to the comitology rules which would
set out a special procedure for cases where the Commission implements acts
adopted by the co-decision procedure, if these amendments are agreed.73
With this in mind, was the Court of Justice correct to accept the validity
of the Council Regulation conferring implementing powers upon itself ? It will
be recalled that the reasoning for this decision was “the sensitivity of this area,
in particular involving political relations with third countries”. But the most
politically sensitive issue is surely which third countries are subjected to visa
requirements, an issue addressed separately using one of the EC’s full legislative
procedures; the visa list is only included in the CCI for reference. Granted, the
rules concerning special “consultation” regarding particular third countries on
the visa list are probably equally if not more politically sensitive, but these rules
only comprise a small portion of the CCI. Other than that, of course all visa
rules have some impact on political relations with third states and some level
of sensitivity, but for example, does the technical update involving the Nordic
Member States or the creation of a harmonised application form really have a
significant impact on those political relations or represent a genuinely “sensi-
tive” decision? At no point did the Council undertake a proper examination of
the CCI rules to see whether each of them in fact met its criteria. Moreover, the
rules in the Common Manual on external border crossing, subjected to the same
rules by a parallel Regulation, have even less direct connection with political
relations with third states (except to the extent that they repeat the CCI rules). In
any event, it is doubtful whether the vague criterion of “sensitivity” is sufficient
to meet the Council’s obligation to give reasons for its decisions (imposed by
Article 253 EC); indeed, this was the ground on which the Advocate-General’s
April 2004 Opinion on the Commission’s annulment action argued for annul-
ment of the Council Regulations.
There are two more fundamental problems with the Council’s approach to
implementing powers. First of all, in some areas the Council has conferred power
on the Member States to amend the CCI. But Article 202 EC only provides for
the Council to confer implementing powers on the Commission or on itself; there
is no possibility at all to confer such powers upon Member States. Secondly, it
71 See Decision 1999/468, n. 16 above, replacing a 1987 Decision.

72 Having said that, in practice giving implementing powers to the Council is far more
transparent for the public, given the Council’s far superior register of documents.
73 COM (2002) 719, 11 Dec. 2002.
213
can be doubted whether the Council has powers to confer implementing powers
over the entire CCI to either the Commission or the Council. Some of the pro-
visions of the CCI arguably set out “essential elements” of the rules relating to
consideration of visa applications, and it has long been established that the such
basic elements of EC rules cannot be adopted by implementing measures, but
must be subject to the full legislative procedure.74 The distinction between legis-
lation and implementing rules became even more important after the EP gained
“co-decision” powers over the underlying legislative decisions from 1 May 2004.
It is possible that the original idea, noted above, of separating the “operative”
provisions of the CCI from the others might have met this test, but this idea was
for some reason dropped before the presentation of an official proposal.
In the view of the Court of Justice, the Council was justified in confer-
ring implementing powers upon itself even though the reasons for doing so
were “general and laconic”, because the issue had only recently come within
EC competence, was furthermore subject to a transitional decision-making
period, concerned clearly circumscribed matters and was due for review at the
end of the transitional period. Also, the Council was justified in conferring cer-
tain powers upon Member States because Member States had not automati-
cally lost the powers conferred upon them by provisions of the Schengen acquis
which permitted them to amend certain Schengen rules, so the Council could
confer powers to amend rules upon the Member States in the “quite specific and
transitional situation” applying before the Schengen rules were developed in the
Commuinity framework. Also, the Commission’s argument that some of those
provisions which Member States could amend unilaterally had an effect upon
other Member States was dismissed by the Court, on the grounds that the Com-
mission had not established why a uniform procedure was necessary to amend
those provisions.
The Court’s reasoning is, with the greatest respect, wholly unconvincing. On
the first point, it is not appropriate for the Court to insert additional reasoning
based on the “context” of the legislation to supplement the reasoning which the
Council inserted into the Regulations’ preambles. As to the specific reasons the
Court provides, many issues have come within Community competence for the
first time since the comitology provisions were inserted into the Treaty in 1987,
but this has never before been accepted (or asserted) as a reason to disapply the
normal rule that implementing powers must be conferred upon the Commis-
sion. Although there was a transitional period for Community decision-making,
Articles 67 and 68 EC make no mention of any derogation as regards comitol-
ogy rules; the better argument is that as exceptions from the Treaty rules should
be interpreted narrowly and the Member States had ample opportunity to insist
upon further derogations from EC rules besides those listed expressly in Articles
67 and 68, no further derogations from EC rules are permitted apart from those
74 See Case 25/70 Koster [1970] ECR 1161.
214
listed. A literal reading of the text based on the a contrario principle also sup-
ports this interpretation. Next, the derogation does not concern “clearly circum-
scribed matters” but, as the Court admits, nearly the whole of the CCI and the
Common Manual; while there are matters outside the scope of the derogation,
they are quite limited. As pointed out above, the Council conducted no analysis
to assess which issues were genuinely sensitive, particularly as compared to the
issue of which States to place on the visa list. Finally, as noted at the outset,
Council has not in fact conducted a review of the derogations as promised.
On the second point, there is nothing in the text of the EC Treaty or the
Schengen Protocol to suggest that a special rule could permit the Council to
confer powers upon Member States, rather than the Council or Commission.
Article 202 EC clearly appears exhaustive as regards the issue of implementing
powers and makes no suggestion that any further category of measures imple-
menting legislation exists. As for the Schengen Protocol, it expressly aims to
incorporate the Schengen acquis within the framework of the EC legal system
and states that the Schengen Executive Committee has been replaced by the
Council, not the Member States. The Court’s interpretation therefore clearly
violates both the text and context of the Protocol. Finally, the Court’s analysis
of the specific provisions referred to by the Commission transfers the burden of
proof to the Commission and places a high standard of proof upon it to suc-
ceed with its objections. But since the Council derogated from the Treaty rules
by inventing a wholly new system of implementing powers, it should bear the
burden of proving that such a decision was justified; and given the effect of the
relevant measures upon other Member States, the Treaty reference to powers
over a “uniform visa” and the need to harmonise the relevant law in connec-
tion with the abolition of internal border controls (as recognised by the Court
in its Wijsenbeek judgment),75 there is a very strong prima facie argument that
the Member States should not retain any unilateral power to amend any of the
relevant measures.
Next, the Decision requiring Member States to charge fees for visa appli-
cations raises some specific issues. The Commission argued when the Council
adopted this measure that Article 17 of the 1990 Schengen Convention only
refers to adoption of rules concerning charges for issuing visas, and so the Coun-
cil had to adopt a legislative measure dealing with this issue, not an implementing
measure.76 Since the Council expressly limited itself when adopting Regulation
789/2001 to conferring power on itself to adopt certain implementing measures
within the scope of Article 17 of the Convention, the Commission’s argument
appears to be well founded. Although the Commission did not sue to annul
the Council’s decision, it would be possible to challenge its validity through the
75 Case C-378/97 Wijsenbeek [1999] ECR I-6207.

76 Statement 211/01 (in monthly summary of Council acts for Dec. 2001: Council doc.
15585/01, 31 Jan. 2002).
215
national courts by challenging a decision to charge a fee for an application and

asking the final national court in that case to refer the matter to the Court of
Justice.
Moving on to the issue of the visa format, the Commission was logically
correct to argue that filling in the details on the format is a matter ancillary to
the visa format itself, not a matter to be addressed within more general visa
rules, as long as filling in the details is a purely technical exercise rather than a
decision about whether the conditions for issue of a visa are met. It follows that
the Council was wrong to keep such matters within the scope of Part VI of the
CCI.
Finally, are the Community’s powers over short-term visas in Article
62(2)(b) EC exhaustive or non-exhaustive? Because the Treaty uses the word
“including”, it appears clear that the list is a non-exhaustive list. This issue has
gained particular relevance after 1 May 2004, because in the absence of a Coun-
cil decision changing the rules for decision-making relating to these “residual”
powers, they will still be subject (unlike the listed powers concerning visas) to
unanimous voting in the Council and consultation of the EP after that date.
However, given the broad wording of the four specific powers, it seems unlikely
that the residual power will need to be used very often. For example, the creation
or further development of a Visa Identification System will obviously concern
the exercise of the EC’s power to adopt rules on the conditions and procedures
for issuing a visa, rather than the residual visa powers. This might also entail use
of the powers in Article 66 EC to adopt rules concerning administrative coop-
eration between Member States, but given the close connection of the planned
system with substantive decisions on issuing visas, and the inadequacy of Article
66 for adopting measures affecting the legal position of individuals,77 the legisla-
tion establishing it will certainly need a legal base relating to visas as well.
4 Comments
As noted at the outset of this Chapter, the rules on the issue of short-term visas
to individuals are an important part of the Community’s relations with develop-
ing countries and countries in transition. For those who can afford to visit the
Community as a tourist or who need to visit for family or business reasons, the
visa regime can be a significant financial, legal and technical barrier.78 If the
Community wants to take its commitment to development and its WTO com-
mitments seriously, it should ensure provision for a fair, coherent and efficient
visa regime. In fact, it can be argued that visas for family visits fall within the

78 On the practical difficulties, see Jileva, in Groenendijk, Guild and Minderhoud,
eds., In Search of Europe’s Borders (Kluwer, 2003) 273. For an analysis of national
litigation concerning the Schengen visa, see Staples, “Adjudicating the External
Schengen Border” idem., 215 at 225-229.
216
scope of Article 8 ECHR,79 with the result that Article 13 ECHR requires that
an effective remedy be available where there is an arguable case for issue of a visa
to maintain family links. The compatibility of the EC visa rules with interna-
tional non-discrimination obligations can also be doubted.80 Also, the Schengen
Executive Committee apparently never exercised its power to adopt common
rules on agreeing the Schengen “blacklist” of individuals, but it is essential in
order to secure effective protection for human rights and civil liberties that fair
and transparent rules on the operation of Article 96 of the Schengen Conven-
tion, including amendment of that provision of the Convention, should be
adopted.81
How should EC visa policy since the entry into force of the Treaty of
Amsterdam be judged in this context? It was initially thought that the existing
tangle of Schengen rules appearing in the main Convention and a variety of
secondary measures would be consolidated within a short period.82 But this has
not happened; the only consolidation has been brought about by the completion
of the common visa list and the Regulation on the issue of visas at the border.83
Moreover, this is the only area of immigration and asylum policy where the
Commission has not yet released a discussion paper intended to spark a full
public debate on the substance of the policy. Rather a Commission working
paper from 1999 concerned itself only with the technical questions of the scope
of various “legal bases” and the territorial scope of the visa rules.84 Such ques-
tions are legally and practically important, but somehow the Community insti-
tutions never asked themselves basic questions about the role and purpose of
visa policy, or even considered how to consolidate the existing measures into
79 The European Court of Human Rights has clearly confirmed that in some circum-
stances, a family member must be admitted to enter the territory: see Sen v Nether-
lands (judgment of 21 Dec. 2001, not yet reported). Logically it should follow that,
given the limited impact on Member States of granting a short-term visa for family
visits, Article 8 entails an obligation to issue visas in such cases. The Strasbourg
Court has not yet ruled on the issue one way or the other.
80 See Cholewinski, Borders and Discrimination in the European Union (ILPA/MPG,
2002), s. 1.3.2.
81 For detailed analysis, see Eicke, “Paradise Lost? Exclusion and Expulsion from the
EU” in Groenendijk, Guild and Minderhoud, eds., n. 76 above, 147 at 159-165 and
Colvin, The Schengen Information System: A Human Rights Audit (Justice, 2000).
On the limitations revealed by national litigation concerning the SIS, see Staples, n.
76 above at 229-233.
82 Kuiper, “Some Legal Problems Associated with the Communitarization of Policy
on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation
of the Schengen Acquis”, 37 CMLRev. (2000) 345 at 358.
83 On the first point, see Ch. 8.
84 SEC (1999) 1213, 16 July 1999.
217
a streamlined and improved text. For instance, it may be questioned whether

there is still any purpose to keeping Articles 9-17 of the Schengen Convention,
or whether they should be combined with the various secondary Schengen visa
policy measures, including the CCI and related manuals, into a transparent, con-
solidated and coherent code of legislative rules concerning the uniform visa and
the procedures and conditions for issuing it.85 This could be accompaned by
rules on appeals in visa cases and rules on compiling the Schengen “blacklist”,
including related appeal rights.86 In the absence of such rules, it can be argued
that the right to an effective remedy, part of the general principles of Commu-
nity law, requires Member States to ensure an effective right of appeal as regards
applications for visas, but it would obviously be preferable for the Council to set
out rules explicitly in legisation.
As to the content of visa policy measures since the adoption of the Treaty
of Amsterdam, if there is any trend arising from the limited measures adopted
to date, it is an swing towards agreeing measures relating to illegal entry. While
this is obviously an element of visa policy, a balanced visa policy must also takes
account of the human side of visas and the question of whether to facilitate the
issue of certain types of visas. The question of adequate and effective proce-
dural rights relating to visas is an essential part of such a policy. But so far EC
visa policy has not even managed to attempt a coherent approach to the subject,
never mind a balanced approach to the various aspects of the policy.
85 This would be consistent with the Commission proposal to recast the EU’s border
rules (see Ch. 7).
86 For example, see proposed Directive 2000/04 in The Amsterdam Proposals (ILPA/
MPG, 2000). The Commission has now proposed, in the context of establishing a
new generation of the Schengen Information System, more harmonised rules on
this issue, including appeal rights: COM (2005) 236, 31 May 2005.
218
Section III Asylum
Chapter 10 Responsibility for Applications for Asylum
1 Summary
Council Regulation 343/2003 establishing the criteria and mechanisms for
determining the Member State responsible for examining an asylum application
lodged in one of the Member States by a third country national was adopted
by Council on 18 February 2003. It entered into force on 17 March 2003 fol-
lowing publication in the Official Journal and was applicable to asylum applica-
tions from 1 September 2003. It should be read in conjunction with Commission
Regulation 1560/20031 which sets out the detailed rules for the application of
Regulation 343/2003. The UK and Ireland have opted into the Regulation, but
Denmark could not; relations between Denmark and the “old” Member States
are still governed by the Dublin Convention, although Denmark and all other
EC Member States have negotiated a treaty (not yet in force as of 1 January
2006) which will apply the Dublin II rules between them.2 Norway and Iceland
apply the Regulation pursuant to a treaty with the EC ratified in 2001,3 and
Switzerland will apply it pursuant to its own treaty with the Community (not yet
in force as of 1 January 2006).4
The Regulation replaced the Dublin Convention determining which
Member State was responsible for determining an asylum claim, and does not
1 COMMISSION REGULATION (EC) No 1560/2003 of 2 September 2003 laying

down detailed rules for the application of Council Regulation (EC) No 343/2003
establishing the criteria and mechanisms for determining the Member State respon-
sible for examining an asylum application lodged in one of the Member States by a
third-country national, OJ 2003 L222/3.
2 COM (2004) 594, Sep. 2004.
3 OJ 2001 L 93/38; in force 1 April 2001.
4 COM (2004) 593, Sep. 2004.
Section III – Asylum
apply to applications solely for subsidiary protection. It was adopted following a

proposal for the Regulation put forward by the Commission in July 2001.5
Under the Regulation Member States retain the power to return people to
third countries if their national laws so permit (Article 3(3)). For asylum appli-
cations submitted after 1 December 2007, this should presumably be understood
as a reference to the “safe third country” principle as harmonised by the Com-
munity’s asylum procedures Directive.6 Member States must inform the asylum
seeker in a language he or she may be reasonably expected to understand in writ-
ing of the application of Regulation and of time limits (Article 3(4)).
The Regulation makes a distinction in procedure between “taking charge”
and “taking back”. Taking charge refers to where the applicant for asylum has
not claimed asylum in any other Member State. Taking back refers to where the
applicant for asylum has claimed asylum in another Member State, whether or
not that claim has been determined.
There is a hierarchy of criteria according to which taking charge of an
asylum application will be determined. At the top of the hierarchy are claims
from minors where minors form part of a family. For unaccompanied minor
children the determining Member State will be the one where a family member
is legally present or, in the absence of any family members, where the unaccom-
panied minor makes his claim (Article 6). For asylum seekers who have a family
member who is recognised as a refugee, the determination will take place where
that family member is resident, if so desired by the asylum seeker (Article 7).
For asylum seekers who have a family member who awaits an initial decision on
the substance of their asylum claim in a Member State, determination will take
place where that family member is (Article 8). “Family member” is defined in the
Regulation and is confined broadly to parents and guardians of unaccompanied
minors and spouses and children of other asylum seekers.
Next in the hierarchy are holders of valid visas and residence document
holders. For asylum seekers with valid residence documents, whichever State
issued the document will determine the asylum claim (Article 9). For asylum
seekers with a valid visa, whichever State issued the visa will determine the asylum
claim unless the visa was issued when acting for or on the written authorisation
of another Member State. For asylum seekers with more than one valid visa or
residence document, responsibility is allocated in the following order:-
– The Member State which issued the longest residence document or where
the documents have the same length, the latest expiry date
– Where visas are of the same variety, the Member State which issued one
with last expiry date
– Where visas are of a different variety, the Member State which issued the
longest one or the one with last expiry date
5 COM (2001) 447, 26 July 2001; OJ 2001 C 304 E/192.

6 See Ch. 14.
222
Where the residence document or visa expired in the last 2 years or 6 months
respectively and this enabled the asylum seeker to enter the territory of a Member
State and he has not left the EC then the above criteria apply. Where the resi-
dence document or visa expired more than 2 years or 6 months ago respectively,
then it is the Member State in which the application is lodged which is respon-
sible. Visas or residence permits issued on false statements or invalid documents
do not prevent the criteria above from applying, unless fraud was committed
after the visa or residence permit was issued.
The next category relates to those who irregularly crossed borders (Article
10). Where an asylum seeker enters a Member State irregularly from a non-
Member State, that Member State will be responsible for the asylum applica-
tion. This responsibility ceases 12 months after entry. After this period or where
illegal entry cannot be established, if it can be shown that the person remained
in a Member State for 5 months or more then that Member State is responsible.
If a person has been living for 5 months in multiple Member States then it is the
last Member State in which he or she lived which is responsible.
Those with visa waivers are dealt with next in the hierarchy (Article 11). If
asylum seeker enters a Member State on a visa waiver, then that Member State
is responsible. If he or she applies for asylum in another State where visa waiver
is also applied then the latter Member State becomes responsible. Article 12
relates to those applicants who are in airports. Where an application is made
in an international transit area of an airport, that Member State is responsible.
Finally, the “default” responsibility rule, if none of the other criteria apply, is
that the Member State where the application is made is responsible for consider-
ing it (Article 13).
Article 14 relates to applications by family members made simultaneously
or close together. If family members make applications on the same date or
close enough together in the same Member State, then the Member State which
has received the most number of applications from the family members will
determine them all. Failing this, then the Member State which has received the
application of the oldest family member will determine the rest of the applica-
tions as well. Article 15 is a humanitarian clause. Even if a Member State is
not responsible under the criteria, it may bring together family members as well
as other dependent relatives on humanitarian grounds. More broadly, Article
3(2) permits a Member State in any case (humanitarian or not) to opt to take
responsibility for an asylum application which is not its responsibility under the
criteria. The procedure and time limits to be followed in a taking charge case are
laid down in Articles 16 to 19.
Article 4(5) states that an applicant for asylum who is present in one
Member State and makes an application for asylum there having withdrawn
an asylum application made in another Member State shall be taken back by
the latter Member State. The procedure for “taking back” an asylum applicant
are laid down in Article 20. Where the asylum seeker has lodged an application
223
in a Member State and it considers that another Member State is responsible

then the former Member State must request the latter Member State to take
back within 3 months. Where a request is made, the requesting Member State
can demand an urgent reply, giving at least one week to respond. Response to a
request for taking back must be given within 2 months. Where urgency has been
requested, in complex cases a response must be given at latest within 1 month.
Failure to respond to a request is tantamount to accepting it. Transfer must take
place within 6 months of the acceptance of the request except where there is
criminal conviction or absconding.
The Commission is required to report on the application of the Regulation
by 17 March 2006 (Article 28). It should be noted that any proposals to amend
the Regulation will, in accordance with Article 67(5) EC, be subject to a qualified
majority vote in the Council and co-decision with the European Parliament.

Following a discussion paper on the principles of the Dublin Convention in
March 2000 and an evaluation of the Dublin Convention in June 2001,7 the
Commission submitted a proposal for a Regulation on responsibility for
asylum-seekers in July 2001.8 The proposal, like the finally adopted Regulation,
is similar in structure to the Dublin Convention, although in several respects the
adopted Regulation is actually more similar to the Convention than the original
proposal was. The main changes which the Commission suggested making were
an expanded list of family members, application of the rules when an asylum-
seeker withdraws the application for asylum, four new criteria for assigning
responsibility (concerning unaccompanied minors, asylum-seeking family mem-
bers,9 “knowingly tolerated...unlawful presence” over two months and “unlaw-
fully” remaining for over six months). The new proposal also suggested a rule for
deciding responsibility where several members of a family submit applications
in different Member States; this was agreed unchanged in the final Regulation.
As for other provisions, the Commission suggested some amendments to the
“humanitarian clause” in the Convention, along with a ban on suspensive effect
of any challenge to a transfer decision and a transfer of implementing powers
from the “Executive Committee” set up by the Convention to the Commission.
7 See respectively SEC (2000) 522 of 21 March 2000 and SEC (2001) 756, 13 June
2001.
8 N. 2 above.
9 In the Commission’s proposal, this would only have applied fully to family members
in the “regular” procedure as defined in its initial proposal for a Directive on asylum
procedures (see Ch. 14).
224
The first meeting of the Council’s asylum working party to consider the
proposed Regulation was held in October 2001,10 and the working party was
able to complete a first reading of the entire text. A number of objections to the
proposal were raised, in particular as regards the application of the proposal to
all forms of international protection, the point at which the Regulation would
no longer apply, the definitions of “family members” and “visas”, a reference to
application of the “safe third country” principle (in this context, meaning coun-
tries outside the EU), and the application of the rules to persons who withdraw
their claims. As regards the responsibility criteria, at least one delegation argued
that the Member State responsible should be that in which an application was
lodged, and there were objections to every one of the proposed criteria listed by
the Commission. Furthermore, there were a number of detailed reservations on
the humanitarian clause and the procedural Chapter V, including on the aboli-
tion of the possible suspensive effect of an appeal against removal to another
Member State, which was considered “likely to give rise to problems in rela-
tion to” the European Convention on Human Rights (ECHR). On the final two
chapters, the only reservations concerned minor points related to data protec-
tion, certain bilateral agreements which would be permitted pursuant to Article
24(1)(c) of the original proposal, and the non-discrimination clause.
Subsequently, the Spanish Council Presidency convened a meeting of the
Council’s asylum working party in February 2002 to continue discussions based
on its proposed redraft of Articles 1-15 of the proposal, including the defini-
tions and responsibility criteria.11 The Presidency suggested six changes to the
Commission’s proposal. “Family members” would not include persons besides
spouses, unmarried partners or unmarried children, who would be minors (not
merely under eighteen); unmarried spouses would only be covered if they were
treated in the same way as spouses under immigration law. Secondly, an “appli-
cant” would be a person who had not yet been subject to a positive decision or
a negative decision allowing expulsion. Thirdly, the Regulation would require
Member States to “undertake to examine” an asylum application, reproduc-
ing the wording of the Dublin Convention. Fourthly, the proposed Article 4(3),
which would have purported to require Member States to apply the Regulation
even after a person withdrew all claims for Geneva Convention refugee status,
would be deleted.12 Fifthly, Article 8 of the proposal would apply a criterion
of family reunion with asylum-seekers in all forms of procedure, not just the
“normal” procedure for considering claims (although obviously the effect of
10 Council doc. 12501/01, 10 Oct. 2001 (outcome of proceedings on 1 and 2 Oct.

2001).
11 Council doc. 5623/02, 24 Jan. 2002.
12 This clause was in any event legally suspect since, according to the express wording
of Article 63(1) EC, a measure with the “legal base” of any part of that paragraph
can only concern Geneva Convention refugees or persons seeking that status.
225
this was reduced by the narrower definition of “family member”). Finally, the
proposed Article 10 (irregular border crossing) would be switched with the pro-
posed Article 11 (legal entry), so that the latter criterion would have priority over
the former, although these provisions were switched back some months later.
Intense efforts to agree the text during the Spanish Presidency culminated
in a discussion of the most intractable issues at the JHA Council in June 2002,
although this did not result in agreement on the text. During the spring discus-
sions in the working party,13 some Member States held out for a wider definition
of “family members”, at least in the context of some of the responsibility crite-
ria. Cross-references to the proposed directive on asylum procedures, now due to
be agreed later, were dropped. The obligation to examine an asylum application
was ultimately retained, and was joined by another Dublin Convention provi-
sion allowing Member States to send an applicant to a third country. However,
the dubious idea of applying the Regulation after withdrawal of a claim was
provisionally dropped (following attempts to resurrect a compromise version
of this principle), although some Member States were still holding out for its
retention.
As for the responsibility criteria, the Article on unaccompanied minors was
restricted to cases in which the family member of the minor was legally present.
However, a new provision provided that in the absence of a family member,
unaccompanied minors would have “applicant’s choice” of where to submit
their claim. Some Member States wanted to extend family reunion with family
members enjoying another form of protection. The “humanitarian clause” was
redrafted several times, but still disputed.
When discussions began on the subsequent chapters, it was agreed that
Member States should be granted discretion (as in the Dublin Convention) over
whether or not challenges to Dublin decisions should have suspensive effect,
although such effect could not be automatic, but applied only on a case-by-case
basis by courts or review bodies. A new clause defining time limits more precisely
was added. Furthermore, the provisions on non-discrimination and rules on
penalties to be applied by Member States were deleted. It was decided that many
of the detailed rules concerning proof and evidence presently found in imple-
menting Decisions of the Article 18 Committee (the intergovernmental commit-
tee which adopted implementing measures concerning the Dublin Convention)
would be integrated into the Regulation, with the result that they could only be
amended by the full legislative procedure,14 rather than adopted and amended
13 Council docs. 6344/02, 26 Feb. 2002; 6485/02, 26 Mar. 2002; 8207/02, 23 Apr. 2002;
8752/02, 17 May 2002; 9305/02, 28 May 2002; 9305/1/02, 28 May 2002; and room
docs asile 4/02, 14 Mar. 2002 and 10/02, 14 May 2002.
14 As noted above, following the insertion of Article 67(5) into the EC Treaty by the
Treaty of Nice, any amendments to the Regulation must be adopted by a qualified
226
by the Commission as implementing measures, although the Commission would

still retain that power for a number of other provisions in the Regulation.15
However, the most intractable disputes concerned the existence of, defi-
nition of and priority between the responsibility criteria in Articles 10-13 of
the Regulation (respectively concerning legal entry, irregular border crossing,
tolerated illegal stay and illegal presence) as well as the time limits for taking
back and taking charge and related matters. The JHA Council in June 2002 was
asked to consider the “unlawful presence” and “irregular border crossing” crite-
ria along with the order of priority of those criteria, possible exceptions from an
obligation to take back and time limits for taking charge or taking back.16 There
was a lengthy discussion which was apparently inconclusive. However, later that
month the Seville European Council urged the Council to adopt the Regulation
by the end of 2002, increasing the political pressure for an agreement..
It fell to the Danish Presidency to continue discussions at political level to
reach agreement. The Presidency began by suggesting a “safeguard clause” in
order to satisfy the concerns of southern Member States about the effect of the
Regulation on the number of asylum applications they would be responsible
for.17 The first version of this clause would permit Member States to request sus-
pension of the rules if their “share” of the total number of asylum-seekers in the
EU increased more than 35% above their share for the last three years. Under
the second version, a Member State could request a temporary suspension of
the Regulation if it “encounters great difficulties owing to a fundamental change
of the situation on which this Regulation is based”. However, it seemed that nei-
ther proposal satisfied the dissenting Member States, and so attention returned
to agreeing the main text of the Regulation. The Danes first approached this
task by holding meetings of an ad hoc drafting group in September 2002; this
group decided to drop the idea of a “safeguard” clause and merge the criteria
concerning irregular external border crossing, tolerated stay and unlawful stay.18
It also agreed on a number of procedural clauses and statements to be entered in
the Council minutes when the Regulation was adopted. But the key decisions on
how these criteria would apply, and in particular how long they would apply for,
majority vote in the Council with co-decision of the European Parliament (see fur-
ther Ch. 3).
15 An Italian attempt to keep the Dublin Convention’s Article 18 Committee in exis-
tence was rebuffed. This would clearly have been illegal: see Art. 202 EC, which
provides that implementing powers for EC legislation can be conferred on the Com-
mission or exceptionally the Council, not Member State officials.
16 Council docs. 9563/02, 3 June 2002 and 9563/1/02, 7 June 2002. For more detail, see
ILPA European Update, June 2002.
17 Council doc. 11139/02, 18 July 2002. For more detail, see ILPA European Update,
Sep. 2002.
18 Council doc. 12154/02, 20 Sep. 2002.
227
were left to the interior ministers meeting in the JHA Council. In the meantime,
the UK and French governments had settled a bilateral dispute over the San-
gatte refugee camp, thus rendering agreement on new rules more likely.
After further detailed and bitter negotiations in the October and Novem-
ber 2002 JHA Councils,19 the Danish Presidency produced a compromise text
that each Member State was reluctant to accept but which could not easily be
changed.20 To end the stand-off, the Presidency applied an obscure tactic known
as the “silent procedure”, which left Member States a week to decide if they were
willing to accept the text. It appeared that they were, and a “political agreement”
on this text was noted on 6 December 2002, followed by formal adoption of the
Regulation early in 2003.
During the final stages of negotiations, the idea of applying the rules to
withdrawn claims, strongly supported by the UK, was finally dropped. Secondly,
instead of adding four new criteria for responsibility, the Council only added
two, relating to unaccompanied minors (first criterion) and family reunion
with asylum-seekers (third criterion, following the Dublin I criterion for family
reunion with recognised refugees, which was ultimately unchanged). As noted
above, the criterion on crossing the border irregularly was ultimately supple-
mented by fiercely contested additional provisions terminating responsibility on
such grounds after twelve months and transferring responsibility in the event
of five months’ stay in the territory of a Member State. Next, the criterion con-
cerning the state responsible for controlling the entry of a non-visa national was
retained (despite the Commission’s initial proposal for amendments). A final
compromise was reached on a revised text of the old “humanitarian” clause,
which now focuses on family reunion alone. As for the procedural rules, the
Council split the difference between the leisurely periods for the application of
the Dublin Convention and the Commission’s proposal for significant shorten-
ing of those periods. Furthermore, the Council agreed that an electronic system
for sending requests between administrations, including proof of receipt of a
request, would be set up shortly. One can only imagine how many requests for a
transfer have been “lost in the post”.
There is no indication that the Council considered the EP’s proposals for
modest amendments in April 2002, which suggested that responsibility would
also apply where extended family could take care of unaccompanied minors, that
the “humanitarian clause” should cover extended family and that the exchange
of data should be more clearly limited.21
19 See Council docs. 12381/02, 30 Sep. 2002; 12616/02, 8 Oct. 2002; 13365/02, 23 Oct.
2002; 13596/02, 31 Oct. 2002; 13915/02, 8 Nov. 2002; 14330/02, 15 Nov. 2002; and
14651/02, 21 Nov. 2002.
20 Council doc. 14990/02, 29 Nov. 2002.
21 Plenary vote of 9 Apr. 2002 (OJ 2003 C 127 E/151).
228
3 Legal Analysis
The legal issues arising from the Regulation relate to its interrelationship with
the European Convention on Human Rights and its compatibility with the 1951
UN Geneva Convention on the Status of Refugees and other international
instruments. It is certainly arguable that the Regulation does not comply with
the ECHR, and in particular the obligation under Article 3 taken together with
Article 1 to secure rights within a Contracting State. Just as with the Dublin
Convention, an agreement between certain States which seeks to transfer a
person from one State to another without examination of the individual case,
will risk transferring that person in breach of the ECHR.
As the European Court of Human Rights observed in the case of T.I. v
United Kingdom22 “where States establish international organisations, or muta-
tis mutandis international agreements, to pursue co-operation in certain fields of
activities, there may be implications for the protection of fundamental rights. It
would be incompatible with the purpose and object of the Convention if Contract-
ing States were thereby absolved from their responsibility under the Convention in
relation to the field of activity covered by such attribution”.
For as long as there remains a difference in interpretation of international
refugee law amongst Member States of the European Union, it must be the case
that there is a risk that removal to one of the States with more restrictive inter-
pretation will lead to removal in breach of Article 3 ECHR.23
In addition, the lack of de facto family reunification rights for those who
have been granted subsidiary protection may constitute a breach of Article 8
ECHR.24 Finally, the failure to recognise the wishes of asylum applicants, their
social, cultural and other needs will inevitably act as a real barrier to their inte-
gration and contribution to their host States.
As regards other international human rights instruments, as observed below,
whilst the Geneva Convention envisages a degree of choice for applicants about
where to claim asylum, the Regulation does not. UNHCR Executive Committee
Conclusion 15 makes clear that an asylum applicant with close links or connec-
tions in a particular State should be allowed to claim asylum there.
22 7 March 2000.
23 With the adoption of the Refugee Definition Directive, Council Directive 2004/83/
EC, this risk is reduced or at least will be once the ECJ has had the opportunity of
ensuring uniform interpretation of concepts in that Directive
24 On this issue, see Peers, “EC law on family members of persons seeking or receiving
international protection”, in Shah, ed., The Challenge of Asylum to Legal Systems
(Cavendish, 2005).
229
4 Comments
4.1 General Comments
The Dublin Convention and its successor have been the subject of considerable
debate both amongst Member States and the wider public. The Commission’s
working paper entitled “Revisiting the Dublin Convention: developing Commu-
nity legislation for determining which Member State is responsible for considering
an asylum application submitted in one of the Member States” set out a number
of options for the successor to the Dublin Convention in terms of the criteria
to determine the State responsible for processing an asylum claim. The options
included continuing to tie responsibility for examining an asylum application
with responsibility for the applicant’s entry into the European Union or basing
the determination of an application on where it is in fact lodged.
However, when the Commission put forward its proposal for this Regula-
tion it did not take the opportunity to revise the criteria for determining respon-
sibility and that the proposed Regulation based on the same principles as the
Dublin Convention. This was of considerable disappointment to a number of
observers. The House of Lords’ Select Committee concluded that “serious con-
sideration should be given to the development of an alternative to Dublin”.25
The right to seek asylum contained in the Universal Declaration on Human
Rights is drastically undermined by a system which links allocation of responsi-
bility for asylum applications to responsibility for entry controls. This is because
such a system encourages individual Member States to prevent asylum appli-
cants from ever reaching their territory through an ever increasing variety of
control measures, including for example the extensive use of stringent sanctions
against carriers.26
Whilst the Commission’s proposal had offered an expanded definition of
“family member” to include persons with a blood relationship and in unmar-
ried relationships, the Regulation restricts family members to spouse, unmar-
ried partners where such relationships are recognised in domestic law and minor
children. This is not in keeping with the wider definition of family endorsed by
the European Court of Human Rights as well as UNHCR in its Handbook on
Procedures and Criteria for Determining Refugee Status. The Regulation fails to
take into account complex and wide concepts of “family” and de facto relation-
ships which exist in different cultures.
Article 3 refers to the general principles for determining which Member
State will be responsible for examining an asylum claim. It is notable that unlike
the Dublin Convention there is no reference in this provision to Member States’
international obligations. Clearly Member States are bound by their obligations
under international law, such as the European Convention on Human Rights
25 Paragraph 110 of the House of Lords Select Committee Report, 28 March 2002,
19th Report, Asylum Applications Who Decides? HL Papers 100
26 See Chapter 26 on Carrier Sanctions.
230
and the Convention against Torture, when they undertake to examine asylum
applications; such obligations are also sources of the general principles of Com-
munity law.
Article 3(2) replicates a similar provision in the Dublin Convention and
permits a Member State to derogate from the normal criteria and to examine
an asylum claim even if it is not that State’s responsibility to do so. This is an
important provision, which allows for derogation where humanitarian or other
concerns compel a State to consider an asylum application outside the normal
criteria for determining responsibility. However, in practice, the equivalent pro-
vision of the Dublin Convention was rarely invoked. This was due to the non-
binding nature of the provision, the lack of enforceability and in the lack of
guidance about appropriate cases for its application. It is notable that there is no
requirement to obtain the consent of the asylum applicant for derogation from
the normal criteria. Whilst the Commission in its explanatory memorandum to
the its proposal suggested that it is unnecessary to obtain such consent, since the
asylum application is lodged in the Member State concerned by the applicant,
it is a safeguard which nonetheless States should apply. An asylum applicant
may be compelled to lodge an asylum application for a number of reasons. This
might not preclude there being valid reasons for preferring the asylum applica-
tion to be considered in another Member State. Whilst such situation might be
thought to be rare, there is no empirical data to suggest that this is necessarily
so.
4.2 Hierarchy of Criteria for Taking Charge Cases

The provision makes as first priority the reunification of an unaccompanied
minor with family members. This provision is essential recognition of the vul-
nerability of refugee children and prioritisation of their needs. The guardian of
a minor shall be considered as a family member although the Regulation does
not in fact define “guardianship”. The provision must be applied flexibly so as to
ensure that where no blood relations are within the European Union, the minor
is able to be reunited with a person who is de facto responsible for the child.
Article 7 makes as next priority the reunification of family members where
one has been recognised as a refugee in one Member State. Again this provision
is an essential recognition of the importance of the need to maintain family ties
for asylum applicants. This will obviously have an impact upon the emotional,
social as well as economic support, which the asylum applicants will receive
during the often stressful and uncertain determination procedure. The restric-
tion of reunification Geneva Convention refugees rather than reunification of
family members where subsidiary protection has been granted arguably breaches
rights under Article 8 ECHR. There are a large number of people who for vari-
ous reasons accept subsidiary protection. They will still be able to provide sta-
bility and support to their family members who seek international protection.
Furthermore, their need and desire to maintain family unity will be exactly the
231
same as those recognised as refugees. A provision on this issue in the Regulation

would still have fallen within the scope of Article 63(1), since it would simply
have set out another criterion for allocating responsibility for applications for
recognition as a Geneva Convention refugee.
Article 8 provides for family reunification for those applicants whose family
members are themselves asylum applicants. However it should be noted that it
is restricted to those persons who have not yet received a first decision. Bear-
ing in mind the length of time the asylum procedure can take after first deci-
sion in Member States the prospect of minors being separated from their family
members for a long time still exists. The best interests of the child would not be
protected in accordance with the UN Convention on the Rights of the Child, to
which all Member States are signatories.
Articles 9 to 13 of the Regulation apply essentially the same criteria for
determining responsibility for examining an asylum application as are contained
in the Dublin Convention. These Articles seek to make the Member State which
permitted the asylum applicant to enter the European Union, or the Member
State which was responsible for the applicant’s entry or continued stay, respon-
sible for examining the asylum application. It is both regrettable and undesirable
that Member States are effectively punished for allowing asylum applicants to
enter the territory of the European Union. The increasing use of visas, carriers’
sanctions and other means for preventing asylum applicants from reaching the
territory of the European Union means that there are generally no lawful means
available to asylum applicants wishing to reach the European Union. Member
States with external borders should not be made to feel delinquent in their duties
as border guards for the Union merely because asylum applicants appear to have
passed into the Union through their State.
In any event, the persistence on the part of the European Union to stigma-
tise entry into the European Union in this way has the undesirable consequences
that as States on the fringes resort to ever more draconian methods of patrolling
external borders, so asylum applicants correspondingly have no choice but to
resort to more dangerous means in order to access the territory of the European
Union.
The Geneva Convention itself envisages a degree of applicant’s choice,27
and it is humane for applicants to be able to make their claim in a country
influenced by family, cultural or other social ties. Certainly in the UK there have
been numerous legal challenges to the operation of the Dublin Convention,
which should demonstrate that even where the asylum applicants do not resort
to making hazardous journeys or to the destruction of documentation, they
will make whatever legal challenges possible. The success of some of these chal-
lenges (certainly in the United Kingdom) indicates that courts recognise the con-
cerns of asylum applicants, are suspicious of national administrations and on
27 R v Uxbridge Magistrates’ Court, ex parte Adimi, [1999] 4 All ER 520.
232
occasions the legal approaches in other Member States. This tears apart the soli-
darity of the Community and will ultimately undermine the “harmonisation”
process envisaged by the Tampere European Council. This will remain the case
even with the adoption of various measures including the Refugee definition
Directive,28 since it is likely that there will emerge a divergence in application and
interpretation of that Directive until the European Court of Justice definitively
rules on the correct interpretation of all controversial aspects of the Directive.
This may take some time to achieve as long as only the final courts of Member
States can send questions on EC asylum legislation to the Court. Member States
have proven in the past to be deeply wedded to existing law and practice relating
to refugees and asylum seekers, and it will take a considerable shift in mindset
for States to adopt a uniform and harmonised approach.
The experience from the operation of the Dublin Convention demonstrates
that in practice only a small number of asylum applicants are in fact transferred
to another Member State. Thus the Regulation relates to an extremely small
proportion of asylum applications in any event. However, the cost of operating
such system is disproportionately high.
Apart from the general observations that one might make about the Regula-
tion’s criteria, there are a number of other points in relation to enforcement and
interpretation that arise in respect of the criteria. Article 10 refers to the irregu-
lar crossing of borders into a Member State of the European Union and circum-
stances where the applicant has been “living” on the territory of a Member State
in order to determine responsibility. Experience of the operation of the Dublin
Convention demonstrates that it is extremely difficult to prove that a person has
been present in another Member State unless that Member State has properly
recorded their presence. Undoubtedly it is envisaged that the operation of Euro-
dac will facilitate this. However, the first two years of the operation of Eurodac
suggests that the incentive for those States at the borders of the EU to avoid
recording the presence or entry of the asylum applicants remains.29 Again it will
be extremely difficult for one Member State to prove that another Member State
that a person has been living on its territory without authorisation, because
invariably this would have been outside legal frameworks and systems of con-
trol. This will inevitably lead to distrust between Member States.
Article 13 provides that where no Member State responsible for examining
the asylum application can be designated it is the first Member State in which
the asylum application is lodged which should be responsible for examining it.
Unlike the preceding criteria, this should be less bureaucratic and therefore more
straightforward to apply.
Article 15, which sees the retention of the humanitarian clause from the
Dublin Convention, is welcome. However as with the Dublin Convention the
28 Council Directive 2004/83/EC.

29 See Ch. 11.
233
effectiveness of this provision is almost nullified by its lack of enforceability and

the discretionary nature of its application by Member States.30 Experience of the
Dublin Convention was that Member States are reluctant to apply the humani-
tarian clause. Detailed rules on the application of the humanitarian clause are
set out in Regulation 1560/2003.31 These rules mainly refer to the circumstances
in which family unity should be preserved.
4.3 Procedure
Chapter V is concerned with the procedure and time limits for taking charge and
taking back. The shorter time periods for requests and taking back than existed
under the Dublin Convention were seen as essential by Member States which
considered that delay was a main cause of ineffectiveness of the Dublin Con-
vention.32 There are foreseeable problems particularly in relation to the deemed
responsibility provisions in Article 18(7) which makes failure to act “tantamount
to accepting the request”. They may result in the bouncing of asylum applicants
from one Member State to another where a Member State is deemed to accept
responsibility in the absence of any decision or indeed a person being excluded
from the asylum system of any Member State altogether, thus compromising
the right to claim asylum protected by the Universal Declaration of Human
Rights.
4.4 Taking Back Cases

The procedure applicable in taking back cases is plainly very truncated. The
difficulty for applicants and their representatives will often be that it is unclear
whether an asylum claimant’s application has been made properly and accepted
in a Member State, particularly if the asylum claimant leaves that Member State
shortly after arrival and moves onto another Member State. It is of extreme
concern that there is no ability for an asylum application to be considered in
a second Member State for humanitarian reasons in a taking back case. In the
case of an unaccompanied minor for instance there may be strong reasons why
the minor should be able to remain in the second Member State, particularly if
responsible adult family members are present there and if the first Member State
has not even concluded the asylum determination process.
The final area of concern relates to the ability of Member States to retain
the right, pursuant to its national laws (or in future, the EC asylum procedures
30 See for instance, the UK Court of Appeal case of R (on the application of G) v
Secretary of State for the Home Department [2005] EWCA Civ 546.
31 Article 11 of Regulation 1560/2003.
32 In the UK, the Court of Appeal has ruled that the failure to comply with time limits
by a sending State does not create any rights or remedies for the individual asylum
seeker, Mohammed Abdi Omar v Secretary of State for the Home Department [2005]
EWCA Civ 285.
234
Directive), to send an asylum seeker to a third country (Article 3(3)). This pro-
vision implicitly permits Member States to enter into readmission agreements
with non-EU countries. There is obvious concern that any such agreements are
not a mechanism to circumvent an asylum applicant’s procedural rights. The
increasing use of readmission agreements will inevitably increase the risks of
refoulement in breach of obligations under the Geneva Convention, particularly
due to the weakness of mechanisms to ensure that such obligations are met.
235
Council Regulation (EC) No 343/2003

of 18 February 2003
establishing the criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged
in one of the Member States by a third-country national
(OJ 2003 L 50/1)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in par-
ticular Article 63, first paragraph, point (1)(a),
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Having regard to the opinion of the European Economic and Social Commit-
tee,
Whereas:
(1) A common policy on asylum, including a Common European Asylum

System, is a constituent part of the European Union’s objective of progres-
sively establishing an area of freedom, security and justice open to those
who, forced by circumstances, legitimately seek protection in the Commu-
nity.
(2) The European Council, at its special meeting in Tampere on 15 and 16

October 1999, agreed to work towards establishing a Common European
Asylum System, based on the full and inclusive application of the Geneva
Convention relating to the Status of Refugees of 28 July 1951, as supple-
mented by the New York Protocol of 31 January 1967, thus ensuring that
nobody is sent back to persecution, i.e. maintaining the principle of non-
refoulement. In this respect, and without affecting the responsibility criteria
laid down in this Regulation, Member States, all respecting the principle of
non-refoulement, are considered as safe countries for third-country nation-
als.
(3) The Tampere conclusions also stated that this system should include, in the
short term, a clear and workable method for determining the Member State
responsible for the examination of an asylum application.
(4) Such a method should be based on objective, fair criteria both for the
Member States and for the persons concerned. It should, in particular,
236
make it possible to determine rapidly the Member State responsible, so as to

guarantee effective access to the procedures for determining refugee status
and not to compromise the objective of the rapid processing of asylum
applications.
(5) As regards the introduction in successive phases of a common European

asylum system that should lead, in the longer term, to a common proce-
dure and a uniform status, valid throughout the Union, for those granted
asylum, it is appropriate at this stage, while making the necessary improve-
ments in the light of experience, to confirm the principles underlying the
Convention determining the State responsible for examining applications
for asylum lodged in one of the Member States of the European Commu-
nities(4), signed in Dublin on 15 June 1990 (hereinafter referred to as the
Dublin Convention), whose implementation has stimulated the process of
harmonising asylum policies.
(6) Family unity should be preserved in so far as this is compatible with the
other objectives pursued by establishing criteria and mechanisms for deter-
mining the Member State responsible for examining an asylum applica-
tion.
(7) The processing together of the asylum applications of the members of one
family by a single Member State makes it possible to ensure that the appli-
cations are examined thoroughly and the decisions taken in respect of them
are consistent. Member States should be able to derogate from the respon-
sibility criteria, so as to make it possible to bring family members together
where this is necessary on humanitarian grounds.
(8) The progressive creation of an area without internal frontiers in which free
movement of persons is guaranteed in accordance with the Treaty establish-
ing the European Community and the establishment of Community poli-
cies regarding the conditions of entry and stay of third country nationals,
including common efforts towards the management of external borders,
makes it necessary to strike a balance between responsibility criteria in a
spirit of solidarity.
(9) The application of this Regulation can be facilitated, and its effectiveness
increased, by bilateral arrangements between Member States for improving
communications between competent departments, reducing time limits for
procedures or simplifying the processing of requests to take charge or take
back, or establishing procedures for the performance of transfers.
237
(10) Continuity between the system for determining the Member State respon-
sible established by the Dublin Convention and the system established by
this Regulation should be ensured. Similarly, consistency should be ensured
between this Regulation and Council Regulation (EC) No 2725/2000 of 11
December 2000 concerning the establishment of “Eurodac” for the com-
parison of fingerprints for the effective application of the Dublin Conven-
tion.
(11) The operation of the Eurodac system, as established by Regulation (EC)

No 2725/2000 and in particular the implementation of Articles 4 and 8
contained therein should facilitate the implementation of this Regulation.
(12) With respect to the treatment of persons falling within the scope of this
Regulation, Member States are bound by obligations under instruments of
international law to which they are party.
(13) The measures necessary for the implementation of this Regulation should
be adopted in accordance with Council Decision 1999/468/EC of 28 June
1999 laying down the procedures for the exercise of implementing powers
conferred on the Commission.
(14) The application of the Regulation should be evaluated at regular intervals.
(15) The Regulation observes the fundamental rights and principles which are
acknowledged in particular in the Charter of Fundamental Rights of the
European Union. In particular, it seeks to ensure full observance of the
right to asylum guaranteed by Article 18.
(16) Since the objective of the proposed measure, namely the establishment of
criteria and mechanisms for determining the Member State responsible for
examining an asylum application lodged in one of the Member States by
a third-country national, cannot be sufficiently achieved by the Member
States and, given the scale and effects, can therefore be better achieved at
Community level, the Community may adopt measures in accordance with
the principle of subsidiarity as set out in Article 5 of the Treaty. In accor-
dance with the principle of proportionality, as set out in that Article, this
Regulation does not go beyond what is necessary in order to achieve that
objective.
(17) In accordance with Article 3 of the Protocol on the position of the United
Kingdom and Ireland, annexed to the Treaty on European Union and to
the Treaty establishing the European Community, the United Kingdom
238
and Ireland gave notice, by letters of 30 October 2001, of their wish to take
part in the adoption and application of this Regulation.
(18) In accordance with Articles 1 and 2 of the Protocol on the position of

Denmark, annexed to the Treaty on European Union and to the Treaty
establishing the European Community, Denmark does not take part in the
adoption of this Regulation and is not bound by it nor subject to its appli-
cation.
(19) The Dublin Convention remains in force and continues to apply between
Denmark and the Member States that are bound by this Regulation until
such time an agreement allowing Denmark’s participation in the Regula-
tion has been concluded,
HAS ADOPTED THIS REGULATION:
CHAPTER I
SUBJECT-MATTER AND DEFINITIONS
Article 1
This Regulation lays down the criteria and mechanisms for determining the
Member State responsible for examining an application for asylum lodged in
one of the Member States by a third-country national.
Article 2
For the purposes of this Regulation:

(a) “third-country national” means anyone who is not a citizen of the Union
within the meaning of Article 17(1) of the Treaty establishing the Euro-
pean Community;
(b) “Geneva Convention” means the Convention of 28 July 1951 relating to
the status of refugees, as amended by the New York Protocol of 31 January
1967;
(c) “application for asylum” means the application made by a third-country
national which can be understood as a request for international protection
from a Member State, under the Geneva Convention. Any application for
international protection is presumed to be an application for asylum, unless
a third-country national explicitly requests another kind of protection that
can be applied for separately;
(d) “applicant” or “asylum seeker” means a third country national who has
made an application for asylum in respect of which a final decision has not
yet been taken;
239
(e) “examination of an asylum application” means any examination of, or

decision or ruling concerning, an application for asylum by the competent
authorities in accordance with national law except for procedures for deter-
mining the Member State responsible in accordance with this Regulation;
(f) “withdrawal of the asylum application” means the actions by which the
applicant for asylum terminates the procedures initiated by the submission
of his application for asylum, in accordance with national law, either explic-
itly or tacitly;
(g) “refugee” means any third-country national qualifying for the status defined
by the Geneva Convention and authorised to reside as such on the territory
of a Member State;
(h) “unaccompanied minor” means unmarried persons below the age of eigh-
teen who arrive in the territory of the Member States unaccompanied by
an adult responsible for them whether by law or by custom, and for as long
as they are not effectively taken into the care of such a person; it includes
minors who are left unaccompanied after they have entered the territory of
the Member States;
(i) “family members” means insofar as the family already existed in the coun-
try of origin, the following members of the applicant’s family who are pres-
ent in the territory of the Member States:
(i) the spouse of the asylum seeker or his or her unmarried partner in a
stable relationship, where the legislation or practice of the Member
State concerned treats unmarried couples in a way comparable to mar-
ried couples under its law relating to aliens;
(ii) the minor children of couples referred to in point (i) or of the
applicant, on condition that they are unmarried and dependent and
regardless of whether they were born in or out of wedlock or adopted
as defined under the national law;
(iii) the father, mother or guardian when the applicant or refugee is a minor
and unmarried;
(j) “residence document” means any authorisation issued by the authorities
of a Member State authorising a third-country national to stay in its terri-
tory, including the documents substantiating the authorisation to remain in
the territory under temporary protection arrangements or until the circum-
stances preventing a removal order from being carried out no longer apply,
with the exception of visas and residence authorisations issued during the
period required to determine the responsible Member State as established
in this Regulation or during examination of an application for asylum or an
application for a residence permit;
(k) “visa” means the authorisation or decision of a Member State required
for transit or entry for an intended stay in that Member State or in several
Member States. The nature of the visa shall be determined in accordance
with the following definitions:
240
(i) “long-stay visa” means the authorisation or decision of a Member

State required for entry for an intended stay in that Member State of
more than three months;
(ii) “short-stay visa” means the authorisation or decision of a Member
State required for entry for an intended stay in that State or in several
Member States for a period whose total duration does not exceed three
months;
(iii) “transit visa” means the authorisation or decision of a Member State
for entry for transit through the territory of that Member State or sev-
eral Member States, except for transit at an airport;
(iv) “airport transit visa” means the authorisation or decision allowing a
third-country national specifically subject to this requirement to pass
through the transit zone of an airport, without gaining access to the
national territory of the Member State concerned, during a stopover
or a transfer between two sections of an international flight.
CHAPTER II
GENERAL PRINCIPLES
Article 3
1. Member States shall examine the application of any third-country national

who applies at the border or in their territory to any one of them for asylum.
The application shall be examined by a single Member State, which shall be
the one which the criteria set out in Chapter III indicate is responsible.
2. By way of derogation from paragraph 1, each Member State may examine

an application for asylum lodged with it by a third-country national, even if
such examination is not its responsibility under the criteria laid down in this
Regulation. In such an event, that Member State shall become the Member
State responsible within the meaning of this Regulation and shall assume
the obligations associated with that responsibility. Where appropriate, it
shall inform the Member State previously responsible, the Member State
conducting a procedure for determining the Member State responsible or
the Member State which has been requested to take charge of or take back
the applicant.
3. Any Member State shall retain the right, pursuant to its national laws, to
send an asylum seeker to a third country, in compliance with the provisions
of the Geneva Convention.
241
4. The asylum seeker shall be informed in writing in a language that he or she

may reasonably be expected to understand regarding the application of this
Regulation, its time limits and its effects.
Article 4
1. The process of determining the Member State responsible under this Regu-
lation shall start as soon as an application for asylum is first lodged with a
Member State.
2. An application for asylum shall be deemed to have been lodged once a form
submitted by the applicant for asylum or a report prepared by the authori-
ties has reached the competent authorities of the Member State concerned.
Where an application is not made in writing, the time elapsing between the
statement of intention and the preparation of a report should be as short
as possible.
3. For the purposes of this Regulation, the situation of a minor who is accom-
panying the asylum seeker and meets the definition of a family member
set out in Article 2, point (i), shall be indissociable from that of his parent
or guardian and shall be a matter for the Member State responsible for
examining the application for asylum of that parent or guardian, even if
the minor is not individually an asylum seeker. The same treatment shall be
applied to children born after the asylum seeker arrives in the territory of
the Member States, without the need to initiate a new procedure for taking
charge of them.
4. Where an application for asylum is lodged with the competent authori-

ties of a Member State by an applicant who is in the territory of another
Member State, the determination of the Member State responsible shall
be made by the Member State in whose territory the applicant is present.
The latter Member State shall be informed without delay by the Member
State which received the application and shall then, for the purposes of this
Regulation, be regarded as the Member State with which the application for
asylum was lodged.
The applicant shall be informed in writing of this transfer and of the date
on which it took place.
5. An asylum seeker who is present in another Member State and there lodges
an application for asylum after withdrawing his application during the
process of determining the Member State responsible shall be taken back,
under the conditions laid down in Article 20, by the Member State with
242
which that application for asylum was lodged, with a view to completing
the process of determining the Member State responsible for examining the
application for asylum.
This obligation shall cease, if the asylum seeker has in the meantime left the
territories of the Member States for a period of at least three months or has
obtained a residence document from a Member State.
CHAPTER III
HIERARCHY OF CRITERIA
Article 5
1. The criteria for determining the Member State responsible shall be applied
in the order in which they are set out in this Chapter.
2. The Member State responsible in accordance with the criteria shall be

determined on the basis of the situation obtaining when the asylum seeker
first lodged his application with a Member State.
Article 6
Where the applicant for asylum is an unaccompanied minor, the Member State
responsible for examining the application shall be that where a member of his
or her family is legally present, provided that this is in the best interest of the
minor.
In the absence of a family member, the Member State responsible for examining
the application shall be that where the minor has lodged his or her application
for asylum.
Article 7
Where the asylum seeker has a family member, regardless of whether the family
was previously formed in the country of origin, who has been allowed to reside
as a refugee in a Member State, that Member State shall be responsible for exam-
ining the application for asylum, provided that the persons concerned so desire.
Article 8
If the asylum seeker has a family member in a Member State whose application
has not yet been the subject of a first decision regarding the substance, that
243
Member State shall be responsible for examining the application for asylum,
provided that the persons concerned so desire.
Article 9
1. Where the asylum seeker is in possession of a valid residence document, the

Member State which issued the document shall be responsible for examin-
ing the application for asylum.
2. Where the asylum seeker is in possession of a valid visa, the Member State
which issued the visa shall be responsible for examining the application
for asylum, unless the visa was issued when acting for or on the written
authorisation of another Member State. In such a case, the latter Member
State shall be responsible for examining the application for asylum. Where
a Member State first consults the central authority of another Member
State, in particular for security reasons, the latter’s reply to the consultation
shall not constitute written authorisation within the meaning of this provi-
sion.
3. Where the asylum seeker is in possession of more than one valid residence
document or visa issued by different Member States, the responsibility for
examining the application for asylum shall be assumed by the Member
States in the following order:
(a) the Member State which issued the residence document conferring the
right to the longest period of residency or, where the periods of valid-
ity are identical, the Member State which issued the residence docu-
ment having the latest expiry date;
(b) the Member State which issued the visa having the latest expiry date
where the various visas are of the same type;
(c) where visas are of different kinds, the Member State which issued the
visa having the longest period of validity, or, where the periods of
validity are identical, the Member State which issued the visa having
the latest expiry date.
4. Where the asylum seeker is in possession only of one or more residence

documents which have expired less than two years previously or one or
more visas which have expired less than six months previously and which
enabled him actually to enter the territory of a Member State, paragraphs
1, 2 and 3 shall apply for such time as the applicant has not left the territo-
ries of the Member States.
Where the asylum seeker is in possession of one or more residence docu-

ments which have expired more than two years previously or one or more
244
visas which have expired more than six months previously and enabled him
actually to enter the territory of a Member State and where he has not left
the territories of the Member States, the Member State in which the appli-
cation is lodged shall be responsible.
5. The fact that the residence document or visa was issued on the basis of a
false or assumed identity or on submission of forged, counterfeit or invalid
documents shall not prevent responsibility being allocated to the Member
State which issued it. However, the Member State issuing the residence doc-
ument or visa shall not be responsible if it can establish that a fraud was
committed after the document or visa had been issued.
Article 10
1. Where it is established, on the basis of proof or circumstantial evidence

as described in the two lists mentioned in Article 18(3), including the data
referred to in Chapter III of Regulation (EC) No 2725/2000, that an asylum
seeker has irregularly crossed the border into a Member State by land, sea
or air having come from a third country, the Member State thus entered
shall be responsible for examining the application for asylum. This respon-
sibility shall cease 12 months after the date on which the irregular border
crossing took place.
2. When a Member State cannot or can no longer be held responsible in

accordance with paragraph 1, and where it is established, on the basis of
proof or circumstantial evidence as described in the two lists mentioned
in Article 18(3), that the asylum seeker – who has entered the territories
of the Member States irregularly or whose circumstances of entry cannot
be established – at the time of lodging the application has been previously
living for a continuous period of at least five months in a Member State,
that Member State shall be responsible for examining the application for
asylum.
If the applicant has been living for periods of time of at least five months in
several Member States, the Member State where this has been most recently
the case shall be responsible for examining the application.
Article 11
1. If a third-country national enters into the territory of a Member State in

which the need for him or her to have a visa is waived, that Member State
shall be responsible for examining his or her application for asylum.
245
2. The principle set out in paragraph 1 does not apply, if the third-country
national lodges his or her application for asylum in another Member State,
in which the need for him or her to have a visa for entry into the territory
is also waived. In this case, the latter Member State shall be responsible for
examining the application for asylum.
Article 12
Where the application for asylum is made in an international transit area of an

airport of a Member State by a third-country national, that Member State shall
be responsible for examining the application.
Article 13
Where no Member State responsible for examining the application for asylum
can be designated on the basis of the criteria listed in this Regulation, the first
Member State with which the application for asylum was lodged shall be respon-
sible for examining it.
Article 14
Where several members of a family submit applications for asylum in the same
Member State simultaneously, or on dates close enough for the procedures for
determining the Member State responsible to be conducted together, and where
the application of the criteria set out in this Regulation would lead to them
being separated, the Member State responsible shall be determined on the basis
of the following provisions:
(a) responsibility for examining the applications for asylum of all the members
of the family shall lie with the Member State which the criteria indicate is
responsible for taking charge of the largest number of family members;
(b) failing this, responsibility shall lie with the Member State which the criteria
indicate is responsible for examining the application of the oldest of them.
CHAPTER IV
HUMANITARIAN CLAUSE
Article 15
1. Any Member State, even where it is not responsible under the criteria set
out in this Regulation, may bring together family members, as well as
other dependent relatives, on humanitarian grounds based in particular on
family or cultural considerations. In this case that Member State shall, at
246
the request of another Member State, examine the application for asylum
of the person concerned. The persons concerned must consent.
2. In cases in which the person concerned is dependent on the assistance of the

other on account of pregnancy or a new-born child, serious illness, severe
handicap or old age, Member States shall normally keep or bring together
the asylum seeker with another relative present in the territory of one of the
Member States, provided that family ties existed in the country of origin.
3. If the asylum seeker is an unaccompanied minor who has a relative or rela-

tives in another Member State who can take care of him or her, Member
States shall if possible unite the minor with his or her relative or relatives,
unless this is not in the best interests of the minor.
4. Where the Member State thus approached accedes to the request, responsi-
bility for examining the application shall be transferred to it.
5. The conditions and procedures for implementing this Article including,

where appropriate, conciliation mechanisms for settling differences between
Member States concerning the need to unite the persons in question, or the
place where this should be done, shall be adopted in accordance with the
procedure referred to in Article 27(2).
CHAPTER V
TAKING CHARGE AND TAKING BACK
Article 16
1. The Member State responsible for examining an application for asylum

under this Regulation shall be obliged to:
(a) take charge, under the conditions laid down in Articles 17 to 19, of an
asylum seeker who has lodged an application in a different Member
State;
(b) complete the examination of the application for asylum;
(c) take back, under the conditions laid down in Article 20, an applicant
whose application is under examination and who is in the territory of
another Member State without permission;
(d) take back, under the conditions laid down in Article 20, an applicant
who has withdrawn the application under examination and made an
application in another Member State;
(e) take back, under the conditions laid down in Article 20, a third-coun-
try national whose application it has rejected and who is in the terri-
tory of another Member State without permission.
247
2. Where a Member State issues a residence document to the applicant, the

obligations specified in paragraph 1 shall be transferred to that Member
State.
3. The obligations specified in paragraph 1 shall cease where the third-coun-

try national has left the territory of the Member States for at least three
months, unless the third-country national is in possession of a valid resi-
dence document issued by the Member State responsible.
4. The obligations specified in paragraph 1(d) and (e) shall likewise cease once
the Member State responsible for examining the application has adopted
and actually implemented, following the withdrawal or rejection of the
application, the provisions that are necessary before the third-country
national can go to his country of origin or to another country to which he
may lawfully travel.
Article 17
1. Where a Member State with which an application for asylum has been
lodged considers that another Member State is responsible for examining
the application, it may, as quickly as possible and in any case within three
months of the date on which the application was lodged within the mean-
ing of Article 4(2), call upon the other Member State to take charge of the
applicant.
Where the request to take charge of an applicant is not made within

the period of three months, responsibility for examining the application
for asylum shall lie with the Member State in which the application was
lodged.
2. The requesting Member State may ask for an urgent reply in cases where
the application for asylum was lodged after leave to enter or remain was
refused, after an arrest for an unlawful stay or after the service or execution
of a removal order and/or where the asylum seeker is held in detention.
The request shall state the reasons warranting an urgent reply and the
period within which a reply is expected. This period shall be at least one
week.
3. In both cases, the request that charge be taken by another Member State
shall be made using a standard form and including proof or circumstantial
evidence as described in the two lists mentioned in Article 18(3) and/or rel-
evant elements from the asylum seeker’s statement, enabling the authorities
248
of the requested Member State to check whether it is responsible on the

basis of the criteria laid down in this Regulation.
The rules on the preparation of and the procedures for transmitting requests
shall be adopted in accordance with the procedure referred to in Article
27(2).
Article 18
1. The requested Member State shall make the necessary checks, and shall
give a decision on the request to take charge of an applicant within two
months of the date on which the request was received.
2. In the procedure for determining the Member State responsible for examin-
ing the application for asylum established in this Regulation, elements of
proof and circumstantial evidence shall be used.
3. In accordance with the procedure referred to in Article 27(2) two lists shall
be established and periodically reviewed, indicating the elements of proof
and circumstantial evidence in accordance with the following criteria:
(a) Proof:
(i) This refers to formal proof which determines responsibility pur-
suant to this Regulation, as long as it is not refuted by proof to
the contrary.
(ii) The Member States shall provide the Committee provided for in
Article 27 with models of the different types of administrative
documents, in accordance with the typology established in the list
of formal proofs.
(b) Circumstantial evidence:
(i) This refers to indicative elements which while being refutable may
be sufficient, in certain cases, according to the evidentiary value
attributed to them.
(ii) Their evidentiary value, in relation to the responsibility for exam-
ining the application for asylum shall be assessed on a case-by-
case basis.
4. The requirement of proof should not exceed what is necessary for the
proper application of this Regulation.
5. If there is no formal proof, the requested Member State shall acknowledge

its responsibility if the circumstantial evidence is coherent, verifiable and
sufficiently detailed to establish responsibility.
249
6. Where the requesting Member State has pleaded urgency, in accordance

with the provisions of Article 17(2), the requested Member State shall make
every effort to conform to the time limit requested. In exceptional cases,
where it can be demonstrated that the examination of a request for taking
charge of an applicant is particularly complex, the requested Member State
may give the reply after the time limit requested, but in any case within one
month. In such situations the requested Member State must communicate
its decision to postpone a reply to the requesting Member State within the
time limit originally requested.
7. Failure to act within the two-month period mentioned in paragraph 1 and

the one-month period mentioned in paragraph 6 shall be tantamount to
accepting the request, and entail the obligation to take charge of the person,
including the provisions for proper arrangements for arrival.
Article 19
1. Where the requested Member State accepts that it should take charge of
an applicant, the Member State in which the application for asylum was
lodged shall notify the applicant of the decision not to examine the appli-
cation, and of the obligation to transfer the applicant to the responsible
Member State.
2. The decision referred to in paragraph 1 shall set out the grounds on which
it is based. It shall contain details of the time limit for carrying out the
transfer and shall, if necessary, contain information on the place and date
at which the applicant should appear, if he is travelling to the Member State
responsible by his own means. This decision may be subject to an appeal or
a review. Appeal or review concerning this decision shall not suspend the
implementation of the transfer unless the courts or competent bodies so
decide on a case by case basis if national legislation allows for this.
3. The transfer of the applicant from the Member State in which the applica-
tion for asylum was lodged to the Member State responsible shall be carried
out in accordance with the national law of the first Member State, after
consultation between the Member States concerned, as soon as practically
possible, and at the latest within six months of acceptance of the request
that charge be taken or of the decision on an appeal or review where there
is a suspensive effect.
If necessary, the asylum seeker shall be supplied by the requesting Member

State with a laissez passer of the design adopted in accordance with the
250
The Member State responsible shall inform the requesting Member State,
as appropriate, of the safe arrival of the asylum seeker or of the fact that he
did not appear within the set time limit.
4. Where the transfer does not take place within the six months’ time limit,
responsibility shall lie with the Member State in which the application for
asylum was lodged. This time limit may be extended up to a maximum of
one year if the transfer could not be carried out due to imprisonment of the
asylum seeker or up to a maximum of eighteen months if the asylum seeker
absconds.
5. Supplementary rules on carrying out transfers may be adopted in accor-

dance with the procedure referred to in Article 27(2).
Article 20
1. An asylum seeker shall be taken back in accordance with Article 4(5) and
Article 16(1)(c), (d) and (e) as follows:
(a) the request for the applicant to be taken back must contain informa-
tion enabling the requested Member State to check that it is respon-
sible;
(b) the Member State called upon to take back the applicant shall be
obliged to make the necessary checks and reply to the request addressed
to it as quickly as possible and under no circumstances exceeding a
period of one month from the referral. When the request is based on
data obtained from the Eurodac system, this time limit is reduced to
two weeks;
(c) where the requested Member State does not communicate its decision
within the one month period or the two weeks period mentioned in
subparagraph (b), it shall be considered to have agreed to take back the
asylum seeker;
(d) a Member State which agrees to take back an asylum seeker shall be
obliged to readmit that person to its territory. The transfer shall be car-
ried out in accordance with the national law of the requesting Member
State, after consultation between the Member States concerned, as
soon as practically possible, and at the latest within six months of
acceptance of the request that charge be taken by another Member
State or of the decision on an appeal or review where there is a suspen-
sive effect;
(e) the requesting Member State shall notify the asylum seeker of the deci-
sion concerning his being taken back by the Member State responsible.
The decision shall set out the grounds on which it is based. It shall
contain details of the time limit on carrying out the transfer and shall,
251
if necessary, contain information on the place and date at which the

applicant should appear, if he is travelling to the Member State respon-
sible by his own means. This decision may be subject to an appeal or
a review. Appeal or review concerning this decision shall not suspend
the implementation of the transfer except when the courts or compe-
tent bodies so decide in a case-by-case basis if the national legislation
allows for this.
If necessary, the asylum seeker shall be supplied by the requesting Member

State with a laissez passer of the design adopted in accordance with the
The Member State responsible shall inform the requesting Member State,
as appropriate, of the safe arrival of the asylum seeker or of the fact that he
did not appear within the set time limit.
2. Where the transfer does not take place within the six months’ time limit,
responsibility shall lie with the Member State in which the application for
asylum was lodged. This time limit may be extended up to a maximum of
one year if the transfer or the examination of the application could not be
carried out due to imprisonment of the asylum seeker or up to a maximum
of eighteen months if the asylum seeker absconds.
3. The rules of proof and evidence and their interpretation, and on the prepa-
ration of and the procedures for transmitting requests, shall be adopted in
accordance with the procedure referred to in Article 27(2).
4. Supplementary rules on carrying out transfers may be adopted in accor-

dance with the procedure referred to in Article 27(2).
CHAPTER VI
ADMINISTRATIVE COOPERATION
Article 21
1. Each Member State shall communicate to any Member State that so

requests such personal data concerning the asylum seeker as is appropriate,
relevant and non-excessive for:
(a) the determination of the Member State responsible for examining the
application for asylum;
(b) examining the application for asylum;
(c) implementing any obligation arising under this Regulation.
252
2. The information referred to in paragraph 1 may only cover:

(a) personal details of the applicant, and, where appropriate, the members
of his family (full name and where appropriate, former name; nick-
names or pseudonyms; nationality, present and former; date and place
of birth);
(b) identity and travel papers (references, validity, date of issue, issuing
authority, place of issue, etc.);
(c) other information necessary for establishing the identity of the appli-
cant, including fingerprints processed in accordance with Regulation
(EC) No 2725/2000;
(d) places of residence and routes travelled;
(e) residence documents or visas issued by a Member State;
(f) the place where the application was lodged;
(g) the date any previous application for asylum was lodged, the date the
present application was lodged, the stage reached in the proceedings
and the decision taken, if any.
3. Furthermore, provided it is necessary for the examination of the application

for asylum, the Member State responsible may request another Member
State to let it know on what grounds the asylum seeker bases his application
and, where applicable, the grounds for any decisions taken concerning the
applicant. The Member State may refuse to respond to the request submit-
ted to it, if the communication of such information is likely to harm the
essential interests of the Member State or the protection of the liberties
and fundamental rights of the person concerned or of others. In any event,
communication of the information requested shall be subject to the written
approval of the applicant for asylum.
4. Any request for information shall set out the grounds on which it is based
and, where its purpose is to check whether there is a criterion that is likely
to entail the responsibility of the requested Member State, shall state on
what evidence, including relevant information from reliable sources on the
ways and means asylum seekers enter the territories of the Member States,
or on what specific and verifiable part of the applicant’s statements it is
based. It is understood that such relevant information from reliable sources
is not in itself sufficient to determine the responsibility and the competence
of a Member State under this Regulation, but it may contribute to the eval-
uation of other indications relating to the individual asylum seeker.
5. The requested Member State shall be obliged to reply within six weeks.
6. The exchange of information shall be effected at the request of a Member

State and may only take place between authorities whose designation by
253
each Member State has been communicated to the Commission, which

shall inform the other Member States thereof.
7. The information exchanged may only be used for the purposes set out in
paragraph 1. In each Member State such information may, depending on
its type and the powers of the recipient authority, only be communicated to
the authorities and courts and tribunals entrusted with:
(a) the determination of the Member State responsible for examining the
application for asylum;
(b) examining the application for asylum;
(c) implementing any obligation arising under this Regulation.
8. The Member State which forwards the information shall ensure that it is
accurate and up-to-date. If it transpires that that Member State has for-
warded information which is inaccurate or which should not have been for-
warded, the recipient Member States shall be informed thereof immediately.
They shall be obliged to correct such information or to have it erased.
9. The asylum seeker shall have the right to be informed, on request, of any
data that is processed concerning him.
If he finds that this information has been processed in breach of this Regu-
lation or of Directive 95/46/EC of the European Parliament and the Coun-
cil of 24 October 1995 on the protection of individuals with regard to the
processing of personal data and on the free movement of such data(8), in
particular because it is incomplete or inaccurate, he is entitled to have it
corrected, erased or blocked.
The authority correcting, erasing or blocking the data shall inform, as

appropriate, the Member State transmitting or receiving the information.
10. In each Member State concerned, a record shall be kept, in the individual
file for the person concerned and/or in a register, of the transmission and
receipt of information exchanged.
11. The data exchanged shall be kept for a period not exceeding that which is
necessary for the purposes for which it is exchanged.
12. Where the data is not processed automatically or is not contained, or

intended to be entered, in a file, each Member State should take appropriate
measures to ensure compliance with this Article through effective checks.
254
Article 22
1. Member States shall notify the Commission of the authorities responsible

for fulfilling the obligations arising under this Regulation and shall ensure
that those authorities have the necessary resources for carrying out their
tasks and in particular for replying within the prescribed time limits to
requests for information, requests to take charge of and requests to take
back asylum seekers.
2. Rules relating to the establishment of secure electronic transmission chan-

nels between the authorities mentioned in paragraph 1 for transmitting
requests and ensuring that senders automatically receive an electronic proof
of delivery shall be established in accordance with the procedure referred to
in Article 27(2).
Article 23
1. Member States may, on a bilateral basis, establish administrative arrange-

ments between themselves concerning the practical details of the implemen-
tation of this Regulation, in order to facilitate its application and increase
its effectiveness. Such arrangements may relate to:
(a) exchanges of liaison officers;
(b) simplification of the procedures and shortening of the time limits relat-
ing to transmission and the examination of requests to take charge of
or take back asylum seekers;
2. The arrangements referred to in paragraph 1 shall be communicated to the

Commission. The Commission shall verify that the arrangements referred
to in paragraph 1(b) do not infringe this Regulation.
CHAPTER VII
TRANSITIONAL PROVISIONS AND FINAL PROVISIONS
Article 24
1. This Regulation shall replace the Convention determining the State respon-
sible for examining applications for asylum lodged in one of the Member
States of the European Communities, signed in Dublin on 15 June 1990
(Dublin Convention).
2. However, to ensure continuity of the arrangements for determining the

Member State responsible for an application for asylum, where an applica-
255
tion has been lodged after the date mentioned in the second paragraph of
Article 29, the events that are likely to entail the responsibility of a Member
State under this Regulation shall be taken into consideration, even if they
precede that date, with the exception of the events mentioned in Article
10(2).
3. Where, in Regulation (EC) No 2725/2000 reference is made to the Dublin

Convention, such reference shall be taken to be a reference made to this
Regulation.
Article 25
1. Any period of time prescribed in this Regulation shall be calculated as fol-

lows:
(a) where a period expressed in days, weeks or months is to be calculated
from the moment at which an event occurs or an action takes place, the
day during which that event occurs or that action takes place shall not
be counted as falling within the period in question;
(b) a period expressed in weeks or months shall end with the expiry of
whichever day in the last week or month is the same day of the week
or falls on the same date as the day during which the event or action
from which the period is to be calculated occurred or took place. If, in
a period expressed in months, the day on which it should expire does
not occur in the last month, the period shall end with the expiry of the
last day of that month;
(c) time limits shall include Saturdays, Sundays and official holidays in
any of the Member States concerned.
2. Requests and replies shall be sent using any method that provides proof of
receipt.
Article 26
As far as the French Republic is concerned, this Regulation shall apply only to
its European territory.
Article 27
1. The Commission shall be assisted by a committee.
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision

1999/468/EC shall apply.
256
The period laid down in Article 5(6) of Decision 1999/468/EC shall be set
at three months.
3. The Committee shall draw up its rules of procedure.
Article 28
At the latest three years after the date mentioned in the first paragraph of Article
29, the Commission shall report to the European Parliament and the Council on
the application of this Regulation and, where appropriate, shall propose the nec-
essary amendments. Member States shall forward to the Commission all infor-
mation appropriate for the preparation of that report, at the latest six months
before that time limit expires.
Having submitted that report, the Commission shall report to the European
Parliament and the Council on the application of this Regulation at the same
time as it submits reports on the implementation of the Eurodac system pro-
vided for by Article 24(5) of Regulation (EC) No 2725/2000.
Article 29
This Regulation shall enter into force on the 20th day following that of its pub-
lication in the Official Journal of the European Union.
It shall apply to asylum applications lodged as from the first day of the sixth
month following its entry into force and, from that date, it will apply to any
request to take charge of or take back asylum seekers, irrespective of the date on
which the application was made. The Member State responsible for the examina-
tion of an asylum application submitted before that date shall be determined in
accordance with the criteria set out in the Dublin Convention.
This Regulation shall be binding in its entirety and directly applicable in the
Member States in conformity with the Treaty establishing the European Com-
munity.
257
Chapter 11 Eurodac
1 Summary
The Eurodac Regulation, adopted in December 2000 with the legal base of
Article 63(1)(a) EC,1 sets up a system for taking and comparing fingerprints of
asylum-seekers and certain other persons in order to facilitate the application of
the Dublin Convention (and now “Dublin II”, the planned replacement Regula-
tion).2 Although the Regulation entered into force on 15 December 2000 (Article
27(1)), it did not apply in practice until 15 January 2003, when both the Com-
mission and Member States had made the necessary technical arrangements
(Article 27(2)).3 Also, the Council adopted a further Regulation implementing
the Eurodac Regulation.4
Chapter I of the parent Regulation (Articles 1-3) addresses the purpose
and scope of Eurodac, sets out definitions and describes the basic structure
of the system, which consists of a central unit located in the Commission and
national units in each Member State. Chapter II (Articles 4-7) sets out rules on
taking and transmitting fingerprints of a first category of persons, asylum-seek-
ers. Member States must take the fingerprints of every asylum-seeker over the
age of fourteen and transmit it to the central database for comparison with the
fingerprints of other asylum-seekers, to see if multiple applications for asylum
have been made by the same person. In that case the person must be returned to
the Member States responsible for considering the asylum application accord-
ing to the Dublin rules. The fingerprints and specified additional data shall be
1 Reg. 2725/2000 (OJ L 316/1). On the issues covered in this Chapter, see also Brou-
wer, “Eurodac: Its Temptations and Limitations”, 2 EJML (2002) 231.
3 OJ 2003 C 5/2.
4 Reg. 407/2002 (OJ 2002 L 62/1).
stored for ten years, but must be deleted earlier if the person concerned gains the
citizenship of the EU.
Chapter III (Article 8-10) sets out rules on a second category: persons
apprehended following irregular crossing of the external borders. Again Member
States have an obligation to take and transmit the fingerprints of all such per-
sons over the age of fourteen, but in this case the information will only be com-
pared with fingerprints of asylum-seekers which are subsequently transmitted,
not with fingerprints of earlier asylum-seekers or other border crossers. More-
over, this data will be stored for only two years, and must be deleted earlier if the
person concerned has been issued a residence permit, has left the territory of the
EU or has acquired the citizenship of a Member State. The purpose of taking
and comparing these fingerprints is solely to assist in the application of the
“irregular border crossing” criterion in the Dublin Convention (now replaced by
Regulation 343/2003, “Dublin II”).
A third category of persons is persons found illegally present in a Member
State, whose fingerprints may be taken in accordance with Article 11 (Chap-
ter IV). These fingerprints shall not be stored on the central database at all,
but simply checked against the existing database of asylum-seekers’ fingerprints
when they are transmitted. The purpose of this procedure is to check whether
the person concerned has previously applied for asylum in another Member
State, and the Regulation suggests that “[a]s a general rule, there are grounds for
checking” this when a person mentions he or she has made a previous asylum
application in another Member State, argues that return to another country
would be unsafe but does not claim asylum formally or refuses to assist in deter-
mining his or her identity. Of course, the second of these categories will usually
correspond to persons making a claim pursuant to Article 3 ECHR. It appears
that this a non-exhaustive list of cases where the fingerprints of illegal residents
can be checked.
Next, there is a special rule concerning fingerprint data on persons who
become recognised refugees (Chapter V, Article 12). For a transitional period of
five years after Eurodac starts operations, the data on recognised refugees will
be blocked once the refugee status of a person is recognised. At the end of that
period, on the basis of statistics concerning the number of recognised refugees
who apply for asylum in another Member State, the EU institutions must decide
either to store the data and use it in the same way as data on asylum-seekers, or
to erase all data as soon as a person has been recognised as a refugee.
Chapter V, the longest Chapter in the Regulation (Articles 13-20) governs
the issue of data protection. It sets out detailed rules on the responsibility for
data use, data security, access to and alteration of Eurodac data, record-keeping,
liability, rights of the data subject, and national and EU-level data protection
supervisory authorities. The EU-level authority is to be replaced by the EU data
protection authority to be set up pursuant to Article 286 EC, and in fact the
Regulation establishing this authority was adopted within a month of the adop-
260
Chapter 11 Eurodac
tion of the Eurodac Regulation.5 Subsequently the rules on the operation of this
authority were adopted and the data protection supervisor was appointed early
in 2004.6
Finally, Chapter VII sets out general and final provisions (Articles 21-
27). These rules provide that the costs of the operation of the central unit are
charged to the EU budget (Article 21), that the Council adopts most implement-
ing measures (Article 22) with a residual role for the Commission (Article 23),
that the Commission must issue an annual report and certain special reports
on the operation of Eurodac (Article 24), including an initial report one year
after Eurodac began operations, and that the territorial scope of the Regulation
matches that of the Dublin rules (Article 26). Council decisions on implement-
ing measures are adopted by a qualified majority vote, with unanimous voting
when the measures affect the operational expenses of the Member States.
The rules in the Regulation were extended to Norway and Iceland from 1
April 2001 pursuant to an agreement with the Community, which also entails
application of the Dublin Convention and its planned replacement to those
states.7 Similar agreements were negotiated with Switzerland and with Denmark
(which could not opt in to the Regulation as such, due to its ‘opt-out’ from Title
IV of the EC Treaty).8 The new Member States were bound by the Regulation as
from the date of their EU membership (1 May 2004).
The Commission released its initial report on the operation of Eurodac in
spring 2004.9 Its report notes that in practice, the Commission has not been called
upon to adopt any implementing rules, so has never held a meeting of the rel-
evant “comitology” committee. Also, as mooted above, the special Eurodac data
protection body only met briefly, as it was replaced by the EU’s Data Protection
Supervisor from January 2004. In its first year, Eurodac registered 271,573 sets
of fingerprints: 246,902 from asylum-seekers, 7,857 from illegal border-crossers,
and 16,814 of illegal residents (all Member States are sent information on this
third category in 2003, albeit sporadically). The Commission took the view that
5 Reg. 45/2001 (OJ 200l L 8/1).

6 See Dec. 1247/2002 (OJ 2002 L 183/1) and decision on appointment (OJ 2004 L
12/47).
7 Decision 2001/258 (OJ 2001 L 93/38).
8 Respectively COM (2004) 593, 14 Sep. 2004, and COM (2004) 594, 17 Sep. 2004.
The former treaty was signed 26 Oct. 2004, but had not yet been ratified as of 1 Jan.
2006. A referendum on the treaty in Switzerland in June 2005 resulted in public
support for the treaty (and for a parallel treaty extending Schengen rules to Swit-
zerland). The latter treaty was signed in March 2005, but also had not been ratified
by 1 Jan. 2006. A Protocol to the treaty between the EC, Norway and Iceland (ibid.)
extending that treaty to Denmark was also signed in June 2005, but had not yet been
ratified by 1 Jan. 2006 (COM (2005) 131, 8 April 2005).
9 SEC (2004) 557, 5 May 2004.
261
the second figure was “very low” considering the figure of 400,000 that it (and
the Member States) were expecting. In its opinion, “[i]n light of the high illegal
migratory pressure, in particular at the Southern European borders” and the
“broad interpretation” of the relevant criteria by the Council, this “indicates
that a large number of cases may be missing from the Eurodac Central Unit”.
A subsequent report from the Commission was released in summer 2005.10
In the year 2004, the ten new Member States began operating the Eurodac
system, most immediately upon accession and the last two by July 2004. Euro-
dac registered 287,938 sets of fingerprints: 232,205 from asylum-seekers, 16,183
from illegal border-crossers, and 39,550 from illegal residents (all Member States
except France, Estonia and Portugal used the option to submit fingerprints of
the latter category in 2004). It can be seen that the total number of fingerprints
registered increased slightly in the second year, with a drop in the number of
asylum-seekers’ fingerprints outweighed by a large increase in fingerprints pro-
cessed from the other two categories, although the Commission again concluded
that “a large number of cases of illegal border crossing may be missing” from
the Eurodac system. The Commission stated that there were no data protection
issues in practice as regards its operation of the system, but did notice a “sur-
prising” number of “special searches” conducted by Member States for data
protection purposes.
According to these two reports, after a slow start, inevitable because Euro-
dac started with an empty database, by autumn 2003 Eurodac recorded about
2,000 “hits” a month comparing fingerprints of asylum-seekers from different
Member States, and about 500 “hits” a month comparing fingerprints of asylum-
seekers within the same Member State (not all Member States ask Eurodac to
carry out the latter comparison). There were 200-250 “hits” per month compar-
ing asylum-seekers’ fingerprints to the fingerprints of illegal border-crossers and
a similar number of hits comparing illegal residents’ fingerprints to those of
asylum-seekers. The percentage of multiple asylum applications detected was 7%
during Eurodac’s first year, and 13.5% in the second year (both figures included
some comparisons with fingerprints submitted by the same Member State).
The Commission was not able in 2003 to link the Eurodac data to the appli-
cation of the Dublin II Regulation, but in the 2004 report it estimated that Euro-
dac requests constitute two-thirds of the requests to take persons back pursuant
to the Dublin II rules. However, it is not clear whether the Commission was
able to establish any sort of casual link between the Dublin II figures and the
Eurodac figures, or to assess whether Eurodac has played a contribution to the
effectiveness of the Dublin system. On this point, it is striking that the number
of successful “hits” in the various categories reached a plateau from September
2003, the date from which the Dublin II Regulation took effect, and that the
numbers of monthly hits remained flat or declining (between 1,700 and 2000 a
10 SEC (2005) 839, 20 June 2005.
262
Chapter 11 Eurodac
month) from September 2003 to May 2004, the month of EU enlargement. Fol-
lowing enlargement, the numbers then took a large leap in June 2004, to above
2,500 a month, then rose steadily until November 2004 to above 3,000, plateau-
ing for the month of December 2004.
2 History and Legislative Background

Immigration Ministers first indicated an interest in seeting up the Eurodac
system back in 1991, and an early feasibility study was submitted in 1992.11 The
JHA Council of November 1992 decided to study users’ needs and requirements
in in June 1994, the Council appointed a consultant. In March 1995, the cost
of the feasibility study was also allocated to the three Member States which
had just joined the EU. In November that year, the JHA Council decided that
Eurodac was “technically feasible”, but it was important to study the legal and
technical aspects further. To start the process, the Italian Council Presidency
then presented a first draft Eurodac Convention, and the JHA Council meetings
of March and June 1996 took note of developments.
The first available text of the draft Convention is the text sent to the EP for
consultation in autumn 1997.12 By this point the structure and basic details of
the functioning of Eurodac, including the length of storage of fingerprints and
the principle of considering recognised refugees’ position later, had already been
agreed, although the system was then to be confined to comparing asylum-seek-
ers’ fingerprints only. However, at this point recognised refugees’ fingerprints
were to be deleted, not blocked, in the interim period before that decision was
taken. The outstanding points concerned institutional issues (the role of the
Court, the voting rule for implementing measures) and certain data protection
points. In December 1997, the JHA Council then agreed that refugees’ finger-
prints would be blocked for the transitional period.
The EP’s opinion of January 1998 urged that Eurodac be managed by the
Commission, not (as then planned in the draft Convention) by a “headquar-
ters State” to be appointed, particularly since the draft Convention envisaged
that the operational costs of Eurodac would be coming from the Community
budget, which the Commission is responsible for implementing.13 Also, the EP
urged that there should be no possible extension of Eurodac for wider areas or
purposes and suggested a number of additional provisions ensuring respect for
human rights. It also wanted deletion of the fingerprints of recognised refugees
and persons who gained temporary protection status under an EU regime.14 The
11 See this report in Bunyan, ed., Key Texts on Justice and Home Affairs in the Euro-
pean Union (Statewatch, 1997) 73-74.
12 Council doc. 11079/97, 2 Oct. 1997.
13 OJ 1998 C 34/131.
14 An early proposal concerning temporary protection was under discucssion simulta-
neously: see Ch. 15.
263
implementing rules should be adopted by the “Community method”, the Con-

vention should be replaced by a Regulation within five years and implementa-
tion reports should also be sent to the EP – an understandable position in light
of the EP’s powers over adoption and monitoring of the EU’s budget.
Negotiations in a Council working group on the outstanding issues con-
tinued early in 1998,15 but the March 1998 JHA Council added a new element.
Concerned about a “mass influx” of persons from Iraq, the ministers asked for a
report on the idea of extending the Eurodac system to “illegal immigrants.” The
new system was already subject to “mission creep” even before it was officially
agreed, and the EP’s strong opposition to any extension of the system obviously
counted for little. A feasibility study was duly submitted to the May 1998 JHA
Council, suggesting that there was widespread support among Member States
for the idea that illegal entrants should be brought within Eurodac, but rather
less interest in including illegal residents within the system.16 To solve the dif-
ference of opinion it was suggested that the application to the latter category
should be optional.17 In fact the Council legal service had argued that while
taking and storing the fingerprints of the first category would be compatible
with Article 8 ECHR, storing the fingerprints of the latter group would not be.
Most Member States supported the idea of a separate Protocol on this issue to
avoid any delay in agreeing the parent Convention, but none supported the idea
of the Protocol applying only among some Member States at first. The JHA
Council agreed that a Protocol would be drafted by the end of the year.
By this point, the Council had also agreed on some more outstanding issues
concerning the parent Convention.18 It was agreed, to settle a dispute over three
different models for sending preliminary rulings to the Court of Justice,19 that
the Convention would “take account” of the rules in the Treaty of Amsterdam,
then being ratified. A “very large majority” of Member States supported man-
agement of the Eurodac system by the Commission,20 and it was agreed that the
Convention would only apply to the main territory of the UK (and so not to
Gibraltar). It was also agreed that the Convention would be implemented by a
15 Council docs. 5945/98, 13 Feb. 1998; 6191/98, 20 Feb. 1998; and 6191/1/98, 27 Feb.
1998.
16 Council docs. 7566/98, 8 Apr. 1998 and 7566/1/98, 23 Apr. 1998 (drafts of report);
doc. 8441/1/98, 18 May 1998 (final report and latest draft of Convention).
17 It appears from the documents that the Germans and Dutch were particularly keen
to use this option.
18 See May 1998 JHA Council press release and doc. 8441/1/98, n. 13 above.
19 These were the “normal” EC system; the “third pillar” system allowing all courts to
refer but with opt-outs for Member States objecting to any jurisdiction or wanting
to limit jurisdiction to final courts only; or references by final courts only.
20 Support was 11-3 for the Commission, with France, Denmark and Germany
opposed and the UK neutral.
264
Chapter 11 Eurodac
two-thirds majority within the Council.21 After this point, the only remaining
issues were the precise role of the Court of Justice and the decision to grant
management power to the Commission, which were finally settled at the Decem-
ber 1998 JHA Council.22 The Council then “froze” the text, with the intention
of replacing it with a Community act after the imminent entry into force of the
Treaty of Amsterdam.23
In the meantime, work began in earnest on the planned Protocol. The Euro-
dac working party examined the definition of “illegal” immigrant and the period
of data storage, while the Belgians objected to illegals having any data protec-
tion rights.24 A full draft Protocol, similar to the final text except that it was lim-
ited to illegal entrants, was then submitted.25 At the insistence of the majority of
Member States, illegal residents were included (with Sweden and Luxembourg
eventually withdrawing their objections) but as an option for Member States
and with the proviso that their fingerprints would only be compared, not stored.
The three examples of cases where an illegal resident could be subjected to a
Eurodac check were added; the two-year limit on storage of illegal entrants’ data
(with two exceptions) was accepted as a compromise; and the Belgians secured
the right to prevent access by data subjects. This Protocol was in turn agreed and
then “frozen” by the JHA Council in March 1999.26 In the meantime, the EP had
recommended rejection of the Protocol by a very narrow margin.27
Within a month of the entry into force of the new Treaty in May 1999, the
Commission proposed a Regulation taking over the text of both the Convention
and the Protocol.28 The Commission’s proposal suggested a number of changes
compared to the Convention and Protocol. Most of these were purely formal
changes needed to take account of the changed legal context of the proposal.
21 At the time, this was the normal rule for adoption of measures implementing Con-
ventions (former Art. K.3 TEU), but the Council could choose unanimous voting if
it wished.
22 It was agreed to establish an “opt-out” system for the Court, to be replaced by the
rules in Art. 68 EC when the Treaty of Amsterdam entered into force. France had
held out against management powers for the Commission until the last moment.
23 See late drafts in Council docs. 10221/98, 19 July 1998; 11868/98, 27 Oct. 1998;
11868/1/98, 5 Nov. 1998; and the agreed text in 12942/98, 17 Nov. 1998.
24 Council docs. 10221/98 (ibid.) and 11646/98, 1 Oct. 1998.
25 Council doc. SN 4595/98, 7 Oct. 1998.
26 See Council docs. 11844/98, 8 Oct. 1998; 11868/98 and 11868/1/98, n. 20 above;
12298/98 (text sent to EP for consultation), 12943/98 and 12944/98, all 17 Nov.
1998; and 6324/99, 26 Feb. 1999 (final text). Luxembourg also withdrew the sugges-
tion that objecting Member States could prevent others from checking the prints of
illegal residents against the prints of asylum-seekers.
27 Vote of 14 Apr. 1999.
28 COM (1999) 260, 26 May 1999; OJ 2000 C 337 E/37.
265
For example, there was no longer a need to set out rules on accession or on the
jurisdiction of the Court of Justice. But there were several important substan-
tive changes, particularly relating to data protection. Since EC data protection
legislation now applied to Eurodac, the data protection rules previously agreed
had to be reconsidered. In particular this meant that it was no longer possible to
restrict illegal entrants from gaining access to their data. It also meant that fol-
lowing the normal rules on measures implementing Community acts, the Com-
mission should have implementing power, not the Council. The Commission
“strongly” recommended reducing the ten-year limit for storing data, at least
exempting long-term residents and persons who leave the EU from its scope.
It also argued that data on illegal entrants would lose its purpose if another
Member State accepted responsibility for an asylum claim and so the Council
should consider deletion of data in such a case. In any event, it proposed a clari-
fication to make clear that data on persons gaining EU citizenship would always
be deleted immediately, whether they were illegal entrants or asylum-seekers.
It also wanted the Council to consider the idea of blocking data on recognised
refugees, and suggested major amendments to the data protection rules, particu-
larly to apply the principles of EC data protection legislation and to give illegal
entrants and immigrants the right to data access in all cases.
The EP’s Opinion of November 1999 essentially suggested six amendments
to the proposal.29 In the EP’s view, the Regulation should refer to “third-country
nationals” rather than “aliens”; the title of the Regulation should be changed
to restrict its application more clearly to the operation of the Dublin Conven-
tion; fingerprints should only be taken of those over the age of eighteen; data
should be erased once a person gained some form of legal status in a Member
State; there should be a direct reference to the ECHR and the Convention on
the Rights of the Child; and there should be express restrictions on further use
of Eurodac data, both by national authorities and by the authorities of third
states.
The Commission then offered an amended version of its proposal in March
2000 which accepted three of these amendments fully and two in part, rejecting
the amendment relating to the age of fingerprinted persons because it was cer-
tain that the Council would not accept it.30 Of the two amendments accepted in
part, firstly the Commission inserted a provision preventing transfer of Eurodac
data to third states with an exception following conclusion of an agreement with
the Community on asylum responsibility, but argued that there was no need for
an express provision preventing use of the data by other agencies. Secondly the
Commission now agreed that data should be erased as soon as refugees were
recognised, particularly since it planned to propose that refugees should enjoy
free movement between Member States once they gained long-term residence
29 OJ 2000 C 189/227.
30 COM (2000) 100, 15 Mar. 2000; OJ 2001 C 29 E/1.
266
Chapter 11 Eurodac
status. But it argued that it was necessary to keep data when persons gained
other forms of status, at least for the time being pending the long-term residence
proposal.31
In the meantime the Council had reached agreement on the text, following
rapid negotiations lasting from July to December 1999.32 Obviously the high
speed of negotiations was due both to the prior agreement on the texts and to
the Member States’ interest in getting Eurodac operational as soon as possible,
in the hope that implementation of the Dublin Convention would be improved.
The main change from the Commission’s proposal was the decision to confer
most implementing powers on the Council, and during the negotiations the
Spanish held out successfully for the use of unanimous voting where operat-
ing costs were increased.33 A provision on the obligation of Member States to
impose penalties was also weakened. As for the EP’s amendments, they were
considered shortly after the EP’s vote; the Council agreed to the amendments
concerning references to human rights treaties and express limits on transmis-
sion of Eurodac data to third states.34
Furthermore, because of the major changes to the procedure for adopting
implementing rules, it was deemed that the EP had to be reconsulted.35 When
giving its second opinion, the EP suggested changes only to the committee pro-
cedure, taking its traditional position that implementing powers should only be
conferred on the Commission, not the Council.36 The Council ignored this view.
After rejecting the EP’s proposed amendments, the Council adopted the Regula-
tion by written procedure in December 2000. At that time, two statements were
noted for the record and six statements were entered in the Council minutes. The
most important concerned the further definition of crossing the external bor-
ders and the Commission’s criticism of the Council’s approach to implement-
ing powers and Member States’ obligations to impose penalties.37 In the former
31 Ultimately, it was agreed to exclude refugees from the scope of this subsequent pro-
posal, which did not suggest amendments to the Eurodac Reg., although the Com-
mission has agreed to propose a further Directive which would bring them within its
scope. See further Ch. 20.
32 Council docs. 10530/99, 2 Aug. 1999; 11396/99, 1 Oct. 1999; 12582/99, 5 Nov. 1999;
13052/99, 17 Nov. 1999; 13408/99, 26 Nov. 1999; and 13603/99, 30 Nov. 1999.
33 In fact, this was a restrictive voting rule than had been agreed in the “third pillar”
context.
34 The changes were made in November (see Council doc. 13408/99, 26 Nov. 1999).
The Council had already agreed to change the title of the Reg. at the start of its
discussions (see Council doc. 10530/99, ibid.).
35 On the obligation to reconsult the EP following major changes in the text of a pro-
posal, see for example Case C-392/95 EP v Council [1997] ECR I-3215.
36 OJ 2001 C 146/87.
37 Council doc. 14497/00, 11 Dec. 2000.
267
Statement, the Council asserted that the Regulation would also apply when per-
sons were “apprehended beyond the external border, where [the person] is still en
route and there is no doubt that he/she crossed the external border irregularly”.
Finally, the Council’s implementing Regulation was adopted at the JHA
Council of February 2002. This text was held up because of French concerns
about letting the Commission staff decide on any technical requirements. It was
agreed unanimously, presumbly because it affects Member States’ operating
expenditure.38
3 Legal Analysis
The Eurodac Regulation raises a number of important legal questions: its com-
patibility with human rights law, the validity of the Council’s approach to con-
ferring implementing powers, the application of EC data protection rules and
the use of Eurodac data or the Eurodac system for other purposes.
The first and most important question is whether the Regulation is invalid
in whole or part for violation of human rights law. This question is inevitably
sparked by the Council legal service’s opinion that while gathering and compar-
ing fingerprint data on illegal entrants can be justified, compiling fingerprint
data on illegal residents is not. First, is the Council correct to conclude that the
latter operation breaches human rights law? Second, can the compilation and
comparison of fingerprint data on illegal entrants or asylum seekers be justified
on human rights grounds?
The first problem here is the analysis of the UK Presidency, which seemed
to suggest that it is sufficient to show a “pressing social need” to justify an inter-
ference with the right to private life set out in Article 8 ECHR. But “pressing
social need” is not a separate ground of justification, but rather an aspect of the
test for applying a justification. Do any of the exhaustive grounds for justifica-
tion listed in Article 8(2) ECHR justify the Eurodac system? In fact, there is no
ground which clearly applies. It would be possible for Member States to argue
that the economic justification applies, although there is a counter-argument
that migration is in Member States’ economic interest, particularly taking into
account the large cost of running the Eurodac system and border controls. Use
of the “national security”, “crime prevention” or “public safety” grounds would
be dubious since such a threat must be proved in individual cases; the grounds
will obviously not be applicable to all asylum- seekers, some of whom will have
a good protection claim in any event.
In any event, even presuming that there is a possible ground of justifica-
tion, restrictions on Article 8 rights must still be prescribed by law and meet the
tests of necessity and proportionality. The rules in the Regulation are precise
enough to meet the “prescribed by law” test as regards asylum-seekers, but the
38 See further Peers, “Key Legislative Developments on Migration in the European

Union [2001-2002]” 4 EJML (2002) 339 at 342-343.
268
Chapter 11 Eurodac
definition of persons to be fingerprinted following “irregular crossing” is rather

vague, particularly taking into account the legally meaningless statement in the
Council minutes giving a further definition of the concept. This is exactly the
sort of poor quality law-making that often fails the “prescribed by law” require-
ment. Moreover, the position is even worse as regards illegal residents, where the
definition is even vaguer and non-exhaustive besides, with no transparency as
regards which Member States will apply these rules. It might be argued that EC
law can be excused from meeting the requirements of the “prescribed by law”
requirement if the national law in question is sufficiently clear. In principle, this
argument might be convincing in the right circumstances as regards the applica-
tion of Directives (since their implementation is up to national law), or even a
Regulation which leaves its definitions and application up to national law.39 But
in this case while the argument might apply as regards taking of fingerprints,
since the EC institutions are only indirectly involved with taking them, it would
not apply as regards transmission and comparison of the fingerprints, for the
Regulation sets out uniform rules and an EC institution is operating the system.
So the Regulation fails the “prescribed by law” requirement as regards illegal
entrants and illegal residents.
As for the necessity and proportionality rules, their operation should surely
be assessed by reference to the provisions of the Dublin Convention and the
replacement Regulation, since the sole purpose of the Eurodac Regulation is to
facilitate the application of those measures. At the very least, it was hard to jus-
tify the rules on storage of fingerprints of illegal entrants in light of the Dublin
Convention, because under Article 6 of the Convention, the responsibility of the
Member State whose borders were crossed irregularly terminated when a person
had resided in another Member State for six months before making an asylum
application there. So at least in those cases (plus, as the Commission points out,
the cases where a Member State “volunteers” to take responsibility according to
Articles 3(4) and 9 of the Convention) the stored data should have been deleted
immediately.
There is an even greater problem since the “Dublin II” Regulation became
applicable, from 1 September 2003. In addition to the continued possibility of
Member States “volunteering” to take responsibility for an application, Article
10(1) of the “Dublin II” Regulation clearly terminates the responsibility of a
Member State after an irregular border crossing one year after that crossing.
As such, there is no necessity whatsoever for keeping data on persons who have
crossed the external border for more than this one-year period, because it is
legally impossible for that data to facilitate application of the Dublin rules. The
39 Alternatively it could be argued that in such cases the intensity of applying the “pre-
scribed by law” requirement is more limited for the EC. There would still have to be
a sufficiently adequate “skeleton” of rules governing the interference.
269
Eurodac Regulation should have been amended alongside the Dublin II rules; it
should now be amended immediately.
As for the application of the Eurodac Regulation to illegal residents, there
is an insufficient link the fingerprint data and the application of the Dublin Con-
vention (or the Dublin II Regulation) except where there is cogent evidence of a
prior claim to asylum in another Member State. This is because the Dublin rules
aim solely to allocate responsibility for asylum-seekers; in the absence of an
indication that a person is or has been an asylum-seeker there is no necessity to
take or compare fingerprints. Furthermore, if harmonised EC rules on deemed
withdrawal of applications are agreed,40 there will be even more cases where the
necessity of storing, taking and checking fingerprints is clearly unneccessary.
The next question is the validity of the Council’s decision to confer the great
majority of implementing powers upon itself. These powers comprise powers to
implement Article 4(7), concerning implementation of Article 4 on collecting,
transmitting and comparing fingerprints, extended to other categories of data
in accordance with Articles 9(2) and 11(4); and Article 12 as regards procedures
and compilation of statistics relating to blocked data. In contrast, the Com-
mission only has powers to carry out certain statistical tasks (Article 3(4)). The
case for the Council’s extensive implementing powers is stated in the preamble,
which refers to the involvement of the Member States and taking, sending and
assessing fingerprints and the impact of these measures on civil liberties. During
the negotiations on the Regulation, France had argued also that it was wrong
in principle for the Commission to adopt implementing measures since it was
managing the system, but this principle is not referred to in the final Regula-
tion. The Council’s rationale makes sense as regards taking prints, transmitting
them and checking comparisons, but not as regards recording, comparing, or
transmitting the results back to the Member States, which is the responsibility
of the Commission.41 Similarly, the mechanism for blocking the data of refugees
and the compilation of statistics for the relevant report should both logically fall
within the power of the Commission as these two elements concern the opera-
tion of the central unit.
As for the argument about civil liberties, it rings rather hollow given
Member States’ decision to circumvent the advice of the Council legal service
about the human rights implications of the Regulation. Applying the argument
to this case, the Council’s reasoning does not adequately explain why conferring
implementing powers on the Commission is more likely to raise civil liberties
problems. Finally, as for the French argument, there are surely many examples
40 See Ch. 14.

41 Indeed, Arts. 2(4), 3(3) and 5 of Reg. 407/2002 (n. 4 above) set out obligations solely
for the Commission, while Art. 2(1) to 2(3), 3(1), 3(2) and 4 set out obligations for
both the Member States and the Commission.
270
Chapter 11 Eurodac
of cases when an executive adopts rules to govern operations that the same exec-
utive will actually be carrying out.
The third question concerning the Regulation is whether the Community’s
data protection Directive applies to Eurodac, as the Commission had proposed.
During negotiation of the Regulation, the Council legal service was asked for
an opinion on this issue.42 The Council then proceeded to make detailed refer-
ence to the data protection Directive in the Eurodac Regulation, asserting that
it applied to Member States’ use of data within the framework of the Regula-
tion. Was this correct? Certainly the EC Directive applies to the Commission,
as regards the operation of the Central Unit, by virtue of Article 286 EC, which
expressly applies the EC measures to the institutions’ processing of data. This
position has now been supplemented by the specific Regulation on data protec-
tion and the EC institutions.43 But does the same position apply to the Member
States? Opinions by an Advocate-General of the Court of Justice suggested that
the scope of the EC Directive might be more restricted than some had thought,44
but in its first judgments concerning the Directive, the Court of Justice took a
broad view of its scope.45 In any event, even if the Directive is limited to “inter-
nal market” situations, there is nothing to preclude the EC institutions decid-
ing to extend its application to other situations within EC competence if they
choose. The Court has also ruled that data protection forms part of the general
principles of EC law, and the right to data protection is also listed in the EU’s
Charter of Rights.46
Finally, the fourth question is the use of Eurodac data for other purposes.
It is sometimes simplistically assumed that Eurodac is just another EU database
that already is, or might as well be, simply merged with the other databases.
Both assumptions are clearly incorrect. Eurodac has been established for clearly
defined purposes and any further access to or use of Eurodac data, or further
taking, transmitting and storage of fingerprints, would not only require fresh
legislation, which would have to use the correct legal bases, but also would have
to satisfy the legal requirements of data protection law and human rights law.
For example, it would arguably be unneccesary, disproportionate and discrimi-
natory to give access to Eurodac data to Europol, the EU’s police agency. Simi-
larly, the purposes of the SIS are so different from that of Eurodac that there
is no possible justification for linking the relevant data. The Council has agreed
that fingerprints will be added to the SIS when the “SIS II” system is developed,
42 Council doc. 12799/99, 11 Nov. 1999. The legal service’s view is not known.
43 Reg. 45/2001, n. 5 above.
44 Opinion in Case C-101/01 Lindqvist [2003] ECR I-12971, and in Joined Cases C-
465/00, C-138/01 and C-139/01 Neukomm [2003] ECR I-4989.
45 Judgment of 20 May 2003 in Neukomm (ibid.).
46 See respectively Case C-369/98 Fisher [2000] ECR I-6751 and Art. 8 of the Charter
(OJ 2000 C 364).
271
but even assuming such a development would be compatible with human rights
and data protection law, there will still have to be a detailed justification for any
form of merger of the data. This issue has particular salience in light of the
Council’s March 2004 conclusions on anti-terrorism and the November 2004
Hague Programme, both of which call for “interoperability” between Eurodac,
the planned Visa Information System (which will store fingerprints of visa appli-
cants and is intended in part for use in establishing responsibility for asylum
applications), and the second-general Schengen Information System (which will
have the capacity to store fingerprints). A Commission communication on this
issue was released in November 2005.47
4 Comments
Do turkeys vote for Christmas? The Council seems to think that they do. The
only result of fingerprinting a person who crosses the external borders irregu-
larly is that the Member State taking and transmitting the fingerprints to the
Commission is increasing the chance that the person concerned will ultimately
be returned to that Member State pursuant to the Dublin rules. On top of the
cost of policing the external borders on behalf of destination Member States,
Member States of transit will be incurring the perceived economic and social
cost of an increased numbers of asylum-seekers. In effect, they will be extending
charity to wealthier Member States. In any event, the difficulty of thoroughly
checking all external sea and land borders of the European Union means that
the principle will be hard to apply fully, even with the development of an EU
border management policy.48 To some extent, then, the idea is symbolic, although
it is possible that there will be a least a modest increase in the number of persons
stopped, fingerprinted and later sent back as a consequence of EU attempts to
step up external border controls in practice. Also, from the initial evidence of
its operations presented by the Commission, the Eurodac system has certainly
uncovered situations of multiple asylum applications in different Member States
(and even in the same Member State).
As to the specific details of the Regulation, by the 21st century the word
“aliens” in English clearly suggests a profound distinction between third-coun-
try nationals and EU citizens, and thus an implicit unwillingness to accept the
realities of migration and the extent of protection for foreign nationals pro-
vided for by international human rights law. Perhaps the Council wanted to be
consistent with the wording of the Dublin Convention, but it would have been
simple to provide in a definitions clause that “third-country national” had the
same meaning as “alien” in the Dublin Convention. The EC Treaty refers solely
to powers to regulate “nationals of third countries” throughout Title IV, and in
particular Article 63(1)(a). In fact, the word “alien” does not occur anywhere in
47 COM(2005)597, 24 Nov. 2005.

48 See generally Ch. 7.
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Chapter 11 Eurodac
the EC Treaty (or, for that matter, in the TEU either prior to or after the Treaty
of Amsterdam). Moreover, the proposed and final text of the Dublin II Regula-
tion also refers to “third-country nationals”,49 so logically the wording of the
Eurodac Regulation should be changed at the earliest opportunity.
On the application of Article 11 in practice, it should be remembered that
the Dublin rules do not apply to persons who withdraw their claims for Con-
vention refugee status, and indeed the Commission’s proposal to change this
position with the adoption of the “Dublin II” Regulation was unsuccessful. So
a withdrawal of a claim for refugee status in another Member State will immedi-
ately prevent a Member State from applying Article 11. But the very existence of
the possibility of sending fingerprints of irregular migrants pursuant to Article
11 of the Regulation risks a classic “race to the bottom” development, entail-
ing a competition between Member States to use the possibility more and more
often, because of the prospect that the Article 11 data (unlike the data on irregu-
lar border crossers) would result in finding that a person should be removed to
another Member State because a prior asylum application was made there, thus
reducing the perceived economic and social cost of keeping that person on the
territory. Indeed, as noted above, the registration of fingerprints of this category
of persons increased between 2003 and 2004. Of course, it is unlikely that a
sufficient number of irregular residents will make a prior asylum application in
another Member State to justify the cost of extensive fingerprinting of irregular
residents, even assuming such fingerprinting would be legal. But unfortunately
Member States do not always take such decisions rationally.
As for Article 12, the Council clearly paid no attention to its power pursu-
ant to Article 63(4) EC to facilitate the movement of third-country nationals
between Member States, or to the 1980 Council of Europe Convention on the
transfer of responsibility for of refugees, which most of the first fifteen Member
States have ratified,50 and which sets out rules requiring the transfer of respon-
sibility for refugee status after a certain period if Contracting States permit a
refugee to reside on their territory for lengthy periods. The Commission was
obviously right in its amended proposal of 2000 to point out that this provi-
sion is anachronistic when the Community has and may well use the power to
adopt rules assisting recognised refugees to move between Member States. It
can only be hoped that as soon as the forthcoming proposal to extend long-term
residence status to refugees is adopted,51 the Commission will table a proposal
49 See Ch. 10.

50 ETS 107. Six of the first fifteen Member States have not ratified: France, Belgium,
Greece, Austria, Luxembourg and Ireland. Belgium, Greece and Luxembourg
have signed the Convention. Among the new Member States, Poland has ratified it
and the Czech Republic has signed it. Outside the EU, Switzerland, Romania and
Norway have ratified.
51 See Ch. 20.
273
to delete Article 12 of the Eurodac Regulation definitively. Furthermore, there

will be no case for continuing to hold information on any long-term residents as
defined by that Directive after its adoption, and so a further exception should be
agreed to delete data on that category of person from the Eurodac system.
In any event, since Eurodac began operations in January 2003, the decision
on whether to use data on recognised refugees will have to be taken in January
2008. That decision will therefore have to taken by means of the “co-decision”
procedure with qualified majority voting, either pursuant to Article 67(5) EC,
or pursuant to the EU’s Constitutional Treaty if it has entered into force before
that date.52 There is little doubt of the outcome of the discussions, given the
consistent prior position of the EP on this issue.
Also, there is a continuing risk that in the practical application of Eurodac,
the wrong people will be transferred because of the unreliability of fingerprint
data. There is also a risk that once a positive hit is registered under Eurodac,
Member States will forget to check that other criteria under the Dublin rules
should take priority over the criteria concerning prior asylum applications and
irregular crossing of the borders.
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Chapter 11 Eurodac
Council Regulation (EC) No 2725/2000

of 11 December 2000
concerning the establishment of “Eurodac”
for the comparison of fingerprints for the effective application of the Dublin
Convention
(OJ 2000 L 316/1)
ticular Article 63 point (1)(a) thereof,
Whereas:
(1) Member States have ratified the Geneva Convention of 28 July 1951, as
amended by the New York Protocol of 31 January 1967, relating to the
Status of Refugees.
(2) Member States have concluded the Convention determining the State
responsible for examining applications for asylum lodged in one of the
Member States of the European Communities, signed in Dublin on 15 June
1990 (hereinafter referred to as “the Dublin Convention”).
(3) For the purposes of applying the Dublin Convention, it is necessary to

establish the identity of applicants for asylum and of persons apprehended
in connection with the unlawful crossing of the external borders of the
Community. It is also desirable, in order effectively to apply the Dublin
Convention, and in particular points (c) and (e) of Article 10(1) thereof, to
allow each Member State to check whether an alien found illegally present
on its territory has applied for asylum in another Member State.
(4) Fingerprints constitute an important element in establishing the exact iden-

tity of such persons. It is necessary to set up a system for the comparison of
their fingerprint data.
(5) To this end, it is necessary to set up a system known as “Eurodac”, consist-

ing of a Central Unit, to be established within the Commission and which
will operate a computerised central database of fingerprint data, as well as
275
of the electronic means of transmission between the Member States and the
central database.
(6) It is also necessary to require the Member States promptly to take finger-
prints of every applicant for asylum and of every alien who is apprehended
in connection with the irregular crossing of an external border of a Member
State, if they are at least 14 years of age.
(7) It is necessary to lay down precise rules on the transmission of such finger-
print data to the Central Unit, the recording of such fingerprint data and
other relevant data in the central database, their storage, their comparison
with other fingerprint data, the transmission of the results of such compari-
son and the blocking and erasure of the recorded data. Such rules may be
different for, and should be specifically adapted to, the situation of different
categories of aliens.
(8) Aliens who have requested asylum in one Member State may have the
option of requesting asylum in another Member State for many years to
come. Therefore, the maximum period during which fingerprint data should
be kept by the Central Unit should be of considerable length. Given that
most aliens who have stayed in the Community for several years will have
obtained a settled status or even citizenship of a Member State after that
period, a period of ten years should be considered a reasonable period for
the conservation of fingerprint data.
(9) The conservation period should be shorter in certain special situations

where there is no need to keep fingerprint data for that length of time. Fin-
gerprint data should be erased immediately once aliens obtain citizenship
of a Member State.
(10) It is necessary to lay down clearly the respective responsibilities of the

Commission, in respect of the Central Unit, and of the Member States, as
regards data use, data security, access to, and correction of, recorded data.
(11) While the non-contractual liability of the Community in connection with

the operation of the Eurodac system will be governed by the relevant pro-
visions of the Treaty, it is necessary to lay down specific rules for the non-
contractual liability of the Member States in connection with the operation
of the system.
(12) In accordance with the principle of subsidiarity as set out in Article 5 of the
Treaty, the objective of the proposed measures, namely the creation within
the Commission of a system for the comparison of fingerprint data to assist
the implementation of the Community’s asylum policy, cannot, by its very
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Chapter 11 Eurodac
nature, be sufficiently achieved by the Member States and can therefore

be better achieved by the Community. In accordance with the principle of
proportionality as set out in the said Article, this Regulation does not go
beyond what is necessary to achieve that objective.
(13) Since the Member States alone are responsible for identifying and classify-
ing the results of comparisons transmitted by the Central Unit as well as for
the blocking of data relating to persons admitted and recognised as refu-
gees and since this responsibility concerns the particularly sensitive area of
the processing of personal data and could affect the exercise of individual
freedoms, there are specific grounds for the Council reserving for itself the
exercise of certain implementing powers, relating in particular to the adop-
tion of measures ensuring the safety and reliability of such data.
(14) The measures necessary for the implementation of other measures of

this Regulation should be adopted in accordance with Council Decision
1999/468/EC of 28 June 1999 laying down the procedures for the exercise
of implementing powers conferred on the Commission.
(15) Directive 95/46/EC of the European Parliament and of the Council of 24

October 1995 on the protection of individuals with regard to the process-
ing of personal data and on the free movement of such data applies to the
processing of personal data by the Member States within the framework of
the Eurodac system.
(16) By virtue of Article 286 of the Treaty, Directive 95/46/EC also applies to
Community institutions and bodies. Since the Central Unit will be estab-
lished within the Commission, that Directive will apply to the processing of
personal data by that Unit.
(17) The principles set out in Directive 95/46/EC regarding the protection of
the rights and freedoms of individuals, notably their right to privacy, with
regard to the processing of personal data should be supplemented or clari-
fied, in particular as far as certain sectors are concerned.
(18) It is appropriate to monitor and evaluate the performance of Eurodac.
(19) Member States should provide for a system of penalties to sanction the use
of data recorded in the central database contrary to the purpose of Euro-
dac.
(20) The United Kingdom and Ireland, in accordance with Article 3 of the Pro-
tocol on the position of the United Kingdom and Ireland annexed to the
277
Treaty on European Union and the Treaty establishing the European Com-
munity, have given notice of their wish to take part in the adoption and
application of this Regulation.
(21) Denmark, in accordance with Articles 1 and 2 of the Protocol on the posi-
tion of Denmark annexed to the said Treaties, is not participating in the
adoption of this Regulation and is therefore not bound by it nor subject to
its application.
(22) It is appropriate to restrict the territorial scope of this Regulation so as to

align it on the territorial scope of the Dublin Convention.
(23) This Regulation should serve as legal basis for the implementing rules
which, with a view to its rapid application, are required for the establish-
ment of the necessary technical arrangements by the Member States and
the Commission. The Commission should be charged with verifying that
those conditions are fulfilled,
CHAPTER I
GENERAL PROVISIONS
Article 1 Purpose of “Eurodac”
1. A system known as “Eurodac” is hereby established, the purpose of which

shall be to assist in determining which Member State is to be responsible
pursuant to the Dublin Convention for examining an application for asylum
lodged in a Member State, and otherwise to facilitate the application of the
Dublin Convention under the conditions set out in this Regulation.
2. Eurodac shall consist of:

(a) the Central Unit referred to in Article 3;
(b) a computerised central database in which the data referred to in Article
5(1), Article 8(2) and Article 11(2) are processed for the purpose of
comparing the fingerprint data of applicants for asylum and of the
categories of aliens referred to in Article 8(1) and Article 11(1);
(c) means of data transmission between the Member States and the cen-
tral database.
The rules governing Eurodac shall also apply to operations effected by the
Member States as from the transmission of data to the Central Unit until
use is made of the results of the comparison.
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Chapter 11 Eurodac
3. Without prejudice to the use of data intended for Eurodac by the Member
State of origin in databases set up under the latter’s national law, fingerprint
data and other personal data may be processed in Eurodac only for the pur-
poses set out in Article 15(1) of the Dublin Convention.
Article 2 Definitions
1. For the purposes of this Regulation:

(a) “the Dublin Convention” means the Convention determining the State
responsible for examining applications for asylum lodged in one of the
Member States of the European Communities, signed at Dublin on 15
June 1990;
(b) an “applicant for asylum” means an alien who has made an application
for asylum or on whose behalf such an application has been made;
(c) “Member State of origin” means:
(i) in relation to an applicant for asylum, the Member State which
transmits the personal data to the Central Unit and receives the
results of the comparison;
(ii) in relation to a person covered by Article 8, the Member State
which transmits the personal data to the Central Unit;
(iii) in relation to a person covered by Article 11, the Member State
which transmits such data to the Central Unit and receives the
results of the comparison;
(d) “refugee” means a person who has been recognised as a refugee in
accordance with the Geneva Convention on Refugees of 28 July 1951,
as amended by the New York Protocol of 31 January 1967;
(e) “hit” shall mean the existence of a match or matches established by the
Central Unit by comparison between fingerprint data recorded in the
databank and those transmitted by a Member State with regard to a
person, without prejudice to the requirement that Member States shall
immediately check the results of the comparison pursuant to Article
4(6).
2. The terms defined in Article 2 of Directive 95/46/EC shall have the same
meaning in this Regulation.
3. Unless stated otherwise, the terms defined in Article 1 of the Dublin Con-
vention shall have the same meaning in this Regulation.
Article 3 Central Unit
1. A Central Unit shall be established within the Commission which shall be

responsible for operating the central database referred to in Article 1(2)(b)
279
on behalf of the Member States. The Central Unit shall be equipped with a
computerised fingerprint recognition system.
2. Data on applicants for asylum, persons covered by Article 8 and persons

covered by Article 11 which are processed at the Central Unit shall be pro-
cessed on behalf of the Member State of origin under the conditions set out
in this Regulation.
3. The Central Unit shall draw up statistics on its work every quarter, indicat-
ing:
(a) the number of data sets transmitted on applicants for asylum and the
persons referred to in Articles 8(1) and 11(1);
(b) the number of hits for applicants for asylum who have lodged an appli-
cation for asylum in another Member State;
(c) the number of hits for persons referred to in Article 8(1) who have
subsequently lodged an application for asylum;
(d) the number of hits for persons referred to in Article 11(1) who had pre-
viously lodged an application for asylum in another Member State;
(e) the number of fingerprint data which the Central Unit had to request a
second time from the Member States of origin because the fingerprint
data originally transmitted did not lend themselves to comparison
using the computerised fingerprint recognition system.
At the end of each year, statistical data shall be established in the form of
a compilation of the quarterly statistics drawn up since the beginning of
Eurodac’s activities, including an indication of the number of persons for
whom hits have been recorded under (b), (c) and (d).
The statistics shall contain a breakdown of data for each Member State.
4. Pursuant to the procedure laid down in Article 23(2), the Central Unit may
be charged with carrying out certain other statistical tasks on the basis of
the data processed at the Central Unit.
CHAPTER II
APPLICANTS FOR ASYLUM
Article 4 Collection, transmission and comparison of fingerprints
1. Each Member State shall promptly take the fingerprints of all fingers of
every applicant for asylum of at least 14 years of age and shall promptly
transmit the data referred to in points (a) to (f) of Article 5(1) to the Central
Unit. The procedure for taking fingerprints shall be determined in accor-
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Chapter 11 Eurodac
dance with the national practice of the Member State concerned and in
accordance with the safeguards laid down in the European Convention on
Human Rights and in the United Nations Convention on the Rights of the
Child.
2. The data referred to in Article 5(1) shall be immediately recorded in the cen-
tral database by the Central Unit, or, provided that the technical conditions
for such purposes are met, directly by the Member State of origin.
3. Fingerprint data within the meaning of point (b) of Article 5(1), transmit-
ted by any Member State, shall be compared by the Central Unit with the
fingerprint data transmitted by other Member States and already stored in
the central database.
4. The Central Unit shall ensure, on the request of a Member State, that the
comparison referred to in paragraph 3 covers the fingerprint data previ-
ously transmitted by that Member State, in addition to the data from other
Member States.
5. The Central Unit shall forthwith transmit the hit or the negative result of
the comparison to the Member State of origin. Where there is a hit, it shall
transmit for all data sets corresponding to the hit, the data referred to in
Article 5(1), although in the case of the data referred to in Article 5(1)(b),
only insofar as they were the basis for the hit.
Direct transmission to the Member State of origin of the result of the com-
parison shall be permissible where the technical conditions for such pur-
pose are met.
6. The results of the comparison shall be immediately checked in the Member

State of origin. Final identification shall be made by the Member State
of origin in cooperation with the Member States concerned, pursuant to
Article 15 of the Dublin Convention.
Information received from the Central Unit relating to other data found to
be unreliable shall be erased or destroyed as soon as the unreliability of the
data is established.
7. The implementing rules setting out the procedures necessary for the appli-
cation of paragraphs 1 to 6 shall be adopted in accordance with the proce-
dure laid down in Article 22(1).
281
Article 5 Recording of data
1. Only the following data shall be recorded in the central database:

(a) Member State of origin, place and date of the application for asylum;
(b) fingerprint data;
(c) sex;
(d) reference number used by the Member State of origin;
(e) date on which the fingerprints were taken;
(f) date on which the data were transmitted to the Central Unit;
(g) date on which the data were entered in the central database;
(h) details in respect of the recipient(s) of the data transmitted and the
date(s) of transmission(s).
2. After recording the data in the central database, the Central Unit shall
destroy the media used for transmitting the data, unless the Member State
of origin has requested their return.
Article 6 Data storage
Each set of data, as referred to in Article 5(1), shall be stored in the central data-
base for ten years from the date on which the fingerprints were taken.
Upon expiry of this period, the Central Unit shall automatically erase the data
from the central database.
Article 7 Advance data erasure
Data relating to a person who has acquired citizenship of any Member State
before expiry of the period referred to in Article 6 shall be erased from the cen-
tral database, in accordance with Article 15(3) as soon as the Member State of
origin becomes aware that the person has acquired such citizenship.
CHAPTER III
ALIENS APPREHENDED IN CONNECTION WITH THE
IRREGULAR CROSSING OF AN EXTERNAL BORDER
Article 8 Collection and transmission of fingerprint data
1. Each Member State shall, in accordance with the safeguards laid down in
the European Convention on Human Rights and in the United Nations
Convention on the Rights of the Child, promptly take the fingerprints of
all fingers of every alien of at least 14 years of age who is apprehended by
the competent control authorities in connection with the irregular crossing
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Chapter 11 Eurodac
by land, sea or air of the border of that Member State having come from a
third country and who is not turned back.
2. The Member State concerned shall promptly transmit to the Central Unit
the following data in relation to any alien, as referred to in paragraph 1,
who is not turned back:
(a) Member State of origin, place and date of the apprehension;
(b) fingerprint data;
(c) sex;
(d) reference number used by the Member State of origin;
(e) date on which the fingerprints were taken;
(f) date on which the data were transmitted to the Central Unit.
Article 9 Recording of data
1. The data referred to in Article 5(1)(g) and in Article 8(2) shall be recorded
in the central database.
Without prejudice to Article 3(3), data transmitted to the Central Unit pur-
suant to Article 8(2) shall be recorded for the sole purpose of comparison
with data on applicants for asylum transmitted subsequently to the Central
Unit.
The Central Unit shall not compare data transmitted to it pursuant to

Article 8(2) with any data previously recorded in the central database, nor
with data subsequently transmitted to the Central Unit pursuant to Article
8(2).
2. The procedures provided for in Article 4(1), second sentence, Article 4(2)
and Article 5(2) as well as the provisions laid down pursuant to Article 4(7)
shall apply. As regards the comparison of data on applicants for asylum
subsequently transmitted to the Central Unit with the data referred to in
paragraph 1, the procedures provided for in Article 4(3), (5) and (6) shall
apply.
Article 10 Storage of data
1. Each set of data relating to an alien as referred to in Article 8(1) shall be

stored in the central database for two years from the date on which the fin-
gerprints of the alien were taken. Upon expiry of this period, the Central
Unit shall automatically erase the data from the central database.
283
2. The data relating to an alien as referred to in Article 8(1) shall be erased

from the central database in accordance with Article 15(3) immediately, if
the Member State of origin becomes aware of one of the following circum-
stances before the two-year period mentioned in paragraph 1 has expired:
(a) the alien has been issued with a residence permit;
(b) the alien has left the territory of the Member States;
(c) the alien has acquired the citizenship of any Member State.
CHAPTER IV
ALIENS FOUND ILLEGALLY PRESENT IN A MEMBER STATE
Article 11 Comparison of fingerprint data
1. With a view to checking whether an alien found illegally present within

its territory has previously lodged an application for asylum in another
Member State, each Member State may transmit to the Central Unit any
fingerprint data relating to fingerprints which it may have taken of any such
alien of at least 14 years of age together with the reference number used by
that Member State.
2. As a general rule there are grounds for checking whether the alien has previ-
ously lodged an application for asylum in another Member State where:
(a) the alien declares that he/she has lodged an application for asylum but
without indicating the Member State in which he/she made the appli-
cation;
(b) the alien does not request asylum but objects to being returned to his/
her country of origin by claiming that he/she would be in danger, or
(c) the alien otherwise seeks to prevent his/her removal by refusing to
cooperate in establishing his/her identity, in particular by showing no,
or false, identity papers.
3. Where Member States take part in the procedure referred to in paragraph

1, they shall transmit to the Central Unit the fingerprint data relating to all
or at least the index fingers, and, if those are missing, the prints of all other
fingers, of aliens referred to in paragraph 1.
4. The fingerprint data of an alien as referred to in paragraph 1 shall be trans-

mitted to the Central Unit solely for the purpose of comparison with the
fingerprint data of applicants for asylum transmitted by other Member
States and already recorded in the central database.
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Chapter 11 Eurodac
The fingerprint data of such an alien shall not be recorded in the central
database, nor shall they be compared with the data transmitted to the Cen-
tral Unit pursuant to Article 8(2).
5. As regards the comparison of fingerprint data transmitted under this Arti-

cle with the fingerprint data of applicants for asylum transmitted by other
Member States which have already been stored in the Central Unit, the
procedures provided for in Article 4(3), (5) and (6) as well as the provisions
laid down pursuant to Article 4(7) shall apply.
6. Once the results of the comparison have been transmitted to the Member
State of origin, the Central Unit shall forthwith:
(a) erase the fingerprint data and other data transmitted to it under para-
graph 1; and
(b) destroy the media used by the Member State of origin for transmitting
the data to the Central Unit, unless the Member State of origin has
requested their return.
CHAPTER V
RECOGNISED REFUGEES
Article 12 Blocking of data
1. Data relating to an applicant for asylum which have been recorded pursu-
ant to Article 4(2) shall be blocked in the central database if that person
is recognised and admitted as a refugee in a Member State. Such blocking
shall be carried out by the Central Unit on the instructions of the Member
State of origin.
As long as a decision pursuant to paragraph 2 has not been adopted, hits

concerning persons who have been recognised and admitted as refugees in
a Member State shall not be transmitted. The Central Unit shall return a
negative result to the requesting Member State.
2. Five years after Eurodac starts operations, and on the basis of reliable
statistics compiled by the Central Unit on persons who have lodged an
application for asylum in a Member State after having been recognised and
admitted as refugees in another Member State, a decision shall be taken
in accordance with the relevant provisions of the Treaty, as to whether the
data relating to persons who have been recognised and admitted as refugees
in a Member State should:
(a) be stored in accordance with Article 6 for the purpose of the compari-
son provided for in Article 4(3); or
285
(b) be erased in advance once a person has been recognised and admitted
as a refugee.
3. In the case referred to in paragraph 2(a), the data blocked pursuant to para-
graph 1 shall be unblocked and the procedure referred to in paragraph 1
shall no longer apply.
4. In the case referred to in paragraph 2(b):

(a) data which have been blocked in accordance with paragraph 1 shall be
erased immediately by the Central Unit; and
(b) data relating to persons who are subsequently recognised and admitted
as refugees shall be erased in accordance with Article 15(3), as soon as
the Member State of origin becomes aware that the person has been
recognised and admitted as a refugee in a Member State.
5. The implementing rules concerning the procedure for the blocking of data
referred to in paragraph 1 and the compilation of statistics referred to in
paragraph 2 shall be adopted in accordance with the procedure laid down
in Article 22(1).
CHAPTER VI
DATA USE, DATA PROTECTION AND LIABILITY
Article 13 Responsibility for data use
1. The Member State of origin shall be responsible for ensuring that:

(a) fingerprints are taken lawfully;
(b) fingerprint data and the other data referred to in Article 5(1), Article
8(2) and Article 11(2) are lawfully transmitted to the Central Unit;
(c) data are accurate and up-to-date when they are transmitted to the Cen-
tral Unit;
(d) without prejudice to the responsibilities of the Commission, data in the
central database are lawfully recorded, stored, corrected and erased;
(e) the results of fingerprint data comparisons transmitted by the Central
Unit are lawfully used.
2. In accordance with Article 14, the Member State of origin shall ensure the
security of the data referred to in paragraph 1 before and during transmis-
sion to the Central Unit as well as the security of the data it receives from
the Central Unit.
3. The Member State of origin shall be responsible for the final identification
of the data pursuant to Article 4(6).
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Chapter 11 Eurodac
4. The Commission shall ensure that the Central Unit is operated in accor-
dance with the provisions of this Regulation and its implementing rules. In
particular, the Commission shall:
(a) adopt measures ensuring that persons working in the Central Unit use
the data recorded in the central database only in accordance with the
purpose of Eurodac as laid down in Article 1(1);
(b) ensure that persons working in the Central Unit comply with all
requests from Member States made pursuant to this Regulation in
relation to recording, comparison, correction and erasure of data for
which they are responsible;
(c) take the necessary measures to ensure the security of the Central Unit
in accordance with Article 14;
(d) ensure that only persons authorised to work in the Central Unit have
access to data recorded in the central database, without prejudice to
Article 20 and the powers of the independent supervisory body which
will be established under Article 286(2) of the Treaty.
The Commission shall inform the European Parliament and the Council of
the measures it takes pursuant to the first subparagraph.
Article 14 Security
1. The Member State of origin shall take the necessary measures to:
(a) prevent any unauthorised person from having access to national instal-
lations in which the Member State carries out operations in accordance
with the aim of Eurodac (checks at the entrance to the installation);
(b) prevent data and data media in Eurodac from being read, copied,
modified or erased by unauthorised persons (control of data media);
(c) guarantee that it is possible to check and establish a posteriori what
data have been recorded in Eurodac, when and by whom (control of
data recording);
(d) prevent the unauthorised recording of data in Eurodac and any unau-
thorised modification or erasure of data recorded in Eurodac (control
of data entry);
(e) guarantee that, in using Eurodac, authorised persons have access only
to data which are within their competence (control of access);
(f) guarantee that it is possible to check and establish to which authorities
data recorded in Eurodac may be transmitted by data transmission
equipment (control of transmission);
(g) prevent the unauthorised reading, copying, modification or erasure of
data during both the direct transmission of data to or from the central
database and the transport of data media to or from the Central Unit
(control of transport).
287
2. As regards the operation of the Central Unit, the Commission shall be

responsible for applying the measures mentioned under paragraph 1.
Article 15 Access to, and correction or erasure of,

data recorded in Eurodac
1. The Member State of origin shall have access to data which it has transmit-
ted and which are recorded in the central database in accordance with the
provisions of this Regulation.
No Member State may conduct searches in the data transmitted by another

Member State, nor may it receive such data apart from data resulting from
the comparison referred to in Article 4(5).
2. The authorities of Member States which, pursuant to paragraph 1, have

access to data recorded in the central database shall be those designated by
each Member State. Each Member State shall communicate to the Com-
mission a list of those authorities.
3. Only the Member State of origin shall have the right to amend the data
which it has transmitted to the Central Unit by correcting or supplement-
ing such data, or to erase them, without prejudice to erasure carried out in
pursuance of Article 6, Article 10(1) or Article 12(4)(a).
Where the Member State of origin records data directly in the central data-
base, it may amend or erase the data directly.
Where the Member State of origin does not record data directly in the cen-
tral database, the Central Unit shall amend or erase the data at the request
of that Member State.
4. If a Member State or the Central Unit has evidence to suggest that data
recorded in the central database are factually inaccurate, it shall advise the
Member State of origin as soon as possible.
If a Member State has evidence to suggest that data were recorded in the
central database contrary to this Regulation, it shall similarly advise the
Member State of origin as soon as possible. The latter shall check the data
concerned and, if necessary, amend or erase them without delay.
5. The Central Unit shall not transfer or make available to the authorities of
any third country data recorded in the central database, unless it is specifi-
cally authorised to do so in the framework of a Community agreement on
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Chapter 11 Eurodac
the criteria and mechanisms for determining the State responsible for exam-
ining an application for asylum.
Article 16 Keeping of records by the Central Unit
1. The Central Unit shall keep records of all data processing operations
within the Central Unit. These records shall show the purpose of access,
the date and time, the data transmitted, the data used for interrogation and
the name of both the unit putting in or retrieving the data and the persons
responsible.
2. Such records may be used only for the data-protection monitoring of the
admissibility of data processing as well as to ensure data security pursu-
ant to Article 14. The records must be protected by appropriate measures
against unauthorised access and erased after a period of one year, if they
are not required for monitoring procedures which have already begun.
Article 17 Liability
1. Any person who, or Member State which, has suffered damage as a result
of an unlawful processing operation or any act incompatible with the provi-
sions laid down in this Regulation shall be entitled to receive compensation
from the Member State responsible for the damage suffered. That State
shall be exempted from its liability, in whole or in part, if it proves that it is
not responsible for the event giving rise to the damage.
2. If failure of a Member State to comply with its obligations under this Regu-
lation causes damage to the central database, that Member State shall be
held liable for such damage, unless and insofar as the Commission failed to
take reasonable steps to prevent the damage from occurring or to minimise
its impact.
3. Claims for compensation against a Member State for the damage referred
to in paragraphs 1 and 2 shall be governed by the provisions of national law
of the defendant Member State.
Article 18 Rights of the data subject
1. A person covered by this Regulation shall be informed by the Member State

of origin of the following:
(a) the identity of the controller and of his representative, if any;
(b) the purpose for which the data will be processed within Eurodac;
(c) the recipients of the data;
289
(d) in relation to a person covered by Article 4 or Article 8, the obligation

to have his/her fingerprints taken;
(e) the existence of the right of access to, and the right to rectify, the data
concerning him/her.
In relation to a person covered by Article 4 or Article 8, the information

referred to in the first subparagraph shall be provided when his/her finger-
prints are taken.
In relation to a person covered by Article 11, the information referred to

in the first subparagraph shall be provided no later than the time when the
data relating to the person are transmitted to the Central Unit. This obliga-
tion shall not apply where the provision of such information proves impos-
sible or would involve a disproportionate effort.
2. In each Member State any data subject may, in accordance with the laws,
regulations and procedures of that State, exercise the rights provided for in
Article 12 of Directive 95/46/EC.
Without prejudice to the obligation to provide other information in accor-

dance with point (a) of Article 12 of Directive 95/46/EC, the data subject
shall have the right to obtain communication of the data relating to him/her
recorded in the central database and of the Member State which transmit-
ted them to the Central Unit. Such access to data may be granted only by a
Member State.
3. In each Member State, any person may request that data which are fac-
tually inaccurate be corrected or that data recorded unlawfully be erased.
The correction and erasure shall be carried out without excessive delay by
the Member State which transmitted the data, in accordance with its laws,
regulations and procedures.
4. If the rights of correction and erasure are exercised in a Member State,

other than that, or those, which transmitted the data, the authorities of that
Member State shall contact the authorities of the Member State, or States,
in question so that the latter may check the accuracy of the data and the
lawfulness of their transmission and recording in the central database.
5. If it emerges that data recorded in the central database are factually inaccu-
rate or have been recorded unlawfully, the Member State which transmitted
them shall correct or erase the data in accordance with Article 15(3). That
Member State shall confirm in writing to the data subject without excessive
delay that it has taken action to correct or erase data relating to him/her.
290
Chapter 11 Eurodac
6. If the Member State which transmitted the data does not agree that data
recorded in the central database are factually inaccurate or have been
recorded unlawfully, it shall explain in writing to the data subject without
excessive delay why it is not prepared to correct or erase the data.
That Member State shall also provide the data subject with information
explaining the steps which he/she can take if he/she does not accept the
explanation provided. This shall include information on how to bring an
action or, if appropriate, a complaint before the competent authorities or
courts of that Member State and any financial or other assistance that is
available in accordance with the laws, regulations and procedures of that
Member State.
7. Any request under paragraphs 2 and 3 shall contain all the necessary par-
ticulars to identify the data subject, including fingerprints. Such data shall
be used exclusively to permit the exercise of the rights referred to in para-
graphs 2 and 3 and shall be destroyed immediately afterwards.
8. The competent authorities of the Member States shall cooperate actively to

enforce promptly the rights laid down in paragraphs 3, 4 and 5.
9. In each Member State, the national supervisory authority shall assist the
data subject in accordance with Article 28(4) of Directive 95/46/EC in exer-
cising his/her rights.
10. The national supervisory authority of the Member State which transmit-
ted the data and the national supervisory authority of the Member State in
which the data subject is present shall assist and, where requested, advise
him/her in exercising his/her right to correct or erase data. Both national
supervisory authorities shall cooperate to this end. Requests for such assis-
tance may be made to the national supervisory authority of the Member
State in which the data subject is present, which shall transmit the requests
to the authority of the Member State which transmitted the data. The data
subject may also apply for assistance and advice to the joint supervisory
authority set up by Article 20.
11. In each Member State any person may, in accordance with the laws, regu-
lations and procedures of that State, bring an action or, if appropriate, a
complaint before the competent authorities or courts of the State if he/she
is refused the right of access provided for in paragraph 2.
12. Any person may, in accordance with the laws, regulations and procedures of
the Member State which transmitted the data, bring an action or, if appro-
291
priate, a complaint before the competent authorities or courts of that State

concerning the data relating to him/her recorded in the central database, in
order to exercise his/her rights under paragraph 3. The obligation of the
national supervisory authorities to assist and, where requested, advise the
data subject, in accordance with paragraph 10, shall subsist throughout the
proceedings.
Article 19 National supervisory authority
1. Each Member State shall provide that the national supervisory authority
or authorities designated pursuant to Article 28(1) of Directive 95/46/EC
shall monitor independently, in accordance with its respective national law,
the lawfulness of the processing, in accordance with this Regulation, of per-
sonal data by the Member State in question, including their transmission to
the Central Unit.
2. Each Member State shall ensure that its national supervisory authority
has access to advice from persons with sufficient knowledge of fingerprint
data.
Article 20 Joint supervisory authority
1. An independent joint supervisory authority shall be set up, consisting of a

maximum of two representatives from the supervisory authorities of each
Member State. Each delegation shall have one vote.
2. The joint supervisory authority shall have the task of monitoring the activi-
ties of the Central Unit to ensure that the rights of data subjects are not
violated by the processing or use of the data held by the Central Unit. In
addition, it shall monitor the lawfulness of the transmission of personal
data to the Member States by the Central Unit.
3. The joint supervisory authority shall be responsible for the examination

of implementation problems in connection with the operation of Eurodac,
for the examination of possible difficulties during checks by the national
supervisory authorities and for drawing up recommendations for common
solutions to existing problems.
4. In the performance of its duties, the joint supervisory authority shall, if

necessary, be actively supported by the national supervisory authorities.
5. The joint supervisory authority shall have access to advice from persons
with sufficient knowledge of fingerprint data.
292
Chapter 11 Eurodac
6. The Commission shall assist the joint supervisory authority in the perfor-
mance of its tasks. In particular, it shall supply information requested by
the joint supervisory body, give it access to all documents and paper files as
well as access to the data stored in the system and allow it access to all its
premises, at all times.
7. The joint supervisory authority shall unanimously adopt its rules of proce-
dure. It shall be assisted by a secretariat, the tasks of which shall be defined
in the rules of procedure.
8. Reports drawn up by the joint supervisory authority shall be made public

and shall be forwarded to the bodies to which the national supervisory
authorities submit their reports, as well as to the European Parliament,
the Council and the Commission for information. In addition, the joint
supervisory authority may submit comments or proposals for improvement
regarding its remit to the European Parliament, the Council and the Com-
mission at any time.
9. In the performance of their duties, the members of the joint supervisory

authority shall not receive instructions from any government or body.
10. The joint supervisory authority shall be consulted on that part of the draft
operating budget of the Eurodac Central Unit which concerns it. Its opin-
ion shall be annexed to the draft budget in question.
11. The joint supervisory authority shall be disbanded upon the establishment
of the independent supervisory body referred to in Article 286(2) of the
Treaty. The independent supervisory body shall replace the joint supervi-
sory authority and shall exercise all the powers conferred on it by virtue of
the act under which that body is established.
293
CHAPTER VII
FINAL PROVISIONS
Article 21 Costs
1. The costs incurred in connection with the establishment and operation of

the Central Unit shall be borne by the general budget of the European
Union.
2. The costs incurred by national units and the costs for their connection to
the central database shall be borne by each Member State.
3. The costs of transmission of data from the Member State of origin and of
the findings of the comparison to that State shall be borne by the State in
question.
Article 22 Implementing rules
1. The Council shall adopt, acting by the majority laid down in Article 205(2)
of the Treaty, the implementing provisions necessary for
– laying down the procedure referred to in Article 4(7),
– laying down the procedure for the blocking of the data referred to in
Article 12(1),
– drawing up the statistics referred to in Article 12(2).
In cases where these implementing provisions have implications for the

operational expenses to be borne by the Member States, the Council shall
act unanimously.
2. The measures referred to in Article 3(4) shall be adopted in accordance with

the procedure referred to in Article 23(2).
Article 23 Committee
2. In the cases where reference is made to this paragraph, Articles 5 and 7 of

Decision 1999/468/EC shall apply.
at three months.
3. The committee shall adopt its rules of procedure.
294
Chapter 11 Eurodac
Article 24 Annual report: Monitoring and evaluation
1. The Commission shall submit to the European Parliament and the Council
an annual report on the activities of the Central Unit. The annual report
shall include information on the management and performance of Eurodac
against pre-defined quantitative indicators for the objectives referred to in
paragraph 2.
2. The Commission shall ensure that systems are in place to monitor the func-
tioning of the Central Unit against objectives, in terms of outputs, cost-
effectiveness and quality of service.
3. The Commission shall regularly evaluate the operation of the Central Unit
in order to establish whether its objectives have been attained cost-effec-
tively and with a view to providing guidelines for improving the efficiency
of future operations.
4. One year after Eurodac starts operations, the Commission shall produce
an evaluation report on the Central Unit, focusing on the level of demand
compared with expectation and on operational and management issues
in the light of experience, with a view to identifying possible short-term
improvements to operational practice.
5. Three years after Eurodac starts operations and every six years thereafter,
the Commission shall produce an overall evaluation of Eurodac, examining
results achieved against objectives and assessing the continuing validity of
the underlying rationale and any implications for future operations.
Article 25 Penalties
Member States shall ensure that use of data recorded in the central database
contrary to the purpose of Eurodac as laid down in Article 1(1) shall be subject
to appropriate penalties.
Article 26 Territorial scope
The provisions of this Regulation shall not be applicable to any territory to

which the Dublin Convention does not apply.
Article 27 Entry into force and applicability
1. This Regulation shall enter into force on the day of its publication in the
Official Journal of the European Communities.
295
2. This Regulation shall apply, and Eurodac shall start operations, from the
date which the Commission shall publish in the Official Journal of the
European Communities, when the following conditions are met:
(a) each Member State has notified the Commission that it has made the
necessary technical arrangements to transmit data to the Central Unit
in accordance with the implementing rules adopted under Article 4(7)
and to comply with the implementing rules adopted under Article
12(5); and
(b) the Commission has made the necessary technical arrangements for
the Central Unit to begin operations in accordance with the imple-
menting rules adopted under Article 4(7) and Article 12(5).
Member States in accordance with the Treaty establishing the European Com-
munity.
296
Chapter 12 Minimum Standards for Reception
Directive 2000/9/EC1 establishes the minimum standards of reception condi-
tions for asylum seekers in the European Union which are deemed sufficient to
ensure them an adequate standard of living, with specific provisions on school-
ing, employment, access to vocational training, health care and freedom of
movement. Member States were obliged to comply with the Directive by 6 Feb-
ruary 2005. This Directive is binding for twenty-three Member States, as the UK
exercised its right to “opt in” to the Directive and is thus bound by it; Ireland did
not opt in; and Denmark could not opt in.
The scope of the Directive is restricted to those applicants for asylum under
the Geneva Convention and (at Member States’ discretion) their close family
members as defined by the Directive.2 It is left to Member States’ discretion
whether or not to extend the minimum standards laid down in the proposal to
those who claim other forms of international protection. In principle, the Direc-
tive applies to all those who are allowed to remain on the territory of a Member
State prior to a final decision on their asylum application being made “as long as
they are still allowed to remain on the territory as asylum seekers”.3
Article 5 requires that asylum applicants are informed within 15 days after
lodging their application of the rights and benefits to which they are entitled and
the obligations placed on their in order to comply with the reception conditions.
Article 6 provides that (subject to certain exclusions) applicants for asylum and
1 OJ 2003 L 31/8.
2 Article 3 of the Directive. On the definition of “family member”, see Art. 2(d).
3 Article 3 of the Directive. “Final decision” is not defined in the Directive.
their family members are to be given a document certifying their status or that
they are legally on the territory.
Article 7 endorses the principle of freedom of movement for asylum appli-
cants in the territory of a Member State or in a restricted area. Member States
are able to decide however that asylum applicants and their family members
must live in a specific residence where it is deemed necessary in order to enable
applications for asylum to be processed swiftly or for reasons of public order or
public interest. Applicants may be “confined” where it proves necessary to do
so.
Under Article 10 minors are to given access to education on similar condi-
tions as own nationals, although Member States are granted a degree of flex-
ibility in this respect. Article 11 provides that if the asylum application has
not been processed at first instance within a year, conditions for access to the
labour market for the applicant will need to be decided by the Member State.
Member States are permitted to give priority in the labour market to EU and
EEA citizens as well as legally resident third country nationals. Article 12 makes
provision for access to vocational training in the Member States at their discre-
tion, although Member States must give access to vocational training which is
linked an employment contract, to the extent that applicants have labour market
access.
Member States must make provisions on material reception conditions to
ensure a standard of living adequate for the health of applicants and capable of
ensuring their subsistence. Article 13 permits material reception conditions to be
provided in kind, in the form of financial allowances or in the form of vouchers.
It further provides that Member States may require applicants to contribute to
the cost of their material reception conditions if they can afford to do so.
Article 14 leaves flexible the models of housing granted to asylum appli-
cants including accommodation centres and private houses. Applicants are to
be ensured the possibility of communicating with legal advisors and relatives.
Article 15 provides that all necessary health care must be provided to applicants,
which at a minimum includes essential treatment and emergency care.
Article 16 makes it permissible for Member States to reduce or withdraw
reception conditions in certain circumstances including where the applicant has
abandoned his place of residence, failed comply with reporting duties or attend
an interview or where he has concealed financial resources. Furthermore recep-
tion conditions may be refused to those who do not apply for asylum as soon
as reasonably practicable after arrival in the Member State. Sanctions may be
applied to those who breach accommodation centre rules or those who behave
in a seriously violent manner. Article 16(4) sets out procedural safeguards in
relation to withdrawal or reduction of reception conditions.
Furthermore, Article 21 provides that an applicant with a dispute relating
to the granting of benefits or who is subject to a decision taken in accordance
298
Chapter 12 Reception Conditions
with Article 7 has the right to bring an appeal, and ultimately is entitled to an
appeal or review before a judicial body.
Article 17 requires Member States to take account of the special needs of
vulnerable groups such as minors, elderly persons, disabled persons and victims
of torture in providing reception conditions. Article 18 requires that the best
interests of the child are made a primary consideration. Unaccompanied minors
are to be appointed with a guardian to ensure that the minor’s needs are met.
The Directive sets a number of priorities for placing unaccompanied minors, the
first of which is that the child is placed with adult family members and thereafter
with a foster family. Member States are required to trace family members if it is
deemed to be in the best interests of the child. Article 20 specifies that victims
of torture and organised violence are to be given specialised treatment for the
effects of their traumas.
The remainder of the Directive is concerned with the efficiency of the recep-
tion system and the implementation of the directive. To that end the Directive
requires that Member States will be required to provide data to the Commission
to allow the Commission to report to the European Parliament and Council on
implementation by 6 August 2006.

In May 2001 the European Commission presented its proposal for a Council
Directive laying down the minimum standards on the reception of applicants for
asylum in Member States.4 This was the Commission’s second major proposal
following the Tampere European Council of 1999 which specifically related to
the first phase of the Common European Asylum System.
The Treaty on European Union adopted at Maastricht in 1991 established
new co-operation in justice and home affairs under the Third Pillar and offered
the possibility of bringing immigration and asylum policies into the Commu-
nity’s competence. A number of measures were adopted by the Council in the
years following Maastricht on asylum policy, including a Resolution on mini-
mum guarantees for asylum procedures and burden sharing with regard to the
admission and residence of displaced person. However, although the Span-
ish Presidency in 1995 proposed a joint action on conditions for reception of
asylum seekers, the Council was not able to agree on this text, and so no mea-
sures relating specifically to reception conditions were adopted prior to the Tam-
pere European Council of 1999. Thus, in complying with the Tampere agenda,
the obvious disadvantage from any drafter’s perspective would be that a baseline
had never been agreed by the Member States.
In November 2000 the Commission delivered a study it had commissioned
on the “legal framework and administrative practices in the Member States of
the European Union regarding reception conditions for asylum seekers, dis-
4 COM (2001) 181, 3 April 2001.
299
placed persons and other persons seeking international protection”.5 The results
of the study demonstrated the widely divergent practices in the Member States
on a range of issues relating to reception conditions of asylum seekers.
In June 2000 the French delegation to the Asylum Working Party submitted
a discussion paper on conditions for the reception of asylum seekers.6 The paper
emphasised the need to harmonise reception conditions as “disparity between
reception arrangements in Europe makes certain Member States more attractive
than others for asylum applicants”. It argued for a comprehensive approach to
reception conditions based on a need to allow individuals to live with dignity
and recognising the asylum applicant’s right to stay whilst awaiting the outcome
of an application. The paper was emphatic in the view that asylum applicants
should not have the right to work as “then many asylum applications are made
for purely economic reasons”. The paper considered that it would be difficult to
include within the scope of a future Community instrument, the conditions of
reception for those who apply for international protection other than under the
Geneva Convention.7 The paper emphasised the need for asylum applicants to
be made aware of their rights and the benefits which they may claim rapidly and
for asylum applicants to be given specific authorisation to remain whilst their
claim was being considered. The paper saw no reason in principle to restrict the
free movement of asylum applicants in the territory of the Member State.
Reception conditions were discussed at the Council meeting in December
2000. The Council Conclusions of that meeting recalled the need for a Com-
munity instrument to harmonise reception conditions of asylum applicants and
provided guidelines to the Commission to be taken into account in drafting such
an instrument.8 The guidelines left open the question of whether the scope of
the future instrument would include those persons seeking international pro-
tection other than under the Geneva Convention. The need to inform asylum
seekers rapidly of their rights was emphasised as was the need to give asylum
applicants some form of evidence of their permission to remain on the terri-
tory of a Member State. The guidelines were undecided on the question of the
5 DG for Justice and Home Affairs, “Study on the legal framework and administrative
practices in the Member States of the European Communities regarding reception
conditions for persons seeking international protection”, Final Report, November
2000, carried out by PLS RAMBOLL Management on behalf of the European
Commission (DG for Justice and Home Affairs). The opinions expressed by the
authors do not necessarily reflect the position of the European Commission.
6 Note from French Delegation to the Asylum Working Party “Conditions for the
reception of asylum seekers”, Brussels, 23 June 2000, Doc no. 9703/00, ASILE 28.
7 1951 UN Convention on the Status of Refugees, Geneva.
8 2314th Council Meeting – Justice, Home Affairs and Civil Protection, Brussels, 30
November and 1 December 2000, Doc no. 13965/00 (Presse 457 – G) “ Conditions
for the Reception of Asylum Seekers – Council Conclusions”.
300
extent to which a place of residence might be decided by the national authorities,

although detention for mere reason of claiming asylum would not be accept-
able. The guidelines left open the question of whether there should be a ban
on employment for asylum applicants or employment under certain conditions.
The need for health care and particular assistance for vulnerable asylum appli-
cants was also included in the guidelines.
After a series of bilateral consultations with Member States as well as
consultation with UNHCR and some other non-government organisation the
Commission published its proposal for the Council directive on the minimum
standards on the reception conditions of applicants for asylum in May 2001.9
In the year following the presentation by the Commission of its proposal, the
Council undertook serious negotiation of the proposal. The Council Asylum
Working Group undertook a first reading of the Commission’s proposed direc-
tive in early September 2001. Compared with previous Commission proposals in
this field, and particularly the initial proposal for the asylum procedures direc-
tive, the reception conditions proposal was generally well received by Member
States.
During the course of its meeting in November 2001 a number of areas of
controversy were solved, although there remained three areas causing greatest
conflict between Member States, namely the scope of the directive, freedom of
movement around Europe and access to the labour market.
Following further discussions, in April 2002 the JHA Council, during its
meeting in Luxembourg, defined a general approach on the Commission’s pro-
posal. Fresh negotiations occurred after this on access to the labour market, at
the insistence of the German Government, and on refusal of reception condi-
tions for those who do not make asylum claims soon after arrival in the Member
State, at the instigation of the UK Government.
Also in April 2002, the European Parliament adopted its opinion on the
Directive, but its views were ignored by the Council. The Directive was duly
adopted officially by the Council in January 2003.
In general the final Directive as agreed by the Council set lower standards
than those proposed by the Commission; some of the most significant differ-
ences are discussed in s. 4 below.
3 Legal Analysis
There is clear legal basis for the adoption of this Directive under Article 63(1)(b)
of the EC Treaty which provides that the Council shall adopt measures relating
to the reception conditions of asylum seekers in Member States. The Conclu-
9 Reference is made to these consultation with Member States and NGOs in the Com-
missions Explanatory Memorandum to the proposed Directive. It is not clear from
that Memorandum which NGOs were consulted with.
301
sions of the Presidency at the Tampere European Council in October 1999 called
for minimum conditions of reception for asylum seekers to be agreed.
The most complex legal issues arise in relation to the compatibility of the
provisions of the Directive with the European Convention on Human Rights, in
particular Articles 3, 5 and 8 thereof. The greatest areas of concern here relate
to the use of detention and the withdrawal of support.
Compatibility with the ECHR dictates that use of detention should be
restricted to circumstances where it is strictly necessary and in accordance with
the standards of Article 5 ECHR, which provides that the right to liberty may
only be removed in certain limited circumstances which in relation to immigra-
tion control are “lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is being
taken with a view to deportation or extradition” (Article 5(1)(f)). Those circum-
stances are to be narrowly construed and detention must be limited to those
circumstances and yet the Directive fails to refer to Article 5 ECHR. Compat-
ibility with Article 5 also dictates that persons who are detained are given access
to a court in order to challenge the legality of their detention speedily. In this
context it should be recalled that “legality” does not simply refer to whether
the detention is in accordance with national law, but also refers to whether the
detention is arbitrary, has not be unduly prolonged and that the alternatives to
detention have been carefully considered and rejected. As a minimum safeguard,
the Directive should have provided for mandatory bail hearings before a court
and a right to bail without sureties.
Compatibility with the ECHR further dictates that it is imperative that stan-
dards of detention centres and accommodation centres are good. In this regard
the case of Dougoz v Greece10 is relevant, as the European Court of Human
Rights found that the conditions of detention for an immigration detainee fell
below the standards of Article 3 and thus constituted inhuman and degrading
treatment or punishment.
The compatibility of withdrawal of reception conditions with Articles 3
and 8 of the ECHR is also questionable if the result of that withdrawal would
have consequences on the applicant that affect his or her physical or moral integ-
rity. Given the absolute nature of Article 3 it is difficult to see that the behaviour
of the applicant, no matter how negative or reprehensible, would permit the
withdrawal or reduction of support if that would inhuman or degrading to the
applicant. In the Council minutes of 27 January 2003, the meeting at which the
Directive was adopted, a statement is included which confirms that Member
States will comply with their international obligations including the ECHR in
decisions relating to the withdrawal and reduction of support.11 In particular,
10 Dougoz v Greece, (2002) 34 EHRR 61

11 Annex to “A” Item note from the General Secretariat of the Council of the Euro-
pean Union, Doc 15722/02, ASILE 83, Brussels, 18 December 2002
302
as a minimum, access to emergency healthcare is to guaranteed in all cases. The

legal status of such statement is questionable however and the ECJ is unlikely to
rule in favour of it having an interpretative value.
The fact that the Directive does not include within its scope persons who
claim international protection outside of the 1951 Convention leaves open the
prospect of Member States acting contrary to their obligations under the ECHR
by making destitute those who do not make claims for asylum.
The lack of standstill clause in the Directive means that although this is
a minimum standards directive, and Member States are free to retain more
favourable provisions, they are not required to do so. However the fact that the
Directive is a Community law measure, concepts and words are to be given a
Community law meaning. Member States therefore should not rely on national
law concepts if these fall below general Community law standards. For example,
it will be for the European Court of Justice to interpret concepts such as “a
standard of living adequate for the health and to enable the subsistence of the
applicants” (Article 13).
Included with the statement to be entered into the Council minutes of 27
January 2003 is a reference to the fact that Austria may regard nationals of the
candidate countries as equivalent to EU citizens, and therefore excluded from
the scope of the Directive. The legality of such a position by Austria is entirely
questionable as is the compatibility of this position with the ECHR.
4 Comment
The provisions of this Directive setting out guarantees for applicants appear to
meet the conditions for direct effect, in particular Articles 5-8, 10-15 and 17-21.
NGOs, for the large part, had been broadly welcoming of the Commission’s
proposed Directive although certain aspects gave rise to considerable concern
and debate. It was acknowledged that several provisions of the Directive (as
originally proposed) set adequate minimum standards and noted the inclusion
of provisions on information and documentation, access to NGOs and legal
advisors, access to primary health care and the reaffirmation of the best inter-
ests of the child as well as the recognition of the need to maintain family unity
and take account of the needs of vulnerable groups.12 A number of organisa-
tions also welcomed the fact that the Commission’s proposed Directive clearly
stated its intended adherence to provision of dignified living conditions. They
welcomed the provisions relating to those with special needs and the provisions
relating to information and documentation provided to asylum applicants.13
12 The Promise of Protection: Progress towards a European Asylum Policy since the
Tampere Summit 1999, November 2001.
13 Joint Comments on the Commission Proposal for a Council Directive laying down
minimum standards on the reception of applicants for asylum in Member States
COM (2001) 181 final, September 2001, Caritas Europa, Churches Commission
303
However, it should be noted that, as outlined above a number of the pro-

visions in the Council’s agreed Directive are substantially weaker than that in
the Commission’s proposal. In particular the reference to the well-being of the
applicant was removed by the Council, as was the reference to the need for the
standard of living be to sufficient for the protection of fundamental rights. Fur-
thermore the definition of family member was limited by the Council to the
spouse or unmarried partner and minor children, and family members are only
covered by the Directive when they are covered by the request for asylum of the
applicant according to national law.
Concern was raised about the potentially low standards that the Commis-
sion’s proposal set particularly in relation to the free movement of persons, health
care and financial assistance. Vigorous objections also centred on the conditions
and circumstances in which reception conditions may be withdrawn or reduced.
However, as noted above, the adopted Directive is substantially worse than the
Commission’s proposal on a number of these issues.
In relation to freedom of movement Member States may limit an applicant’s
freedom of movement for any reason. Furthermore Member States are able to
specify a place of residence on certain grounds. Of greatest concern is the fact
that Member States may “confine” asylum seekers where necessary, although the
circumstances in which this might be so are not limited. Although confinement
is not defined, “detention” is defined as confinement in Article 2(k). Undoubt-
edly the “swift” processing of asylum applications is in the interests of Member
States and asylum seekers and that asylum determination requires co-operation
on the part of both asylum seeker and Member State, a prohibition on free
movement very difficult to justify as necessary and may lead to stigmatisation of
asylum applicants.
Given the increasing use by some Member States of detention, it is notable
that nowhere in this Directive or the agreed Directive on asylum procedures are
minimum conditions and safeguards in respect of detention clearly outlined.
There is a real danger, therefore, that in the face of having to apply certain mini-
mum standards of reception to asylum applicants, Member States will find it
increasingly convenient to resort to the use of detention.
It is unclear what provision for access to material reception conditions there
would be in those cases in which the Member State concerned does not expel the
applicants immediately after a negative decision is made. The wording of Article
3 suggests that for as long as person is permitted to remain on the territory as an
asylum seeker and no final decision is yet made they should have access to recep-
tion conditions. For those who are subject to accelerated procedures where no
suspensive right of appeal exists but where there are delays in removal for some
for Migrants in Europe, Commission of the Bishops’ Conferences of the European

Community, Commission Justice et Paix, International Catholic Migration Com-
mission, Jesuit Refugee Service Europe and Quaker Council for European Affairs.
304
reason and the asylum seekers are therefore allowed to remain on the territory,
they should have access to support if they are not to be left destitute in breach
of Article 3 ECHR.
The minimum level of material assistance is not closely defined although
and much left to discretion of the Member States. However the principles of
the Directive, namely that conditions should be sufficient for the health of the
applicant, must be adhered to in setting the level of assistance.
There were vocal objections to the provisions allowing States to reduce or
withdraw support following certain types of “negative behaviour” set out in
the Directive. However it should be noted that the grounds for withdrawing or
reducing reception conditions are clearly limited to those listed in Article 16 of
the Directive.
Too often in the recent past Member States have sought to restrict access to
employment, social security and other forms of social support in the belief that
such benefits may act as pull factors to asylum seekers who are without genuine
asylum claims. The wish on the part of Member States to dissuade such asylum
seekers negates their obligations to provide a just, humane and secure situation
for the asylum applicants; the position should be that only the highest standards
of reception conditions are acceptable.
The increasing obsession that Member States have with secondary move-
ments and removing pull factors for asylum applicants is founded ultimately in a
lack of political will to truly live up to international human rights standards and
a lack of understanding of driving forces behind the behaviour of most asylum
applicants.
The differentiation in terms of treatment and reception conditions of those
seeking different forms of international protection as well as those at different
stages of an asylum procedure is again reprehensible. Not only is it unjustifi-
able to exclude other binding international protection requirements, particularly
deriving from Article 3 of the European Convention on Human Rights, from
the Directive, it will inevitably lead to disparities in practice across Europe.
The failure to provide legal and social assistance to those in need of inter-
national protection in general may arguably lead to breaches of the European
Convention on Human Rights. It is difficult to see how, for instance, leaving a
person destitute and without permission to work, cannot at least potentially
breach Articles 3 or 8 of the European Convention. In certain circumstances
that will almost certainly be the case, and particular regard should be had for
the age, vulnerability and other special needs of the individual. The absolute
nature of Article 3 essentially means that whatever the “negative behaviour” of
the asylum-seeker, leaving him in a situation which is inhuman or degrading is a
breach of that Article 3.
The provision that the UK Government insisted on being included in the
Directive relating to the ability of Member States to deprive asylum seekers from
support provisions if they do not claim asylum as soon as reasonably practical
305
after arrival for instance has already proven entirely unworkable in the UK. The
UK Courts have had to intervene on numerous occasions to ensure that human
rights obligations are not breached by the denial of support to persons who are
otherwise destitute and unable to provide for themselves.14
The political reality of the Title IV process and the working methods of the
Council dictated that the agreement of the Directive was certainly at the cost
of lower standards. Last minute additions by some Member States agreed to by
others for reasons of political expediency in particular led to considerable criti-
cism of the process by outsiders.
Nevertheless the adoption of common minimum reception conditions is
undoubtedly necessary for the coherence of a harmonised European asylum
system for a number of reasons. The Commission, by way of justification for
its initial proposal for a Directive, pointed out in its Explanatory Memoran-
dum that a divergence in reception conditions risks undermining an otherwise
harmonised procedure if asylum seekers make secondary movements within
the European Union based on reception conditions. Whilst there is little or no
evidence that secondary movements are made on this basis, if secondary move-
ments are to be restricted in the harmonised system and asylum applicants are
not given any choice as to where their asylum applications are to be processed,
they should certainly be entitled to the same minimum standards of reception in
any Member State of the European Union.
Clearly uniformity in terms of the minimum standards of reception condi-
tions is to be welcomed providing that these minimum standards are interpreted
with sufficiently high standards to ensure that asylum seekers are able to live in
dignity with humane living conditions whilst they await the outcomes of their
asylum claims. Compatibility with international human rights standards will
dictate that standards are kept sufficiently high.
14 See for instance R (Q) v SSHD [2003] EWCA Civ 364, [2003] 2 All ER. See most
recently UK House of Lords’ decision in R (on the application of ADAM and others)
v Secretary of State for the Home Department [2005] UKHL 66
306
COUNCIL DIRECTIVE (EC) No. 2003/9/EC of 27 January 2003

laying down minimum standards for the reception of applicants for asylum
in Member States
[OJ 2003 L 31/18]
ticular point (1)(b) of the first subparagraph of Article 63 thereof,
Having regard to the opinion of the Economic and Social Committee,
Having regard to the opinion of the Committee of the Regions,
Whereas:
1. A common policy on asylum, including a Common European Asylum

nity.
2. At its special meeting in Tampere on 15 and 16 October 1999, the European

Council agreed to work towards establishing a Common European Asylum
System, based on the full and inclusive application of the Geneva Conven-
tion relating to the Status of Refugees of 28 July 1951, as supplemented by
the New York Protocol of 31 January 1967, thus maintaining the principle
of non-refoulement.
3. The Tampere Conclusions provide that a Common European Asylum

System should include, in the short term, common minimum conditions of
reception of applicants for asylum.
4. The establishment of minimum standards for the reception of asylum seek-

ers is a further step toward a European asylum policy.
5. This Directive respects the fundamental rights and observes the principles
recognised in particular by the Charter of Fundamental Rights of the
European. Union. In particular this Directive seeks to ensure full respect
for human dignity and to promote the application of Articles 1 and 18 of
the said Charter.
307
6. With respect to the treatment of persons falling within the scope of this
Directive, Member States are bound by obligations under instruments of
international law to which they are party and which prohibit discrimina-
tion.
7. Minimum standards for the reception of asylum seekers that will normally
suffice to ensure them a dignified standard of living and comparable living
conditions in all Member States should be laid down.
8. The harmonisation of conditions for the reception of asylum seekers should

help to limit the secondary movements of asylum seekers influenced by the
variety of conditions for their reception.
9. Reception of groups with special needs should be specifically designed to

meet these needs.
10. Reception of applicants who are in detention should be specifically designed

to meet their needs in that situation.
11. In order to ensure compliance with the minimum procedural guarantees

consisting in the opportunity to contact organisations or persons that pro-
vide legal assistance, information should be provided on such organisations
and groups of persons.
12. The possibility of abuse of the reception system should be restricted by

laying down cases for the reduction or withdrawal of reception conditions
for asylum seekers.
13. The efficiency of national reception systems and co-operation among

Member States in the field of reception of asylum seekers should be
secured.
14. Appropriate coordination should be encouraged between the competent

authorities as regards the reception of asylum seekers, and harmonious
relationships between local communities and accommodation centres
should therefore be promoted.
15. It is in the very nature of minimum standards that Member States have
the power to introduce or maintain more favourable provisions for third
country nationals and stateless persons who ask for international protec-
tion from a Member State.
308
16. In this spirit, Member States are also invited to apply the provisions of this
Directive in connection with procedures for deciding on applications for
forms of protection other than that emanating from the Geneva Conven-
tion for third country nationals or stateless persons.
17. The implementation of this Directive should be evaluated at regular inter-

vals.
18. Since the objectives of the proposed action, namely to establish minimum
standards on the reception of asylum seekers in Member States cannot be
attained by the Member States and can therefore, by reason of the scale
and effects of the proposed action, be better achieved by the Community,
the Community may adopt measures in accordance with the principles of
subsidiarity set out in Article 5 of the Treaty. In accordance with the prin-
ciple of proportionality, as set out in that Article, this Directive does not go
beyond what is necessary in order to achieve those objectives.
19. In accordance with Article 3 of the Protocol on the position of the United
gave notice, by letter of 18 August 2001, of its wish to take part in the
adoption and application of this Directive.
20. Pursuant to Article 1 of the said Protocol, Ireland is not participating in the
adoption of this Directive. Consequently and without prejudice to Article
4 of the aforementioned Protocol, the provisions of this Directive do not
apply to Ireland.
21. In accordance with Articles 1 and 2 of the Protocol on the position of Den-
mark, annexed to the Treaty on European Union and to the Treaty establish-
ing the European Community, Denmark is not participating in the adoption
of this Directive, and is therefore not bound by it nor subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
PURPOSE, DEFINITIONS AND SCOPE
Article 1 Subject-matter
The purpose of this Directive is to establish minimum standards for the recep-
tion of asylum seekers in Member States.
309
For the purposes of this Directive:
(a) “Geneva Convention” shall mean the Convention relating to the status of
refugees done at Geneva on 28 July 1951, as supplemented by the New York
Protocol of 31 January 1967;
(b) “application for asylum” shall mean the application filed by a third coun-
try national or a stateless person which can be understood as a request
for international protection from a Member State, under the Geneva Con-
vention. Any application for international protection is presumed to be an
application for asylum unless a third-country national or a stateless person
explicitly requests another kind of protection that can be applied for sepa-
rately;
(c) “applicant” or “asylum seeker” shall mean a third country national or
a stateless person who has made an application for asylum in respect of
which a final decision has not yet been taken;
(d) “family members” shall mean, in so far as the family already existed in the
country of origin, the following members of the applicant’s family who
are present in the same Member State in relation to the application for
asylum:
(i) the spouse of the asylum seeker or his or her unmarried partner in a
stable relationship, where the legislation or practice of the Member
State concerned treats unmarried couples in a way comparable to mar-
ried couples under its law relating to aliens;
(ii) the minor children of the couple referred to in point (i) or of the appli-
cant, on condition that they are unmarried and dependent and without
distinction according to whether they were born in or out of wedlock
or adopted as defined under the national law;
(e) “refugee” shall mean a person who fulfils the requirements of Article 1(A)
of the Geneva Convention;
(f) “refugee status” shall mean the status granted by a Member State to a
person who is a refugee and is admitted as such to the territory of that
Member State;
(g) “Procedures” and “appeals” shall mean the procedures established by
Member States in their national law;
(h) “unaccompanied minors” shall mean persons below the age of eighteen
who arrive in the territory of the Member States unaccompanied by an
adult responsible for them whether by law or by custom, and for as long
as they are not effectively taken into the care of such a person; it includes
minors who are left unaccompanied after they have entered the territory of
Member States;
310
(i) “reception conditions” shall mean the full set of measures that Member
States grant to asylum seekers in accordance with this Directive;
(j) “material reception conditions” shall mean the reception conditions that
include housing, food and clothing, provided in kind, or as financial allow-
ances or in vouchers, and a daily expenses allowance;
(k) “detention” shall mean confinement of an asylum seeker by a Member
State within a particular place, where the applicant is deprived of his or her
freedom of movement;
(l) “accommodation centre” shall mean any place used for collective housing
of asylum seekers.
Article 3 Scope
1. This Directive shall apply to all third country nationals and stateless per-
sons who make an application for asylum at the border or in the territory
of a Member State as long as they are allowed to remain on the territory
as asylum seekers, as well as to family members, if they are covered by such
application for asylum according to the national law.
2. This Directive shall not apply in cases of requests for diplomatic or territo-
rial asylum submitted to representations of Member States.
3. This Directive shall not apply when the provisions of Directive 2001/55/EC
of 20 July 2001 on minimum standards for giving temporary protection in
the event of a mass influx of displaced persons and on measures promoting
a balance of efforts between Member States in receiving such persons and
bearing the consequences thereof are applied.
4. Member States may decide to apply this Directive in connection with pro-
cedures for deciding on applications for kinds of protection other than that
emanating from the Geneva Convention for third-country nationals or
stateless persons who are found not to be refugees.
Article 4 More favourable provisions
Member States may introduce or retain more favourable provisions in the field
of reception conditions for applicants for asylum and other close relatives of the
applicant who are present in the same Member State when they are dependent
on him or for humanitarian reasons insofar as these provisions are compatible
with this Directive.
311
CHAPTER II
GENERAL PROVISIONS ON RECEPTION CONDITIONS
Article 5 Information
1. Member States shall inform asylum seekers, within a reasonable time not
exceeding fifteen days after they have lodged their application with the com-
petent authority, of at least any established benefits and of the obligations
with which they must comply relating to reception conditions.
Member States shall ensure that applicants are provided with information
about organisations or groups of persons that provide specific legal assis-
tance and organisations that might be able to help or inform them in rela-
tion to the available reception conditions, including health care.
2. Member States shall ensure that the information referred to in paragraph

1 is in writing and, as far as possible, in a language that the applicants may
reasonably be supposed to understand. Where appropriate this information
may also be supplied orally.
Article 6 Documentation
1. Member States shall ensure that, within three days after an application is
lodged with the competent authorities, the applicant is provided with a
document issued in his or her own name certifying his or her status as an
applicant for asylum or testifying that he or she is allowed to stay in the ter-
ritory of the Member State while his or her application is pending or being
examined.
If the holder is not free to move within all or a part of the territory of a
Member State, the document shall also certify this fact.
2. Member States may exclude the application of this Article when the asylum
seeker is in detention and during the examination of an application submit-
ted at the border or within the context of a procedure to decide on the right
of the applicant to legally enter the territory of a Member State. In specific
cases, during the examination of an application, Member States may pro-
vide applicants with other equivalent evidence to the document referred to
in paragraph 1.
3. The document referred to in paragraph 1 need not certify the identity of the
asylum seeker.
312
4. Member States shall adopt the necessary measures to provide asylum seek-
ers with the document referred to in paragraph 1, which must be valid for as
long as they are authorised to remain in the territory of the Member State
concerned or at the border thereof.
5. Member States may provide applicants for asylum with a travel document
when serious humanitarian reasons arise that require their presence in
another State.
Article 7 Residence and freedom of movement
1. Asylum seekers may move freely within the territory of the host Member
State or within an area assigned to them by that Member State. The assigned
area shall not affect the unalienable sphere of private life and shall allow
sufficient scope for guaranteeing access to all benefits under this Directive.
2. Member States may decide on the residence of the applicant for asylum
for reasons of public interest, public order or when necessary, for the swift
processing and effective monitoring of his orher application.
3. When it proves necessary, for example for legal reasons or reasons of public
order, Member States may confine an applicant to a particular place in
accordance with their national law.
4. Member States may make provision of the material reception conditions

laid down in this Chapter subject to actual residence by the applicants in
a specific place, to be determined by the Member States. Such a decision
which may be of a general nature, shall be taken individually and estab-
lished by national legislation.
5. Member States shall provide for the possibility of granting applicants tem-
porary permission to leave the place of residence mentioned in paragraphs
2 and 4 and/or the assigned area mentioned in paragraph 1. Decisions shall
be taken individually, objectively and impartially and reasons shall be given
if they are negative.
The applicant shall not require permission to keep appointments with

authorities and courts if his or her appearance is necessary.
6. Member States shall require applicants to inform the competent authorities

of their current address and notify any change of address to those authori-
ties as soon as possible.
313
Article 8 Families
Member States shall take appropriate measures to maintain as far as possible

family unity as present within their territory, if applicants are provided with
housing by the Member State concerned. The measures mentioned in this Arti-
cle shall be implemented with the asylum seeker’s agreement.
Article 9 Medical screening
Member States may require medical screening for applicants on public health
grounds.
Article 10 Schooling and education of minors
1. Member States shall grant to minor children of asylum seekers and to

asylum seekers who are minors access to the education system under similar
conditions as nationals of the host Member State for so long as an expul-
sion measure against them or their parents is not actually enforced. Such
education may be provided in accommodation centres.
The Member State concerned may stipulate that such access must be con-
fined to the State education system.
Minors shall be younger than the age of legal majority in the Member State
in which the application was lodged or is being examined. Member States
shall not withdraw secondary education for the sole reason that the minor
has reached the age of majority.
2. Access to the education system shall not be postponed for more than three
months from the date the application has been lodged by the minor or the
minor’s parents. This period may be extended to one year where specific
education is provided in order to facilitate access to the education system.
3. Where access to the education system as set out in paragraph 1 is not pos-
sible due to the specific situation of the minor, the Member State may offer
other education arrangements.
Article 11 Employment
1. Member States shall determine a period of time, starting from the date on
which an application for asylum has been lodged, during which an appli-
cant shall not have access to the labour market.
314
2. If a decision at first instance has not been taken within one year of the pre-
sentation of an application for asylum and this delay cannot be attributed
to the applicant, Member States shall decide the conditions for granting
access to the labour market for the applicant.
3. Access to the labour market shall not be withdrawn during appeals proce-
dures, where an appeal against a negative decision in a regular procedure
has suspensive effect, until such time as a negative decision on the appeal is
notified.
4. For reasons of labour market policies, Member States may give priority to
EU citizens and nationals of States bound by the Agreement on the Euro-
pean Economic Area and also to legally resident third-country nationals.
Article 12 Vocational training
Member States may allow asylum seekers access to vocational training irrespec-
tive of whether they have access to the labour market.
Access to vocational training relating to an employment contract shall depend

on the extent to which the applicant has access to the labour market in accor-
dance with Article 11.
Article 13 General rules
1. Member States shall ensure that material reception conditions are available
to applicants when they make their application for asylum.
2. Member States shall make provisions on material reception conditions to

ensure a standard of living adequate for the health of applicants and capa-
ble of ensuring their subsistence.
Member States shall ensure that that standard of living is met in the specific
situation of persons who have special needs, in accordance with Article 17,
as well as in relation to the situation of persons who are in detention.
3. Member States may make the grant of all or some of the material reception
conditions and health care subject to the condition that applicants do not
have sufficient means to have a standard of living adequate for their health
and to enable their subsistence.
4. Member States may require applicants to cover or contribute to the cost of

the material reception conditions and of the health care provided for in this
315
Directive, pursuant to the provision of paragraph 3, when the applicants

have sufficient resources, for example if they have been working for a rea-
sonable period of time.
If it transpires that an applicant had sufficient means to cover these basic

needs at the time when material reception conditions and health care were
being provided, then Member States may ask the asylum seeker for a
refund.
5. Material reception conditions may be provided in kind, or in the form of

financial allowances or vouchers or in a combination of these provisions.
Where Member States provide material reception conditions in the form of

allowances or vouchers, the amount thereof shall be determined in accor-
dance with the principles set out in this Article.
Article 14 Modalities of material reception conditions
1. Where housing is provided in kind, it should take one or a combination of

the following forms:
(a) premises used for the purpose of housing applicants during the exami-
nation of an application for asylum lodged at the border;
(b) accommodation centres which guarantee an adequate standard of
living;
(c) private houses, flats, hotels, or other premises adapted for housing
applicants.
2. Member States shall ensure that applicants provided with the housing
referred to in paragraph 1(a), (b) and (c) are assured:
(a) protection of their family life;
(b) the possibility of communicating with relatives, legal advisers and rep-
resentatives of the United Nations High Commissioner for Refugees
(UNHCR) and non-governmental organisations (NGOs) recognised
by Member States.
Member States shall pay particular attention to the prevention of assault

within the premises and accommodation centres referred to in paragraph
1(a) and (b).
3. Member States shall ensure, if appropriate, that minor children of appli-

cants or applicants who are minors are lodged with their parents or with the
adult family member responsible for them whether by law or by custom.
316
4. Member States shall ensure that transfers of applicants from one housing
facility to another take place only when necessary. Member States shall pro-
vide for the possibility for applicants to inform their legal advisers of the
transfer and of their new address.
5. Persons working in accommodation centres shall be adequately trained and

shall be bound by the confidentiality principle as defined in the national law
in relation to any information they obtain in the course of their work.
6. Member States may involve applicants in managing the material resources

and non-material aspects of life in the centre through an advisory board or
council representing residents.
7. Legal advisors or counsellors of applicants for asylum and representa-

tives of the United Nations High Commissioner for Refugees or non-gov-
ernmental organisations designated by the latter and recognised by the
Member State concerned shall be granted access to reception centres and
other housing facilities in order to assist the said asylum seekers. Limits on
such access may only be imposed on grounds relating to the security of the
facilities and centres and of the asylum seekers.
8. Member States may exceptionally set modalities of material reception con-

ditions different from those provided for in this Article, for a reasonable
period which shall be as short as possible, when :
– an initial assessment of the specific needs of the applicant is required,
– material reception conditions, as provided for in this Article, are not
available in a certain geographical area,
– housing capacities normally available are temporarily exhausted,
– the asylum seeker is in detention or confined to border posts.
These different conditions shall cover in any case basic needs.
Article 15 Health care
1. Member States shall ensure that applicants receive the necessary health care
which shall include, at least, emergency care and essential treatment of ill-
ness.
2. Member States shall provide necessary medical or other assistance to appli-

cants who have special needs.
317
CHAPTER III
REDUCTION OR WITHDRAWAL OF RECEPTION CONDITIONS
Article 16 Reduction or withdrawal of reception conditions
1. Member States may reduce or withdraw the reception conditions in the fol-
lowing cases:
(a) where an asylum seeker:
– abandons the place of residence determined by the relevant
authority without informing it or, if requested, without permis-
sion, or
– does not comply with reporting duties or requests to provide
information or to appear for personal interviews concerning
the asylum procedure during a reasonable period laid down in
national law, or
– has already lodged an application in the same Member State.
When the applicant is traced or voluntarily reports to the relevant
authority, a duly motivated decision, based on the reasons for the dis-
appearance, shall be taken on the reinstallation of the grant of some
or all of the reception conditions;
(b) where an applicant has concealed financial resources and has therefore
unduly benefited from material reception conditions.
If it transpires that an applicant had sufficient means to cover material
reception conditions and health care at the time when these basic needs
were being covered, then Member States may ask the asylum seeker for
a refund.
2. Member States may refuse conditions in cases where an asylum seeker has
failed to demonstrate that the asylum claim was made as soon as reason-
ably practicable after arrival in that Member State.
3. Member States may determine sanctions applicable to serious breaching

of the rules of the places of accommodation as well as to seriously violent
behaviour.
4. Decisions for reduction or withdrawal of reception conditions or sanctions

referred to in paragraphs 1, 2 and 3 shall be taken individually, objectively
and impartially and reasons shall be given. Decisions shall be based on
the particular situation of the person concerned, especially with regard to
persons covered by Article 17, taking into account the principle of pro-
portionality. Member States shall under all circumstances ensure access to
emergency health care.
318
5. Member States shall ensure that material reception conditions are not with-
drawn or reduced before a negative decision is taken.
CHAPTER IV
PROVISIONS FOR PERSONS WITH SPECIAL NEEDS
Article 17 General principle
1. Member States shall take into account the specific situation of vulnerable
persons such as minors, unaccompanied minors, disabled people, elderly
people, pregnant women, single parents with minor children and persons
who have been subjected to torture, rape or other serious forms of psycho-
logical, physical or sexual violence, in the national legislation implementing
the provisions of Chapter II relating to material reception conditions and
health care.
2. Paragraph 1 shall apply only to persons found to have special needs after an
individual evaluation of their situation.
Article 18 Minors
1. The best interests of the child shall be a primary consideration for Member
States when implementing the provisions of this Directive that involve
minors.
2. Member States shall ensure access to rehabilitation services for minor chil-
dren who have been victims of any form of abuse, neglect, exploitation,
torture or cruel, inhuman and degrading treatment, or who have suffered
from armed conflicts, and ensure that appropriate mental health care is
developed and qualified counselling is provided when it is needed.
Article 19 Unaccompanied minors
1. Member States shall as soon as possible take measures to ensure the nec-
essary representation of unaccompanied minors by legal guardianship, or
where necessary, representation by an organisation which is responsible for
the care and well-being of minors, or by any other appropriate representa-
tion. Regular assessments shall be made by the appropriate authorities.
2. Unaccompanied minors who make an application for asylum shall, from the
moment they are admitted to the territory to the moment they are obliged
to leave the host Member State in which the application has been lodged or
is being examined, be placed:
319
(a) with adult relatives;

(b) with a foster-family;
(c) in reception centres with special provisions for minors;
(d) in other accommodation suitable for minors.
Member States may place unaccompanied minors aged 16 or over in recep-

tion centres for adult asylum seekers.
As far as possible, siblings shall be kept together, taking into account the
best interests of the minor concerned and, in particular, his or her age and
degree of maturity. Changes of residence of unaccompanied minors shall
be limited to a minimum.
3. Member States, protecting the unaccompanied minor’s best interests, shall

endeavour to trace the members of the family of unaccompanied minors as
soon as possible. In cases where there may be a threat to the life or integrity
of a minor or his or her close relatives, particularly if they have remained in
the country of origin, care must be taken to ensure that the collection, pro-
cessing and circulation of information concerning those persons is under-
taken on a confidential basis, so as to avoid jeopardising their safety.
4. Those working with unaccompanied minors shall have had or receive appro-
priate training concerning their needs, and shall be bound by the confiden-
tiality principle as defined in the national law, in relation to any information
they obtain in the course of their work.
Article 20 Victims of torture and violence
Member States shall ensure that, if necessary, persons who have been subjected
to torture, rape or other serious acts of violence receive the necessary treatment
of damages caused by the afore-mentioned acts.
CHAPTER V
APPEALS
Article 21 Appeals
1. Member States shall ensure that negative decisions relating to the granting
of benefits under this Directive or decisions taken under Article 7 which
individually affect asylum seekers may be the subject of an appeal within
the procedures laid down in the national law. At least in the last instance the
possibility of an appeal or a review before a judicial body shall be granted.
320
2. Procedures for access to legal assistance in such cases shall be laid down in
national law.
CHAPTER VI
ACTIONS TO IMPROVE THE EFFICIENCY OF
THE RECEPTION SYSTEM
Article 22 Cooperation
Member States shall regularly inform the Commission on the data concerning
the number of persons, segregated by sex and age, covered by reception condi-
tions and provide full information on the type, name and format of the docu-
ments provided for by Article 6.
Article 23 Guidance, monitoring and control system
Member States shall, with due respect to their constitutional structure, ensure
that appropriate guidance, monitoring and control of the level of reception con-
ditions are established.
Article 24 Staff and resources
1. Member States shall take appropriate measures to ensure that authorities

and other organisations implementing this Directive have received the nec-
essary basic training with respect to the needs of both male and female
applicants.
2. Member States shall allocate the necessary resources in connection with the
national provisions enacted to implement this Directive.
CHAPTER VII
FINAL PROVISIONS
Article 25 Reports
By 6 August 2006, the Commission shall report to the European Parliament and
the Council on the application of this Directive and shall propose any amend-
ments that are necessary.
Member States shall send the Commission all the information that is appropri-
ate for drawing up this that report, including the statistical data provided for by
Article 22 by 6 August 2006.
321
After presenting the report, the Commission shall report to the European Par-
liament and the Council on the application of this Directive at least every five
years.
Article 26 Transposition
1. Member States shall bring into force the laws, regulations and administra-
tive provisions necessary to comply with this Directive by 6 February 2005.
They shall forthwith inform the Commission thereof.
When the Member States adopt those measures, they shall contain a refer-
ence to this Directive or shall be accompanied by such a reference on the
occasion of their official publication. Member States shall determine how
such a reference is to be made.
2. Member States shall communicate to the Commission the text of the provi-
sions of national law which they adopt in the field relating to the enforce-
ment of this Directive.
Article 27 Entry into force
This Directive shall enter into force on the twentieth day following that of its
publication in the Official Journal of the European Communities.
Article 28 Addressees
This Directive is addressed to the Member States in accordance with the Treaty
establishing the European Community.
322
Chapter 13 Refugee Definition and Subsidiary
Protection
1 Summary
Council Directive 2004/83/EC on minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or as persons
who otherwise need international protection and the content of the protection
granted was adopted on 29 April 2004 after intense and protracted negotiations
(see the Annex). A draft Directive was first proposed by the European Com-
mission in September 2001 following considerable consultation with Member
States.1 The Directive defines who is a refugee and who is otherwise in need of
international protection. It is quite proscriptive in its formulation. The most
controversial issue initially was the inclusion of non-state agents of persecu-
tion, which contradicts both German and French law. Other controversial issues
included the definition of who is otherwise in need of international protection
and the exclusion clauses.
The scope of the Directive includes 1951 Convention refugees and those
otherwise in need of protection (subsidiary protection) (Article 1). The Direc-
tive limits eligibility for refugee status or subsidiary protection to “third country
nationals or stateless persons” (Article 2(d) and (e)). It is thus not applicable to
nationals of EU Member States. There is no standstill clause in the Directive
although States may retain more favourable provisions (Article 4).
There are facts and evidence that should be taken into account in assess-
ing a claim including a presumption that past persecution will be repeated in
the future (Article 4(4)) and that failure to produce documentary evidence is
not fatal to a claim providing his general credibility is established (Article 4(5)).
Whilst persecution may be based on events which have taken place since the
applicant left his or her country of origin, Member States may determine a claim
1 COM (2001) 510, 12 Sep. 2001; OJ 2002 C 51 E/325.
for refugee status negatively if the risk of persecution is based on circumstances

created by the applicant since he or she left his or her country of origin (Article
5(1) and (3)).
The Directive makes clear that non-State actors can be agents of perse-
cution if it can be shown that the State authorities are unable or unwilling to
provide protection (Article 6). Non-State actors, both parties and international
organisations, may also be “actors of protection” (Article 7).
The Directive permits Member States to reject applications for interna-
tional protection where it can be shown that in part of the country of origin of
the applicant there is no real risk of suffering serious harm or being persecuted
and the applicant can “reasonably” be expected to stay in that part of the coun-
try (Article 8).
Chapter III deals with qualification for being a refugee. Acts of persecution
are defined by reference to the ECHR (Article 9) and can include mental vio-
lence, prosecution, discriminatory punishment, punishment for refusal to per-
form military service. The 1951 Convention reasons for persecution are repeated
and elaborated upon (Article 10).
The circumstances in which cessation of refugee status applies include reav-
ailment of nationality or protection from home state and change of circum-
stances (Article 11). The exclusion clauses include a reference to Article 1 D of
the Geneva Convention and to persons for whom there is reason to believe that
they have committed crimes against humanity and serious non-political crimes
and acts contrary to the UN principles (Article 12).
Article 14 provides that Member States must revoke or refuse to renew refu-
gee status where the person ceases to qualify as a refugee in accordance with
Article 11 or where it is established that the person should be excluded from
refugee status in accordance with Article 12. Member States are also able revoke
or refuse to renew the status if there are reasonable grounds for regarding the
refugee as a danger to the security of the Member State or if he has been con-
victed of a particularly serious crime (Article 14(4)).
Articles 15–17 contain provisions concerning the qualification for subsid-
iary protection. A person qualifies for this status if they fear serious harm, which
consists of the death penalty, torture or inhuman or degrading treatment or a
serious and individual threat to a civilian’s life in internal armed conflict (Article
15).
A person ceases to be qualified for subsidiary protection status once the
circumstances cease to exist (Article 16). There is mandatory exclusion for those
who have committed crimes against humanity, a serious crime, acts contrary to
UN principles or are a danger to the community or the security of a Member
State (Article 17(1)). Member States may also exclude those who have com-
mitted one or more other crimes outside their territories if such crime would
be punishable by imprisonment in their States and if the person left his or her
country of origin to avoid sanctions resulting from these crimes (Article 17(3)).
324
Chapter 13 Refugee Definition and Subsidiary Protection
According to Article 19, Member States must revoke or refuse to renew subsid-
iary protection status if the person ceases to qualify in accordance with Article
16 or if the person should have been excluded in accordance with Article 17(1)
or misrepresented or omitted facts which were decisive for the granting of status
(Article 19(3)(b)).
Articles 20 to 34 deal with the content of international protection and the
rights accruing to those who qualify for refugee status or subsidiary protection.
Unless otherwise stated the rights apply to both those with refugee status and
subsidiary protection status (Article 20(2)). Member States are instructed to take
into account the specific situation of vulnerable persons including unaccom-
panied minors, disabled persons, single parents and victims of torture (Article
20(3)). Rights can be reduced for persons with either refugee status or subsidiary
protection status where that status has been obtained “on the basis of activities
engaged in for the sole or main purpose” of obtaining that status (Article 20(6)
and (7)).
The general principle of non-refoulement is recalled in Article 21. However,
if international law does not prevent refoulement where that person represents a
danger to the security of the EU Member State or having been convicted of seri-
ous crime he constitutes a danger to the community, Member States may refoule
the person (Article 21(2)).
The Directive provides for “maintaining” of family unity for those with ref-
ugee status or subsidary protection (Article 23). However, Member States may
define the conditions applicable to the family members of those with subsid-
iary protection status for obtaining the benefits set out in the Directive (Article
23(2)).
The beneficiaries of refugee status and their families are to be issued with
residence permits valid for at least three years (Article 24(1)), whilst those with
subsidary protection status are to issued with residence permits valid for at least
one year (Article 24(2)). There is no minimum period of validity of the residence
permit issued to the family members of those with subsidiary protection (Article
24(2)).
Article 24 provides for travel documents to be issued for refugees in accor-
dance with the 1951 Convention and when serious humanitarian reasons arise
for those with subsidary protection.
Those with refugee status are to be given immediate access to the labour
market whereas in relation to those with subsidiary protection status Member
States may take into account the situation in the labour market for a limited
period of time (Article 26).
All minors are to be granted full access to the education system, whereas
adults are to given access to further education on the same conditions as other
third country nationals legal resident in a State (Article 27).
The Directive provides that beneficiaries of refugee or subsidiary protec-
tion status are given equal access to social welfare as nationals of Member States
325
(Article 28(1)). However Member States may limit social assistance granted to
those with subsidiary protection status to core benefits only (Article 28(2)).2
Likewise, both beneficiaries of refugee and subsidariy protection status are to
be granted equal access to health care as own nationals, although in the case of
those with subsidary protection status this can be limited to core benefits only
(Article 29).3
Special provisions for unaccompanied minors are included in the Direc-
tive such as a requirement to arrange to establish a legal guardianship and their
placement in suitable accommodation (Article 30). Where possible, siblings are
to be kept together.
Those granted refugee or subsidiary proteciton status are to have equal
access to housing and the same rights of free movement as compared to other
third country nationals legally resident in the State (Articles 31 and 32). Member
States are directed to make provision for integration programmes for refugees
(Article 33(1)) and where it is considered appropriate those with subsidiary pro-
tection status are to be granted access to such programmes (Article 33(2)).
Articles 35 and 36 include provisions about administrative cooperation and
the appointment of national contact points for liaison between Member States
and the Commission.
The final provisions of the Directive include an obligation for the Commis-
sion to report on the application of the Directive in the Member States by 10
April 2008 (Article 37). The Commission must consider making amendments,
by way of priority, to the Articles defining subsidiary protection and concern-
ing employment and integration. Member States have until 10 October 2006
to transpose the provisions of the Directive into their national laws (Article
38). The temporal scope of the Directive (as regards persons whose application
is pending on this date, or who have already been granted a recognised status
beforehand) is further discussed in Chapter 1.

The Council agreed a “Joint Position” on the definition of refugee status in
1996,4 but never agreed a measure relating to the content of that status or to the
content or definition of subsidiary protection status. Inevitably, it was felt neces-
sary to address these topics as part of the development of the Common Euro-
pean Asylum System, and so the Commission proposed its Directive covering all
of these issues in September 2001.5 The proposed Directive gathered dust for six
months after the but once they started negotiations took an intensive pace. The
2 A definition of “core benefits” appears in point 34 of the preamble.

3 See ibid.
4 OJ 1996 L 63/2.
5 N. 1 above.
326
first reading of the Directive by the Council asylum working group in April 2002
considered Articles 1-12, then the first reading of the provisions on definitions
was completed in June.6 Skipping the usual second reading, the Danish Presi-
dency then submitted suggested amendments to a number of key provisions in
light of delegations’ comments.7 Discussions on the definitions then followed
parallel tracks, with the core definitions of “refugee” and “subsidiary protec-
tion” discussed in one track and the other provisions relating to definitions dis-
cussed in a second track.8 The core definitions were almost agreed at the JHA
Council of October 2002, and were then formally agreed by Coreper shortly
afterward, while the great majority of the other provisions were agreed by the
JHA Council in November 2002.9 The outstanding issues at that time related to
refugees sur place, persecution by non-state agents, persecution on grounds of
gender, revocation of refugee status, exclusion from subsidiary protection status
and revocation of subsidiary protection status. Subsequently, detailed discus-
sion on the content of status began in December 2002 in the Council’s asylum
working party. The Council agreed on all aspects of the Directive in June 2003,
apart from reservations from the German and Austrian delegations regarding
the application of the Directive to victims of “non-state” persecution and cer-
tain issues concerning status. A final compromise agreement on these issues was
brokered during the Irish Presidency early in 2004.10 The Council then reached
political agreement on the proposal in March 2004 and adopted the Directive in
April 2004, just before the legal deadline to adopt it set by Article 63 EC.
A number of changes were made to the text of the Directive during nego-
tiations. As regards the definitons, the final Directive defines “refugee status” as
a recognition of that status by a Member State, rather than a granting of that
6 Council doc. 7882/02, 24 Apr. 2002, outcome of proceedings of meeting on 8 Apr.

2002; Council doc. 9038/02, 17 June 2002, outcome of proceedings of meeting on
4-5 June 2002.
7 Council doc. 10596/02, 9 July 2002, outcome of proceedings of meeting on 2 and 3
July 2002, concerning Articles 1-8; Council doc. 11356/02, 6 Sep. 2002, outcome of
proceedings of meeting on 24-25 July 2002, with revisions of Articles 1-12.
8 See Council docs. 12148/02, 20 Sep. 2002; 12199/02, 25 Sep. 2002; 12382/02, 30
Sep. 2002; 12534/02, 7 Oct. 2002; 12619/02, 9 Oct. 2002; 12620/02, 23 Oct. 2002;
13354/02, 23 Oct. 2002; 13623/02, 30 Oct. 2002; 13646/02, 31 Oct. 2002; 13623/02
add 1, 30 Oct. 2002; 13648/02, 8 Nov. 2002; 14308/02, 15 Nov. 2002; 14643/02, 22
Nov. 2002; 14643/1/02, 26 Nov. 2002; and 14643/1/02 add 1, 27 Nov. 2002.
9 See agreed text with outstanding reservations in Council doc. 15068/02, 13 Dec.
2002. This covers Arts. 1-19 of the proposal, excepting Art. 18 and the treatment of
family members, which will be addressed along with the issue of status.
10 For specific comment on the final compromises, see Peers, “Key Legislative Devel-
opments on Migration in the European Union”, 6 EJML (2004) 243 at 247-249.
327
status.11 A corresponding amendment was made to the definition of “subsid-

iary protection status”.12 Next, the definition of “family member” was narrowed
to correspond to the final text of the reception conditions Directive,13 with the
result that it only applies if the “family already existed in the country of origin”
and if “present in the same Member State in relation to the application for inter-
national protection”, with unmarried partners only included where national
“aliens” law treats those partners the same way as spouses. Only “minor” chil-
dren are included and extended family are deleted, although Member States
have the option to extend the relevant rules to extended family members.14 Sec-
ondly, the idea that refugee or subsidiary protection status should be extended
to all “accompanying family members” (subject to the exclusion clauses) was
weakened so that the family members instead have a more limited right to claim
certain benefits attaching to refugee or subsidiary protection status (as discussed
in detail below), but not the status itself.15 The initial proposed limitation on the
scope of the Directive, limiting it to cases of applications on the territory or at
the border, was also deleted.16
A number of important changes were also made to the “horizontal” provi-
sions in Articles 4-8, applying to both refugee definition and subsidiary protec-
tion. Article 4, concerning assessment of claims, was restructured, and a number
of procedural principles were added, including the option to place the burden
of proof on an applicant for protection and obligations to furnish far more
information during the procedure.17 Article 5 on protection sur place was altered
so that in place of an exclusion for cases where a person engaged in activities
after leaving the country of origin “for the sole purpose of creating the neces-
sary conditions” for a claim for protection, taking account of any link with prior
convictions held by that person,18 it is an option for Member States to deter-
mine that, “[w]ithout prejudice to the Geneva Convention”, applicants who file
a subsequent application shall “not normally be granted refugee status, if the
risk of persecution is based on circumstances which the applicant created by his
[or her] own decision since leaving the country of origin.” This provision clearly
11 See the proposed and final versions of Art. 2(d).

12 Art. 2(f) of the proposed and final Directives.
13 Art. 2(j) of the proposal and Art. 2(h) of the final Directive. On the reception condi-
tions Directive, see Ch. 12.
14 Art. 23(5) of the final Directive.
15 Compare Art. 6 of the proposal with Art. 23 of the final Directive. It should be
recalled that the status of family members of refugees is also regulated by the family
reunion Directive: see Ch. 19.
16 Art. 3 of the proposed Directive.
17 Compare with Art. 7 of the proposed Directive.
328
does not apply to subsidiary protection claims and moreover only applies to
cases of subsequent applications, a principle not defined in this Directive but in
the asylum procedures Directive.19 Article 6 on agents of persecution or serious
harm was amended to require it to be “demonstrated” that the relevant actors
(including the addition of international organisations) are unable or unwilling
to provide effective protection against non-state agents, and to specify that a
source of persecution or harm can also include parties or organisations control-
ling “a substantial part” of the state.20 A separate Article 7 of the Directive was
drafted on the specific issue of “actors of protection”,21 retaining the principle
that international organisations can provide protection,22 and even adding that
Council acts can give guidance as to whether effective protection is provided by
such bodies. The factors of protection were broadened so that there must be “an
effective legal system” for ensuring such protection, although the final Directive
specifies only that the applicant must have “access” (not “reasonable access”)
to such protection. The “internal protection alternative” in Article 8 will apply
where there is a risk-free part of the country where the applicant “can reasonably
be expected to stay”; the provision setting out a “strong presumption against”
the internal protection alternative where the agent of persecution was the state
(or associated with it) was deleted; the principle can apply in spite of “technical
obstacles to return”; and the personal and general circumstances Member States
must consider before applying the principle were simplified.23
As to the core of refugee status, Article 9 on “acts of persecution” was sim-
plified and now consists of a paragraph on severity of the acts, a paragraph with
a non-exhaustive list of the forms such acts can take, and an obligation to find
a link between the acts and the grounds of persecution.24 The acts must be “suf-
ficiently serious by their nature or repetition” as to constitute a severe violation
of basic human rights, “in particular” the non-derogable rights under Article
15 ECHR, or be “an accumulation of various measures, including violations of
human rights which are sufficiently severe” as to fall within the first criterion.
Six examples are given: acts of violence; legal or similar measures which are
discriminatory; disproportionate or discriminatory prosecution or punishment;
denial of judicial redress resulting in the same outcome; prosecution or punish-
19 See Ch. 14.

20 Compare with Art. 9(1) of the proposed Directive.
21 Compare with Art. 9(2) and (3) of the proposed Directive.
22 Although the express proviso that such bodies must be able to provide protection
for individuals “in a manner similar to an internationally recognised State” was
dropped, such a principle can be inferred from the final Art. 7(2), which makes no
distinction between State and non-State actors of protection on the issue of deter-
mining the existence of effective protection.
329
ment for refusal to serve in a military conflict which would lead to acts falling
within the scope of the exclusion clause;25 and “acts of a gender-specific or child-
specific nature”. As for the grounds of persecution (Article 10),26 the final Direc-
tive includes the Commission’s proposed definitions of “race”, “definition” and
“nationality”, with changes to the definitions of “particular social group” and
“political opinion”. For the former, the final Directive requires that the group
members have an innate characteristic, common background or characteristic
that it would be unjust to force to change and that the group has a distinct iden-
tity; sexual orientation might be a common characteristic but this cannot apply
where the acts would be criminal under the “national law of the Member States”.
At French insistence, the prospect of “gender” as an example of social group is
referred more ambiguously in the final Directive: “gender-related aspects might
be considered, without by themselves alone creating a presumption for the appli-
cation” of the principle. As for “political opinion”, it was broadened to include
any opinion related to the persecutors, not just the policy of a state.
There were significant changes to the cessation and exclusion clauses.
Article 11 on cessation of refugee status was revised so that Member States are
required to “have regard” to whether the change of circumstances is sufficiently
significant and lasting.27 Next, the exclusion clause in Article 12 was revised to
delete several protections proposed by the Commission (judicial review, contin-
ued effect of other international obligations, application only to the “personal
and knowing conduct” of the person),28 and to add two elements not found in
Article 1.F of the Geneva Convention: the exclusion of those who have commit-
ted cruel crimes with an allegedly political objective and of those who “instigate
or otherwise participate” in Article 1.F activities (as redefined).
At the end of the provisions on refugees, the two provisions on “granting”
and “revocation” of refugee status were added during negotiations (Articles 13
and 14), although there are no such concepts in the Geneva Convention.
After difficult discussions, a complex deal was reached on the definition of
subsidiary protection in Article 15 of the Directive. First of all, it will only be
necessary to show a risk of “serious” harm, not “serious unjustified harm” as the
Commission had proposed. Secondly, the Commission had proposed applica-
tion of the concept in the case of torture and inhuman and degrading treatment
where there was a “violation of a human right, sufficiently severe to engage the
Member State’s international obligations”, or where there was a threat to “life,
safety or freedom” because of “indiscriminate violence arising in situations of
25 This seems narrower than the approach to conscientious objection in Art. 11(1)(d)(ii)
of the initial proposal.
27 Compare with Art. 13 of the proposed Directive. See also Art. 14(1) and (2) of the
final Directive.
330
armed conflict”, or as a result of “systematic or generalised violations of their

human rights”. The Council agreed instead that the concept will cover the death
penalty or execution; torture and other inhuman or degrading treatment; and
“serious and individual threat to a civilian’s life or person by reason of indis-
criminate violence in situations of international or internal armed conflict”.
As for subsidiary protection, the cessation clause (Article 16) is similar to
the Commission’s initial draft, except that the burden of proof to apply the clause
is less clearly upon the Member State. The relevant exclusion clause (Article 17)
originally simply used the wording of Article 1.F of the Geneva Convention.
But the final Directive requires exclusion where a person had merely “committed
a serious crime”, in place of exclusion for committing a “serious non-political
crime” prior to admission, along with cases where a person was “a danger to the
community or to the security” of that Member State. The rule on “participa-
tion” or “instigation” would also apply. Moreover, Member States could also
optionally exclude persons who had committed petty crimes, if they could be
punishable by imprisonment in that Member State and if the person in question
fled to avoid imposition of sanctions. There is no link made with the possibility
of disproportionate or discriminatory punishment. The Council again deleted
the express protections of judicial review, continued effect of other international
obligations, and application only to the “personal and knowing conduct” of the
person. The provisions on granting and revoking subsidiary protection status
(Articles 18 and 19) were added during negotiations.
As for the content of refugee or subsidiary protection status, Article 20 was
amended to remove family members, truncate the list of persons with special
needs, specify that the needs of such persons must be established on a case-by-
case basis, refer to the best interests of the child and permit reduction of benefits
in certain sur place cases.29 The provision on non-refoulement (Article 21) was
amended to provide that where the Member States’ international obligations do
not provide otherwise, a person may be refouled on the grounds set out in Article
33 of the Geneva Convention.30
As noted above, family members accompanying refugees or persons with
subsidiary protection will not, as the Commission had proposed, have the right
to claim the refugee or subsidiary protection status of the sponsor, but only the
right to claim the content of that status as set out in Articles 24 to 34 of the
Directive.31 Moreover, as part of the final compromise on the Directive, there
appears to be a form of opt-out from this key provision as regards the family
members of persons with subsidiary protection. Member States may “define the

31 These Articles concern residence permits, travel documents, employment, educa-
tion, social welfare, health care, unaccompanied minors, accommodation, freedom
of movement, integration facilities and repatriation.
331
conditions applicable to such benefits” for them, as long as they “ensure that any
benefits provided guarantee an adequate standard of living”.32
Next, residence permits for refugees will only be valid for three years and
renewable, rather than for five years and renewed automatically, and the period
of validity for family members may be shorter. Residence permits for persons for
subsidiary protection must be for at least one year and renewable, rather than
renewable automatically. In both cases, an exception for “compelling reasons
of national security or public order” was added.33 The proposal to extend long-
term residence status to beneficiaries of subsidiary protection in accordance with
the proposed EC directive was deleted entirely.34 Furthermore, the obligation to
grant a travel document to beneficiaries of subsidiary protection was subjected
to an exception for “compelling reasons of national security or public order”
and potentially limited to serious humanitarian situations.35
As for employment and self-employment,36 rather than immediate equal-
ity of access for refugees and a six-month wait for beneficiaries of subsidiary
protection, Member States would have to grant access immediately to both cat-
egories; it is not clear whether an equality rule applies. But as part of the final
agreement on the Directive, it was agreed that for beneficiaries of subsidiary pro-
tection, “the situation of the labour market in the Member States may be taken
into account, including for possible prioritisation of access to employment for
a limited time to be determined in accordance with national law.”37 However,
Member States will have to permit a beneficiary of subsidiary protection to take
up a job offer made in accordance with any national rules on priority of access.
Also, the provision requiring equal treatment as regards remuneration, access
to social security and working conditions was amended to read that “the law in
force” on such issues will apply.
Equal treatment regarding recognition of diplomas was limited to foreign
diplomas, and access to certain types of education by adults must be granted
on a footing of equality with third-country nationals, not nationals. It is also
unclear whether family members (particularly children) without protection
status will be fully subject to the education provisions.38 Next, as part of the
final compromise on the Directive, the provisions on social welfare and health
permit Member States to confine their obligation to “core benefits” as regards
beneficiaries of subsidiary protection status (although the core benefits would
32 Art. 23(3), second and third sub-paragraphs.

33 Compare Art. 24 of the final Directive to Art. 21 of the proposal.
37 Art. 26(3) of the Directive.
332
still have to be provided on an equal footing with nationals).39 The provisions

on unaccompanied minors were redrafted, in part on the basis of the reception
conditions Directive.40 Access to accommodation and free movement within a
Member State was granted by comparison to other third-country nationals.41
Finally, as part of the final agreement on the Directive, Member States essen-
tially have an option as to whether to permit beneficiaries of subsidiary protec-
tion to have access to integration programmes.42
The EP gave its view on the Directive in October 2002.43 It suggested sub-
stantial improvements to the text, concerning in particular: a “non-regression”
clause to discourage Member States from reducing their standards to the level
in the Directive; the extension of protection status to family members who enter
later; the addition of sexual orientation, ethnic group status and gender to the
grounds of persecution for Geneva Convention refugees; clarification of effec-
tive State protection from non-state agents of persecution; the deletion of the
concept of non-state protection; stringent conditions for application of the con-
cept of “internal flight alternative”; substantive limits on and procedural rights
regarding application of the cessation clause; a widening of the grounds for
subsidiary protection; and equality between persons with subsidiary protection
and refugee status as regards all aspects of the content of protection. However,
the EP also wished to widen the exclusion clauses and delete the provision stat-
ing that later activities could give rise to protection needs sur place. There is no
indication that the EP view influenced the Council.
3 Legal Analysis
There are a number of legal issues that arise in relation to this Directive. The first
relates to the relationship that the Directive has to relevant international instru-
ments such as the Geneva Convention, the European Convention on Human
Rights and the Convention against Torture. The Drective fails to make clear the
primacy of international instruments particularly the 1951 Convention. Whilst
the European Court of Justice could be expected to construe the Directive con-
sistently with the Convention and Member States’ obligations under that Con-
39 Compare Arts. 28 and 29 of the final Directive to Arts. 26 and 27 of the proposal.
On the exception, see Arts. 28(2) and 29(2). However, there is no distinction permit-
ted as regards health care where there are “special needs”, as defined non-exhaus-
tively in the Directive (Art. 29(3)); this provision appears to be broader in scope
than proposed by the Commission. For the definition of “core benefits”, see para-
graph 34 of the preamble.
41 Compare Arts. 31 and 32 of the final Directive to Arts. 29 and 30 of the proposal.
43 OJ 2003 C 300 E/134.
333
vention,44 it might alternatively be argued that, as the EC is not a party to the

1951 Convention, the European Court of Justice is obliged only to interpret EU
law. Express reference to Member States’ international obligations would have
created legal certainty and give primacy to the international instruments.
Were a direct conflict to arise between the obligations under international
instruments and those imposed by the Directive difficulties for the Court of Jus-
tice in interpretation would invariably arise. The lack of an international arbi-
trator or court with specific supervisory powers over the Geneva Convention
means that the failure to give full effect to that Convention would have little or
no consequences for the EU or indeed the individual Member States in terms of
accountability. This is of course contrasted with the ECHR, where a failure of
the Directive to meet the standards imposed by the ECHR would result in the
European Court of Human Rights being able to provide just satisfaction to an
affected party.45
This problem is possibly best demonstrated by the limitation in scope of the
Directive to third country nationals and stateless persons, which (as regards ref-
ugees) reflects the language of Article 63(1)(c) of the EC Treaty itself. Such limi-
tation is arguably in conflict with the Member States’ obligations under the 1951
Convention, which contains no limitation on its personal scope. The House of
Lords Select Committee on European Union observed that there is a potential
vires problem due to the limitation on scope in the EC Treaty itself. It concluded
that even if the scope of the Directive could not be widened to include nation-
als of Member States, responsibilities under the 1951 Convention “cannot as a
matter of international law, be thereby limited”. Unfortunately it is the justicia-
bility of that point that creates the legal problem. Would the Court of Justice be
able to even accept a reference that related to the application of the Directive to
a national of a Member State under Title IV of the EC Treaty?
4 Comments
The provisions of much of this Directive meet the criteria for direct effect, in
particular Articles 13, 18 and 21-33.
The Commission’s proposal for a Directive was broadly welcomed by
Member States, NGOs and other observers. This was in stark contrast for
instance with the Commission’s proposed Directive on asylum procedures and
probably reflected the extent to which the Commission had consulted Member
States as well as civil society prior to releasing its draft directive.
44 See for instance paragraph 34 of the House of Lords’ Select Committee on Euro-
pean Union’s Report on “Defining Refugee Status and Those in Need of Interna-
tional Protection”, Session 2001-02, 28th Report, HL Paper 156.
45 See for instance Matthews v United Kingdom, 18 February 1999, [1999] 28 EHRR
361
334
Concerns do, however, arise from the Directive. As regards the scope of
the Directive, it has been observed that limiting the definition to third country
nationals or stateless persons does not accord with the definition of a refugee as
set out in the 1951 Convention itself and observe that this definition does not
replicate the precise wording of the refugee definition contained in the 1951 Con-
vention. Whilst it is acknowledged that it is very unlikely that nationals on the
present EU Member States would have a need for refugee protection, this does
not justify restricting the definition of a Directive which purports to give effect
to an international instrument.46 Similarly, the protection of Article 3 ECHR is
not limited by nationality and with the accession of 10 new States to the EU in
May 2004 it is not inconceivable that there would still be need to provide inter-
national protection for their nationals.
Furthermore, and probably of most concern, is the “exportability” of EU
concepts and definitions in this field and critics have observed the readiness of
non-EU States to mimic the EU, particularly when there is an incentive in terms
of possible accession or financial benefit in doing so.
It is regrettable that the Directive does not contain a standstill clause. How-
ever, Article 3 may provide an adequate safeguard against the denigrating of
rights, given that those States which already have more favourable provisions are
likely to wish to retain them.
Article 5 provides that a claim for international protection may be based
on events which have taken place since the applicant has left his country of
origin. Article 8(2), however, excludes from protection those who have engaged
in activities for the sole purpose of creating the necessary conditions for making
an application for international protection. A number of critics have expressed
concern at this qualification. As observed by UNHCR the assessment of a claim
for international protection must be based on the need for that protection and
the repercussions for the applicant if they are to be refouled, not on why that
need comes about.47 Whilst there will doubtless be close scrutiny of an appli-
cation that is based on “self serving” activities, if risk of harm is nonetheless
established international protection must be given. There is a real danger that
this provision will result in an over-emphasis in assessment of the motivations
of the applicant rather than the assessment of the well foundedness of the claim
that the applicant faces a risk of persecution on return to his country of origin.
There is overwhelming support amongst commentators and NGOs for the
provision in Article 6 outlining the actors of persecution in that it accords with
the internationally accepted view and common jurisprudence of the majority
46 See Memorandum by the United Nations High Commissioner for Refugees

(UNCHR) to the House of Lords Select Committee on the European Union, in HL
Paper 156, 16 July 2002.
47 Evidence to the House of Lords’ Select Committee by UNHCR, p. 18, Q 99, HL
Paper 156, 16 July 2002.
335
of Member States that non-state actors may be agents of persecution for the
purposes of Article 1(A) of the 1951 Convention.48 In most commentators’ view
there is nothing in the language of the Geneva Convention that can support a
suggestion that persecution must emanate from the State or be attributable to
the State. The opposite view taken by a few Member States in the European
Union caused great difficulty in the working of the Dublin Convention, demon-
strated by the number of cases taken to the courts in the UK, for instance, on
the difference in approach.49
The inclusion of non-State actors as providers of protection, however, is
more problematic. The provision in Article 7(1) that international organisations
and parties may be considered as protectors for the purposes of the Directive
appears to be an import not found in any UNHCR document or guidance. It is
questionable whether non-State or quasi-State bodies can provide “protection”
which is equivalent to that provided by a State. International organisations and
quasi-State authorities are not parties to international human rights instruments
and are therefore unaccountable in international law. This provision does at least
require that non-State bodies must be in “control” of a significant part of a State
and furthermore that they should have in place necessary mechanisms to detect,
prosecute and punish acts constituting persecution or serious harm. This does at
least go some way to meeting the standards of protection set for instance by the
European Court of Human Rights.50
There are numerous examples in the last century of the inadequacy of pro-
tection offered by international organisations, for example in Rwanda, which is
unsurprising given that an international organisation is only likely to have lim-
ited control and authority over territory and will not be able to carry out the full
functions of a State. Quasi-State authorities tend to be similarly transient, they
may be unstable and their control will not necessarily even be accepted. Their
political instability and the fact that they are not parties to international human
rights instruments make them entirely unsuitable as protectors of human rights
standards.
Article 8 provides for the circumstances in which an applicant might be rea-
sonably expected to return to another part of their own country, often referred
to as the internal flight alternative. Notable is the inclusion of the personal cir-
cumstances which should be taken into account when considering the viability
48 See, for instance, the evidence given the House of Lords’ Select Committee on Euro-
pean Union by Professor Guy Goodwin Gill, Professor of International Refugee
Law, University of Oxford, p. 7, Q. 26, HL Paper 156, 16 July 2002.
49 See, for instance, R v the Secretary of State for the Home Department,ex parte Adan,
House of Lords [2001] 2 AC 477.
50 See for instance, Edwards v UK, 14 March 2002; Z and others v UK, 10 May 2001,
[2002] 34 EHRR 3; General Comment 7(16) of the UN Human Rights Commit-
tee.
336
of internal flight alternative. However the “internal flight alternative” concept

deserves a cautionary approach. It is too readily used by Member States without
a good understanding of the interconnection between different State and non-
State bodies within a country of origin and without an understanding of the dif-
ficulties that an individual can face in internally relocating in a country in which
he has been persecuted or faces a risk of persecution.
It is noted that Article 9 of the Directive, which outlines the nature of per-
secution to be included in the qualification for refugee status, does not preclude
the further development of the law in this area and lays down only minimum
standards. It will be recalled that the UNHCR Handbook suggests that the seri-
ous infringement of any core human rights would constitute persecution.51 The
absence of reference to civil war and internal armed conflict as being a type of
persecution in Article 9 should not preclude the recognition of refugee status
in appropriate cricumstances, since the reference to acts of physical or mental
violence is sufficiently broadly drafted to be so interpreted.
Article 10, which outlines the reasons for persecution which may give rise
to refugee protection, appears to be broadly interpreted and is couched in suf-
ficiently permissive language so as to allow for further development in the law
in this area.
Article 11, which outlines the circumstances in which a person ceases to be
a refugee, broadly concurs with Article 1C of the Geneva Convention. Article
14(2) ensures that the burden of proving that a person has ceased to be in need
of protection is placed on the Member State. Member States will need to be
mindful of their obligations under the Geneva Convention to provide protec-
tion for the entire duration of risk and that only where there is a fundamental
change of circumstances in the refugee’s state of origin will the need for protec-
tion end.52
Article 12 outlines the circumstances in which Member States should exclude
a person from attaining refugee status, although it fails to use the precise word-
ing of Article 1F of the Geneva Convention. The exclusion from refugee status
will not necessarily make a person removable, particularly where to remove the
person would breach Article 3 ECHR. Leaving such a person without any kind
of status leads to social exclusion and potential destitution which in certain cir-
cumstances may be in breach of Articles 3 and 8 ECHR. The keenness of States
to appear tough on refugees who commit crimes can never override the obliga-
tions of States under the ECHR. The ability of Member States to revoke refugee
status where the person has been convicted of “a particularly serious crime” is
questionable. This phrase is undefined in the Directive. It remains to be seen how
51 Paragraph 51 of the UNHCR Handbook.

52 For further detailed discussion about the rights of refugees see ch. 7 of Hatha-
way, The Rights of Refugees under International Law (Cambridge University Press,
2005).
337
the Court of Justice would interpret that phrase. It is likely that “particularly
serious crime” will be more narrowly defined than the legislation of at least one
Member State currently permits.53 It may be one of the tangible benefits of the
Directive that a uniform interpretation of the exclusion clauses will have to be
applied, particularly at a time when some Member States seem intent on exclud-
ing ever growing classes of refugees from the scope of the Geneva Convention.
The provisions in the Directive on qualification for subsidiary protection
are an attempt to give effect to Member States’ obligations under a range of
international human rights law instruments, most particularly Article 3 ECHR
but also the UN Convention against Torture. Member States’ national laws are
notoriously inconsistent and in some cases non-existent and this attempt to har-
monise standards will provide greater legal certainty and uniformity.
However it is the very term “subsidiary protection” which is potentially a
source of future problems particularly in relation to the nature of the rights that
accrue to a person granted such protection. The term suggests an inferiority of
status in comparison to refugee status, perhaps of a more temporary nature,
which may not reflect the reality of the situation.
Furthermore the interrelationship between refugee status and subsid-
iary protection remains unclear under the Directive. It would be tempting for
Member States to favour granting people subsidiary protection as opposed to
refugee status in view of the lesser rights that accrue to the former, but for the
reasons set out elsewhere in this book, this would be an incorrect interpretation
of the Directive, which (along with the asylum procedures Directive) should be
interpreted as establishing an implicit hierarchy giving refugee status priority
over subsidiary protection status.54 Effective monitoring of implementation by
the Commission under Article 37 should include careful examination of the cir-
cumstances in which subsidiary protection is granted. It would be compromising
adherence to the Geneva Convention not to duly recognize refugees and accord
them full rights in accordance with that Convention where they meet the defini-
tion of a refugee.
Article 16 provides for the circumstances in which subsidiary protection
status may be withdrawn. As with the cessation of refugee status, the burden
of proof for establishing that the circumstances in the country of origin have
changed or cease to exist lies with the Member States.55
Article 17 provides for the circumstances in which a person is be excluded
from attaining subsidiary protection status. The provision specifically obliges
53 The UK has a very broad definition of serious crime which would result in the revo-
cation of refugee status under the Nationality, Asylum and Immigration Act 2002.
It will be for the ECJ to determine the compatibility of such legislation with the
Directive if it remains so broadly construed at the end of the transposition period.
54 See Ch. 14.
55 Article 19(2) of the Directive.
338
Member States not to grant subsidiary protection to an applicant in specified

circumstances. As the subsidiary protection status is intended to give effect to
Member States’ obligations under international human rights law and most par-
ticularly Article 3 ECHR, the exclusion from status is unjustifiable and may bring
States potentially into breach with international law instruments. The absolute
nature of Article 3 ECHR is well-established.56 Whilst the proposed Article 17
does not oblige States to remove applicants who fulfill the exclusion criteria, the
failure to grant any status to such persons, who as a result of international law
are irremovable, may in itself be inhuman or degrading and may lead to suffer-
ing and destitution by the applicant and his family members.
The Directive provides that refugees and their accompanying family mem-
bers be granted residence permits which are valid for five years and renewable
automatically and that persons granted subsidiary protection status should be
granted a residence permit valid for one year and automatically renewed until
such time as the authorities establish that protection is no longer required.
Invariably the need to renew a residence permit annual places an undue adminis-
trative burden on the authorities which will lead to delays and further insecurity
for the individuals concerned. The reality is that persons in need of interna-
tional protection who fall outside of the 1951 Convention often have protection
needs which are as long lasting in duration as refugees. The phrase “at least” one
year suggests that Member States can apply higher standards and practicalities
may dictate that they do so. The extension of residence permits to the family
members of those granted subsidary protection has been controversial for some
Member States.
However the retention of this provision is essential if obligations under
Article 8 ECHR are to be met. When and if the Commission’s planned proposal
to extend the Community’s long-term residence Directive to refugees and per-
sons with subsidiary protection status is adopted, Community law will guarantee
those persons a more secure status.57 But even in the absence of such a measure,
it should be recalled that Article 8 ECHR still applies to any refugees and per-
sons with subsidiary protection who have been resident for a significant period
of time.58 Furthermore, while the final Directive does not explicitly address the
issue of expulsion of refugees or persons with subisidiary protection, the express
wording of Article 31 obliges Member States to renew residence permits unless
there are “compelling reasons of national security or public order”. The obvious
corollary of this obligation is that persons with refugee or subsidiary protec-
tion status cannot be expelled except on those substantive grounds. Although
56 See, for instance, Ahmed v Austria (1997) 24 EHRR 278.

57 See Ch. 20. It should be recalled that family members of refugees have secure resi-
dence status and express rights in expulsion proceedings in accordance with the
EC’s family reunion directive (see ch. 19).
58 See the comments on the procedures for withdrawing refugee status in Ch. 14.
339
the Directive does not set out procedural rights concerning expulsion, Member
States remain subject to the obligations on this point in Article 32 of the Geneva
Convention, which moreover contains similar substantive grounds concerning
the expulsion of refugees. Since EC asylum legislation must be, according to the
EC Treaty, “in accordance with the Geneva Convention”, such procedural pro-
tection should be considered as implicitly incorporated into the Directive. The
procedural rights implicit in the general principles of Community law support
the same conclusion,59 and furthermore could also potentially be relied upon to
claim further procedural rights not expressly referred to in the Geneva Conven-
tion, for example, the right to legal aid, to an interpreter, to notification of the
decision and to a fully reasoned decision. Moreover, the general principles of
Community law should confer identical procedural rights upon persons with
subsidiary protection status. This line of argument is supported by a recent judg-
ment of the Court of Justice in the context of the EC-Turkey association agree-
ment, which held that procedural rights to resist expulsion are inherent where
a substantive right to stay is set out.60 That judgment expressly extended this
reasoning to family members with a substantive right to stay as well, so the
same principle should apply to the family members of refugees and persons with
subsidiary protection.
Whereas the Directive provides that refugees should be granted access to
employment and vocational training immediately upon being granted refugee
status, those granted subsidiary protection status may be subject to prioritisa-
tion in the labour market for an undefined period of time. The vagueness of this
provision is unsatisfactory. Furthermore the differentiation between the treat-
ment of refugees and those with subsidiary protection status obviously will lead
to problems of social integration and is not compatible with the goal of tackling
social exclusion in the EU. Moreover, in general any distinction in the benefits
received by refugees and persons receiving subsidiary protection is highly ques-
tionable in light of the non-discrimination principle in Article 14 ECHR (com-
bined with Article 3 ECHR), Article 26 of the ICCPR and the right to equality
as protected by the general principles of Community law.
Finally, although the Directive does not set out any procedural rights to
dispute the withdrawal of benefits for refugees and stateless persons, the general
principles of Community law would support an argument than an implicit right
of access to court to dispute the denial of a benefit to persons with refugee or
subsidiary protection status or their family members must exist, with corollary
procedural rights such as legal representation and reasoned decisions.
59 On these principles, see generally Ch. 5.

60 Case C-136/03 Dorr and Unal, judgment of 2 June 2005, not yet reported.
340
Council Directive 2004/83/EC

of 29 April 2004
on minimum standards for the qualification and status of third country nationals
or stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted
(OJ 2004 L 304/12)
ticular points 1(c), 2(a) and 3(a) of Article 63 thereof,
Having regard to the opinion of the European Economic and Social Commit-
tee,
Whereas:

nity.
(2) The European Council at its special meeting in Tampere on 15 and 16 Octo-
ber 1999 agreed to work towards establishing a Common European Asylum
System, based on the full and inclusive application of the Geneva Con-
vention relating to the Status of Refugees of 28 July 1951 (Geneva Con-
vention), as supplemented by the New York Protocol of 31 January 1967
(Protocol), thus affirming the principle of non-refoulement and ensuring
that nobody is sent back to persecution.
(3) The Geneva Convention and Protocol provide the cornerstone of the inter-
national legal regime for the protection of refugees.
(4) The Tampere conclusions provide that a Common European Asylum

System should include, in the short term, the approximation of rules on the
recognition of refugees and the content of refugee status.
341
(5) The Tampere conclusions also provide that rules regarding refugee status
should be complemented by measures on subsidiary forms of protection,
offering an appropriate status to any person in need of such protection.
(6) The main objective of this Directive is, on the one hand, to ensure that
Member States apply common criteria for the identification of persons gen-
uinely in need of international protection, and, on the other hand, to ensure
that a minimum level of benefits is available for these persons in all Member
States.
(7) The approximation of rules on the recognition and content of refugee and
subsidiary protection status should help to limit the secondary movements
of applicants for asylum between Member States, where such movement is
purely caused by differences in legal frameworks.
(8) It is in the very nature of minimum standards that Member States should
have the power to introduce or maintain more favourable provisions for
third country nationals or stateless persons who request international pro-
tection from a Member State, where such a request is understood to be on
the grounds that the person concerned is either a refugee within the mean-
ing of Article 1(A) of the Geneva Convention, or a person who otherwise
needs international protection.
(9) Those third country nationals or stateless persons, who are allowed to
remain in the territories of the Member States for reasons not due to a need
for international protection but on a discretionary basis on compassionate
or humanitarian grounds, fall outside the scope of this Directive.
(10) This Directive respects the fundamental rights and observes the principles
European Union. In particular this Directive seeks to ensure full respect
for human dignity and the right to asylum of applicants for asylum and
their accompanying family members.
tion.
(12) The “best interests of the child” should be a primary consideration of

Member States when implementing this Directive.
342
(13) This Directive is without prejudice to the Protocol on asylum for nationals
of Member States of the European Union as annexed to the Treaty Estab-
lishing the European Community.
(14) The recognition of refugee status is a declaratory act.
(15) Consultations with the United Nations High Commissioner for Refugees
may provide valuable guidance for Member States when determining refu-
gee status according to Article 1 of the Geneva Convention.
(16) Minimum standards for the definition and content of refugee status should
be laid down to guide the competent national bodies of Member States in
the application of the Geneva Convention.
(17) It is necessary to introduce common criteria for recognising applicants for

asylum as refugees within the meaning of Article 1 of the Geneva Conven-
tion.
(18) In particular, it is necessary to introduce common concepts of protection

needs arising sur place; sources of harm and protection; internal protec-
tion; and persecution, including the reasons for persecution.
(19) Protection can be provided not only by the State but also by parties or
organisations, including international organisations, meeting the conditions
of this Directive, which control a region or a larger area within the territory
of the State.
(20) It is necessary, when assessing applications from minors for international

protection, that Member States should have regard to child-specific forms
of persecution.
(21) It is equally necessary to introduce a common concept of the persecution

ground “membership of a particular social group”.
(22) Acts contrary to the purposes and principles of the United Nations are
set out in the Preamble and Articles 1 and 2 of the Charter of the United
Nations and are, amongst others, embodied in the United Nations Resolu-
tions relating to measures combating terrorism, which declare that “acts,
methods and practices of terrorism are contrary to the purposes and prin-
ciples of the United Nations” and that “knowingly financing, planning and
inciting terrorist acts are also contrary to the purposes and principles of the
United Nations”.
343
(23) As referred to in Article 14, «status» can also include refugee status.
(24) Minimum standards for the definition and content of subsidiary protection
status should also be laid down. Subsidiary protection should be comple-
mentary and additional to the refugee protection enshrined in the Geneva
Convention.
(25) It is necessary to introduce criteria on the basis of which applicants for

international protection are to be recognised as eligible for subsidiary
protection. Those criteria should be drawn from international obligations
under human rights instruments and practices existing in Member States.
(26) Risks to which a population of a country or a section of the population is

generally exposed do normally not create in themselves an individual threat
which would qualify as serious harm.
(27) Family members, merely due to their relation to the refugee, will normally
be vulnerable to acts of persecution in such a manner that could be the
basis for refugee status.
(28) The notion of national security and public order also covers cases in which
a third country national belongs to an association which supports interna-
tional terrorism or supports such an association.
(29) While the benefits provided to family members of beneficiaries of subsid-

iary protection status do not necessarily have to be the same as those pro-
vided to the qualifying beneficiary, they need to be fair in comparison to
those enjoyed by beneficiaries of subsidiary protection status.
(30) Within the limits set out by international obligations, Member States may
lay down that the granting of benefits with regard to access to employment,
social welfare, health care and access to integration facilities requires the
prior issue of a residence permit.
(31) This Directive does not apply to financial benefits from the Member States
which are granted to promote education and training.
(32) The practical difficulties encountered by beneficiaries of refugee or subsid-

iary protection status concerning the authentication of their foreign diplo-
mas, certificates or other evidence of formal qualification should be taken
into account.
344
(33) Especially to avoid social hardship, it is appropriate, for beneficiaries of

refugee or subsidiary protection status, to provide without discrimination
in the context of social assistance the adequate social welfare and means of
subsistence.
(34) With regard to social assistance and health care, the modalities and detail
of the provision of core benefits to beneficiaries of subsidiary protection
status should be determined by national law. The possibility of limiting
the benefits for beneficiaries of subsidiary protection status to core benefits
is to be understood in the sense that this notion covers at least minimum
income support, assistance in case of illness, pregnancy and parental assis-
tance, in so far as they are granted to nationals according to the legislation
of the Member State concerned.
(35) Access to health care, including both physical and mental health care, should
be ensured to beneficiaries of refugee or subsidiary protection status.
(36) The implementation of this Directive should be evaluated at regular inter-

vals, taking into consideration in particular the evolution of the inter-
national obligations of Member States regarding non-refoulement, the
evolution of the labour markets in the Member States as well as the devel-
opment of common basic principles for integration.
(37) Since the objectives of the proposed Directive, namely to establish mini-
mum standards for the granting of international protection to third coun-
try nationals and stateless persons by Member States and the content of the
protection granted, cannot be sufficiently achieved by the Member States
and can therefore, by reason of the scale and effects of the Directive, be
better achieved at Community level, the Community may adopt measures,
in accordance with the principle of subsidiarity as set out in Article 5 of
the Treaty. In accordance with the principle of proportionality, as set out in
that Article, this Directive does not go beyond what is necessary in order to
achieve those objectives.
the Treaty establishing the European Community, the United Kingdom has
notified, by letter of 28 January 2002, its wish to take part in the adoption
and application of this Directive.
the Treaty establishing the European Community, Ireland has notified, by
345
letter of 13 February 2002, its wish to take part in the adoption and appli-
cation of this Directive.

establishing the European Community, Denmark is not taking part in the
adoption of this Directive and is not bound by it or subject to its applica-
tion,
HAS ADOPTED THIS DIRECTIVE,
CHAPTER I
GENERAL PROVISIONS
Article 1 Subject matter and scope
The purpose of this Directive is to lay down minimum standards for the quali-
fication of third country nationals or stateless persons as refugees or as persons
who otherwise need international protection and the content of the protection
granted.

(a) “international protection” means the refugee and subsidiary protection
status as defined in (d) and (f);
(b) “Geneva Convention” means the Convention relating to the status of refu-
gees done at Geneva on 28 July 1951 , as amended by the New York Proto-
col of 31 January 1967;
(c) “refugee” means a third country national who, owing to a well-founded
fear of being persecuted for reasons of race, religion, nationality, political
opinion or membership of a particular social group, is outside the country
of nationality and is unable or, owing to such fear, is unwilling to avail
himself or herself of the protection of that country, or a stateless person,
who, being outside of the country of former habitual residence for the same
reasons as mentioned above, is unable or, owing to such fear, unwilling to
return to it, and to whom Article 12 does not apply;
(d) “refugee status” means the recognition by a Member State of a third coun-
try national or a stateless person as a refugee;
(e) “person eligible for subsidiary protection” means a third country national
or a stateless person who does not qualify as a refugee but in respect of
whom substantial grounds have been shown for believing that the person
concerned, if returned to his or her country of origin, or in the case of a
346
stateless person, to his or her country of former habitual residence, would

face a real risk of suffering serious harm as defined in Article 15, and to
whom Article 17(1) and (2) do not apply, and is unable, or, owing to such
risk, unwilling to avail himself or herself of the protection of that country;
(f) “subsidiary protection status” means the recognition by a Member State of
a third country national or a stateless person as a person eligible for subsid-
iary protection;
(g) “application for international protection” means a request made by a third
country national or a stateless person for protection from a Member State,
who can be understood to seek refugee status or subsidiary protection
status, and who does not explicitly request another kind of protection, out-
side the scope of this Directive, that can be applied for separately;
(h) “family members” means, insofar as the family already existed in the coun-
try of origin, the following members of the family of the beneficiary of
refugee or subsidiary protection status who are present in the same Member
State in relation to the application for international protection:
the spouse of the beneficiary of refugee or subsidiary protection status or
his or her unmarried partner in a stable relationship, where the legislation
or practice of the Member State concerned treats unmarried couples in a
way comparable to married couples under its law relating to aliens,
the minor children of the couple referred to in the first indent or of the ben-
eficiary of refugee or subsidiary protection status, on condition that they
are unmarried and dependent and regardless of whether they were born in
or out of wedlock or adopted as defined under the national law;
(i) “unaccompanied minors” means third-country nationals or stateless per-
sons below the age of 18, who arrive on the territory of the Member States
unaccompanied by an adult responsible for them whether by law or custom,
and for as long as they are not effectively taken into the care of such a
person; it includes minors who are left unaccompanied after they have
entered the territory of the Member States;
(j) “residence permit” means any permit or authorisation issued by the author-
ities of a Member State, in the form provided for under that State’s legis-
lation, allowing a third country national or stateless person to reside on
its territory;
(k) “country of origin” means the country or countries of nationality or, for
stateless persons, of former habitual residence.
Article 3 More favourable standards
Member States may introduce or retain more favourable standards for determin-
ing who qualifies as a refugee or as a person eligible for subsidiary protection,
and for determining the content of international protection, in so far as those
standards are compatible with this Directive.
347
CHAPTER II
ASSESSMENT OF APPLICATIONS FOR
INTERNATIONAL PROTECTION
Article 4 Assessment of facts and circumstances
1. Member States may consider it the duty of the applicant to submit as soon
as possible all elements needed to substantiate the application for interna-
tional protection. In cooperation with the applicant it is the duty of the
Member State to assess the relevant elements of the application.
2. The elements referred to in of paragraph 1 consist of the applicant’s state-

ments and all documentation at the applicants disposal regarding the
applicant’s age, background, including that of relevant relatives, identity,
nationality(ies), country(ies) and place(s) of previous residence, previous
asylum applications, travel routes, identity and travel documents and the
reasons for applying for international protection.
3. The assessment of an application for international protection is to be car-

ried out on an individual basis and includes taking into account:
(a) all relevant facts as they relate to the country of origin at the time of
taking a decision on the application; including laws and regulations of
the country of origin and the manner in which they are applied;
(b) the relevant statements and documentation presented by the applicant
including information on whether the applicant has been or may be
subject to persecution or serious harm;
(c) the individual position and personal circumstances of the applicant,
including factors such as background, gender and age, so as to assess
whether, on the basis of the applicant’s personal circumstances, the acts
to which the applicant has been or could be exposed would amount to
persecution or serious harm;
(d) whether the applicant’s activities since leaving the country of origin
were engaged in for the sole or main purpose of creating the necessary
conditions for applying for international protection, so as to assess
whether these activities will expose the applicant to persecution or seri-
ous harm if returned to that country;
(e) whether the applicant could reasonably be expected to avail himself of
the protection of another country where he could assert citizenship.
4. The fact that an applicant has already been subject to persecution or seri-
ous harm or to direct threats of such persecution or such harm, is a serious
indication of the applicant’s well-founded fear of persecution or real risk of
348
suffering serious harm, unless there are good reasons to consider that such
persecution or serious harm will not be repeated.
5. Where Member States apply the principle according to which it is the duty
of the applicant to substantiate the application for international protection
and where aspects of the applicant’s statements are not supported by docu-
mentary or other evidence, those aspects shall not need confirmation, when
the following conditions are met:
(a) the applicant has made a genuine effort to substantiate his applica-
tion;
(b) all relevant elements, at the applicant’s disposal, have been submitted,
and a satisfactory explanation regarding any lack of other relevant ele-
ments has been given;
(c) the applicant’s statements are found to be coherent and plausible and
do not run counter to available specific and general information rel-
evant to the applicant’s case;
(d) the applicant has applied for international protection at the earliest
possible time, unless the applicant can demonstrate good reason for
not having done so; and
(e) the general credibility of the applicant has been established.
Article 5 International protection needs arising sur place
1. A well-founded fear of being persecuted or a real risk of suffering serious

harm may be based on events which have taken place since the applicant left
the country of origin.
2. A well-founded fear of being persecuted or a real risk of suffering serious

harm may be based on activities which have been engaged in by the appli-
cant since he left the country of origin, in particular where it is established
that the activities relied upon constitute the expression and continuation of
convictions or orientations held in the country of origin.
3. Without prejudice to the Geneva Convention, Member States may deter-

mine that an applicant who files a subsequent application shall normally
not be granted refugee status, if the risk of persecution is based on circum-
stances which the applicant has created by his own decision since leaving
the country of origin.
Article 6 Actors of persecution or serious harm
Actors of persecution or serious harm include:

(a) the State;
349
(b) parties or organisations controlling the State or a substantial part of the ter-
ritory of the State;
(c) non-State actors, if it can be demonstrated that the actors mentioned in (a)
and (b), including international organisations, are unable or unwilling to
provide protection against persecution or serious harm as defined in Arti-
cle 7.
Article 7 Actors of protection
1. Protection can be provided by:

(a) the State; or
(b) parties or organisations, including international organisations, con-
trolling the State or a substantial part of the territory of the State.
2. Protection is generally provided when the actors mentioned in paragraph 1

take reasonable steps to prevent the persecution or suffering of serious
harm, inter alia, by operating an effective legal system for the detection,
prosecution and punishment of acts constituting persecution or serious
harm, and the applicant has access to such protection.
3. When assessing whether an international organisation controls a State or

a substantial part of its territory and provides protection as described in
paragraph 2, Member States shall take into account any guidance which
may be provided in relevant Council acts.
Article 8 Internal protection
1. As part of the assessment of the application for international protection,

Member States may determine that an applicant is not in need of inter-
national protection if in a part of the country of origin there is no well-
founded fear of being persecuted or no real risk of suffering serious harm
and the applicant can reasonably be expected to stay in that part of the
country.
2. In examining whether a part of the country of origin is in accordance with

paragraph 1, Member States shall at the time of taking the decision on the
application have regard to the general circumstances prevailing in that part
of the country and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles to return to the

country of origin.
350
CHAPTER III
QUALIFICATION FOR BEING A REFUGEE
Article 9 Acts of persecution
1. Acts of persecution within the meaning of article 1 A of the Geneva Con-

vention must:
(a) be sufficiently serious by their nature or repetition as to constitute a
severe violation of basic human rights, in particular the rights from
which derogation cannot be made under Article 15(2) of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms; or
(b) be an accumulation of various measures, including violations of
human rights which is sufficiently severe as to affect an individual in a
similar manner as mentioned in (a).
2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the

form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in
themselves discriminatory or which are implemented in a discrimina-
tory manner;
(c) prosecution or punishment, which is disproportionate or discrimina-
tory;
(d) denial of judicial redress resulting in a disproportionate or discrimina-
tory punishment;
(e) prosecution or punishment for refusal to perform military service in
a conflict, where performing military service would include crimes or
acts falling under the exclusion clauses as set out in Article 12(2);
(f) acts of a gender-specific or child-specific nature.
3. In accordance with Article 2(c), there must be a connection between the

reasons mentioned in Article 10 and the acts of persecution as qualified in
paragraph 1.
Article 10 Reasons for persecution
1. Member States shall take the following elements into account when assess-
ing the reasons for persecution:
(a) the concept of race shall in particular include considerations of colour,
descent, or membership of a particular ethnic group;
(b) the concept of religion shall in particular include the holding of the-
istic, non-theistic and atheistic beliefs, the participation in, or absten-
351
tion from, formal worship in private or in public, either alone or in

community with others, other religious acts or expressions of view, or
forms of personal or communal conduct based on or mandated by any
religious belief;
(c) the concept of nationality shall not be confined to citizenship or
lack thereof but shall in particular include membership of a group
determined by its cultural, ethnic, or linguistic identity, common geo-
graphical or political origins or its relationship with the population of
another State;
(d) a group shall be considered to form a particular social group where in
particular:
– members of that group share an innate characteristic, or a
common background that cannot be changed, or share a charac-
teristic or belief that is so fundamental to identity or conscience
that a person should not be forced to renounce it, and
– that group has a distinct identity in the relevant country, because
it is perceived as being different by the surrounding society;
depending on the circumstances in the country of origin, a particular social
group might include a group based on a common characteristic of sexual
orientation. Sexual orientation cannot be understood to include acts con-
sidered to be criminal in accordance with national law of the Member
States: Gender related aspects might be considered, without by themselves
alone creating a presumption for the applicability of this Article;
(e) the concept of political opinion shall in particular include the holding
of an opinion, thought or belief on a matter related to the potential
actors of persecution mentioned in Article 6 and to their policies or
methods, whether or not that opinion, thought or belief has been acted
upon by the applicant.
2. When assessing if an applicant has a well-founded fear of being persecuted

it is immaterial whether the applicant actually possesses the racial, religious,
national, social or political characteristic which attracts the persecution,
provided that such a characteristic is attributed to the applicant by the actor
of persecution.
Article 11 Cessation
1. A third country national or a stateless person shall cease to be a refugee, if

he or she:
(a) has voluntarily re-availed himself or herself of the protection of the
country of nationality; or
(b) having lost his or her nationality, has voluntarily re-acquired it; or
352
(c) has acquired a new nationality, and enjoys the protection of the coun-
try of his or her new nationality; or
(d) has voluntarily re-established himself or herself in the country which
he or she left or outside which he or she remained owing to fear of
persecution; or
(e) can no longer, because the circumstances in connection with which he
or she has been recognised as a refugee have ceased to exist, continue
to refuse to avail himself or herself of the protection of the country of
nationality;
(f) being a stateless person with no nationality, he or she is able, because
the circumstances in connection with which he or she has been recog-
nised as a refugee have ceased to exist, to return to the country of
former habitual residence.
2. In considering points (e) and (f) of paragraph 1, Member States shall have
regard to whether the change of circumstances is of such a significant and
non-temporary nature that the refugee’s fear of persecution can no longer
be regarded as well-founded.
Article 12 Exclusion
1. A third country national or a stateless person is excluded from being a refu-

gee, if:
(a) he or she falls within the scope of Article 1 D of the Geneva Conven-
tion, relating to protection or assistance from organs or agencies of the
United Nations other than the United Nations High Commissioner
for Refugees. When such protection or assistance has ceased for any
reason, without the position of such persons being definitely settled
in accordance with the relevant resolutions adopted by the General
Assembly of the United Nations, these persons shall ipso facto be enti-
tled to the benefits of this Directive;
(b) he or she is recognised by the competent authorities of the country in
which he or she has taken residence as having the rights and obliga-
tions which are attached to the possession of the nationality of that
country; or rights and obligations equivalent to those.
2. A third country national or a stateless person is excluded from being a refu-

gee where there are serious reasons for considering that:
(a) he or she has committed a crime against peace, a war crime, or a crime
against humanity, as defined in the international instruments drawn up
to make provision in respect of such crimes;
(b) he or she has committed a serious non-political crime outside the coun-
try of refuge prior to his or her admission as a refugee; which means
353
the time of issuing a residence permit based on the granting of refugee

status; particularly cruel actions, even if committed with an allegedly
political objective, may be classified as serious non-political crimes;
(c) he or she has been guilty of acts contrary to the purposes and prin-
ciples of the United Nations as set out in the Preamble and Articles 1
and 2 of the Charter of the United Nations.
3. Paragraph 2 applies to persons who instigate or otherwise participate in the

commission of the crimes or acts mentioned therein.
CHAPTER IV
REFUGEE STATUS
Article 13 Granting of refugee status
Member States shall grant refugee status to a third country national or a state-
less person, who qualifies as a refugee in accordance with Chapters II and III.
Article 14 Revocation of, ending of or refusal to renew refugee status
1. Concerning applications for international protection filed after the entry

into force of this Directive, Member States shall revoke, end or refuse to
renew the refugee status of a third country national or a stateless person
granted by a governmental, administrative, judicial or quasi-judicial body,
if he or she has ceased to be a refugee in accordance with Article 11.
2. Without prejudice to the duty of the refugee in accordance with Article 4(1)
to disclose all relevant facts and provide all relevant documentation at his/
her disposal, the Member State, which has granted refugee status, shall on
an individual basis demonstrate that the person concerned has ceased to be
or has never been a refugee in accordance with paragraph 1 of this Article.
3. Member States shall revoke, end or refuse to renew the refugee status of
a third country national or a stateless person, if, after he or she has been
granted refugee status, it is established by the Member State concerned
that:
(a) he or she should have been or is excluded from being a refugee in accor-
dance with Article 12;
(b) his or her misrepresentation or omission of facts, including the use of
false documents, were decisive for the granting of refugee status.
354
4. Member States may revoke, end or refuse to renew the status granted to a
refugee by a governmental, administrative, judicial or quasi-judicial body,
when:
(a) there are reasonable grounds for regarding him or her as a danger to the
security of the Member State in which he or she is present;
(b) he or she, having been convicted by a final judgement of a particularly seri-
ous crime, constitutes a danger to the community of that Member State.
5. In situations described in paragraph 4, Member States may decide not to

grant status to a refugee, where such a decision has not yet been taken.
6. Persons to whom paragraphs 4 or 5 apply are entitled to rights set out in

or similar to those set out in Articles 3, 4, 16, 22, 31 and 32 and 33 of the
Geneva Convention in so far as they are present in the Member State.
CHAPTER V
QUALIFICATION FOR SUBSIDIARY PROTECTION
Article 15 Serious harm
Serious harm consists of:

(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant
in the country of origin; or
(c) serious and individual threat to a civilian’s life or person by reason of indis-
criminate violence in situations of international or internal armed conflict.
Article 16 Cessation
1. A third country national or a stateless person shall cease to be eligible for

subsidiary protection when the circumstances which led to the granting of
subsidiary protection status have ceased to exist or have changed to such a
degree that protection is no longer required.
2. In applying paragraph 1, Member States shall have regard to whether the

change of circumstances is of such a significant and non-temporary nature
that the person eligible for subsidiary protection no longer faces a real risk
of serious harm.
355
Article 17 Exclusion
1. A third country national or a stateless person is excluded from being eligi-

ble for subsidiary protection where there are serious reasons for considering
that:
(a) he or she has committed a crime against peace, a war crime, or a crime
against humanity, as defined in the international instruments drawn up
to make provision in respect of such crimes;
(b) he or she has committed a serious crime;
(c) he or she has been guilty of acts contrary to the purposes and prin-
ciples of the United Nations as set out in the Preamble and Articles 1
and 2 of the Charter of the United Nations;
(d) he or she constitutes a danger to the community or to the security of
the Member State in which he or she is present.
2. Paragraph 1 applies to persons who instigate or otherwise participate in the

commission of the crimes or acts mentioned therein.
3. Member States may exclude a third country national or a stateless person

from being eligible for subsidiary protection, if he or she prior to his or her
admission to the Member State has committed one or more crimes, outside
the scope of paragraph 1, which would be punishable by imprisonment,
had they been committed in the Member State concerned, and if he or she
left his or her country of origin solely in order to avoid sanctions resulting
from these crimes.
CHAPTER VI
SUBSIDIARY PROTECTION STATUS
Article 18 Granting of subsidiary protection status
Member States shall grant subsidiary protection status to a third country

national or a stateless person eligible for subsidiary protection in accordance
with Chapters II and V.
Article 19 Revocation of, ending of or refusal to renew

subsidiary protection status
1. Concerning applications for international protection filed after the entry

into force of this Directive, Member States shall revoke, end or refuse to
renew the subsidiary protection status of a third country national or a state-
less person granted by a governmental, administrative, judicial or quasi-
356
judicial body, if he or she has ceased to be eligible for subsidiary protection

in accordance with Article 16.
2. Member States may revoke, end or refuse to renew the subsidiary protec-
tion status of a third country national or a stateless person granted by
a governmental, administrative, judicial or quasi-judicial body, if after
having been granted subsidiary protection status, he or she should have
been excluded from being eligible for subsidiary protection in accordance
with Article 17(3).
3. Member States shall revoke, end or refuse to renew the subsidiary protec-
tion status of a third country national or a stateless person, if:
(a) he or she, after having been granted subsidiary protection status, should
have been or is excluded from being eligible for subsidiary protection
in accordance with Article 17(1) and (2);
(b) his or her misrepresentation or omission of facts, including the use of
false documents, were decisive for the granting of subsidiary protec-
tion status.
4. Without prejudice to the duty of the third country national or stateless

person in accordance with Article 4(1) to disclose all relevant facts and
provide all relevant documentation at his/her disposal, the Member State,
which has granted the subsidiary protection status, shall on an individual
basis demonstrate that the person concerned has ceased to be or is not eli-
gible for subsidiary protection in accordance with paragraphs 1, 2 and 3 of
this Article.
CHAPTER VII
CONTENT OF INTERNATIONAL PROTECTION
Article 20 General rules
1. This Chapter shall be without prejudice to the rights laid down in the
Geneva Convention.
2. This Chapter shall apply both to refugees and persons eligible for subsid-
iary protection unless otherwise indicated.
3. When implementing this Chapter, Member States shall take into account
the specific situation of vulnerable persons such as minors, unaccompanied
minors, disabled people, elderly people, pregnant women, single parents
with minor children and persons who have been subjected to torture, rape
or other serious forms of psychological, physical or sexual violence.
357
4. Paragraph 3 shall apply only to persons found to have special needs after an
individual evaluation of their situation.
5. The best interest of the child shall be a primary consideration for Member
States when implementing the provisions of this Chapter that involve
minors.
6. Within the limits set out by the Geneva Convention, Member States may
reduce the benefits of this Chapter, granted to a refugee whose refugee
status has been obtained on the basis of activities engaged in for the sole or
main purpose of creating the necessary conditions for being recognised as a
refugee.
7. Within the limits set out by international obligations of Member States,

Member States may reduce the benefits of this Chapter, granted to a person
eligible for subsidiary protection, whose subsidiary protection status has
been obtained on the basis of activities engaged in for the sole or main pur-
pose of creating the necessary conditions for being recognised as a person
eligible for subsidiary protection.
Article 21 Protection from refoulement
1. Member States shall respect the principle of non-refoulement in accordance

with their international obligations.
2. Where not prohibited by the international obligations mentioned in para-

graph 1, Member States may refoule a refugee, whether formally recognised
or not, when:
(a) there are reasonable grounds for considering him or her as a danger to
the security of the Member State in which he or she is present; or
(b) he or she, having been convicted by a final judgement of a particularly
serious crime, constitutes a danger to the community of that Member
State.
3. Member States may revoke, end or refuse to renew or to grant the residence
permit of (or to) a refugee to whom paragraph 2 applies.
Article 22 Information
Member States shall provide persons recognised as being in need of interna-

tional protection, as soon as possible after the respective protection status has
been granted, with access to information, in a language likely to be understood
by them, on the rights and obligations relating to that status.
358
Article 23 Maintaining family unity
1. Member States shall ensure that family unity can be maintained.
2. Member States shall ensure that family members of the beneficiary of refu-
gee or subsidiary protection status, who do not individually qualify for such
status, are entitled to claim the benefits referred to in Articles 24 to 34, in
accordance with national procedures and as far as it is compatible with the
personal legal status of the family member.
In so far as the family members of beneficiaries of subsidiary protection

status are concerned, Member States may define the conditions applicable
to such benefits.
In these cases, Member States shall ensure that any benefits provided guar-
antee an adequate standard of living.
3. Paragraphs 1 and 2 are not applicable where the family member is or would
be excluded from refugee or subsidiary protection status pursuant to Chap-
ters III and V.
4. Notwithstanding paragraphs 1 and 2, Member States may refuse, reduce

or withdraw the benefits referred therein for reasons of national security or
public order.
5. Member States may decide that this Article also applies to other close rela-
tives who lived together as part of the family at the time of leaving the
country of origin, and who were wholly or mainly dependent on the benefi-
ciary of refugee or subsidiary protection status at that time.
Article 24 Residence permits
1. As soon as possible after their status has been granted, Member States shall
issue to beneficiaries of refugee status a residence permit which must be
valid for at least three years and renewable unless compelling reasons of
national security or public order otherwise require, and without prejudice
to Article 21(3).
Without prejudice to Article 23(1), the residence permit to be issued to the

family members of the beneficiaries of refugee status may be valid for less
than three years and renewable.
359
2. As soon as possible after the status has been granted, Member States shall
issue to beneficiaries of subsidiary protection status a residence permit
which must be valid for at least one year and renewable, unless compelling
reasons of national security or public order otherwise require.
Article 25 Travel document
1. Member States shall issue to beneficiaries of refugee status travel docu-

ments in the form set out in the Schedule to the Geneva Convention, for
the purpose of travel outside their territory unless compelling reasons of
national security or public order otherwise require.
2. Member States shall issue to beneficiaries of subsidiary protection status

who are unable to obtain a national passport, documents which enable them
to travel, at least when serious humanitarian reasons arise that require their
presence in another State, unless compelling reasons of national security or
public order otherwise require.
Article 26 Access to employment
1. Member States shall authorise beneficiaries of refugee status to engage in

employed or self-employed activities subject to rules generally applicable to
the profession and to the public service, immediately after the refugee status
has been granted.
2. Member States shall ensure that activities such as employment-related edu-

cation opportunities for adults, vocational training and practical workplace
experience are offered to beneficiaries of refugee status, under equivalent
conditions as nationals.
3. Member States shall authorise beneficiaries of subsidiary protection status

to engage in employed or self-employed activities subject to rules generally
applicable to the profession and to the public service immediately after the
subsidiary protection status has been granted. The situation of the labour
market in the Member States may be taken into account, including for pos-
sible prioritisation of access to employment for a limited period of time to
be determined in accordance with national law. Member States shall ensure
that the beneficiary of subsidiary protection status has access to a post for
which the beneficiary has received an offer in accordance with national
rules on prioritisation in the labour market.
4. Member States shall ensure that beneficiaries of subsidiary protection status

have access to activities such as employment-related education opportu-
360
nities for adults, vocational training and practical workplace experience,

under conditions to be decided by the Member States.
5. The law in force in the Member States applicable to remuneration, access to

social security systems relating to employed or self-employed activities and
other conditions of employment shall apply.
Article 27 Access to education
1. Member States shall grant full access to the education system to all minors
granted refugee or subsidiary protection status, under the same conditions
as nationals.
2. Member States shall allow adults granted refugee or subsidiary protection

status access to the general education system, further training or retraining,
under the same conditions as third country nationals legally resident.
3. Member States shall ensure equal treatment between beneficiaries of ref-

ugee or subsidiary protection status and nationals in the context of the
existing recognition procedures for foreign diplomas, certificates and other
evidence of formal qualifications.
Article 28 Social welfare
1. Member States shall ensure that beneficiaries of refugee or subsidiary pro-

tection status receive, in the Member State that has granted such statuses,
the necessary social assistance, as provided to nationals of that Member
State.
2. By exception to the general rule laid down in paragraph 1, Member States

may limit social assistance granted to beneficiaries of subsidiary protection
status to core benefits which will then be provided at the same levels and
under the same eligibility conditions as nationals.
Article 29 Health care
1. Member States shall ensure that beneficiaries of refugee or subsidiary pro-

tection status have access to health care under the same eligibility condi-
tions as nationals of the Member State that has granted such statuses.
2. By exception to the general rule laid down in paragraph 1, Member States

may limit health care granted to beneficiaries of subsidiary protection to
361
core benefits which will then be provided at the same levels and under the
same eligibility conditions as nationals.
3. Member States shall provide, under the same eligibility conditions as

nationals of the Member State that has granted the status, adequate health
care to beneficiaries of refugee or subsidiary protection status who have
special needs, such as pregnant women, disabled people, persons who have
undergone torture, rape or other serious forms of psychological, physical
or sexual violence or minors who have been victims of any form of abuse,
neglect, exploitation, torture, cruel, inhuman and degrading treatment or
who have suffered from armed conflict.
Article 30 Unaccompanied minors
1. As soon as possible after the granting of refugee or subsidiary protection

status Member States shall take the necessary measures, to ensure the repre-
sentation of unaccompanied minors by legal guardianship or, where neces-
sary, by an organisation responsible for the care and well-being of minors,
or by any other appropriate representation including that based on legisla-
tion or Court order.
2. Member States shall ensure that the minor’s needs are duly met in the
implementation of this Directive by the appointed guardian or representa-
tive. The appropriate authorities shall make regular assessments.
3. Member States shall ensure that unaccompanied minors are placed either:
(a) with adult relatives; or
(b) with a foster family; or
(c) in centres specialised in accommodation for minors; or
(d) in other accommodation suitable for minors.
In this context, the views of the child shall be taken into account in accor-
dance with his or her age and degree of maturity.
4. As far as possible, siblings shall be kept together, taking into account the
best interests of the minor concerned and, in particular, his or her age and
degree of maturity. Changes of residence of unaccompanied minors shall
be limited to a minimum.
5. Member States, protecting the unaccompanied minor’s best interests, shall

endeavour to trace the members of the minor’s family as soon as possible. In
cases where there may be a threat to the life or integrity of the minor or his or
her close relatives, particularly if they have remained in the country of origin,
362
care must be taken to ensure that the collection, processing and circulation of
information concerning those persons is undertaken on a confidential basis.
6. Those working with unaccompanied minors shall have had or receive

appropriate training concerning their needs.
Article 31 Access to accommodation
The Member States shall ensure that beneficiaries of refugee or subsidiary pro-
tection status have access to accommodation under equivalent conditions as
other third country nationals legally resident in their territories.
Article 32 Freedom of movement within the Member State
Member States shall allow freedom of movement within their territory to ben-
eficiaries of refugee or subsidiary protection status, under the same conditions
and restrictions as those provided for other third country nationals legally resi-
dent in their territories.
Article 33 Access to integration facilities
1. In order to facilitate the integration of refugees into society, Member States

shall make provision for integration programmes which they consider to be
appropriate or create pre-conditions which guarantee access to such pro-
grammes.
2. Where it is considered appropriate by Member States, beneficiaries of

subsidiary protection status shall be granted access to integration pro-
grammes.
Article 34 Repatriation
Member States may provide assistance to beneficiaries of refugee or subsidiary

protection status who wish to repatriate.
CHAPTER VIII
Article 35 Cooperation
Member States shall each appoint a national contact point, whose address they
shall communicate to the Commission, which shall communicate it to the other
Member States.
363
Member States shall, in liaison with the Commission, take all appropriate mea-
sures to establish direct cooperation and an exchange of information between
the competent authorities.
Article 36 Staff
Member States shall ensure that authorities and other organisations implement-
ing this Directive have received the necessary training and shall be bound by the
confidentiality principle, as defined in the national law, in relation to any infor-
mation they obtain in the course of their work.
CHAPTER IX
FINAL PROVISIONS
Article 37 Reports
1. By 10 April 2008, the Commission shall report to the European Parliament

and the Council on the application of this Directive and shall propose any
amendments that are necessary. These proposals for amendments shall be
made by way of priority in relation to Articles 15, 26 and 33. Member States
shall send the Commission all the information that is appropriate for draw-
ing up that report by 10 October 2007 .
2. After presenting the report, the Commission shall report to the European
Parliament and the Council on the application of this Directive at least
every five years.
1. The Member States shall bring into force the laws, regulations and adminis-
trative provisions necessary to comply with this Directive before 10 October
2006. They shall forthwith inform the Commission thereof.
When the Member States adopt those measures, they shall contain a refer-
ence to this Directive or shall be accompanied by such a reference on the
occasion of their official publication. The methods of making such refer-
ence shall be laid down by Member States.
2. Member States shall communicate to the Commission the text of the provi-
sions of national law which they adopt in the field covered by this Direc-
tive.
364
publication in the Official Journal of the European Union.
365
Chapter 14 Asylum Procedures
1 Summary
The Directive on asylum procedures, agreed in principle in April 2004,1 as revised
in November 2004,2 and then formally adopted on 1 December 2005,3 lays down
the minimum procedural guarantees applicable for the granting and withdraw-
ing of refugee status. The UK and Ireland have opted in to the Directive, while
Denmark is automatically excluded from its application. Member States must
apply the Directive within two years after its adoption, so by 1 December 2007
(three years, or 1 December 2008, as regards the rules on legal aid).4
Article 3 defines the scope of the Directive, which is limited to the mini-
mum standards necessary for the granting and withdrawing of refugee status
under the 1951 Geneva Convention on the status of refugees. It does not include
determination of qualification under other international instruments or for per-
sons otherwise in need of protection, in particular “subsidiary protection” or
temporary protection, although Member States are obliged to apply the Direc-
tive it they apply a single procedure for determining refugee claims and claims
for subsidiary protection (Article 3(3)), and they may opt to apply the Direc-
tive to applications for any other kind of international protection (Article 3(4)).
Nor does the Directive explicitly set out any hierarchy between applications
for asylum and applications for subsidiary or temporary protection status.5 It
1 Council doc. 8771/04, 30 April 2004.

2 Council doc. 14203/04, 9 Nov. 2004, as approved by the JHA Council in Nov.
2004.
3 Directive 2005/85 (OJ 2005 L 326/13).
4 Art. 43 of the Directive.
5 On the implicit hierarchy set out in the Directive, see s. 4.1 below.
includes any application for asylum made at the border or on the territory of a
Member State (Article 3(2)). Article 5 provides that Member States are free to
provide for more favourable standards on procedures.
The basic principles and guarantees of the procedures for assessing asylum
claims are contained in Chapter II of the Directive (Articles 6 to 22). Article 6
sets out how access to the procedure is to be ensured and Article 8(1) makes clear
that Member States should not reject or exclude applications on the grounds
that they have not been made as soon as possible, although this is “without
prejudice to” Article 23(4)(i), which provides that Member States might consider
an application “unfounded” if an applicant has failed without reasonable cause
to make an application earlier, where he or she had an opportunity to do so. But
it should be emphasised that the Directive makes clear that any “unfounded”
applications must still be assessed using the basic procedural standards set out
in Chapter II.
Procedures regarding family members and minors are provided for (Article
6(2) to (4)). Article 7 provides that applicants for asylum should be allowed to
remain at the border or in the territory until such time as an initial decision has
been made, with the exception of “subsequent applications” and cases where a
person is surrendered or extradited to another Member State, a non-EU State,
or an international criminal court or tribunal.
The requirements for the examination of applications are set out in Article
8, including the need for precise and up to date country of origin information,
the obligation to examine applications “individually, objectively and impartially”
and the necessity to ensure that decision makers have appropriate expertise.6
Articles 9 and 10 provides certain guarantees for applicants, including the
right to have a decision on the asylum application in writing, the right to have
reasons for a negative decision, the right to be informed of the procedure in a
language that it is “reasonably supposed” that they understand, a right to an
interpreter and a right to notification of decisions in a reasonable time. Articles
12 and 13 set out the procedures and conditions for personal interviews, with a
requirement that all applicants be given an interview with a number of excep-
tions. Article 15 provides the right to legal assistance and the circumstances in
which free legal assistance will be provided. Article 16 sets out the rights of
access to information that a legal adviser should have, along with rules on the
legal adviser’s access to the applicant and to interviews.
Article 17 provides the procedural guarantees for unaccompanied minors
including the right to a representative. Article 18 outlines the circumstances in
which an applicant for asylum may be detained. It makes clear that Member
6 There are some circumstances where a Member State can designate different
authorities to be involved in aspects of the asylum process (Article 4(2)), but these
authorities must nonetheless have “the appropriate knowledge or receive the neces-
sary training to fulfil their obligations” (Article 4(3)).
368
States should not hold an applicant for asylum in detention for the sole reason
that he or she is an applicant for asylum. Article 18(2) further specifies that there
must be the possibility of “speedy judicial review” in detention cases. The agreed
Directive does not define the word “detention”.
Articles 19 and 20 outline the procedure in cases where an application for
asylum is explicitly or implicitly withdrawn. Article 21 provides for the role of
UNCHR including the right of access to detention facilities and information
on individual cases. Article 22 prohibits the disclosure of information to the
authorities of the country of origin.
Chapter III, Articles 23-35, is concerned with procedures at first instance
for asylum applications, including accelerated and inadmissibility procedures.
According to Articles 23, 24 and 28, Member States are permitted to have special
or accelerated procedures for a wide range of applications, including unfounded
claims, manifestly unfounded claims, admissibility claims, and repeat applica-
tions, along with two types of special procedures for applications made at the
borders. Article 25 sets out circumstances in which a claim may be rejected as
inadmissible, including applications for which there is another country which
can be considered as the first country of asylum to which applicant has been
admitted (Article 26) or a safe third country (Article 27). Article 27 allows states
to retain or introduce lists of designated safe third countries subject to certain
requirements.
Article 29 sets out the principle of a common EU list on “safe countries
of origin”, along with a procedure for adopting such a list. Article 30 permits
Member States to introduce or national laws regarding “safe countries of origin”.
These must be governed by the same principles as govern the adoption of the
EU common list (see Annex II), but there is a derogation for existing national
lists drawn up according to less stringent requirements (Article 30(2)).
Article 32 makes provision for Member States to have in place specific pro-
cedures derogating from the rules in Chapter II to deal with fresh applications
for asylum after a first application has been rejected or withdrawn, or failure
to go to reception centre or appear before authorities. Furthermore, Member
States may also derogate from the normal procedural rules to put in place par-
ticular procedures for border applications subject to certain safeguards, such
as the right to have access to legal assistance (Article 35). A further derogation
is allowed for border procedures where persons seek illegal entry (Article 36,
known informally as the “supersafe third countries” rule).
Chapter IV (Articles 37 and 38) sets out specific procedures concerning
withdrawal of refugee status. Chapter V (Article 39) sets out the appeals proce-
dure. The principle that applicants for asylum are entitled to an effective remedy
before a court or tribunal is affirmed. Member States must set out rules “where
appropriate” dealing with the question of the suspensive effect of appeals, or
the right to apply for protective measures in the absence of automatic suspen-
369
sive effect of appeals; these rules “must be in accordance with [Member States’]
international obligations” (Article 39(2)).
The final provisions are set out in Chapter VI (Articles 40-46). Apart from
the later date to transpose the provisions on legal aid (see above), a notable point
here is the temporal scope: the Directive only applies to applications (and to
procedures for withdrawal of status) made after the deadline for transposition.7
The Commission must report on the application of the Directive two years after
the transposition deadline (so by 1 December 2009), and then every two years
after that.
It is possible that the European Parliament (EP) will bring an annulment
action against the Directive for breach of the human rights protected as general
principles of Community law and for breach of other principles of EC consti-
tutional law (these relevant issues are discussed further below). The EP has until
late February 2006 to bring an action for annulment.

The original version of the Commission’s proposed Directive was issued in Sep-
tember 2000,8 following earlier discussions on a Commission working document
on common standards on asylum procedures.9 Detailed discussions were held
in the Council’s working party on asylum from December 2000 to June 2001,
without much success, given many Member States’ concerns about the proposal.
Early discussions during the Belgian Council Presidency continued to reveal a
large number of reservations by Member States.10 The Belgian Presidency there-
fore asked the JHA Council meeting at the end of September 2001 to hold a
political discussion on certain key issues: the structure of the proposal (com-
prising the rules on inadmissibility and “manifestly unfounded” applications);
the procedure (comprising the three-tiered procedure for appeals, relevant time
limits and effect of appeals); and the decision-making procedure.11 Following
this Council discussion, the Council Presidency suggested to Coreper a set of
Council conclusions on this proposal, which were agreed after several amend-
ments by the JHA Council on 6/7 December 2001.12 The final text was even
7 On the issue of the temporal scope of EC immigration and asylum law in general,
see Ch. 1.
8 COM (2000) 578, 20 Sep. 2000; OJ 2001 C 62 E/231.
9 SEC (1999) 271, 3 Mar. 1999.
10 Council doc. 11844/01, 20 Sep. 2001 (outcome of proceedings of the working party,
11 and 13 Sep. 2001).
11 Council doc. 11891/01, 17 Sep. 2001.
12 See drafts (Council docs. 14227/01, 21 Nov. 2001 and 14767/01, 3 Dec. 2001) and
final conclusions of the Council (Council doc. 15107/01, 7 Dec. 2001).
370
corrected subsequently to delete reference to possible detention following an

application at the border, including applications made in airport transit zones.13
The relevant conclusions were particularly directed to the Commission
when drawing up a redrafted proposal, which the Laeken European Council
requested it to do by April 2002.14 According to the conclusions, the future
Directive must apply to all applications made under the Geneva Convention on
refugee status, although its application to requests at the border and requests for
other forms of protection remain open. The concept of “manifestly unfounded”
applications should be supplemented, “to take account of, for example, the
asylum applicant’s refusal to cooperate and any abuse of the procedure through
the submission of applications for asylum as a delaying tactic”. There should
also be a special procedure where an application has previously been rejected
by a Member State. As for the process of examining applications, the Directive
should include guarantees in a number of areas, but the Council considered it
“necessary to simplify the provisions concerned without calling into question
the fairness of the procedures and the quality of the decision-making process”.
Finally, the procedural rules should include an appeal on the substance
to a judicial or quasi-judicial body in the regular procedure, although a fur-
ther appeal would only be permitted “where there is provision for such action
in national law”. Even in the regular procedure, the question of the automatic
suspensory effect of appeals “remain[ed] open”. As for the accelerated proce-
dure, there should be at least one appeal to a judicial or quasi-judicial body, but
Member States could limit that body to examination of points of law and mani-
fest errors of fact. Appeals should not have automatic suspensory effect, but in
that case the applicant should be able to challenge any expulsion order, with the
effect of that challenge left open.
The Council took no account of the plenary European Parliament (EP)
vote on 20 September 2001, which generally called for rather higher standards
than in the original proposal.15 In the EP’s view, a number of references to the
protection afforded by the ECHR should be added; the non-refoulment principle
should protect applicants until the end of any final appeal; there should be more
information to legal advisors of applicants; officials at various stages of the pro-
cedure should be better trained; there would be far stronger limits on deten-
tion of asylum-seekers, including rules on detention standards; there would be
13 Council doc. 15107/1/01, 18 Dec. 2001. See further details in room document Asile
13/01, 18 Oct. 2001, for the asylum working party on 22/23 Oct. 2001.
14 See Annex 5.
15 OJ 2002 C 77 E/94. Within the EP, the initial rapporteur called for highly conserva-
tive amendments that lacked significant support in committee, so a compromise
report (A5-0291/01) had to be drafted by Graham Watson, then the committee
chair.
371
more extensive suspensive effect of appeals; and application of the “manifestly

unfounded”, “safe third country” and “safe country of asylum” principles.
For its part, the Commission paid some attention to the detail of the EP’s
vote when it presented its amended proposal nearly two months later than
requested, in June 2002.16 However, the broad thrust of the revised proposal
went in the opposite direction. Although the provisions on minimum standards
for considering applications were largely simplified, rather than weakened dra-
matically, an exception was made for detention of asylum-seekers, which would
be made far easier. The concept of an “unfounded” or “manifestly unfounded”
claim was widened considerably and Member States could suspend the suspen-
sive effect of an appeal in far more situations, including even the “regular pro-
cedure” (if existing national law provided for this), as the Council conclusions
had urged. Finally, the detailed rules on administrative and judicial appeals were
replaced by the simple provision that there had to be an effective judicial remedy,
with the Commission rejecting the view of the Council conclusions that only an
administrative remedy need be provided.
The Seville European Council of June 2002 requested the Council to adopt
this text by December 2003. There was no early move to this end, with the Danish
Council Presidency only holding a brief “open debate” in the October 2002 JHA
Council. It fell to the Greek and Italian Council Presidencies of 2003 to steer
negotiations toward a conclusion by the end-2003 deadline.
Negotiations on the text of the amended proposed directive began in Coun-
cil early in 2003. At the JHA Council in June 2003, Articles 1 to 22, comprising
Chapters I and II, were agreed, subject to certain reservations by Member States.
Subsequently there were discussions at the JHA Council of 2-3 Oct. 2003 on the
issue of “safe countries of origin”, at the JHA Council of 6 Nov. 2003 on “safe
third countries” and border procedures, and some discussion of the Directive
at the JHA Council of 28/29 Nov. 2003 JHA Council. At that point, the Ital-
ian Presidency, which had had little success advancing discussions on any JHA
proposals (or for that matter, little success in any area of EU policy) postponed
any further discussion to the upcoming Irish Presidency. The proposal was then
discussed in detail repeatedly by the Member States’ ambassadors to the EU and
also by ministers at the JHA Council on 19 February 2004, 30 March 2004 and
29/30 April 2004. At the last of these meetings, just a day before the Treaty dead-
line of 1 May 2004, the Council reached a “general approach” on the proposed
text, except for agreement on a common list of “safe countries of origin”. After
a further seven months’ discussion on this point, it became clear that unanimous
agreement on a significant list of such countries was impossible,17 and so the
JHA Council of 19 November 2004 agreed on a revised “general approach” con-
16 COM (2002) 326, 18 June 2002; OJ 2002 C 291 E/143.

17 For the background, see the analysis on the Statewatch news site, dated September
2004: http://www.statewatch.org/news/index.html
372
cerning the Directive. It was then necessary to reconsult the EP due to the signif-
icant changes made to the text since it was first adopted, and the EP took its time
completing this process, finally delivering its second opinion on 27 September
2005. It called for a number of significant changes to the text and, anticipating
that none of its suggested changes would be adopted, threatened possible legal
action against the Council if it adopted the Directive, due to its alleged breach
of human rights principles.18 The Council took no notice of the EP’s views, and
duly adopted the Directive on 1 December 2005.
Comparing the final Directive as adopted in 2005 to the 2002 version of the
Commission’s proposal, the Council made a number of substantial changes to
the text.19 The definitions clause was amended to narrow the personal scope of
the Directive to third-country nationals and stateless persons only, ie excluding
EU citizens.20 However, the definition of “final decision” was usefully clarified
to make clear that a “final decision” has not been taken until the final possible
appeal has been decided upon, regardless of whether an appeal has suspensive
effect.21 The definition of “withdrawal” of an application has also been clarified,
by reference to Directive 2004/83.22 Although there is no definition of “deten-
tion” in the final Directive,23 this simply means that it will be necessary for the
Court of Justice to develop its own interpretation of the term, if asked to inter-
pret Article 18 of the Directive, which addresses this issue. Finally, the defini-
tions clause in the Directive deleted a reference to remaining in an airport transit
zone as part of the definition of remaining on a Member State’s territory, but
the Directive should nonetheless be interpreted to include such zones as the rel-
evant definition is non-exhaustive.24
Also, the final Directive requires Member States which apply a “single
procedure” for applications for asylum and subsidiary protection as defined in
Directive 2004/83 to apply the provisions of the Directive throughout that pro-
cedure.25 A new clause was added on the definition of “responsible authorities”,
18 Such an action would be comparable to the action the EP brought against three
provisions of the family reunion Directive (Case C-540/03, EP v Council, opinion
of 8 Sept. 2005, pending); see Ch. 19.
19 See also Ackers, “The Negotiations on the Asylum Procedures Directive” 7 EJML
(2005) 1.
20 Compare the 2002 version to the final version of Arts. 2(b), (c), (d), (f) and (g).
21 Compare the 2002 version to the final version of Art. 2(d).
22 Compare the 2002 proposal, Art. 2(k), to the final Art. 2(j). The proposed Art. 2(l),
defining “annulment” of refugee status, was deleted.
23 See Art. 2(j) of the 2002 proposal.
24 Compare the 2002 proposal, Art. 2(m), to the final Art. 2(k).
373
allowing Member States, to a limited extent, to assign different authorities to

deal with different aspects of an asylum application.26
The rules on access to the procedure were amended to permit Member
States to require that applications for asylum have to be made at a specific place.27
There is also a useful clarification of when “consent” to a joint application may
be given by an applicant’s dependants.28 The right to stay in the territory pend-
ing a first-instance decision by the authorities was amended to clarify that this
does not entail an entitlement to a residence permit and that an exception may
be made where a person is to be surrendered or extradited to another country
or an international criminal tribunal.29 Also, the requirements for an exami-
nation were amended to provide that an accelerated procedure may apply to
applications considered tardy by Member States,30 and to specify that Member
States may provide for rules on translation of documents.31 A single decision
may be given in respect of a joint application by all members of a family, and
Member States are exempt from stating the reasons for a negative decision or
from giving information on further appeals in certain limited circumstances.32
Certain changes were also made to the guarantees on notification of and inter-
pretation for asylum applicants.33 Also, a new Article concerning obligations to
be imposed on asylum applicants was added.34
As for the personal interview with asylum applicants, the Directive sets
clearly lower standards than the 2002 proposal. In particular, the interview may
be omitted in certain cases where accelerated procedures could apply, or on the
basis of a prior, more limited, meeting with the applicant, or (more broadly than
proposed) where it is “not reasonably practicable”; there is no longer an express
requirement to omit the personal interview only on the basis of an “individual
assessment” (although such a requirement could be inferred); there are more
limited opportunities to make comments in lieu of an interview; and a lack of
appearance at an interview may be counted against the applicant in some cases.35
Member States will have the possibility to require family members to attend the
personal interview, but must ensure that if the applicant’s mother tongue is not
spoken by the interpreter at the interview, that the applicant is able to commu-
26 Art. 4 of the final Directive.

27 Compare the 2002 proposal, Art. 5(2) to the final Art. 6(1).
28 Compare the 2002 proposal, Art. 5(4) to the final Art. 6(3).
29 Compare the 2002 proposal, Art. 6, to the final Art. 7.
30 Compare the 2002 proposal, Art. 5(1), to the final Art. 8(1).
31 Art. 8(4).
34 Art. 11.
374
nicate in the alternative language used.36 Furthermore, Member States are only
obliged to make a “written report” of an interview, rather than a transcript, and
are not obliged to give access to this report before the determining authority
takes a first instance decision.37
Next, the final Directive amended the proposal as regards legal aid and
legal assistance.38 There is no longer an express provision that lawyers or com-
parable advisers can be consulted at the applicant’s own cost “at all stages of the
procedure”, although in the absence of a specific provision permitting Member
States to restrict access to certain stages of the procedure, it must be inferred
that there is nonetheless no temporal limit permitted.39 Legal aid is consider-
ably more restricted, as Member States are permitted to limit such aid only to
the first stage of appeal against a decision, and/or to limit aid to cases “where
the appeal or review is likely to succeed,” although in the latter case the legal aid
cannot be “arbitrarily restricted”. Member States can also set limits on the total
costs chargeable to legal aid, or set a limit based on comparison with legal aid
which their own nationals could receive. Also, the final Directive sets out fur-
ther exceptions to the disclosure of information to legal advisers and to advis-
ers’ access to their clients in detention centres and similar places, and no longer
requires Member States to allow legal advisers to attend the personal interview
with the applicant.
Member States have a number of possibilities to derogate from the obli-
gation to appoint a personal representative for an unaccompanied minor, and
there is further detail on the issue of medical examinations to determine the age
of the minor; an obligation to consider the “best interests of he child” in this
context was also added.40 A provision concerning establishing the facts in the
procedure was moved (in amended form) to Directive 2004/83.41
Detailed rules about detention of asylum applicants were dramatically
simplified,42 and a specific rule about detention pursuant to the Dublin rules
(“Dublin detention”) was dropped.43 The rules on explicitly and implicitly with-
38 Compare the 2002 proposal, Arts. 13-14, to the final Arts. 15-16.
39 The final Art. 15(1) permits access to advisers “on matters relating to [the appli-
cants’] asylum applications”; this wording is apt to cover every stage of the deter-
mination process. There is no reference to “national law” as regards the timing of
access to an adviser, or any other wording which would suggest that indirect restric-
tions on the access could be permitted.
41 Compare the 2002 proposal for the procedures Directive, Art. 16, to the final Art. 4
of Directive 2004/83.
43 Art. 18 of the 2002 proposal.
375
drawn applications were amended somewhat,44 in particular to widen the grounds

for considering that an application is implicitly withdrawn and to allow Member
States leeway not to consider an application (re)submitted after an implicit with-
drawal. As for the disclosure and collection of information on cases, the rules
were widened in some respects (to cover disclosure to the actors of persecution,
not just the country of origin, and to protect the applicant’s family), and nar-
rowed in others (to limit the obligation to the avoidance of direct disclosure).45
The 2002 proposal, like the final Directive, provided for a complex system
for accelerated procedures. The proposal specified that procedures could be
accelerated where they were considered inadmissible, manifestly unfounded (a
concept applicable to ‘safe country of origin’ cases, exclusion cases, and cases
where no issues relevant to the Geneva Convention were raised), unfounded
(eight cases of unfounded applications were listed), subsequent applications, or
border applications.46 The consequences of applying an accelerated procedure
would have been that specific time limits set out in the Directive would have
applied,47 and that Member States would have greater discretion to deny sus-
pensive effect to appeals;48 it was not expressly clear in most cases whether the
normal guarantees provided for in the Directive could otherwise be derogated
from.49 But the final Directive lists instead some fifteen cases where accelerated
procedures can be applied,50 apparently leaving it open to Member States to
apply accelerated procedures in any other cases they wish to.51 The final Direc-
tive is less precise than the Commission’s proposal as regards the time limits and
the circumstances when suspensive effect could be denied when an accelerated
procedure is applicable,52 but it is expressly clear that the normal procedural
guarantees apply,53 except for three cases of specific procedures listed separately
(repeat applications and two types of border applications),54 and for a specific
derogation from the right to a personal interview.55 The final Directive permits
Member States to list more categories of applications which can be designated
44 Compare Arts. 19 and 20 of the 2002 proposal and of the final Directive.
45 Compare Art. 22 of the 2002 proposal and of the final Directive.
46 Art. 23 of the 2002 proposal; see also Arts. 29 and 32 of the proposal.
49 However, express derogations were provided for in Art. 37(2) of the 2002 proposal
and implied derogations appeared in Arts. 33-35.
52 Arts. 23(2) and 39 of the final Directive.
53 See Arts. 23(1), (3) and (4) of the final Directive.
55 Art. 12(2)(c) of the final Directive, noted above.
376
as “manifestly unfounded”,56 although like the 2002 proposal, there is no spe-

cific rule on the consequences of such a designation.
Moving on to the specific categories of special procedure described in the
Directive, the cases which can be considered inadmissible in the final Directive
include, along with “Dublin” cases, “first country of asylum” cases and “safe
third country” cases as proposed in 2002,57 also cases where another Member
State has granted refugee status or an equivalent status, where an application
for equivalent status in a Member State is pending, an “applicant has lodged
an identical application after a final decision”, or a dependant of an applicant
has without good reason lodged a separate application after having consented
to make a joint application.58 On the other hand, the final Directive does not
provide for inadmissibility where a person is subject to an extradition or sur-
render procedure;59 this issue is addressed instead as an exception from the right
to remain on the territory.60
As in the 2002 proposal, the concepts of “first country of asylum” and
“safe third country” are further defined. The former concept is no longer defined
by reference to refugee status or “other reasons justifying the granting of pro-
tection”, subject to the conditions that the protection can still be availed of and
that the protection “is in accordance with the relevant standards laid down in
international law”.61 Rather, the concept applies where refugee status has been
recognised, if the protection can still be availed of, or if the person “otherwise
enjoys sufficient protection in that country, including benefiting from the prin-
ciple of non-refoulement”.62 There is no reference made in the final Directive
to either form of protection being in accordance with international standards,
but there is a requirement that the person concerned must be readmitted to that
country. The final Directive also specifies that Member States may, in applying
the “first country of asylum” concept, “take account” of the standards for defin-
ing “safe third countries” set out in the Directive.
What of the “safe third country” principle? The final Directive contains a
much shorter and less detailed list of standards which must apply to justify the
56 Compare Art. 28(2) of the final Directive to Art. 29 of the 2002 proposal. It follows
from Art. 23(1), (3) and (4) of the final Directive that the basic procedural guaran-
tees in Chapter II must still be observed even where a case is considered “manifestly
unfounded”.
57 Compare Art. 25(a) to (c) of the 2002 proposal to Art. 25(1) and (2)(b) and (c) of
the final Directive.
58 Art. 25(2)(a) and (d) to (g) of the final Directive.
59 Art. 25(d) and (e) of the 2002 proposal.
60 See Art. 7(2) of the final Directive, noted above.
377
application of this principle.63 When applying the principles to specific cases,

the crucial safeguards that the applicant must have a sufficient link to the coun-
try concerned and that the country must be shown to be safe in the applicant’s
particular case have been weakened; so has the obligation to justify the applica-
tion of the principles to specific countries.64 On the other hand, the obligation
to ensure that the applicant is admissible in the country concerned has been
strengthened (in particular to require continued examination of the claim in
such a case), and an obligation to inform the applicant has been added.65
However, the most radical change to the Directive has been made as regards
the “safe country of origin” principle. The 2002 proposal merely contained an
option for Member States to provide for the application of this principle in their
national law, subject to compatibility with specified standards and a requirement
that there be no grounds for an alternative conclusion in each applicant’s circum-
stances.66 But the final Directive obliges Member States to apply the principle in
respect of a common list of “safe countries of origin” to be drawn up by the
Council; this entails the application of a detailed procedure to designate such
countries or to cancel their designation.67 Furthermore, Member States may still
retain or add additional countries or parts of countries to their national lists of
“safe countries of origin”.68 The standards in the 2002 proposal for the designa-
tion of the “safe” countries have been weakened,69 and apply to designation of
both the EU and national lists, except that Member States can maintain national
lists already in force on 1 December 2005 (the date of the Directive’s adoption)
which apply even weaker standards for designation of “safety” of countries or
parts of countries.70 The test for applying the principle to individuals has also
become tighter.71
Moving on to the special procedures which derogate entirely from the pro-
cedural safeguards, the rules on repeat applications have been simplified and
63 Compare Art. 27 and Annex I of the 2002 proposal to Art. 27(1) of the final Direc-
tive.
64 Compare Arts. 27(3), third sub-paragraph, and 28(1) of the 2002 proposal to Art.
27(2) of the final Directive.
65 Compare Art. 28(1)(b) of the 2002 proposal to Art. 27(3)(a) and (4) of the final
Directive.
66 Arts. 30 and 31 and Annex II of the 2002 proposal.
69 Compare Annex II to the 2002 proposal and to the final Directive.
70 Art. 30(2) to (4) of the final Directive.
71 Compare Art. 31 of the 2002 proposal to Art. 31 of the final Directive.
378
clarified somewhat;72 the rules may also be applied in the event of a failure to
appear before the authorities or attend a reception centre.73 The special rules on
border procedures have been made more specific as regards the guarantees which
are applicable; there is a longer time limit (four weeks, rather than two weeks) to
make a decision before the normal rules in the Directive apply, and a possibility
of an indefinite suspension of the normal procedural rules in the event of a large
influx of persons.74 The rule on a second form of border procedure, with much
lower or non-existent procedural standards, was added during negotiations.75
Finally, the rules on withdrawal of status were amended so that only certain
procedural guarantees, rather than all of them, are applicable in such cases.76
The rules on appeals were amended to: specify in more detail which decisions
were covered by the right to an effective remedy,77 delete the express requirement
to consider the merits as well as the law in appeals;78 and to merge and simplify
the separate clauses on appeals in rhe regular and accelerated procedures, inter
alia weakening the standards on suspensive effect of appeals.79
As for the final provisions, the proposed Articles on non-discrimination
and penalties were removed,80 the provisions on appeal by national authorities
and on confidentiality were added,81 and the provisions on transposition were
amended to give Member States an extra year to apply the provisions on legal
aid and to specify that the Directive only applies to applications made after 1
December 2007.82
In conclusion, despite some minor improvements or clarification on specific
aspects, the standards of protection are significantly lower in the final Direc-
tive as compared to the Commission’s 2002 proposal, particularly as regards
appeals, exceptions from core procedural safeguards (especially legal aid and
personal interviews), the definition of “safe third country”, “first country of
72 Compare Arts. 33 and 34 of the 2002 proposal to Arts. 32 and 34 of the final Direc-
tive.
74 Compare Art. 35 of the 2002 proposal and of the final Directive.
76 Compare Art. 37 of the 2002 proposal to Art. 38 of the final Directive.
77 Compare Art. 38(1) and (3) of the 2002 proposal to Art. 39(1) of the final Direc-
tive.
78 Art. 38(2) of the 2002 proposal.
79 Compare Arts. 39 and 40 of the 2002 proposal to Art. 39(3) of the final Directive.
See also the specific provisions on other matters in Art. 39(4) and (6) of the Direc-
tive.
80 Arts. 42 and 43 of the 2002 proposal.
81 Arts. 40 and 41 of the final Directive.
379
asylum” and “safe country of origin”, the mandatory list of “safe countries of
origin”, and the standards applicable to appeals.
3 Legal Analysis
Article 63(1)(d) EC is the legal base for this measure. Article 63(1)(d) specifically
provides for minimum standards for procedures for granting and withdrawal of
refugee status. As noted above, the Directive does not include procedures for
granting or withdrawing forms of subsidiary protection, despite the fact that
Directive 2004/83 on the definition of a person in need of international protec-
tion83 includes subsidiary protection and Article 63(2)(a) EC gives the EC the
power to adopt measures concerning subsidiary protection, which must logically
include the power to set out procedures for determining whether persons are in
need of such protection.
The major legal issues concern the compatibility of the Directive with inter-
national human rights law and the principles of the Geneva Convention itself.
The Directive makes no reference to international instruments other than the
Geneva Convention and instead invites Member States to apply the standards
set out in the Directive to applications for other kinds of protection (Article
3(4)). This would encompass the UN Convention Against Torture (UNCAT),
the International Covenant for Civil and Political Rights (ICCPR) and Article
3 of the ECHR, concerning protection against torture or other inhuman or
degrading treatment. Whilst it is notable that there that no reference is made to
the standards set by Article 3 of the European Convention on Human Rights
(ECHR), although there is a reference in the preamble to the EU Charter of
Fundamental Rights, the ECHR standards would clearly bind the Community
and the Member States in interpreting the Directive, due to the status of the
ECHR and the case law of the European Court of Human Rights as a major
source of the general principles of EC law.84
The failure to ensure that Member States apply the standards set by Article
3 ECHR may result in conflict between European Union law and the ECHR.
It will be recalled that the European Court of Human Rights in recent years
has examined the compatibility with Article 3 obligations of the removal of
an asylum seeker from one EU Member State to another EU Member State
where there was a difference in interpretation between those States on obliga-
tions under the 1951 Convention on the Status of Refugees and where the failure
to provide sanctuary for a person who feared persecution for non-State agents
might result in the expulsion of that person in breach of Article 3 ECHR.85
Whilst on the facts the Court declined to find the case admissible, it did not rule
83 See Ch. 13.

84 See Ch. 5.
85 T.I. v United Kingdom, 6 March 2000 (Reports of Judgments and Decisions 2000-
III).
380
out the application of such principles in the future, and it did make clear that the
expelling Member State had to undertake an examination of the risk of further
removal from the second Member State to a location where there would be a real
risk of an Article 3 violation. It must follow that the same principles apply to
removal of an asylum-seeker from an EU Member State to a non-EU Member
State, regardless of whether the latter has ratified the ECHR or not.
Of course, there is well-known case law of the European Court of Human
Rights on the substantive protection conferred by the ECHR against expulsion
to an unsafe country, entailing liability on the removing State when there is a
sufficiently high risk that treatment in the receiving state will fall short of ECHR
standards.86 The case law has established clearly that such a “Soering effect”
applies whenever removal is sufficiently likely to result in a breach of the stan-
dards of Articles 2, 3 or 6 ECHR in the receiving State; the question of applica-
tion of a “Soering effect” to other ECHR provisions remain open.87
In addition to this substantive protection, the case law of the European
Court of Human Rights has indicated that there are a number of procedural
obligations inherent in Article 3 ECHR, which are incumbent upon States con-
sidering asylum applications. Although the Court has repeatedly held that the
standard system of judicial review applied in English law is adequate to meet
the “effective remedies” requirements of Article 13 ECHR, applied in conjunc-
tion with Article 3 ECHR,88 except where the usual standard is substantially
lower due to alleged security risks,89 it has criticised particular procedural rules
in other countries. In Jabari v Turkey,90 it stated that the ECHR will be violated
if there is no consideration of the merits of an asylum request for procedural
reasons, where there is also no suspensive effect of an appeal or consideration of
the merits on appeal. More broadly, States have obligations to ensure “indepen-
dent and rigorous scrutiny” of claims, entailing the “possibility of suspending”
a removal.
The Court returned to some of these issues in the judgment in Conka v Bel-
gium, stating that Article 13 ECHR would be breached if national authorities
carry out an expulsion before it is determined whether that expulsion is com-
patible with the ECHR, and ruling that the Belgian system denying suspensive
86 See in particular Soering v UK (A-161), HLR v France (Reports of Judgments

and Decisions 1997-III) and Bader v Sweden (judgment of 8 Nov. 2005, not yet
reported).
87 On this point, see the House of Lords judgment in R. v Special Adjudicator ex parte
Ullah and Do [2004] UKHL 26, and the analysis by Piotrowicz and van Eck, “Sub-
sidiary Protection and Primary Rights”, 53 ICLQ (2004) 107.
88 See Soering v UK (ibid), Vilvarhaj v UK (A-215) and Hilal v UK (Reports of Judg-
ments and Decisions 2001-II).
89 Chahal v UK (Reports of Judgments and Decisions 1996-V).
90 Paras. 49 and 50 (Reports of Judgments and Decisions 2000-VIII).
381
effect (but permitting an application to a court which might grant it) was in
particular a breach of Article 13.91 Although this judgment concerned collective
expulsions, not Article 3 ECHR, there seems no reason to doubt its applicability
to Article 3, given the Court’s reference to the Jabari judgment by analogy and
the status of Article 3 as a non-derogable right, and one of the most impor-
tant rights protected by the ECHR. It is therefore incompatible with Article 13
ECHR to execute a deportation order before the Article 3 claim has been exam-
ined on appeal. Moreover, it is clear from the Court’s judgment that a system
providing for a discretionary grant of suspensive effect upon application is not
sufficient, as only automatic suspensive effect will satisfy the requirements of the
Convention. The overload of the courts and the “risks of abuse of process” are
not sufficient reasons to convince the Court otherwise.
Apart from the suspensive effect of appeals, what other procedural rights are
conferred by the ECHR as implicit elements of Article 3? It is clear from Jabari
that an absolute and rigid time-limit for presenting applications is a procedural
defect that violates Article 3 ECHR, although it might be remedied if the merits
of a case were nonetheless considered in an appeal which entailed suspensive
effect. Other procedural issues were considered in a decision of the European
Human Rights Commission in Hatami v Sweden,92 a case subsequently settled.
In this case, the government rejected an asylum application, inter alia on the
grounds that the applicant’s story about his transit route. The Commission con-
cluded that a government refusal to recognise a refugee due to alleged inconsis-
tencies resulting from a short interview conducted with inadequate interpretation
facilities, resulting only in a short report lacking any detail and not explained to
the applicant, led to a breach of Article 3 EHCR due to inadequate procedural
safeguards in the State concerned. Moreover, the Commission explicitly placed
great stress on the medical evidence presented by an applicant, where it is con-
sistent with the applicant’s statements concerning torture. It is also clear that,
to avoid an Article 3 violation, instead of an obsessive focus by the authorities
on alleged inconsistencies concerning an applicant’s travel, the asylum determi-
nation process should focus on an applicant’s assertions concerning the threat
of torture, derived from an applicant’s “political affiliations…and his activities,
his history of detention and ill-treatment”. Finally, the Commission made the
important general observation that “complete accuracy is seldom to be expected
by victims of torture”. In a later case, the Human Rights Court ruled that lack
of credibility in an applicant’s story regarding his or her transit should be over-
looked where there was nonetheless a sufficiently strong argument that Article 3
risk would materialise upon return to the country of origin.93
91 Paras 79-85 of the judgment (Reports of Judgments and Decisions 2002-I).

92 Report, 23 April 1998 (unreported), paras. 96 to 109.
93 Judgment of 26 July 2005 in N. v Finland, not yet reported.
382
With human rights concerns in mind, in particular as regards “safe third

countries”, “safe countries of origin” and the derogations from basic procedural
rights permitted by the Directive, a number of NGOs in March 2004 called for
the withdrawal of the proposed Directive noting
“with deep regret that the most contentious provisions are all intended to deny
asylum seekers access to asylum procedures...we are concerned about the effect
that this abdication from international law obligations will have on refugee pro-
tection within the EU and elsewhere, as well as on the EU’s credibility in the
international refugee and human rights debate” 94.
Following agreement by the Council on the terms of the proposed directive in

April 2004. NGOs further called for the European Parliament to bring a direct
action against the Council under Article 230 of the EC Treaty for annulment of
the Directive, once adopted, on the basis of its incompatibility with fundamen-
tal human rights standards.95 As noted above, the EP indeed threatened to bring
an action, but it remained to be seen at time of writing whether it now does so
following adoption of the Directive in December 2005.
With the relevant case law and these criticisms in mind, to what extent can
it be argued that the agreed Directive is in breach of human rights? This issue,
central to the creation of a Common European Asylum System and the EU’s
assertions that it guarantees human rights within its legal order, is considered in
full below as part of a detailed analysis of the Directive.
Two further legal points regarding the competence to adopt this Directive
must first also be considered. Both relate to the common list of “safe countries
of origin”. First of all, it can be argued that in requiring all Member States to
apply a common EU list of “safe countries of origin”, without granting them the
power to disapply that list permanently in whole or part, the Council exceeded
its powers to set only “minimum standards” as regards asylum procedures in the
Member States, since the concept of “minimum standards” must always leave
Member States free to adopt more favourable provisions for the persons con-
cerned.96 However, the same objection does not apply as regards the common
94 ECRE, ILGA Europe, Amnesty International, Pax Christi International, Quaker

Council for European Affairs, Human Rights Watch, CARITAS-Europe, Médecins
Sans Frontières, Churches’ Commission for Migrants, Save the Children Europe.
“Call for withdrawal of the Asylum Procedures Directive”, 22 March 2004.
95 See Immigration Law Practitioners’ Association (ILPA) Analysis and Critique of
Council Directive on minimum standards on procedures in Member States for grant-
ing and withdrawing refugee status (30 April 2004), prepared by Cathryn Costello,
University of Oxford: <http://www.ilpa.org.uk>, “submissions” dated July 2004.
96 A temporary prospect of suspension of third States from the list, in accordance
with Art. 29(7) of the Directive, still goes beyond the Council’s power to set “mini-
383
list of “European safe third countries” which the Council shall adopt pursuant
to Article 36, since Member States are not obliged by the Directive to apply the
“European safe third countries” concept at all.
Secondly, it is strongly arguable that the adoption of common lists of “safe
countries of origin” pursuant to Article 29(2) of the Directive and of “European
safe third countries” pursuant to Article 36(3) of the Directive should be subject
to the full legislative procedure – which, following the adoption of the Directive,
is co-decision with the European Parliament – rather than a simplified proce-
dure for the adoption of implementing measures. This is because the adoption
of such lists is an “essential element” of the subject-matter to be regulated, and
the Court of Justice has always made clear that the essential elements of an issue
cannot be the subject of implementing measures, but must be the subject of the
full legislative process.97 The relevant provisions are therefore invalid for breach
of an essential procedural requirement.
Even if the EP chooses not to challenge the validity of the “common list”
provisions on the grounds of lack of competence or breach of an essential pro-
cedural requirement within the deadline, it will be open to persons subjected to
either list when adopted, or to NGOs that wish to challenge the adoption of the
list, to challenge the validity of the list in the national courts on such grounds,
alongside any challenge that might be made to the legality of all or part of the
list on substantive grounds (see discussion below).98
4 Comments
4.1 Introduction
The procedures and appeals for determination of asylum applications are criti-
cal to the safety and acceptability of any system of protection. The key to a
fair system of asylum in Europe lies in the adequacy of the procedures and the
integrity of the officials applying it. The Directive is focused on measures for a
system to deal with asylum applications. A large proportion of the Directive is
dedicated to permitting Member States to set up a system for dealing quickly
with inadmissible and unfounded cases, and furthermore permitting them to set
mum standards” because it does not leave to Member States an unlimited power to
disregard the “safe country of origin” concept entirely, or to disapply the concept
permanently to some countries on the list.
97 Case law beginning with Case 25/70 Koster [1970] ECR 1161. See by analogy the
Opinion in Case C-392/95 EP v Council [1997] ECR I-3213, which argued that any
change in the list of countries whose nationals had to have a visa to enter all EU
Member States was a sufficiently essential change to require reconsultation of the
EP on the proposed legislation.
98 For examples of such challenges brought through the national courts, see Case C-
491/01 BAT [2002] ECR I-11453 (lack of competence) and Case C-408/95 Eurotun-
nel [1997] ECR I-6315 (breach of procedural requirements).
384
up special systems that do not expressly even have to comply with all (or in one
case, any) procedural safeguards.
Research demonstrates that the “frontloading” of decision making in an
asylum system, including high quality decision making and adequate legal rep-
resentation at an early stage of the process, leads to more efficient and effective
decision making and a more coherent and fair asylum system.99 To the extent
that the Directive requires Member States to ensure such frontloading, it will
undoubtedly be of practical use to representatives who struggle with increas-
ingly deficient national asylum procedures.
4.2 Scope
The Directive does not, as proposed by the Commission, address the issue of
procedural safeguards in relation to decision-making under the Dublin II Regu-
lation.100 This is unfortunate, since the procedural rules in that Regulation are
limited and potentially in breach of human rights law, because of the lack of a
guarantee that an argument concerning an Article 3 “chain deportation” breach
in the responsible Member State has to be heard by the removing Member
State.101 However, it should logically follow that the Directive does apply to
the initial processing of an application which proves to fall within the scope of
the Dublin II Regulation, until it is ascertained that the Regulation potentially
applies. Moreover, it is beyond any doubt that once a Dublin transfer takes place
and the responsible Member State begins examining the asylum application, it
is bound by the rules in this Directive. This will include any designation of a
“safe third country” or any other removal to a third country by the respon-
sible Member State; on this point, the reference to purely “national law” in the
Dublin II Regulation must be regarded as overtaken by the rules on removal
to third countries in this Directive as from the deadline to apply the latter,102
by application of the lex posteriori principle. By the same token, this Directive,
including the criteria for removal to third countries, would also apply where a
Member State decides to remove a person to a third country rather than transfer
an applicant to another Member State which would be responsible under the
Dublin II rules. As for the Dublin II process itself, it should be recalled that it is
still subject to the “effective remedies” principles of Community law.
As noted above, the Directive does not cover procedures for persons who
make claims for “subsidiary protection” in a Member State, except to the extent
that a Member State applies a single procedure for determining such claims
and claims for Geneva Convention refugee status, even though such persons
99 Crawley, “Breaking Down the Barriers: A Report on the Conduct of Asylum Inter-
views at Ports” (ILPA, 1999).
100 See para. 29 of the preamble.
101 See T.I. v UK (n. xx above), and further discussion in Ch. 10.
102 See Art. 3(3) of Reg. 343/2003 (OJ 2003 L 50/1).
385
are within the scope of Directive 2004/83 on “qualification” for international

protection. It seems illogical at least to exclude from the procedures Directive
certain categories of person falling within the scope of the “qualifications direc-
tive”. Nonetheless, it might be argued that persons applying solely for subsid-
iary protection are at least covered by the “effective remedies” principles of EC
law, due to the adoption of an EC measure defining the concept of subsidiary
protection and its content. Although the Commission has announced an inten-
tion, endorsed by the Council, to extend the asylum procedures directive (or at
least part of it) to persons applying for subsidiary protection, with a view to all
Member States in future applying a “single procedure” to consider both types of
claim, there has been no concrete move in this direction yet, even to set out an
Action Plan as the Commission had promised by the end of 2004.103
The Directive does not set out an express hierarchy between Geneva Con-
vention status applications and applications for subsidiary protection. The
point is practically important because Member States are permitted by Direc-
tive 2004/83 to set much lower standards for the content of status for the ben-
eficiaries of subsidiary protection and their family members, as compared to
refugees and their family members.104 So Member States might be tempted to
award subsidiary protection status in order to reduce the perceived “burden”
created by the person in need of international protection, without considering
whether that person has a claim for refugee status. Nonetheless, such a hierarchy
implicitly exists in the Directive. The result of this is that a claim for Geneva
Convention status (unless a person specifically does not make a claim for such
status)105 must be considered before, or simultaneously with, a claim for subsid-
iary protection; and that Member States must allow an appeal against a decision
to recognise subsidiary protection status but to refuse to recognize Geneva Con-
vention status, except in cases where a Member State grants identical benefits to
both categories of person.
This interpretation is supported first of all by the wording of the EC Treaty,
which requires EC legislation concerning asylum to be “in accordance with”
the Geneva Convention. It would not be in accordance with the Convention
if a person who met the Convention definition of “refugee” were denied the
chance to claim refugee status at all, or the chance to appeal against refusal of
recognition of Geneva Convention refugee status where an inferior status had
been recognised by a Member State. Some might wish to argue that the Geneva
103 See the Commission communication on a single procedure (COM (2004 503, 15
July 2004; see also SEC (2004) 937, 15 July 2004) and Council conclusions (JHA
Council, 25 and 26 Oct. 2004).
104 See Ch. 13; furthermore the family reunion directive applies to refugees’ family
members, but not the family members of those with subsidiary protection (see Ch.
19).
105 See Art. 2(b) of the Directive.
386
Convention only provides protection against refoulement, which can be guar-

anteed by an inferior status to refugee status. But this interpretation would be
inconsistent with the objective of a “full and inclusive application of the Geneva
Convention”, as set out in the Tampere conclusions and reiterated in point 2
of the preamble to this Directive. Also, a refusal to consider an application for
Convention refugee status or an appeal regarding that status might lead to “sec-
ondary movements” of asylum applicants towards Member States which would
consider such claims or appeals, contrary to the objective set out in point 6 of
the preamble. The preamble (at point 22) furthermore provides that “Member
States should examine all applications on the substance, i.e. assess whether the
applicant in question qualifies as a refugee ... except where the present Direc-
tive provides otherwise ...”. This can only mean that Member States can only
refuse to consider an application for Convention refugee status or refuse to
consider an appeal against recognition of such status, on the grounds that the
person already has subsidiary protection status in that Member State, where
the Directive expressly permits them not to consider an application or appeal
on those grounds. The Directive only extends that permission where the person
concerned has a status in that Member State entirely identical to that set out for
Geneva Convention refugees in Directive 2004/83,106 although it also appears
that the “first country of asylum” rule could apply where a person has a form of
subsidiary protection status recognised by a non-EU country.107 The obligation
to permit an appeal against a refusal to recognise refugee status due to obtain-
ing subsidiary protection status also follows from the preamble (point 27) and
Article 39 of the procedures Directive. Finally, this interpretation also follows
from Directive 2004/83, which defines a person eligible for subsidiary protection
status as a person “who does not qualify as a refugee”,108 and from the recep-
tion conditions Directive, which refers to the possibility to extend the scope of
that Directive to “procedures for deciding on applications for kinds of protec-
106 See Arts. 9(2), 25(2)(d) and (e) and 39(5), which allow derogations from various pro-
visions where the applicant has “a status, which offers the same rights and benefits
under national and Community law as the refugee status by virtue of Council Direc-
tive 2004/83/EC” (Arts. 9(2) and 39(5)) or where the applicant “has been granted a
status equivalent to the rights and benefits of the refugee status by virtue of Council
Directive 2004/83/EC” (Art. 25(2)).
107 See s. 4.3 below, as regards the interpretation of the “first country of asylum” con-
cept.
108 Art. 2(e) of that Directive (see Ch. 13), emphasis added. See also the preamble to
that Directive, points 2 (“full and inclusive application of the Geneva Convention”),
3 (the Geneva Convention is the “cornerstone of the international legal regime for
the protection of refugees”) and 5 (subsidiary protection status is “complementary”
to Convention refugee status).
387
tion other than that emanating from the Geneva Convention for third-country
nationals or stateless persons who are found not to be refugees.” 109
The next point about the scope to consider is the exclusion of EU citizens.
Since Article 63(1)(d) EC is not limited in scope to third-country nationals, it is
arguable that the failure to adopt a measure concerning asylum procedures for
EU citizens within the five year time limit applying to that provision is a breach
of a Treaty obligation. Member States remain bound by their commitments
under the Geneva Convention and under the ECHR to any EU citizens applying
for asylum or otherwise in need of protection from another Member State.110
Finally, it should be emphasised that the Directive does not provide for
any grounds to suspend consideration of asylum applications when a Member
State wishes to apply a national “temporary protection” scheme. There is sepa-
rate Community legislation allowing for the adoption of a Community-wide
temporary protection scheme, which authorises Member States to suspend con-
sideration of asylum applications from the groups of persons covered by the
scheme for as long as it is applicable.111 Since the asylum procedures Directive
contains no provision suggesting that this prior Directive has been repealed, it
should be assumed that it continues in force and, if applied, could still justify
the suspension of consideration of asylum applications. But in the absence of
anything in the temporary protection Directive or the asylum procedures Direc-
tive that would suggest that any derogations are permitted for purely national
temporary protection regimes, it follows that no national temporary protection
regime which authorises the suspension of examination of asylum applications
is permitted. This interpretation is consistent with other EC asylum legislation.
112
In fact, it is further arguable that the temporary protection Directive by itself
precludes any national temporary protection scheme;113 the other EC asylum
109 Art. 3(4) of that Directive (see Ch. 12), emphasis added. See also the preamble to
that Directive, points 2 (“full and inclusive application of the Geneva Convention”).
The “exceptional” nature of temporary protection as compared to the Geneva Con-
vention (see Ch. 15) also supports this interpretation.
110 See further Ch. 13 on this issue. It should also be noted that Art. 307 EC obliges
Member States to give precedence to international treaties concluded before their
EC membership in the event of a conflict with EC law; this obliges Member States
to apply the Geneva Convention rather than the Protocol to the EC Treaty on
asylum for Member States’ nationals, which purports to oblige Member States not
to consider such applications.
111 See Art. 17 of Directive 2001/55 (see Ch. 15).
112 See Art. 3(3) of Directive 2003/9 on reception conditions for asylum-seekers, which
specifies that this Directive is inapplicable when Directive 2001/55 applies, but makes
no derogation at all regarding any national temporary protection scheme (see Ch.
12). Nor does Directive 2004/83 (see Ch. 13) make any derogation for national tem-
porary protection schemes.
388
legislation, including the asylum procedures Directive in particular, confirms

this interpretation.
4.3 Basic Standards

Examining some specific issues in Chapter II in the order in which they appear,
the Directive is very unclear as to the position of an applicant following extradi-
tion or surrender to another country or an international tribunal pursuant to
Article 7(2). First of all, it should be reiterated that at least several provisions
of the ECHR prevent extradition to another country if there is a sufficiently
proven risk that the ECHR might be violated in that other country, including by
reason of a possible further “chain” removal to an unsafe country;114 these rules
of course apply to any extradition or surrender pursuant to this Directive. If
the extradition request comes from the country of origin of the asylum-seeker,
it would surely be incompatible with the Geneva Convention to return a person
to his or her country of origin without considering the asylum claim, a for-
tiori returning the person directly into the hands of the State security apparatus
responsible for criminal prosecutions. In any case, logically there seems no point
to applying Article 7(2) in such cases, instead of considering the asylum claim
on the merits since the grounds for considering the asylum claim overlap with
objections which can be anticipated to complying with the extradition request.
Therefore, Article 7(2) should be considered invalid to the extent that it applies
to extraditions to the asylum-seeker’s country of origin.
What if the applicant subsequently returns to a Member State, following
an acquittal or after or while serving a sentence imposed following the extradi-
tion or surrender? The Directive does not state that it is up to national law to
determine the applicant’s status in that case; it must follow that Community
law regulates the position. Since the criteria in the Directive for considering the
application withdrawn are not met, the application process must be considered
suspended, to be resumed at the point where proceedings were interrupted once
the applicant returns to that Member State. To ensure the practical effective-
ness of the Directive, there must be an implied obligation on the Member State
consenting to an extradition or surrender to insist upon a guarantee that the
asylum-seeker will be allowed to return following proceedings to resume the
asylum application in that Member State; there is also an implied obligation on
that Member State to readmit the person concerned.
The next issue to consider is the derogation from the right to an interview,
in particular the derogation from the right where Article 23(4)(a), (c), (g), (h) and
(j) apply (Article 12(2)(c) of the Directive). This derogation means that Member
States need not hold an interview where an examining authority has determined,
“on the basis of a complete examination of information provided by the appli-
cant”, that the application raises no issues relevant to the Geneva Convention,
114 See case law beginning with Soering v UK (n. 88 above).
389
because the “safe country of origin” or “safe third country” rule applies, the
applicant’s statements are inter alia contradictory, the application is a repeat
application with no new elements involved, or the applicant is simply trying
to delay the application of an expulsion decision. It is submitted that Article
12(2)(c) is quite simply invalid for breach of the fundamental rights protected
as general principles of Community law. The importance of effective procedural
rights in asylum cases, in particular in the context of interviews with an asylum
applicant, has been emphasised repeatedly in the case law of the Strasbourg
organs, especially in the Commission decision in Hatami excerpted above. Since
the Directive does not require Member States to hold any other interview with
the applicant or lay down standards relating to the prior information submitted
by the applicant prior to the personal interview where Article 12(2)(c) applies
(compare with Article 12(2)(b), read with Articles 13(5) and 14(4)), then there
would be no effective procedural safeguard at all ensuring that an applicant is
able to submit a full statement of the circumstances of his or her case in the
absence of a personal interview. This is particularly questionable in light of the
possibility of a suspension of the suspensive effect of an appeal, which is espe-
cially likely to be the case where an application is covered by the derogation from
a personal interview, given also the lack of a right to legal aid before the initial
negative decision by the authorities, and the lack of an opportunity to make
comments in lieu (as provided for in Article 12(3) of the Directive). The dero-
gation is also contradictory (and therefore particularly likely to be invalid) as
regards: the “safe country of origin” and “safe third country” exceptions, where
Member States are particularly obliged to examine the individual circumstances
of the applicant according to the express wording of the Directive; the “contra-
dictory statements” exception, where the personal interview would provide an
opportunity for the applicant to clarify any apparent inconsistency, and where
the Hatami case particularly shows the danger of national authorities’ over-
reliance on this exception; and the “expulsion” exception, where the Directive
requires the authorities to decide upon the subjective intentions of the applicant
(“the applicant is making an application merely in order to…”), an issue which
cannot be properly determined without a personal interview.
It might be argued that Article 12(2)(c) is valid because of the procedural
“safeguard” that the interview can only be skipped following a full examina-
tion of the information available, and the further “safeguard” in Article 12(5)
that the lack of a personal interview shall not adversely affect the decision on
the application. As to the first “safeguard”, it is not sufficiently effective in the
absence of any rules on prior contact with the applicant, the information sub-
mitted by the applicant and the absence of a right to prior legal aid or to submit
comments in lieu of the interview.
As to the second “safeguard”, it appears to be inspired by the surreal adven-
tures of Alice in Wonderland. One might as well provide in an EU Framework
Decision that “[t]he absence of a trial shall not adversely affect a court’s deci-
390
sion on whether a person is guilty”. Inevitably, while the absence of an interview

might not, in and of itself, entail an increased finding of a negative decision in
the purely formal sense (ie the rejection of an application purely because there
was no interview), it is simply common sense that depriving an asylum applicant
of his or her main opportunity to present his or her case will often adversely
affect the decision on the application in practice. Both these safeguards simply
fail to take account of the prospect that an applicant may be illiterate or badly
educated, badly advised or not advised at all, and so may not realise the impli-
cations of initially offering information to the authorities or be able to fully or
clearly express himself or herself in writing. Furthermore, a personal interview
is necessary in light of the principle set out in the UNHCR Handbook that
the burden of ascertaining the truth of the asylum claim is shared between the
applicant and the host State.
It follows that Article 12(2)(c) of the Directive must be considered invalid,
unless the Court of Justice is willing to deduce implied procedural protections
whenever this provision applies that would be tantamount to simply providing
for the personal interview in any case. If the EP does not challenge the validity
of this provision, its application should certainly be challenged in the national
courts with a view to an early reference to the Court of Justice on its validity
and interpretation. In any case, given the importance of the right to a personal
interview in the determination process, the exceptions from the right set out in
Article 12 must be considered exhaustive.
Moving on to the status of the report of the personal interview, Article
14(2), providing for a possible delay in the applicant’s receipt of the report until
after the first-instance decision of the authorities, is dubious in light of the prin-
ciples set out by the Strasbourg organs, in particular in the Hatami decision. It
would be particularly dubious if there is no suspensive effect of an appeal, with
the result that an applicant would be removed before he or she had even seen the
report of the personal interview, entailing no possibility to object to its contents
before the first instance administrative decision and the removal from the coun-
try. So it follows that either Article 14(2) is invalid, or it is valid only subject to
the proviso that it can only be applied where an appeal has suspensive effect.
The next problematic provision in the Directive is the Article on the right to
legal aid, in particular the limitation to appeals (Article 15(2)) and the possible
condition that “the appeal or review is likely to succeed” (Article 15(3)(d)). It
should first be emphasised that while the Human Rights Court has not yet had
an opportunity to rule on legal aid in the context of asylum, the importance of
the rights at issue in asylum cases must mean that a right to legal aid exists.115
As for the limitation to appeal cases, it is particularly questionable where
there is no suspensive effect of appeals, as it would mean that an applicant would
115 See, for example, the judgments in Airey v Ireland (A-32) and Steel and Morris v
UK, judgment of 15 Feb. 2005, not yet reported.
391
be removed before ever having been able to invoke the right to legal aid. As for
the limitation to cases which are “likely to succeed”, it is also questionable, par-
ticularly in the absence of any requirement for objective and high-quality deci-
sions on legal aid applications, or for any procedural rights in relation to such
applications. Again this limitation is particularly questionable where there is no
suspensive effect of an appeal; and obviously the two limitations are particularly
questionable if applied together, especially if an appeal has no suspensive effect.
It must follow that the limitations must either be considered invalid, or subject
to an implied condition that they can only be applied where an appeal has sus-
pensive effect; and furthermore, that there are implied procedural rights and
decision-making standards in respect of legal aid application decisions.
One technical issue regarding the legal aid clause is its precise temporal
scope. While the Directive as a whole only applies to applications made after 1
December 2007, the legal aid clause only applies from 1 December 2008; but the
clause is not limited in scope to applications made after the latter date. It must
follow that the legal aid clause applies to applications made after 1 December
2007, even though the right to legal aid pursuant to the Directive cannot be
invoked until after 1 December 2008. In other words, the legal aid clause applies
to applications pending on 1 December 2008, as long as those applications were
initially made after 1 December 2007.
As for detention, the Directive does preclude detention of all asylum-seek-
ers, but does not preclude the detention of specific categories of asylum-seek-
ers or provide for any protection against detention other than the requirement
for speedy judicial review. It is arguable that the general principles of Commu-
nity law incorporate the full panoply of protections regarding detention set out
in Article 5 ECHR and the ICCPR.116 So the Directive cannot be interpret to
permit detention for administrative purposes or any other purposes which are
incompatible with ECHR or ICCPR standards.117
4.4 Special Rules

It is notable the Directive does not describe the details of the “regular proce-
dure”, leaving it to Member States’ discretion, apart from the limited provisions
of Article 23(2). Inevitably this will lead to divergence in practice, something
which the harmonisation process seeks to avoid.
The key issue in the Directive is therefore the extent to which proceedings
and appeals can be accelerated, and standards applicable to the administrative
116 For a detailed examination and comparison of the ICCPR and ECHR jurispru-
dence, see Wilsher, “Detention of Asylum-Seekers and Refugees and International
Human Rights Law” in Shah, ed., The Challenge of Asylum to Legal Systems (Cav-
endish, 2005) 145.
117 See Saadi v UK, pending before the European Court of Human Rights (admissibil-
ity decision of 27 Sep. 2005, not yet reported).
392
procedure lowered, in special circumstances. The rules on special circumstances

as regards asylum applications are set out in Articles 23-35 (Chapter III), while
Chapter IV (Articles 37-38) contains special rules on the withdrawal of refugee
status. These provisions can only be understood fully in the light of their rela-
tionship with the basic procedural rules in Chapter II, and the appeal rules in
Chapter V.
Articles 23 and 24 contain the core rules on the link between the special
procedures for asylum applications and Chapter II. The starting point is Article
23(1), which states that applications must be examined “in accordance with the
basic principles and guarantees of Chapter II”. The general rule for such pro-
cedures is that they must be “concluded as soon as possible, without prejudice
to an adequate and complete examination” (Article 23(2), first sub-paragraph).
If no decision is taken within six months,118 Member States must either inform
the applicant of the delay or give the applicant a date for an expected deci-
sion (Article 23(2), second sub-paragraph). Due to the lack of consequences
attached to it, the six-month time-period cannot really be considered as a dead-
line, although given the obligations to inform the applicant at this point it might
be argued that the Directive’s drafters assume that normally six months should
be a sufficient time to complete the first-instance examination of any applica-
tion. Also, there is nothing to preclude Member States from establishing more
concrete consequences for decision-makers at the end of this six-month period
(or at the end of another period determined by national law), provided that the
Member State nevertheless ensures that the minimum procedural standards set
out in the Directive are guaranteed.
Article 23(3) and (4) then set out rules on possible prioritisation or accel-
eration of examinations, although it is clear that each provision is only optional
(“Member States may”) and that despite the greater speed within which decisions
in such cases may be taken, the decisions in either case must still be “in accor-
dance with the basic principles and guarantees in Chapter II”. This is the same
wording as the general rule for examination of applications set out in Article
23(1), and it follows by comparison with the express derogations from Chapter
II permitted by Articles 12(2)(c) and 24 that, apart from such cases, an acceler-
ated procedure pursuant to Article 23(3) and (4) does not permit Member States
to derogate from any of the standards set out in Chapter II. This equally applies
to the rules on inadmissibility set out in Articles 25-27; although the merits of
an application falling within the scope of these rules need not be examined, it
nonetheless follows from the wording of Article 23 that the consideration of
admissibility must take place within the framework of the guarantees set out in
118 In the absence of a reference to national law, the starting point for calculating this
period must be established on the basis of uniform Community rules (see Ch. 1). It
makes sense to calculate the time from the date when the application was lodged.
393
Chapter II. This is explicitly clear as regards the “safe third country” concept.119
At first sight, the wording of Article 27(4) arguably suggests the opposite inter-
pretation, since it states that where a “safe third country” refuses to accept the
return of an asylum-seeker, a Member State must consider the application in
accordance with the Chapter II guarantees. But this can only mean that in such
cases, Member States must consider the substance of the application in accor-
dance with the Chapter II guarantees; those guarantees are still applicable up
to the point of any decision on inadmissibility on “safe third country” grounds,
since Article 23(4) expressly states so, and since it would not be necessary to
provide for a possible exception to the personal interview in “safe third country”
cases in Article 12(2)(c) of the Directive unless the Chapter II guarantees would
otherwise be applicable to such cases.
It is true that Article 28(2) goes on to specify that Member States may
optionally consider that a case is “manifestly unfounded” under any of the cir-
cumstances set out in Article 23(4). But this still does not permit Member States
to derogate from the standards set out in Chapter II. This interpretation follows
a contrario from the wording of Articles 12(2)(c) and 24, which indicate that
where the drafters of the Directive wanted to permit Member States to dero-
gate from Chapter II standards, they did so expressly. It also follows from the
wording of Article 28(2), which refers expressly back to Article 23(4), which in
turn explicitly sets out that the standards in Chapter II still apply to accelerated
procedures.
It might be argued that the discretion left to Member States by Articles
23(4) and 28(2) would be rendered meaningless if they were not free to derogate
from Chapter II standards under these circumstances. But Member States would
still be free to provide for swifter time-limits on decision-making, as Article 23(4)
foresees, along perhaps with simplified decision-making, as long as the Chapter
II guarantees are still met. It would also be possible to provide for fewer levels
of appeal or special procedures for bringing appeals (time limits, for example),
again as long as the basic Chapter V guarantees are met.
This interpretation is also consistent with respect for the human rights
guaranteed by the general principles of EU law. As argued above (as regards
administrative procedures) and below (as regards judicial appeals), the mini-
mum standards set by the Directive are already to some extent suspect in light
of international human rights law and any derogations from them are even more
suspect. The derogations must therefore be interpreted narrowly. A narrow inter-
pretation of any derogations will also ensure a greater degree of harmonisation
and would therefore best ensure that the Directive contributes toward the cre-
ation of a Common European Asylum System and contribute to the objective
119 Art. 23(4)(c), second indent, makes such applications subject to the Chapter II guar-
antees, because it is subject to the general rule that those guarantees apply to all of
the special cases listed in Art. 23(4).
394
of avoiding secondary movement of asylum seekers. Look at the issue the other
way around: if Member States were free to derogate from any of the procedural
rights, and/or the appeal rights, in the Directive, where any of the fifteen cir-
cumstances listed in Article 23(4) apply, or indeed in any circumstance at all (if
Article 23(3) is interpreted to grant Member States carte blanche to apply accel-
erated procedures in any circumstances), then the Directive would be largely or
wholly deprived of any meaning whatsoever.
For the same reasons, it must be concluded that Article 24 sets out an
exhaustive list of cases in which Member States can derogate from Chapter II as
regards asylum applications. Although Article 24 does not expressly state that
the three circumstances listed therein are the only cases in which Member States
can derogate from Chapter II (along with the express derogation permitted by
Article 12(2)(c)), this follows from the structure of the Directive and the refer-
ence to the Chapter II guarantees in Article 23(1), (3) and (4); it also follows from
human rights considerations and the objectives of creating a Common European
Asylum System (CEAS) and avoiding secondary movements of asylum-seekers.
Similarly, there can be little doubt that Article 28(2) sets out an exhaustive list
of cases (all those listed in Article 23(4)) which Member States can designate as
“manifestly unfounded”, given the absence of any wording to suggest that this is
a non-exhaustive list and the human rights and CEAS context.
On the other hand, it appears that Article 23(4) is not an exhaustive list of
the circumstances in which Member States can accelerate consideration of an
application to the asylum-seeker’s detriment, given that Article 23(3) states that
“Member States may prioritise or accelerate any application”, and in light of the
broad wording of recital 11 of the preamble.
Moving on to the question of inadmissible cases, the same question again
arises: are the grounds set out in Article 25 an exhaustive list of cases which
Member States can declare inadmissible? Here a recital in the preamble suggests
strongly that the list is exhaustive.120 Again, this interpretation is bolstered by
the human rights and CEAS context, and the objective of avoiding secondary
movements. There is no doubt that the list of such cases set out in Article 25(2)
is optional (“Member States may”). Furthermore, although Article 25(1) does
not expressly specify whether inadmissibility in accordance with the Dublin II
Regulation is optional or not, the Regulation itself does not expressly state that
applications made in the “wrong” Member State must be considered inadmis-
sible, and indeed the Regulation provides for Member States to opt to consider
applications that are not their responsibility.121 As noted above, the procedural
standards in Chapter II must apply to the consideration of admissibility in all
120 Recital 22: “Member States should examine all applications on the substance…
except where this Directive provides otherwise”. See further recitals 23 and 24,
which refer to further exceptions expressly set out in the Directive.
121 Arts. 3(2) and 15 of the Reg. (n. 102 above).
395
these cases (except where Article 12(2)(c) permits a derogation relating to inter-
views as regards “safe third countries”).
Turning to the categories of cases in which Member States may treat appli-
cations as inadmissible, the first category (another Member State granting
refugee status) is unobjectionable as long as the other Member State is in fact
complying with Directive 2004/83 and granting the refugee full access to social
and economic benefits as prescribed by that Directive. In the event of a failure
by an national legislature to apply those provisions of that Directive correctly,
and a failure by its national courts to give effect to the relevant provisions of that
Directive (which are directly effective),122 or to refer relevant questions to the
Court of Justice (if possible), then the case might be made that another Member
State must consider the substance of an application for recognition of refugee
status. A question might also arise if a first Member State recognised refugee
status before the deadline to apply Directive 2004/83, and takes the view that
the economic and social benefits set out in that Directive can be denied to refu-
gees because that Directive is limited in temporal scope. As argued elsewhere,
that interpretation of the temporal scope of Directive 2004/83 is wrong,123 and
moreover such a denial of benefits would likely entail a breach of the Geneva
Convention; so again it could be argued that, if the mistake cannot be resolved
by the courts of the first Member State, if necessary with a reference to the
Court of Justice, another Member State has to consider an asylum application
from the person concerned.
The second category (a non-Member State which is a first country of
asylum) is described in Article 26. The wording of Article 25(2)(b) (“pursuant
to Article 26”) suggests that Article 26 sets out the only grounds upon which a
non-EU state can be considered a first country of asylum. There are two alterna-
tive grounds for inadmissibility: the previous recognition of refugee status, if it
can still be availed of, or the enjoyment of “sufficient protection”. In either case,
the principle can only apply if the person “will” be readmitted to the country.
Each of these criteria are absolute, in the sense that their existence clearly must
be proved; a reasonable assumption is not sufficient. It is not specified what hap-
pens if the criteria are not satisfied (for example, if the person is not readmit-
ted),124 but it logically follows that the examination of the asylum application
must continue on the merits. Also, it is specified that Member States may option-
ally take account of the criteria for “safe third country”, as set out in Article
27(1) when applying this principle; this entails that there is no persecution on
Geneva Convention grounds, non-refoulement in accordance with the Conven-
tion, non-removal in breach of Article 3 ECHR and (adapting Article 27(1)(d))
122 See Ch. 13.

123 See Ch. 13.
124 Compare with Arts. 27(4) and 36(6).
396
refugee status granted in accordance with the Geneva Convention. But in any
case, whether a Member State chooses this option or not, the ground of inadmis-
sibility relating to prior recognition of refugee status can only apply where the
non-EU state has ratified the Geneva Convention and recognised the person’s
status pursuant to it in practice, including granting all of the economic, social
and other benefits set out in Directive 2004/83 at the minimum level required by
that Directive; this clearly follows from the definition of “refugee” in Article 2(f)
of the procedures Directive.
As for the other ground of inadmissibility in this category (the grant of
“sufficient protection”), there is no definition of this concept in the Directive,
but there is no reference to national law either. Given the importance of the
concept in determining the scope of a derogation from the central rule that each
Member State must consider the merits of an asylum application, the concept
must surely be understood to have a uniform meaning in Community law.125 It
must expressly include the principle of non-refoulement, and in the absence of
any other indication this concept must logically be understood as identical to
the Geneva Convention interpretation of non-refoulement; it also follows from
the general principles of EC law (and in particular, the application of the T.I.
decision) that the non-EU state in question must ensure non-removal in line
with ECHR standards (even if that state has not ratified the ECHR). But the
word “including” means that non-refoulement is only one component of “suf-
ficient protection”, indicating that other guarantees must be present; while on
the other hand the word “otherwise” indicates that protection falling short of
that guaranteed by the Geneva Convention would be “sufficient” to consider a
non-EU state as a “first country of asylum”. So what level of treatment should
be considered “sufficient”?
It is unfortunate that the Directive does not use the term “effective protec-
tion”, which has been the subject of attempts to distil its inherent meaning.126
But before considering what “sufficient protection” might mean, it is necessary
to consider to what extent the ECHR permits persons to be removed to another
country, and to what extent Geneva Convention permits applications for asylum
to be dismissed as inadmissible on the grounds that another country is respon-
sible.
The starting point is to assume that the Geneva Convention requires States
in principle to consider applications for recognition of refugee status pursuant
to the Convention submitted to them, leaving aside for now the question of the
precise territorial scope of that obligation (ie, if it applies only on the territory
of the State, or also at the borders, in international territory or on the territory
125 On the issue of uniform Community interpretation, see Ch. 1.

126 See generally the analysis and critique by Costello, “The Asylum Procedures Direc-
tive and the Proliferation of Safe Third Countries Practices: Deterrence, Deflection
and the Dismantling of International Protection?”, 7 EJML (2005) 35.
397
of another State). Although the Geneva Convention does not expressly set out
such an obligation, it must surely be assumed that it flows implicitly from the
Convention. Otherwise States would be free to subvert the Convention entirely,
by refusing to consider any applications for recognition of refugee applications
and so never extending the benefits of refugee status to any persons who meet
the definition set out in the Convention. This interpretation cannot possibly have
been the intention of the Convention’s drafters; it would render the Convention
not just of limited effect but entirely nugatory. So in principle, States have to
consider applications for asylum submitted to them.
But when might exceptions to this principle be admitted? On the most
generous interpretation, there are no exceptions at all: the Geneva Convention
requires each State to examine any application for asylum made to it, even if the
applicant has received recognition of refugee status fully in accordance with the
Geneva Convention from another country or if another country applying the
Convention fully has examined the claim and turned it down. If this is correct,
Articles 26 and 27 of this Directive and the Dublin II Regulation are invalid.
Next, it could be argued that the principle of examining all applications can be
waived, but only in the case of recognition of refugee status fully in accordance
with the Geneva Convention from another country. This would justify Article
26(1)(a) of the Directive, but not the rest of Articles 26 or 27. Alternatively, it
could be argued that the obligation to examine applications for asylum could
also be waived if the key elements of refugee status, in particular the non-refoule-
ment principle and basic economic and social rights, have been recognised in
another country. This would justify Article 26(1)(b) of the Directive, depend-
ing on the interpretation of “sufficient protection”, but not Article 27. Next, it
could be argued that the obligation could also be waived where the person could
have sought Convention refugee status in another country he or she is linked to
(the more stringent form of the “safe third country” principle). Following that,
it could be argued that the obligation could even be waived where the person
could have sought Convention refugee status in another country he or she was
not linked to. Finally, it could be argued that the only real obligation upon States
is the principle of non-refoulement, and so a person could be removed anywhere
at all, regardless of the possibility to seek Convention refugee status, as long as
the non-refoulement principle is complied with. A final extreme interpretation
can be imagined – that States need not even consider the non-refoulement prin-
ciple when removing a person claiming to be a refugee, without considering their
claim – but this obviously must be rejected as it clearly contradicts any plausible
interpretation of Article 33 of the Convention, to say nothing of other sources
of law.
A seminal article by Legomsky, after an exhaustive analysis of the issue, con-
cludes that the “first country of asylum” and “safe third country” principles can
only apply where there is: an agreement to readmit the person in the other State
and to accord that person a fair refugee status determination or other “effective
398
protection”; no Convention fear of persecution for the person in the other State;
no risk of refoulement from the other State; no risk of removal from the other
State to face a violation of the other rights in the Geneva Convention; no risk of
violation of any human rights protected by a treaty to which the removing State
is a party; willingness and ability in the other State to provide effective protection
for as long is the person is a refugee or can find another source of durable effec-
tive protection; no violation of the person’s right to family unity; and an appli-
cation of these principles on an individual basis, including suspensive effect of
appeals.127 In light of this detailed and convincing analysis, it should be accepted
by the national courts and the Court of Justice that “sufficient protection” for
the purposes of Article 26 must be interpreted in accordance with these guar-
antees. Furthermore, since these principles should be regarded as incorporated
within the general principles of Community law, the application of the “safe
third country” principle can only be justified where the principles are satisfied,
even though the standards in Article 27(1) of the Directive fall short of the prin-
ciples. In any event, it should be observed that Article 27(1) does not fully list the
provisions of the ECHR to which a “Soering effect” definitely applies, as does
not prevent removal to face the death penalty or a manifestly unfair trial.128 On
the other hand, Article 27(1)(b) should be interpreted as requiring ratification of
the Geneva Convention and a correct application of the non-refoulement clause
of the Convention by the third country concerned, for only in such a case could
that country be considered to ensure respect for that principle “in accordance
with the Geneva Convention”. Also, since the principle is a derogation from the
normal procedural standards applicable to asylum-seekers, Member States are
not free to set lower standards for the “safe third country” concept than those
applicable in the Directive.
As for the application of the principle to individual cases, Article 27(2)
refers to national legislation, but given the importance of the principle to the
central objectives of the Directive, there must nonetheless be some degree of
uniform Community interpretation limiting the extent of Member States’ dis-
cretion.129 The requirement of a “reasonable” connection with a third country
implies an objective test, but applied to the subjective circumstances of each
applicant (“for that person to go to that country”). It follows that there must
be a significant degree of connection with the country concerned, and so it will
rarely if ever be justified to apply the principle in the absence of a close family
connection or a lengthy prior stay there. Conversely it would in any event be
unreasonable to apply the principle where the applicant has closer links, such as
127 Legomsky, “Secondary Refugee Movments and the Return of Asylum Seekers to
Third Countries: the Meaning of Effective Protection” 15 IJRL (2003) 567 at 673-
675.
128 See the case law beginning with the judgments cited in n. 88 above.
129 See Ch. 1
399
family, cultural and language links with the Member State seeking to rely on the
principle, or where there are compassionate grounds for that person to remain in
that Member State, justifying consideration of the asylum application there.
The requirement that the authorities must assess either the safety of the
individual applicant and/or the general safety of the countries concerned is
invalid to the extent that Member States are permitted to examine only one of
these issues. A failure to consider the safety of the particular applicant would be
a breach of the non-refoulement principle of the Geneva Convention, and the
failure to consider the general safety of the country concerned is at least dubious
in light of that principle. Article 27(2)(c) correctly applies the T.I. decision of the
European Court of Human Rights, but it is invalid to the extent that it does not
guarantee an examination of an individual claim in cases where ECHR provi-
sions other than Article 3 of the ECHR confer a “Soering effect” (preventing
removal where the person faces a sufficiently high risk that such ECHR provi-
sions will be violated as a result); this applies at least to Articles 2, 5 and 6 of the
Convention.130
Moving on to the “safe country of origin” principle, it should be re-iterated
first that Member States can still introduce or maintain their own national lists
of such countries, additional to the EC common list which must be adopted,
subject to the same criteria and so subject to challenge on grounds that the crite-
ria have not been met. But if the EC has rejected the idea of placing a particular
State on the common list, or removed a particular State from the common list,
the maintenance or addition of that State to a national list which must be based
on the same criteria is surely highly questionable and could more easily be sub-
ject to challenge by invoking the same evidence that the EC used when finding
that the State concerned should not be on the common EC list. Furthermore,
if the Court of Justice has annulled the Council’s decision to place a particular
State on the common EC list on substantive grounds, then it must follow that
such a State can no longer be maintained on Member States’ national lists, since
the EC and national lists are based on the same criteria. By analogy, if the Court
of Justice rules following a reference from a national court or an infringement
proceeding that a particular State was wrongly included on a national list on
substantive grounds, then neither the EC nor any other Member State can list
(or maintain the listing of) that State, unless the situation there changes for the
better.
Despite the common criteria for listing, there are some differences between
the national lists and the EC list. National lists, unlike the EC list, can designate
part of a country as safe. Moreover, the Directive permits Member States to
maintain national lists in force on 1 December 2007 that meet a lower standard
than the Directive requires:131 the difference between the normal criteria and
130 See case law beginning at n. 88 above.

131 These national lists can also designate part of a third country as “safe”.
400
the derogation is that in the latter case, Member States do not need to con-
sider the “democratic system” in the State concerned; they do not need to show
there is generally no threat arising from indiscriminate violence in the context of
armed conflict; they do not need to show the consistency of the absence of the
remaining criteria which they must take into account; and they are not expressly
obliged to consider the particular factors listed in Annex II when assessing the
application of the criteria (national legislation and its application; observance
of the ECHR or ICCPR, including effective remedies regarding rights and free-
doms; and respect of the non-refoulement principle).
In light of these deficiencies, it is doubtful that the national derogation is
valid, because the risk of a breach of human rights for individuals is so much
higher in such cases, in particular since the absence of a criterion regarding the
threat of indiscriminate violence in armed conflict directly contradicts one of
the main grounds for considering whether a person is entitled to subsidiary pro-
tection status in accordance with Directive 2004/83,132 because the consistency
of State practice is obviously relevant to a consideration of the “safety” of a
country, and because the factors of assessment in Annex II and the existence
of a democratic system are obviously good indicators as to whether persecution
and/or torture or other inhuman or degrading treatment are generally carried
out. The derogation could only be considered valid if there were an implied obli-
gation, arising from the general principles of Community law, to consider all the
criteria and factors set out in Annex II when applying the national derogation;
and in that case, the national derogation might just as well be invalid. In any
event, a Court of Justice judgment ruling against the inclusion of a particular
State on the common list or a “normal” national list on substantive grounds
could still be relevant to the validity of including a particular State on a national
list adopted pursuant to this derogation, where there is an overlap between the
applicable criteria (for example, if there was insufficient evidence to prove a gen-
eral lack of persecution in that State).
As for the EC and national “safe country of origin” lists adopted on the
basis of the broader substantive criteria set out in Annex II to the Directive,
the problem with the concept is not so much the criteria in the Annex but their
application to individual cases. Here the Directive sets a relatively high thresh-
old, as the individual must show there are no “serious grounds” for rebutting
the presumption of safety and the lack of grounds for claiming refugee status
in his or her particular circumstances. The difference with the normal refugee
determination process would therefore appear to be a higher standard of proof
placed on the applicant.133 But the intrinsic problem is that the “safe third coun-
try” principle is either dangerous, because the list included countries that are still
refugee producing, or meaningless, because if the country is no longer refugee
132 See Ch. 13.

133 See Art. 4 of Directive 2004/83.
401
producing then there are unlikely to be more than a handful of applicants from
the country at any one time. The creation of whole system to deal with applica-
tions on such a small scale must be counter-productive. Moreover, the idea of
“safe countries of origin” does not fit with any reasonable interpretation of the
Geneva Convention, taken with the UNHCR Handbook and Executive Com-
mittee Conclusions and, by raising the standard of proof for the applicant, risks
breaching the fundamental principle that each asylum case must be determined
on its own merits. It should also be recalled that the provisions for a common
EC list in Article 29 both exceed the EC’s competence to adopt “minimum stan-
dards” in asylum law and breach an essential procedural requirement by confer-
ring power on the Council to adopt an essential element of the subject-matter
to be regulated in the form of an implementing measure, rather than in the form
of legislation.
Next, the possibility of applying a special border procedure, derogating
from the procedural guarantees of Chapter II of the Directive, only applies to
those Member States which already applied such low standards in their national
law as of 1 December 2007.134 It appears from an a contrario reading of Article
35(3) that Member States are not obliged to extend the guarantees set out in
Articles 6, 8, 9, 10(1)(c) to (e), 10(2), 15(2), 16, 18, 21 or 22 to the persons con-
cerned. This means that a number of basic guarantees do not apply (in par-
ticular, access to the procedure, requirements for examinations and decisions,
guarantees on appeal, legal aid, lawyers’ access to the file, protection regarding
detention, contact with the UNHCR and confidentiality). Taken as a whole, an
asylum decision taken without respecting some or all of these guarantees is likely
to be in violation of the general principles of EC law, as interpreted in light of
Strasbourg jurisprudence. Article 35 (and therefore also Article 24(1)(b)) should
therefore be considered invalid, unless most or all of the missing procedural
guarantees are considered to be applicable nonetheless by virtue of the general
principles of Community law. In fact, this would have the same effect as declar-
ing the Article invalid.
It might be argued that Article 35 should not be considered invalid because
the ECHR does not apply to persons at the border of Member States’ territories.
This argument should be firmly rejected. Since the ECHR in fact applies even
outside Member States’ territories in certain circumstances,135 a fortiori it must
apply at the border of their territories, in particular where persons have come
into contact with a State’s national authorities and so are clearly within their
“jurisdiction” for the purposes of Article 1 ECHR. The interpretation is bol-
stered by considering that if the consequence of refusing entry to a person at the
134 Compare Art. 35(2) to the normal requirement to apply Chapter II standards at the
border, as set out expressly in Art. 35(1).
135 For example, Bankovic and others v UK and others (Reports of Judgments and Deci-
sions 2001-XII) and Issa v Turkey, judgment of 16 Nov. 2004, not yet reported.
402
border is that he or she will be subject (for example) to a serious risk of facing
torture or other inhuman or degrading treatment in another country, a Member
State is surely as liable for that result as it would be if it expelled or extradited a
person to face such a risk, in particular considering that Article 3 ECHR (as well
as the rest of the Convention) entails not only a negative obligation for States (in
this case, refraining from expulsion) but also positive obligations (in this case,
admission on to the territory).136 Since the Human Rights Court has expressly
found that Article 8 ECHR entails a positive obligation to admit in certain cir-
cumstances,137 it surely cannot be denied that Article 3 ECHR also entails such
an obligation.
As for the “European safe third country” concept set out in Article 36,
it should first of all be observed that while it provides for the adoption of a
“common list”, like the “safe country of origin” provisions, there are a number
of important differences. Member States are not obliged to apply the “European
safe third country” concept; the adoption of a common list will fully replace
any national lists; and there is no procedure for any temporary suspension of
countries on the list while waiting for a decision on their removal. It appears
from the word “shall” that there is an obligation for the Council to adopt such
a list, and while it appears prima facie that the common list must comprise the
name of at least one country, it is surely open to the Council to conclude that
no state meets the criteria for listing set out in Article 36(2), if there are objec-
tive grounds for reaching this conclusion. Unlike the “safe country of origin”
concept, Member States can only maintain any national list if it was pre-existing
on 1 December 2005, and that national list must meet the same criteria as the
common EU list to be adopted; but it follows from the wording of Article 35(7)
that once a common list is adopted, then any Member State can choose to apply
the concept, not just those Member States which applied it on 1 December 2005.
For that reason, it may be preferable that a common list is not adopted at all,
since the “European safe third country” concept will in that case be confined to
those Member States which currently apply it.
Also, the substantive grounds for including countries on the list and the
procedural implications of the list (or of the national lists, pending the adop-
tion of an EU list) are different from the “safe country of origin” rule and from
the general “safe third country” rule. The substantive grounds consist of a clear
obligation that the country in question has ratified and observes the Geneva
Convention (without geographical limitations) and the ECHR, in particular
observing the “effective remedies” principles of the latter; this must especially
require application of the Convention and the effective remedies principle as
136 On the application of the “positive obligations” principle to Art. 3 ECHR, see
Mowbray, The Development of positive obligations under the European Convention
on Human Rights by the European Court of Human Rights (Hart, 2004).
137 See Sen v Netherlands, judgment of 21 Dec. 2001, unreported.
403
they apply to asylum seekers, and as interpreted by the Strasbourg organs (for
example, the judgments and decisions in T.I., Hatami, Jabari, Conka by analogy,
Chahal, HLR and Bader). It must be inferred that a “third” country cannot be
the country of origin of an asylum application. Also, although Article 36 does
not expressly state that it is limited to people coming from non-EU countries,138
such a limit must be inferred, because applying the concept to persons coming
from EU Member States would constitute an amendment to the Dublin II rules
and the Directive does not contain any express provisions amending those rules.
Moreover, the Directive has the wrong “legal base” for a measure amending
the Dublin rules, and furthermore a measure amending the Dublin rules would
have had to be adopted by a different procedure (a qualified majority vote in
the Council and co-decision of the European Parliament, according to Article
67(5) EC).
At present, therefore, the principle could apply only to the 21 non-EU coun-
tries which have ratified the ECHR,139 assuming that they meet the criterion of
applying it, and in particular applying the effective remedies principle to asylum-
seekers – a point that could likely be contested for some of them. But of these
21 states, four definitely fail the “Geneva Convention” criterion, because they
have not ratified the Convention (Andorra and San Marino), or because they
apply it with a geographical reservation (Turkey and Monaco). The remaining
seventeen states can, of course, only be listed if they actually apply the Geneva
Convention correctly, and furthermore meet the criterion of having “an asylum
procedure prescribed by law”. Arguably, the criterion of applying the Geneva
Convention correctly can only be interpreted with regard to the Community’s
interpretation of the Convention, as set out in Directive 2004/83. Unlike the
“safe country of origin” principle, there is no prospect of designating only part
of a country as safe. Although there is no specific provision on the sources of
information for applying the criteria,140 the Community or a Member State must
surely provide sufficient justification for the listing in light of the criteria set
out in the Directive; for the common EC list, this obligation derives from the
“giving reasons” requirement of Article 253 EC. But are the criteria sufficient?
In light of the Legomsky criteria for the transfer of responsibility for refugees or
asylum-seekers to other States, they are not; Article 36 must therefore be consid-
ered as invalid as it is not subject to all of the criteria which must be satisfied in
order to justify a transfer of responsibility,141 or valid only on the condition that
it is considered to be subject to those criteria by implication.
138 Compare with Art. 25(2)(b) and (c) (and see also Article 23(4)(c), second indent).
139 It should be recalled that Belarus, although it has ratified the Geneva Convention,
has not ratified the ECHR, and so cannot be listed by the EU or a Member State.
140 Compare with Art. 25(2)(b) and (c).
141 Art. 24(2) must therefore be considered invalid as well.
404
There are also criteria relating to the situation of the individual concerned:
he or she must have sought to enter or in fact entered illegally, and must have
entered or be seeking to enter have “from” the third country in question. Clearly,
the procedure is not therefore limited to applications at the border, since it can
apply to persons who have already entered the territory; nor is it limited to per-
sons who came directly from the State concerned. But it is limited to persons
who sought to enter, or who entered illegally; therefore since derogations from
procedural rules must be interpreted narrowly, it cannot apply to those persons
who entered legally initially but who overstayed past the validity of their visa or
the period of their authorised entry without a visa (or past the validity of their
residence permit or other form of authorised stay or entry). Nor can it apply to
persons who entered legally but who later violated the conditions of their entry
or stay. In particular, Member States cannot regard persons as entering illegally
merely because they applied for asylum after their initial legal entry, because
such persons were not entering illegally at the time of their entry. Despite this
obligation to interpret this criterion narrowly, it still gives rise to doubts about
the validity of Article 36, because Article 31 of the Geneva Convention obliges
Member States to avoid imposing “penalties on account of their illegal entry or
presence” upon refugees who have come “directly” from a country where their
life or freedom was threatened on Convention grounds “provided they present
themselves without delay to the authorities and show good cause for their illegal
entry or presence”. Arguably, Article 31 is not just a reference to criminal penal-
ties and administrative fines, but applies to any form of adverse treatment due
to illegal entry or presence where the conditions of the Article are met; a refusal
to consider an asylum application partly or wholly and to expel a refugee is
surely a “penalty”. Article 36 must therefore be considered invalid for breach of
Article 31 of the Convention (in particular since EC asylum legislation must be
“in accordance with” the Convention, according to Article 63(1) EC), or at least
invalid or inapplicable as regards persons who meet the conditions of Article
31.
As for the requirement that the person must be coming “from” the third
country in question, since the derogation must be interpreted narrowly, this can
only mean that the person concerned travelled directly from that country to the
Member State in question without entering another State (whether an EU State
or a non-EU State). This will have to be proven in individual cases, which may
prove particularly difficult where a person is discovered already on the terri-
tory.
This brings us to the procedural implications of Article 36, which gives
rise to even greater doubts as to the validity of this Article. For Article 36(1)
specifies that Member States can exempt themselves from any examination of an
asylum application at all, or alternative from any full application, and from any
examination of “the safety of the applicant in his/her particular circumstances”.
On the other hand, Article 36(4) requires Member States to make provisions for
405
implementing Article 36(1) “in accordance with the principle of non-refoule-

ment under the Geneva Convention, including providing for exemptions from
the application of this Article for humanitarian or political reasons or for rea-
sons of public international law.” It is unfortunate that there is no explicit refer-
ence to human rights principles (unless the Geneva Convention is considered
to be a human rights treaty), although like any other Community measure, this
provision must still be interpreted in light of the general principles of Commu-
nity law.
In any case, it appears that Article 36(1) and (4) are in direct conflict, since
a refusal to consider the safety of an individual applicant at all before removal
(as Article 36(1) expressly permits) is, for the reasons explained above, a clear
violation of the non-refoulement principle in the Geneva Convention, even fol-
lowing the narrowest possible interpretation of the Convention. It is not plau-
sible to argue that Article 33 of the Geneva Convention (which sets out the
non-refoulement principle) cannot apply at the border, or to persons who have
entered illegally, as a comparison of the text of Article 33 of the Convention
on the one hand to Articles 31 and 32 on the other makes clear that Article 33
protects persons regardless of their irregular entry or presence and regardless of
whether they are at the border or on the territory.142 Furthermore, Article 36(1)
quite clearly violates the ECHR, certainly in respect of persons already on the
territory, to the extent that it permits Member States not to conduct any exami-
nation at all of an application; and to the extent that Member States may only
conduct a partial examination, it violates the ECHR to the extent that it does
142 This is because it would be unnecessary to set out specific provisions on persons
who enter the territory or seek to enter the territory irregularly (in Art. 31) if such
persons are outside the scope of Art. 33; also an a contrario interpretation of Arts.
32 and 33 (the former protecting refugees against expulsion only where they are
“lawfully in [a State’s] territory”) suggests that Art. 33 must also cover people who
are not lawfully on a State’s territory. Identical reasoning applies as regards persons
at the border: it would be unnecessary for Art. 31 to deal with the topic of illegal
entry unless refugees stopped at the border were within the scope of Art. 33, and the
reference to national territory in Art. 32 compares with the lack of such a criterion
in Art. 33. Also, the wide scope of the wording of Art. 33 (“No Contracting State
shall expel or return…in any manner whatsoever” suggests clearly that persons at
the border are covered by that Article, and indeed that persons who have not yet
reached the border are covered by it (although the latter issue is not material to the
Directive, which is limited to applications made at the border or in the territory of
the Member States). For more on the scope of Art. 33 of the Geneva Convention,
see Lauterpacht and Bethlehem, “The scope and content of the principle of non-
refoulement: an Opinion”, in Feller, Turk and Nicholson, eds., Refugee Protection
in International Law: UNHCR’s Global Consultations on Refugee Protection (CUP,
2003), 87. In any event, as noted above, Article 36 of the Directive applies in part
to persons already on the territory, and there can be no possible doubt that those
persons fall within the scope of the non-refoulement clause.
406
not require the examination to meet ECHR standards. There is a strong argu-
ment that the ECHR applies to asylum applications made at the border, for the
reasons set out above regarding Article 35 of the Directive. In that case, Article
36(1) violates the ECHR as regards border applications, for the same reasons as
it violates the ECHR as regards in-country applications.
What should be done with Article 36? Surely it is eligible for some sort of
prize as the single most invalid provision of any EC legislation which has ever
been adopted. It violates the EC Treaty as far as the creation of a common list
is concerned, because of the breach of essential procedural requirements (see
s. 3 above). It furthermore violates the general principles of Community law
(as a breach of the ECHR) and/or the Geneva Convention as regards the cri-
teria for designating countries, the application of penalties to refugees who fall
within the scope of Article 31 of the Geneva Convention, and the non-existent
procedural rights of the persons concerned. Arguably the breach of the general
principles and the Geneva Convention (although not the breach of essential EC
procedural requirements) can be rectified, by inferring the application of those
principles in spite of the express wording of Article 36, in particular by giving
Article 36(4) priority over Article 36(1). But in light of the sheer repugnance of
this Article as expressly worded to many of the most fundamental human rights
which the EC aims to protect (never mind the invalidity of the common list on
procedural grounds), there can surely be no other option than to strike it down
in its entirely.
Finally, as regards the rules on withdrawal of refugee status, it should first
be emphasised that although refugees (or for that matter, persons with subsid-
iary protection) are not (yet) covered by EC legislation on long-term residents,
they are nonetheless covered by Article 8 of the ECHR, which makes it difficult
for Member States to expel persons resident for significant periods on their ter-
ritory in the absence of serious criminal convictions. The withdrawal of refugee
status does not affect the protection conferred by Article 8 ECHR.143
As for the specific provision of this Article, despite the word “shall” in Arti-
cle 37, the same Article goes on to provide that status “may” be withdrawn; the
withdrawal of status must therefore be considered optional for Member States.
In any case, Article 44 of the Directive states expressly that the Directive only
applies to proceedings to withdraw status commenced after 1 December 2007.
It is objectionable that Article 38 of the Directive does not confer upon refugees
all of the procedural rights set out in Articles 10, 15 and 16 or any of the rights
set out in Articles 7 and 17, as well as the full right to a personal interview rather
than a written statement in lieu, particularly since there is no guarantee that an
appeal against a negative decision will have suspensive effect. To the extent that
143 Compare with Chahal v UK, in which the Human rights Court made clear that Art.
3 ECHR had wider scope than Art. 33 of the Geneva Convention; it must follow
that Art. 8 ECHR has wider scope than Art. 1.C of the Geneva Convention.
407
withdrawal of status will in practice lead to expulsion from the territory, the
absence of these procedural rights may entail a breach of the general principles
of Community law, in light of Strasbourg jurisprudence.
4.5 Appeals 144

The Directive appears to allow for non-suspensive appeals, which sits very
uneasily with international law. The removal of asylum-seekers before a case
has been definitively refused might amount to a breach of the non-refoulement
principle of the Geneva Convention, the ECHR and UNCAT. In particular,
the excerpts from the judgments of the European Court of Human Rights in
Jabari and Conka (set out above) appear to require a non-suspensive effect of
any appeal against a decision to remove persons where Article 3 ECHR or a
comparable ground for resisting expulsions (Article 2 ECHR or the protection
from collective expulsion) is invoked. In Conka, a system providing for possible
suspension of application of an expulsion order following a separate application
to the courts was condemned as being insufficiently certain to ensure suspensive
effect. It follows that if such a system of separate applications is compatible at
all with the ECHR, it must confer a fully automatic suspensive effect immedi-
ately following an application. The point is relevant to the Directive since Article
39(3)(b) could be interpreted to purport to permit Member States to establish
or retain such procedures in their national law. Where such procedures would
conflict with Member States’ obligations under the ECHR, it must follow that
Article 39(3)(b) must be interpreted to mean that any separate application for
suspensive effect must itself automatically suspend any expulsion procedure.
To what extent are Member States obliged to secure suspensive effect? It is
true that in the Conka judgment, the Human Rights Court referred generally to a
review before national authorities, not necessarily courts (although the proceed-
ings in question had taken place from the national courts). Furthermore, the
Jabari and Conka judgments only concern a first-instance challenge to expulsion
decisions, rather than a further appeal; the Human Rights Court has not had
the opportunity to establish whether there is a right to suspensive effect follow-
ing further appeals. On the first point, the Directive confirms the jurisprudence
of the Court of Justice that, notwithstanding the more limited scope of Article
13 ECHR, the general principles of Community law require that an effective
remedy be granted before a court or tribunal. It must follow that the material
guarantees of Article 13 ECHR apply before that court or tribunal. On the
second point, it is certainly open to argue that suspensive effect must be guaran-
teed for further appeals; the point should be referred to the Court of Justice at
the earliest opportunity if the Human Rights Court has not addressed it in the
meantime. Even if the Court of Human Rights rules in the meantime against the
144 See also Byrne, “Remedies of Limited Effect: Appeals under the forthcoming Direc-
tive on EU Minimum Standards on Procedures” 7 EJML (2005) 71.
408
application of suspensive effect to such proceedings, it would be worth referring

the point to the Court of Justice, as the general principles of Community law
might be developed at a higher standard than the Strasbourg standard.145
Are exemptions from suspensive effect allowed? Taking the T.I. decision
together with the Jabari and Conka judgments, it is not plausible to argue that
any form of exception from suspensive effect is permissible in relation to removal
to third countries. The applicant must be given at least an opportunity to bring a
first instance challenge with suspensive effect in order to argue that the removal
to the third country in question would breach the ECHR. At most, Member
States might be able to argue that in the case of repeat applications where a
prior application has actually been fully considered on the merits, it would be
permissible to derogate from suspensive effect following a rejection of the fresh
application in the special screening process set out in the Directive. This could
arguably be justified given the application of suspensive effect during the initial
consideration of the application and also during the special screening process,
where suspensive effect would be necessary to ensure that a consideration of
the applicant’s fresh claim is not devoid of practical effect. Even in this case, it
might be arguable that suspensive effect should exist, because of the risk that a
Member State will refuse to consider a repeated application even though circum-
stances have changed (despite their obligations to do so under the Directive),
and so the point should be referred to the Court of Justice if it has not already
been addressed by the Court of Human Rights.
To the extent that the Directive appears to permit Member States to sus-
pend the suspensive effect of an appeal, this could be rendered compatible with
human rights law by interpreting the Directive to mean that Member States only
have such discretion relating to further appeals after the first instance appeal,
and/or appeals following a negative decision in a repeat application screening
procedure. Or alternatively, if the Court of Justice or the Human Rights Court
rules that suspensive effect must be guaranteed in such cases as well, there would
be no choice for the Court of Justice but to rule that Article 39(3)(a) and (b) of
the Directive is invalid.
Finally, it should be observed that if the proposed Directive on expulsion
procedures is adopted,146 it will (in its proposed form) be applicable both to
failed asylum-seekers being expelled after a final decision and to asylum-seekers
being expelled while their appeals against a negative decision are still pending,
due to the lack of suspensive effect of an appeal. The Directive would regulate
many important elements of their status and, inter alia, grant them procedural
remedies against expulsion which would appear to be additional to the remedies
under the procedures Directive. But it remains to be seen whether the Directive
145 Compare with Arts. 29(3) and 30(5).

146 COM(2005)391, 1 Sep. 2005.
409
will be adopted, and if so, whether its scope or the guarantees it provides for will
be amended in the process.
4.6 Conclusion
For the reasons set out above, there is a strong argument that the following Arti-
cles of the procedures Directive are invalid, unless radically re-interpreted contra
legem in light of the general principles of Community law:
a) Article 7(2), to the extent that it applies to extradition requests from the
country of origin;
b) Article 12(2)(c), the derogation from a right to personal interview;
c) Article 14(2), the possibility of not receiving a report of the personal inter-
view until after the first-instance decision;
d) Article 15(2), to the extent that legal aid is limited to appeals;
e) Article 15(3)(d), potentially limiting legal aid to cases considered likely to
succeed;
f) Article 27(2)(b), to the extent that Member States need not consider both
the safety of individual applicants and the safety of particular countries;
g) Article 27(2)(c), to the extent that Member States need not consider the
risk that treatment contrary to ECHR provisions other than Article 3 could
result (directly or indirectly) from removal to the “safe third country”;
h) Article 30(3), concerning the national derogation from the standards for
“safe countries of origin”;
i) Articles 29-31, regarding the “safe country of origin” concept, and conse-
quentially Article 23(4)(c)(i);
j) Article 35, the special border procedure, and consequentially Article
24(1)(b);
k) Article 36, the “European safe third countries” clause, and consequentially
Article 24(2);
l) Article 38, to the extent that Articles 7, 10, 15, 16 and 17 do not fully apply,
along with the full right to a personal interview, to the extent that with-
drawal of status will in practice lead to expulsion from the territory; and
m) Article 39(3)(a) and (b), as regards the lack of suspensive effect.
Furthermore:
a) Article 29 is invalid for exceeding the EC’s competence, and for breach of
essential procedural requirements; and
b) Article 36(3), and consequentially Article 36(2)(d), is invalid for breach of
essential procedural requirements.
Never before in the history of the Community have so many human rights
breaches – leaving aside the breaches of EC constitutional law – been commit-
ted by a single piece of legislation. The legitimacy of EC asylum law and of
410
Community pretences to be committed to the protection of fundamental human

rights and the full application of the Geneva Convention is dependent upon
finding the above provisions invalid, or radically reinterpreting or amending
them, as soon as possible.
411
COUNCIL DIRECTIVE 2005/85
On minimum standards on procedures in Member States

for granting and withdrawing refugee status
[OJ 2005 L 326/13]
ticular point (1)(d) of the first paragraph of Article 63 thereof,
Whereas:

System, is a constituent part of the European Union’s objective of estab-
lishing progressively an area of freedom, security and justice open to those
nity.

October 1999, agreed to work towards establishing a Common European
Asylum System, based on the full and inclusive application of the Geneva
Convention of 28 July 1951 relating to the status of refugees, as supple-
mented by the New York Protocol of 31 January 1967 (“Geneva Conven-
tion”), thus affirming the principle of non-refoulement and ensuring that
nobody is sent back to persecution.
(3) The Tampere Conclusions provide that a Common European Asylum

System should include in the short term common standards for fair and
efficient asylum procedures in the Member States and in the longer term
Community rules leading to a common asylum procedure in the European
Community.
(4) The minimum standards laid down in this Directive on procedures in

Member States for granting or withdrawing refugee status are therefore a
first measure on asylum procedures.
412
(5) The main objective of this Directive is to introduce a minimum framework

in the Community on procedures for granting and withdrawing refugee
status.
(6) The approximation of rules on the procedures for granting and withdraw-
ing refugee status should help to limit the secondary movements of appli-
cants for asylum between Member States, where such movement would be
caused by differences in legal frameworks.
(7) It is in the very nature of minimum standards that Member States should
have the power to introduce or maintain more favourable provisions for
third country nationals or stateless persons who ask for international pro-
tection from a Member State, where such a request is understood to be on
the grounds that the person concerned is a refugee within the meaning of
Article 1(A) of the Geneva Convention.
European Union.
tion.
(10) It is essential that decisions on all applications for asylum be taken on the
basis of the facts and, at the first instance, by authorities whose personnel
has the appropriate knowledge or receives the necessary training in the field
of asylum and refugee matters.
(11) It is in the interest of both Member States and applicants for asylum to
decide as soon as possible on applications for asylum. The organisation of
the processing of applications for asylum is left to the discretion of Member
States, so that they may, in accordance with their national needs, prioritise
or accelerate the processing of any application, taking into account the
standards in this Directive.
(12) The notion of public order may cover a conviction for committing a serious
crime.
(13) In the interests of a correct recognition of those persons in need of protec-

tion as refugees within the meaning of Article 1 of the Geneva Conven-
tion, every applicant should, subject to certain exceptions, have an effective
413
access to procedures, the opportunity to co-operate and properly commu-

nicate with the competent authorities so as to present the relevant facts of
his/her case and sufficient procedural guarantees to pursue his/her case at
and throughout all stages of the procedure. Moreover, the procedure in
which an application for asylum is examined should normally provide an
applicant at least with a right to stay pending a decision by the determin-
ing authority, access to the services of an interpreter for submitting his/her
case if interviewed by the authorities, the opportunity to communicate with
a representative of the United Nations High Commissioner for Refugees
(UNHCR) or with any organisation working on its behalf, the right to
appropriate notification of a decision, a motivation of that decision in fact
and in law, the opportunity to consult a legal adviser or other counsellor,
and the right to be informed of his/her legal position at decisive moments
in the course of the procedure, in a language he/she can reasonably be sup-
posed to understand.
(14) In addition, specific procedural guarantees for unaccompanied minors

should be laid down, because of their vulnerability. In this context, the best
interests of the child should be a primary consideration of Member States.
(15) Where an applicant makes a subsequent application without presenting

new evidence or arguments, it would be disproportionate to oblige Member
States to carry out a new full examination procedure. In these cases, Member
States should have a choice amongst procedures involving exceptions to the
guarantees normally enjoyed by the applicant.
(16) Many asylum applications are made at the border or in a transit zone of a
Member State prior to a decision on the entry of the applicant. Member
States should be able to keep existing procedures adapted to the specific sit-
uation of these applicants at the border. Common rules should be defined
on possible exceptions made in these circumstances to the guarantees nor-
mally enjoyed by applicants. Border procedures should mainly apply to
those applicants who do not meet the conditions for entry into the territory
of the Member States.
(17) A key consideration for the well-foundedness of an asylum application is

the safety of the applicant in his/her country of origin. Where a third coun-
try can be regarded as a safe country of origin, Member States should be
able to designate it as safe and presume its safety for a particular applicant,
unless he/she presents serious counter-indications.
(18) Given the level of harmonisation achieved on the qualification of third

country nationals and stateless persons as refugees, common criteria for
414
designating third countries as safe countries of origin should be estab-

lished.
(19) Where the Council has satisfied itself that those criteria are met in relation
to a particular country of origin, and has consequently included it in the
minimum common list of safe countries of origin to be adopted pursu-
ant to this Directive, Member States should be obliged to consider applica-
tions of persons with the nationality of that country, or of stateless persons
formerly habitually resident in that country, on the basis of the rebutta-
ble presumption of the safety of that country. In the light of the political
importance of the designation of safe countries of origin, in particular in
view of the implications of an assessment of the human rights situation in
a country of origin and its implications for the policies of the European
Union in the field of external relations, the Council should take any deci-
sions on the establishment or amendment of the list, after consultation of
the European Parliament.
(20) It results from the status of Bulgaria and Romania as candidate countries
for the accession to the European Union and the progress made by these
countries for membership that they should be regarded as constituting safe
countries of origin for the purposes of this Directive until the date of their
accession to the European Union.
(21) The designation of a third country as a safe country of origin for the pur-
poses of this Directive cannot establish an absolute guarantee of safety for
nationals of that country. By its very nature, the assessment underlying the
designation can only take into account the general civil, legal and political
circumstances in that country and whether actors of persecution, torture or
inhuman or degrading treatment or punishment are subject to sanction in
practice when found liable in the country concerned. For this reason, it is
important that, where an applicant shows that there are serious reasons to
consider the country not to be safe in his/her particular circumstances, the
designation of the country as safe can no longer be considered relevant for
him/her.
(22) Member States should examine all applications on the substance, i.e. assess
whether the applicant in question qualifies as a refugee in accordance with
Council Directive 2004/83/EC on minimum standards for the qualification
and status of third country nationals or stateless persons as refugees or as
persons who otherwise need international protection and the content of the
protection granted, except where this Directive provides otherwise, in par-
ticular where it can be reasonably assumed that another country would do
the examination or provide sufficient protection. Especially, Member States
415
should not be obliged to assess the substance of an asylum application

where a first country of asylum has granted the applicant refugee status or
otherwise sufficient protection and the applicant will be readmitted to this
country.
(23) Member States should also not be obliged to assess the substance of an
asylum application where the applicant, due to a connection to a third
country as defined by national law, can reasonably be expected to seek
protection in that third country. Member States should only proceed on
this basis where this particular applicant would be safe in the third country
concerned. In order to avoid secondary movements of applicants, common
principles for the consideration or designation by Member States of third
countries as safe should be established.
(24) Furthermore, with respect to certain European third countries, which

observe particularly high human rights and refugee protection standards,
Member States should be allowed to carry out no or no full examination
of asylum applications regarding applicants who enter their territory from
such European third countries. Given the potential consequences for the
applicant of a restricted or omitted examination, this application of the safe
third country concept should be restricted to cases involving third countries
with respect to which the Council has satisfied itself that the high standards
for the safety of the third country concerned, as set out in this Directive, are
fulfilled. The Council should take decisions in this matter after consultation
of the European Parliament.
(25) It follows from the nature of the common standards concerning both safe
third country concepts as set out in this Directive, that the practical effect
of the concepts depends on whether the third country in question permits
the applicant in question to enter its territory.
(26) With respect to the withdrawal of refugee status, Member States shall
ensure that the persons benefiting from the refugee status are duly informed
of a possible reconsideration of their status and have the opportunity to
submit their point of view before the authorities can take a motivated deci-
sion to withdraw their status. However, these guarantees can be dispensed
with where the reasons for the cessation of the refugee status is not related
to a change of the conditions on which the recognition was based.
(27) It reflects a basic principle of Community law that the decisions taken on
an application for asylum and on the withdrawal of a refugee status must be
subject to an effective remedy before a court or tribunal in the meaning of
Article 234 of the Treaty establishing the European Community. The effec-
416
tiveness of the remedy, also with regard to the examination of the relevant
facts, depends on the administrative and judicial system of each Member
State seen as a whole.
(28) In accordance with Article 64 of the Treaty establishing the European

Community, this Directive does not affect the exercise of the responsibili-
ties incumbent upon Member States with regard to the maintenance of law
and order and the safeguarding of internal security.
(29) This Directive does not deal with procedures governed by Council Regula-
tion (EC) No 343/2003 of 18 February 2003 establishing the criteria and
mechanisms for determining the Member state responsible for examining
an asylum application lodged in one of the Member States by a third coun-
try national.
(30) The implementation of this Directive should be evaluated at regular inter-

vals not exceeding two years.
(31) In accordance with the principles of subsidiarity and proportionality as set

out in Article 5 of the Treaty, the objectives of the proposed action, namely
to establish minimum standards on procedures in Member States for grant-
ing and withdrawing refugee status cannot be sufficiently attained by the
Member States. They can therefore, by reason of the scale and effects of the
action, be better achieved by the Community. This Directive confines itself
to the minimum required in order to achieve those objectives and does not
go beyond what is necessary for that purpose.
the Treaty establishing the European Community, the United Kingdom has
notified, by letter of 24 January 2001, its wish to take part in the adoption
the Treaty establishing the European Community, Ireland has notified, by
letter of 14 February 2001, its wish to take part in the adoption and appli-
cation of this Directive.

417

tion,
HAS ADOPTED THIS DIRECTIVE,
CHAPTER I
GENERAL PROVISIONS
Article 1 Purpose
The purpose of this Directive is to establish minimum standards on procedures

in Member States for granting and withdrawing refugee status.

(a) “Geneva Convention” means the Convention of 28 July 1951 relating to
the status of refugees, as amended by the New York Protocol of 31 Janu-
ary 1967;
(b) “Application for asylum” means an application made by a third country
national or stateless person which can be understood as a request for inter-
national protection from a Member State under the Geneva Convention.
Any application for international protection is presumed to be an applica-
tion for asylum, unless the person concerned explicitly requests another
kind of protection that can be applied for separately;
(c) “Applicant” or “applicant for asylum” means a third country national or
stateless person who has made an application for asylum in respect of which
a final decision has not yet been taken;
(d) A final decision is a decision whether the third country national or stateless
person be granted refugee status by virtue of Council Directive 2004/83/
EC and which is no longer subject to a remedy within the framework of
Chapter V irrespective of whether such remedy has the effect of allowing
applicants to remain in the Member States concerned pending its outcome,
subject to Annex III;
(e) “Determining authority” means any quasi-judicial or administrative body
in a Member State responsible for examining applications for asylum and
competent to take decisions at first instance in such cases, subject to Annex
I;
(f) “Refugee” means a third country national or a stateless person who fulfils
the requirements of Article 1 of the Geneva Convention as set out in Coun-
cil Directive 2004/83/EC;
(g) “Refugee Status” means the recognition by a Member State of a third coun-
try national or stateless person as a refugee;
418
(h) “Unaccompanied minor” means a person below the age of eighteen who
arrives in the territory of the Member States unaccompanied by an adult
responsible for him/her whether by law or by custom, and for as long as
he/she is not effectively taken into the care of such a person; it includes a
minor who is left unaccompanied after he/she has entered the territory of
the Member States;
(i) “Representative” means a person acting on behalf of an organisation rep-
resenting an unaccompanied minor as legal guardian, a person acting on
behalf of a national organisation which is responsible for the care and
well-being of minors, or any other appropriate representation appointed to
ensure his/her best interests;
(j) “Withdrawal of refugee status” means the decision by a competent author-
ity to revoke, end or refuse to renew the refugee status of a person in accor-
dance with Council Directive 2004/83/EC;
(k) “Remain in the Member State” means to remain in the territory, including
at the border or in transit zones of the Member State in which the applica-
tion for asylum has been made or is being examined.
Article 3 Scope
1. This Directive shall apply to all applications for asylum made in the terri-
tory, including at the border, or in the transit zones of the Member States
and to the withdrawal of refugee status.
2. This Directive shall not apply in cases of requests for diplomatic or territo-
rial asylum submitted to representations of Member States.
3. Where Member States employ or introduce a procedure in which asylum

applications are examined both as applications on the basis of the Geneva
Convention, and as applications for other kinds of international protection
as defined by Article 15 of Council Directive 2004/83/EC, they shall apply
this Directive throughout their procedure.
4. Moreover, Member States may decide to apply this Directive in procedures

for deciding on applications for any kind of international protection.
Article 4 Responsible authorities
1. Member States shall designate for all procedures a determining authority

which will be responsible for an appropriate examination of the applica-
tions in accordance with the provisions of this Directive, in particular Arti-
cles 8(2) and 9.
419
In accordance with Article 4(4) of Council Regulation (EC) No 343/2003,

applications for asylum made in a Member State to the authorities of another
Member State carrying out immigration controls there shall be dealt with
by the Member State on whose territory the application is made.
2. However, Member States may provide that another authority is responsible

in the following cases for the purpose of:
(a) processing cases in which it is considered to transfer the applicant to
another State according to the rules establishing criteria and mecha-
nisms for determining which state is responsible for considering an
application for asylum, until such time as the transfer takes place or
the requested State has refused to take charge or take over the appli-
cant;
(b) taking a decision on the application in the light of national security
provisions, provided a determining authority is consulted prior to this
decision as to whether the applicant qualifies as a refugee by virtue of
Council Directive 2004/83/EC;
(c) conducting a preliminary examination pursuant to Article 32, provided
this authority has access to the applicant’s file regarding the previous
application;
(d) processing cases in the framework of the procedures provided for in
Article 35(1);
(e) refusing permission to enter in the framework of the procedure pro-
vided for in Article 35(2) to (5), subject to the conditions and as set out
in these paragraphs;
(f) establishing that an applicant is seeking to enter or has entered in the
Member State from a safe third country pursuant to Article 36, subject
to the conditions and as set out in this Article.
3. Member States shall ensure that where authorities are designated in accor-
dance with paragraph 2, the personnel of such authorities have the appro-
priate knowledge or receive the necessary training to fulfil their obligations
when implementing this Directive.
Member States may introduce or maintain more favourable standards on pro-

cedures for granting and withdrawing refugee status, insofar as those standards
are compatible with this Directive.
420
CHAPTER II
BASIC PRINCIPLES AND GUARANTEES
Article 6 Access to the procedure
1. Member States may require that applications for asylum be made in person
and/or at a designated place.
2. Member States shall ensure that each adult having legal capacity has the
right to make an application for asylum on his/her own behalf.
3. Member States may provide that an application may be made by an appli-

cant on behalf of his/her dependants. In such cases Member States shall
ensure that dependant adults consent to the lodging of the application on
their behalf, failing which they shall have an opportunity to make an appli-
cation on their own behalf.
Consent shall be requested at the time the application is lodged or, at the
latest, when the personal interview with the dependant adult is conducted.
4. Member States may determine, in national legislation

(a) the cases in which a minor can make an application on his/her own
behalf;
(b) the cases in which the application of an unaccompanied minor has to
be lodged by a representative as provided for in Article 17(1)(a);
(c) the cases in which the lodging of an application for asylum is deemed
to constitute also the lodging of an application for asylum for any
unmarried minor.
5. Member States shall ensure that authorities likely to be addressed by some-

one who wishes to make an asylum application are able to advise that person
how and where he/she may make such an application and/or may require
these authorities to forward the application to the competent authority.
Article 7 Right to remain in the Member State pending the

examination of the application
1. Applicants shall be allowed to remain in the Member State, for the sole
purpose of the procedure, until such time as the determining authority has
made a decision in accordance with the procedures at first instance set out
in Chapter III. This right to remain shall not constitute an entitlement to a
residence permit.
421
2. Member States can make an exception only where, in accordance with Arti-
cles 32 and 34, a subsequent application will not be further examined or
where they will surrender or extradite, as appropriate, a person either to
another Member State pursuant to obligations in accordance with a Euro-
pean Arrest Warrant or otherwise, or to a third country, or to international
criminal courts or tribunals.
Article 8 Requirements for the examination of applications
1. Without prejudice to Article 23(4)(i), Member States shall ensure that

applications for asylum are neither rejected nor excluded from examination
on the sole ground that they have not been made as soon as possible.
2. Member States shall ensure that decisions by the determining authority on

applications for asylum are taken after an appropriate examination. To that
end, Member States shall ensure that
(a) applications are examined and decisions are taken individually, objec-
tively and impartially;
(b) precise and up-to-date information is obtained from various sources,
such as information from the United Nations High Commissioner for
Refugees (UNHCR), as to the general situation prevailing in the coun-
tries of origin of applicants for asylum and, where necessary, in coun-
tries through which they have transited, and that such information is
made available to the personnel responsible for examining applications
and taking decisions;
(c) the personnel examining applications and taking the decisions have the
knowledge with respect to relevant standards applicable in the field of
asylum and refugee law.
3. The authorities referred to in Chapter V shall, through the determining

authority or the applicant or otherwise, have access to the general infor-
mation referred to in paragraph 2(b), necessary for the fulfilment of their
task.
4. Member States may provide for rules concerning the translation of docu-
ments relevant for the examination of applications.
Article 9 Requirements for a decision by the determining authority
1. Member States shall ensure that decisions on applications for asylum are
given in writing.
422
2. Member States shall also ensure that, where an application is rejected, the
reasons in fact and in law are stated in the decision and information on how
to challenge a negative decision is given in writing.
Member States need not state the reasons for not granting the refugee status
in the decision where the applicant is granted a status, which offers the same
rights and benefits under national and Community law as the refugee status
by virtue of Council Directive 2004/83/EC. In these cases, Member States
shall ensure that the reasons for not granting the refugee status are stated
in the applicant’s file, and that the applicant has, upon request, access to
his/her file.
Moreover, Member States need not provide information on how to chal-

lenge a negative decision in writing in conjunction with that decision where
the applicant has been informed at an earlier stage either in writing or by
electronic means accessible to the applicant of how to challenge such a
decision.
3. For the purposes of Article 6(3), and whenever the application is based on
the same grounds, Member States may take one single decision, covering all
dependants.
Article 10 Guarantees for applicants for asylum
1. With respect to the procedures provided for in Chapter III of this Directive,
Member States shall ensure that all applicants for asylum enjoy the follow-
ing guarantees:
(a) they must be informed in a language which they may reasonably be
supposed to understand of the procedure to be followed and of their
rights and obligations during the procedure and the possible conse-
quences of not complying with their obligations and not co-operating
with the authorities. They must be informed about the time-frame, as
well as the means at their disposal to fulfil the obligation to submit the
elements as referred to in Article 4 of Council Directive 2004/83/EC.
The information must be given in time to enable them to exercise the
rights guaranteed in this Directive and to comply with the obligations
described in Article 11;
(b) they must receive the services of an interpreter for submitting their
case to the competent authorities whenever necessary. Member States
shall consider it necessary to give these services at least when the deter-
mining authority calls upon the applicant to be interviewed as referred
to in Articles 12 and 13 and appropriate communication cannot be
ensured without such services. In this case and in other cases where
423
the competent authorities call upon the applicant, the services shall be
paid for out of public funds;
(c) they must not be denied the opportunity to communicate with the
UNHCR or with any other organisation working on behalf of the
UNHCR in the territory of the Member State pursuant to an agree-
ment with that Member State;
(d) they must be given notice in reasonable time of the decision by the deter-
mining authority on their application for asylum. If a legal adviser or
other counsellor is legally representing the applicant, Member States
may choose to give notice of the decision to him/her instead of to the
applicant for asylum;
(e) they must be informed about the result of the decision by the determin-
ing authority in a language that they may reasonably be supposed to
understand when they are not assisted or represented by a legal adviser
or other counsellor and when free legal assistance is not available. The
information provided shall include information on how to challenge a
negative decision in accordance with the provisions of Article 9(2).
2. With respect to the procedures provided for in Chapter V, Member States

shall ensure that all applicants for asylum enjoy equivalent guarantees to
the ones listed in paragraph 1(b), (c) and (d).
Article 11 Obligations of the applicants for asylum
1. Member States may impose upon applicants for asylum obligations to

cooperate with the competent authorities insofar as these obligations are
necessary for the processing of the application.
2. In particular, Member States may provide that

(a) applicants for asylum are required to report to the competent authori-
ties or to appear there in person, either without delay or at a specified
time;
(b) applicants for asylum have to hand over documents in their possession
relevant to the examination of the application, such as their passports;
and
(c) applicants for asylum are required to inform the competent authori-
ties of their current place of residence or address and inform them
of change of this place of residence or address as soon as possible.
Member States may provide that the applicant shall have to accept any
communication at the most recent place of residence or address which
he/she indicated accordingly;
(d) the competent authorities may search the applicant and the items he/
she carries with him/her;
424
(e) the competent authorities may take a photograph of the applicant;

and
(f) the competent authorities may record the applicant’s oral statements,
provided he/she has previously been informed thereof.
Article 12 Persons invited to a personal interview
1. Before a decision is taken by the determining authority, the applicant for

asylum shall be given the opportunity of a personal interview on his/her
application for asylum with a person competent under national law to con-
duct such an interview.
Member States may also give the opportunity of a personal interview to

each adult among the dependants referred to in Article 5(3).
Member States may determine in national legislation the cases in which a

minor shall be given the opportunity of a personal interview.
2. The personal interview may be omitted where :

(a) the determining authority is able to take a positive decision on the basis of
evidence available; or
(b) the competent authority has already had a meeting with the applicant for
the purpose of assisting him/her with filling his/her application and submit-
ting the essential information regarding the application, in terms of Arti-
cle 4(2) of Council Directive 2004/83/EC; or
(c) the determining authority, on the basis of a complete examination of infor-
mation provided by the applicant, considers the application as unfounded
in the cases where the circumstances mentioned in Article 23(4)(a), (c), (g),
(h) and (j) apply.
3. The personal interview may also be omitted, where it is not reasonably

practicable, in particular where the competent authority is of the opinion
that the applicant is unfit or unable to be interviewed owing to enduring
circumstances beyond his/her control. When in doubt, Member States may
require a medical or psychological certificate.
Where the Member State does not provide the opportunity for a personal
interview pursuant to this paragraph, or where applicable, to the depen-
dant, reasonable efforts must be made to allow the applicant or the depen-
dant to submit further information.
425
4. The absence of a personal interview in accordance with this Article shall

not prevent the determining authority from taking a decision on an applica-
tion for asylum.
5. The absence of a personal interview pursuant to paragraph 2(b) and (c)

and paragraph 3 shall not adversely affect the decision of the determining
authority.
6. Irrespective of Article 20 (1), Member States, when deciding on the applica-

tion for asylum, may take into account the fact that the applicant failed to
appear for the personal interview, unless he or she had good reasons for the
failure to appear.
Article 13 Requirements for a personal interview
1. A personal interview shall normally take place without the presence of

family members unless the determining authority considers it necessary for
an appropriate examination to have other family members present.
2. A personal interview must take place under conditions which ensure appro-
priate confidentiality.
3. Member States shall take appropriate steps to ensure that personal inter-
views are conducted in conditions which allow applicants to present the
grounds for their applications in a comprehensive manner. To that end,
Member States shall
(a) ensure that the person who conducts the interview is sufficiently com-
petent to take account of the personal or general circumstances sur-
rounding the application, including the applicant’s cultural origin or
vulnerability, insofar as it is possible to do so, and
(b) select an interpreter who is able to ensure appropriate communication
between the applicant and the person who conducts the interview. The
communication need not necessarily take place in the language pre-
ferred by the applicant for asylum if there is another language which
he/she may reasonably be supposed to understand and in which he/she
is able to communicate in.
4. Member States may provide for rules concerning the presence of third par-
ties at the personal interview.
5. This Article is also applicable to the meeting referred to in Article 12(2)(b).
426
Article 14 Status of the report of a personal interview in the procedure
1. Member States shall ensure that a written report is made of every personal
interview, containing at least the essential information regarding the appli-
cation, as presented by the applicant, in terms of Article 4(2) of Council
Directive 2004/83/EC.
2. Member States shall ensure that applicants have timely access to the report
of the personal interview. Where access is only granted after the decision of
the determining authority, Member States shall ensure that access is pos-
sible as soon as necessary for allowing an appeal to be prepared and lodged
in due time.
3. Member states may request the applicant’s approval on the contents of the
report of the personal interview.
Where an applicant refuses to approve the contents of the report, the rea-
sons for this refusal shall be entered into the applicant’s file.
The refusal of an applicant to approve the contents of the report of the

personal interview shall not prevent the determining authority from taking
a decision on his/her application.
4. This Article is also applicable to the meeting referred to in Article 10(2)(b).
Article 15 Right to legal assistance and representation
1. Member States shall allow applicants for asylum at their own cost the
opportunity to consult in an effective manner a legal adviser or other coun-
sellor, admitted or permitted as such under national law, on matters relating
to their asylum applications.
2. In the event of a negative decision by a determining authority, Member

States shall ensure that free legal assistance and/or representation be granted
on request subject to the provisions of paragraph 3.
3. Member States may provide in their national legislation that free legal assis-
tance and/or representation be granted :
(a) only for the procedures before a court or tribunal in accordance with
Chapter V and not to any onward appeals or reviews provided for
under national law, including a rehearing of an appeal following an
onward appeal or review; and/or
(b) only to those who lack sufficient resources; and/or
427
(c) only to legal advisers or other counsellors specifically designated by

national law to assist and/or represent applicants for asylum; and/or
(d) only if the appeal or review is likely to succeed.
Member States shall ensure that legal assistance and/or representation

granted under subparagraph (d) is not arbitrarily restricted.
4. Rules concerning the modalities for filing and processing such requests may
be provided by Member States.
5. Moreover, Member States may

(a) impose monetary and/or time limits on the provision of free legal
assistance and /or representation provided that such limits do not arbi-
trarily restrict access to legal assistance and/or representation.
(b) provide that, as regards fees and other costs, the treatment shall not be
more favourable than the treatment generally accorded to their nation-
als in matters pertaining to legal assistance.
6. Member States may demand to be reimbursed wholly or partially for

any expenses granted if and when the applicant’s financial situation has
improved considerably or if the decision to grant such benefits was taken
on the basis of false information supplied by the applicant.
Article 16 Scope of legal assistance and representation
1. Member States shall ensure that a legal adviser or other counsellor admit-
ted or permitted as such under national law who assists or represents an
applicant for asylum under the terms of national law shall enjoy access to
such information in the applicant’s file as is liable to be examined by the
authorities referred to in Chapter V, insofar as the information is relevant
to the examination of the application.
Member States may make an exception where disclosure of information

or sources would jeopardise national security, the security of the organisa-
tions or persons providing the information or the security of the person(s)
to whom the information relates or where the investigative interests relating
to the examination of applications of asylum by the competent authorities
of the Member States or the international relations of the Member States
would be compromised. In these cases, access to the information or sources
in question must be available to the authorities referred to in Chapter V,
except where such access is precluded in national security cases.
428
2. Member States shall ensure that the legal adviser or other counsellor who
assists or represents an applicant for asylum has access to closed areas, such
as detention facilities and transit zones, for the purpose of consulting that
applicant. Member States may only limit the possibility to visit applicants
in closed areas where such limitation is, by virtue of national legislation,
objectively necessary for the security, public order or administrative man-
agement of the area or to ensure an efficient examination of the applica-
tion, provided that access by the legal adviser or other counsellor is not
thereby severely limited or rendered impossible.
3. Member States may provide rules covering the presence of legal advisers
or other counsellors at all interviews in the procedure, without prejudice to
this Article or to Article 17(1)(b).
4. Member States may provide that the applicant is allowed to bring with him/
her to the personal interview the legal adviser or other counsellor, admitted
as such under national law.
Member States may require the presence of the applicant at the personal
interview even if he/she is represented under the terms of national law by
such a legal adviser or counsellor and may require the applicant to respond
in person to the questions asked.
The absence of the legal adviser or other counsellor shall not prevent the
competent authority from conducting the personal interview with the appli-
cant.
Article 17 Guarantees for unaccompanied minors
1. With respect to all procedures provided for in this Directive and without
prejudice to the provisions of Articles 12 and 14, Member States shall:
(a) as soon as possible take measures to ensure that a representative rep-
resents and/or assists the unaccompanied minor with respect to the
examination of the application. This representative can also be the
representative referred to in Article 19 of Council Directive 2003/9/EC
laying down minimum standards for the reception of asylum seekers;
(b) ensure that the representative is given the opportunity to inform the
unaccompanied minor about the meaning and possible consequences
of the personal interview and, where appropriate, how to prepare him-
self/herself for the personal interview. Member States shall allow the
representative to be present at that interview and to ask questions or
make comments, within the framework set by the person who conducts
the interview.
429
Member States may require the presence of the unaccompanied minor at

the personal interview even if the representative is present.
2. Member States may refrain from appointing a representative where the

unaccompanied minor:
(a) will in all likelihood reach the age of maturity before a decision at first
instance is taken; or
(b) can avail himself, free of charge, of a legal adviser or other counsellor,
admitted as such under national law to fulfil the tasks assigned above
to the representative; or
(c) is married or has been married.
3. Member States may, in accordance with laws and regulations in force at the
time of the adoption of this Directive, also refrain from appointing a rep-
resentative where the unaccompanied minor is 16 years old or older, unless
he/she is unable to pursue his/her application without a representative.
4. Member States shall ensure that:

(a) if an unaccompanied minor has a personal interview on his/her appli-
cation for asylum as referred to in Articles 12, 13 and 14, that interview
is conducted by a person who has the necessary knowledge of the spe-
cial needs of minors;
(b) an official who has the necessary knowledge of the special needs of
minors prepares the decision by the determining authority on the
application of an unaccompanied minor.
5. Member States may use medical examinations to determine the age of

unaccompanied minors within the framework of the examination of an
application for asylum.
In cases where medical examinations are used, Member States shall ensure
that:
(a) unaccompanied minors are informed prior to the examination of their
application for asylum, and in a language which they may reasonably
be supposed to understand, about the possibility of age determina-
tion by a medical examination. This shall include information on the
method of examination and the possible consequences of the result
of the medical examination for the examination of the application for
asylum, as well as the consequences of refusal on the part of the unac-
companied minor to undergo the medical examination.
(b) unaccompanied minors and/or their representatives consent to carry
out an examination to determine the age of the minors concerned,
and
430
(c) the decision to reject an application for asylum from an unaccompa-

nied minor who refused to undergo this medical examination shall not
be based solely on that refusal.
The fact that an unaccompanied minor has refused to undergo such a medi-
cal examination shall not prevent the determining authority from taking a
decision on the application for asylum.
6. The best interests of the child shall be a primary consideration for Member
States when implementing the provisions of this Article.
Article 18 Detention
1. Member States shall not hold a person in detention for the sole reason that
he/she is an applicant for asylum.
2. Where an applicant for asylum is held in detention, Member States shall

ensure that there is the possibility of speedy judicial review.
Article 19 Procedure in case of withdrawal of the application
1. Insofar as the Member States foresee the possibility of explicit withdrawal

of the application under national law, when an applicant for asylum explic-
itly withdraws his/her application for asylum, Member States shall ensure
that the determining authority takes a decision either to discontinue the
examination or to reject the application.
2. Member States may also decide that the determining authority can decide
to discontinue the examination without taking a decision. In this case,
Member States shall ensure that the determining authority shall enter a
notice in the applicant’s file.
Article 20 Procedure in case of implicit withdrawal or

abandonment of the application
1. When there is reasonable cause to consider that an applicant for asylum has
implicitly withdrawn or abandoned his/her application for asylum, Member
States shall ensure that the determining authority takes a decision either to
discontinue the examination or to reject the application on the basis that
the applicant has not established an entitlement to refugee status in accor-
dance with Council Directive 2004/83/EC.
431
Member States may assume that the applicant has implicitly withdrawn or
abandoned his/her application for asylum in particular when it is ascer-
tained that:
(a) he/she has failed to respond to requests to provide information essen-
tial to his/her application in terms of Article 4 of Council Directive
2004/83/EC or has not appeared for an personal interview as provided
for in Articles 12, 13 and 14, unless the applicant demonstrates within
a reasonable time that his failure was due to circumstances beyond his
control;
(b) he/she has absconded or left without authorisation the place where
he/she lived or was held, without contacting the competent authority
within a reasonable time or he/she has not within a reasonable time
complied with reporting duties or other obligations to communicate.
For the purpose of implementing these provisions, Member States may lay
down time limits or guidelines.
2. Member States shall ensure that the applicant who reports again to the
competent authority after a decision to discontinue as referred to in para-
graph 1 is taken, is entitled to request that his/her case be re-opened, unless
the request is examined in accordance with Articles 32 and 34.
Member States may provide for a time limit after which the applicant’s case
can no longer be reopened.
Member States shall ensure that such a person is not removed contrary to
the principle of non-refoulement.
Member States may allow the determining authority to take up the exami-
nation at the stage which the application was discontinued.
Article 21 The role of UNHCR
1. Member States shall allow the UNHCR :

(a) to have access to applicants for asylum, including those in detention
and in airport or port transit zones;
(b) to have access to information on individual applications for asylum, on
the course of the procedure and on the decisions taken, provided that
the applicant for asylum agrees thereto;
(c) to present its views, in the exercise of its supervisory responsibilities
under Article 35 of the Geneva Convention, to any competent author-
ities regarding individual applications for asylum at any stage of the
procedure.
432
2. Paragraph 1 shall also apply to an organisation which is working in the

territory of the Member State on behalf of the UNHCR pursuant to an
agreement with that Member State.
Article 22 Collection of information on individual cases
For the purpose of examining individual cases, Member States shall not:
(a) directly disclose the information regarding individual applications for
asylum, or the fact that an application has been made, to the alleged actor(s)
of persecution of the applicant for asylum.
(b) obtain any information from the alleged actor(s) of persecution in a manner
that would result in such actor(s) being directly informed of the fact that an
application has been made by the applicant in question, and would jeop-
ardise the physical integrity of the applicant and his/her dependants, or the
liberty and security of his/her family members still living in the country of
origin.
CHAPTER III
PROCEDURES AT FIRST INSTANCE
Section I
Article 23 Examination procedure
1. Member States shall process applications for asylum in an examination

procedure in accordance with the basic principles and guarantees of Chap-
ter II.
2. Member States shall ensure that such a procedure is concluded as soon as

possible, without prejudice to an adequate and complete examination.
Member States shall ensure that, when no decision can be taken within
six months,
(a) the applicant concerned shall either be informed of the delay or
(b) receive, upon his/her request, information on the time-frame within
which the decision on his/her application is to be expected. Such infor-
mation shall not constitute an obligation for the Member State towards
the applicant concerned to take a decision within that time frame.
3. Member States may prioritise or accelerate any examination in accordance

with the basic principles and guarantees of Chapter II including where the
433
application is likely to be well-founded or where the applicant has special

needs.
4. Moreover, Member States may lay down that an examination procedure

in accordance with the basic principles and guarantees of Chapter II be
prioritised or accelerated if:
(a) the applicant in submitting his/her application and presenting the fact,
has only raised issues that are not relevant or of minimal relevance to
the examination of whether he/she qualifies as a refugee by virtue of
Council Directive 2004/83/EC; or
(b) the applicant clearly does not qualify as a refugee or for refugee status
in a Member State under Council Directive 2004/83/EC; or
(c) the application for asylum is considered to be unfounded:
– because the applicant is from a safe country of origin within the
meaning of Articles 29, 30 and 31 of this Directive, or
– because the country which is not a Member State is considered
to be a safe third country for the applicant, without prejudice to
Article 28(1); or
(d) the applicant has misled the authorities by presenting false information
or documents or by withholding relevant information or documents
with respect to his/her identity and/or nationality that could have had
a negative impact on the decision; or
(e) the applicant has filed another application for asylum stating other
personal data; or
(f) the applicant has not produced information to establish with a reason-
able degree of certainty his/her identity or nationality, or, it is likely
that, in bad faith, he/she has destroyed or disposed of an identity or
travel document that would have helped establish his/her identity or
nationality; or
(g) the applicant has made inconsistent, contradictory, unlikely or insuffi-
cient representations which make his/her claim clearly unconvincing in
relation to his/her having being the object of persecution under Coun-
cil Directive 2004/83/EC; or
(h) the applicant has submitted a subsequent application raising no rel-
evant new elements with respect to his/her particular circumstances or
to the situation in his/her country of origin; or
(i) the applicant has failed without reasonable cause to make his/her
application earlier, having had opportunity to do so; or
(j) the applicant is making an application merely in order to delay or frus-
trate the enforcement of an earlier or imminent decision which would
result in his/her removal; or
434
(k) the applicant failed without good reasons to comply with obligations
referred to in Articles 4(1) and (2) of Council Directive 2004/83/EC or
in Articles 11(2)(a) and (b) and 20(1) of this Directive; or
(l) the applicant entered the territory of the Member State unlawfully or
prolonged his/her stay unlawfully and, without good reason, has either
not presented himself/herself to the authorities and/or filed an applica-
tion for asylum as soon as possible given the circumstances of his/her
entry; or
(m) the applicant is a danger to the national security or the public order of
the Member State; or the applicant has enforceably been expelled for
serious reasons of public security and public order under national law;
or
(n) the applicant refuses to comply with an obligation to have his/her
fingerprints taken in accordance with relevant Community and/or
national legislation; or
(o) the application was made by an unmarried minor to whom Arti-
cle 6(4)(c) applies after the application of the parents or parent respon-
sible for the minor has been rejected by a decision and no relevant new
elements were raised with respect to his/her particular circumstances
or to the situation in his/her country of origin.
Article 24 Specific procedures
1. Member States may moreover provide for the following specific procedures
derogating from the basic principles and guarantees of Chapter II:
(a) a preliminary examination for the purpose of processing cases consid-
ered within the framework of the provisions set out in Section IV;
(b) procedures for the purpose of processing cases considered within the
framework set out in Section V.
2. Member States may also provide a derogation in respect of Section VI.
Section II
Article 25 Cases of inadmissible applications
1. In addition to cases in which an application is not examined in accordance

with the provisions of Council Regulation 343/2003 establishing the cri-
teria and mechanisms for determining the Member State responsible for
examining an asylum application lodged in one of the Member States by a
third country national, Member States are not required to examine whether
the applicant qualifies as a refugee in accordance with Council Directive
435
2004/83/EC where an application is considered inadmissible pursuant to

the present Article.
2. Member States may consider an application for asylum as inadmissible

pursuant to this Article if:
(a) another Member State has granted refugee status;
(b) a country which is not a Member State is considered as a first country
of asylum for the applicant, pursuant to Article 26;
(c) a country which is not a Member State is considered as a safe third
country for the applicant, pursuant to Article 27;
(d) the applicant is allowed to remain in the Member State concerned
on some other ground and as result of this he/she has been granted
a status equivalent to the rights and benefits of the refugee status by
virtue of Council Directive 2004/83/EC;
(e) the applicant is allowed to remain in the territory of the Member
State concerned on some other grounds which protect him/her against
refoulement pending the outcome of a procedure for the determina-
tion of a status pursuant to (d);
(f) the applicant has lodged an identical application after a final deci-
sion;
(g) a dependant of the applicant lodges an application, after he/she has in
accordance with Article 6(3), consented to have his/her case be part of
an application made on his/her behalf and there are no facts relating
to the dependant’s situation justifying a separate application.
Article 26 Application of the concept of first country of asylum
A country can be considered to be a first country of asylum for a particular

applicant for asylum if
(a) he/she has been recognised in that country as a refugee and he/she can still
avail himself/herself of that protection, or
(b) he/she enjoys otherwise sufficient protection in that country, including ben-
efiting from the principle of non-refoulement,
provided that he/she will be re-admitted to that country.
In applying the concept of first country of asylum to the particular circum-

stances of an applicant for asylum, Member States may take into account the
content of Article 27(1).
436
Article 27 The safe third country concept
1. Member States may apply the safe third country concept only where the
competent authorities are satisfied that a person seeking asylum will be
treated in accordance with the following principles in the third country con-
cerned:
(a) life and liberty are not threatened on account of race, religion, nation-
ality, membership of a particular social group or political opinion;
and
(b) the principle of non-refoulement in accordance with the Geneva Con-
vention is respected; and
(c) the prohibition on removal in breach of the right to freedom from
torture and cruel, inhuman or degrading treatment as laid down in
international law is respected; and
(d) the possibility exists to request refugee status and, if found to be a
refugee, to receive protection in accordance with the Geneva Conven-
tion.
2. The application of the safe third country concept shall be subject to rules
laid down in national legislation, including:
(a) rules requiring a connection between the person seeking asylum and
the third country concerned based on which it would be reasonable for
that person to go to that country;
(b) rules on the methodology by which the competent authorities satisfy
themselves that the safe third country concept may be applied to a par-
ticular country or to a particular applicant. Such methodology shall
include case by case consideration of the safety of the country for a
particular applicant and/or national designation of countries consid-
ered to be generally safe;
(c) rules, in accordance with international law, allowing an individual
examination of whether the third country concerned is safe for a par-
ticular applicant which, as a minimum, shall permit the applicant to
challenge the application of the safe third country concept on the
grounds that he/she would be subjected to torture, cruel, inhuman or
degrading treatment or punishment.
3. When implementing a decision solely based on this Article, Member States

shall:
(a) inform the applicant accordingly; and
(b) provide him/her with a document informing the authorities of the
third country, in the language of that country, that the application has
not been examined in substance.
437
4. Where the third country does not permit the applicant for asylum in ques-
tion to enter its territory, Member States shall ensure that access to a pro-
cedure is given in accordance with the basic principles and guarantees
described in Chapter II.
5. Member States shall inform the Commission periodically of the countries

to which this concept is applied in accordance with the provisions of this
Article.
Section III
Article 28 Cases of unfounded applications
1. Without prejudice to Articles 19 and 20, Member States may only consider
an application for asylum as unfounded if the determining authority has
established that the applicant does not qualify for refugee status pursuant
to Council Directive 2004/83/EC.
2. In the cases mentioned in Article 23(4)(b) and in cases of unfounded applica-

tions for asylum in which any of the circumstances listed in Article 23(4)(a)
and (c) to (o) apply, Member States may also consider an application, if it
is so defined in the national legislation, as manifestly unfounded.
Article 29 Minimum common list of third countries as

safe countries of origin
1. The Council shall, acting by a qualified majority on a proposal from the

Commission and after consultation of the European Parliament, adopt a
minimum common list of third countries that shall be regarded by Member
States as safe countries of origin in accordance with Annex II.
2. The Council may, acting by a qualified majority on a proposal from the

Commission and after consultation of the European Parliament, amend
the minimum common list by adding or removing third countries, in accor-
dance with Annex II. The Commission shall examine any request made by
the Council or by a Member State that it submit a proposal to amend the
minimum common list.
3. When making its proposal under paragraphs 1 or 2, the Commission shall

make use of information from the Member States, its own information and,
where necessary, information from UNHCR, the Council of Europe and
other relevant international organisations.
438
4. Where the Council requests the Commission to submit a proposal for

removing a third country from the minimum common list, the obligation
of Member States pursuant to Article 31(2) shall be suspended with regard
to this third country as of the day following the Council decision requesting
such a submission.
5. Where a Member State requests the Commission to submit a proposal to

the Council for removing a third country from the minimum common list,
that Member State shall notify the Council in writing of the request made
to the Commission. The obligation of this Member State pursuant to Arti-
cle 31(2) shall be suspended with regard to the third country as of the day
following the notification of the request to the Council.
6. The European Parliament shall be informed of the suspensions under para-

graphs 4 and 5.
7. The suspensions under paragraphs 4 and 5 shall end after three months,
unless the Commission makes a proposal, before the end of this period, to
withdraw the third country from the minimum common list. The suspen-
sions shall end in any case where the Council rejects, a proposal by the
Commission to withdraw the third country from the list.
8. Upon request by the Council, the Commission shall report to the Council
and the European Parliament on whether the situation of a country on the
minimum common list is still in conformity with Annex II. When present-
ing its report to the Council and the European Parliament, the Commission
may make such recommendations or proposals as it deems appropriate.
Article 30 National designation of third countries as

safe countries of origin
1. Without prejudice to Article 29, Member States may retain or introduce

legislation that allows, in accordance with Annex II, for the national des-
ignation of third countries other than those appearing on the minimum
common list, as safe countries of origin for the purpose of examining appli-
cations for asylum. This may include designation of part of a country as
safe where the conditions in Annex II are fulfilled in relation to that part.
2. By derogation to paragraph 1, Member States may retain legislation in

force at the time of adoption of this Directive that allows for the national
designation of third countries, other than those appearing on the minimum
common list, as safe countries of origin for the purposes of examining
439
applications for asylum where they are satisfied that persons in the third
countries concerned are generally neither subject to:
(a) persecution as defined in Article 9 of Council Directive 2004/83/EC;
nor
(b) torture or inhuman or degrading treatment or punishment.
3. Member States may also retain legislation in force at the time of the adop-
tion of this Directive that allows for the national designation of part of
a country as safe or a country or part of a country as safe for a specified
group of persons in that country where the conditions in paragraph 2 are
fulfilled in relation to that part or group.
4. In assessing whether a country is a safe country of origin in accordance

with paragraphs 2 and 3, Member States shall have regard to the legal situ-
ation, the application of the law and the general political circumstances in
the third country concerned.
5. The assessment of whether a country is a safe country of origin in accor-

dance with this Article shall be based on a range of sources of informa-
tion, including in particular information from other Member States, the
UNHCR, the Council of Europe and other relevant international organisa-
tions.
6. Member States shall notify to the Commission the countries that are desig-
nated as safe countries of origin in accordance with the provisions of this
Article.
Article 31 Application of the safe country of origin concept
1. A third country designated as a safe country of origin either in accordance

with the provisions of Article 29 or 30 can, after an individual examination
of the application, be considered as a safe country of origin for a particular
applicant for asylum only if:
(a) he/she has the nationality of that country or,
(b) he/she is a stateless person and was formerly habitually resident in that
country;
and he/she has not submitted any serious grounds for considering the coun-
try not to be a safe country of origin in his/her particular circumstances
in terms of his/her qualification as a refugee in accordance with Council
Directive 2004/83/EC.
440
2. Member States shall, in accordance with paragraph 1, consider the applica-

tion for asylum as unfounded where the third country is designated as safe
pursuant to Article 29.
3. Member States shall lay down in national legislation further rules and
modalities for the application of the safe country of origin concept.
Section IV
Article 32 Cases of subsequent applications
1. Where a person who has applied for asylum in a Member State makes fur-
ther representations or a subsequent application in the same Member State,
that Member State may examine these further representations or the ele-
ments of the subsequent application in the framework of the examination
of the previous application or in the framework of the examination of the
decision under review or appeal insofar as the competent authorities can
take into account and consider all the elements underlying the further rep-
resentations or subsequent application within this framework.
2. Moreover, Member States may apply a specific procedure as referred to in

paragraph 3, where a person makes a subsequent application for asylum:
(a) after his/her previous application has been withdrawn by virtue of
Articles 19 or 20;
(b) after a decision has been taken on the previous application. Member
States may also decide to apply this procedure only after a final deci-
sion has been taken.
3. A subsequent application for asylum shall be subject first to a preliminary

examination as to whether, after the withdrawal of the previous applica-
tion or after the decision referred to in paragraph 2(b) on this application
has been reached, new elements or findings relating to the examination of
whether he/she qualifies as a refugee by virtue of Council Directive 2004/83/
EC have arisen or have been presented by the applicant.
4. If, following the preliminary examination referred to in paragraph 3, new

elements or findings arise or are presented by the applicant which signif-
icantly add to the likelihood of the applicant qualifying as a refugee by
virtue of Council Directive 2004/83/EC, the application shall be further
examined in conformity with Chapter II.
441
5. Member States may, in accordance with national legislation, further exam-

ine a subsequent application where there are other reasons according to
which a procedure has to be reopened.
6. Member States may decide to further examine the application only if the
applicant concerned was, through no fault of his/her own, incapable of
asserting the situations set forth in paragraphs 3, 4 and 5 in the previous
procedure, in particular by exercising his/her right to an effective remedy
7. This procedure may also be applicable in the case of a dependant who lodges
an application, after he/she has in accordance with Article 6(3), consented
to have his/her case be part of an application made on his/her behalf. In
this case the preliminary examination referred to in paragraph 3 will consist
of examining whether there are facts relating to the dependant’s situation
justifying a separate application.
Article 33
Member States may retain or adopt the procedure provided for in Article 32 in
the case of an application for asylum filed at a later date by an applicant who,
either intentionally or owing to gross negligence, fails to go to a reception centre
or to appear before the competent authorities at a specified time.
Article 34 Procedural rules
1. Member States shall ensure that applicants for asylum whose application
is subject to a preliminary examination pursuant to Article 32 enjoy the
guarantees listed in Article 10(1).
2. Member States may lay down in national law rules on the preliminary
examination pursuant to Article 32. Those rules may inter alia:
(a) oblige the applicant concerned to indicate facts and substantiate evi-
dence which justify a new procedure;
(b) require submission of the new information by the applicant concerned
within a time limit after which it has been obtained by him or her;
(c) permit the preliminary examination to be conducted on the sole basis
of written submissions without a personal interview.
The conditions shall not render the access of applicants for asylum to a new
procedure impossible nor result in the effective annulment or severe curtail-
ment of such access.
442
3. Member States shall ensure that

(a) the applicant is informed in an appropriate manner of the outcome of
the preliminary examination and, in case the application will not be
further examined, of the reasons and of the possibilities of seeking an
appeal or review of the decision;
(b) if one of the situations referred to in Article 33 (2) applies, the deter-
mining authority shall further examine the subsequent application in
conformity with the provisions of Chapter II as soon as possible.
Section V
Article 35 Cases of border procedures
1. Member States may provide for procedures, in accordance with the basic
principles and guarantees of Chapter II, in order to decide, at the border or
transit zones of the Member State, on the applications made at such loca-
tions.
2. However, when procedures as set out in paragraph 1 do not exist, Member

States may maintain, subject to the provisions of this Article and in accor-
dance with the laws or regulations in force at the time of the adoption of
this Directive, procedures derogating from the basic principles and guaran-
tees described in Chapter II, in order to decide, at the border or in transit
zones, on the permission to enter their territory of applicants for asylum
who have arrived and made an application for asylum at such locations.
3. The procedures referred to in paragraph 2 shall ensure in particular that the

persons concerned:
– shall be allowed to remain at the border or transit zones of the Member
State, without prejudice to Article 7; and
– must be immediately informed of their rights and obligations, as
described in Article 10(1) (a); and
– have access, if necessary, to the services of an interpreter, as described
in Article 10(1) (b); and
– are interviewed, before the competent authority takes a decision in
such procedures, in relation to their application for asylum by persons
with appropriate knowledge of the relevant standards applicable in the
field of asylum and refugee law, as described in Articles 12 to 14; and
– can consult a legal adviser or counsellor admitted or permitted as such
under national law, as described in Article 15(1); and
– have a representative appointed in the case of unaccompanied minors,
as described in Article 17(1), unless Article 17(2) or (3) applies.
443
Moreover, in case permission to enter is refused by a competent authority,

this competent authority shall state the reasons in fact and in law why his/
her application for asylum is considered as unfounded or as inadmissible.
4. Member States shall ensure that a decision in the framework of the proce-
dures provided for in paragraph 2 is taken within a reasonable time. When
a decision has not been taken within four weeks, the applicant for asylum
shall be granted entry to the territory of the Member State in order for his/
her application to be processed in accordance with the other provisions of
this Directive.
5. In the event of particular types of arrivals or arrivals involving a large

number of third country nationals or stateless persons lodging applications
for asylum at the border or in a transit zone, which makes it practically
impossible to apply there the provisions of paragraph 1 or the specific pro-
cedure set out in paragraphs 2 and 3, those procedures may also be applied
where and for as long as these third country nationals or stateless persons
are accommodated normally at locations in proximity to the border or
transit zone.
Section VI
Article 36
1. Member States may provide that no, or no full, examination of the asylum
application and of the safety of the applicant in his/her particular circum-
stances as described in Chapter II takes place in cases where a competent
authority has established, on the basis of the facts, that the applicant for
asylum is seeking to enter or has entered illegally into its territory from a
safe third country according to paragraph 2.
2. A third country can only be considered as a safe third country for the pur-
pose of paragraph 1 where:
(a) it has ratified and observes the provisions of the Geneva Convention
without any geographical limitations; and
(b) it has in place an asylum procedure prescribed by law; and
(c) it has ratified the European Convention for the Protection of Human
Rights and Fundamental Freedoms and it observes its provisions,
including the standards relating to effective remedies; and
(d) it has been so designated by the Council in accordance with paragraph
3.
444
3. The Council shall, acting by qualified majority on the proposal of the

Commission and after consultation of the European Parliament, adopt or
amend a common list of third countries that shall be regarded as safe third
countries for the purposes of paragraph 1.
4. Member States concerned shall lay down in national law the modalities
for implementing the provisions of paragraph 1 and the consequences of
decisions pursuant to those provisions in accordance with the principle of
non-refoulement under the Geneva Convention including providing for
exceptions from the application of this Article for humanitarian or politi-
cal reasons or for reasons of public international law.
5. When implementing a decision solely based on this Article, Member States

concerned shall:
(a) inform the applicant accordingly; and
(b) provide him/her with a document informing the authorities of the
third country, in the language of that country, that the application has
not been examined in substance.
6. Where the safe third country does not readmit the applicant for asylum in
question, Member States shall ensure that access to a procedure is given
in accordance with the basic principles and guarantees described in Chap-
ter II.
7. Member States which have designated third countries as safe countries in

accordance with national legislation in force at the date of the adoption of
this Directive and on the basis of the criteria in paragraph 2(a) to (c), may
apply paragraph 1 to these third countries until such time as the Council
has adopted the common list pursuant to paragraph 3.
CHAPTER IV
PROCEDURES FOR THE WITHDRAWAL OF REFUGEE STATUS
Article 37 Withdrawal of refugee status
Member States shall ensure that an examination may be started to withdraw the
refugee status of a particular person when new elements or findings arise indi-
cating that there are reasons to reconsider the validity of his/her refugee status.
Article 38 Procedural rules
1. Member States shall ensure that, where the competent authority is consid-
ering to withdraw the refugee status of a third country national or stateless
445
person in accordance with Article 14 of Council Directive 2004/83/EC, the

person concerned shall enjoy the following guarantees:
(a) to be informed in writing that the competent authority is reconsider-
ing his or her qualification for refugee status and the reasons for such
a reconsideration; and
(b) to be given the opportunity to submit, in a personal interview in
accordance with Article 10 (1) (b) and Articles 12 to 14 or in a writ-
ten statement, reasons as to why his/her refugee status should not be
withdrawn.
In addition, Member States shall ensure that within the framework of such
a procedure:
(c) the competent authority is able to obtain precise and up to date infor-
mation from various sources, such as, where appropriate, information
from the United Nations High Commissioner for Refugees (UNHCR),
as to the general situation prevailing in the countries of origin of the
persons concerned; and
(d) where information is collected on the individual case for the purpose
of reconsidering the refugee status, it is not obtained from the actor(s)
of persecution in a manner that would result in such actor(s) being
directly informed of the fact that the person concerned is a refugee,
whose status is under reconsideration, nor jeopardise the physical
integrity of the person and his/her dependants, or the liberty and secu-
rity of his/her family members still living in the country of origin.
2. Member States shall ensure that the decision of the competent authority to
withdraw the refugee status is given in writing. The reasons in fact and in
law shall be stated in the decision and information on how to challenge the
decision shall be given in writing.
3. Once the competent authority has taken the decision to withdraw the ref-
ugee status, Articles 15, paragraph 2, 14, paragraph 1 and 21 are equally
applicable.
4. By derogation to paragraphs 1, 2 and 3, Member States may decide that the

refugee status lapses by law in case of cessation in accordance with Arti-
cle 11(1), sub-paragraphs (a), (b), (c) and (d) of Council Directive 2004/83/
EC or if the refugee has unequivocally renounced his/her recognition as a
refugee.
446
CHAPTER V
APPEALS PROCEDURES
Article 39 The right to an effective remedy
1. Member States shall ensure that applicants for asylum have the right to an
effective remedy before a court or tribunal, against the following:
(a) a decision taken on their application for asylum, including a decision:
(i) to consider an application inadmissible pursuant to Article 25(2),
(ii) at the border or in the transit zones of a Member State as described
in Article 35(1);
(iii) not to conduct an examination pursuant to Article 36;
(b) a refusal to re-open the examination of an application after its discon-
tinuation pursuant to Articles 19 and 20;
(c) a decision not to further examine the subsequent application pursuant
to Articles 32 and 34;
(d) a decision refusing entry within the framework of the procedures pro-
vided for under Article 35 (2);
(e) a decision for the withdrawal of the refugee status pursuant to Arti-
cle 38.
2. Member States shall provide for time limits and other necessary rules for
the applicant to exercise his/her right to an effective remedy pursuant to
paragraph 1.
3. Member States shall, where appropriate, provide for rules in accordance

with their international obligations dealing with:
(a) the question of whether the remedy pursuant to paragraph 1 shall have
the effect of allowing applicants to remain in the Member State con-
cerned pending its outcome; and
(b) the possibility of legal remedy or protective measures where the remedy
pursuant to paragraph 1 does not have the effect of allowing appli-
cants to remain in the Member State concerned pending its outcome.
Member States may also provide for an ex officio remedy; and
(c) the grounds of challenge to a decision under Article 25(2)(c) in accor-
dance with the methodology applied under Article 27(2)(b) and (c).
4. Member States may lay down time limits for the court or tribunal pursuant
to paragraph 1 to examine the decision of the determining authority.
5. Where an applicant has been granted a status, which offers the same rights
and benefits under national and Community law as the refugee status by
virtue of Council Directive 2004/83/EC, the applicant may be considered to
447
have an effective remedy where a court or tribunal decides that the remedy
pursuant to paragraph 1 is inadmissible or unlikely to succeed on the basis
of insufficient interest on the part of the applicant in maintaining the pro-
ceedings.
6. Member States may also lay down in national legislation the conditions
under which it can be assumed that an applicant has implicitly withdrawn
or abandoned his/her remedy pursuant to paragraph 1, together with the
rules on the procedure to be followed.
CHAPTER VI
GENERAL AND FINAL PROVISIONS
Article 40 Challenge by public authorities
This Directive does not affect the possibility for public authorities of challeng-
ing the administrative and/or judicial decisions as provided for in national leg-
islation.
Article 41 Confidentiality
Member States shall ensure that authorities implementing this Directive are
bound by the confidentiality principle, as defined in national law, in relation to
any information they obtain in the course of their work.
Article 42 Report
No later than two years after the date specified in Article 43, the Commission
shall report to the European Parliament and the Council on the application of
this Directive in the Member States and shall propose any amendments that are
necessary. Member States shall send the Commission all the information that is
appropriate for drawing up this report. After presenting the report, the Commis-
sion shall report to the European Parliament and the Council on the application
of this Directive in the Member States at least every two years.
Article 43 Transposal
Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by 1 December 2007. Con-
cerning Article 13, Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive by 1 Decem-
ber 2008. They shall forthwith inform the Commission thereof.
448
When Member States adopt those provisions, they shall contain a reference to
this Directive or be accompanied by such a reference on the occasion of their
official publication. Member States shall determine how such reference is to be
made.
Member States shall communicate to the Commission the text of the provisions
of national law which they adopt in the field covered by this Directive.
Article 44 Transition
Member States shall apply the laws, regulations and administrative provisions
set out in Article 43 to applications for asylum lodged after 1 December 2007
and to procedures for the withdrawal of refugee status started after 1 December
2007.
[...]
449
ANNEX I
DEFINITION OF “DETERMINING AUTHORITY”
When implementing the provision of this Directive, Ireland may, insofar as the
provisions of section 17 (1) of the Refugee Act 1996 (as amended) contin-
ues to apply, consider that:
– “determining authority” provided for in Article 2 (e) of this Directive shall,
insofar as the examination of whether an applicant should or, as the case
may be, should not be declared to be a refugee is concerned, mean the Office
of the Refugee Applications Commissioner; and
– “decisions at first instance” provided for in Article 2 (e) of this Directive
shall include recommendations of the Refugee Applications Commissioner
as to whether an applicant should or, as the case may be, should not be
declared to be a refugee.
Ireland will notify the European Commission of any amendments to the provi-
sions of section 17 (1) of the Refugee Act 1996 (as amended).
450
ANNEX II
DESIGNATION OF SAFE COUNTRIES OF ORIGIN FOR THE PUR-

POSES OF ARTICLES 30 AND 30A(1)
A country is considered as a safe country of origin where, on the basis of the

legal situation, the application of the law within a democratic system and the
general political circumstances, it can be shown that there is generally and con-
sistently no persecution as defined in Article 9 of Council Directive 2004/83/EC;
no torture or inhuman or degrading treatment or punishment; and no threat
by reason of indiscriminate violence in situations of international or internal
armed conflict.
In making this assessment, account shall be taken inter alia of the extent to
which protection is provided against persecution or mistreatment through:
(a) the relevant laws and regulations of the country and the manner in which
they are applied;
(b) observance of the rights and freedoms laid down in the European Con-
vention for the Protection of Human Rights and Fundamental Freedoms
and/or the International Covenant for Civil and Political Rights and/or the
Convention against Torture, in particular the rights from which derogation
cannot be made under Article 15(2) of the said European Convention;
(c) respect of the non-refoulement principle according to the Geneva Conven-
tion;
(d) provision for a system of effective remedies against violations of these rights
and freedoms.
451
ANNEX III
DEFINITION OF “APPLICANT” OR “APPLICANT FOR ASYLUM”
When implementing the provisions of this Directive Spain may, insofar as the
provisions of “Ley 30/1992 de Régimen jurídico de las Administraciones Públi-
cas y del Procedimiento Administrativo Común” of 26 November 1992 and “Ley
29/1998 reguladora de la Jurisdicción Contencioso-Administrativa” of 13 July 1998
continues to apply, consider that, for the purposes of Chapter V, the definition
of “applicant” or “applicant for asylum” in Article 2(c) of the Directive shall
include an “appellant” as established in the above mentioned Acts.
The “appellant” shall be entitled to the same guarantees as an “applicant” or an

“applicant for asylum” as set out in the Directive for the purposes of exercising
his/her right to an effective remedy in Chapter V.
Spain will notify the European Commission of any relevant amendments to the
above mentioned Act.
452
Chapter 15 Temporary Protection
1 Summary
Council Directive 2001/55/EC on the minimum standards for giving temporary
protection in the event of a mass influx of displaced persons and on measures
promoting a balance of efforts between Member States in receiving and bearing
the consequences thereof1 was the first of the asylum measures under Title IV
EC Treaty to be adopted (leaving aside the European Refugee Fund). Member
States were required to implement the provisions of the Directive into national
law by 31 December 2002 (Article 32), except for Ireland, which opted in later
and had to apply the Directive by the end of 2003.2 In practice, the Directive
had not been invoked as of 15 October 2005. The Commission has brought
infringement proceedings against a number of Member States for failure to
adopt national legislation to implement the Directive on time.3
When the Commission proposed the Directive, it based the rationale for the
Directive on events in Kosovo and the disruption that mass influxes can have on
the asylum systems of Member States. The Directive was designed to provide
temporary measures to provide protection to those displaced without inundat-
ing Member States’ asylum systems.
1 OJ 2001 L 212/12.
2 Commission Decision 2003/690, OJ 2003 L 251/23.
3 As of 1 January 2006, two cases had been decided by the Court of Justice in favour
of the Commission (Cases C-454/04 Commission v Luxembourg, judgment of 2 June
2005 and C-476/04 Commission v Greece, judgment of 17 Nov. 2005, both unre-
ported); two had been withdrawn, presumably due to compliance by the Member
States (Cases C-515/04 Commission v Belgium and C-461/04 Commission v Nether-
lands); and two cases were still pending (Cases C-451/04 Commission v France and
C-455/04 Commission v UK).
The lengthy preamble to the Directive refers to various conflicts in the Bal-
kans and the “lessons” to be learned from response to such crises. The preamble
states that the measures should be based on solidarity between Member States
and compatible with obligations under the 1951 Convention on the Status of
Refugees.
Article 2 defines various concepts in the Directive including “temporary
protection” and “mass influx”. Temporary protection is defined as an excep-
tional procedure provided in the event of a mass influx or imminent mass influx
of displaced persons unable to return to their country of origin. A mass influx
is defined as the arrival in the European Community of a large number of dis-
placed persons whether their arrival was spontaneous or aided for example
through an evacuation programme.
Article 3 makes clear that temporary protection is not to prejudge refugee
status determination. Member States are required to apply temporary protec-
tion with due respect for human rights. Member States are able to retain more
favourable provisions.
Article 4 provides that temporary protection is for one year, automatically
extendable for 6 month periods for a maximum of one further year. Where con-
ditions persist the Council can decide to extend protection for up to one addi-
tional year (making the maximum period of temporary protection 3 years).
Article 5 makes clear that the existence of mass influx must be established
by a Council Decision adopted by qualified majority on a proposal from the
Commission. The Commission’s proposal must specify the groups of people to
which the protection will apply, the date from which it will take effect and some
estimation of the scale of mass influx. The Council Decision is to be based on
an examination of the situation and scale of mass influx, information received
from UNHCR and other organisations and an assessment of the “advisabil-
ity” of establishing temporary measure. The European Parliament is only to be
informed of the Decision.
Article 6 provides for the circumstances in which temporary protection
comes to an end. Prior to the end of the maximum duration period this will be
by Council Decision adopted by qualified majority.
Member States can extend temporary protection to other categories of dis-
placed persons not specified in the Council Decision providing that they are
displaced for the same reasons and are from the same region or country (Article
7).
Articles 8 to 16 set out the obligations of the Member States towards per-
sons with temporary protection. In particular, Member States are to provide
such persons with residence permits (Article 8(1)). Such persons must be able
to engage in employed or self-employed activities as well as vocational and
educational training (Article 12). Member States are to ensure that those with
temporary protection are given suitable accommodation and necessary social
454
assistance (Article 13(1) and (2)). Member States are to provide necessary medi-
cal and social assistance with those with special needs (Article 13(4)).
Children with temporary protection should be granted access to education
on a non-discriminatory basis as own nationals in the host member State. Adults
may be permitted access to the general education system (Article 14).
Article 15 obliges Member States to reunite family members who have
become separated during their departure from their country of origin ,either
where the family members are in different Member States or where some family
member remain outside the EU but are in need of temporary protection.
Article 16 obliges Member States to provide unaccompanied minors with
representation or legal guardianship. Member States are directed to place unac-
companied minors with relatives, a foster family, in special reception facilities or
with a person who the minor fled with.
Articles 17 to 19 relate to access to the asylum procedure for those granted
temporary protection. Such persons must be able to lodge an asylum applica-
tion at any time. Examination of that claim must be completed after the end of
the temporary protection period if it was not completed before. Member States
are able to provide that a person cannot be granted temporary protection at the
same time as being treated as asylum seeker. A person denied refugee status or
another form of protection should be granted temporary protection if he or she
is still eligible for that protection.
Article 20 provides that normal laws on protection and aliens will apply
at the end of the temporary protection period. Member States are to facilitate
voluntary return with respect for human dignity (Article 21). Decisions about
voluntary return are to be made with full knowledge of the facts by the person
concerned. If, during the period of temporary protection, the person returns
to his country of origin and then wishes to return to the host Member State,
favourable consideration should be given to such request. Article 22 provides
that Member States are to take into account compelling humanitarian reasons
making a forced return at the end of temporary protection “unreasonable”.
Member States are required to take necessary measures in respect of those who
cannot be removed because of ill-health (Article 23).
Articles 24 to 26 concern Community solidarity and the spirit in which the
Directive is to be implemented. Provision is made for situations where the mass
influx exceeds the reception capacity of a Member State (Article 25(3)). Article
27 concerns the appointment of national contact points for administrative co-
operation.
Article 28 provides that Member States may exclude a person from tempo-
rary protection in certain circumstances based on the conduct of that person.
Persons excluded from the benefit of temporary protection, or from family
reunion, must be able to bring legal challenges (Article 29). There is no further
detail on the procedural rights which must be guaranteed in the event of such
challenges, but the general principles of EC law will require that Member States
455
guarantee a fair hearing and an effective remedy.4 The Commission was obliged
to produce a report on the Directive by the end of 2004, including the possible
proposal of any amendments,5 but had not done so by 1 January 2006. In accor-
dance with Article 67(5) EC, any amendments to the legislation, if proposed by
the Commission, would have to be adopted by use of qualified majority voting
in the Council along with the co-decision procedure for the European Parlia-
ment (EP).6

The first measure in this area was a Ministers’ Resolution of 1992 on tempo-
rary protection for persons coming from the former Yugoslavia.7 Subsequently,
a Council Resolution setting out general principles for all cases of temporary
protection was adopted in 1995, 8 and a Council Decision establishing a special
emergency procedure to consider temporary protection issues was adopted in
1996.9 While the Ministers’ Resolution was very limited, the 1995 Resolution set
out certain basic principles that were at the heart of later discussions, including
the application of temporary protection regimes where “for instance” there was
a “mass influx” or a “strong possibility” of one; the application of an exclu-
sion clause; the prospect of burden-sharing between Member States, taking into
account their other contributions and their reception capacity; and the non-
application to persons already in a national scheme.
Subsequently, the Commission attempted to move towards more binding
measures on this issue by proposing a Council Joint Action in 1997.10 This pro-
posal would apply wherever there was a “mass influx” or a “strong probability”
of one. It would not apply to persons in an existing national regime and would
leave Member States free to adopt a more favourable degree of protection for
persons. A Council Decision would be taken by a qualified majority on a pro-
posal from the Commission or a Member State to establish protection for speci-
fied groups. There would be no fixed limit for this “temporary” regime, but the
Council could consider phasing it out following each annual report from the
Commission and after five years the Member States “should examine” long-

5 Art. 31(2) of the Directive. Subsequently the Commission must report on the Direc-
tive every five years (so the next report is due at the end of 2009).
7 The text is published in Guild and Niessen, The Developing Immigration and Asylum
Policies of the European Union: Adopted Conventions, Resolutions, Recommenda-
tions, Decisions and Conclusions (Kluwer, 1996), 293-295. For analysis see idem.,
295-309.
8 OJ 1995 C 262/1.
9 OJ 1996 L 63/10.
10 COM (97) 93, 5 Mar. 1997.
456
term measures for the persons concerned. For the first five years of the regime,
Member States had the option to suspend consideration of applications for
asylum. The Council would have to consider assistance to Member States par-
ticularly affected by the situation.
As for the content of the status, Member States would have to issue a
residence authorisation and permit family reunion with spouses and minor
dependent children. Beneficiaries could take up gainful activity with rules on
remuneration, social security and working conditions the same as those apply-
ing to refugees. Similarly, there would be equality with recognised refugees as
regards housing and education, although in the former case Member States
could provisionally offer temporary housing for one year. Member States would
also have to provide for welfare and health.
In its opinion on the proposal,11 the EP argued that there should be a five-
year maximum for any temporary protection regime, with a three-year maxi-
mum on suspending consideration of asylum applications. Beneficiaries should
continue to have the benefits of temporary protection if their application for
asylum was rejected, and their status at the end of the regime should be more
precise. There should be a more definite obligation to provide financial support
for Member States, with redistribution of persons as a back-up. Beneficiaries’
status should be enhanced by the right to free movement within a Member State
and the issue of documents confirming their rights and obligations, but the EP
suggested a weakening of the right to family reunion.
Within the JHA Council, the proposal was welcomed at the May 1997
meeting, but a discussion at the December 1997 Council revealed major divi-
sions over burden-sharing as regards admission and cost and different views on
whether to have more binding rules on this issue. A note from the incoming UK
Presidency asked Member States to consider what foundations there were for
agreement in light of the great divergence of views.12 In light of the difficulties
of negotiations and the position of the EP, the Commission proposed a revised
text of the Joint Action in June 1998, coupled with a parallel proposal for a Joint
Action on “burden-sharing” among Member States.13
This revised text accepted a number of amendments suggested by the EP,
including a maximum five-year period of temporary protection and a three-year
maximum period for suspending claims (with a possible two-year extension).
These provisions were also supplemented by providing that it would be impos-
sible to retain temporary protection status if a person applied for asylum, but
that (as the EP had suggested), temporary protection status would be retained if
the asylum application was rejected. The rules on status were amended only to
11 OJ 1997 C 339/196.
12 Council doc. 13665/97, 23 Dec. 1997. On the outcome of these discussions, see
Council doc. 8053/98, 28 Apr. 1998.
13 COM (98) 372, 24 June 1998; OJ 1998 C 268.
457
provide that persons would have to receive a residence authorisation before they
could enjoy any substantive rights. In the parallel proposal, the Commission
suggested that the principal means of “burden-sharing” should be financial sup-
port, but that movement of people could be considered as an ancillary measure.
The Dublin Convention would apply to responsibility for applications, unless a
Member State suspended consideration of asylum applications.
These new proposals gained wide support from the EP, which pressed for
a maximum of three years’ temporary protection and priority to allocation of
persons, rather than funding. It also pressed again for a document detailing the
rights of beneficiaries and wanted to permit “partners” to enter.14
However, it still proved hard to get agreement in the Council. At the Decem-
ber 1998 JHA Council, most Member States wanted to keep a link between a
temporary protection regime and “solidarity”, most wanted “solidarity” to con-
sist of financial support only, and most believed that decision-making to estab-
lish and terminate a regime should be by a qualified majority vote. However, a
minority took different views on each point and was unwilling to compromise.
To break the deadlock, the German Council Presidency suggested a “pledging
procedure” in which Member States would indicate their capacity to admit per-
sons; this would be linked to financial solidarity.15 The Finnish Presidency fol-
lowed this up with an attempt to restart negotiations on a number of issues,16
but the Council left the issue to one side until the Commission’s proposal the fol-
lowing year. In the meantime, a Joint Action giving modest financial support to
refugees and asylum-seekers, including those entering as a result of the Kosovo
crisis, was adopted.17 Furthermore, during consideration of the proposed tem-
porary protection measures during the Austrian and German Presidencies, the
text on status was watered down so that is was less obligatory and greater stress
was placed on movement of persons than financial support. A readmission obli-
gation and (in line with the EP’s views) a provision on information to the ben-
eficiaries were included.18
Discussions resumed again when the Commission, taking advantage of
the apparent firming of political will on this issue following the Kosovo crisis,
proposed the first EC Directive on asylum law in spring 2000.19 The proposed
Directive followed the structure of the proposed Joint Action, but suggested
14 OJ 1998 C 375/379 and 380.

15 See Council docs. 5645/99 and 7157/99, 31 May 1999.
16 Council doc. 9781/99, 7 July 1999.
17 OJ 1999 L 114/2. See earlier Joint Actions on funding (OJ 1997 L 205/3 and 5 and
OJ 1998 L 138/6 and 8).
18 See Council docs. 12616/98 and 12617/98, 9 Nov. 1998; 5682/99, 1 Feb. 1999; and
5682/1/99, 16 Feb. 1999.
19 COM (2000) 303, 24 May 2000; OJ 2000 C 311 E/251.
458
a two-year maximum for temporary protection. Council decisions could only

follow the proposal of the Commission, not a Member State. Detailed provisions
on a pledging procedure were included, along with rules on solidarity, laying
stress on financial support rather than movement of persons. This was supple-
mented by a separate proposal made some months previously for the creation
of a “European Refugee Fund” which could offer funds to support Member
States applying temporary protection.20 Undoubtedly the later agreement on
this proposal, in September 2000,21 assisted the Council to reach agreement on
the proposed temporary protection Directive. In the new temporary protection
proposal, the rules on the status of persons with temporary protection were
more detailed, as were the provisions on return. Member States would only have
an option, rather than an obligation, to bar temporary protection beneficiaries
from holding the status of asylum-seeker.
Work began on the temporary protection proposal during the French
Council Presidency in July 2000, and detailed discussions showed that Member
States were divided on a number of issues. For example, Austria wanted no
access to employment while Sweden wanted to ensure it; two Member States
wanted the “narrowest possible” family reunion while Sweden wanted it to be
wide. Several Member States objected to the idea that the Council should be
able to decide when use of the temporary protection system was warranted by a
qualified majority vote, given that the normal voting rule for asylum measures
at the time was unanimity. Member States had sharply different views on the
relationship between temporary protection and the Geneva Convention on refu-
gee status, in particular on the prospect of suspending consideration of asylum
applications and therefore preventing persons from simultaneously holding the
status of asylum-seeker and beneficiary of temporary protection. Some wanted
to widen the scope of application of the Directive to evacuation procedures, and
disagreed with limiting the Directive to cases where the asylum determination
system was overloaded by a large number of claims.22
During the Swedish Council Presidency in the first half of 2001, negotia-
tions intensified. The first set of major amendments to the proposal extended it
to apply to evacuation programmes, provided for registration of beneficiaries,
dropped employment equality of beneficiaries, made adult access to education
optional and provided for readmission of those who travelled between Member
20 COM (1999) 686, 14 Dec. 1999; OJ 2000 C 116 E/72.

21 Decision 2000/596/EC (OJ 2000 L 252/12). See Art. 6 of that Decision on the link
with the temporary protection Directive. Subsequently, the Fund has been renewed
from 2005-2010 by a further Decision (OJ 2004 L 381/52); see Art. 9 of that Deci-
sion on the links with this Directive.
22 On discussions during the French Presidency, see Council docs. 10209/00, 17 July
2000; 11495/00, 27 Sep. 2000; 11650/00, 9 Oct. 2000; 13958/00, 11 Dec. 2000.
459
States without authorisation.23 A next set of amendments extended the scope

to cover the threat of mass influx, stated that EU funding would not apply if
Member States extended the regime to other categories of persons, dropped the
obligation to participate in resettlement schemes and redrafted the exclusion
clause so that it closely mirrored Article 1.F of the Geneva Convention.24 Four
questions were then sent to the March 2001 JHA Council, asking if the Direc-
tive should be limited to cases where the asylum system malfunctions, whether
a temporary regime should last longer than two years, whether there should be
an option to suspend asylum applications and whether there should be a second
“pledging procedure” if an influx of persons continued. The Council merely
took note of these points.
The next set of amendments moved the obligation to apply the ECHR and
the Geneva Convention on refugee status to the preamble from the main text.25
At this point, the provisions on family reunion were restructured and it was
unclear whether there was an obligation to admit anyone; moreover, Member
States now had an option, rather than an obligation, to permit children to stay
to complete the school year when the temporary protection regime ended. The
provisions on exclusion were extended to include “particularly cruel actions”
with a political motive as well as grounds based on Article 33 of the Geneva
Convention. Also, the definitions now made it clear that the application of the
Directive was not limited to situations when the asylum system was unable to
process applications. There was also a possible extension of the regime for a third
year on a proposal from the Commission or a Member State and a prospect of
considering the situation and providing further support if the influx of persons
proved larger than originally expected. After a later discussion in SCIFA, the
scope of the Directive was expanded again to cover “imminent” mass influxes, to
permit Member States to give priority in employment to resident third-country
nationals and to draw a distinction between the nuclear and extended family,
with an obligation to admit the former.26
It was now up to the Member States’ EU ambassadors in Coreper to solve
the remaining disagreements between Member States, particularly as regards
decision-making, extension of the temporary regime, employment and family
reunion.27 A series of Coreper meetings resulted in modest amendments to
23 See Council doc. 6128/01, 16 Feb. 2001; for earlier more technical amendments see
Council doc. 6128/01, 15 Jan. 2001.
24 See Council doc. 6552/01, 27 Feb. 2001; see earlier questions sent to SCIFA (Coun-
cil doc. 6303/01, 16 Feb. 2001).
25 Council doc. 6914/01, 19 Mar. 2001.
26 Council doc. 7602/01, 3 Apr. 2001.
27 See Council doc. 7964/01, 18 Apr. 2001.
460
the text,28 and the JHA Council of May 2001 reached an agreement. However,
formal adoption was delayed until July 2001,29 because the German interior
minister believed that his delegation had overstepped its mandate. Various
reservations about the Council voting procedure and the solidarity provisions
were withdrawn and the final changes made consisted essentially of techni-
cal amendments to the provisions on family reunion, the creation of a distinct
clause on legal challenges, allocation of responsibility for asylum applications
to the Member State which has accepted a person’s transfer onto its territory
and acceptance that an extension of the temporary protection regime could only
take place on a proposal from the Commission.
The EP had voted in March 2001 for a number of amendments to the pro-
posal,30 including three which the Council had already agreed to some extent
during negotiations: application of the Directive to evacuation, a reference to
non-refoulement obligations and an extension of the exclusion provisions.31 The
other amendments suggested by the EP, concerning priority for allocation of
persons (rather than use of EC money), immediate assistance to those with pro-
tection needs before deciding on temporary protection status and easier admis-
sion for persons needing temporary protection, were not adopted in any form.
However, the proposal to limit application of the Dublin Convention by allocat-
ing responsibility to the host Member State was subsequently agreed in trun-
cated form. While the EP clearly had a limited impact during discussions on the
Directive, it should be borne in mind that many of the amendments it proposed
to the Joint Actions in 1997 and 1998 are reflected in the final Directive.
3 Legal Analysis
The central question in respect of the temporary protection Directive is com-
patibility with the 1951 Convention on the Status of Refugees and other inter-
national human rights obligations.32 On the one hand, the Directive is at odds
with the 1951 Convention since it permits and seemingly encourages Member
States to delay individual refugee status determination whilst temporary protec-
tion measures are invoked. The 1951 Convention requires Contracting States
to recognise those in need of international protection as refugees. On the other
hand, the Directive could be argued to be an example of a humanitarian mea-
sure, designed to provide status and protection to those who need it in a civil
war or other crisis situation. It is probably fair to observe that if there was a very
28 See room docs. asile 04/01, 27 Apr. 2001; asile 05/01 rev 1, 10 May 2001; asile 6/01,
23 May 2001; and Council doc. 8964/01, 18 May 2001.
29 Directive 2001/55 (n. 1 above).
30 OJ 2001 C 343, adopted 15 Mar. 2001.
31 Compare with Council doc. 6914/01, n. 25 above, which sets out the position as of
5/6 March 2001.
32 On the status of the Convention in EC law, see Ch. 5.
461
significant influx of refugee applicants into a Member State, it may be unlikely

to process applications for refugee status within a short period and it might be
preferable for applicants to at least be granted residence permits and attendant
rights during the waiting period.
The answer to the question about compatibility of the Directive with the
Geneva Convention and other international obligations will be determined by
reference to the circumstances and frequency with which the temporary pro-
tection Directive is invoked. If it is invoked in circumstances where there is no
real likelihood of an overburden on the refugee processing system of a Member
State, but instead is being used as a measure to avoid individual status determi-
nation then the Directive could breach international standards. On the other
hand if the Directive is used in a measured way, and only in exceptional circum-
stances, it is likely to enhance human rights standards.
4 Commentary
4.1 General Observations
It is interesting that the Explanatory Memorandum to the proposal for a Direc-
tive refers to events in Kosovo, since as a matter of international law, this crisis
did not directly involve the responsibility of EU Member States. The crisis was
in fact a humanitarian situation taking place in the non-EU countries bordering
Kosovo, which was likely to implode and might have had repercussions for the
EU in the long run. If the Council is likely to invoke the use of the Directive in
situations which do not involve mass influx into the EU territory but instead a
crisis outside the EU, then the Directive is to be welcomed as a refugee responsi-
bility sharing mechanism. It could be very beneficial for the relieving burdens in
regions of conflict in that it could be used in situations to relieve humanitarian
situations in regions of origin of refugees and the neighbouring regions of war
torn countries.33
Less comfortable is the prospect of the Council invoking the Directive in
situations of perceived mass influx of refugees into the EU. The Member States’
obligations to provide refugee protection to those that require it is well-estab-
lished. In those circumstances, the Directive is plainly a mechanism that could
be invoked by Member States to avoid refugee determination and a mechanism
for delaying decision-making until the circumstances in the refugees’ country
of origin has improved, even if that is temporary or marginal. Whilst refugee
protection under the Geneva Convention is not intended to be permanent, it is
intended to provide protection until change in the refugee’s country of origin is
substantial and sustainable.
33 The definition of mass influx in Article 2(d) of the Directive refers to situations of
large movements of people including where they are evacuated into the Commu-
nity.
462
It is interesting to note that in the time since the Directive came into force,
despite major international conflict during that period in the Middle East,
Afghanistan and Iraq, the Directive has not been invoked. It was always unlikely
that the Council would feel it appropriate to invoke the Directive to bring large
numbers of refugees into the EU from such regions as a humanitarian measure
given their distance from the EU and the fact that instability in those regions
was unlikely to have a direct impact on stability in the EU itself. However it is
also indicative of the fact that despite such large scale conflicts, which resulted
in huge displacement of people in the regions of origin, the EU remained largely
unaffected by such movements. Perhaps this is the result of the reinforcement of
the fortress Europe and the sure sign that border controls are working in stem-
ming the flows of refugees into Europe.
However, what is more likely is that the lack of need to invoke the Direc-
tive is an indication that the Member States have never been the recipients of
mass influxes, or not at least since the Second World War. Refugee flows are far
greater in other parts of the world and the EU receives only a tiny proportion
of the world’s refugees, putting its responsibility sharing shamefully low. The
question remains whether the negotiation of the temporary protection Directive
was ever really justified and whether it will be consigned to the dusty shelves of
unused legislation. Plainly unless it is invoked to aid relief in regions of origin
from severe overburden and humanitarian crisis, its use is unlikely to ever be
properly justified.
4.2 Observations on Specific Provisions in the Directive

It is problematic that the term “mass influx” is very broadly defined in the Direc-
tive, referring only to movements of a large number of persons either sponta-
neously or through an evacuation programme. There is no guidance given as
to what “large number” in this context means. It is not clear what criteria will
affect whether that number is seen as large. Would it for instance be determined
by reference to absolute numbers or by reference to the numbers compared to
the size of population in the relevant Member State? It is unsatisfactory that the
terms used in the Directive are not at least consistent with terms used in other
international arenas.34
Article 17 of the Directive, implicitly permitting Member States to delay
processing of asylum applications, is problematic also for a number of reasons.
First, refugee status is in principle more durable than temporary protection status
and will provide better protection to persons. Second, according to the Direc-
tive on definitions on refugee status, the rights that recognised refugees must be
34 For instance the Council of Europe Committee of Ministers Recommendation No.

R(2000)9 to Member States on Temporary Protection and EXCOM Conclusion
Nos. 19 of 1980 on Temporary Refuge and no.22 of 1981 on Protection of Asylum
Seekers in Situations of Large-Scale Influx
463
guaranteed are far greater than those that are guaranteed under the temporary
protection Directive. Third, the longer that refugee determination is delayed,
the less that individuals remember accurately and more likely that there will
be problems with the consistency and accuracy of accounts given by the appli-
cants. This in turn may lead to real difficulties for Member States in identifying
those who are in need of international protection at the end of the temporary
protection period. Finally, the uncertainty created for the particularly vulner-
able at the end of the temporary protection period may cause further harm to
certain individuals, particularly those with mental health problems. There is a
good argument that their application for refugee status at the very least should
be determined as early as possible to avoid uncertainty and insecurity for those
vulnerable individuals if Member States are to act compatibly with their obliga-
tions under Articles 3 and 8 ECHR.
It might also appear at first sight that Member States could use their discre-
tion, granted by Article 19(1) of the Directive, to preclude persons from enjoying
both asylum-seeker status and temporary protection status, in order to preclude
them from making asylum applications. But this interpretation must be rejected,
since it would undermine the right to submit an asylum application at any time
as set out in Article 17(1) of the Directive, as well as the asylum procedures direc-
tive, which does not provide for any relevant grounds permitting Member States
to preclude persons from making asylum applications. As a derogation from
the normal rule that asylum applications should be examined by the respon-
sible Member State, Article 17 of the temporary protection Directive should be
interpreted as narrowly as possible, so that it only grants a discretion to suspend
consideration of an asylum application, rather than a power to reject it or rule it
inadmissible. In turn, Article 19(1) of this Directive only confers a power upon
Member States to refuse to confer the benefits of temporary protection status
upon an asylum-seeker, rather than a power to refuse to consider a person to be
an asylum-seeker at all. If a Member State applies Article 19(1), and the asylum-
seeker chooses temporary protection status rather than asylum-seeker status, the
asylum application merely remains dormant in accordance with Article 17(1)
of the Directive; it could not be considered explicitly or implicitly withdrawn
pursuant to the asylum procedures Directive.
The lack of a general remedies provision in this Directive is of further con-
cern. Whilst the Directive refers to remedies for those in respect of whom a
Member State has determined should be excluded from temporary protection
by reason of criminal or suspected criminal conduct, there is no express provi-
sion concerning a remedy against the failure to grant temporary protection for
other reasons (except regarding family reunion). It is highly undesirable and
potentially in breach of ECHR obligations, in particular Article 13 ECHR,
for individuals to have no access to a procedure for challenging or questioning
the denial of temporary protection in other circumstances, although it is obvi-
464
ously strongly arguable that the general principles of EC law nonetheless require
Member States to provide for such a remedy.35
4.3 Relationship with other EC Measures on Asylum

The Directive contains a number of express or implied links to other EC legisla-
tive acts on asylum, even though the other measures were all adopted later. It
should be noted that when (or if) the temporary protection Directive is invoked,
the Directive on reception conditions expressly will not apply to the persons
concerned.36 On the other hand, the asylum procedures Directive makes no spe-
cific reference to the temporary protection Directive,37 so presumably Article 17
of the temporary protection Directive would continue to govern the relationship
between the EC temporary protection regime and the asylum procedure. Article
17 appears implicitly to permit (but not require) Member States to suspend con-
sideration of an asylum application where the Directive applies; but neither it,
nor the asylum procedures Directive, nor the qualifications Directive, grant any
authorisation to refuse to consider, or to reject, an asylum application because
the applicant is covered by the temporary protection scheme.38 This is consistent
with the preamble to the temporary protection Directive (point 10), which states
that temporary protection status cannot prejudge refugee status.
The temporary protection Directive also contains a reference to the Dublin
rules as regards responsibility for applications, stating that those rules will apply
to determine responsibility but that in particular, a Member State shall be respon-
sible if it accepts a person’s transfer onto its territory. This criterion does not

36 See Art. 3(3) of the reception conditions Directive (Directive 2003/9, OJ 2003 L
31/18, discussed in Ch. 12). As noted above, Art. 19(1) of the temporary protection
Directive permits (but does not require) Member States to preclude persons from
enjoying asylum-seeker status along with temporary protection status; the result is
that if Member States do allow such concurrent status, national provisions on recep-
tion conditions, rather than EC conditions as set out in the 2003 Directive, would
apply.
37 On the procedures Directive, see Ch. 14.
38 Certain provisions of the asylum procedures Directive (see Ch. 14) allow Member
States to simplify standards, and inter alia to reject claims as inadmissible, if
a person has a status “equivalent to the rights and benefits of ” refugee status as
defined by the qualifications Directive (see Ch. 13). But temporary protection status
is not “equivalent” to refugee status as set out in that Directive, as is evident from
a comparison of the rights and benefits of beneficiaries under the two Directives
(including refugees’ family reunion rights under the family reunion Directive: see
Ch. 19); the lack of equivalence is moreover fundamental because temporary pro-
tection status cannot be renewed beyond three years at a maximum, whereas refugee
status could be renewed indefinitely unless the conditions for application of the ces-
sation clause apply.
465
precisely correspond with any of those set out in the Dublin Convention or its
replacement Regulation;39 it should presumably be regarded as a lex specialis rule
applicable if the temporary protection Directive is ever applied. Finally, there is
a link with the EC’s qualifications Directive,40 as it is provided in the temporary
protection Directive that, as noted above, notwithstanding the rejection of an
asylum application, or an application for another form of protection, an appli-
cant will retain temporary protection status under this Directive. This also has
implications for the operation of the EC legislation on asylum procedures, as a
rejection of the merits or admissibility of an application in combination with the
apparent lack of suspensive effect of an appeal under the procedures Directive
could not result in a person being removed pursuant to the temporary protection
Directive, because of the retention of temporary protection status. Equally, the
proposed Directive on expulsion standards (if adopted) would not be applicable
to persons with temporary protection status under this Directive.41
4.4 Relationship with National Law and Practice

It is worth considering whether any new national systems for temporary protection
can be established following the adoption of this Directive. The Directive is silent
on this issue, although Article 3(4), which makes clear that the Directive does not
apply to persons accepted pursuant to pre-existing national schemes which were
in place before the entry into force of the Directive (on 7 August 2001: see Article
39 On these measures, see Ch. 11; the Reg. was adopted 18 months after the temporary
protection Directive, but makes no reference to it. In the absence of any deroga-
tion, the Eurodac Regulation (see Ch. 10) will also apply to persons with temporary
protection if they apply for asylum, but that would not preclude the operation of
the Directive’s lex specialis rule on responsibility. The combined application of the
family reunion rules in this Directive and the Dublin responsibility rules has not
been thought through and could cause complications in practice: see Peers, “EC
law on family members of persons seeking or receiving international protection” in
Shah, ed., The Challenge of Asylum to Legal Systems (Cavendish, 2005).
40 See Ch. 13.
41 COM(2005) 391, 1 Sept. 2005. In particular, the obligation to issue residence per-
mits pursuant to Art. 8 of the temporary protection directive would preclude con-
sidering temporary protection beneficiaries as “illegally staying” (Arts. 2(1)(b) and
3(b) of the 2005 proposal). The temporary protection Directive is not listed as a
“more favourable” measure trumping the expulsion proposal pursuant to Art. 4(2)
of that proposal, but that list is non-exhaustive (“in particular”). Once temporary
protection has ended, the expulsion proposal (if adopted) could be relevant, sub-
ject to the specific protections laid out in Arts. 21-23 of the temporary protection
Directive. Unfortunately, the list of EC legislation that would trump the obligation
to list a person in the second version of the Schengen Information System is not
expressly non-exhaustive, and does not mention the temporary protection Directive
(Art. 15(2) of proposed SIS II Regulation, COM (2005) 236, 31 May 2005).
466
33), could be taken to have an a contrario effect as regards the application of

national temporary protection schemes after that date. Also, the Directive refers
throughout to the establishment of minimum standards on the issue of temporary
protection, without distinguishing between Community and national schemes. So
it appears that no new national temporary protection schemes can be established
after the deadline to apply the Directive at the end of 2002, unless such national
schemes set higher standards as compared to this Directive for the persons cov-
ered by temporary protection, in accordance with Article 3(5). This interpretation
is also consistent with the EU objectives of creating a Common European Asylum
System and avoiding secondary movements of asylum-seekers (points 1 and 9 in
the preamble), and best reflects the “exceptional” nature of temporary protection
referred to in the preamble (points 2 and 13) and Article 2(a).
The subsequent adoption of further Community legislation casts in doubt
even the ability of Member States to create new temporary protection schemes
that set higher standards than Directive 2001/55. This is because the Directive
on asylum procedures, as noted above, does not contain any express derogation
permitting suspension or rejection of asylum applications pursuant to national
temporary protection schemes. While that Directive also allows Member States
to adopt more favourable rules for individuals, the suspension or rejection of
asylum applications is clearly not more favourable than the consideration of
those claims and the recognition of refugee status. It could be argued that a
national temporary protection regime might confer more generous benefits than
refugee status, subsidiary protection status or asylum-seeker status, and might
protect some persons who would not have a claim to refugee or subsidiary pro-
tection status. But Member States could accomplish the same outcome by the
simpler method of setting higher standards than the minimum standards set out
in Directives 2003/9 and 2004/83 as regards the status of asylum-seekers and the
scope of and benefits attached to refugee or subsidiary protection status, as they
are expressly permitted to do by those Directives. So it follows that Member
States have lost the power, at the latest from 1 December 2007 (the date of appli-
cation of the procedures Directive), to establish a new national temporary pro-
tection regime.
This interpretation is further confirmed again by the objectives of creating
a Common European Asylum System and avoiding secondary movements of
asylum-seekers (referred to in the preambles to all subsequent EC asylum legis-
lation), along with the wording of Directive 2003/9 (which, as noted above, sets
out an exemption for persons covered by the temporary protection Directive,
not national schemes) and of the Community’s successive Refugee Fund Deci-
sions, which referred to national temporary protection schemes in 2000 but only
to persons covered by the temporary protection Directive in 2004.42
42 See Art. 3(4) and (5) of the 2000 Decision (OJ 2000 L 252/12) and Art. 3(4) of the
2004 Decision (OJ 2004 L 381/52).
467

of 20 July 2001
on minimum standards for giving temporary protection in the event of a mass

influx of displaced persons and on measures promoting a balance of efforts
between Member States in receiving such persons and bearing the consequences
thereof
(OJ 2001 L 212/12)
ticular point 2(a) and (b) of Article 63 thereof,
Having regard to the proposal from the Commission
Whereas:
(1) The preparation of a common policy on asylum, including common

European arrangements for asylum, is a constituent part of the European
Union’s objective of establishing progressively an area of freedom, security
and justice open to those who, forced by circumstances, legitimately seek
protection in the European Union.
(2) Cases of mass influx of displaced persons who cannot return to their coun-
try of origin have become more substantial in Europe in recent years. In
these cases it may be necessary to set up exceptional schemes to offer them
immediate temporary protection.
(3) In the conclusions relating to persons displaced by the conflict in the former
Yugoslavia adopted by the Ministers responsible for immigration at their
meetings in London on 30 November and 1 December 1992 and Copenha-
gen on 1 and 2 June 1993, the Member States and the Community institu-
tions expressed their concern at the situation of displaced persons.
(4) On 25 September 1995 the Council adopted a Resolution on burden-shar-

ing with regard to the admission and residence of displaced persons on a
temporary basis, and, on 4 March 1996, adopted Decision 96/198/JHA on
an alert and emergency procedure for burden-sharing with regard to the
admission and residence of displaced persons on a temporary basis.
468
(5) The Action Plan of the Council and the Commission of 3 December 1998
provides for the rapid adoption, in accordance with the Treaty of Amster-
dam, of minimum standards for giving temporary protection to displaced
persons from third countries who cannot return to their country of origin
and of measures promoting a balance of effort between Member States in
receiving and bearing the consequences of receiving displaced persons.
(6) On 27 May 1999 the Council adopted conclusions on displaced persons

from Kosovo. These conclusions call on the Commission and the Member
States to learn the lessons of their response to the Kosovo crisis in order to
establish the measures in accordance with the Treaty.

October 1999, acknowledged the need to reach agreement on the issue
of temporary protection for displaced persons on the basis of solidarity
between Member States.
(8) It is therefore necessary to establish minimum standards for giving tempo-

rary protection in the event of a mass influx of displaced persons and to
take measures to promote a balance of efforts between the Member States
in receiving and bearing the consequences of receiving such persons.
(9) Those standards and measures are linked and interdependent for reasons of
effectiveness, coherence and solidarity and in order, in particular, to avert
the risk of secondary movements. They should therefore be enacted in a
single legal instrument.
(10) This temporary protection should be compatible with the Member States’
international obligations as regards refugees. In particular, it must not pre-
judge the recognition of refugee status pursuant to the Geneva Convention
of 28 July 1951 on the status of refugees, as amended by the New York
Protocol of 31 January 1967, ratified by all the Member States.
(11) The mandate of the United Nations High Commissioner for Refugees
regarding refugees and other persons in need of international protection
should be respected, and effect should be given to Declaration No 17,
annexed to the Final Act to the Treaty of Amsterdam, on Article 63 of the
Treaty establishing the European Community which provides that consulta-
tions are to be established with the United Nations High Commissioner for
Refugees and other relevant international organisations on matters relating
to asylum policy.
469
(12) It is in the very nature of minimum standards that Member States have
the power to introduce or maintain more favourable provisions for persons
enjoying temporary protection in the event of a mass influx of displaced
persons.
(13) Given the exceptional character of the provisions established by this Direc-
tive in order to deal with a mass influx or imminent mass influx of displaced
persons from third countries who are unable to return to their country of
origin, the protection offered should be of limited duration.
(14) The existence of a mass influx of displaced persons should be established

by a Council Decision, which should be binding in all Member States in
relation to the displaced persons to whom the Decision applies. The condi-
tions for the expiry of the Decision should also be established.
(15) The Member States’ obligations as to the conditions of reception and res-
idence of persons enjoying temporary protection in the event of a mass
influx of displaced persons should be determined. These obligations should
be fair and offer an adequate level of protection to those concerned.
(16) With respect to the treatment of persons enjoying temporary protection

under this Directive, the Member States are bound by obligations under
instruments of international law to which they are party and which prohibit
discrimination.
(17) Member States should, in concert with the Commission, enforce adequate
measures so that the processing of personal data respects the standard
of protection of Directive 95/46/EC of the European Parliament and the
Council of 24 October 1995 on the protection of individuals with regard to
the processing of personal data and on the free movement of such data.
(18) Rules should be laid down to govern access to the asylum procedure in the
context of temporary protection in the event of a mass influx of displaced
persons, in conformity with the Member States’ international obligations
and with the Treaty.
(19) Provision should be made for principles and measures governing the return
to the country of origin and the measures to be taken by Member States in
respect of persons whose temporary protection has ended.
(20) Provision should be made for a solidarity mechanism intended to contribute

to the attainment of a balance of effort between Member States in receiving
and bearing the consequences of receiving displaced persons in the event of
470
a mass influx. The mechanism should consist of two components. The first
is financial and the second concerns the actual reception of persons in the
Member States.
(21) The implementation of temporary protection should be accompanied by

administrative cooperation between the Member States in liaison with the
Commission.
(22) It is necessary to determine criteria for the exclusion of certain persons

from temporary protection in the event of a mass influx of displaced per-
sons.
(23) Since the objectives of the proposed action, namely to establish minimum
standards for giving temporary protection in the event of a mass influx of
displaced persons and measures promoting a balance of efforts between
the Member States in receiving and bearing the consequences of receiv-
ing such persons, cannot be sufficiently attained by the Member States and
can therefore, by reason of the scale or effects of the proposed action, be
better achieved at Community level, the Community may adopt measures
in accordance with the principle of subsidiarity as set out in Article 5 of
the Treaty. In accordance with the principle of proportionality as set out in
that Article, this Directive does not go beyond what is necessary in order to
achieve those objectives.
gave notice, by letter of 27 September 2000, of its wish to take part in the
(25) Pursuant to Article 1 of the said Protocol, Ireland is not participating in the
adoption of this Directive. Consequently and without prejudice to Article
4 of the aforementioned Protocol, the provisions of this Directive do not
apply to Ireland.

establishing the European Community, Denmark is not participating in the
adoption of this Directive, and is therefore not bound by it nor subject to
its application,
471
CHAPTER I
GENERAL PROVISIONS
Article 1
The purpose of this Directive is to establish minimum standards for giving tem-
porary protection in the event of a mass influx of displaced persons from third
countries who are unable to return to their country of origin and to promote a
balance of effort between Member States in receiving and bearing the conse-
quences of receiving such persons.
Article 2

(a) “temporary protection” means a procedure of exceptional character to pro-
vide, in the event of a mass influx or imminent mass influx of displaced
persons from third countries who are unable to return to their country of
origin, immediate and temporary protection to such persons, in particular
if there is also a risk that the asylum system will be unable to process this
influx without adverse effects for its efficient operation, in the interests of
the persons concerned and other persons requesting protection;
(b) “Geneva Convention” means the Convention of 28 July 1951 relating to
the status of refugees, as amended by the New York Protocol of 31 January
1967;
(c) “displaced persons” means third-country nationals or stateless persons who
have had to leave their country or region of origin, or have been evacuated,
in particular in response to an appeal by international organisations, and
are unable to return in safe and durable conditions because of the situa-
tion prevailing in that country, who may fall within the scope of Article 1A
of the Geneva Convention or other international or national instruments
giving international protection, in particular:
(i) persons who have fled areas of armed conflict or endemic violence;
(ii) persons at serious risk of, or who have been the victims of, systematic
or generalised violations of their human rights;
(d) “mass influx” means arrival in the Community of a large number of dis-
placed persons, who come from a specific country or geographical area,
whether their arrival in the Community was spontaneous or aided, for
example through an evacuation programme;
(e) “refugees” means third-country nationals or stateless persons within the
meaning of Article 1A of the Geneva Convention;
(f) “unaccompanied minors” means third-country nationals or stateless per-
sons below the age of eighteen, who arrive on the territory of the Member
States unaccompanied by an adult responsible for them whether by law
472
or custom, and for as long as they are not effectively taken into the care
of such a person, or minors who are left unaccompanied after they have
entered the territory of the Member States;
(g) “residence permit” means any permit or authorisation issued by the author-
ities of a Member State and taking the form provided for in that State’s
legislation, allowing a third country national or a stateless person to reside
on its territory;
(h) “sponsor” means a third-country national enjoying temporary protection
in a Member State in accordance with a decision taken under Article 5 and
who wants to be joined by members of his or her family.
Article 3
1. Temporary protection shall not prejudge recognition of refugee status

under the Geneva Convention.
2. Member States shall apply temporary protection with due respect for
human rights and fundamental freedoms and their obligations regarding
non-refoulement.
3. The establishment, implementation and termination of temporary pro-

tection shall be the subject of regular consultations with the Office of the
United Nations High Commissioner for Refugees (UNHCR) and other rel-
evant international organisations.
4. This Directive shall not apply to persons who have been accepted under
temporary protection schemes prior to its entry into force.
5. This Directive shall not affect the prerogative of the Member States to
adopt or retain more favourable conditions for persons covered by tempo-
rary protection.
CHAPTER II
DURATION AND IMPLEMENTATION OF
TEMPORARY PROTECTION
Article 4
1. Without prejudice to Article 6, the duration of temporary protection shall

be one year. Unless terminated under the terms of Article 6(1)(b), it may
be extended automatically by six monthly periods for a maximum of one
year.
473
2. Where reasons for temporary protection persist, the Council may decide by
qualified majority, on a proposal from the Commission, which shall also
examine any request by a Member State that it submit a proposal to the
Council, to extend that temporary protection by up to one year.
Article 5
1. The existence of a mass influx of displaced persons shall be established by

a Council Decision adopted by a qualified majority on a proposal from the
Commission, which shall also examine any request by a Member State that
it submit a proposal to the Council.
2. The Commission proposal shall include at least:

(a) a description of the specific groups of persons to whom the temporary
protection will apply;
(b) the date on which the temporary protection will take effect;
(c) an estimation of the scale of the movements of displaced persons.
3. The Council Decision shall have the effect of introducing temporary protec-
tion for the displaced persons to which it refers, in all the Member States, in
accordance with the provisions of this Directive. The Decision shall include
at least:
(a) a description of the specific groups of persons to whom the temporary
protection applies;
(b) the date on which the temporary protection will take effect;
(c) information received from Member States on their reception capacity;
(d) information from the Commission, UNHCR and other relevant inter-
national organisations.
4. The Council Decision shall be based on:

(a) an examination of the situation and the scale of the movements of
displaced persons;
(b) an assessment of the advisability of establishing temporary protection,
taking into account the potential for emergency aid and action on the
ground or the inadequacy of such measures;
(c) information received from the Member States, the Commission,
UNHCR and other relevant international organisations.
5. The European Parliament shall be informed of the Council Decision.
Article 6
1. Temporary protection shall come to an end:
474
(a) when the maximum duration has been reached; or

(b) at any time, by Council Decision adopted by a qualified majority on a
proposal from the Commission, which shall also examine any request
by a Member State that it submit a proposal to the Council.
2. The Council Decision shall be based on the establishment of the fact that
the situation in the country of origin is such as to permit the safe and
durable return of those granted temporary protection with due respect for
human rights and fundamental freedoms and Member States’ obligations
regarding non-refoulement. The European Parliament shall be informed of
the Council Decision.
Article 7
1. Member States may extend temporary protection as provided for in this

Directive to additional categories of displaced persons over and above those
to whom the Council Decision provided for in Article 5 applies, where they
are displaced for the same reasons and from the same country or region of
origin. They shall notify the Council and the Commission immediately.
2. The provisions of Articles 24, 25 and 26 shall not apply to the use of the
possibility referred to in paragraph 1, with the exception of the struc-
tural support included in the European Refugee Fund set up by Decision
2000/596/EC, under the conditions laid down in that Decision.
CHAPTER III
OBLIGATIONS OF THE MEMBER STATES TOWARDS PERSONS
ENJOYING TEMPORARY PROTECTION
Article 8
1. The Member States shall adopt the necessary measures to provide persons
enjoying temporary protection with residence permits for the entire dura-
tion of the protection. Documents or other equivalent evidence shall be
issued for that purpose.
2. Whatever the period of validity of the residence permits referred to in para-

graph 1, the treatment granted by the Member States to persons enjoy-
ing temporary protection may not be less favourable than that set out in
Articles 9 to 16.
3. The Member States shall, if necessary, provide persons to be admitted to

their territory for the purposes of temporary protection with every facility
475
for obtaining the necessary visas, including transit visas. Formalities must
be reduced to a minimum because of the urgency of the situation. Visas
should be free of charge or their cost reduced to a minimum.
Article 9
The Member States shall provide persons enjoying temporary protection with
a document, in a language likely to be understood by them, in which the provi-
sions relating to temporary protection and which are relevant to them are clearly
set out.
Article 10
To enable the effective application of the Council Decision referred to in Article

5, Member States shall register the personal data referred to in Annex II, point
(a), with respect to the persons enjoying temporary protection on their terri-
tory.
Article 11
A Member State shall take back a person enjoying temporary protection on its
territory, if the said person remains on, or, seeks to enter without authorisation
onto, the territory of another Member State during the period covered by the
Council Decision referred to in Article 5. Member States may, on the basis of a
bilateral agreement, decide that this Article should not apply.
Article 12
The Member States shall authorise, for a period not exceeding that of tempo-
rary protection, persons enjoying temporary protection to engage in employed
or self-employed activities, subject to rules applicable to the profession, as well
as in activities such as educational opportunities for adults, vocational train-
ing and practical workplace experience. For reasons of labour market policies,
Member States may give priority to EU citizens and citizens of States bound
by the Agreement on the European Economic Area and also to legally resident
third-country nationals who receive unemployment benefit.
The general law in force in the Member States applicable to remuneration, access
to social security systems relating to employed or self-employed activities and
other conditions of employment shall apply.
476
Article 13
1. The Member States shall ensure that persons enjoying temporary protec-
tion have access to suitable accommodation or, if necessary, receive the
means to obtain housing.
2. The Member States shall make provision for persons enjoying temporary
protection to receive necessary assistance in terms of social welfare and
means of subsistence, if they do not have sufficient resources, as well as for
medical care. Without prejudice to paragraph 4, the assistance necessary for
medical care shall include at least emergency care and essential treatment
of illness.
3. Where persons enjoying temporary protection are engaged in employed or

self-employed activities, account shall be taken, when fixing the proposed
level of aid, of their ability to meet their own needs.
4. The Member States shall provide necessary medical or other assistance

to persons enjoying temporary protection who have special needs, such as
unaccompanied minors or persons who have undergone torture, rape or
other serious forms of psychological, physical or sexual violence.
Article 14
1. The Member States shall grant to persons under 18 years of age enjoy-
ing temporary protection access to the education system under the same
conditions as nationals of the host Member State The Member States may
stipulate that such access must be confined to the state education system.
2. The Member States may allow adults enjoying temporary protection access
to the general education system.
Article 15
1. For the purpose of this Article, in cases where families already existed in
the country of origin and were separated due to circumstances surrounding
the mass influx, the following persons shall be considered to be part of a
family:
(a) the spouse of the sponsor or his/her unmarried partner in a stable
relationship, where the legislation or practice of the Member State
concerned treats unmarried couples in a way comparable to married
couples under its law relating to aliens; the minor unmarried children
477
of the sponsor or of his/her spouse, without distinction as to whether

they were born in or out of wedlock or adopted;
(b) other close relatives who lived together as part of the family unit at the
time of the events leading to the mass influx, and who were wholly or
mainly dependent on the sponsor at the time.
2. In cases where the separate family members enjoy temporary protection

in different Member States, Member States shall reunite family members
where they are satisfied that the family members fall under the description
of paragraph 1(a), taking into account the wish of the said family members.
Member States may reunite family members where they are satisfied that
the family members fall under the description of paragraph 1(b), taking
into account on a case by case basis the extreme hardship they would face
if the reunification did not take place.
3. Where the sponsor enjoys temporary protection in one Member State and
one or some family members are not yet in a Member State, the Member
State where the sponsor enjoys temporary protection shall reunite family
members, who are in need of protection, with the sponsor in the case of
family members where it is satisfied that they fall under the description of
paragraph 1(a). The Member State may reunite family members, who are in
need of protection, with the sponsor in the case of family members where
it is satisfied that they fall under the description of paragraph 1(b), taking
into account on a case by case basis the extreme hardship which they would
face if the reunification did not take place.
4. When applying this Article, the Member States shall taken into consider-
ation the best interests of the child.
5. The Member States concerned shall decide, taking account of Articles 25

and 26, in which Member State the reunification shall take place.
6. Reunited family members shall be granted residence permits under tempo-

rary protection. Documents or other equivalent evidence shall be issued for
that purpose. Transfers of family members onto the territory of another
Member State for the purposes of reunification under paragraph 2, shall
result in the withdrawal of the residence permits issued, and the termina-
tion of the obligations towards the persons concerned relating to tempo-
rary protection, in the Member State of departure.
7. The practical implementation of this Article may involve cooperation with

the international organisations concerned.
478
8. A Member State shall, at the request of another Member State, provide

information, as set out in Annex II, on a person receiving temporary pro-
tection which is needed to process a matter under this Article.
Article 16
1. The Member States shall as soon as possible take measures to ensure the
necessary representation of unaccompanied minors enjoying temporary
protection by legal guardianship, or, where necessary, representation by an
organisation which is responsible for the care and well-being of minors, or
by any other appropriate representation.
2. During the period of temporary protection Member States shall provide for
unaccompanied minors to be placed:
(a) with adult relatives;
(b) with a foster-family;
(c) in reception centres with special provisions for minors, or in other
accommodation suitable for minors;
(d) with the person who looked after the child when fleeing.
The Member States shall take the necessary steps to enable the placement.
Agreement by the adult person or persons concerned shall be established
by the Member States. The views of the child shall be taken into account in
accordance with the age and maturity of the child.
CHAPTER IV
ACCESS TO THE ASYLUM PROCEDURE IN THE
CONTEXT OF TEMPORARY PROTECTION
Article 17
1. Persons enjoying temporary protection must be able to lodge an application

for asylum at any time.
2. The examination of any asylum application not processed before the end of
the period of temporary protection shall be completed after the end of that
period.
Article 18
The criteria and mechanisms for deciding which Member State is responsible for
considering an asylum application shall apply. In particular, the Member
State responsible for examining an asylum application submitted by a
479
person enjoying temporary protection pursuant to this Directive, shall be

the Member State which has accepted his transfer onto its territory.
Article 19
1. The Member States may provide that temporary protection may not be
enjoyed concurrently with the status of asylum seeker while applications
are under consideration.
2. Where, after an asylum application has been examined, refugee status or,
where applicable, other kind of protection is not granted to a person eligi-
ble for or enjoying temporary protection, the Member States shall, without
prejudice to Article 28, provide for that person to enjoy or to continue to
enjoy temporary protection for the remainder of the period of protection.
CHAPTER V
RETURN AND MEASURES AFTER TEMPORARY
PROTECTION HAS ENDED
Article 20
When the temporary protection ends, the general laws on protection and on
aliens in the Member States shall apply, without prejudice to Articles 21,
22 and 23.
Article 21
1. The Member States shall take the measures necessary to make possible
the voluntary return of persons enjoying temporary protection or whose
temporary protection has ended. The Member States shall ensure that the
provisions governing voluntary return of persons enjoying temporary pro-
tection facilitate their return with respect for human dignity.
The Member State shall ensure that the decision of those persons to return
is taken in full knowledge of the facts. The Member States may provide for
exploratory visits.
2. For such time as the temporary protection has not ended, the Member
States shall, on the basis of the circumstances prevailing in the country
of origin, give favourable consideration to requests for return to the host
Member State from persons who have enjoyed temporary protection and
exercised their right to a voluntary return.
480
3. At the end of the temporary protection, the Member States may provide for
the obligations laid down in CHAPTER III to be extended individually to
persons who have been covered by temporary protection and are benefiting
from a voluntary return programme. The extension shall have effect until
the date of return.
Article 22
1. The Member States shall take the measures necessary to ensure that the
enforced return of persons whose temporary protection has ended and who
are not eligible for admission is conducted with due respect for human dig-
nity.
2. In cases of enforced return, Member States shall consider any compelling

humanitarian reasons which may make return impossible or unreasonable
in specific cases.
Article 23
1. The Member States shall take the necessary measures concerning the con-
ditions of residence of persons who have enjoyed temporary protection
and who cannot, in view of their state of health, reasonably be expected to
travel; where for example they would suffer serious negative effects if their
treatment was interrupted. They shall not be expelled so long as that situa-
tion continues.
2. The Member States may allow families whose children are minors and
attend school in a Member State to benefit from residence conditions allow-
ing the children concerned to complete the current school period.
CHAPTER VI
SOLIDARITY
Article 24
The measures provided for in this Directive shall benefit from the European
Refugee Fund set up by Decision 2000/596/EC, under the terms laid down
in that Decision.
Article 25
1. The Member States shall receive persons who are eligible for temporary
protection in a spirit of Community solidarity. They shall indicate – in
481
figures or in general terms – their capacity to receive such persons. This

information shall be set out in the Council Decision referred to in Article
5. After that Decision has been adopted, the Member States may indicate
additional reception capacity by notifying the Council and the Commis-
sion. This information shall be passed on swiftly to UNHCR.
2. The Member States concerned, acting in cooperation with the competent

international organisations, shall ensure that the eligible persons defined in
the Council Decision referred to in Article 5, who have not yet arrived in the
Community have expressed their will to be received onto their territory.
3. When the number of those who are eligible for temporary protection fol-
lowing a sudden and massive influx exceeds the reception capacity referred
to in paragraph 1, the Council shall, as a matter of urgency, examine the
situation and take appropriate action, including recommending additional
support for Member States affected.
Article 26
1. For the duration of the temporary protection, the Member States shall
cooperate with each other with regard to transferral of the residence of
persons enjoying temporary protection from one Member State to another,
subject to the consent of the persons concerned to such transferral.
2. A Member State shall communicate requests for transfers to the other

Member States and notify the Commission and UNHCR. The Member
States shall inform the requesting Member State of their capacity for receiv-
ing transferees.
3. A Member State shall, at the request of another Member State, provide

information, as set out in Annex II, on a person enjoying temporary protec-
tion which is needed to process a matter under this Article.
4. Where a transfer is made from one Member State to another, the residence
permit in the Member State of departure shall expire and the obligations
towards the persons concerned relating to temporary protection in the
Member State of departure shall come to an end. The new host Member
State shall grant temporary protection to the persons concerned.
5. The Member States shall use the model pass set out in Annex I for transfers
between Member States of persons enjoying temporary protection.
482
CHAPTER VII
Article 27
1. For the purposes of the administrative cooperation required to implement

temporary protection, the Member States shall each appoint a national
contact point, whose address they shall communicate to each other and to
the Commission. The Member States shall, in liaison with the Commission,
take all the appropriate measures to establish direct cooperation and an
exchange of information between the competent authorities.
2. The Member States shall, regularly and as quickly as possible, communi-

cate data concerning the number of persons enjoying temporary protection
and full information on the national laws, regulations and administrative
provisions relating to the implementation of temporary protection.
CHAPTER VIII
SPECIAL PROVISIONS
Article 28
1. The Member States may exclude a person from temporary protection if:
(a) there are serious reasons for considering that:
(i) he or she has committed a crime against peace, a war crime, or
a crime against humanity, as defined in the international instru-
ments drawn up to make provision in respect of such crimes;
(ii) he or she has committed a serious non-political crime outside the
Member State of reception prior to his or her admission to that
Member State as a person enjoying temporary protection. The
severity of the expected persecution is to be weighed against the
nature of the criminal offence of which the person concerned is
suspected. Particularly cruel actions, even if committed with an
allegedly political objective, may be classified as serious non-polit-
ical crimes. This applies both to the participants in the crime and
to its instigators;
(iii) he or she has been guilty of acts contrary to the purposes and
principles of the United Nations;
(b) there are reasonable grounds for regarding him or her as a danger to
the security of the host Member State or, having been convicted by a
final judgment of a particularly serious crime, he or she is a danger to
the community of the host Member State.
483
2. The grounds for exclusion referred to in paragraph 1 shall be based solely

on the personal conduct of the person concerned. Exclusion decisions or
measures shall be based on the principle of proportionality.
CHAPTER IX
FINAL PROVISIONS
Article 29
Persons who have been excluded from the benefit of temporary protection or
family reunification by a Member State shall be entitled to mount a legal chal-
lenge in the Member State concerned.
Article 30
The Member States shall lay down the rules on penalties applicable to infringe-
ments of the national provisions adopted pursuant to this Directive and shall
take all measures necessary to ensure that they are implemented. The penalties
provided for must be effective, proportionate and dissuasive.
Article 31
1. Not later than two years after the date specified in Article 32, the Com-
mission shall report to the European Parliament and the Council on the
application of this Directive in the Member States and shall propose any
amendments that are necessary. The Member States shall send the Com-
mission all the information that is appropriate for drawing up this report.
2. After presenting the report referred to at paragraph 1, the Commission

shall report to the European Parliament and the Council on the application
of this Directive in the Member States at least every five years.
Article 32
1. The Member States shall bring into force the laws, regulations and admin-
istrative provisions necessary to comply with this Directive by 31 December
2002 at the latest. They shall forthwith inform the Commission thereof.
2. When the Member States adopt these measures, they shall contain a refer-
ence to this Directive or shall be accompanied by such reference on the
occasion of their official publication. The methods of making such a refer-
ence shall be laid down by the Member States.
484
Articles 33 and 34 [omitted]
ANNEX I (OMITTED)
ANNEX II
The information referred to in Articles 10, 15 and 26 of the Directive includes to

the extent necessary one or more of the following documents or data:
(a) personal data on the person concerned (name, nationality, date and place
of birth, marital status, family relationship);
(b identity documents and travel documents of the person concerned;
(c) documents concerning evidence of family ties (marriage certificate, birth
certificate, certificate of adoption);
(d) other information essential to establish the person’s identity or family rela-
tionship;
(e) residence permits, visas or residence permit refusal decisions issued to the
person concerned by the Member State, and documents forming the basis
of decisions;
(f) residence permit and visa applications lodged by the person concerned and
pending in the Member State, and the stage reached in the processing of
these.
The providing Member State shall notify any corrected information to the
requesting Member State.
485
Chapter 16 Massive Refugee Flows and Europe’s
Temporary Protection
Geza Tessenyi
1 Scope
“Many commentators have outlined dreadful prospects for the future of Afghan-
istan, using words like ‘Lebanization’, ‘Vietnamization’ or ‘Mongolianization’.
It is an unquestioned fact that if outside powers involved themselves more in
Afghanistan’s economic future and less in its politics, the prospects of both would
be far brighter. Afghanistan needs the help of the international community. The
choice is between abandoning the Afghan people to their fate – which can only
mean more suffering and instability, with disastrous effects for Pakistan – or
providing the resources necessary to help them build a future and induce them to
leave the refugee camps.” 1
Aga Khan’s words, with 11 years of perspective, sadly demonstrate how the
international community and Afghanistan itself managed to exceed, by far, any
pessimistic forecasts concerning the country’s future – and its impact on the
outside world. If there were approximately five million Afghan refugees in Paki-
stan and in Iran in the summer of 1990, the situation in November 2001 was no
better except that the country was at war and civil war, and about five millions of
the Afghani population were seeking protection in other countries. It has been
the largest ethnic refugee group in the world – throughout more than a decade.
It was the Afghans who were turned away from the shores of Australia and it
was the Afghans who tried to cross the English Channel from Calais. It was the
Afghans who stayed forgotten in refugee camps in Pakistan for years and it was
1 Sadruddin Aga Khan: Looking into the 1990s: Afghanistan and other Refugee
Crises, Symposium on International Human Rights Law, Yale Law School, 6-7
April 1990.
Geza Tessenyi
also them who were stuck behind the borders of deadly Afghanistan, unable to
flee through the closed borders. There are promises in the air today that this will
not happen again.
If anything, this was a massive flow during the 1990s, bridging to, and cul-
minating in the year 2001, yet it had no effect on the development of the concept
of temporary protection, as we know it in Europe today. The European concept
has also little to do, except in name, with the American temporary protected
status, as the United States Congress in 1990 amended the Immigration and
Nationality Act.2 The birth of the concept dates back3 to wars in the territory of
the former Yugoslavia and related flows of refugees during the 1990s. For a fuller
treatment of the history and development of the concept, there is sufficient liter-
ature of different academic perspectives available.4 We will dwell in the following
pages on international and mainly pan-European standards as they developed,
concerning temporary protection, leaving aside, as much as possible, the inter-
related subject of solidarity and burden (or responsibility) sharing.5 Some less
known dimensions of this development will also be highlighted.
Not only legal but also some political aspects of the concept of tempo-
rary protection will be considered here. Neither national laws nor international
standards are created in a vacuum or in laboratories: state officials charged with
drafting are usually at least as much aware of the political context as of the
existing legal framework. Yet it is usually the political context that makes many
international drafting exercises confused, slow, inefficient and illogical. If, as the
proverb reads, the camel is a horse designed by a committee, then the horse
might become even more of a distant creature when the committee is an inter-
governmental gathering. Even if the result is not always as bad as the process,
no standards are better than bad standards. International standards are bad if
they lower the level of protection already granted by all or some of the states
involved. And international standards are also bad if they are beautiful on paper
but remain unfeasible or irrelevant for implementation. Therefore, what we seek
2 Section 244.A allowed non-nationals on US territory not to be deported, under

the discretion of the Attorney General, in cases of armed conflict in the country of
origin or environmental disaster there.
3 According to, int. al., Walter Kälin: Reconciling Temporary Protection with Refugee
and Human Rights Law, a study commissioned by the United Nations High Com-
missioner for Refugees, UNHCR (Division of International Protection), “Towards
a Concept of Temporary Protection”, Bern, 12 November 1996.
4 Morten Kjaerum, “Temporary Protection in Europe in the 1990s” 6 IJRL (0000)
000; Kälin, ibid.; Joly, “Temporary Protection within the Framework of a New
European Asylum Regime”, 2 IJHR (0000) 000.
5 Council Directive 2001/55/EC (OJ 2001 L 212/12) uses the term “balance of
efforts”. Both aspects of the Directive, temporary protection and balance of efforts,
are addressed in Ch. 15.
488
Chapter 16 Massive Refugee Flows and Europe’s Temporary Protection
are standards in case of massive and sudden influx which provide adequate pro-
tection for the refugees, but which governments are able and willing to imple-
ment.6
One cannot start from anywhere else than from the 1951 Convention Relat-
ing to the Status of Refugees. As to its aim and applicability today, at a time
of new massive refugee flows in Europe, one might wish to recall a pertinent
legal comment made by a great master of Roman Law, Celsus: “Scire leges non
hoc est, verba earum tenere, sed vim ac potestatem”.7 In 50 years’ perspective, it
should be less relevant to analyze every word of the travaux preparatoires, the
Convention’s drafting process, and more important to see why the international
community still maintains this instrument in 2001. Despite some recent chal-
lenges to an “outdated” instrument,8 yesterday’s and today’s Refugee Conven-
tion is there to provide international protection to those who need it. All forms
of protection, even if considered outside the scope of the Convention, is derived
from, related to, and compared with the Geneva Convention’s definition, sense
and purpose.9
This is why the Convention matters more than its words. Our title uses the
term of massive refugee flows. Beyond a narrow understanding of the words of
6 As Hathaway notes: “Discussions of the crisis in international refugee protection

are frequently characterized by rhetorical excess, in which some ascribe all problems
to malevolent states, while others are equally insistent that fraudulent asylum-seek-
ers are solely to blame … . [the purpose of this study] was to devise a principled yet
pragmatic way to reconcile state interests to the continued importance of access
to asylum for those who need it.” In: “Toward the Reformulation of International
Refugee Law”, Research Report 1992-1997, by James C. Hathaway, York Univer-
sity, Toronto, , p.1.
7 To know the law does not mean to follow its words but to follow its sense and its
purpose – Digesta, 1.3.17.
8 On 16 June 2000, at a European Union Asylum Conference, hosted by the Portu-
guese presidency in Lisbon, the UK Home Secretary, Jack Straw, elaborated on
the need to rethink the Geneva Convention. In a less pronounced manner, prior
to and after the Lisbon Conference some government experts and academics also
advocated a review of the Convention. The UNHCR, using the occasion of the
50th anniversary of the Geneva Convention, launched the process of Global Con-
sultations on International Protection. The consultations followed a three-track
approach and thereby restricted the intergovernmental discussion on the Conven-
tion itself. See also n. 9 below.
9 On 12-13 December, 2001 in Geneva, at the first meeting of the State Parties to the
1951 Convention Relating to the Status of Refugees and/or its 1967 Protocol, a Dec-
laration was adopted which contains paragraph 7 of the Preamble. This is a case-
in-point: “Reaffirming that the 1951 Convention, as amended by the 1967 Protocol,
has a central place in the international refugee protection regime, and believing also
that this regime should be developed further, as appropriate, in a way that comple-
ments and strengthens the 1951 Convention and its Protocol …”.
489
Geza Tessenyi
the Convention definition,10 refugees are, in a broader but still meaningful sense,
people who have been forced to flee their country, crossed one or more interna-
tionally recognized borders and are now in need of the protection of another
state or the international community.11 If international refugee protection makes
any sense, that sense is the effective and meaningful protection of the fundamen-
tal human rights of these people.
2 Evolving International Standards

Officials of the UNHCR would have clearly preferred if, during the early 1990s,
European refugee hosting countries would have granted Convention-based pro-
tection to those persons who fled from former Yugoslavia. The framework had
been pronounced since 1981, by the 32nd session of the Executive Committee
of the Programme of the UNHCR, in Conclusion No. 22 (XXXII) on Protec-
tion of asylum seekers in situations of large-scale influx. EXCOM Conclusion
22 establishes that “asylum seekers forming part of these large-scale influxes
include persons who are refugees within the meaning of the 1951 United Nations
Convention and the 1967 Protocol relating to the Status of Refugees or who,
owing to external aggression, occupation, foreign domination or events seriously
disturbing public order in either part of, or the whole of their country of origin
or nationality are compelled to seek refuge outside that country”.12 EXCOM
Conclusions are not binding instruments of international law but are far more
than UNHCR position papers. The adopted Conclusions reflect a general con-
sensus of a significant number of key refugee hosting states. These are stan-
dards or guidelines for state conduct, not only in a regional but in a universal
context. Therefore, it is important to see that two decades ago states embraced
the concept of regarding, in situations of large-scale influx, Geneva Convention
refugees and refugees in the meaning of the additional refugee definition of the
10 Art. 1 A. of the Convention “… the term “refugee” shall apply to any person
who: … ( 2 ) [As a result of events occurring before 1 January 1951 and] owing
to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country
of his nationality and is unable or, owing to such fear, is unwilling to avail himself of
the protection of that country; or who, not having a nationality and being outside
the country of his former habitual residence [as a result of such events] is unable or,
owing to such a fear, is unwilling to return to it.”
11 Consider alternative titles such as: Massive flows of persons in need, or not consid-
ered in need, of international protection. Or the EU Directive’s version of “mass
influx of displaced persons ... who may fall within the scope of Article 1 of the
Geneva Convention or other ... instruments” – Title and Art. 2 ( c ) of the Direc-
tive, op.cit. It is not a co-incidence that the Global Consultations on International
Protection of the UNHCR addressed the “Protection of refugees (my emphasis) in
situations of Mass Influx.” – see n. 28 below.
12 Section I. General, para 1. (my emphasis)
490
OAU Convention as the same group of asylum seekers.13 And, by inserting the
word “include” in Conclusion 22, it was made clear that other categories than
these two might also be part of the large-scale influx.
Conclusion 22 is not a very ambitious document. It calls upon states only to
admit asylum seekers in large-scale influx situations in the state where they first
seek refuge, at least on a temporary basis and without discrimination, and to
observe the principle of non-refoulement, as contained in Article 33 of the 1951
Convention. The Conclusion is a bit more detailed on the treatment of asylum
seekers and finds that Article 31 of the Geneva Convention14 does not cover all
aspects of such treatment in situations of large-scale influx. Consequently, the
Conclusion lists some “minimum basic human rights standards”:
– restrictions on freedom of movement should only imposed if necessary in
the interest of public health or public order;
– enjoyment of fundamental civil rights;
– reception of assistance and provision of basic necessities;
– prohibition of cruel, inhuman or degrading treatment;
– non-discrimination;
– recognition as persons before the law, free access to courts of law and
authorities;
– accommodation at a safe distance from the frontier of the country of
origin;
– respect for family unity and assistance for tracing relatives;
– special protection for minors, including the unaccompanied;
– permission for free correspondence and for material assistance from friends
and relatives;
– registration, facilitating to obtain a durable solution, transfer of assets;
– the facilitating of voluntary repatriation.
13 Art. 1. para. 2. of the 1969 OAU Convention governing the specific aspects of refu-
gee problems in Africa reads: “The term refugee shall also apply to every person
who, owing to external aggression, occupation, foreign domination or events seri-
ously disturbing public order in either part or the whole of his country of origin
or nationality, is compelled to leave his place of habitual residence in order to seek
refuge in another place outside his country of origin or nationality.”
14 “Article 31 – Refugees unlawfully in the country of refuge – 1. The Contracting
States shall not impose penalties, on account of their illegal entry or presence,
on refugees who, coming directly from a territory where their life or freedom was
threatened in the sense of Article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the authorities
and show good cause for their illegal entry or presence. – 2. The Contracting states
shall not apply to the movements of such refugees restrictions other than those
which are necessary and such restrictions shall only be applied until their status in
the country is regularized or they obtain admission into another country ... .”
491
Geza Tessenyi
Asylum seekers and the UNHCR “shall be” entitled to access to each other and
the UNHCR “shall be” allowed to supervise the well-being of persons in recep-
tion centres.15
The last section (IV) of the Conclusion addresses the large-scale influx
related issues of international solidarity, burden sharing and duties of states.
It is recognized how important links exist between massive or large-scale influx
and international burden-sharing to assist the most affected host countries. This
issue, as mentioned earlier, is not within the scope of our enquiry.
When considering EXCOM Conclusion 22, one may wonder why the inter-
national community, or at least Europe, needed in 1992-93 to embark upon a
discourse on a “new” temporary protection concept. Conclusion 22 was a reflec-
tion in 1981 of large-scale influx situations “in different areas of the world and
especially in developing countries”.16 The Yugoslav and, at that time in particu-
lar, the Bosnian flow happened in Europe. The most affected countries, led by
Germany17 with its 350 000 refugees in one year, made an attempt to develop a
multilateral European burden-sharing scheme in connection with some harmo-
nized “temporary protection” standards of admission and treatment. Officials
of Austria and Germany articulated at every possible opportunity that, in their
view, any international standard on temporary protection in massive influx situ-
ations was meaningless without a burden-sharing arrangement. Less affected
countries, more distant from former Yugoslavia, like France or the UK, were
not amused about developing a scheme and then, as a consequence, receiving
thousands of Bosnian refugees, coming through Germany, Austria, Switzerland
or Sweden.
Yet, there was an interest by European host governments to legitimise,
if possible through UNHCR consent, their developing policies and practices
toward new massive flows. The magic word was: flexibility. Flexibility meant
state discretion in admission, protection, entitlements, reception conditions and
return, instead of applying binding international standards and administrative
and appeal procedures as provided by domestic refugee law. The argument went:
if states had more flexibility (i.e. than the Geneva Convention and national refu-
15 Let us compare in one respect how the language is used in the Conclusion. One of
the difficulties in a drafting process of a non-binding document, such as an EXCOM
conclusion, is how to refer within a “should” oriented text to “shall” that is, to bind-
ing obligations. Conclusion 22 left the prohibition of cruel, inhuman and degrading
treatment only at the “should” level while UNHCR-related entitlements are worded
with “shall”. It sounds like less obligatory not to torture than to allow UNHCR to
supervise.
16 Section I. General, para. 1.of the Conclusion.
17 Germany’s lead does not mean that other countries, Croatia and the Federal Repub-
lic of Yugoslavia in particular, did not have a much greater number of Bosnian
refugees in their territories.
492
gee regimes allowed), they would be able to be more generous in their admission
policies. As access to safety was the number one concern of the UNHCR, could
it have replied: yes, we want to be strict and legalistic, even at the risk of provid-
ing protection and safety for fewer refugees than otherwise possible?
The dilemma for UNHCR was, and has remained ever since, principles versus
people. If you do not compromise on the protection of principles, you might
have to compromise on the protection, particularly the access to safety, of actual
refugees. But if you compromise on principles, you might damage the protection
rights of future refugees and the future of the present refugees. In Europe, the
complementary protection mechanisms offered by the Refugee Convention and
the European Convention on Human Rights have often been compared. The
Refugee Convention, unlike the ECHR, does not have a supranational judicial
entity to interpret the Convention and enforce such interpretation on state par-
ties. The “duty of supervising the application of the provisions” of the Conven-
tion18 is the “strongest” tool for the UNHCR in this respect. Therefore, it is
the interplay among the UNHCR, governments, local politics, public opinion,
which will set the standards for interpretation of the Refugee Convention and
provide with new tools such as temporary protection. Nicholson in this volume
argues that the focus in recent years on temporary and subsidiary protection has
contributed to a potentially dangerous trend toward “the development of paral-
lel asylum regimes to that of the 1951 Convention which risk undermining the
vital protection it affords”.19 Only an international court of refugee law based on
competence, independence and a responsible balancing of interests could solve
such dilemmas. Criticised from all sides as it is, the European Court of Human
Rights shows the example that this, at least in a regional context, is possible.
In the 1992 Note on International Protection,20 the High Commissioner
stated: “... as a result of recent events involving the massive flows of refugees
from the former Yugoslavia, the notion of temporary protection is advocated
as a possible alternative to established asylum procedures.”21 The Note went
on stating that temporary protection requires minimum standards of protec-
tion against discrimination, refoulement, expulsion, basic standards of humane
treatment and fundamental human rights, in particular, family unity. Temporary
protection in “some parts of the world” was connected with safe return.
A series of “Informal meetings on temporary protection” by representatives
of interested governments and international organizations led to some more
elaborated paragraphs on temporary protection in the High Commissioner’s
1994 Note on International Protection. The new Note was more clearly linked
18 Article 35. para. 1 of the Refugee Convention

19 See Ch. 17, p. [000].
20 United Nations High Commissioner for Refugees at the United Nations General
Assembly, New York, 25 Aug. 1992.
21 Para 20, ibid.
493
Geza Tessenyi
with EXCOM Conclusion 22. Beneficiaries of temporary protection were identi-

fied by the UNHCR, such as:
– persons who fled from areas affected by conflict and violence,
– persons exposed to human rights abuses, including ethnic or religious per-
secution,
– persons who fled for other reasons specific to their personal situation and in
need of international protection.22
Basic elements of temporary protection were also proposed by the UNHCR:

– admission to safety in the country of refuge,
– respect for basic human rights in accordance with EXCOM Conclusion
22,
– protection against refoulement,
– repatriation when conditions in the country of origin allow, in safety and
dignity.23
The 1994 Note, in paragraphs 54-55, suggested that an international or a regional

declaration on temporary protection “could in the best cases provide an inspi-
ration for national legislation” and that “[h]armonised regional approaches, of
which the European Union offers the strongest example, are perhaps the most
promising option for strengthening protection”. The Note emphasized the need
to implement the temporary protection regime without prejudice to the 1951
Convention and provide options for consideration of Convention status and
conversion to that status, with all inherent rights and benefits.
In parallel with the informal meetings, a pan-European cum North Ameri-
can and Australian forum, the Council of Europe-hosted Vienna Group of
Senior Officials on pan-European Migration, held a series of meetings. The
lengthy discussions on burden-sharing led to an unpublished document that
coined the b-word not as burden-sharing, not solidarity and not even responsi-
bility sharing, but “collective European co-operation” (sic).
In August 1995, the Intergovernmental Consultations published the
“Report on temporary protection in Europe, North America and Australia”. It
contained 15 country reports and a comparative analysis which identified four
common elements in those states: admission or extension to stay, non-refoule-
ment, basic humanitarian standards and eventual return.
From 1996 onwards,24 with the conclusion of the Dayton Agreement, discus-
sions on temporary protection found a new framework at the UNHCR-hosted
22 Note on International Protection, 1994, para 47.

23 Para 47, ibid.
24 The series of EU documents, from the 1995 Council resolution on burden sharing,
through the 2001 legislation on temporary protection and balance of efforts is not
dealt with here. See Ch. 15.
494
Humanitarian Issues Working Group (HIWG) of the Peace Implementation

Council. In the midst of difficulties of the HIWG to find “safe and dignified”
conditions for Bosnian returns, the Kosovo crisis exploded in the spring of 1999.
On that occasion, HIWG upgraded itself as a forum for regional approaches to
return of refugees in the Balkans.
On Kosovo, it was the Council of Europe’s intergovernmental refugee law
committee25 that held, almost immediately, an extraordinary meeting.26 During
the meeting, participants agreed on main principles on “protection measures
of temporary nature” for persons fleeing Kosovo and addressed the most seri-
ous atrocities occurring on the Kosovo borders with Macedonia27 and Albania
as well as mistakes committed by neighboring and third countries during the
humanitarian evacuation from Macedonia. The adopted Conclusions show that
the main host countries in the Balkans and the UNHCR participated actively
in the drafting of the text. This was in sharp contrast with the EU approach as
western states discussed Kosovo, with Albania, Macedonia and the UNHCR in
absento.
The Preamble of the Conclusions on Kosovo added a dimension of time
through using the term “sudden and massive flows”, as opposed to the ear-
lier notion of “massive” or “large-scale” influx. In the first part (International
protection), the Conclusions put a clear emphasis on the preference for apply-
ing refugee instruments: “Refugees and other persons in need of international
protection fleeing from Kosovo should be granted immediate protection, either
according to the 1951 Convention Relating to the Status of Refugees and its
1967 Protocol or, wherever this is not possible and legislation or practice is so
established, through other protection measures of temporary nature. Individual
claims for refugee status should be examined, at the latest, when protection mea-
sures of temporary nature cease to apply.”
In comparison with the above quoted 1994 Note on International Protec-
tion, the group of “beneficiaries” of temporary protection was significantly re-
defined. The new description of beneficiaries responded to the worry of some
experts that “... the terminology of temporary arrangements may indicate that
the beneficiaries of protection, even while often vaguely defined, are presumed
to be falling outside the definition of refugee in article 1 of the Geneva Conven-
tion.”28 As in the terminology of the 1994 Note on International Protection,
25 Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees

and Stateless Persons (CAHAR).
26 Strasbourg, 26-27 April 1999. The Conclusions were adopted on 27 April by the
Committee of Ministers of the Council of Europe.
27 The official diplomatic name of the Republic of Macedonia is still “the former
Yugoslav Republic of Macedonia “.
28 Vedsted-Hansen: “Temporary Protection: Administrative Tool or Separate Legal
Regime?”, Colloquy on the Legal Protection of Persons in Case of Massive and
495
Geza Tessenyi
there remained enough reason for confusing temporary protection with sub-
sidiary or complementary forms of protection (fleeing for reasons of conflict,
violence, human rights abuses, ethnic or religious persecution, specific personal
protection reasons), the Kosovo Conclusions make it clear that refugees and
other persons in need of international protection should be granted immediate
protection.
In the Conclusions, the minimum standards of treatment mostly echoed
earlier positions:
– admission to safety and non-refoulement,
– respect for basic human rights and dignity, including access to means of
subsistence and possibility for families to stay together and re-unite
– and no return measures applied without internationally verified conditions
of safety and dignity in the country of origin.
There were two new elements in this list. Firstly, the notion of access to “means
of subsistence”, adopted later on also by Council of Europe Recommendation
(2000) 9 on temporary protection, allowed to keep under one roof the host gov-
ernments’ different policies of authorizing (or not) refugees to work while under
temporary protection: access to work (gainful employment or self-employment),
subsidies and accommodation. Secondly, conditions for return must be verified
internationally.
Part 2 of the Conclusions on Kosovo advocated the often criticized concept
of protection in the region (“this would facilitate their future return in safety
and dignity…”). Refugee settlements should be located at a safe distance from
the border. In retrospect, it is easy to say that those worries about the poten-
tial consequences of keeping refugees in the region were ridiculed, within two
months, as hundreds of thousands of ethnic Albanians spontaneously returned
to Kosovo, not waiting for any return assistance from anyone, not even for land-
mine clearance. But the speed and intensity of the Kosovo outflow and return
flow were not characteristic to most other large-scale refugee situations, from
Afghanistan to Bosnia and Herzegovina.
Another concept, new to intergovernmental documents, occurs in the text:
“Refugees should be consulted and encouraged to participate, as far as possible,
in the management of their settlements.”
Facing the consequences of grave humanitarian mistakes during the evacu-
ation process from Macedonia (including the forced separation of families), part
4 dealt with humanitarian evacuation. Humanitarian evacuation is an interest-
ing animal, bred in the wake of the Kosovo crisis. Anybody who would have
thought that taking refugees out of the most refugee-overcrowded neighbor-
ing countries to third countries was burden sharing at its best would have been
wrong. The deed was not re-settlement, either. It was only evacuation to prevent
Sudden Influx, CAHAR, Council of Europe, Strasbourg, 6-7 Sep. 1999.
496
any impression of a longer stay, let alone integration. It was “a means of tempo-
rarily sharing the responsibilities by third countries”.29 The basic rules for such
evacuation included the informed choice of those to be evacuated, the provision
of registration and identity documents, the respect for family unity, no separa-
tion of family members against their will and, finally, the departure of vulner-
able persons but only if medically fit to travel.
Against the prevailing practice of the Yugoslav authorities and paramili-
tary of confiscating or destroying documents of fleeing refugees, registration
and documentation of identity and property became an important issue for the
refugees from Kosovo, as addressed by part 5 of the Conclusions. Part 7 on the
“right to return” remained extremely brief and general. Nobody could foresee
at the end of April 1999 the dramatic wave of “massive and sudden” voluntary
return within such a short time, and to talk in any detail about return in the
midst of the outflow and a raging war would have been seen as a heresy. Instead,
the right to return had to be emphasized as an act of rejection of ethnic cleans-
ing.
The Conclusions were spread the next morning “in the field” in Albania
and Macedonia by UNHCR offices and by some of the local authorities.
3 Consolidating European Standards

For those who believed that temporary protection was a useful method to make
sure that massive and sudden flows would not add up to the large number of
ordinary individual asylum seekers already in western (and central) Europe,
Kosovo was their proof. For most of the refugees, protection was provided in the
neighboring region. Most of them returned quickly to their country. Politically,
the return of the ethnic Albanians from more distant host countries, where they
had arrived either individually or through humanitarian evacuation programs,
was less controversial than returns to Bosnia and Herzegovina. Many of the
Kosovars did not engage in individual asylum procedures and the host countries
saved money on the expensive package of benefits and entitlements that other-
wise could have been linked to their potential refugee status. Even though no
proper solution was found for the much lesser number of “minority returnees”
of Serbian and Roma ethnicity, the numerically greater part of the flux was rela-
tively quickly resolved, from the perspective of host countries.
This experience accelerated the several years-long process of seeking cer-
tain common standards on an already existing practice in some European coun-
tries. The Council of Europe had been under pressure, for some time, from its
own Parliamentary Assembly to “adopt a recommendation to member states
establishing guiding principles for member states’ legislation and practice with
regard to temporary protection” and to “invite the European Union to use the
framework of the Council of Europe in co-operation with UNHCR to co-ordi-
29 Part 4 of the Conclusions on Kosovo.
497
Geza Tessenyi
nate its temporary protection initiatives on a pan-European scale”. The Assem-

bly also asked Member States to “implement these recommendations as soon as
possible and apply them to both future situations and to persons already under
temporary protection.”30
While at the time of the adoption of this Assembly recommendation in
1997 there was some skepticism about the Council of Europe’s ability to estab-
lish an intergovernmental recommendation on such a politically sensitive issue,
the invitation for the EU to use the framework of the Council of Europe seemed
to be beyond realism. By 1999, these doubts fell apart. In the spring of 2000,
the Committee of Ministers of the Council of Europe adopted a relatively com-
prehensive recommendation on temporary protection, though the possibly the
most complicated issue of burden sharing remained nothing more than a vague
desire in the text. However, in the framework of the Council of Europe the aim
of the standard setting exercise was not to establish binding law for the then 40
member states, nor to impose a burden sharing system for this extremely hetero-
genic group of states.
Furthermore, the intended non-binding character of the Council of Europe
draft recommendation and the less formal atmosphere of the Strasbourg discus-
sions enabled EU Member States’ representatives in the CAHAR to sort out
some of the principal questions standing in the way of consensus in Brussels.
Formally speaking, the EU had never “used the framework of the Council of
Europe ... to co-ordinate its temporary protection initiatives”, as the Parliamen-
tary Assembly would have liked it, but, particularly through government experts
representing EU countries both in the EU Asylum Group and in the CAHAR, a
healthy two-way flow of consensus-seeking occurred between the parallel discus-
sions on temporary protection in the EU and the Council of Europe. During the
one year between the adoption of the Council of Europe recommendation (May
2000) and adoption of the EU Directive (July 2001), the European Commission
was able to refer to and quote the adopted Council of Europe recommendation
on temporary protection.31
30 Parliamentary Assembly of the Council of Europe, Recommendation 1348 (1997)

on the temporary protection of persons forced to flee their country, para. 9.i, iii and
iv.l., adopted 7 Nov. 1997.
31 As the Commission’s text was still a proposal, the Council of Europe recommenda-
tion reflected the agreement by all EU member states when adopted in the Com-
mittee of Ministers. For example, at the First meeting of the UNHCR Global
Consultations of the third track: Protection of Refugees in Situations of Mass
Influx (Geneva, 8-9 March 2001), a significant part of the Commission’s distributed
position paper was a list of standards as they appeared in the Council of Europe
recommendation. The Chairman’s summary of this meeting (on page 2) put it in the
following manner: “Temporary protection ... helpful information from the Council
of Europe and European Union Member states, as well as written contribution
from the European Commission, on the concept of temporary protection in Europe
498
The Recommendation (2000) 9 of the Council of Europe32 was a result

of a drafting process by member states’ representatives and the UNHCR. The
answer to “who writes the rules” influenced significantly, in this case too, what
the rules would be.
When the exercise of drafting a recommendation started, the committee
identified a list of “main and disputed issues within the concept of temporary
protection” and tried to address them. The list included ten such issues (some
remained unanswered by Recommendation (2000) 9) but did not include the def-
inition of temporary protection, exclusion from temporary protection and the
separation of combatants / armed elements from other refugees in mass influx
situations.
Yet, a tacit definition emerged from the preamble of the recommendation:
“... in cases of massive and sudden influx of persons in need of international
protection, member states might decide to adopt temporary protection mea-
sures ... [and] ... temporary protection is an exceptional, practical measure, lim-
ited in time and ... it complements the protection regime enshrined in the 1951
Convention and its 1967 Protocol”.33 Perhaps the most important characteris-
tic of this recommendation is that its application is not recommended as such,
but only permissively described by stating that states might decide to adopt such
measures. This corresponds with the UNHCR position circulated at the Global
Consultations34 that “there is nothing inherent in the provisions of the 1951
Convention and 1967 Protocol to preclude it being applied in mass influx situa-
tions” and “... the 1951 Convention can be applied directly in large scale influxes
in countries with developed status determination procedures, and this should be
borne in mind in the context of developing further strategies to address these
situations”. Consequently, in the end of the preamble it is made clear that the
recommendation is only a set of certain minimum guarantees for the persons
concerned (i.e. for the refugees) in relation to those member states which apply
or wish to apply temporary protection measures.
The other important characteristic of this non-definition is that it separates
temporary protection as a purely quantitative (“practical”) and exceptional
measure that might be applied in cases of massive and sudden influx. In other
words, temporary protection should not be considered a qualitative protection
category or “parallel asylum regime” as an alternative to refugee protection or
even subsidiary or complementary forms of protection despite the use of the
somewhat confusing verb “complement”. The third important characteristic of
and the harmonization process under way there which was recognized as comple-
mentary to the Global Consultations”.
32 Recommendation No. R (2000) 9 of the Committee of Ministers to member states
on temporary protection, adopted by the Committee of Ministers on 3 May 2000.
33 Sixth and seventh paragraphs of the preamble.
34 EC/GC/01/4, 19 Feb. 2001, para 17-18
499
Geza Tessenyi
the non-definition is how temporary protection is positioned in relation to the

Convention regime.
The list of “main and disputed issues” began with the situation in the coun-
try of origin which justifies temporary protection measures, and continued, in
the third place, with the scope of beneficiaries which had to correspond with the
reasons of flight. Recommendation (2000) 9 remains general when allowing the
adoption of temporary protection measures by Member States only in cases of
massive and sudden influx of persons in need of international protection. These
cumulative criteria seem to be more refugee-friendly than the EU Council Direc-
tive which calls for temporary protection “in the event of mass influx or immi-
nent mass influx” and listing country of origin situations such as Convention
reasons and, in particular, armed conflict or endemic violence and generalized
violations of human rights.
The term “massive influx” probably cannot be clearly defined in abstracto
and its legal meaning is questioned by some experts.35 The EU Directive leaves
it to the decision of the Council adopted by a qualified majority whether there
is an existence of a mass influx of displaced persons. In contrast, the Council of
Europe, having no such authority with extensive powers in its intergovernmental
framework, did not even try to define “massive and sudden influx” as such.
The second of the list of issues dealt with the question of which national or
international authority should establish temporary protection measures. There
is no explicit provision in Recommendation (2000) 9 concerning which national
authorities should be in charge but the close links with the asylum procedure
as established by the recommendation would clearly point toward those “com-
petent national authorities” or “competent authorities of the host country”36
which are responsible for determining asylum claims. The consultation with the
UNHCR as with the leading international protection agency, when initiating
and phasing out temporary protection measures, is recommended.37
Admission to territory and authorisation to remain there is the next point
on the list. The preamble reads that the Committee of Ministers is anxious to
preserve the institution of asylum and to ensure that persons who need inter-
national protection have the possibility to seek and enjoy such protection with
full respect for their fundamental human rights and dignity. While the text shies
away from quoting exactly Article 14 paragraph (1) of the Universal Declara-
tion of Human Rights,38 the reference to the full respect for fundamental human
rights paves the way for admission to the territory of the country where they seek
35 For example, Arthur Helton, at the Council of Europe/CAHAR Colloquy, Stras-

bourg, 6-7 Sep. 1999.
36 Paras. 1 and 9, respectively, n. 32 above.
37 Paras. 1 and 11, ibid.
38 “Everyone has the right to seek and enjoy in other countries asylum from persecu-
tion.”
500
protection. This is reinforced by paragraph 1 of the recommendation. Accord-

ing to the Explanatory Memorandum, in massive influx situations formalities
should be simplified as much as possible, as they should not work to the detri-
ment of the safety of persons in need of international protection. Respect must
be guaranteed for fundamental rights and liberties, in particular the principle of
non-refoulement, the prohibition of torture or inhuman or degrading treatment
or punishment and the principle of non-discrimination, as part of basic stan-
dards of treatment of such persons.39 The recommendation, unlike the Kosovo
Conclusions and the EU Directive, falls short of calling for “immediate admis-
sion” or “immediate protection”. This can be considered as one of the clearest
weaknesses of the text. Paragraph 2 of the recommendation provides with “swift
registration” and permission to remain in the territory of the host country for
the duration of temporary protection measures. The freedom of movement of
the beneficiaries of temporary protection should not be unnecessarily restricted.
Restrictions of the freedom of movement were described in the Explanatory
Memorandum as the safety and well being of the beneficiaries and the security
needs of the host country.
The duration of temporary protection was the next issue. One can see in the
analysis of the EU Directive that no international text, or even the UNHCR,
is able to give a clear time-limit to measures designed to serve the “flexibility”
argument of host governments which prefer to apply in massive and sudden
influx situations first temporary protection measures, rather than the 1951 Con-
vention framework. The Directive’s gradual time-limits add up to a maximum
of 3 years. In contrast, in Recommendation (2000) 9 “a prolonged period of
time without change in the relevant circumstances in the country of origin”
is foreseen.40 Depending on the reader, the Explanatory Memorandum’s cor-
responding words could be interpreted as cynical or reasonable.41 However, it
will be worth comparing the notion of this prolonged period of time with the
way the recommendation addresses deadlines for the examination of asylum
requests, submitted by persons benefiting from temporary protection. This issue,
39 Paragraph 12 of the Explanatory Memorandum to Recommendation (2000) 9.

40 Para 10 of Recommendation (2000) 9.
41 “At the time of the drafting of this recommendation, proposals for how long this
prolonged period could last ranged from six months to five years. It was recog-
nised that it was not the task of this recommendation to arbitrarily draw an ideal
time limit to temporary protection for all member states, nor to settle at the lowest
common denominator. The particular circumstances of a specific group of persons
under temporary protection, those of the specific situation which have given rise to
the massive and sudden influx and those of the host country all can legitimately play
an important role in deciding about the length of temporary protection in a given
case.” – Para 21 of the Explanatory Memorandum.
501
Geza Tessenyi
according to the logic of chronology, appeared lower on the list but we will look
at it here.
There existed different practices in member states on how to deal with indi-
vidual asylum applications at the time of massive and sudden influx situations.
Some of the member states simply processed them. Some other states allowed
in their legislation the suspension of examination of asylum requests while the
applicants were under temporary protection. Suspension of examination is one
thing, rejection of examination is quite another. The “development of parallel
asylum regimes” was indeed a risk when asylum seekers in some European coun-
tries were offered and encouraged to trade in their right to seek asylum in the
framework of the 1951 Convention in exchange for lower but immediate benefits
under the temporary protection framework. This was particularly dangerous,
as for a “genuine refugee” safety, no doubt, was the first concern. If the refugee
accepted immediate safety in the form of temporary protection, he/she would
have renounced the right to seek refugee protection in the long term. However
broadly Recommendation (2000) 9 tried to accommodate different national leg-
islations and practices, this latter did not surface as an acceptable variation of
state practice in the text.
But, by stating that “... suspension of examination [of individual asylum
applications] should not last longer than can reasonably be justified by the
exceptional circumstances”,42 the recommendation pointed at a new direction.
If the original argument in favor of introducing temporary protection mea-
sures was serious that a sudden and massive influx would have overburdened
national asylum procedures, then one could hardly maintain throughout years
that not examining asylum applications at all was “reasonably justified”. There-
fore, if this provision was earnestly implemented, the practice of not dealing
with asylum applications until temporary protection ended would be completely
undermined.
The next item on the list was the treatment of vulnerable persons whose
protection and assistance needs, according to the recommendation, “should be
met, to the extent possible”.43 This laconic statement would not offer high guar-
antees for the persons concerned who, in the Explanatory Memorandum, were
identified as persons including victims of torture, abuse or sexual violence, single
heads of households, unaccompanied elderly and minors, the seriously ill or
injured and the disabled.
On the issue of entitlements to beneficiaries of temporary protection, apart
from the right to family reunion, four areas were considered by the recommen-
dation:
– access to adequate means of subsistence, including accommodation,
– access to appropriate health care,
43 Para 5, ibid.
502
– access to education for children of the beneficiaries and

– access to the labour market in conformity with national legislation.44
The last indent was meant to be a contradiction in terms. The words “in confor-
mity with national legislation” meant that in some Member States national leg-
islation prevents beneficiaries of temporary protection from access to the labour
market. On family reunion, the recommendation simply refers to another rec-
ommendation of the Council of Europe.45 Starting from the relevant case law
of the European Court of Human Rights and the principle that “members of
separated families can only enjoy their right to respect for family life through the
reunion of family members in a country where they can lead a normal family life
together,”46 Recommendation (99) 23 arrives at a disappointingly narrow defini-
tion of family members which include only the spouse, dependent minor chil-
dren and other relatives according to the recognition by domestic legislation or
practice in the member states, and ignores relevant European case law on family
links based on exclusive dependency and other considerations. Rights and enti-
tlements of joining family members, according to this recommendation, should
be the same as those of the original beneficiaries (refugees and other persons in
need of international protection).
As international solidarity and co-operation deserved only two rather
general provisions in Recommendation (2000) 9, we turn to the last “main and
disputed issue” on the list: return, integration and resettlement. Leaving aside
integration and resettlement, the recommendation entertained only return as the
main motivation behind the introduction of temporary protection measures in
some member states. As these measures cease to apply when the circumstances
in the country of origin have changed in a manner which enable the return in
safety and dignity,47 the first category of return is voluntary. It should be facili-
tated, through all available means, but the decision of the returnee should be
well-informed, which may include visit to the country of origin. The country of
origin should treat returnees with full respect for their human rights and dignity,
and respect their right to return. Compelling humanitarian reasons which would
make return impossible or unreasonable should be considered by host member
states.
In the end of this brief and selective survey which does not analyze the cor-
responding EU directive, one could conclude that the Refugee Convention could
44 Para 3, ibid.
45 Recommendation (99) 23 of the Committee of Ministers to member States on
family reunion for refugees and other persons in need of international protection,
adopted by the Committee of Ministers on 15 December 1999.
46 The fifth paragraph of the preamble of Recommendation (99) 23.
47 Para 9 of Recommendation (2000) 9.
503
Geza Tessenyi
continue to serve well during massive and sudden outflow situations48 – in other
words, temporary protection would not be necessary – but temporary protection
is already here with us in Europe and probably will not go away quickly. If this
means that protection in massive influx situations moved from the mostly legal
towards the partly political (remember flexibility), then, firstly, the judicial prac-
tice of national courts and the European Court of Human Rights has an impor-
tant role to play in offering the safety net of refugee law, human rights law and,
to some extent, humanitarian law for those who need international protection.
Secondly, if the flexibility option is chosen by governments, it also requires
the backup of political credibility. In a democratic society, no policy decision
can be credible if those people who are most affected by the policy have no say
in its formulation and implementation at all. If the UN High Commissioner’s
“action” for the “identification and promotion of a global governance struc-
ture for refugees” and the “need to assist all States in establishing good gover-
nance for refugees”49 would result in a substantial involvement of refugees in
that governance structure, that would be a long due achievement. The refugee
protection regime acutely suffers from its democratic deficit of lacking refugee
participation. In massive influx situations it is even more striking that, occasion-
ally, the fate of hundreds of thousands of refugees is decided by everyone else
but themselves. In massive refugee situations in particular, representation of the
displaced in decision making processes is not a luxurious nuance but a necessity
for solutions that work and for policies that deserve credit. As previously said,
what the rules are is significantly influenced by who writes them.
The UNHCR, with the support of a sympathetic UN Secretary General,
could be the best facilitator for refugees quickly to develop everywhere their
own representation structures, as part of the good governance, provided for and
through them, by the international community. Without the genuine participa-
tion of the principal actor, governance just cannot be good.
48 As Goodwin-Gill underlines, “our inability to deal effectively with many of today’s

problems cannot be traced to any real or apparent defect in the 1951 Convention”
– 13 IJRL(0000) 2.
49 “UNHCR 2004”, Memorandum from the High Commissioner, April 28, 2001, pp
1 and 2.
504
Chapter 17 Challenges to Forging a Common European
Asylum System in Line with International
Obligations
Frances Nicholson*
1 Introduction
On 1 May 2004, 10 new States joined the European Union (EU), extending the
borders of the EU significantly both eastwards and southwards and bringing the
number of Member States to 25. The same date also marked the end of the first
phase of the creation of the Common European Asylum System, agreed upon
by EU leaders at the Tampere summit in October 1999, thus marking the expiry
of the five-year transitional period applicable to the adoption of EC immigra-
tion and asylum law. The instruments approved during this phase essentially
establish minimum standards for a common asylum policy within the EU and
are among the “building blocks” of what has more popularly and critically been
called “fortress Europe”. The second phase now involves their transposition
into the national law of Member States insofar as the minimum standards they
establish are not already in place. The longer-term goal is defined as a common
asylum procedure and a uniform status for those who are granted asylum valid
throughout the Union.1
Achieving agreement on this first phase involved sometimes fundamental
compromises, particularly as the May 2004 deadline loomed and agreement on
* MA, MPhil, Cambridge, UK, currently working as a consultant for the Department
of International Protection, Office of the United Nations High Commissioner for
Refugees, Geneva. Thanks go to Ivor Jackson, Sibylle Kapferer, Anja Klug, Susin
Park and Volker Türk for their helpful and detailed comments on earlier versions of
the chapter, as well as to other colleagues who have also provided useful informa-
tion. The views expressed are the personal views of the author and may not neces-
sarily be shared by the United Nations or UNHCR.
1 European Council, Presidency Conclusions, Tampere, Oct. 1999, (see Annex 4),
para. 15.
Frances Nicholson
key directives remained elusive. It now remains to be seen how these will be
implemented in practice. The way in which even the minimum standards set
out in the draft instruments originally presented by the European Commission
were whittled down in the Council of Ministers does not, however, augur well
for certain key principles and obligations of international refugee protection
established over the last half century or more, in particular since the adoption
of the 1951 Convention relating to the Status of Refugees. Yet these obligations
are ones by which all Member States are bound as parties to the 1951 Conven-
tion and key human rights treaties. This chapter analyses some of the concerns
this process has raised, as well as outlining major challenges that States, asylum
seekers, refugees and the international refugee protection regime itself face as
the Common European Asylum System moves into its second phase.
2 Early Impetus for and Experience of Harmonisation

The process of harmonising Member States’ policy and practice on asylum has
been under way since the mid-1980s, but it is worth re-examining briefly some of
the factors driving this process. Initially, the impetus towards harmonisation was
part of the move to establish a single internal market involving, last but not least,
the free movement of people throughout the Member States.2 More recently and
comprehensively, these steps have formed part of a process of establishing “an
area of freedom, security and justice”.3
Among other factors was the need perceived by EU Member State govern-
ments to cooperate in addressing concerns arising from what at the time was a
growing number of asylum seekers seeking to reach EU countries, not least as a
result of the changed global situation since the end of the Cold War.4 (Latterly,
however, the numbers of people seeking asylum in the EU have fallen signifi-
cantly, with a fall of 19 per cent being registered in 2004 as compared with 2003,
and a further fall of 16 per cent in 2005, bringing applications to the lowest
level since 1998.) Another factor contributing to the perceived need to coordi-
nate policies has been the increasing possibility for travel over long distances. In
the particular western European context, the conflicts in the former Yugoslavia
in the 1990s – on the EU’s doorstep – also prompted collective action by EU
Member States, notably on temporary protection.
2 See the 1986 Single European Act, which set a deadline of 1992 for the establish-
ment of a “Europe without frontiers”.
3 Consolidated Version of the Treaty Establishing the European Community (includ-
ing changes made by 1997 Treaty of Amsterdam, hereafter “EC Treaty”), Article
61. See also, European Commission, “Towards a Common Asylum Procedure and
a Uniform Status, Valid Throughout the Union, for Persons Granted Asylum”,
(COM(2000) 755, 22 Nov. 2000).
4 UNHCR, “Asylum Levels and Trends: Europe and Non-European Industrialized
Countries, 2003”, 24 Feb. 2004.
506
Chapter 17 Challenges to Forging a Common Euuropean Asylum System
Increasingly, it had also become evident that asylum policy and practice dif-
fered quite widely from one Member State to another and that this was hamper-
ing the efficient operation of Member States’ asylum systems. The proportion
of asylum seekers from certain countries of origin recognised in different States
sometimes varies significantly, while interpretations of various aspects of the
refugee definition also differ. These range from differing interpretations of obli-
gations towards those fearing persecution by non-State agents5 or gender-related
persecution to different approaches as regards the internal flight or relocation
alternative for persons fleeing generalised violence. A variety of complementary
or subsidiary statuses, generally offering less security and fewer rights than are
available to refugees, were also being increasingly used by Member States.6 Addi-
tionally, such diverging policies and practices have been among factors which
mean that refugees do not necessarily enjoy comparable security of status or
standards of treatment throughout the EU and may seek to move onwards if
their status is not secure. These differences have also undermined the effective-
ness and viability of efforts to share burdens and responsibilities for hosting
refugees and asylum seekers among EU Member States.
In response to these developments, EU Member States first focused on
measures to divert and deter non-citizens from gaining access to territory and
on efforts to enhance the efficiency of asylum procedures. Approaches have
involved the introduction of visa requirements and carrier sanctions, the con-
clusion of readmission agreements, the introduction of admissibility procedures
and/or accelerated procedures for claims deemed to be manifestly unfounded,
restrictions on freedom of movement, including increased use of detention, and
reductions in assistance provided to asylum seekers. Such measures have had the
effect of restricting asylum seekers’ and refugees’ access to asylum procedures
in the EU and ultimately to international protection. These approaches were
adopted first at the national level in a number of Member States and then in
the context of the EU harmonisation process. This phenomenon can be seen as
spreading from the bottom up rather than from the top down, thus belying what
some have described as the “myth of a Brussels dictate”.7
Initial efforts to harmonise asylum policy at the EU level were undertaken
on an intergovernmental and generally non-binding basis. The 1990 Dublin Con-
5 See generally, Türk, “Non-State Agents of Persecution”, in Chetail and Gowlland-

Debbas, eds., Switzerland and the International Protection of Refugees (Kluwer,
2002), 97; European Council on Refugees and Exiles (ECRE), “Research Paper on
Non-State Agents of Persecution”, Sep. 2000.
6 See generally, European Commission, “Towards a Common Asylum Procedure”, n.
3 above.
7 As pointed out in Byrne, Noll and Vedsted-Hansen, “Understanding Refugee Law
in an Enlarged European Union”, 15(2) European Journal of International Law
(2004) 355 at 361 and 378.
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Frances Nicholson
vention, as an example of a binding instrument, defined criteria for determining

the State responsible for examining asylum claims presented in an EU Member
State.8 It is predicated upon assumptions that Member States are entitled to pool
responsibility for assessing asylum claims and that the asylum systems of EU
States offer comparable levels of protection.9 The 1990 Schengen Convention
sets out common rules and procedures to establish a single external border and
permit the abolition of checks at internal borders.10 Among the non-binding
agreements concluded at this time by European Community immigration minis-
ters were the three “London Resolutions” of 1992.11
The tendency has generally been in the direction of lower standards, with
restrictive concepts and practices, such as the safe third country notion or the
safe country of origin concept,12 being “exported” from one Member State to
another and even beyond, as outlined in sections 10 and 11 below. The legis-
lation and practice of Member States have not thus far converged sufficiently
to reduce differences in asylum policy and practice. One result has been that
Member States have found their energies diverted away from substantive assess-
ment of claims into examining these differences of both law and practice both
among themselves, as well as vis-à-vis neighbouring non-Member States. Courts
in a number of European States have, for instance, determined neighbouring
non-Member States not to be safe third countries.13 The operation of the Dublin
8 1990 Dublin Convention Determining the State Responsible for Examining Appli-
cations for Asylum Lodged in One of the Member States of the European Commu-
nities. See also below under “10) The consequences of EU enlargement”, for further
discussion of this issue.
9 See E. Guild, “Seeking Asylum: Storm Clouds Between International Commit-
ments and EU Legislative Measures”, 29(2) European Law Review (2004) 198 at
206. Indeed, the Dublin Convention and its successor the Dublin II Regulation, see
n. 19 below, go further and permit Member States to return an asylum seeker to a
third country as long as this is in compliance with the 1951 Convention (Articles
3(5) and 3(3) respectively).
10 1990 Schengen Convention Applying the Schengen Agreement of 14 June 1985 on
the Gradual Abolition of Checks at their Common Borders.
11 Conclusion on countries in which there is generally no serious risk of persecution;
Resolution on manifestly unfounded application for asylum; Resolution on a har-
monised approach to questions concerning host third countries, all approved by the
Council of (Immigration) Ministers, London, 30 November–1 December 1992. For
the texts, see Plender, ed., Basic Documents on International Migration Law (Marti-
nus Nijhoff, 1999), 472–80.
12 For a brief outline of these concepts see, UNHCR, “Asylum Processes (Fair and
Efficient Asylum Procedures)”, EC/GC/01/12, 31 May 2001.
13 Examples of such rulings are in Austria where the second instance asylum author-
ity, the Independent Federal Asylum Senate, has found in a majority of cases that
Hungary, Czech Republic and the Slovak Republic were not safe third countries,
508
Convention has also proved problematic, with courts in a number of Member

States barring transfers under Dublin on the grounds that this would be contrary
to that State’s non-refoulement obligations under international law.14 Perhaps the
most prominent of these was the admissibility decision of the European Court
of Human Rights in T.I. v. United Kingdom, which ruled that
indirect removal in this case to an intermediary country, which is also a

Contracting State [to the 1950 European Convention for the Protection of
Human Rights and Fundamental Freedoms], does not affect the responsibility
of the United Kingdom to ensure that the applicant is not, as a result of its
decision to expel, exposed to treatment contrary to Article 3 of the Conven-
tion. Nor can the United Kingdom rely automatically in that context on the
arrangements made in the Dublin Convention concerning the attribution of
responsibility between European countries for deciding asylum claims. Where
States establish international organisations, or mutatis mutandis international
agreements, to pursue co-operation in certain fields of activities, there may be
implications for the protection of fundamental rights. It would be incompat-
ible with the purpose and object of the Convention if Contracting States were
thereby absolved from their responsibility under the Convention in relation to
the field of activity covered by such attribution.15
while the Slovenian Supreme Court found Croatia not to be a safe third country in
2000, prompting the government to remove Croatia from its list of safe third coun-
tries in mid-2002.
14 See, for example, UK House of Lords, R. v. Secretary of State for the Home Depart-
ment, ex parte Adan and R. v. Secretary of State for the Home Department ex parte
Aitseguer, 19 Dec. 2000, [2001] 1 All ER 593 (both cases concerning differing inter-
pretations concerning the agent of persecution in the UK vis-à-vis Germany and
France respectively); Austrian Supreme Court, G 117/00-8, G 146/00-6, G 147/00-6,
8 Mar. 2001 (concerning the transfer of an asylum-seeker to Italy under the Dublin
Convention and ruling that Austria must assume responsibility for assessing the
claim if Articles 3 or 8 of the 1950 European Convention on Human Rights would
otherwise be violated); Swedish Alien Appeals Board, Minority Bosnians Case, 2
June 1998 (concerning differing practice in Germany regarding the internal flight
alternative, resulting in Swedish government granting humanitarian status in June
2000). More generally, see also European Commission, Evaluation of the Dublin
Convention, SEC(2001) 756, 13 Jun. 2001; Marinho, ed., The Dublin Convention on
Asylum: Its Essence, Implementation and Prospects (EIPA, 2000); Hurwitz, “The
1990 Dublin Convention: A Comprehensive Assessment” 11 IJRL (1999) 646.
15 European Court of Human Rights, T.I. v. United Kingdom, Application No.
43844/98, Decision as to Admissibility, 7 Mar. 2000, p. 15.
509
Frances Nicholson
3 Title IV of the EC Treaty

It is against this background that the Treaty of Amsterdam16 inserted into the
Treaty establishing the European Community (EC Treaty) a new Title IV con-
cerning matters relating to visas, asylum, immigration and other policies related
to the free movement of persons. This change marked a major shift in the
Union’s mode of operation as regards asylum policy. From being conducted at
intergovernmental level under what was known as the “third pillar” and charac-
terised by a strong element of political expediency and lack of transparency, this
shifted to become an inter-Union process under the “first pillar”.17 As a result,
the Commission has a right to initiate legislation and there has been greater
openness – at least at the initial stages – even while political interests continue to
exert significant influence over decision-making.
Article 61 of the EC Treaty sets an objective of establishing progressively
an “area of freedom security and justice”. Article 63 sets out the new measures
on asylum to be approved within five years of the entry into force of the Treaty,
which took place on 1 May 1999.18 It thus required agreement by 1 May 2004
on (a) criteria and mechanisms for determining the Member State responsible
for considering asylum applications, established under the “Dublin II” Regula-
tion,19 changing (but not fundamentally altering) the 1990 Dublin Convention;
(b) minimum reception standards;20 (c) minimum standards for qualification as a
refugee or as someone enjoying subsidiary protection;21 (d) minimum standards
16 1997 Treaty of Amsterdam amending the Treaty on European Union, the Treaties
Establishing the European Communities and certain related Acts.
17 It was the 1992 Maastricht Treaty on European Union which first formally estab-
lished a second and third intergovernmental “pillar” of the EU. The EU’s common
foreign and security policy came under the second pillar, while justice and home
affairs matters came under the third until the Treaty of Amsterdam brought such
matters under the main “first pillar”.
18 A number of measures are not subject to the five-year deadline. These are listed in
Articles 63(2)(b), 63(3)(a) and 63(4) EC Treaty and concern measures promoting a
balance of effort between Member States, on conditions of entry and residence and
defining the rights and conditions under which nationals of third countries legally
resident in a Member State may reside in other Member States. It would seem that
these measures had lower priority in the eyes of Member State governments.
19 Council Reg. 343/2003 on responsibility for asylum applications (OJ 2003 L 50/1),
effective since 1 Sep. 2003.
20 Council Directive 2003/9 on reception conditions (OJ 2003 L 31/18).
21 Council Directive 2004/83 on minimum standards for the qualification and status of
third country nationals or stateless persons as refugees or as persons who otherwise
need international protection and the content of the protection granted, adopted
April 2004 (OJ 2004 L 304/12).
510
for asylum procedures;22 and (e) minimum standards for temporary protection.23
A detailed commentary on each of these instruments is provided in the preced-
ing chapters 10 and 12–15.
Numerous other instruments agreed over the same period also have an
impact on the ability of persons in need of international protection to access and
enjoy asylum in the EU and are examined in greater detail elsewhere in the book.
They include the common visa regime;24 border measures;25 carrier sanctions;26
the European Refugee Fund;27 the Eurodac regulation and fingerprinting regime
in operation since January 2003;28 the directive on family reunification;29 joint
initiatives to negotiate readmission agreements;30 and measures to coordinate
expulsions and returns, including the return of rejected asylum seekers.
The sections which follow examine the evolution of decision-making, the
emphasis on fundamental rights, the question of judicial and democratic scru-
tiny, continuing variations of approach and application, the impact of the attacks
in the United States on 11 September 2001, the political compromises made to
reach agreement, the consequences of enlargement and the global impact of the
EU harmonisation process. Finally, some of the challenges on the road ahead
are outlined briefly.
22 Council Directive 2005/85 on minimum standards on procedures in Member States

for granting and withdrawing refugee status (OJ 2005 L 326/13).
23 Council Directive 2001/55/EC on minimum standards for giving temporary protec-
tion in the event of a mass influx of displaced persons and on measures promoting
a balance of efforts between Member States in receiving such persons and bearing
the consequences thereof (OJ 2001 L 212/12).
24 See ch. 7 and ch. 8.
25 See ch. 6.
26 See ch. 26.
27 Council Decision 2000/596/EC of 28 Sep. 2000 establishing a European Refugee
Fund, (OJ 2000 L 252/12) and the subsequent second Council Decision establish-
ing the European Refugee Fund for the period 2005–2010 (OJ 2004 L 381/52).
A replacement Decision was proposed in spring 2005: COM (2005) 123, 6 April
2005.
28 Council Regulation 2725/2000 concerning the establishment of Eurodac for the
comparison of fingerprints for the effective application of the Dublin Convention
(OJ 2000 L 316/1), effective since 15 Jan. 2003. See also ch. 11.
29 Council Directive 2003/86/EC of 22 Sep. 2003 on the right to family reunification
(OJ 2003 L 251/12). See also ch. 19.
30 The European Community has concluded readmission agreements with Hong
Kong, Macao and Sri Lanka; an agreement with Albania has been signed and is
awaiting ratification; and an agreement with Russia was reached in Oct. 2005. See
Ch. 31 for further details.
511
Frances Nicholson
4 Changed Decision-making – From Inter-governmental Accords towards

Qualified Majority Voting under the Treaty of Nice
One of the clearest and most fundamental ways in which EU policy on asylum
has changed over the years is in its working methods. At the time the London
Resolutions were approved in 1992, decisions were made in an entirely political
framework behind closed doors, without input from the European Commission
and far from the scrutiny of other bodies. Each initiative came from Member
State governments and the result was generally non-binding “soft law”, often
characterised by significant departures from general refugee protection prin-
ciples.31 At this stage, asylum policy was thus essentially a matter of national
policy constrained by Member States’ obligations under international law.32
It was the Treaty of Amsterdam which transferred EU asylum policy ques-
tions from the third to the “first pillar” as outlined above. This move marked
a significant structural shift in terms of the decision-making process, the legal
status of the agreements reached and the potential for review of implementation
afforded as a result. Since then, the European Commission has acquired a right
to propose legislation, the European Parliament has to be consulted, while the
Office of the United Nations High Commissioner for Refugees (UNHCR), non-
governmental organisations (NGOs), and other interested parties have also been
consulted. Indeed, a declaration attached to the Treaty of Amsterdam declares
that consultations “shall be established” with UNHCR and other relevant inter-
national organisations on matters relating to asylum policy.33 This consultation
has sometimes been hurried, especially with NGOs, perhaps due at least in part
to the tight timetable EU States set themselves. The sceptical may question the
extent to which other parties consulted are able to influence what is eventually
approved, as well as the limited role of the European Parliament, which has no
right to make binding amendments. Yet the greater transparency and consulta-
tion now part of the process particularly at the early stages, at least represent a
significant improvement on previous working methods.
When it comes to the consideration of measures by the Council of Minis-
ters, however, the need for consensus among Member State governments results
in a tendency towards lower protection standards. In addition, political factors
frequently dominate and slow the decision-making process.34 Member States’
have been reluctant to adopt measures establishing higher or even simply dif-
ferent standards and procedures to those in their existing national legislation.35
31 Van der Klaauw, “Towards a Common Asylum Procedure”, in Guild and Harlow,
eds., Implementing Amsterdam: Immigration and Asylum Rights in EC Law (Hart,
2001), 193.
32 See, Guild, n. 9 above at 200.
33 Declaration 17 attached to the Treaty of Amsterdam.
34 Van der Klaauw, “Towards a Common Asylum Procedure”, n. 31 above, 171.
35 For a more detailed analysis of this issue, see ch. 2.
512
In particular, this has been true of key instruments such as those defining who
should benefit from refugee status or complementary protection and the mini-
mum standards for procedures by which this should be ascertained. The Council
requested a revised draft of the latter in which political considerations predomi-
nated to the detriment of international protection principles as is outlined in
greater detail in section 9 below.36
The particular sensitivity of issues relating to asylum and immigration was
recognised in the 2001 Treaty of Nice, which generally provided for a significant
extension of qualified majority voting and use of the co-decision procedure37
from 1 Feb. 2003, when the Treaty entered into force. Where Title IV measures
are concerned, however, this is only partially true, since a shift to such decision-
making is deferred. For the measures on asylum set out in Article 63(1) and
those on temporary and subsidiary protection under Article 63(2)(a) of the EC
Treaty, a new Article 67(5) EC provides that qualified majority voting and co-
decision only applies if the Council has previously adopted Community legisla-
tion defining the common rules and basic principles governing these issues.38
Recognising the need for a flexible approach, if obstacles were to be over-
come and greater convergence in asylum and immigration matters achieved, the
Commission recommended that the legislative process under way at both the
EU and national level be complemented by an “open coordination” approach,
involving strategic guidelines, benchmarking, target-setting and monitoring of
progress.39 Similarly, the Belgian Council Presidency acknowledged in Decem-
ber 2001 that “the changeover to the Community pillar ha[d] not been enough
to give a decisive impetus to work in the asylum and immigration sector” and
that “maintaining the unanimity rule is clearly a serious hindrance to progress”.
It therefore suggested that “a move to qualified majority voting as soon as pro-
vided for in the Treaties would allow proceedings to be speeded up”.40
36 See, amended proposal for a Council Directive on minimum procedures in Member

States for granting and withdrawing refugee status (COM (2002) 326, 3 July 2002).
37 Under the co-decision procedure set out in Article 251 of the EC Treaty, the Com-
mission proposes legislation and the European Parliament and the Council must
jointly agree on the text, before it can be adopted by the Council on the basis of a
qualified majority vote.
38 Treaty of Nice, Article 2(4) (adding a new paragraph 5 to Article 67 EC Treaty). See
also Treaty of Nice, Protocol and Declaration on Article 67 of the EC Treaty (see
Annex 2) and further discussion in ch. 3.
39 European Commission, “Communication from the Commission to the Council and
the European Parliament on the Common Asylum Policy, Introducing an Open
Coordination Method’” (COM (2001) 710, 28 Nov. 2001), part V.
40 Presidency of the Council, Note to the General Affairs Council/European Council,
“Evaluation of the Conclusions of the Tampere European Council”, (Council doc.
14926/01, 6 Dec. 2001), 5.
513
Frances Nicholson
The situation has changed again since May 2004. Member States have lost
the right to initiate legislation, which instead lies only with the European Com-
mission. The Council decided as from 1 January 2005 to apply qualified major-
ity voting and the co-decision process to measures on “burden-sharing”.41 But
other asylum measures are still subject to Article 67(5) EC, as described above.
Furthermore, the Council has still not changed the rules relating to the jurisdic-
tion of the Court of Justice (see discussion below), even though Article 67(2) EC
provides that it “shall” adapt the rules on the Court’s jurisdiction after the end
of the transitional period on 1 May 2004.
5 Increased Emphasis on Fundamental Principles and Human Rights

– The Charter of Fundamental Rights and the Constitution for Europe
The entry into force of the Treaty of Amsterdam in May 1999 also introduced
a greater emphasis on fundamental principles and human rights than before. In
Article 63(1) of the amended EC Treaty, it is now expressly stated that the mea-
sures on asylum to be adopted must be in accordance with the 1951 Convention
and the 1967 Protocol relating to the Status of Refugees. Thus, it is not only
individual Member States which are already bound as States Parties by these
instruments; the European Community must itself be guided by their provisions.
Under the Article 6(2) of the EU Treaty, the Union must also respect fundamen-
tal rights, as guaranteed by the 1950 European Convention on Human Rights.
In October 1999, EU heads of state and government, meeting in Tampere,
Finland, also gave a ringing affirmation of the importance they attached to
“absolute respect for the right to seek asylum”. They pledged “to work towards
establishing a Common European Asylum System, based on the full and inclu-
sive application of the Geneva Convention, thus ensuring that nobody is sent
back to persecution, i.e. maintaining the principle of non-refoulement”.42 This
political commitment to “full and inclusive application” has been reaffirmed on
numerous occasions, to the point where more sceptical commentators see it as a
tired expression used to mask the barriers being erected at both the national and
EU level as part of “fortress Europe”.
A little more than a year later, the Charter of Fundamental Rights was
approved by EU heads of state and government in December 2000. Of particu-
lar relevance to refugees and asylum seekers is Article 18, which declares: “The
right to asylum shall be guaranteed with due respect for the rules of the Geneva
Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the
status of refugees and in accordance with the Treaty establishing the European
Community.” Article 19 of the Charter also prohibits collective expulsions and
declares: “No one may be removed, expelled or extradited to a State where there

42 European Council, Presidency Conclusions, Tampere, Oct. 1999, (see Annex 4),
para. 13.
514
is a serious risk that he or she would be subjected to the death penalty, torture
or other inhuman or degrading treatment or punishment.” These are clear com-
mitments to fundamental principles essential to the protection of refugees and
asylum seekers. They serve not only as political statements of intent but also to
confirm that the right to asylum and the principle of non-refoulement form part
of the general principles of EC law which are relevant to interpreting that law.
One area of concern relates to the so-called Aznar or Spanish Protocol to
the Treaty of Amsterdam.43 This defines all Member States as safe countries of
origin and takes the view that an asylum application by a national of a Member
State should only be admissible if the country of origin has formally derogated
from its human rights obligations or has been determined, under a political pro-
cess, to be a serious and persistent violator of human rights. According to the
Protocol, consideration of the claim can otherwise only be undertaken (on the
basis that it is manifestly unfounded) if the Member State receiving the applica-
tion decides unilaterally to do so. The Protocol was much criticised by UNHCR,
NGOs and others as contrary to the object and purpose of the 1951 Conven-
tion, as well as other human rights instruments and principles.44
Another key document setting out the rights not only of citizens but of all
within its ambit is the Treaty establishing a Constitution for Europe, adopted
by the European Convention in mid-2003 and signed at the European Council
in October 2004.45 Ratification by Member States, in some countries by referen-
dum, in others by parliament alone, has been problematic and the process is now
stalled. The Constitution not only incorporates the Charter of Fundamental
43 Treaty of Amsterdam, Protocol on asylum for nationals of Member States of the

European Union. See Goodwin-Gill, “The Individual Refugee, the 1951 Conven-
tion and the Treaty of Amsterdam”, in Implementing Amsterdam: Immigration and
Asylum rights in EC Law, n. 31 above, 163.
44 See, for example, UNHCR, “Position on the Proposal of the European Council
Concerning the Treatment of Asylum Applications from Citizens of European
Union Member States”, appended to letter of 3 Feb. 1997 from Director, UNHCR
Division of International Protection to Michiel Patijn, Secretary of State, Minis-
try of Foreign Affairs of the Netherlands; ECRE, “Guarding Standards – Shaping
the Agenda”, May 1999, pp. 17–18; UNHCR, Press Release, 20 June 1997. As one
author has written: “[The Protocol] makes asylum decisions subject to a political
process which includes the alleged violator state; it does not (as a general principle)
examine the individual grounds for fear of persecution; it restricts access to any
form of status determination procedures; it discriminates on the basis of national-
ity, and it evades international obligations through reliance on the obligations of
another state.” See Landgren, “Deflecting International Protection by Treaty: Bilat-
eral and Multilateral Accords on Extradition, Readmission and the Inadmissibility
of Asylum Requests”, UNHCR New Issues in Refugee Research, Working Paper
No. 10, June 1999, p. 13.
45 OJ 2004 C 310.
515
Frances Nicholson
Rights in Part II of the Constitution. It also represents a new legal instrument

which should help strengthen the harmonisation process in a manner in keeping
with international legal obligations. In particular, in relation to asylum the Con-
stitution states that “the right to asylum shall be guaranteed with due respect”
for the 1951 Convention and in accordance with the Constitution.46 Another key
provision relevant to asylum seekers and refugees is that repeating verbatim the
text of Article 19 of the Charter cited above and barring removal, expulsion or
extradition to a serious risk of the death penalty or torture.47 As and when the
Constitution enters into force, it will provide important guarantees strengthen-
ing the international protection regime in the EU and assisting asylum seekers
and refugees in defending their fundamental rights. However, by the start of
2006 its entry into force was looking rather unlikely.
6 Judicial and Democratic Supervision – The Role of the European Court

of Justice and the European Parliament
A significant advance towards the realisation of a common asylum system was
Member States’ agreement under the Treaty of Amsterdam to grant the Euro-
pean Court of Justice (ECJ) jurisdiction over Title IV matters.48 This compe-
tence of the ECJ is limited to questions of interpretation under Title IV or of
the validity or the interpretation of acts of Community institutions based on
this Title which are raised in a case before a court or tribunal of a Member State
against whose decision there is no judicial remedy under national law.49 In such
circumstances, that court or tribunal is empowered to request a ruling from the
ECJ on the issue, if it considers that a decision on the question is necessary to
enable it to give judgment. In addition, the Council, Commission and Member
States each have a right to request an interpretative ruling on Title IV matters.
The ECJ does not, however, have jurisdiction over any measure or decision pur-
suant to Article 62(1) EC relating to the maintenance of law and order and the
safeguarding of internal security.50
46 Constitution for Europe, Article II-18.

47 Ibid, Article II-19.
48 In the past such matters were excluded from ECJ jurisdiction, which is otherwise
granted under Article 230 of the EC Treaty allowing for a direct challenge through
the EC court system or under Article 234 of the same treaty allowing indirect chal-
lenge, or the reference of questions on interpretation of legislation, through the
national courts.
49 Article 68(1) EC Treaty. By contrast, any national tribunal may under Article 234
make such a request on other matters of Community law. See also generally, Fen-
nelly, “The Area of ‘Freedom, Security and Justice’ and the European Court of
Justice – A Personal View” 49 ICLQ (2000) 1.
50 Article 68(2) EC Treaty.
516
At first sight it might seem that this change could lead to the ECJ being
overwhelmed with asylum cases. It has, however, been persuasively argued that
such fears are unlikely to be realised, even though reductions in asylum seekers’
appeal rights in recent years in a number of States mean that it may paradoxi-
cally be a much lower court that is able to refer a case to the ECJ.51 As and when
the ECJ begins to consider issues relating to asylum, it would appear that a
degree of convergence of judicial practice is likely to result, although it could be
quite some time before this begins to take place.
One particular question that arises concerns the relationship between ECJ
jurisprudence and that of the European Court of Human Rights.52 Both the
European Commission and Member States have been careful to try and pre-
empt potential conflicts of competence by avoiding specific, detailed reference in
directives to Council of Europe instruments such as the European Convention
on Human Rights. There is nevertheless a general commitment under Article
6(2) of the EU Treaty to uphold the fundamental rights guaranteed in the Euro-
pean Convention on Human Rights, while the Charter of Fundamental Rights
declares that it must not be interpreted as restricting rights recognised inter alia
under the European Convention on Human Rights. In addition, the human
rights perspective and many of the standards set up within the Council of Europe
framework have of course clearly been shown to apply to refugees and asylum
seekers in the jurisprudence of the European Court of Human Rights.53 One
possible solution to this dilemma would be for the European Union to accede
to the European Convention on Human Rights and indeed, such a course of
action is referred to in the Hague Programme approved by Member States in
November 2004 as having the advantage of “plac[ing] the Union, including its
institutions, under a legal obligation to ensure that in all its areas of activity,
fundamental rights are not only respected but also actively promoted”.
More broadly, it is worth noting that the ECJ has ruled that international
human rights instruments which Member States have been involved in drafting
are a source of inspiration in establishing the human rights forming part of
general principles of EC law. The Court has found that this applies to the 1966
51 See, Guild and Peers, “Deference or Defiance? The Court of Justice’s Jurisdiction
over Immigration and Asylum”, in Implementing Amsterdam, n. 31 above, 267–89;
Noll and Vedsted-Hansen, “Non-Communitarians: Refugee and Asylum Policies”,
in Alston, ed., The EU and Human Rights (OUP, 1999), 368 at 373–4.
52 For a more detailed analysis of this issue, see ch. 5.
53 See generally, UNHCR Manual on Refugee Protection and the European Convention
on Human Rights, April 2003 and subsequent updates. In addition, EU Member
States have of course international obligations under international human rights
treaties including the 1984 Convention against Torture and the 1966 International
Covenant on Civil and Political Rights which have been shown to be relevant to
refugees. See Guild, n. 9 above at 202.
517
Frances Nicholson
International Covenant on Civil and Political Rights and there is a good case to
be made for this extending to earlier human rights treaties as well as the 1951
Convention.54
As for the role of the European Parliament, this remains modest, even
though its influence over EU asylum and refugee policy has been enhanced
under the Treaty of Amsterdam. As outlined above, once this Treaty came into
effect in 1999, the European Parliament was able to make an increased, but still
limited, contribution. It is, for instance, not empowered to propose amendments
to draft legislation. As noted above, the Treaty of Nice added Article 67(5) to
the EC Treaty to provide for the introduction of the co-decision procedure, as
set out in Article 251 of the latter Treaty, to certain asylum measures if Com-
munity legislation has been adopted defining the relevant common rules and
basic principles.55
The European Parliament has nevertheless begun to assert its powers. In
December 2003, for instance, it challenged the legality of the family reunifica-
tion directive before the ECJ,56 calling on the Court to annul certain provisions as
contrary to the fundamental rights set out in Articles 7 and 24 of the Charter. In
particular, the challenge refers to a provision permitting Member States to carry
out integration tests on immigrant children aged over 12 years arriving indepen-
dently from the rest of their family before deciding whether they can enter and
reside in the country. The outcome could have far-reaching consequences, not
only for the directive concerned but more widely, given the concerns expressed
about other directives.
7 Continuing Variations in Approach and Application

Achieving agreement on common standards in justice and home affairs matters
has required Member States to adopt a wide range of different mechanisms in
differing combinations. Even under Maastricht, where the majority of asylum
issues came within the ambit of the third “pillar”, certain aspects of visa policy
came under the first “pillar”, while simple intergovernmental cooperation for-
54 For further details and relevant case law, see Peers, “Challenging the Validity of EC
Immigration and Asylum Law”, 17(1) (Tolley’s) Immigration, Asylum and Nation-
ality Law (2003) 25 at 28–29 and ch. 5.
55 For concerns regarding the development of the Common European Asylum System
expressed by the Parliamentary Assembly of the Council of Europe see, Recom-
mendation 1440 (2000), Restrictions on Asylum in the Member State of the Council
of European and the European Union; Goodwin-Gill, “The Individual Refugee”,
n. 43 above, 162.
56 As provided for under Article 230 of the EC Treaty. On 8 September 2005, an Advo-
cate-General’s Opinion in this case (Case C-540/03) was released, suggesting that
the challenge was inadmissible for procedural reasons but largely sympathising with
the EP on the merits. See Ch. 19.
518
mally independent of the EU was used for the Schengen and Dublin Conventions
and involved varying combinations of States, including non-Member States.
At the time the Treaty of Amsterdam was concluded, matters were further
complicated by two protocols to the Treaty, which allow Ireland and the UK
to opt in or out of individual Title IV measures and Denmark to chose which
Title IV measures building on the Schengen acquis it will implement through
national legislation.57 The protocols were the price paid in order to reach agree-
ment on the incorporation of the bulk of justice and home affairs issues under
the “first pillar”.58 Different combinations of States have thus forged ahead in
certain areas where other States have been reluctant to become involved. It has
been termed a process of establishing Europe à la carte or with “variable geom-
etry”.59
In particular, the intergovernmental nature of cooperation has resulted in
varying combinations of States strengthening cooperation in different areas.
For instance, of the 15 Member States of the EU before May 2004, 13 are par-
ties to the Schengen Convention (all excluding Ireland and the UK), and non-
member States (Iceland and Norway) are associated with the Convention.60 The
Schengen acquis has now been incorporated within the EU under the Treaty
of Amsterdam, thus introducing some measure of parliamentary and judicial
control over this hitherto purely intergovernmental area.61 Although the Council
57 See Protocols 4 and 5 to the EC Treaty, inserted by the Treaty of Amsterdam.

58 Schmahl, “Verlagerung der Zuständigkeiten für die Innen- und Justizpolitik nach
dem Vertrag von Amsterdam – Intentionen, Probleme und Perspectiven”, Zeitschrift
für Europäische Studien, 2001, Heft 2, 209; Hailbronner and Thiery, “Amsterdam
– Vergemeinschaftung der Sachbereiche Freier Personenverkehr, Asylrecht und
Einwanderung sowie Überführung des Schengen-Besitzstands auf EU-Ebene” 33
Europarecht (1998) 589 at 584.
59 For an analysis of the distinction between these terms see Ehlermann, “Differen-
tiation, Flexibility, Closer Cooperation: The New Provisions of the Amsterdam
Treaty”, 4 ELJ (1998) 246; Noll, Negotiating Asylum: The EU Acquis, Extrater-
ritorial Protection and the Common Market of Deflection (Martinus Nijhoff, 2000),
132.
60 Switzerland signed an agreement to participate in the Schengen acquis in October
2004, which was approved by referendum in 2005. See also, Proposal for a Council
Decision on the signature, on behalf of the European Union, of the Agreement
between the European Union, the European Community and the Swiss Confedera-
tion, concerning the latter’s association with the implementation, application and
development of the Schengen Acquis, 14 Sep. 2004, COM(2004)593 final.
61 See also, Hailbronner and Thiery, n. 58 above, at 606 and 615. For the process
whereby this has taken place, see Kuijper, “Some Legal Problems Associated with
the Communitarization of Policy on Visas, Asylum and Immigration under the
Amsterdam Treaty and Incorporation of the Schengen Acquis”, 37 CMLRev.
(2000) 345.
519
Frances Nicholson
in May 1999 determined which measures taken under the Schengen Conven-
tion fall under the first “pillar” and which come under the third, there remain
complex variations in the operation of these measures.62 Iceland and Norway
(as non-EU States) may participate in decision-making on Schengen matters
outside the Council in what is known as the Mixed Committee,63 while Denmark
has, as outlined above, opted to incorporate such measures via national legisla-
tion. For their part, the UK and Ireland may participate in Schengen measures
within the Council if they decide to do so. As for the 10 newly acceding States,
the Schengen acquis became binding and applicable on 1 May 2004, although
full participation in the Schengen area and the abolition of internal border con-
trols await a Council decision that adequate external border controls are in place
in those States.
Thus, although at first sight the shift from the third to the first “pillar”
simplified the different decision-making processes, this has not been automatic
and in practice variations persist and are likely to continue. Indeed, one author
has concluded that “the legal translation of the political compromise reached
at Amsterdam on free movement of persons, elimination of border controls,
asylum and immigration has probably become too complicated to work prop-
erly”.64 As another has pointed out, this could “postpone indefinitely the attain-
ment of a single, territorial ‘sovereign’ entity”.65 Although greater cohesion of
structures and working methods have been introduced in recent years, these
remain complex and this has not helped the process of negotiating agreement
on the various legislative building blocks of the Common European Asylum
System. The “variable geometry” of EU harmonisation in this area can be
expected to continue.
62 Council Decision of 20 May 1999 concerning the definition of the Schengen acquis
for the purpose of determining, in conformity with the relevant provisions of the
Treaty establishing the European Community and the Treaty on European Union,
the legal basis for each of the provisions or decisions which constitute the acquis (OJ
1999 L 176/1); Council Decision of 20 May 1999 determining, in conformity with
the relevant provisions of the Treaty establishing the European Community and the
Treaty on European Union, the legal basis for each of the provisions or decisions
which constitute the Schengen acquis (OJ 1999 L 176/17). See also Kuijper, ibid.,
346–56.
63 Agreement concluded by the Council of the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the latter’s association with the
implementation, application and development of the Schengen acquis (OJ 1999 L
176/36).
64 Kuijper, “Some Legal Problems”, n. 61 above, p. 366.
65 Goodwin-Gill, “The Individual Refugee”, n. 43 above, at 159.
520
8 The Effect of Security Concerns on Asylum Policy since September

2001
The attacks in the United States on 11 September 2001 have been another
factor affecting the development and implementation of policy at the national,
regional and global levels. Concerns about international terrorism now permeate
policy considerations on a wide range of issues, including asylum and refugee
policy. These concerns were given renewed emphasis in Europe after the attacks
in Madrid on 11 March 2004 and in London on 7 and 21 July 2005. Govern-
ments have a legitimate concern to ensure that those supporting or committing
such acts are not able to secure access to territory, whether to find safe haven,
avoid prosecution or carry out further attacks. Yet it is also essential that such
concerns are balanced against international human rights obligations, including
those towards refugees.66
In this respect, it is interesting to note that the European Parliament agreed
shortly before the September 2001 attacks that “democratic dialogue based on
mutual respect and non-violence, aimed at upholding democracy, is the best
means of resolving political, social and environmental conflicts and prevent-
ing conflicts from being used as a pretext for committing terrorist acts”. It also
declared that “measures taken to combat terrorism must not, under any circum-
stance, be based on exceptional laws or procedures”.67 More specifically with
regard to asylum, the Parliamentary Assembly of the Council of Europe also
stated in late September 2001:
The Assembly expresses its conviction that introducing additional restrictions

on freedom of movement, including more hurdles for migration and for access
to asylum, would be an absolutely inappropriate response to the rise of terror-
ism, and calls upon all member states to refrain from introducing such restric-
tive measures.68
In the changed political climate since 11 September 2001, several EU States have
nevertheless introduced various restrictive security measures, which have tended
66 See, UNHCR, “Addressing Security Concerns without Undermining Refugee Protect

ion – UNHCR’s Perspective”, Nov. 2001, available at <http://www.unhcr.org/cgi-
bin/texis/vtx/home/opendoc.pdf ?tbl=RSDLEGAL&id=3c0b880e0>.
67 European Parliament, Recommendation on the role of the European Union in
combating terrorism (2001/2016(INI)), 5 Sep. 2001. The European Security Strategy
adopted by the European Council in December 2001 also noted that “[s]preading
good governance, supporting social and political reform, dealing with corruption
and abuse of power, establishing the rule of law and protecting human rights are the
best means of strengthening the international order”.
68 Parliamentary Assembly of the Council of Europe, Resolution 1258 (2001), Democ-
racies facing terrorism, 25–26 Sep. 2001, para. 13.
521
Frances Nicholson
to have the effect of further restricting access to territory and procedures. Gov-
ernments have also resorted more frequently to exclusion from refugee status,69
as well as to extradition and expulsion of persons including asylum seekers and
refugees without necessarily maintaining procedural and other safeguards.70 At
the EU level, measures have included framework decisions on combating terror-
ism and on a European arrest warrant adopted in June 2002.71 As of January
2004, when the latter came into effect, extradition between Member States has
been replaced by a system of surrender based on mutually accepted arrest war-
rants.
Such measures can in part be justified under Article 64(1) EC Treaty which
states that Title IV measures shall not affect Member States’ exercise of their
responsibilities “with regard to the maintenance of law and order and the safe-
guarding of internal security”. These responsibilities need, however, to be bal-
anced against Member States’ obligation to respect fundamental rights under
Article 6(2) of the EU Treaty. There is also a danger that the reassessment of the
relationship between safeguarding internal security and complying with inter-
national protection obligations and instruments, as called for by the Council of
Justice and Home Affairs Ministers on 20 September 2001, will be to the detri-
ment of refugees, particularly in terms of respect for the fundamental principle
of non-refoulement and ensuring detention is not arbitrary.72
69 Under Article 1F of the 1951 Convention persons are excluded from refugee status
if there are serious reasons for considering that (a) they have committed a crime
against peace, war crime, or crime against humanity, (b) they have committed a seri-
ous non-political crime outside the country of refuge prior to their admission there
as a refugee, (c) they have been guilty of acts contrary to the purposes and principles
of the United Nations.
70 See generally, EU Network of Independent Experts in Fundamental Rights, “The
Balance Between Freedom and Security in the Response by the European Union
and its Member States to the Terrorist Threats”, 31 Mar. 2003, 37–40.
71 Council Framework Decisions on Combating Terrorism (OJ 2002 L 164/3) and
on the European arrest warrant and the surrender procedures between Member
States (OJ 2002 L 190/1). See also Amnesty International EU Office, “Comments
by Amnesty International on the proposal by the Commission for a Council Frame-
work Decision on the European arrest warrant and the surrender procedures
between Member States [COM(2001) 522 final]”, 19 Oct. 2001; Human Rights
Watch, “Human Rights Implications of European Union Internal Security Pro-
posals and Measures in the Aftermath of the 11 September Attacks in the United
States”, New York, 6 Nov. 2001; Peers, “EU Responses to Terrorism”, 52 ICLQ
(2003) 227.
72 See resulting paper by the European Commission, “The Relationship between
Safeguarding Internal Security and Complying with International Protection Obli-
gations and Instruments” (COM(2001) 743, 5 Dec. 2001); Human Rights Watch,
ibid; Lubbers, “After September 11: New Challenges to Refugee Protection”, in US
522
It would thus appear that measures to clamp down on international terror-

ism represent an additional factor tending to restrict the ability of refugees and
asylum seekers to gain access to and enjoy international protection in EU States.
For instance, the impact of changes to aspects of extradition law or agreement
on a broad definition of international terrorism at the international and EU
levels could lead to an overly broad interpretation of the exclusion clauses of
Article 1F of the 1951 Convention.73 There is also a danger of reduced transpar-
ency where national security concerns are cited to justify actions (e.g. resulting
in increased non-admission to procedures or resort to exclusion from refugee
status on the basis of evidence not made public). These concerns may also result
in restrictions on civil liberties that may be unjustified (e.g. as a result of increased
detention of asylum seekers). Furthermore, the climate of growing apprehen-
sion, not to say xenophobia, towards foreigners has made it more difficult for
asylum seekers and refugees to integrate in the societies where they have sought
refuge. The current tendency appears to be for governments to take advantage
of the political climate to introduce further measures restricting access to, and
the quality of, asylum in the name of national security to the detriment of those
in need of international protection.
9 Political Compromise Undermines Principles

Matters have been further complicated by the political considerations which
have increasingly come into play as the focus of ministers’ efforts has shifted
between 1999 and 2004. There has been some evidence of upward convergence
of standards,74 for instance, as regards persecution by non-State agents, but the
general trend has been towards more restrictive measures and lower minimum
standards. Member States have generally shown themselves strongly resistant to
agreeing harmonised standards which would require changes to national asylum
legislation and/or practice. Indeed, many have continued to introduce and adopt
new legislation on asylum at the national level with little regard for the EU level
process, thus helping to create “facts on the ground” in advance of the approval
of key directives.75
Committee for Refugees, World Refugee Survey 2003, 1-6; and more generally, Peers,
“EU Responses to Terrorism”, 52 ICLQ (2003) 227.
73 For further details, see Kapferer, The Interface between Extradition and Asylum,
UNHCR Department of International Protection, Legal and Protection Policy
Research Series, 2003/05, Nov. 2003, available at <http://www.unhcr.org/cgi-bin/
texis/vtx/protect/opendoc.pdf ?tbl=PROTECTION&id=3fe84fad4>.
74 For further details see below n. 81.
75 See, for example, European Parliament Committee on Citizens’ Freedoms and
Rights, Justice and Home Affairs, “Report on the Situation as Regards Fundamen-
tal Rights in the European Union (2003)”, 2003/2006 (INI), A5-0207/2004, 22 Mar.
523
Frances Nicholson
As the Committee on Citizens’ Freedoms and Rights, Justice and Home

Affairs of the European Parliament noted in a report issued in March 2004,
the tendency of the method chosen to establish a Common European Asylum
System has been “to focus on minimum harmonisation, leaving Member States
as much margin for manoeuvre as possible”. It further highlighted “the growing
tendency of Member States to abandon the very objective of common minimum
standards and to opt instead for a reference to existing domestic law”.76
Political considerations came most strongly to the fore in the final months
before the May 2004 deadline. The anxiousness of Member State governments
to ensure final texts in keeping with existing national practices and the need
for political compromise resulted in the approval of instruments undermin-
ing sometimes fundamental tenets of international refugee protection. Thus,
although the five key instruments set out in Article 63 were eventually approved,
at least in principle, by the Council of Ministers by the deadline, this has come
at a high price.
This shift in focus can be seen in successive conclusions issued by EU heads
of state and government during this period. As indicated above in section 5, at
Tampere in 1999, the European Council reaffirmed “the importance the Union
and Member States attach to absolute respect for the right to seek asylum …
based on the full and inclusive application of the Geneva Convention”.77 By
the time of the Seville summit in mid-2002, the focus was on “the joint manage-
ment of migration flows” and in this connection EU leaders called for “a fair
balance” to be struck “between, on the one hand, a policy for the integration of
lawfully resident immigrants and an asylum policy complying with international
conventions, principally the 1951 Geneva Convention, and, on the other, reso-
lute action to combat illegal immigration and trafficking in human beings”.78
In early 2003, the focus of certain Member States was perhaps most evident in
proposals put forward by the UK government for “transit processing centres”
outside the EU and for “regional protection areas”.79 By late 2003, the European
Council called upon the Council of Ministers “to complete its work urgently on
proposals for the asylum qualification and procedures directives, in order to …
2004, pp. 47–49; ECRE, “The Promise of Protection: Progress towards a European
Asylum Policy since the Tampere Summit 1999”, London, Nov. 2000, p. 25.
76 European Parliament Committee, “Report on the Situation as Regards Fundamen-
tal Rights in the European Union (2003)”, n. 75 above, pp. 42.
77 European Council, Presidency Conclusions, Tampere, Oct. 1999; see also text above
at fn. 42.
78 European Council, Presidency Conclusions, Seville, Jun. 2002.
79 For an evaluation, see House of Lords European Union Committee, “Handling EU
Asylum Claims: New Approaches Examined”, HL Paper 74, 30 Apr. 2004, avail-
able at <http://www.publications.parliament.uk/pa/ld200304/ldselect/ldeucom/74/74.
pdf>.
524
enable the Union to tackle asylum abuse and inefficiency while fully respecting
the Geneva Convention and its humanitarian traditions”.80 The primary con-
cern has evidently shifted from ensuring “absolute respect for the right to seek
asylum” to tackling “asylum abuse and inefficiency”.
The political compromise and expediency evident in this process have been
detrimental to States which may seek to adopt higher standards. Asylum seekers
can also be expected to find it harder to access procedures and secure interna-
tional protection within the EU if minimum safeguards are all that are in place.
For, while many of the instruments approved refer to minimum standards and
specifically do not preclude higher standards of treatment, the tendency is for
them to become the baseline when transposed into national law. These concerns
are perhaps most serious in relation to the two directives on which agreement
was only reached at the eleventh hour: the qualification and procedures direc-
tives.
With regard to the qualification directive,81 which was adopted in April
2004, this incorporates a number of positive interpretative guidelines not neces-
sarily accepted hitherto in all Member States. Among these is the specific rec-
ognition that non-State actors can be agents of persecution82 and that acts of
a gender-specific or child-specific nature can constitute persecution giving rise
to refugee status.83 Another standard is the provision of a legal basis for the
granting of complementary or subsidiary protection to persons not fulfilling the
1951 Convention refugee definition but still requiring international protection.
There are nevertheless concerns surrounding the definition of subsidiary protec-
tion and as regards the lesser rights accorded to persons enjoying such protec-
tion as opposed to refugees. Concerns also arise as a result of the attempt to
define persecution in the directive. Interpretation of the term as used in Article
1A(2) the 1951 Convention needs to be flexible, adaptable and sufficiently open
to accommodate ever changing forms of persecution and human rights abuses.84
In addition, the mixing in the directive of concepts relating to exclusion from
80 European Council, Presidency Conclusions, Brussels, Oct. 2003.

81 See n. 21 above. See also Klug, ‘Harmonisation of Asylum in the European Union
– Emergence of an EU Refugee System?’, German Yearbook for International Law
(forthcoming).
82 The qualification directive recognises persecution by non-State agents as being able
to constitute persecution for the purposes of the refugee definition, even though
jurisprudence in certain States, notably Germany, has not so far recognised this.
83 Sweden has, for instance, now amended its legislation so as to recognise that per-
secution which has as its basis an applicant’s gender or sexual orientation can
constitute a ground for refugee status (rather than merely subsidiary protection as
previously).
84 See, for instance, Türk and Nicholson, “Refugee Protection in International Law:
An Overall Perspective”, in Refugee Protection in International Law: UNHCR’s
525
Frances Nicholson
refugee status under Article 1F and expulsion or return of a refugee in appli-

cation of an exception to the principle of non-refoulement as permitted under
Article 33(2) of the 1951 Convention runs the risk of effectively introducing
substantive modifications to the exhaustively-listed exclusion clauses of the 1951
Convention.85 These and other matters are analysed in greater detail in chapter
13 of this book.
It should be noted that the 25 EU Member States cannot themselves con-
clude an agreement which has the effect of adding additional criteria or other-
wise modifying the refugee definition set out in the 1951 Convention by which
they are also bound. As the 1969 Vienna Convention on the Law of Treaties
states in Article 60(5), “provisions relating to the protection of the human person
contained in treaties of a humanitarian character” cannot be terminated or sus-
pended by only one (or some) of the parties to that treaty. Further, under Article
30 of the same Convention, where modifications to a treaty do not include all the
parties to the earlier treaty, it is the treaty to which both sets of States are party
which governs mutual rights and obligations. In addition, under Article 41(1)
of the Vienna Convention two or more parties to a multilateral treaty may only
modify that treaty as between themselves alone if this does not affect the enjoy-
ment by the other parties of their rights under the treaty or the performance of
their obligations and if this is not incompatible with the effective execution of
the object and purpose of the treaty as a whole. EU Member States cannot thus
agree on new instruments which have the effect of unilaterally modifying the
1951 Convention and/or 1967 Protocol, to which 146 States globally are party,
or of undermining the object and purpose of the Convention and/or Protocol.
With regard to the directive on minimum standards for procedures,86
Member States were only able to reach a political agreement in April 2004.
The document as agreed introduced fundamental changes and required a fur-
ther (non-binding) opinion from the European Parliament, following which the
Council definitively adopted it in December 2005. The directive has been widely
and strongly criticised, in particular in relation to its provisions on the safe coun-
try of origin, safe third country and a new “super safe third country” notion,
as well as regards the limitations it permits on the suspensive effect of appeal.87
UNHCR has noted that it “contains no binding commitment to satisfactory
Global Consultations on International Protection, eds. Feller, Türk and Nicholson

(CUP, 2003) at 38–39.
85 For the distinction between these two Articles, see UNHCR, “Background Note on
the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relat-
ing to the Status of Refugees”, 4 Sep. 2003, para. 10; Türk, “Forced Migration and
Security”, 15 IJRL (2003) 113, at 120.
86 See n. 22 above.
87 For further discussion of these issues see ch. 14 of this book; Zimmermann,
“Anmerkungen zu Mindestnormen für Verfahren zur Zuerkennung oder Aberken-
526
procedural standards” and allows “scope for states to adopt or continue worst
practices in determining asylum claims”.88 The European Council on Refugees
and Exiles (ECRE) likewise warned that the lack of adequate safeguards in the
directive to ensure that third countries are indeed safe in the individual case
before return there, means that, unless national legislation does provide such
safeguards, “there is a clear risk that EU States will send persons to countries to
face persecution, torture, and death in violation of international law”.89
More generally, there are also substantive differences and gaps in the applica-
bility of the different building blocks of the Common European Asylum System.
For example, the procedures and reception directives as well as the “Dublin II”
Regulation apply only to applications for refugee status, but the qualification
directive defines the criteria which must be met to qualify for both refugee status
and subsidiary or complementary status. As a result, even the minimum stan-
dards set out in the procedures directive do not necessarily apply if someone
applies specifically and solely for subsidiary status. Similarly, if application of
Dublin II were to be avoided by specifically applying for subsidiary protection,
the standards applicable under the reception directive would not apply. There is
also a danger that an asylum seeker could end up being returned to their country
of origin without a full substantive examination of their claim if they move on
after a while from one EU Member State to another and are then returned to
the first Member State, which may in the meantime have closed the case and then
go on to reject the “new” claim as manifestly unfounded or on the grounds that
no new elements are present.90 Some of these issues could be resolved if each
Member State implemented a single asylum procedure under which both refugee
and subsidiary protection needs are considered (as is currently the case in some
of the EU Member States). Agreement on such a procedure is, however, a long
nung der Flüchtlingseigenschaft”, Zeitschrift für Ausländerrecht und Ausländer-

politik (10/2003) 354.
88 UNHCR, Press release, 30 Apr. 2004.
89 ECRE, “Broken Promises – Forgotten Principles, An ECRE Evaluation of the
Development of EU Minimum Standards for Refugee Protection, Tampere 1999–
Brussels 2004”, Jun. 2004, 10.
90 For instance, according to an article entitled “Somali did not complete asylum pro-
cedure”, in the Netherlands daily newspaper NRC Handelsblad of 30 July 2004, a
Somali asylum seeker Abdinassir Abdilatif Ali was returned to Somalia where he
was shot dead in Mogadishu. He had reportedly applied for asylum in the Nether-
lands in August 2000, was rejected and appealed, but when this process took too
long went to the United Kingdom, from whence he was returned to the Netherlands
in March 2003 when it was found out that he had already applied for asylum there.
The Dutch authorities, however, closed his appeal without substantive examination
on the grounds that they did not know his whereabouts. When he was returned to
the Netherlands, he made a second application, but this was denied on the grounds
that it contained no new facts and he was returned to Somalia via Nairobi.
527
Frances Nicholson
way off and would require considerable amendment of a number of Member

States’ national procedures, to which States have thus far proved very reluctant
to agree.
These shortcomings within and gaps between the various instruments may
mean that, unless adequate safeguards are in place at the national level, persons
in need of international protection are unable to access substantive procedures
within the EU if they present a claim there, or that standards of treatment fall
short of international norms, or that a full and final decision is not made before
they are removed. If so, States could be in violation of their international obliga-
tions, while the consequences for the individual concerned could be life-threat-
ening.
10 The Consequences of EU Enlargement

There were already wide variations in policy and practice among the 15 EU
Member States before the accession of Cyprus, the Czech Republic, Estonia,
Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia in May
2004.91 The situation is likely to become more complex in future, despite the
fact that, in their keenness to join the EU for a wide range of reasons, the new
Member States have implemented the various early elements of the asylum acquis
in national law and applied them, even though they have been only partially
applied and are not necessarily legally binding in the first 15 Member States.92
As one observer has noted, two striking processes were at work. The first
was a hardening of soft law in the accession process, as non-binding “third
pillar” instruments were incorporated into the national law of applicant States;
the second was the “selling of an outdated product to the cousins in the East”.93
Even as the EU itself was elaborating more comprehensive, legally-binding
texts, it was exporting procedural tools and concepts, including in the context of
the PHARE horizontal programme,94 which may well be inappropriate in non-
member States receiving far fewer claims or with less well-developed protection
capacities. In particular, the application of notions, such as those concerning
safe third countries or safe countries of origin, or the introduction of acceler-
ated procedures for manifestly unfounded cases in States with less well-devel-
91 Bulgaria and Romania signed treaties of accession in April 2005 and are expected
to join in January 2007; negotiations with Turkey and Croatia formally opened in
October 2005; other countries in the Western Balkans may also eventually accede.
92 See also ch. 6; Peers, Mind the Gap! Ineffective Member State Implementation of the
European Union Asylum Measures (ILPA and Refugee Council, 1998).
93 Noll, Negotiating Asylum, n. 59 above, at 156. See also, Lavenex, The Europeani-
sation of Refugee Policies: Between Human Rights and Internal Security (Ashgate,
2001), 135–6.
94 The PHARE programme was an EU-financed pre-accession instrument to assist
Central and Eastern European applicant States in their preparations for accession.
528
oped administrative and judicial mechanisms, civil society and/or social safety
nets may well present significant problems for those in need of international
protection. This phenomenon is even more acutely evident in the way these
mechanisms have been adopted well beyond even the EU’s expanded borders as
outlined in the next section.
More broadly, the first 15 EU Member States’ priorities were revealed by
the fact that the main focus of the PHARE programme in this field often seemed
to be on strengthening border controls, rather than on measures to strengthen
capacity to assess asylum claims or to enhance refugee integration. Norms of
asylum policy and practice have also been developed through interaction at sub-
regional level across the apparent divide between old and new Member States,
for instance, between the Nordic and Baltic States, between Germany and
Poland and the Czech and Slovak Republics, or between Austria and Hungary.95
At whatever level this interaction takes place, there is a clear need to ensure a
balance between enforcing border controls and measures to combat trafficking
and smuggling of individuals on the one hand and humanitarian concerns and
human rights obligations on the other.
There is, in addition, a question as to how the operation of the “Dublin
II” Regulation will affect new Member States. As one expert has noted, if the
Dublin Convention were to function effectively
it would probably impose a disproportionate burden on many receiving States

at the periphery of the European Union. In the meantime, it is certainly inef-
ficient by causing delays in the processing of asylum claims, it contradicts the
principle of family reunion and is generally ineffective in seeking a just and
equitable distribution of such claims.96
While the “Dublin II” Regulation takes the principle of family unity into greater
account than its predecessor and allows for some humanitarian exceptions, the
general approach continues to allocate responsibility for assessing the asylum
claim to the Member State responsible for the applicant’s entrance to EU ter-
ritory. More logical criteria might be to ascribe responsibility on the basis of
greater respect for the right to family unity, Member States’ resources, or asylum
seekers’ linguistic or cultural links with EU States.97 The rationale thus contin-
95 Byrne, Noll and Vedsted-Hansen, n. 7 above.

96 Blake, “The Dublin Convention and the Rights of Asylum Seekers in the European
Union”, in Implementing Amsterdam, n. 31 above, 95; for relevant case law see n. 14
above.
97 For relevant criteria, see generally UNHCR Executive Committee Conclusion No.
15 ((XXX), 1979, para. (h), as well as European Commission staff working paper,
“Revisiting the Dublin Convention: Developing Community Legislation for Deter-
mining which Member State is Responsible for Considering an Application for
529
Frances Nicholson
ues to be penalisation of the State through which the asylum seeker first gained
entry to the Union. The consequence can be expected to be that the operation of
“Dublin II” will be to shift or concentrate the burden of assessing claims onto
the new Member States at the periphery of the EU, which have fewer resources
and a less well-established infrastructure to deal with asylum claims.
This trend is likely to be accentuated by Eurodac, which came into effect in
January 2003 and is intended to enhance the operation of “Dublin II”. In the
first year of operation of this EU-wide database of fingerprints of asylum seek-
ers and illegal entrants, it processed nearly 250,000 asylum seekers’ fingerprints
and detected 17,287 cases representing 7 per cent of the total where individuals
had already made one or more asylum applications in a Member State.98 Again,
since it is the new Member States that are on the periphery and therefore the
most likely point of entry to EU territory, it would appear that more cases will
be able to be returned to the country of entry in the EU under “Dublin II”,
thus placing the asylum systems of these Member States under greater strain.
Possibly this will result in these Member States finding ways to circumvent the
operation of Dublin II and Eurodac. Such action will hardly address the prob-
lem, but rather push it further underground and increase resort, for instance, to
people smugglers, to the detriment of governments seeking to manage asylum
and migration policies more predictably and rationally and of refugees in search
of international protection.
11 Global Impact of EU Harmonisation of Asylum Policies

The harmonisation of asylum policy within the EU is already having a signifi-
cant impact well beyond the borders of the EU or even the central and eastern
European States. Notions born in the particular circumstances of the EU have
been “exported” to other regions, which may or may not face similar problems,
may or may not have the same resources, or the same democratic and judicial
traditions. Several of the mechanisms that EU States have adopted to minimise
their obligations are thus now also being adopted and adapted by other States
and are being justified on the basis that they have been adopted in Europe.99
While individual States are responsible for their own actions, policies adopted
Asylum Submitted in one of the Member States” (SEC (2000) 522, 21 Mar. 2000);
and discussion of the agreed “Dublin II” Regulation (ch. 10).
98 European Commission, “EURODAC Detects 7% of Multiple Asylum Applications
During its First Year of Activity”, press release IP/04/581, 5 May 2004. See further
Ch. 11.
99 See, Rutinwa, “The End of Asylum? The Changing Nature of Refugee Policies in
Africa”, UNHCR New Issues in Refugee Research, Working Paper No. 5, May
1999, p. 20; Frelick, “The Year in Review”, World Refugee Survey 1997, US Com-
mittee for Refugees, Washington DC, pp. 14–19.
530
in the EU context clearly have global “export value”, as the following examples
indicate.
Among these notions is that of the safe third country. This notion has been
applied in a number of countries, particularly in eastern Europe and central
Asia, including to deny access to the asylum procedure without substantive
examination and/or without the possibility of individual rebuttal.100 There has
been some improvement in the situation in eastern Europe, but when combined
with time limits within which asylum applications must be made, as are imposed
in several States, there is a danger that access to substantive procedures may be
denied. For instance, Belarus defined all neighbouring States as safe until mid-
2003 when new legislation maintained the safe third country notion but instead
of an automatically applied list at least required an individual examination of
each case. The concept is, however, applied broadly and if the Belarusian author-
ities do return an asylum seeker, for instance, to Ukraine on safe third country
grounds, that person was until recently unlikely to be able to submit an applica-
tion since that country imposed a deadline of three working days from the date
of first illegal entry (five working days in case of legal entry) within which an
application for asylum must be presented. In Ukraine, the Law on Refugees of
June 2001 now provides stronger safeguards than before in its definition of a
safe third country while applications must since June 2005 be submitted “with-
out delay”. Return to the Russian Federation is, however, frequently not possible
(and an application there would in any case have to be presented within 24-hours
of illegal entry) with the result that asylum seekers remain in limbo in Ukraine
with no formal, legal status and are at risk of refoulement.101 The Russian Fed-
eration also uses the concept widely, including for Afghans transiting Iran or
Pakistan. Kazakhstan has denied a number of applications on the grounds of
passage through a “safe country”. Tajikistan also issued a decree in June 2000
introducing a list of nine “safe” third countries (including Afghanistan) as a
result of which an asylum seeker who has transited one of them is denied access
to the asylum procedure.
With an increasingly lengthy chain of potential returns, it is difficult to see
how the State where the asylum claim was first presented only to be rejected on
safe third country grounds can be sure that it is upholding its obligation not to
refoule anyone to persecution, torture, inhuman or degrading treatment. The
picture is better in Africa, however, for although the concept has been applied
100 See UNHCR, “Asylum Processes”, n. 12 above; van Selm, “Access to Procedures
‘Safe Third Countries’, ‘Safe Countries of Origin’ and ‘Time Limits’”, June 2001,
available at <www.unhcr.org> under protecting refugees, Global Consultations,
“third track” Executive Committee meetings.
101 See e.g. Human Rights Watch, “Ukraine: On the Margins Rights Violations against
Migrants and Asylum Seekers at the New Eastern Border of the European Union”,
Nov. 2005, available at <http://hrw.org/reports/2005/ukraine1105/>.
531
Frances Nicholson
in a number of southern African States, the South African High Court ruled in
May 2001 that the directive applying the policy should be withdrawn.102
Another exported concept concerns temporary protection – properly an
exceptional emergency response in countries with individual refugee status
determination systems to an overwhelming situation, where there are self-evi-
dent international protection needs and where there is little or no possibility of
determining such needs on an individual basis in the short term.103 This concept
has also been exported to very different situations. For instance, the concept of
temporary protection which was first developed in Europe in response to the
Bosnian crisis from the mid-1990s has been implemented comprehensively in
Australia to suit a restrictive domestic agenda there. Since October 1999, Aus-
tralian regulations have determined the quality of asylum offered on the basis
of the mode of arrival in the country. Those arriving illegally and recognised as
refugees now receive only a 30-month temporary protection visa (TPV), which
must then be reassessed before the normal range of benefits accorded to other
refugees can be accessed. Since September 2001, an asylum seeker arriving inde-
pendently in Australia who has spent seven days or more in a country where he
or she could have sought and obtained effective protection, who is recognised
as a refugee, only receives a series of temporary three-year visas.104 He or she is
thus never able to gain secure residency, access to travel documents (as stipulated
under Article 28 of the 1951 Convention), or to reunite with his/her family in
Australia. Under such circumstances, temporary protection has become perma-
nent limbo for recognised refugees.105
More generally, harmonisation processes are also under way in other
regions of the world, which may or may not face similar problems and/or have
strongly established judicial systems and/or civil society. For instance, many ele-
102 See Lawyers for Human Rights website on <http://www.lhr.org.za/refugee/refu-

geenav.htm>.
103 UNHCR, “Complementary Forms of Protection: Their Nature and Relationship
to the International Refugee Protection Regime”, EC/50/SC/CRP.18, 9 June 2000,
para. 21; Committee of Ministers of the Council of Europe, Rec. No. R (2000) 9 on
temporary protection, 20 May 2000.
104 Migration Amendment Regulations 1999 (No. 12) and 1999 (No. 243); Migration
Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001,
part 4. See also generally Mares, Borderline: Australia’s Treatment of Refugees and
Asylum Seekers (2nd edition, University of New South Wales Press, 2002); Zable,
“Between Sky and Earth”, The Age, Melbourne, 13 Dec. 2001.
105 Edwards, “Tampering with Refugee Protection: The Case of Australia”, 15 IJRL
(2003) 192 at 196–202. As from August 2004, certain TPV holders were permitted
to apply for some types of permanent and temporary mainstream visas without
leaving the country, particularly where they were well integrated in rural areas, had
particular skills and/or had established strong links to Australian citizens and per-
manent residents. The measure was expected to affect some 8,500 TPV holders.
532
ments of the EU acquis are being applied by Mercosur States in Latin America,
even though the numbers of asylum seekers involved in the region are a great
deal lower than in western Europe.106
In this respect, UNHCR’s Global Consultations on International Protec-
tion in 2001–02 offered a useful forum where all States were able to raise and
address concerns at the global level.107 Indeed, the Declaration issued by the
first ministerial meeting of States party to the 1951 Convention and/or 1967
Protocol in December 2001, reaffirmed the “central place” of these instruments
in the international refugee protection regime and that further development of
the regime should be “in a way that complements and strengthens” them. It is
important that EU leaders do not ignore the global impact of the harmonisation
process. Not only do they have obligations at the international level, but their
actions can either undermine or underpin the viability and sustainability of the
international protection regime on which their own efforts, whether nationally
or at the EU level, are premised.
12 Challenges on the Road Ahead

This chapter has touched upon some of the issues – structural, substantive and
political – hampering the development of a fair and effective common Euro-
pean asylum policy. There is a clear need for greater coherence in EU Member
States’ policies on asylum. Asylum procedures and interpretations of the 1951
Convention are sufficiently divergent as to cause some courts to bar return to
another Member State. These divergences coupled with differences in reception
conditions and integration possibilities can also contribute to the onward move-
ment of asylum seekers within the EU, whether in search of better conditions
or simply safety from return to persecution. There is also a clear need for more
coherent and comprehensive policies on asylum matters with regard to the world
beyond the EU, particularly in relation to countries of origin, where persecution
and conflict continue to prompt flight, and to countries of first asylum in such
regions, where scarce resources reduce the possibilities of finding durable protec-
tion there. Some key ongoing challenges are identified below.
The influence of political considerations. On a number of occasions, politi-
cal bargaining and trade-offs, in sometimes quite disparate policy areas, have
led to compromises – particularly as a result of the unanimity requirement –
which undermine international refugee protection and result in less stability and
certainty for refugees and asylum seekers. In addition, certain politicians in a
number of Member States appear willing to play to populist and anti-foreigner
domestic factions for political advantage, thus contributing to popular support
for restrictive measures on asylum.
106 See, for instance, Declaration of Mercosur interior ministers, Nov. 2000.
107 For further information, see <http://www.unhcr.org/cgi-bin/texis/vtx/protect?id=
3b7cea1b4>.
533
Frances Nicholson
The need to combat discrimination and xenophobia. A particular concern

relates to the political climate in certain Member States which fails actively and
effectively to tackle antagonism and xenophobia towards foreigners in general
and asylum seekers and refugees in particular.108 Indeed, this issue has not gone
away despite the significant fall in numbers of people claiming asylum in the EU
in recent years.109 Measures which address attitudes among the host population
and in the media by promoting greater understanding of and respect for the
plight of refugees remain vital. Equally important are measures to assist the
integration of asylum seekers, refugees and those receiving subsidiary forms of
protection.
The international context. Tampere called for “greater coherence of internal
and external policies”. The two dimensions significantly influence one another.
Conflict prevention or resolution, the reduction of poverty and the consolida-
tion of democracy are widely recognised as factors which contribute to reducing
the pressure on individuals to flee. Yet the focus of the “regionalisation” efforts
has been on preventing arrivals outside regions of conflict and on facilitating the
summary return to regions of origin of individuals who do succeed in reaching
the EU.110 Proposals for regional or “offshore processing” rarely mention human
rights.111 One possibility would be for the EU itself to participate in UNHCR’s
resettlement programme, in addition to the several individual Member States
already doing so, as indeed proposed by the Commission in June 2004.112 The
Commission’s paper also proposed a range of capacity building measures for
countries of first asylum. Such initiatives would offer clearly visible examples
of burden and responsibility sharing, although Member States would of course
need to continue to uphold their obligations towards individual, often illegal,
arrivals of asylum seekers in EU Member States.
108 See Commission proposal for a Council Framework Decision on combating racism
and xenophobia (COM(2001) 664, 28 Nov. 2001); Council Conclusions on combat-
ing racism, anti-Semitism and xenophobia, 26 April 2002.
109 See text at n. 4 above.
110 See Goodwin-Gill, “The Individual Refugee”, n. 43 above, 146; more generally,
Harding, The Uninvited (Profile Books, 2000), 71–7; Amnesty International, “A
Common Asylum System for the European Union: The International Regime for
the Protection of Refugees at Stake?”, Dec. 2000, p. 3.
111 For a useful assessment of these issues, see the House of Lords EU Committee
report “Handling EU Asylum Claims: New Approaches Examined”, n. 79 above.
112 European Commission, “Communication on the Managed Entry in the EU of
Persons in Need of International Protection and the Enhancement of the Protec-
tion Capacity of the Regions of Origin: Improving durable solutions”, 4 Jun. 2004,
COM(2004) 410 final. The idea was also presented in its Nov. 2000 paper referred to
in n. 3 above.
534
The migration-asylum nexus. Equally challenging is the broader immigra-

tion context within which EU asylum and refugee policy operates. The com-
plexities of contemporary population flows have been one factor prompting the
mixing of concerns regarding migration and asylum. All too often refugee issues
are being subsumed within broader efforts to control migration without a cor-
responding concern to uphold international obligations. Several EU Member
States, recognising their need for labour, have begun to develop a formal immi-
gration policy, but the general orientation has been towards strengthening con-
trol and deterrence. Yet immigration policy measures which seek to curtail illegal
immigration, for instance, through restrictive visa and carrier sanctions policies,
also affect refugees’ and asylum seekers’ access to asylum. Measures to address
the smuggling and trafficking of individuals, which have increased in recent
years due not least to the lack of possibilities to migrate legally to EU countries,
can likewise restrict refugees’ access to asylum if they are unable to access this by
other means. If such problems are to be addressed, there is a need for stronger
safeguards and operational measures to be built into EU and Member States’
policies on immigration.
The focus on security. In the wake of the 11 September 2001 attacks, the
security concerns currently permeating government policy and practice repre-
sent another major contemporary challenge to the upholding of international
refugee protection principles and obligations. In the current political climate,
it is all too easy for governments to cite security considerations as a justifica-
tion for restrictive action on a whole range of issues. The focus of policy efforts
has very much been on measures to control and restrict migration and enhance
cooperation in criminal matters. In such circumstances, it is all the more impor-
tant to balance against the demands of national security the commitments
Member States have made to uphold international and European human rights
and refugee law. Principles of liberty, democracy, respect for human rights and
fundamental freedoms and the rule of law are after all cornerstones on which
the EU is founded.
Structural challenges. Finally, the EU faces a host of structural challenges,
related in particular to the decision-making process, as it seeks to establish a
Common European Asylum System. Although Member State governments
reached agreement on the key instruments needed to meet the May 2004 dead-
line, this has been at the price of yet further compromise. Now that the proce-
dures directive has been adopted, it appears that qualified majority voting will
apply for measures on asylum and temporary protection as indicated in Article
67(5) of the EC Treaty. It remains to be seen how the role of the European
Parliament develops as a result but it should promote an increase in ministers’
accountability to the Parliament. It may also be some years before the ECJ has
an effective input into the process, if the Constitution is not adopted. These and
other factors outlined in greater detail above would appear set to result in con-
tinuing different speeds at which harmonisation is realised, even while the Treaty
535
Frances Nicholson
of Amsterdam marked a significant move towards greater transparency, as well

as judicial and democratic accountability.
13 Conclusion
Compared to the early 1990s, there are some positive signs for the develop-
ment of a Common European Asylum System in keeping with international
protection principles. These include more open working methods than before
and greater consultation with UNHCR and NGOs. The changes introduced by
the Treaty of Amsterdam provided a clearer framework than before, sought to
streamline decision-making and introduced greater transparency and account-
ability by strengthening the role of the European Commission, the ECJ and to
a lesser extent the European Parliament. The Charter of Fundamental Rights
and the European Constitution also contain clear commitments to fundamental
rights and obligations as regards asylum. The question as to “whether rheto-
ric can be translated into a working, practical reality; and whether the EU can
remain true, or even close, to the principles, which it claims to endorse”, posed
by Professor Goodwin-Gill in 2001 nevertheless remains as pertinent as ever.113
There is perhaps still some possibility that the Common European Asylum
System currently under construction could become less of a fortress and more
a haven. At this juncture, it nevertheless appears that political considerations,
compromises and trade-offs, not to mention migration concerns or the cur-
rent security climate, have contributed to a serious watering down of the Com-
mission’s initial proposals. Some have even argued that the impression is that
“Member States are seeking to draw up a whole new acquis unencumbered by
their international commitments”.114 These factors are likely to continue to pres-
ent significant obstacles to the principled realisation of the longer-term goal
set at Tampere of a “uniform status for those who are granted asylum valid
throughout the Union”.
At this point, it is perhaps an appropriate moment for interested parties
to stand back a little, to reassess strategic goals and the means to achieve them.
This is so not only at the domestic and European levels but also more widely at
the international level, for regions are no longer isolated from one another, as
the phenomena of globalisation, migration and international terrorism make
very clear. More than ever, providing international protection to those in need
of it cannot be addressed in isolation. It is a collective responsibility requiring
complex and interlocking approaches and solutions that are considerably more
sophisticated and comprehensive than policies which are based on deterrence
and interception focussed primarily on reducing the numbers of asylum seekers
arriving in the EU. States have made some progress in recent years in recognis-
ing these broader issues, from poverty reduction and strengthening protection
113 Goodwin-Gill, “Editorial”, 13 IJRL (2001) 1 at 3.

114 Guild, above n. 9 at 218.
536
in regions of origin to conflict resolution and tackling the trade in small arms.
Some of these concerns are reflected in the external relations elements of the
Hague Programme approved in November 2004, but the latter nevertheless need
to be developed in a protection-sensitive manner if the integrity and viability of
the emerging Common European Asylum System, not to mention the interna-
tional refugee protection regime itself, are to be assured.
At the same time, Member States are now moving to the second phase of
the establishment of the Common European Asylum System, which the Hague
Programme envisages will be completed by 2010. This involves amongst other
things the implementation at the national level of the instruments they have
agreed, in so far as changes may be necessary. Here too there is an opportunity
to recall that the provision of international protection to those in need of it is a
matter not only of commitment to values intrinsic to democratic and inclusive
societies but also of national and international obligation. If governments are
to adopt legislation and practices in keeping with these obligations on a range
of issues, they are likely either to have to maintain existing higher standards
where these are in place and/or to resist the temptation to introduce only the
minimum standards set out in relevant directives and regulations. A clear focus
on procedures, training and practices at borders to ensure access to territory and
procedures for those seeking asylum coupled with a similar focus on greater con-
sistency and quality of decision-making, especially at the first instance, through
what has been called “frontloading”, are likely to be critical. Clear information
and strong lobbying by UNHCR, civil society and NGOs can also be expected
to be vital. Links at sub-regional level including across the divide between new
and old Member States give scope for sharing protection-sensitive expertise and
experience, if the political will to do so is there.
Thus far, EU Member States’ efforts in recent years in the area of asylum
have focused on constructing a more effective framework to enable the har-
monisation of policy and practice. These efforts have generally been undertaken
from a control-oriented standpoint. As the process shifts to transposition at the
national level, it would be well to remember that ultimately it is States’ obliga-
tions under the 1951 Convention and 1967 Protocol, as the pre-eminent legal
instruments of international refugee protection, which must be upheld.
537
Chapter 18 Gender and EU Asylum Law
Nathalia Pendo Berkowitz*
Why talk about gender in relation to EU asylum law? Reading the commentaries
a person would be forgiven for thinking that the two issues had little to do with
each other. The truth is that gender has an effect all the way through the asylum
status determination process. It affects who travels to Europe to claim asylum,
their experiences of persecution, the evidence that they can present, the way
their credibility is judged and how their cases are evaluated against the criteria
of the Refugee Convention by decision makers and their own representatives.
Some countries both inside and outside the EU have recognised this and
modified their procedures or introduced gender guidelines. In various cases
courts have responded to particular gender issues. Despite such developments
recent studies show that problems still remain.1 The question now is what will
happen at European level and whether those developments will be built on,
improved, ignored or even undone.
This chapter looks
* I am indebted to and wish to thank the following: Elizabeth Dubicka for her com-
ments, Catriona Jarvis and Judge Pearl without whom the Immigration Appellate
Authority Gender Guidelines would not have been written and all those, including
members of the Refugee Women’s Legal Group, who have contributed to the ideas
contained in this chapter.
1 See for example, Spijkerboer, Gender and Refugee Status (Ashgate, 2000); Haines,
QC, “Gender-Related Persecution”, chapter commissioned by UNHCR for an
expert roundtable discussion on gender-related persecution, 10 Aug. 2001; Crawley,
Refugees and Gender: Law and Process (Jordans, 2001); Berkowitz, Gender Discrimi-
nation or Not – Spijkerboer’s view of the role of gender in refugee law and process,
IA& NL&P (2002) Vol 16, No 1, 13-18; Crawley and Lester, Comparative analysis
of gender-related persecution in national asylum legislation and practice in Europe,
UNHCR May 2004.
Natalia Berkowitz
1. briefly at terminology
2. at developments at international, national and European levels
3. at some gender issues in relation to the EU draft directives
4. and makes some conclusions.
1 Terminology and the Experiences of Women

In discussing the effect of gender on refugee law and practice the terms “gender”,
“gender specific” and “gender related persecution” are often used imprecisely.
This creates difficulties in analysing the issue of gender in the refugee process.
The term “gender” does not refer to biological sex, but rather to the experience of
being a man or a woman and includes socially defined roles, behaviours, respon-
sibilities, strictures and opportunities and the idea of being a “proper woman”
or “proper man”. It explicitly includes the power relationships between men and
women.2 Gender relations may differ between societies and will be affected by
factors such as age, ethnicity, social class, wealth, education, sexuality, education
and birthplace. The relations may also change over time.
In this chapter:
– Gender specific persecution or harm refers to forms of harm which are
more normally used against persons of one gender or affect persons of that
gender in a particular way;
– Gender related persecution refers to the reason for the harm/persecution,
i.e. to the Convention reason and to the ways in which men and women
experience those grounds differently;
– Gender-blind – where, on its face, a provision or policy makes no distinc-
tion between men and women;
– Gender-neutral – where, in practice, a provision or policy provides equally
for men and women. In order to achieve gender neutrality it may be neces-
sary to make different provision for men and women.
The definition of a refugee contained in the Refugee Convention applies to both

male and female refugees. Despite this refugee law has been widely criticized for
being unresponsive, or not accurately responsive, to the international protection
needs of women. Some critics have focused on particular areas where refugee
law is seen to fail women – many of which are highlighted in this chapter (includ-
ing in respect of gender specific harm, persecution of women as women and
harm inflicted by non-state agents). Other critics have focused more broadly on
the effect of gender in the asylum determination process and consider that there
2 Summary conclusions of the UNHCR Expert Roundtable Global Consultations

on International Protection 6-8 September 2001: “Gender refers to the social con-
struction of power relations between women and men, and the implications of these
relations for women’s and men’s identity, status, roles and responsibilities. Sex is
biologically determined.”
540
are not some gender specific cases, rather all cases, those of men and of women,
are affected by the issue of gender in the refugee process.3
At least since the cold war period, the dominant conception of a refu-
gee in Europe has been of a man. Refugee laws, jurisprudence and procedures
have, not surprisingly, developed on basis of this dominant conception.4 While
analysis and understanding of the effect of sex and gender in refugee law and
practice has substantially advanced in the past decade in case-law, state-practice
and academic writing,5 refugee cases involving men’s experiences continue to be
seen as standard whereas those involving the particular experiences of women
as deviant from the norm and problematic.6 A recent survey of law and policy
in European states concluded that “there has been limited progress in Europe
towards ensuring gender-sensitive interpretation of the 1951 Convention and
gender-sensitive asylum procedures. Where progress has been made, implemen-
tation of key recognitions is inconsistent.”7
3 Spijkerboer, n. 2 above, 9 and 195.

4 This criticism is not unique to refugee law. Helena Kennedy QC put it very neatly:
“When women turned the spotlight upon legal institutions, their examination
began to expose ways in which law had failed women. It became clear that
legal rules or categories often discriminated against them. Law had developed
from a male perspective, reflecting the circumstances and behaviour of men,
and it could fail to acknowledge the reality of women’s experiences. The trials
of rape, sexual assault and domestic violence manifestly displayed the prob-
lems women have as the victims of crime, where the effects of trauma have
not always been understood and where the woman’s own behaviour has been
measured for propriety. Cases of battered women who kill their abusers also
showed ways in which black letter law and legal definitions denied women’s
experience or cumulative abuse.
These problems usually exist because of the historical processes which have
produced law. There was no conscious conspiracy of men in long wigs. The law
was developed with men in the driving seat, either as judges adding to the body
of case law through their judgements, as legal commentators affecting laws
development through scholarship, or as legislators in Parliament. Inevitably
the law reflected their view of the world given the absence of women in those
influential roles.”
Kennedy QC, foreword in Crawley, Women as Asylum Seekers (ILPA & Refu-
gee Action, 1997).
For a gendered critique of the development of international law see Charlesworth
and Chinkin, The Boundaries of International Law: A feminist analysis (Manchester
University Press, 2000).
5 Haines, n.2 above, para. 3.
6 Spijkerboer, n. 2 above, 124-125.
7 Crawley and Lester, n. 2 above, paragraph 654
541
Natalia Berkowitz
2 What Has Happened at the European / International / State Level?

During the drafting of the Refugee Convention the inclusion of “sex” in the
non-discrimination clause was discussed and decided against on the basis that
sex discrimination was a matter for national legislation.8
Since that inauspicious start to the international protection of women mat-
ters have developed considerably. UNHCR has actively promoted consideration
of the position of female asylum seekers and refugees and numerous UNHCR
EXCOM Resolutions have made recommendations.9 At domestic level govern-
ments and international organisations have responded to concerns about the
treatment of female asylum applicants by introducing a range of measures,
guidelines and legislative changes. These developments have lagged behind
developments in other areas of domestic law such as criminal law where law and
practice has accepted the particular circumstances of female victims. In both
international human rights law and humanitarian law there have been quite con-
siderable advances in acknowledging that circumstances relating to women have
been left out of the law’s development, in responding to women’s experiences
and in recognising that women’s rights are human rights.10
The contribution of the EU in this arena has, to date, been modest in com-
parison to its contribution to the situation of women in areas such as employ-
ment law. In 1984 the European Parliament called on Member States to recognise
that female victims of persecution could fall within the particular social group
category. More recently it has advocated the protection of those women who
fear female genital mutilation, considering it a violation of the “fundamental
right to physical integrity”.11 1996 EU Minimum Guarantees on Asylum Pro-
cedures required Member States to endeavour to involve skilled female employ-
ees and female interpreters in the asylum procedure, “particularly where female
asylum-seekers find it difficult to present the grounds for their application in a
comprehensive manner owning to the experiences they have undergone or to
8 The non-discrimination provision (Article 3) does not specifically refer to discrimi-

nation on the grounds of sex.
9 EXCOM Conclusion No. 39 (XXXVI) 1985 – Refugee Women and International
Protection, EXCOM Conclusion No. 46 (XXXVII) 1987 – General Conclusion on
International Protection, ECXCOM Conclusion No 54 (XXXIX) 1988 – Refugee
Women, EXCOM Conclusion No. 60 (XL) 1989 –General Conclusion on Inter-
national Protection, EXCOM Conclusion No. 64 (XLI) 1990 – Refugee Women
and International Protection, EXCOM Conclusion No. 73 (XLIV) 1993 – Refugee
Protection and Sexual Violence.
10 See for example Charlesworth, & Chinkin, n. 6 above, 201 – 247.
11 European Parliament Draft Opinion of the Committee on Citizens’ Freedoms and
Rights, Justice and Home Affairs for the Committee on Women’s Rights and Equal
Opportunities on female genital mutilation, (INI012035) 12 June 2001.
542
their cultural origin.”12 In 1996 the European Parliament urged member states to
adopt guidelines on asylum claims by female asylum seekers and in November
2003 it adopted a resolution calling member states to take into account persecu-
tion and/or fear of persecution suffered by women on account of their sex.13
2.1 Gender Guidelines

One response of governments, international organisations and tribunals has been
the adoption of gender guidelines which seek to give specific guidance to deci-
sion makers in the civil service. UNHCR was the role leader in this regard intro-
ducing Guidelines on the Protection of Refugee Women in 1991. Its approach
was followed by non-European countries such as Canada14, the USA15 and
Australia16. Gender guidelines have been introduced in some European coun-
tries, noticeably the Netherlands17 and the UK.18 Another approach has been to
amend mainstream asylum guidelines to address the concerns of women.19
2.2 Legislative Responses

Other countries have modified their asylum laws or practices in response to
criticisms. 20 The Swiss asylum laws were modified in 1998 to add the words:
12 Council Resolution on EU Minimum Guarantees on Asylum Procedures (OJ 1996

C 274), para 28.
13 Crawley and Lester, n. 2 above, paras. 78, 132.
14 Canadian Immigration and Refugee Board, Guidelines on Women Refugee Claim-
ants Fearing Gender-Related Persecution 1993, updated 1996.
15 Immigration and Naturalization Service, Considerations for Asylum Officers Adjudi-
cating Asylum Claims From Women, 1995.
16 Department of Immigration and Multicultural Affairs, Refugee and Humanitarian
Visa Applicants; Guidelines on Gender Issues for Decision Makers, 1996.
17 Dutch Immigration and Naturalisation Service, Work Instruction no. 148: Women in
the Asylum Procedure, 1997.
18 Immigration Appellate Authority, Asylum Gender Guidelines, 2000. The UK’s
Gender Guidelines are addressed to judicial decision makers in the Immigration
Appellate Authority rather than to civil servants. In 2004 the UK Immigration &
Nationality Department adopted gender guidelines geared towards initial decision
makers.
19 For a full survey of national guidance in European states see Crawley and Lester,
n.2 above, paras. 97 –126.
20 For examples see – European Council on Refugees and Exiles, Social and Legal
Conditions for asylum seekers and refugees in Western Europe 2000, Austria requires
that asylum seekers who fear persecution on the grounds of their gender must, if
they request, be interviewed by an official of the same sex; in Germany a women
whose asylum claim is related to sexual violence or “‘gender related persecution’
may request to be interviewed by a female officer with the assistance of a female
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Natalia Berkowitz
“motives of flight specific to women shall be taken into account.”21 The “pre-
liminary works” of the French Aliens Act 1991 refer to the need to take into
account the UN Convention on Elimination of All Forms of Discrimination
Against Women when assessing a woman’s need for protection and whether to
grant a residence permit or not?.22 In Sweden the law was also modified.23 The
Irish Refugee Act 1996 states that membership of a social group includes, inter
alia, “membership of a group of persons whose defining characteristic is their
belonging to a group of persons whose defining characteristic is their belonging
to the female or the male sex” and sexual violence is specifically acknowledged
as a form of persecution: a person’s freedom shall be regarded as threatened
“if he/she is likely to be subject to serious assault including that of a sexual
nature”.24
3 Gendered Issues and the draft Directives

3.1 Women as Asylum Seekers in Europe
In Europe approximately one third of asylum seekers are probably female, but
they do not come equally from all countries.25 Instead greater numbers of female
asylum seekers come from those countries from which the largest number of
asylum seekers come – i.e. when more asylum seekers come from a particular
country the proportion of women among them is higher. The implication is that
in countries in which resources to travel to Europe are scarce it is the men who
have those funds, or family funds are first allocated to men. Thus even who
travels to claim protection in Europe is gendered.26 By contrast it is possible that
women are more likely to be part of organised intakes of refugees from first
countries of asylum.27
interpreter. However, as female applicants are not always informed of this right, this
is not applied in all cases.”
21 For a lucid discussion of gender and Swiss Asylum law see: Kälin, “Gender-related
Persecution in Swiss Asylum Law” in Chetail and Gowwland-Debbas, eds., Switzer-
land and the International Protection of Refugees Brill, 2002
22 European Council on Refugees and Exiles, Social and Legal Conditions for Asylum
Seekers and Refugees in Western Europe 2000.
23 For criticism of the Swedish approach see Folkelius and Noll, “Affirmative Exclu-
sion? Sex, Gender, Persecution and the Reformed Swedish Aliens Act” 10 IJRL
(1998). See also Crawley and Lester, n. 2 above, paras. 111-118 and 401-415.
24 O’Mahony, Chief Executive, Irish Refugee Council in: Canadian Council for Refu-
gees Network on Women Fleeing Gender-Related Persecution Newsletter, Issue 1, 29
May 2000
25 Spijkerboer, n.2 above, page 24, Crawley and Lester, n.2 above, para. 51.
26 Spijkerboer, n. 2 above, 15 –17 and 26.
27 Kofman, Phizacklea, Raghuram and Sales, Gender and Migration in Europe (Rout-
ledge, 2000), 75.
544
One of the ways in which third country national women arrive in Europe is
through being trafficked for sexual exploitation. The EU has adopted a Frame-
work Decision on combating trafficking in humans and a Directive on short
term residence permits for victims of trafficking.28 For the protection of the vic-
tims it is essential that they should be entitled to seek and obtain asylum or
subsidiary protection where needed.29 Unfortunately the directive only hints in
the Explanatory Memorandum at the possibility of victims claiming subsidiary
protection. The UK, Ireland and Denmark are not taking part in the directive.
In recent years there has been debate regarding whether female asylum
seekers are statistically discriminated against in Europe. One author has sug-
gested that while gender has a widespread effect in the asylum determination
process there is no statistical discrimination against female asylum seekers and
they may be more likely to be granted refugee or humanitarian status than
male asylum seekers.30 Others point to the lack of clarity in the statistics, the
difficulties in analysing ‘fairness’ solely on the basis of statistical data and to
the fact that, given the difficulties faced by women in leaving their countries of
origin, their claims for asylum may be stronger.31 Simple statistical comparisons
between success rates by female and male asylum seekers are complicated by the
fact that higher proportions of women asylum seekers come from countries of
origin in respect of which there is generally a higher rate of success.32 Moreover
such comparisons seek to answer the wrong question; the question is not, are
the same number of men and women granted protection, but is the Refugee
Convention applied correctly in a manner which responds to the international
protection needs of the individual asylum seeker.
3.2 The Experiences of Women

“While access to the refugee protection regime is universal, the refugee definition
is strict and requires a highly specific examination of the particular characteris-
tics and circumstances of the refugee claimant.”33 This chapter thus advocates
28 Respectively OJ 2002 L 203/1 (see Ch. 27) and Council Directive 2004/81/EC (see
Ch. 29).
29 The UK’s Immigration Appeal Tribunal recognised the fears of a trafficked woman
from the Ukraine as entitling her to refugee status in Dzhygun (00TH00728) 17 May
2000. UNHCR expressed concerns that the EU proposals did not acknowledge the
rights of smuggled and trafficked persons to claim and receive refugee status – see
“UNHCR comments on the French Presidency proposals for a Council Directive
and Council Framework Decision on preventing the facilitation of unauthorised
entry and residence” UNHCR Geneva 22 September 2000.
30 Spijkerboer n.2 above, pages 15 – 40.
31 Berkowitz, n.2 above and Crawley and Lester, n. 2 above paragraphs 58 – 70.
32 Spijkerboer, n.2 above page 24.
33 Haines, n. 2 above, para. 9.
545
Natalia Berkowitz
the need for international protection definitions and procedures to be open to

and take account of the particular experiences of women.
While generalisations are risky, it is necessary to present a broad brush
picture of some of those experiences which may affect claims for international
protection. “Although its forms differ significantly across societies and cultures,
the phenomenon of women’s subordination is found worldwide. Throughout
the world women are economically, socially, politically, legally and culturally
disadvantaged compared with similarly situated men.”34
In many, if not all, countries women’s primary role, identity and protection
are considered to stem from the family (and secondly from the community). The
degree to which this is so and to which women live their lives within this private
sphere differ from country to country and family to family, but in all there is a
power relationship in which women, in general, have less power within the state
and a subordinate status to men. The effects for women’s lives are considerable
and varied. They range from the amount of education girl children receive, to
the amount of food that women eat, to their inheritance and land rights, control
of their own bodies, reproduction, sexuality and choice of relationships, to their
freedom of movement, access to justice and ability to participate in public life, to
take employment, the types of employment open to them and the amount they
are paid. Their position in society means that women are particularly subject
to control by the family, in some cases even to the extreme of being seen as the
property of the family and community.
States may create or perpetuate laws and social (and/or religious) practices
premised on this paradigm of women’s roles and protection. Women’s oppor-
tunities to access state protection may also be affected by this paradigm – for
example, the police may be reluctant to become involved in family matters
considering that men have a right to “discipline” their wives, or consider that
the family rather than they are responsible for the protection and control of
women35, or there may be barriers to women accessing state justice. There may
be a link with concepts of “shame” and “honour” which allow the family to take
action against women who are seen to have brought dishonour – for example by
engaging in sexual activity not condoned by the family.36
International human rights law stresses the equality of men and women
under rule of law and the obligation on states to take action against customary,
34 Charlesworth & Chinkin, n. 6 above, 4.

35 In a case from Kyrgyzstan a single Russian woman complained to the police super-
intendent about sexual threats and harassment at work, his response was to try to
rape her; when she faced further difficulties she was told to find a Kyrgystani lover
and she would have no further problems. Gromozdina [2002] UKIAT 00390, 15 Feb.
2002.
36 For a clear exposition of the role of honour in Iranian society see Re MN Refugee
Appeal No. 2039/93, 12 February 1996 (RSAA New Zealand).
546
traditional and other laws and practices which “nullify and impair” women’s
protection by the state.37 Thus recognizing that states are not by-standers in rela-
tion to the position of their female citizens and that the protection and opportu-
nities afforded to women within society are rarely, if ever, simply a general state
of affairs, but rather the result of particular power structures within that society
which government may, or may not, take action to change.
States and societies themselves may use women as political symbols; for
example by defining their identity through the moral restrictions they place
upon their women. In the words of the UN Special Rapporteur on violence
against women –
“In short, women become symbolic battlefields where cultural boundaries are
guarded and wars are fought. They have yet to be included in the build-
ing of the peace.” 38
These issues have implications for the application of refugee law and procedures
including in respect of:
– the nature of harm feared and suffered by women
– the availability of state protection
– the interpretation of Convention grounds
– access to the refugee procedures and ability to satisfy evidential require-
ments
37 For State’s obligations in international human rights law see, e.g..Human Rights
Committee General Comment 28 Equality of Rights Between Men and Women
(2000) para 5: States parties should ensure that traditional, historical, cultural or
religious attitudes are not to be used to justify violations of women’s rights to equal
enjoyment of all rights in the International Covenant on Civil and Political Rights
1966 including equality before the law. Convention on the Elimination of All Forms
of Discrimination Against Women 1979: inter alia, Art 2: State’s Parties condemn
discrimination against women in all its forms, agree to pursue by all appropriate
means and without delay a policy of eliminating discrimination against women
and, to this end, undertake …(b) to adopt legislative and other measures, including
sanctions where appropriate, prohibiting all discrimination against women, (d) To
refrain from engaging in any act or practice of discrimination against women and
to ensure that public authorities and institutions shall act in conformity with this
obligation, (e) To take all appropriate measures to eliminate discrimination against
women by any person, organisation or enterprise and Art 5: States Parties shall take
all appropriate measures: (a) to modify the social and cultural patterns of conduct
of men and women, with a view to achieving the elimination of prejudices and cus-
tomary and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women.
38 Report of the Special Rapporteur on violence against women its causes and conse-
quences, Yakin Erturk, 26 December 2003, UN Doc. E/CN.4/2004/66, para 37; see
also, for the use of gender in nation building, Crawley, n. 2 above.
547
Natalia Berkowitz
4 Refugee Protection and the EU Proposals

According to the EU, “the particular situation and needs of women” were a
“key aspect taken into account while preparing the Common European Asylum
System” and the “European Commission considers it important to address the
particular circumstances affecting women seeking international protection.”39
This chapter comments on some gendered issues of relevance to the Directive
on the Refugee Definition (“the Qualification Directive”) and the Directive on
Minimum Procedures (“the Procedures Directive”).40
As a preliminary observation, the Directives appear to use carefully gender
neutral language and it is to be hoped that States follow this practice in trans-
posing them. This may seem pedantic, but is not. One issue for women asylum
seekers in Europe is that they do not fit the mould of a refugee, i.e. that they
simply do not look or sound like the sort of person that the persons working
within asylum determination processes assume a refugee is. Language is a major
carrier of such assumptions. The use of gender neutral language may assist in
ensuring that groups are not denied refugee status for reasons of assumptions
and prejudice rather than because they are not in fact refugees within the defini-
tion of the Refugee Convention.41
As a secondary observation, it is noticeable that the final versions of the
two directives have eradicated some of the references to gender or sex which
existed in previous drafts42 and altered others. While in some cases this may have
little effect, in others it is disappointing – for example in respect of training.
39 Europa – Justice and Home Affairs website “The European asylum system caters
for women’s specific needs”, <http://europa.eu.int/comm/justice_home/fsj/asylum/
women/fsj_asylum_women_en.htm>.
40 This chapter considers the following texts: Council Directive 2004/83/EC on mini-
mum standards for the qualification and status of third country nationals and state-
less persons as refugees or as persons who otherwise need international protection
and the content of protection granted and Council Directive 2005/85 on minimum
standards on procedures in Member States for granting and withdrawing refugee
status (OJ 2005 L 326/13).
41 For the relevance of male based language in international law see Charlesworth &
Chinkin, n. 6 above, 49; for its relevance in refugee law see Spijkerboer, n. 2 above,
204.
42 Proposal for a Council Directive on minimum standards for the qualification and
status of third country nationals and stateless persons as refugees or as persons who
otherwise need international protection COM(2001) 510final, 12 September 2001
and Amended Proposal for a Council Directive on minimum standards on proce-
dures in Member States for granting and withdrawing refugee status COM(2002)326
final2 3 July 2002.
548
5 Harm Justifying Protection under the Draft Directive on Refugee

Definition
5.1 Harm Suffered by Men and Women
Men and women frequently suffer the same forms of harm and ill-treatment,
including torture and deprivation of liberty by the state. However some forms of
harm are disproportionally suffered by one sex than the other or have different
effects on their lives.
Such gender-specific harm against women includes:
– Harm in the family: women disproportionately suffer serious harm within
the family context including: – physical, sexual and psychological domes-
tic violence, spousal rape, dowry related violence, honour killings, female
genital circumcision/mutilation, forced marriage and temporary marriage
(mut’a/singheh), enforced purdah and imprisonment within the home.
– Sexual violence: including rape, sexual violence and sexual harassment,
trafficking in women, forced prostitution, female genital mutilation.
– Discriminatory violations of their civil, political, economic and social rights
and discriminatory social and/or religious mores:43 these include restric-
tions on their freedom of political participation, freedom of movement,
rights to work, to health care, to education to equality before the law, their
personal control of their bodies including their sexuality and fertility such
as dress codes, purdah, female genital mutilation. Discriminatory social/reli-
gious mores may pose serious threats to women’s lives and well-being – for
example discriminatory inheritance laws and restrictions on women’s access
to employment can lead to widows and single women being rendered home-
less and destitute, the wearing a heavy veil is not simply the female version
of modest male dress codes, but has health risks for the wearer.44
5.2 The Qualification Directive

The Qualification Directive contains two separate concepts of harm: 1) perse-
cution for a Convention reason which may lead to refugee status (Art 9), and
2) serious harm which may lead to subsidiary protection (Art 15). These are
arguably the most important concepts in both the Refugee Convention45 and the
Directive. How they are interpreted will determine what percentage of asylum
43 Article 1 CEDAW defines discrimination against women as “any distinction, exclu-

sion or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women, irrespec-
tive of their marital status, on a basis of equality of men and women, of human
rights and fundamental freedoms in the political, economic, social, cultural, civil or
any other field.”
44 Charlesworth & Chinkin, n. 6 above, 9 –10 and 233-244; Owen, World of Widows
(Zed Books, 1996).
45 UNHCR Handbook paragraph 37.
549
Natalia Berkowitz
seekers are granted refugee status or subsidiary protection and whether women
are granted international protection from the sorts of serious harm that they
face. Further, these concepts encapsulate the difficulties which host states face in
criticising others states practices (including, especially in relation to women, the
issue of cultural relativism).46
Gender neutral and internationally consistent interpretations of persecu-
tion and serious harm are most likely to obtained if harm is assessed against
international human rights standards, including those set out in instruments
regarding women. While international human rights law itself has been criti-
cised for gender discrimination47 it does at least provide a clear international
benchmark. In applying human rights standards care needs to be taken to apply
those standards in a non-discriminatory way and in relation but to both those
within the public and within the private family sphere.
The definition of persecution in the Qualification Directive (Article 9) does
contain a link to human rights law. Acts will be considered persecution if –
(a) they are sufficiently serious to be a “severe violation of basic human rights”
in particularly non-derogable rights under ECHR; or
(b) they are an accumulation of measures, including human rights violations,
“sufficiently severe as to affect an individual in a similar manner”.
The definition is to be applauded for making clear that acts of physical and
mental violence, including sexual violence may be persecution as may be “acts
of a gender-specific ... nature” (Article 9(2)(a) and (f)) and discriminatory state
measures including legal, police, judicial (Article 9(2)(b)-(d)).
However issues remain as to whether this definition will provide protec-
tion from the harms suffered by women. The definition of persecution allows
considerable discretion to Member States. The definition basic human rights in
Article 9(1)(a) is unclear. Article 9(1)(b) is yet less clear – will it, for example, be
46 Lord Justice Ward in Horvath (CA) identified these difficulties: “Persecution is such
an affront to human dignity that international law places the obligation on contract-
ing States to give refuge to the persecuted. That demand undoubtedly creates some
tension. On the one hand the humanitarian aim is to save the refugee from that
persecution ... On the other hand, since persecution involves direct State activity
or non-State activity which the State is unwilling or unable to prevent, then, if only
as a matter of international comity, one State will not lightly find that another has
been directly or indirectly implicated in acts of persecution.” See also the comments
of Lord Hoffman in Islam v SSHD, R v IAT & another ex parte Shah (HL) [1999] 2
AC 629, [1999] 2 WLR 1015, [1999] 2 All ER 545, [1999] Imm AR 283, [1999] INLR
144 and, as an example of cultural relativism, – “even rape, albeit systematic rape ...
is simply an aspect, or may be an aspect, of culture or normal social behaviour such
that in this country it would be looked upon with abhorrence.” R v SSHD ex parte
Sharka, CO/1821/95, High Court, 1 Nov. 1995.
47 Charlesworth & Chinkin, n. 6 above, 201 – 249.
550
interpreted to include serious discrimination in relation to ability to work and

obtain a livelihood or to medical care? While the definition refers to human
rights under ECHR, as a UN treaty, arguably the Refugee Convention is more
appropriately interpreted by reference to UN human rights treaties. All that is
clear is that risk of violation of ECHR non-derogable rights will be persecu-
tion, ie – 1) the right to life, 2) prohibition on torture, inhuman and degrading
treatment, 3) prohibition on slavery and servitude and 4) prohibition on retro-
spective criminality. In this vein, the following are food for thought – trafficking
for sexual or other purposes has been approached by UN as slavery48, medical
procedures (such as enforced sterilization or abortion) without consent will be a
violation of the right to private life49 and may be torture, inhuman or degrading
treatment,50 and discrimination may be inhuman or degrading treatment51.
More broadly, the Qualification Directive states that, in assessing a claim
for international protection “the individual position and personal circumstances
of the applicant, including factors such as background, gender and age, so as to
assess the whether, on the basis of the applicants’ personal circumstances, the
acts to which he or she has been or could be imposed would amount to persecu-
tion or serious harm.”52
Some particular issues of concern are addressed below.
5.3 Military Service

Forced military service is a little recognised gender specific harm.53 While women
may be forced to perform military service and forced to provide domestic, sexual
and other services for combatants it is largely men who are conscripted to fight
against their will. The Qualification Directive usefully clarifies the law contained
in the Refugee Convention and the guidance contained in the UNHCR handbook
and brings this type of claim into the mainstream of refugee law.54 However the
current provision is considerably narrower than previous drafts. In the current
draft persons who risk prosecution for refusal to perform military service will
only be eligible for refugee status under this head if such service would involve
48 See for example Office of the High Commissioner for Human Rights, Fact Sheet
No. 14 Contemporary Forms of Slavery, <http://www.unhchr.ch/html/menu6/2/fs14.
htm>.
49 Peters v the Netherlands European Commission on Human Rights, Application No.
21132/93.
50 See IAA Gender Guidelines para 2A.22
51 East African Asians v UK (1973) 3 EHRR 76, Smith & Grady v UK (1999) 29 EHRR
493.
52 Art. 7(3)(c).
53 Spijkerboer, n. 2 above, 129.
54 Art. 4(2)(c) Qualification Directive.
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Natalia Berkowitz
participation in war crimes, crimes against humanity or serious crimes (Article

9(2)(e)). A previous draft, in keeping with the UNHCR Handbook (para 170)
referred to the applicant having to act against their “deeply held moral, religious
or political convictions, or other valid reasons of conscience”55.
5.4 Sexual Violence by State Agents

In practice the difficulty faced by women in sexual violence cases is often not
whether the feared harm may be persecution, but rather whether it engages
the responsibility of the state of origin. Where feared harm stems from, or is
inflicted by, state agents there is normally no need to assess whether state protec-
tion exists. However decision makers often depart from this practice in the case
of sexual violence inflicted on women by state agents such as police or military.
“[I]n sexual violence cases, the idea that the acts of the State agents are, in fact,
private acts is often put forward by the administration and regularly accepted
by courts.”56 This interpretation of the Refugee Convention disproportionately
affects female asylum seekers. It concerning that decision makers appear fre-
quently to understand such violence as a result of random male lust rather than
linked to women’s activities and associations. Such views appear contrary to
international human rights caselaw57 and in ignorance of developments within
criminal law understanding the motives of sexual violence as aggression and
humiliation rather than simple sexual satisfaction.58
5.5 Sources of Harm

Given women’s particular susceptibility to harm from non-state actors, gender-
neutral international protection requires that persons be protected from harm
by non-state agents. The Qualification Directive, in Article 9, recognises that
harm amounting to persecution or serious unfounded harm may be inflicted by
55 Art. 11 (d) Draft Qualification Directive COM(2001) 510 final, 12 September

2001.
56 Spijkerboer, n. 2 above, 113; Crawley & Lester, n. 2 above paras 138 – 169.
57 Raquel Martí de Majía v Perú, Case 10.970, Report No. 5/96, Inter-Am.C.H.R.,
OEA/Ser.L/V/II.91 Doc. 7 at 157 (1996): “sexual abuse committed by members of
the security forces, whether as a result of a deliberate practice promoted by the State
or as a result of failure by the State to prevent the occurrence of this crime, consti-
tutes a violation of the victim’s human rights”; Aydin v Turkey (1997) 25 EHRR 251
in which the ECHR stressed the obligation on the state to prosecute state official
responsible for rape and considered that the Turkish inquiry had been ineffective
and had focused on whether the victim was a virgin rather than on whether she was
a rape victim.
58 See, for example, Immigration Appellate Authority Gender Guidelines n.19 above
at para 2A.18; in respect of sexual violence during war or internal conflict see also
Crawley n.2 above, Rome Statute of the International Criminal Court Articles 7 and
8.
552
non-state agents. Moreover political opinion is defined in Article 10(1)(e) as one

“related to” any of the potential persecutors – not simply to the state.59
5.6 State of Origin Protection

The issue of state of origin protection is especially important for female ref-
ugees because of their particular vulnerability to harm from non-state agents
and because of the issue of privatised sexual violence. The test “serious harm +
failure of state protection = persecution”60 directs decision makers to consider
the role of the state and the way in which state failure to protect may transform
harm from non-state agents into persecution for a Convention reason.61
The question of what degree of protection the asylum applicant should
expect from his/her home state and thus from the country of asylum where the
fear is from non-state agents is often difficult. The Qualification Directive pro-
vides in Article 7(2) that:
“Protection is generally provided when the actors mentioned in paragraph 1

[the State and parties or organisations, including international organizations,
controlling the State or a substantial part of the territory of the State] take
reasonable steps to prevent the persecution or suffering of serious harm, inter
alia, by operating an effective legal system for the detection, prosecution and
punishment of acts constituting persecution or serious harm, and the appli-
cant has access to such protection.”
The above definition is open to criticism. There is no question of the Refugee

Convention guaranteeing protection to female, or male applicants, the focus
needs to remain on the central Refugee Convention question – is there a reason-
able likelihood/real risk of harm, rather than on whether reasonable steps are
being taken to counter it. The point is obvious – for example, in a country with
a high incidence of kidnapping of women and children for the sex trade it would
be reasonable for the state to criminalize such activities, but may be inadequate
to reduce the risk to below a reasonable likelihood for an individual where the
practice is considered culturally acceptable, or if law enforcement officials are
themselves involved in or benefiting from the trade. The reasonableness test sits
well within human rights law, but it is questionable whether it is appropriate or
59 This is an advance on the Handbook on Procedures and Criteria for Determin-

ing Refugee Status under the 1951 Convention and the 1967 Protocol relating to
the Status of Refugees, 1992 (‘UNHCR Handbook’); paragraphs 80 – 86 of which
appear to assume that ‘political opinion’ will be one about the Government
60 Islam v SSHD, R v IAT & another ex parte Shah (HL) [1999] 2 AC 629, [1999] 2
WLR 1015, [1999] 2 All ER 545, [1999] Imm AR 283, [1999] INLR 144.
61 UNHCR, Position Paper: Gender-Related Persecution, January 2000, <www.unhcr.
ch/cgi-bin/texis/vtx/hom/opendoc.pdf ?tbl=PROTECTION&id=3b83c0ae4>.
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Natalia Berkowitz
useful in refugee law to involve decision makers in deciding what it is reasonable

for a state to do. “The refugee inquiry is not an inquiry into blame”,62 but rather
an inquiry into whether the applicant is protected by his or her state of origin.
Refugee procedures with their emphasis on speed are perhaps not best suited
to minute and careful examination of another state’s legal system and the way
in which it is or is not implemented. Neither are refugee lawyers well equipped
to do so. The risk is of a formulaic result which relies more on the existence of
formal laws than on whether they are implemented or adequate. A large protec-
tion gap may exist between taking “reasonable steps to provide protection” and
the existence of protection, even reasonable protection, – it is a gap into which
female applicants, for example those fearing harm in the form of customary
practices, may fall.63 Whether this protection gap exists will depend on the level
of protection which decision makers in Europe consider it reasonable for the
state of origin to provide.
A further question focuses on the words “has access” – what does this mean
in practice? Where local police refuse to get involved in ‘domestic matters’ will a
woman be said to have access if there exists the legal possibility of complaining
to a higher authority? What about if she requires money to access that higher
authority which she does not have, or if it is a long way away and women have
difficulty traveling without male chaperones? Does a woman obliged stay inside
the house by her family have “access”? Does a woman have “access” if the law
contains discriminatory evidential provisions? Women may have serious prob-
lems in accessing justice even where, in general, it is available to men. The UN
Special Rapporteur on Violence Against Women in her December 2003 report
noted a range of problems for women in accessing justice. 64 Such problems
include –
– prejudice by judicial, law-making and law-enforcing institutions,
– laws in many countries, including evidential and procedural requirements,
fail to protect women either by discriminating against them or through
omissions and failure to provide for their protection needs, even where the
constitution provides for the equality of men and women.65
62 Haines, n. 2 above, para 29. See also Anker, Refugee Law, Gender, and the Human
Rights Paradigm, Harvard Human Rights Journal, Vol. 15, Spring 2002: “refugee
law is not aimed at holding states responsible; its function is remedial.” <http://
www.law.harvard.edu/students/orgs/hrj/iss15/anker.shtml>.
63 UNHCR, Position Paper: Gender-Related Persecution, January 2000, <www.unhcr.
ch/cgi-bin/texis/vtx/hom/opendoc.pdf ?tbl=PROTECTION&id=3b83c0ae4>.
64 Report of the Special Rapporteur on violence against women its causes and conse-
quences, Yakin Erturk, 26 December 2003, UN Doc. E/CN.4/2004/66
65 See for example Venia Magaya v Nakayi Shonhiva Magaya (Supreme Court of Zim-
babwe) Judgement No. SC 210/98, Civil Appeal No. 635/92, 2 November 1998 & 16
554
– enforcement of the laws relating to the protection of women may be partic-

ularly ineffective especially in relation to harm occurring within the family
and/or where there are discriminatory social (and/or religious) mores espe-
cially where such views are shared by the judiciary and law-enforcement
agencies.
– women particular difficulties in accessing justice due to their position within
society relative to men – e.g. their lack of mobility, lack of control over
financial resources, limited education including in relation to accessing the
law, lack of lawyers or legal advisers specialising in the concerns of women.
Women are also hampered in accessing justice where harm against women
is regarded as justified by custom, tradition or religion or where they justifi-
ably fear repercussions in the home or community as a result of publicising
the harm.
5.7 Protection from State-like Authorities

Article 7(1)(b) of the Qualification Directive provides that protection may be
provided by state-like bodies including international bodies. Such bodies may be
no more responsive to gender specific forms of harm than states. International
peace-keeping forces for example are made up of contingents from many differ-
ent countries with different cultures and training – some may be responsive to
the particular needs of women and others may not.
5.8 Internal Protection Alternative

Internal protection should be assessed on the basis of what is reasonable for
the particular applicant. Women’s position within their countries of origin may
influence the reasonableness of a particular internal relocation alternative for
them. For example, women may face legal or societal or religious limitations
on their freedom to travel or to travel without male relatives; they may find it
impossible to live without male relatives or may be vulnerable to sexual abuse or
prostitution.66 Article 8 requires Member states to “have regard to the general
circumstances prevailing in that part of the country and to the personal circum-
stances of the applicant”. The “personal circumstances of the applicant” would
obviously include their gender, it is hoped that the “general circumstances” will
be interpreted to include the general circumstances for female applicants. This
omits the more specific instructions to Member States contained in a previous
draft that, in examining whether an applicant could reasonably be returned to
another part of their country of origin, they have regard to the security, political
February 1999 referred to in Charlesworth & Chinkin, n . 6 above, 123 and Madhu
Kishwar & others v State of Bihar & Others (1996) SCC 125.
66 For the vulnerabilities of internally displaced women see e.g. Internally Displaced
People: A Global Survey, Earthscan Publications (1998), Norwegian Refugee Coun-
cil.
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and social circumstances prevailing in that part of the country, including respect
for human rights, and to the personal circumstances of the applicant, including
age, sex, health, family situation and ethnic, cultural and social links.”67
5.9 Persecution and Subsidiary Protection

Recent studies have expressed concern that women in need of protection are
granted subsidiary protection rather than full refugee status since, while their
need protection is recognised, their claims are seen as different than “normal”
refugee claims.68 This matters because persons receiving subsidiary protection
normally have lesser protection than refugees.69 Given the very narrow definition
of serious harm in Article 15 of the Qualification Directive it is not possible to
say whether this will continue to be the case. It defines serious harm as –
a) death penalty or execution; (ie treatment in violation of Protocol 6 or 13
ECHR)
b) torture, inhuman or degrading treatment or punishment (ie where there is
no Convention reason or one of the exclusion clauses applies);
c) serious and individual threats to a civilian’s life or person during general-
ized violence in international or internal armed conflict.
Article 15 (c) raises concerns for the position of women during international or
international armed conflict. The Refugee Convention does not provide pro-
tection from generalised violence during civil war, but under the jurisprudence
of many states it may provide protection from “serious and individual” threats
during generalised violence – for example where a person fears violence because
they are a member of a particular targeted ethnic group.70 Article 15 would thus
appear to place in the category of serious harm some threats which should enti-
tle a person to refugee status. Further, the recital in the Preamble to the draft
Qualification Directive that “[r]isks to which a population of a country or a
section of the population is generally exposed do normally not create in itself an
individual threat in line with Article 15(c)” may restrict the protection still fur-
ther. In recent years there has been increased awareness of how sexual violence
against women of a particular racial, national or religious group is used as a
67 Proposed Council Directive on minimum standards (COM(2001) 510 final, 12 Sep-

tember 2001).
68 Spijkerboer, n. 2 above, 114, 130. The Swedish Aliens Act has been criticised in this
regard – see Folkelius & Noll, n. 22 above.
69 Art. 24 of the Qualification Directive provides that refugees shall be granted a three
year residence permit and beneficiaries of subsidiary protection a one year residence
permit. Beneficiaries of subsidiary protection also have fewer rights in relation to
employment (Art 26), social welfare (Art 28) and health care (Art 29).
70 Guy Goodwin-Gill, The Refugee in International Law, Oxford University Press
(1996), page 75.
556
weapon of war, not only in Bosnia and Rwanda, but in many conflicts – such
women are evidently in need of international protection – it is hoped that these
provisions will not be used to deny refugee protection or, at worst subsidiary
protection, to those in need.
6 Convention Grounds
Men and women have many similar experiences in their countries of origin –
such as imprisonment and state violence for political activism, but the nature of
women’s lives mean that their experiences under the Convention grounds may
be different. “Ensuring that a gender-sensitive interpretation is given to each
of the Convention grounds can prove very important in determining whether a
particular applicant has a well-founded fear of persecution on account of one
of the Convention grounds.”71
Women’s identities, as mentioned above, are often seen primarily as defined
by their family, male relatives or communities. This may make them particularly
subject to persecution on the basis of imputed/attributed Convention grounds;
they may be seen as sharing their male relative’s political, racial and religious
affiliations and views rather than having independent affiliations of their own.
Inflicting harm on a person’s family and home may be a particularly effec-
tive way of attacking opponents. For example the UN Special Rapporteur on
Violence Against Women has pointed out that “rape and forced pregnancy of
women affiliated with an enemy group” may be used “in order to dishonour an
entire social group.”72 As a result women may face harm because of the actions
or opinions of her family members even where she herself does not share them.73
Article 10(2) of the Qualification Directive does provide for protection to be
granted in such circumstances.
6.1 For Reasons of

Women asylum claimants appear to have particular difficulties in proving that
the harm they risk suffering is as a result of a Convention ground. This issue has
already been alerted to in relation to sexual violence, but studies suggest that the
problem is more wide-spread.74 It is thus disappointing that the statement in a
previous draft of the directive that “[w]here the form of persecution is gender
– or child-specific this should not obscure the reason why the persecutory or
71 UNHCR, Summary Conclusions of the San Remo Expert Roundtable on Gender

Related Persecution, 6-8 September 2001.
72 Report of the Special Rapporteur on violence against women, its causes and conse-
quences Yakin Erturk, 26 December 2003, UN Doc. E/CN.4/2004/66.
73 Crawley, n. 2 above, 86 – 88.
74 Spijkerboer, n. 2 above.
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Natalia Berkowitz
harmful act occurred”75 has been deleted from the current version. Understand-
ing the convention grounds through a paradigm of female experiences may assist
to ensure that women’s experiences are not depoliticized and personalized.
6.2 Race and Nationality

Because of their reproductive role, women may be perceived as the carriers and
pro-genitors of a racial or ethnic identity. This may affect the form of the harm
they face – for example sexual violence, forced mixed race marriage or control
of reproduction all may be motivated by a desire to weaken, or annihilate a par-
ticular race or ethnic group and mass rape may be used as a form of genocide.
Women sometimes have a particular symbolic role as ‘mothers of the nation’
in the formation or identification of a state/national group; their humiliation
similarly may be used to humiliate an entire nation76 or a community. Where the
family or community’s honour is defined by the sexual purity of its women or
where the family is understood as responsible for the protection of its women
the effects for women may be particularly serious. For women’s protection it is
important that the Convention ground is recognised; a study of Dutch refugee
procedures found that immigration officials tended to find that sexual violence
was motivated by convention grounds in relation to Bosnian applicants, perhaps
unsurprising given the widespread publicity about the use of rape as a form of
ethnic cleansing, but not in relation to applicants from other countries.77
Women may also be denied citizenship rights in some circumstances – for
example if they marry a foreign national; and if married, may be seen as affili-
ated with their husbands nationality.
6.3 Religion
Religion and religious laws may proscribe, or provide the justification for, codes
of behaviour, particularly for women; for example religion may proscribe dress
codes, prohibition of birth control or abortion, restrictions on sexuality, child
marriage, restrictions on freedom of movement, access to education and employ-
ment, behaviour following widowhood, the particular allocation of property on
inheritance, female genital mutilation/circumcism. Such provisions may them-
selves be persecution or women who transgress them may be subject to perse-
75 Art. 7(d) and in the explanatory memorandum to Art. 7 at (4 Proposal for a Council
Directive on minimum standards for the Qualification and Status of third country
nationals and stateless persons as refugees or as person who otherwise need interna-
tional protection, COM (2001) 510 final, 12 September 2001.)
76 Charlesworth & Chinkin, n. 6 above, 254. For an account of sexual violence against
women and its symbolic role in the partition of India and Pakistan see Butalia, “A
Question of Silence: Partition, Women and the State” in Lentin, ed. Gender and
Catastrophe (Zed Books, 1997).
77 Spijkerboer, n. 2 above, 97 and 105.
558
cution. The Qualification Directive appears to recognize this; Article 10(1)(b)

states –
“the concept of religion shall in particular include the holding of theistic, non-
theistic and atheistic beliefs, the participation in, or abstention from, formal
worship in private or in public, either alone or in community with others, other
religious acts or expressions of view, or forms of personal or communal con-
duct based on or mandated by any religious belief ”.
The Convention grounds of religion and politics may overlap. This is most obvi-
ous where the state is a theocracy, committed to atheism or secularism.78 But may
also occur in other situations79 including harm where from emanates from reli-
gious non-state agents or where law is based or influenced by religion. In many
countries religion has a powerful role which the state is unwilling or unable to
challenge and religious law may prevail in some areas – such as the family.
6.4 Political Opinion

For female asylum seekers one problem is a tendency for refugee decision makers
to fail to recognise the political import of their actions and opinions and to
depoliticise and personalise them. For example, a study of decision making by
Dutch initial decision makers found that women asylum applicants were assumed
to be motivated by factors other than politics and their actions consistently seen
as apolitical, motivated by emotional, personal or economic factors.80
Few, if any acts, are inherently political. What makes an act or opinion
political is the social structure and context in which it occurs – to take a simple
issue from the west, abortion is not a political issue in Britain and a woman
choosing to have an abortion is not involved in making a political decision or
action; in the USA where abortion is a political issue the situation may be quite
different. Looking further afield, a group “drive in” by women is not generally
seen as political in Europe, but may indeed by a political protest about the status
of women in Saudi Arabia where women are prohibited from driving.81
Women have political views and visibly participate in conventional party
politics and grassroots/community politics in the same ways as men. However
some women may choose to express their political opinions through activities
78 For a lucid analysis see Re MN Refugee Appeal No. 2039/93, 12 Feb. 1996 (RSAA
New Zealand).
79 For fuller details see Immigration Appellate Authority, Asylum Gender Guidelines,
2000, n.19.
80 Spijkerboer, n. 2 above, 65-94, 104, 128.
81 See Spijkerboer, Women and Refugee Status: Beyond the Public/Private Distinction
(Emancipation Council, 1994).
559
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considered more compatible with women’s domain or roles.82 The particular

form that the activities take does not render the political opinion any less. Par-
ticularly well known in this regard is the role played by Latin American women
in protesting against disappearances and in running community soup kitchens,83
but women may provide other services, pass messages and may voice their politi-
cal opinions through their dress.84 In some countries women find difficulties in
participating in mainstream political activities for example where such activities
are disapproved of or prohibited for women; women who do participate may be
particularly visible and/or may be at risk of persecution both for their particular
activities and for having acted in a manner deemed inappropriate for women.
The position and role of women within society and issues related to their
ability to control their bodies and their lives are major political issues both at
national85 and international levels. Women may have opinions about and protest
against the gender roles assigned to them by society, their subordinate status
or the restrictions placed on them as women by society. Participation within
the feminist/women’s movement is an obvious example,86 but other examples
include refusals to conform to restrictive dress codes, state imposed restrictions
on reproduction or women’s control of fertility. Irrespective of whether a woman
describes her opinions and/or activities as political, they may non the less fun-
damentally engage the policies, views and methods of the potential persecu-
tor. Opinions about legal/cultural/societal rules relating to women’s roles and
entitlements within that society may fall into the definition of political opinion
in Article 10(1)(e) –
“the concept of political opinion shall in particular include the holding of

an opinion, thought or belief on a matter related to the potential persecutors
mentioned in Article 6 and to their policies or methods, whether or not that
opinion, thought or belief has been acted upon by the applicant.”
82 Crawley, “Gender, persecution and the concept of politics in the asylum determina-
tion process” Forced Migration Review 9, Dec. 2000.
83 Crawley, n. 2 above, 83-4.
84 Dress can be the expression of opinion within the meaning of Art 10 ECHR – see
Stevens v UK Application No 11674/85. Recent disputes in France over the wearing
of the veil in schools show the political import of dress – A Hot Rentree The Econo-
mist 28 August 2004, page 25.
85 For discussion of state policies in Iran and Chile see: Greatbatch, “The Gender
Difference: Feminist Critiques of Refugee Discourse” 1 IJRL (1989); see also UN
Special Rapporteur on violence against women, n. 39 above paras 23 – 34.
86 Fatin v INS [1993] 12 F.3d 1233 (3rd Circuit) US Court of Appeals, Crawley, n. 2
above.
560
6.5 Particular Social Group

The use of the particular social group category by women fearing persecution is
often advocated. However, despite the development of clear international juris-
prudence defining the category,87 it remains sometimes problematic. The ground
remains vague and may be seen as different than the other grounds – a catch-all
to scoop up what ever the mainstream international protection has left behind.
UK jurisprudence, for example, has shown a reluctance to use this category.88
Using this category may also serve to ignore the political or religious content
of women’s claims. Gender neutral interpretation of the Convention grounds
does not simply place women into this “other” category, but needs to carefully
analyse all grounds of the Refugee Convention. However there may be circum-
stances when the ground is important – one often suggested is female genital
mutilation/circumcism; where inflicted forcibly on a woman or child against her
will it clearly falls into the category of torture, inhuman and degrading treat-
ment and, despite case-law to the contrary,89 it is difficult to conclude other than
such treatment is inflicted on her because she is female and difficult to conclude
that her sex is other than an immutable characteristic.
Jurisprudence in the UK and Anglo-Saxon countries has developed two
separate, clear tests for particular social group: 1) the social identity test and
2) the common characteristics test.90 The Qualification Directive has been criti-
cized for tightening this Convention ground by requiring applicants to show that
both tests are satisfied rather than simply one91 (see Article 10(1)(d)). The direc-
tive definition also shows a cautious approach to gender issues, including sexual
orientation, stating “gender related aspects might be considered, without by
themselves alone creating a presumption for the applicability of this Article.”
7 Procedures and Evidence – Gendered Aspects

Fair procedures are key to any system which seeks to determine who is and who
is not a refugee. It’s almost too obvious to say that asylum status determina-
tion procedures need to be accessible and appropriate for both male and female
asylum seekers. Being fair does not simply mean treating everyone in the same
way. To be gender neutral, rather than gender blind, status determination pro-
cedures must ensure that all applicants, both male and female have an effective
opportunity to access protection and to have their protection needs assessed in
a gender neutral manner. Where the procedures and evidential requirements for
assessing claims are based on the paradigm of a male refugee they may not accu-
87 See IAA Gender Guidelines paras. 3.34-3.45.

88 See for example ZH (Iran CG) UKIAT 00207, 6 June 2003.
89 for example RM Sierra Loeone [2004] UKIAT 00108, 17 May 2004.
90 See IAA Gender Guidelines paras. 3.34-3.45.
91 Crawley & Lester, n.2 above, para 383.
561
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rately cater for the assessment of women’s protection needs. This has obvious
potential consequences – women may simply slip through the safety net without
the assessment of their protection needs. Nor can a gender neutral procedure be
created just by employing female officials –simply being a woman does not guar-
antee an awareness of gender issues and more fundamental consideration is nec-
essary to ensure that procedures are gender neutral rather than gender blind.
A first step is to acknowledge that men and women, both applicants and
officials, may interact with asylum procedures in different ways and the context
in which male and female applicants can best cooperate with the authorities may
differ. In the view of Dr Hinchelwood of the Medical Foundation of Torture:
“The first and foremost preoccupation [of victims of torture] is with their
asylum claim. There is a noticeable difference between men and women in
the manifestation of this anxiety, with exceptions, of course. Men are often
much more vocal and active in their anxiety, they change solicitors, seek let-
ters, reports, ask to be brought forward in the queue. They cannot settle. Most
women I have seen [over nine years of therapeutic work with survivors of
torture] have just melted into the background after their arrival especially if
they have no children, or have left their children behind. They are frequently
‘befriended’ by a lawyer who does nothing and they stay in the room allocated
to them for weeks, months on end, just putting time and distance between
themselves and their shame.”92
Some of the particular procedural and evidential issues which raise concerns for
women are discussed here.93
7.1 Access
The first problem for women is simply making an asylum application. Where
women enter Europe with male relatives there may be a tendency for immigra-
tion officers to assume that their claims are dependant on the men’s and as a
result not to interview them or to interview them cursorily. In such circum-
stances women’s protection needs may not come to light, even where their claims
are stronger than those of their male relatives. It cannot safely be assumed that
male relatives will know the details of a woman’s protection needs nor that they
will give information about them or even support them.
92 Hinchelwood, Dr., (Medical Foundation for Torture) Gender-based Persecution:

Report to the UN Expert Group Meeting on Gender-based Persecution, November
1997.
93 Procedural and evidential provisions under the Qualification Directive apply to
both the applications for refugee status and those for subsidiary protection. Those
in the Procedures Directive relate to applications for refugee status and may apply
to applications for subsidiary protection (Art. 3).
562
Women themselves, as Dr. Hinchelwood notes, may fail to promote their

own asylum claims for a variety of reasons. They may include fear of causing
difficulties within the family (if they enter with family members), that they are
from countries or societies where women do not deal with officials or with men
(and particularly not male officials), that their asylum claims are private and
raise issues (especially relating to sexual or family matters) which will bring them
into disrepute, cause them to be estranged from their communities and/or result
in violence or other serious outcomes for them, that they suffer deeply from
shame and blame themselves for what has happened. Labelling oneself as an
exile from one’s own country can be a difficult thing to do. Where women think,
however wrongly, that they can obtain safety through dependant status, the dif-
ficulties faced in making an independent claim may not appear worthwhile, but
this may cause them problems later on. These issues are not unique to women
entering with family members, but also apply to those entering on their own.
Many women simply will not, in the presence of family members or mem-
bers of their community, give information concerning their own protection
needs or make an independent claim for asylum. Article 6 of the Procedures
Directive enables each adult to make an independent asylum claim and pro-
vides that adults must consent to being dependent on another’s claim. But, it is
not enough to simply tell a woman that she can make a claim. She also needs
advice about what this will entail and what are the benefits and demerits for
her.94 Women may also be extremely concerned, with good reason, that the facts
of her application be kept confidential including from family members or her
community and should be ensured of that confidentiality.95 Even then the fac-
tors militating against women’s disclosure may lead to applications being made
late – for example in relation to sexual violence or harm within the family.
7.2 Disclosure
A second difficulty for female asylum seekers is that the procedures and ques-
tions used by states may not facilitate full disclosure of their claims or accurately
pinpoint and unravel their protection needs – for example if the correct ques-
tions are not asked women’s experiences may never come to light.96
The obtaining of oral evidence from women raises many similar issues to
those above. It is essential that the woman should not be asked in the presence of
her family if she wants them to be present during the interview. Women must be
interviewed in private since they may not disclose protection needs in the pres-
94 Art. 10 of the Procedures Directive, requiring information to be given about proce-

dures and rights, relates only to persons who have made an asylum application.
95 The confidentiality provisions in Art. 22 of the Procedures Directive do not appear
to extend to this and those in Art 13(2) are vague.
96 Spijkerboer n. 2 above, p. 60.
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ence of family members, especially where family or sexual matters are involved;97
as an example of why this is important –
“In one case a heavily pregnant mother of two was threatened with refusal of
her [asylum] claim on based on non-compliance with the procedures because
she asked for her interview to be delayed for half an hour to allow her husband
to finish with his own interview and take care of the children. The woman’s
past experience included repeated sexual assault in the presence of her chil-
dren. While the Home Office caseworkers may not have been aware of this,
this is exactly the type of possibility that should automatically be taken into
consideration with respect to interviewing applicants in private.”98
Gender sensitive interviewing techniques have been endorsed in many jurisdic-

tions.99 Such techniques are not advocated because they are nice for women – but
because they assist the relevant authorities in finding out about and thus in accu-
rately assessing the applicant’s claim. Gender sensitive interviewing includes
not only providing a conducive interviewing environment, but also asking the
right questions, being aware of gender differences in communication and under-
standing the effects of trauma and family, community and country of origin
circumstances. Such good interviewing practices are relevant not only to sub-
stantive asylum interviews, but also to manifestly unfounded and inadmissible
cases where the lack of suspensive appeal rights makes quality interviews of
even greater importance.
Applicants may need to be provided with an interviewer and interpreter
of a particular sex in order to disclose their account. This is not because inter-
viewers and interpreters of one or other sex are better at such interviewing, but
because an applicant may be more able to disclose their account to a person of
a particular sex. The Procedures Directive simply requires provision of an inter-
preter who is “able to ensure appropriate communication” (Article 13(3)(b)).
Even where best practice is followed women, and men, may be particularly
reluctant to disclose evidence relating to sexual and marital violence. The rea-
sons are complex and include deep shame, trauma and fear of ostracism, and
worse, by their families and communities. It is common for women not to dis-
close such violence at all or only years later and they may be more likely to do so
in a medical or therapeutic setting.100
97 In the Procedures Directive (Art. 13(1)), interviews will normally take place without
the presence of family members.
98 Crawley & Lester, n. 2 above para 482.
99 See Crawley, n. 2 above, 199 – 222.
100 IAA Gender Guidelines at 5.15 and 5.27, Swiss and Giller, “Rape as a Crime of War:
A Medical Perspective”, Journal of the American Medical Association, August 4
1992, Vol 470.
564
7.3 Country Evidence

Accurate country of evidence is absolutely vital if accurate decisions are to be
made on who does and does not receive international protection. Reliance on
such information is required for assessment of:
– the Convention ground
– the existence of state of origin protection
– the availability of an internal relocation alternative
– the applicant’s credibility
– the well foundedness of the applicant’s fear of persecution/serious harm101
– the safety of a third country or country of origin
– whether circumstances in a country have changed leading to cessation of
refugee status or subsidiary protection102
The Directives require decision makers to have available information as to the

“general situation”103 in countries of origin and to assess claims by reference to
“relevant facts” about the country of origin104. The difficulty for female asylum
seekers is that such general information may not include any or much informa-
tion relating to the situation of women. A recent survey of country of origin
information in European States concluded that “the overall impression was that
detailed information about women’s circumstances is rare.”105 Most mainstream
reports tend to focus on the situation in a country without reference to the situ-
ation of women.106 Given that governments have access to a huge range of infor-
mation they must actively participate in their shared burden.107 Those assessing
women’s claims need to appreciate that information relating to men’s situation in
a country of origin may not be adequate for the assessment of a woman’s claim.
Evaluating women’s asylum claims by reference to well-known facts about men
in a particular country of origin may entail serious risks. For example gener-
ally positive changes in circumstances in a country of origin will not necessarily
improve women’s safety and may even increase the risks for women108 and states
which generally offer sufficient protection in relation to assault may not offer
such protection to assault within the family.
101 Art. 4 Qualification Directive.

102 Qualification Directive Arts. 11 and 16.
103 Procedures Directive Art. 8(2)(b).
104 Qualification Directive Art. 4(3)(a).
105 Crawley & Lester n. 2 above para 625.
106 For a critique of the marginalisation of women’s human rights within the UN
system see Charlesworth & Chinkin, n. 6 above, 218 – 220.
107 Art. 4 of the Qualification Directive specifically recognises the shared burden.
108 For an account of the situation of women following the liberation of Kuwait see
Charlesworth & Chinkin, n. 6 above, 262.
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Similarly countries classified as “safe” third countries, “safe” countries of

origin or first country of asylum may not, in fact, be safe for women. The docu-
mented experiences of female refugees in countries such as Kenya109 and Paki-
stan110 are not such as to fall within the normal meaning of the word. Assessment
criteria should take into account the treatment of women in those countries.
The experiences of women asylum seekers in the UK with lists of “safe” coun-
tries has not been encouraging – Pakistan was designated as a “safe country of
origin” and remained so designated despite House of Lords findings of serious
human rights violations against women in that country.111
Even where the presumption that a country is a “safe third country” or
“safe country of origin” is rebuttable if there are grounds for considering that
the country is not safe for the particular applicant, lack of a requirement to
interview112 or discretionary suspensive appeal rights113 will limit an applicant’s
ability to raise an effective challenge.
7.4 Documentary Evidence / Corroboration

The nature of women’s experiences means that, in many cases, they will be even
less likely than men to have documentary evidence corroborating their claims;
for example where a woman fears harm:
– as a result of her husband’s political activities she may not herself hold a
party membership card and may be unable to produce her husband’s card
or evidence of their relationship, in fact she may know few details of her
husband’s activities since in many countries men do not share such infor-
mation with their wives.
– on the basis of her political activities such as running a soup kitchen for
trade unionists, or providing shelter to political activists
– in the form of female genital mutilation
– from family members within the home.
The EU appears to appreciate that genuine applicants may face evidential dif-
ficulties. Article 4(5) of the Qualification Directive explicitly provides that there
is no need for documentary or other supporting evidence in some cases. How-
ever it is unclear how this will be applied in practice – for example, no support-
ing evidence is required where the general credibility of the applicant has been
109 See Kagwanja, “Ethnicity, Gender and Violence in Kenya”, Forced Migration
Review 9, Dec. 2000.
110 Charlesworth & Chinkin, n. 6 above, 266.
111 Islam v SSHD, R v IAT & another ex parte Shah (HL) [1999] 2 AC 629, [1999] 2
WLR 1015, [1999] 2 All ER 545, [1999] Imm AR 283, [1999] INLR 144.
112 Procedures Directive, Arts. 12(2)(c) and 23(4)(c).
113 Procedures Directive Art. 39.
566
established, but without such evidence many may find it difficult to establish
their general credibility in the first place.
7.5 Credibility; Coherence and Plausibility

Again women may have particular problems if their claims are evaluated through
a paradigm of male experiences. Domestic violence is a simple example: is it
credible or even plausible that a person would stay for twenty years within a
violent marriage without contacting the authorities? From a male perspective
perhaps not,114 from a female perspective we know that it happens and why.115
A recent study of the Dutch asylum determination procedures found that
Immigration Officers apply tests to women’s asylum claims which they do not
apply to men’s – in particular female applicants credibility is judged not so much
on their case itself, but on the basis of whether the officer considered that they
have acted appropriately as a wife and mother.116 This may assist some claimants
and not others, but is both gendered and subjective –a bad mother may still have
a good claim for international protection.
7.6 Accelerated Procedures

The “fast-tracking” of inadmissible and manifestly unfounded claims may have
gendered implications. One issue relates to delay117 in making asylum applica-
tions where women may have particular problems for example disclosure of
sexual violence is particularly difficult and victims may not be able to give such
114 Wilson J in R v Lavallée [1990] 1 SCR 852 (at 874): “If it strains credulity to imagine
what the ‘ordinary man’ would do in the position of a battered spouse, it is prob-
ably because men do not typically find themselves in that situation. Some women
do, however. The definition of what is reasonable must be adapted to circumstances
which are, by and large, foreign to the world inhabited by the hypothetical ‘rea-
sonable man’.” Quoted in Domestic Violence as a Form of Gender-Related Persecu-
tion: Materials for CRDD [Convention Refugee Determination Division] Members
and RCOs [Refugee Claim Officers], April 2000, A revised and updated version of
materials developed by the Toronto Working Group on Women Refugee Claim-
ants in November 1996 at page 12. also: In order to make “a proper assessment of
credibility in claims based on domestic violence, the decision-maker needs to have
a good understanding of the nature of domestic violence (including the pattern
known as the cycle of violence) and the myths surrounding domestic violence, as
well as an understanding of the impact of domestic violence on its victims.”
115 Domestic Violence as a Form of Gender-Related Persecution: Materials for CRDD
Members and Refugee Claim Officers, April 2000 (a revised and updated version of
materials developed by the Toronto Working Group on Women Refugee Claimants
in November 1996).
116 Spijkerboer, n. 2 above, 56, 64 – 65.
117 The Procedures Directive (Art. 23(4)(i)) enables Member States to apply accelerated
procedures to delayed claims.
567
Natalia Berkowitz
information at an early stage in the procedures.118 Delay may also be a problem

where women have, wrongly, relied on their family members to make the applica-
tions on their behalf and have been let down.
Care needs to be taken to ensure that women’s claims are not classified as
manifestly unfounded on the basis that they do not disclose a refugee or Article
3 ECHR claim simply because the jurisprudence has not as of yet fully explored
women’s protection needs.119
8 Training and Staff Issues

Ultimately a gender neutral approach to international protection relies on the
knowledge and awareness of those working within the system especially where
discretion is given in the law and procedure. Training is needed and needs to focus
not so much on developing a sense of “knowing it all”, but on continual learning
and unease about limited knowledge.120 Further, where front-line personnel are
expected to seek advice from experts those experts must have knowledge of the
issues as they relate both to male and female applicants – unfortunately Article
36 of the Qualifications Directive omits provisions in a previous draft which
required such training121 and instead contains a more general requirement for
staff to have “received the necessary training”.
9 Conclusion
Who obtains international protection within Europe must be decided on a logi-
cal and rational basis. Ultimately it has little point unless it ensures that those
people who most need protection obtain it whether they are men or women or
children. Gendered assumptions and stereotypes cannot be said to be a logical
or rational basis. Neither can a decision making framework based on the experi-
ences of 50% of the world’s population.
What is needed is not “special treatment” for women, but definitions and
processes which assess the need for protection in each case by reference to crite-
ria which are responsive to the experiences of both men and women. It is posi-
118 R v SSHD ex parte Ejon (QBD) [1998] INLR 195.

119 The Procedures Directive (Art. 28) allows for cases to be considered manifestly
unfounded where they do not raise Refugee Convention or Art. 3 ECHR issues and
accelerated procedures may be applied if a claim raises issues considered to be of
minimal relevance to an international protection claim (Art 23(4)(a)).
120 Spijkerboer, n. 2 above, 202.
121 Art. 34 Proposal for a Council Directive on minimum standards for the qualifi-
cation and status of third country nationals and stateless persons as refugees or
as persons who otherwise need international protection COM(2001) 510 final 12
September 2001. Such a requirement does appear in Art. 24 of Council Directive
2003/9/EC of 27 January 2003 laying down minimum standards for the reception of
asylum seekers.
568
tive is that the draft Directives show some commitment to gender neutrality,
some understanding that gender does affect the asylum process and that steps
need to be taken to ensure that the definition is gender neutral, but it remains to
be seen what will happen in practice.
The challenge is on Member States to implement international protection
in a gender neutral fashion and ensure that what appears to be good will is not
mere rhetoric. An understanding of gender and of women’s experiences is not
merely a question of being nice to the ladies. Greater knowledge can lead to
better decision making – whether it results in the grant or refusal of interna-
tional protection.
569
Section IV Legal Migration and Integration
Chapter 19 Family Reunion
The JHA Council reached agreement on a proposed Directive on family reunion
for third-country nationals on 27/28 February 2003 and adopted it formally as
Directive 2003/86 in September 2003 (see the Annex). Member States had to
apply the Directive by 3 October 2005, although on that date the Commission
reported that only six of them had done so by the deadline.1 This was the culmi-
nation of a lengthy attempt to agree binding rules in this area, dating originally
back to an initial Commission proposal of 1999, which was then amended in
2000, followed by a significantly revised proposal in May 2002.2 The UK and
Ireland opted out of this Directive, and Denmark was automatically excluded
from its application.
Directive 2003/86 begins with Chapter I (Articles 1-3) concerning the pur-
pose, definitions and scope. Article 3(1) limits the scope of the measure to those
third-country national sponsors who have “reasonable prospects of obtaining
the right of permanent residence”. Persons applying for or receiving protection
status are excluded, except for recognised refugees (Article 3(2)). Members of
the family of EU citizens are also excluded, whether that EU citizen has moved
within the EU or not (Article 3(3)). It is open to the EC, with or without the
Member States, to sign more favourable bilateral treaties; three specified multi-
lateral treaties signed by Member States can also set higher standards (Article
1 See Commission Memo/05/348, 3 Oct. 2005. The six Member States meeting the
deadline were Belgium, Estonia, Latvia, Lithuania, Poland and Slovenia.
2 For the original proposal, see COM (1999) 638, 1 Dec. 1999; OJ 2000 C 116 E/66,
amended by COM (2000) 624, 10 Oct. 2000; OJ 2001 C 62 E/99. The 2002 proposal
is in COM (2002) 225, 3 May 2002; OJ 2002 C 203 E/136.
Section IV – Legal Migration and Integration
3(4)). Member States can also set higher standards unilaterally in domestic law
(Article 3(5)), but there is no “standstill” requirement applicable to them.
Article 4 (Chapter II) sets out the family members who may or must be
admitted to join a sponsor. The spouse and minor unmarried children must be
admitted (Article 4(1)), subject to certain qualifications regarding adopted chil-
dren and children whose custody is shared. However, Member States have an
option to retain their existing law which sets a special “integration requirement”
for children as young as 12. Admission of dependent parents or other relatives in
the ascending line, adult disabled children of the sponsor or unmarried partners
of the sponsor along with relevant children is also optional (Article 4(2) and
4(3)). In the event of polygamy, Member States cannot admit additional spouses
once one spouse is resident within the EU, but have the option to admit the chil-
dren of the additional spouse (Article 4(4)). It is presumably up to the sponsor
to determine which of his wives will have the honour of joining him. Member
States can also set age limits for spouses to enter (Article 4(5)). Finally, Member
States can place restrictions on entry of children over 15 (Article 4(6)).
Chapter III (Article 5) sets out procedural rules on the submission and con-
sideration of applications. Next, Chapter IV (Articles 6-8) sets out additional
conditions which may be imposed before entry of family members is authorised.
These concern requirements of “public policy, public security or public health”,
as clarified by the preamble; accommodation, sickness insurance and resources
requirements; an integration requirement; and a waiting period, which should
be a two-year maximum (although Member States can retain an existing three-
year waiting period).
Next, Chapter V (Articles 9-12) sets out specific rules for refugees, although
Member States can confine its scope to refugees whose family relationships pre-
date their entry. The rules are more generous, in that the possible special limits
on children over 12 cannot apply, admission of additional dependent family
members may be authorised, there are special rules on admission of the family
or guardians of unaccompanied minors, the rules on proving a family relation-
ship are more liberal, the integration requirement cannot be applied as strictly;
and the waiting period and accommodation, sickness insurance and resources
requirements are waived.
Chapter VI (Articles 13-15) deals with the status of family members after
entry. They must be given the “facility” to obtain the necessary visas, and a
renewable residence permit of at least one-year permit to start with. They have
the right of access to education, employment, self-employment and training on
the same footing as the sponsor, although access to employment and self-employ-
ment can be restricted for non-nuclear family members or subject to a waiting
period of up to a year for all family members. After five years’ residence at the
latest, the spouse or partner must be given an autonomous residence permit,
although such a permit may or must be granted earlier in the event of “particu-
larly difficult circumstances” and may also be granted to other family members.
574
Chapter VII (Articles 16-18) concerns penalties and redress. Article 16

permits removal of status in the event of, inter alia, changed circumstances or
fraud. However, Article 17 places substantive limits, clearly based on ECHR
jurisprudence, on the expulsion of family members and Article 18 sets out pro-
cedural rights in the event of explusion or refusal of entry. Finally, Chapter
VII (Articles 19-22) sets out final provisions. Two years after the deadline for
Member States to apply the Directive (so by October 2007), the Commission will
review its application, and must consider proposing changes to the Articles on
the scope of the Directive, the definition of family members, the conditions for
entry and the status upon initial entry.
Following misgivings about whether the Directive sets a sufficient level of
protection for human rights, the European Parliament challenged the validity of
three provisions of the Directive in the Court of Justice.3 The EP argues that the
provisions, which concern possible special conditions for admission of children
and the waiting period, infringe the EC’s obligations to uphold human rights.
If the EP’s action is wholly or partly successful, then the bulk of the Direc-
tive would remain in force, except for the offending provision(s). In the Advo-
cate-General’s Opinion, the Court must rule the case inadmissible because the
relevant provisions are not severable from the rest of the text. But in the event
that the Court is willing to consider the merits of the case, the Advocate-Gen-
eral argues that Article 8 of the Directive (setting a waiting period for family
reunion) is invalid for breach of human rights; that Article 4(6), which permits
Member States to establish a separate system for the admission of children over
15, is valid if interpreted in light of human rights principles; and that the last
sub-paragraph of Article 4(1) of the Directive, which permits Member States to
impose certain requirements on the admission of children over 12 years old, is
invalid on procedural grounds (failure to reconsult the European Parliament on
the text).
This action also raises broader questions about the dynamics of human
rights protection in EC law (see further Chapter 5). If the Advocate-General
is correct that the case is inadmissible because the relevant provisions are not
severable from the text, then it will be more difficult to challenge individual
provisions of other Community measures (for example, the asylum procedures
Directive). But it will not be impossible, since Community law has no absolute
rule against severability, and so it could always be argued that other cases could
be distinguished from the family reunion case. If the Court accepts the Advo-
cate-General’s alternative arguments, it will be setting a precedent as regards the
3 Case C-540/03 EP v Council, pending, attacking the validity of Arts. 4(1), last sub-
paragraph, 4(6) and 8(2). See a summary of the EP’s claim in OJ 2004 C 47/21. An
Advocate-General’s Opinion of 8 September 2005 recommends rejecting the EP’s
challenge as inadmissible for procedural reasons, although sympathising with much
of the EP’s arguments on the merits.
575
practical application of human rights principles to the validity and interpreta-

tion of EC immigration and asylum law, in particular confirming the vital point
that even EC legislation setting only minimum standards can partly or wholly
be invalid to the extent that those minimum standards fall below the minimum
requirements set by human rights law.

2.1 Family Reunion and EU Law 4
Family reunion for EU citizens who move within the Community has long been
addressed by Community rules governing free movement of EU citizens. How-
ever, such rules do not apply to family reunion with the majority of EU citizens
who have not moved to another Member State, or to family reunion with resident
third-country nationals.5 Certain international treaties concluded by the Com-
munity and its Member States affect the latter category of persons. In particular
the EEA and EC/Swiss treaties extend the EU’s internal rules fully to citizens of
those States,6 and the rules implementing the EC/Turkey treaty protect certain
family members of Turkish workers if those family members have already been
authorised to enter by the Member States.7
4 For a detailed analysis of this issue, see (on non-protection cases) Peers, “Family
Reunion and European Community Law”, in Walker, ed., Towards an Area of Free-
dom, Security and Justice (OUP, 2004) and (on protection cases) Peers, “EC law on
family members of persons seeking or receiving international protection” in Shah,
ed., The Challenge of Asylum to Legal Systems (Cavendish, 2005).
5 See particularly Joined Cases 35 and 36/82 Morson and Jhanjan [1982] ECR 3723;
but see exceptions and clarifications in: Cases C-370/90 Surinder Singh [1992] ECR
I-4265; C-60/00 Carpenter [2002] ECR I-6279; C-109/01 Akrich [2003] ECR I-9607;
C-148/02 Avello [2003] ECR I-11613; and C-200/02 Chen [2004] ECR I-9925. Two
pending cases seek to clarify the meaning of the Akrich judgment (Case C-1/05 Jia
and C-291/05 Eind).
6 OJ 1994 L 1/1; OJ 2002 L 114/1.
7 See Cases C-355/93 Eroglu [1994] ECR I-5113; C-351/95 Kadiman [1997] ECR I-
2133; C-210/97 Akman [1998] ECR I-7519; C-329/97 Ergat [2000] ECR I-1487;
C-65/98 Eyup [2000] ECR I-4747; C-275/02 Ayaz [2004] ECR I-8765; C-467/02
Cetinkaya [2004] ECR I-10895; C-373/03 Aydinli, judgment of 7 July 2005, not yet
reported; and C-325/05 Derin, pending. On access to education, see judgment of 7
July 2005 in Case C-374/03 Gurol, not yet reported. However, the EC/Turkey treaty
does not govern the initial entry of Turkish workers’ family members: Case 12/86
Demirel [1987] ECR 3719. For detailed analysis, see Hedemann-Robinson, “An
Overview of Recent Legal Developments at Community Level in relation to Third-
country Nationals resident within the European Union, with particular reference to
the case law of the European Court of Justice” 38 CMLRev. (2001) 525 and Rogers,
A Practitioners’ Guide to the EC-Turkey Association Agreement (Kluwer, 2000).
576
Clearly, this left the majority of cases of family reunion with third-coun-
try nationals unregulated by Community law until the Directive was agreed.
Although there are a number of human rights instruments impacting on the
issue of family reunion,8 none of them set out a comprehensive code of legal
requirements to follow as regards application of the right to family reunion.
Since family reunion is one of the chief reasons for new legal entry of third-
country nationals onto the territory of the EU, there has long been an inevitable
interest in harmonising national law on this issue. But it has been immeasurably
harder to put these harmonising intentions into effect.
The first attempt by EU Member States to harmonise national law on family
reunion law dates back to a Resolution of Member States’ Interior Ministers
adopted in 1993.9 It is useful to recap the history of negotiations on the Resolu-
tion here, because the relevant documents have only recently become available.10
The Resolution began as a precisely drafted text from the Portuguese Presidency
in spring 1992,11 but delegations were concerned that this text appeared too
binding. Therefore it was replaced by a vaguely drafted text submitted by the
UK Presidency, which became the basis of the final Resolution.12 The changes
made during discussions on this text were the addition of a waiting period
before entry, the deletion of the prospect of the entry of fiancees, the deletion
of the principle that a ten-year stay would normally entail an “expectation” of
gaining permanent residence status, the deletion of detailed examples of cases
where extended family would be admitted and the addition of an optional sick-
ness insurance requirement. The most disputed point was the possible grant of
independent status of family members, with France in particular insisting on the
right to obtain independent status (ulitmately after a period to be determined)
8 See Annex to the ILPA response to the 1999 version of the proposal (online at
<www.ilpa.org.uk>), memorandum conncering the proposed family reunion direc-
tive in The Amsterdam Proposals (ILPA/MPG, 2000) and generally Cholewinski,
Migrant Workers in International Human Rights Law (OUP, 1997).
9 For the text of the proposal, see Guild and Niessen, The Developing Immigration
and Asylum Policies of the European Union: Adopted Conventions, Resolutions, Rec-
ommendations, Decisions and Conclusions (Kluwer, 1996), 250-257.
10 This is because the Council took the view that while the documents were in its pos-
session, they were “authored” by the Member States, and the EU rules on access to
documents did not yet cover such documents: see Peers, “Building Fortress Europe:
The Development of EU Migration Law”, 35 CMLRev. (1998) 1235 at 1239-1242.
11 WGI 1078, 28 Apr. 1992; see records of discussion in WGI 1094, 13 May 1992 and
WGI 1112, 2 June 1992.
12 WGI 1151 rev 1, 16 Jul. 1992. See later drafts in WGI 1179, 14 Sep. 1992; WGI 1194
rev 1, 15 Oct. 1992; WGI 1250, 4 Nov. 1992 and WGI 1167, 16 Nov. 1992 and see
records of discussion in WGI 1164, 27 July 1992; WGI 1174, 15 Sep. 1992; WGI
1185, 28 Sep. 1992; and WGI 1248, 16 Nov. 1992.
577
and the right to work. As a compromise the latter right is only to be granted “if
appropriate”.
The final Resolution does not apply to persons joining EU citizens, whether
or not they have moved within the EU, or to persons joining the citizens of
EEA states.13 Students, persons on fixed-term contracts, and recognised refu-
gees were also excluded. Instead, the Resolution confines its application to
those persons seeking to join someone who had an ‘expectation of permanent
or long-term residence’ as defined by national law. The only family members
included are spouses and unmarried dependent children between the ages of
16 and 18, with extended family only to be admitted in “compelling” circum-
stances. Even admission of step-children is left to the option of Member States.
Member States retain the option of setting a large number of conditions for
entry, including waiting periods, requirements of public policy, et al. and accom-
modation, sickness insurance and resources requirements. They also retain the
option to continue checking that the conditions were fulfilled after entry. As
for the status of family members, the prospect of access to employment and
independent residence rights is also only an option. The later Resolution on the
self-employed applied this Resolution to admission of the family members of
the self-employed, while the Resolution on students left the admission of family
members up to national law and the Resolution on workers was silent on the
issue of family reunion.14
The Dutch Presidency tried to follow-up the implementation of the Resolu-
tion in the first half of 1997.15 There was still a wide variation in Member States’
practice on the issues within the scope of the Resolution, but the Presidency
thought that harmonisation of family reunion rules for refugees, short-term res-
idents and EU nationals, the position of unmarried partners and the principle
of access to independent residence status could be addressed.16
Subsequently, building in part on this discussion, the Commission proposed
a Convention on migration law in 1997 which contained a Chapter on family
13 For more detailed analysis, see Peers, n. 10 above; Guild and Niessen, n. 9 above at
257-273; Hedemann-Robinson, “Third-Country Nationals, European Union citi-
zenship and free movement of persons: A time for bridges rather than divisions?”
16 YEL (1996) 321 at 324-325; Hailbronner, “Migration Law and Policy Within the
Third Pillar of the European Union” in Bieber and Monar, eds., Justice and Home
Affairs in the European Union (European University Press, 1995); and Boeles, et al,
A New Immigration Law for Europe: the 1992 London and 1993 Copenhagen Rules
on Immigration (Standing Committee of Experts on Immigration, 1994).
14 OJ 1996 C 274/7, 10 and 3; see further Chs. 21 and 22.
15 See Council doc. 8285/97, 21 May 1997 (discussion paper).
16 See Council doc. 8928/97, 12 June 1997 (outcome of working party meeting, 29-30
May 1997).
578
reunion.17 By the time this Convention was proposed, the Treaty of Amster-
dam had already been agreed, but the Commission was planning to submit a
Community law version of the Convention soon after the new Treaty entered
into force. The proposal suggested extending the rules on family reunion for
migrant EU citizens to family reunion for all EU citizens. But for those join-
ing third-country nationals, the proposal was relatively disappointing. While the
scope of third-country national sponsors covered by the proposal was somewhat
broader than the Resolutions (also covering refugees and students, for instance),
the rules on waiting periods for entry and access to employment would have set
a minimum waiting period without setting any maximum period and would not
have set out substantive rules on independent residence status.18
The Convention was discussed intensively by Member States, but reaction
to the Commission’s proposals varied widely.19 Most Member States objected to
a rigid waiting period before entry, and some questioned the idea of addressing
family members of EC nationals. A number wanted to alter the proposed condi-
tions governing entry and objected to the idea of “favourable consideration” for
admission of extended family members. There were also disputes as to the extent
of the initial residence authorisation. Many Member States objected to a time
limit for access to employment and accepted the principle of gaining indepen-
dent status, although some questioned why the Commission’s proposal only set
out procedural rules for grant of independent status.
Finally, in addition to the Directive discussed in this Chapter, it should
be recalled that the legislation on temporary protection, reception conditions,
responsibility for asylum applications, long-term residence, researchers and the
definition of refugee status contain rules relevant to family members.20
2.2 Proposed Family Reunion Directive: 1999 and 2000 Versions

The original proposal for a Directive on family reunion dates back to December
1999.21 So why was there no agreement until February 2003? The answer is the
great unwillingness by any Member State to agree to increase the standard of
17 COM (1997) 387, 30 July 1997; OJ 1997 C 337/9.

18 For more detailed comments on the proposal, see Hedemann-Robinson, “From
Object to Subject? Non-EC Nationals and the Draft Proposal of the Commission
for a Council Act Establishing the Rules for Admission of Third-Country Nationals
to the Member States” 18 YEL (1998) 289 at 317-326 and Peers, “Raising Mini-
mum Standards or Racing to the Bottom? The Commission’s Proposed Migration
Convention”, in Guild, ed., The Legal Framework and Social Consequences of Free
Movement of Persons in the European Union (Kluwer, 1999) 149 at 159-164.
19 Council docs. 6488/98 add 1, 1 Sep. 1998 and 6488/98 add 2, 13 Oct. 1998.
20 See further Chs. 10, 12, 13, 15, 20 and 21.
21 For this version, see n. 2 above.
579
protection for family reunion provided for in its national law in any way what-
soever.
The 1999 version was similar in structure to the final agreed Directive ver-
sion, but its scope was far wider as regards sponsors and family members and
the rules on conditions of entry and status of family members were noticeably
more generous. In particular, like the proposed Convention, it included a pro-
vision extending the family reunion rules applying to migrant EU citizens to
all EU citizens. It extended to all third-country nationals who had resided for
at least one year, including refugees and persons with subsidiary protection
status, although not to asylum-seekers or persons with temporary protection
status. Member States would have been entitled to apply more favourable family
reunion rules only pursuant to the 1961 Council of Europe Social Charter and
1977 Council of Europe Convention on the Legal Status of Migrant Workers, or
pursuant to a treaty between the Community or the Community and its Member
States with non-EU countries.
Member States would have had to admit not only the spouse and minor
unmarried dependent children, but also unmarried partners where national law
treated them equally with spouses, adult children if dependent due to their state
of health, and dependent ascendants if there was no other family support in the
country of origin. Member States could only have set a maximum waiting period
of one year before entry and would have had to reply to applications within
six months, although most conditions would have been waived for refugees and
persons with subsidiary protection. The core family members would have been
entitled to equal treatment with EU citizens as regards access to employment,
self-employment, education and training, but Member States could not have
permitted wider family members to have access to employment, self-employ-
ment or training.
The discussion of the proposed Directive within the European Parliament
indicated the breadth of opinion on this issue. An initial highly conservative
draft report by the original committee rapporteur, Eva Klamt, failed to secure
majority support and so the report was redrafted by Graham Watson, the com-
mittee chairman, who convinced the EP’s committee and the EP plenary to
support a number of largely liberal amendments in September 2000.22 The EP
suggested deleting persons with subsidiary protection from the text of the pro-
posal, but raising the standards in the proposal by permitting Member States to
adopt more favourable rules in national law, adding a “non-regression” clause
exhorting Member States not to lower the standard of protection in areas gov-
erned by the Directive, widening the criteria to require admission of ascend-
ing relatives, enhancing procedural rights and giving wider family members full
access to employment, self-employment, education and training on the same
basis as EU citizens.
22 OJ 2001 C 135/174.
580
In response to the EP’s suggested amendments, the Commission revised its

proposal in 2000.23 It agreed to delete persons with subsidiary protection from
the scope of the proposal, while providing in the preamble that their family
reunion status should be addressed as soon as possible in the future. However, it
rejected the idea of a non-regression clause and a clause permitting more favour-
able national standards on the grounds that this was “not compatible with the
objective of aligning national legislation”. Widening access for ascending rela-
tives was rejected because they should be “subject to strict rules”. The Com-
mission suggested a compromise approach on wider family members’ access to
employment, self-employment, education and training, leaving Member States
the option of whether to permit such access.
The first reading of the Directive during the Portuguese Presidency in the
first half of 2000 showed that Member States had widely varying views on most
of the proposed Articles.24 A number of basic issues about the scope of the
sponsors and family members and the conditions for entry were sent to SCIFA
in May 2000 for a decision,25 and SCIFA agreed that the Directive should be
limited by referring to the purpose of entry of the sponsor. In order to facilitate
agreement, the incoming French Presidency submitted a redraft of a number
of technical points and a note on how to approach the issue of the scope of the
Directive.26 Delegations were generally happy with the technical points, but fol-
lowing a detailed discussion, there was a tendency toward limiting the Directive
so that it would only apply where there was a “prospect of a long-term stay”.27
By the end of the French Presidency,28 the text suggested that family reunion
under the Directive would be limited to those “having a reasonable prospect of
obtaining a long-term right of residence”, but leaving Member States free to
authorise family reunion on a discretionary basis for persons who held other
residence permits. It would also be possible for family members to apply, rather
than just sponsors.
Discussion continued under the Swedish Council Presidency, which com-
pleted the third reading of the proposal. 29 During this time, several changes
were made. First, access to the courts was subjected to national law, Member
States were permitted to grant autonomous permits even within the first year
23 For this version, see n. 2 above.

24 Council docs. 5772/00, 10 Feb. 2000; 6504/00, 16 Mar. 2000; 7507/00, 28 Jul. 2000;
and 7997/00, 28 Jul. 2000 (French only).
25 Council doc. 7675/00, 7 Apr. 2000, with questions widened by Council doc.
7675/1/00, 10 Apr. 2000.
26 See respectively Council docs. 9738/00 and 9739/00, 28 Jun. 2000.
27 Council doc. 11122/00, 20 Sep. 2000.
28 Council doc. 11524/00, 4 Jan. 2001.
29 Council docs. 5682/01, 31 Jan. 2001; 6450/01, 6 Mar. 2001; and 7144/01, 23 Mar.
2001.
581
of residence and the possibility of withdrawing residence for use of “false docu-
ments” or submission of “false or misleading information” was added. Next,
family members’ access to employment, et al was made identical to the access of
the sponsor, not to EU citizens; the issue of visas would no longer be free; and
Member States were permitted to examine the sponsor’s position after entry.
Several basic questions were then sent to SCIFA in March 2001, along with sev-
eral significant redrafted clauses.30 These concerned the definition of “unmar-
ried partners”, which would more clearly be left to national law; a possible shift
to national discretion over whether to admit non-nuclear family members; an
extension of the time limit to consider applications to nine months; confirming
the possiblity of checking whether the resources criterion was met for two years
after entry, while taking account of family members’ contribution to household
income; an extension of the waiting period to two years; more provisional resi-
dence permits for family members for the first four years, rather than the first
year only; and confirming the limit on access to employment, self-employment,
education and training to the same position as the sponsor. SCIFA broadly
approved these changes,31 and the creation of a separate chapter on refugees
also dates from this point.
The text was then weakened further throughout the spring of 2001. Member
States gained the power to withdraw residence permits in all cases in which the
conditions were no longer met, a provision apparently contradicting the limits
on the power to impose after-entry checks set out in the rest of the text. Also,
the obligation to issue transit visas was dropped, the obligation to consider
certain in-country applications became an option, Member States could with-
draw a permit if “other unlawful means” were used to obtain it, and Member
States could check on family members when permits were renewed, not just
when they were issued. But in return, the Community was empowered to adopt
future treaties setting more favourable standards.32 Next, Member States were
permitted an indefinite extension on the nine-month waiting period for a deci-
sion and the two-year waiting period for entry, the entry of unmarried partners
become optional, the entry of extended family became more clearly optional
and Member States were allowed to set a minimum age for spouses. This time, in
return the Member States were allowed to adopt more favourable standards in
their domestic law.33 The effect of these latest changes were that the only binding
provisions left in the Directive were those concerning family members of EU
nationals, family members of refugees, access to employment, education and
30 Council doc. 7145/01, 23 Mar. 2001, with later corrections.

31 Council doc. 7612/01, 11 Apr. 2001.
32 Council docs. 8118/01, 25 Apr. 2001 and 8209/01, 2 May 2001.
33 Council doc. 8491/01, 10 May 2001; to the same effect see Council doc. 9019/01, 21
May 2001 (both partly accessible). For an analysis of the position at this point, see
ILPA European Update, June 2001.
582
training by family members and family members’ acquisition of an independent

residence permit. Despite this dramatic weakening of the text, the May 2001
JHA Council still could not reach agreement on the Directive, as conservative
Member States wanted still lower standards and liberal Member States felt they
had fallen too far already.
It thus fell to the Belgian Council Presidency to attempt to reach a consensus
in the second half of 2001. The incoming Presidency tried to break the deadlock
by tabling a series of compromises,34 hoping in particular that placing family
members into three categories (nuclear family, extended family and unmarried
partners) with different treatment of each category could prove acceptable. This
compromise was discussed extensively by Coreper and the working group on
migration, but there was still a split on whether unmarried partners should be
covered at all, and, if so, whether they should be treated differentially. Moreover,
there was still a split between those Member States that wanted lengthy time
limits for admission, access to employment and independent residence permits
for all categories of family members and those which would only accept short
time limits for all categories. There was also a dispute over the age of children for
admission. Although there was a discussion of these issues at the JHA Council
in late September 2001 with an instruction to the Council’s preparatory bodies
to continue discussions, the Belgian Council Presidency effectively gave up at
this point. The next development was the request from the Laeken European
Council that the Commission make a fresh proposal by April 2002--effectively
“passing the buck” from a Council Presidency which had lost interest and del-
egations which refused to compromise.35
2.3 Proposal for a Family Reunion Directive: 2002 Version

The Commission’s revised text of early May 2002 was clearly based very closely
on the weakened compromise texts discussed toward the end of the Swedish
Presidency,36 even though some delegations had still been holding out for a text
setting higher standards than the Council Presidency proposals.37 On several
points the Commission proposed standards even below the standards proposed
34 Council docs. 10394/01, 2 July 2001; 10842/01, 12 July 2001; 10922/01, 20 July 2001;
11330/01, 2 Aug. 2001 (outcome of proceedings of the working group, 27 July 2001);
11540/01, 3 Sep. 2001; 11542/01, 11 Sep. 2001; 11881/01, 17 Sep. 2001; 12022/01, 24
Sep. 2001. See also room documents migr 3/01 to 7/01 and 10/01.
35 For the Laeken conclusions, See Annex 5.
36 See also analysis for Statewatch, online at: <http://www.statewatch.org/asylum/
obserasylum2.htm>.
37 Council docs. 8419/01 and 9019/01, n. 33 above, are clearly the source of most of
the revised Commission text. The Belgian proposal concerning aspects of the rules
on penalties (Article 16(1) and 16(3), first appearing in Council doc. 10922/01, n. 34
above) was also adopted by the Commission.
583
by any Council Presidency text, although conversely there are a few points where
the Commission instead proposed a higher standard than the Council texts--
although in most cases not a much higher standard.
First of all, there were a number of major changes in the scope of the
proposal. To start with, EU citizens’ family members were excluded. This was a
huge reduction of standards compared to the 2000 version issued by the Com-
mission, and was also below the standard set in any Council text.38 Although
the Commission indicated that it would make a proposal on this group as soon
as the proposed Directive on EC nationals’ right to move and reside freely was
agreed, there was no sign of that proposal by 1 January 2006, over 18 months
after that Directive was adopted.39 It should be kept in mind that the major-
ity of EU nationals with third-country national family members likely have an
immigrant and ethnic minority background. Next, the limitation to cases where
an sponsor has “reasonable prospects of obtaining the right of permanent resi-
dence” was a substantial reduction in standards compared to the 2000 version.
Although it confirmed the position in the May 2001 Council texts, the word-
ing was different: the Council texts referred to “long-term residence”, which is
potentially a different concept and an easier threshold to cross. Furthermore, the
prospect of rules on family reunion for persons with subsidiary protection status
was put further back, with the reference to imminent legislation on this issue
deleted from the preamble to the 2002 version. The explanatory memorandum
to this version indicated the Commission’s belief that such persons should be
dealt with in a second phase of legislation.
The next batch of changes related to the relationship between the Directive
and national law. It would now be possible, following the Council texts of May
2001, for the EC to apply higher standards following conclusion of later inter-
national treaties, not just earlier international treaties. Member States were also
permitted to apply higher standards in their internal law. While these changes
raised standards compared to the 2000 version, the minimum standards set by
the Directive were now so low that granting the power to set higher standards
was inevitable. A more significant change was a proposed “standstill” clause,
which raised standards compared to both the 2000 version and to any Council
texts, which contained no comparable clause. However, this clause was clearly
limited to certain provisions in the Directive (concerning the scope of family
members permitted to join, the “stable resources” criterion and its application,
and the waiting period before entry), but no others. Also, it is arguable that
it would not have had the effect of a “standstill” clause, as it was rather more
similar to a “non-regression” clause found in social legislation, which merely
38 In the May 2001 Council texts, only three Member States had objected to the inclu-
sion of this group.
39 Directive 2004/38 (OJ 2004 L 229/35).
584
exhorts the Member States not to lower their standards to the minimum stan-
dards found in EC legislation.
A series of important changes were also made to the core rules on the family
members who can join the sponsor. First of all, admission of unmarried part-
ners and connected children, along with ascending relatives and adult children,
was optional. Also, the adult children now had to be unmarried. This lowered
standards compared to the 2000 version, but confirmed the position from the
May 2001 Council texts, which had attracted reservations. There was still an
obligation to admit the spouse and minor children, but the conditions regarding
minor children have changed. Admission of children when custody is shared was
now optional. More importantly, the option allowing Member States to set an
age for admission as low as twelve for children in certain circumstances was new.
Both these changes lowered standards compared to the 2000 version and all the
Council texts.
As for the rules on submission and examination of the application, the
consideration of in-country applications was now only optional, a lower stan-
dard adopting the wording from Council texts. Also, the time limit of national
authorities to respond to an application within nine months (as compared to
six in the 2000 version), with a 12-month response permissible “in exceptional
circumstances”, was an an improvement on the May 2001 Council texts, which
had suggested no final time limit.
The standards on conditions for entry were also lowered significantly.
Residence permits could now be withdrawn after entry on public policy, etc.
grounds, and the “stable resources” criterion was altered, in particular permit-
ting Member States to apply the test again when renewing the residence permits
for the first time (previously they could do so only on entry), although family
members’ contributions would have to be taken into account. This was the Com-
mission’s attempt at a compromise, as the May 2001 Council texts had suggested
a two-year time limit during which these conditions could still be applied. Fur-
thermore, the potential waiting period was extended from one year to two years,
with a possible extension to three years if existing law permitted it. This was
again at least a more positive approach than the May 2001 Council texts, which
had no absolute time limit.
Next, the rules on refugees’ family members were consolidated into one
Chapter, following the structure of the Council’s texts. However, the scope of
family reunion for refugees was reduced compared to the 2000 version. First,
Member States would now have an option to limit family reunion in this Chap-
ter to those who had family relationships with refugees before their refugee
status, a provision not found in any of the Council’s prior texts. Second, the new
general limitations on the scope of family members permitted to enter would
have a knock-on effect on family members of refugees, adopting the approach in
Council texts, except that the possibility of banning children over 12 from family
reunion would not apply for refugees. On the other hand, admission of unac-
585
companied minors’ family members would be mandatory, increasing standards

compared to the 2000 text and any of the Council texts. Moreover, the right
would have been expanded by the addition of legal guardians.
The rules on entry and residence of family members were also weakened
on the whole, mostly following Council texts. There was no longer any obliga-
tion to issue transit visas or free entry visas, and access to employment, self-
employment, education and vocational training had to be granted on a footing
of equality with the sponsor, rather than with EU citizens. The right to an inde-
pendent residence permit was subject to a five-year wait (a change introduced by
the Commission on its own initiative), in place of a four-year wait, but on the
other hand, there was no longer any waiting period for an independent permit
in “emergency circumstances”.
In the final two chapters, the grounds for refusing or withdrawing a permit
were dramatically expanded, following the May 2001 Council texts, to include
the situation where the conditions in the Directive “are no longer satisfied” and
where “false or misleading information...or other unlawful means were used”.
Finally, there was now a detailed reference to the content of future amendments,
with the Commission now seeing this proposal as the first step to be followed by
later legislation.
How was the Commission’s revised proposal received? Discussions resumed
in July 2002 following the instruction from the Seville European Council to
adopt the Directive by June 2003. It might have been thought that the more
conservative Member States would be satisfied by this significant reduction in
standards, but in fact the initial reaction to the revised Directive in the migration
working party revealed that for a number of Member States, standards had not
been lowered enough.40
First of all, the German, Spanish, Greek and Italian delegates had doubts
about the limited standstill clause because it “may limit the discretion of the
Member States”. Austria also had doubts. There were still objections to the lim-
ited rules on family members. In fact, the Greeks had a scrutiny reservation on
the idea that there should be mandatory admission even for spouses and minor
children. The Germans wanted to limit family formation for those who had held
a residence permit for less than five years and objected to admission of children
in cases of shared custody. In turn, the Austrians still had a reservation con-
cerning the age of children. Greece, Spain and Portugal still had reservations
about the admission of unmarried partners, even though it was now optional for
Member States, and Greece, Spain and Austria wanted at least to prevent such
persons from moving within the EU if they were admitted. Also, the Dutch were
considering restricting family reunion to cases where the sponsor was over 21.
40 Council doc. 10857/02, 9 Aug. 2002 (outcome of proceedings of working party, 8

and 26 July 2002).
586
On the other hand, there were some calls for more generous rules, with
Sweden holding out for admission of persons living in a “registered partner-
ship” to be mandatory and questioning the possible option of limiting family
reunion to children under 12. Furthermore, the Germans thought there should
be a discretionary possibility to admit collateral relatives in hardship cases and
Germany, Italy and Austria thought the ban on children entering from more
than one polygamous marriage might be “too rigid”.
As for the rules and conditions on admission, Germany and Finland had a
reservation on the 12-month maximum deadline for replying to an application
and Austria wanted to add “the threat to international security” to the grounds
for refusing an application and the possibility of requiring a health certificate
and language ability before entry. Germany also wanted to delete the word
“personal” from the requirement that public policy and domestic security refus-
als must be based on the “personal conduct” of the sponsor, while Germany
and Luxembourg wanted to check sufficient resources any time the permit was
renewed, not just the first time.41 Austria had a reservation on the requirement
of non-discrimination as regards the accommodation, sickness insurance and
resources conditions, and wanted a maximum waiting period before admission
of five years, rather than three years. Finally, Italy wanted to redraft the clause
on the resources conditions, in light of the rules in Italy.42
Similarly, there were objections to the chapter on refugees. Austria and Spain
had scrutiny reservations on the entire chapter, and there were sundry other
objections. Italy had a reservation about admitting family members of unac-
companied minors, and Finland objected to mandatory admission of guard-
ians or more distant family members. Greece, Italy and Belgium had qualms
about admitting refugees’ family members without documentary evidence of the
relationship, while Greece and the Netherlands objected to exempting refugees
from the accommodation, sickness insurance and resources conditions. Finally,
Germany wanted to ban family reunion for persons who have been recognised
as refugees in another Member State, but Belgium took the view that this would
contradict the Dublin Convention.
On the issue of status of family members, several Member States had con-
cerns about giving family members permits of the same duration as the sponsor,
although some of them apparently wanted the leeway to be more generous than
this. Germany, Austria and the Netherlands wanted to link renewed residence
permits to a condition of participation in integration measures. Austria had
reservations about access to education, Germany, Austria and the Netherlands
41 In fact, Luxembourg, Germany, Spain, Greece and Austria wanted to delete Article
7(1)(c), sub-para. 2 (setting a limitation on checks after entry), and apply only Arti-
cle 16(1), which they read to permit unlimited checks after admission. The standstill
clause (Art. 3(6)) applied to the former clause, but not the latter.
42 See further room doc migr 6/02, 12 Aug. 2002.
587
about access to employment and Greece about access to vocational training. Italy
wanted a six-year deadline to issue an autonomous residence permit, although
Sweden felt that a five-year wait for an autonomous permit was too long. Greece
had a reservation on this point because it only issues such permit in “exceptional
cases”; and Germany noted that it only issues such permits to children reaching
the age of majority where the parents have died or separated. Finally, the Dutch
objected to the planned revision of specified Articles in the future.
In subsequent discussions, Member States insisted upon a number of
reductions in the level of protection in the proposal. First of all, following the
second reading,43 the final time limit of one year to make a decision on an appli-
cation was dropped, the obligation to admit guardians or extended family of
unaccompanied minors became optional and the obligation to issue an indepen-
dent permit only applies “on application, if required”. However, Member States
were given an option to admit adult children of unmarried partners, to permit
the children of unmarried partners to enter and to accept applications without
accompanying travel documents. Secondly,44 the next revised version dropped
the application of the “standstill” clause from rules on checking income on first
renewal of the permit, specified that the conditions for issue of the autonomous
residence permit are established by national law, permitted Member States to
limit family reunion to those refugees who had a family before their entry (rather
than those who had a family before their refugee status) and decided that the
initial residence permit issued to a family member never had to be for the same
length as the sponsor’s permit.
Thirdly, a decisive reduction in standards followed the SCIFA meeting
in November 2002,45 at which the “standstill” clause was deleted, without any
compensating increase in the minimum standards whatsoever. This left Member
States free to lower standards to the very low minimum levels in the Directive.
Next,46 Member States agreed that when more liberal Member States admit
“optional” family members, more conservative Member States can refuse admis-
sion to those persons pursuant to the long-term residents Directive. Also, the
limitation of the “public policy” clause to the “personal conduct” of the person
concerned was deleted, the requirement to take family members’ financial con-
tributions into account was weakened, the requirement of non-discriminatory
application of the sickness insurance, accommodation and sufficient resources
conditions was dropped and Member States were permitted to impose an “inte-
43 Council doc. 11787/02, 30 Sep. 2002, outcome of proceedings of working party 5-6
and 18-19 Sep. 2002.
44 Council doc. 13053/02, 23 Oct. 2002, outcome of proceedings of working party 1-2
Oct. 2002.
45 Council doc. 13968/02, 12 Nov. 2002.
46 Council doc. 14272/02, 26 Nov. 2002, outcome of proceedings of working party 12-
13 Nov. 2002.
588
gration” requirement. However, Member States would have the option of treat-
ing persons with a registered partnership on the same footing as spouses.
During January 2003,47 a number of the outstanding scrutiny reservations
were removed, and there was agreement in the Council bodies on several points.
These included agreement on the exception for public policy, et al, rejecting the
idea of an “international relations” exception from the right to family reunion,
but agreeing to state in the minutes that the concept of public policy includes
“cases in which a third-country national belongs to an association which sup-
ports the international terrorism, supports such an association or has extrem-
istic aspirations”. It can obviously be questioned whether an “international
relations” exception would have been compatible with the limitations on family
life permitted by Article 8 ECHR. Refugees could be subjected to integration
measures, but only after the grant of family reunion. Member States were also
permitted to limit access to an autonomous permit in cases of marriage or rela-
tionship breakdown. The most important remaining reservations by Member
States concerned the possible extension of the maximum waiting period, the
application of the Directive to the formation of families and access to employ-
ment by family members.
The JHA Council reached agreement on these remaining points in Feburary
2003, agreeing to retain the maximum waiting period for entry at three years, to
apply the Directive to family formation (subject to a provision allowing more
possibility for later withdrawal of residence permits) and to permit a one-year
wait for access to employment. Member States were also permitted to set a mini-
mum age of 21 for marriage and to restrict applications from children over 15.
Given the huge changes in the 2002 text compared to the earlier proposal,
the EP was reconsulted. The EP plenary voted in April 2003 to suggest a return
to all of the key provisions in the 2000 text, with the exception of the rules in
that version on family reunion for EU citizens.
The Commission’s strategy of accepting much of the Council’s spring 2001
texts and even going below the standards of those texts on many points was pre-
sumably based on a realpolitik assumption that Member States were unwilling
to agree even a modest level of minimum standards in this area. Instead, as with
asylum procedures,48 the alternative strategy was to suggest minimum standards
just above the lowest common denominator, with a standstill clause to ensure
that the Member States with higher standards did not lower them and “red-
lining” clauses permitting Member States with particularly low standards on
crucial points to keep such standards on condition that they were strictly limited
to those States. The problem with this strategy from a human rights perspec-
tive was that the standstill clause was too limited in scope and weak in effect.
47 Council docs. 5508/03, 23 Jan. 2003 and 5881/03, 3 Feb. 2003, outcome of proceed-
ings of working party on 23 Jan. 2003 and SCIFA on 29 Jan. 2003.
48 See Ch. 14.
589
It is unfortunate that the Commission did not attempt initially to suggest high
minimum standards coupled with a “red-lining” clause for a greater number of
Member States falling below those standards, for at least with such an approach
the “norm” would be higher. In any event, the reaction to the Commission’s
revised proposal suggested that its strategy had not worked, with conservative
Member States successfully pressing for even lower standards than they had been
willing to accept the previous year and unwilling to accept the major changes
which had been made towards their position in a spirit of compromise. This out-
come also suggests that liberal Member States made a tactical error by refusing
to accept a compromise text in May 2001, as the effect of delay was the further
weakening of standards.
3 Legal Analysis
During the Swedish Presidency, the Council legal service was asked to comment
on whether the draft Directive permitted Member States to agree treaties with
third states setting higher standards than the Directive. It is not known what view
the legal service took.49 However, the position is clear following a subsequent
amendment to the proposal agreed in the Council (and contained in the 2002
version of the proposal and the final text of the Directive) permitting Member
States to set higher standards in national law. The Court of Justice has consis-
tently held that where EC legislation sets only minimum standards internally,
Member States retain external freedom to act to agree treaties to exceed those
standards.50 Before the proposal was amended, it could indeed have been argued
that since the text aimed to set fully harmonised standards internally, Member
States would lose external competence as a consequence; but this begged the
question as to whether the proposal could fully harmonise national law.
The other legal question is whether access to employment by third-country
nationals falls within the scope of Article 63 EC. As argued elsewhere in this
volume, the better view is that the powers over this issue are contained in Article
137 EC, or failing that, within Article 63 EC.51
It should also be kept in mind that many of the persons who will be covered
by the Directive will also be covered in part by EC treaties with third states.
So, for example, initial admission of the family members of Turkish workers
will be covered by the Directive, but continued residence and access to employ-
ment after three years will be governed by the rules adopted pursuant to the EC/
Turkey Association Agreement, except where the Directive sets higher standards
or addresses issues not covered by the agreement.52 A large number of nationals
49 The opinion was contained in Council doc. 8384/01, 4 May 2001.

50 See particularly Opinion 2/91 [1993] ECR I-1061.
52 See the relevant case law on the agreement (n. 7 above). For instance, family mem-
bers of Turkish workers will have the right under the Directive, after up to one year’s
590
of third states will be covered by the rules on equal treatment in working condi-
tions pursuant to various treaties,53 and in a number of cases family members
will also be covered by rules on equal treatment in social security.54
4 Comments
4.1 1999 and 2000 Versions 55
A number of NGOs commented on the 1999 and 2000 versions of this pro-
posal.56 For example, ILPA suggested that the Directive might not be compliant
with Articles 8 and 14 ECHR, because of the prospect that the ECHR juris-
prudence could become more critical of distinctions between EC nationals and
non-EC nationals as regards family reunion. It also argued that the proposal
did not conform to the Tampere principles of EU migration and asylum policy,
in particular the principle of granting the EU’s third country nationals rights
comparable to those of EU citizens. Rather, the proposal would intensify differ-
ences of treatment between these two categories. Also, ILPA criticised the wide
discretion that would be left to Member States concerning the conditions of
entry, the lack of a “standstill” clause (with the risk that there would be collec-
tive EU pressure to reduce to a lowest common denominator), and the lack of a
provision permitting Member States to adopt higher standards, even where such
standards derived from from pre-existing agreements with third countries.
ECRE argued that the Directive should apply to all persons with subsidiary
protection status, even if they did not hold a permit renewable for more than one
year.57 It also suggested that Member States be allowed to set higher standards
wait, to take up the same employment as the sponsor; then Decision 1/80 will confer
employment and residence rights upon them as family members after three and five
years. It appears from the judgment in Aydinli (n. 7 above) that Turkish workers’
family members within the scope of Article 7 of Decision 1/80 cannot, however,
rely on Article 6 of Decision 1/80 in in order to renew their work permit after one
year of employment with the same employer, although this is inconsistent with the
Court’s prior approach to the relationship between Articles 6 and 7 of the Decision
(see Kadiman and Eroglu, n. 7 above, and particularly Case C-188/00 Kurz [2002]
ECR I-10691).
53 See Cases C-416/96 El-Yassini [1999] ECR I-1209; C-162/00 Pokrzepowicz-Meyer
[2002] ECR I-1049; C-438/00 Kolpak [2003] ECR I-4135; C-171/01 Birklite [2003]
ECR I-4301; C-465/01 Commission v Austria [2004] ECR I-8291; and Case C-265/03
Simutkenov [2005] ECR I-2579.
54 See case law beginning with Case C-18/90 Kziber [1991] ECR I-199 (Maghreb) and
Case C-262/96 Surul [1999] ECR I-2625 (Turkey).
55 For an analysis of the Commission proposal as compared to suggestions by NGOs,
see Boeles, “Directive on Family Reunion: Are the Dilemmas Resolved?” 3 EJML
(2001) 61.
56 See n. 8 above.
57 The ECRE comments are in Council doc. 7984/00, 28 Apr. 2000.
591
than those in the Directive, widening the concept of “dependence”, prevent-

ing Member States from applying a public health criterion for the admission of
family members of refugees and subsidiary protection, granting independent
status automatically to those family members, and widening the rights granted
to them in the host Member State.
The UNHCR generally welcomed the proposal, which it believed was
largely in conformity with established refugee protection principles. However, it
suggested a broader approach to the concept of subsidiary protection, objected
to exclusion of family members on grounds of public health and urged the inclu-
sion of provisions on tracing the family of unaccompanied minors as a matter
of urgency.
A group of church organisations (the Churches’ Commission for Migrants
in Europe, the Comission of the Bishops’ Conferences of the European Commu-
nity and the International Catholic Migration Commission, supported by other
organisations) also welcomed the proposed Directive, while suggesting changes
to widen the scope of family members, expanding the concept of subsidiary
protection, permitting more family members to have access to employment and
liberalising the conditions of entry regarding sufficient income. These organisa-
tions (joined by Caritas and the Jesuit Refugee Service--Europe) subsequently
supported certain amendments in the 2000 version, while hoping that family
reunion for persons with subsidiary protection status would be addressed in a
later proposal.
4.2 2002 Version

Obviously, the flaws identified by NGOs in relation to the original proposal were
considerably exacerbated by the 2002 version, even before they were further
exacerbated by the weakening of the text in order to reach a final agreement.
ECRE raised a number of concerns about the revised version,58 criticising
the removal of persons with subsidiary protection from the scope, the require-
ment for a “reasonable prospect” of permanent residence (at least for refugees),
the application of a public health criterion for admission of refugees’ family
members, the merely optional admission of extended family members of refu-
gees and the minimum age requirement for entry of spouses.
For its part, the European Coordination for Foreigners’ Right to Family
Life argued that the rights in the Directive had been watered down so much that
it should no longer be supported.59 In particular, the possibility of banning teen-
agers from entry was “scandalous”, later checks on status “make the family’s
situation unstable and restrict their insertion and integration.” The net result
was the “complete disapproval” of the new text, as it “would be better to have
58 See comments at: <www.ecre.org/statements/frusep02.shtml.>.

59 See Statement and analysis online at: <http://perso.wanadoo.fr/ciemi.org>..
592
no European directive than to have one that endorses violations of the right to
family life perpetrated by certain Member States.”
The UNHCR had concerns about the new version, even though refugees
were exempted from some of the more restrictive provisions. It objected to the
narrower definition of the family, the exclusion of persons with subsidiary pro-
tection, and what it believed was an option for the Member States to apply a
waiting period for refugees’ family reunion.
Finally, the churches’ organisations (now joined by the Quaker Council for
European Affairs) expressed serious concern about the reduction in standards in
the new version of the proposal. In particular, they objected to the narrowing of
the concept of family, the more limited access to employment and other forms
of status and the greatly increased stringency of the conditions for reunion.
4.3 Final Text

At the outset, it should be observed that the key mandatory rules in the Direc-
tive appear sufficiently clear, precise and unconditional to confer direct effect.
This applies to Article 4(1), 13, 14 and 15. As for the substance, analysis of
family reunion rules can be broken down into four key issues: the definition of
the sponsors, the definition of family members, the conditions for entry and the
status of family members after entry.60 On the first point, the severe restriction
of the Directive’s scope has removed a large majority of the original would-be
beneficiaries. If anything, there was a case for expanding the scope of the pro-
posal to include persons with subsidiary protection status, since by late 2002,
the Council had already agreed on the main elements of a definition of “sub-
sidiary protection”; moreover, it has since adopted a Directive harmonising that
definition.61 The limitation to sponsors with a prospect of permanent residence
is very similar to the threshold in the 1993 Ministers’ resolution, and violates
principles of clear and precise drafting. But what does this test mean? Logically
the Council must intend (in the absence of evidence to the contrary) that differ-
ent EC immigration Directives are intended to be applied coherently. So if the
family reunion Directive is read in light of the long-term residence Directive,
“permanent” residence refers to either the acquisition of EC long-term resident
status under the long-term residence Directive or the acquisition of status under
a more generous national regime for long-term residence, which the latter Direc-
tive permits.62 A strong argument for consistent interpretation is that the Com-
mission and Council largely attempted to keep the texts of the two Directives
60 The following is adapted from a detailed analysis of the family reunion Directive in
s. 5 of Peers, “Family Reunion”, n. 3 above, which also examines the relationship
between the Directive and EC association agreements.
61 See Ch. 13.
62 See Art. 13 of Directive 2003/109 (Ch. 20).
593
consistent.63 Moreover, the long-term residence Directive expressly states that

long-term residence status is permanent, and since that Directive provides that
long-term residents are deemed to have the status of sponsor for the purpose
of the family reunion Directive when they move to a second Member State, it
would be bizarre if they were not deemed to have that status in the first Member
State.64 In any event, Turkish nationals surely have permanent residence after
four years’ work in accordance with EC-Turkey Association Council Decision
1/80, and possibly even beforehand.65
It might be argued instead that “permanent” residence means an absolute
right to stay in any circumstances; but this interpretation would be unconvinc-
ing, since even EU citizens exercising free movement rights lack such an absolute
right.66 It might also be argued that since there is no EC-wide definition in the
Directive, the meaning of “permanent” residence should be defined by national
law. However, the Directive refers to “national law” expressly at several points,67
which suggests by a contrario reasoning that in the absence of a reference to
national law, the concept of “permanent residence” has a standard Community
meaning. In addition, a standard Community meaning will ensure greater uni-
formity in the application of the family reunion Directive; there would otherwise
be no common rules to speak of because the core provision on the scope of the
Directive would have entirely different interpretations in each Member State. A
uniform interpretation would also be justified on the grounds that admission of
persons under the Directive will impact on all Member States (leaving aside opt-
outs), as family members who enter the EU pursuant to the Directive will have
the freedom to travel between (Schengen) Member States pursuant to the rel-
evant Schengen rules, and will ultimately be able to move freely to other Member
States once they obtain the status of EC long-term resident. Even before gaining
long-term residence status in their own right, they could move with their spon-
sor to live in another Member State if he or she has long-term resident status.
63 Arts. 2(a) and 3(2)(b) and (c) of each Directive are identical; Art. 6 in each Direc-
tive are deliberately similar; Art. 5 of the long-term residence Directive is identical
to Art. 7 of the family reunion Directive (leaving aside the accomodation require-
ment, exemption for refugees and consideration of the number of family members
in the latter); and Arts. 2(e), 16 and 21 of the long-term residence Directive refer to
the family reunion Directive. Also, in the Commission’s explanatory memorandum
to the revised version of the family reunion directive in 2002 (n. 2 above), it was
expressly stated that Arts. 13 and 15 of the proposal were being being aligned with
the long-term residents’ proposal. See Council doc. 5533/03, 3 Feb. 2003, which
makes several references to alignment of a number of provisions.
64 See Ch. 20.
65 For detailed argument, see Peers, n. 3 above.
66 See Case C-356/98 Kaba I [2000] ECR I-2623.
67 Articles 4(1), 4(6), 5(4), 7(2), 8 and 15(4) and implicitly in Article 18.
594
What is a “reasonable” expectation of permanent residence? Again, in

the absence of a reference to national law a uniform approach should apply.
Since the whole purpose of the Directive is to create an express “right” to family
reunion and there is a right to mount a legal challenge to the authorities’ refusal
to permit family reunion, it follows that the national authorities do not have full
discretion to interpret what is a “reasonable expectation”. Ideally, national leg-
islation implementing the Directive should set out in more detail when such an
expectation arises, and it could even be argued that Member States are obliged to
set out a precise test in their law in the interests of legal certainty. Where national
law does not set out a precise test, or where the test which national law sets out is
arguably challengeable, the civil law burden and standard of proof would be an
appropriate approach to assessing whether an expectation is “reasonable”. This
means that once a sponsor (or family member applying in his or her own name)
shows that there is a prima facie expectation of reasonability on the balance of
probabilities, it falls to the national authorities to rebut it. Furthermore, the
word “reasonable” as a legal term is usually understood to require an objective
test, so the subjective expectations of the person concerned or of the national
officials considering the application should not be relevant.
As for the scope of family members, the removal of extended family and
unmarried partners from automatic entry has obviously limited the numbers of
family members who will be able to enter, discriminating on grounds of culture
and sexual orientation against those groups who traditionally live with extended
family and those with same-sex partners. The agreed “knock-on” effect on the
long-term residents’ Directive (permitting Member States to prevent internal
movement of third-country nationals’ family members other than spouses and
children) will in turn hinder movement of third-country nationals within the
Community. The various possible age limits are contradictory, assuming that
teenagers are too mature to integrate into the host State but too immature to
decide on marriage. The Directive also takes no account of the Sen v Nether-
lands judgment, in which the European Court of Human Rights ruled that there
is an obligation to admit children in certain circumstances.68
Next, the conditions attached to entry could mean an indefinite delay
in receiving a reply to an application and a wait for entry much longer than
originally proposed, with discrimination permitted as regards accommodation,
resources and sickness insurance requirements.69 The absence of any final date
to reply to applications appears incompatible with Article 13 ECHR, requiring
an effective remedy for the implementation of rights granted under the Conven-
tion. Potential checks after entry are permitted potentially indefinitely, raising
68 Judgment of 21 Dec. 2001, not yet reported.

69 On this issue, see particularly Cholewinski, “Family Reunification and Conditions
Placed on Family Members: Dismantling a Fundamental Human Right” 4 EJML
(2002) 271.
595
the prospect that particularly intrusive checks could constitute an unjustified

interference in private and family life. Logically there can be no justification at
all for checks once family members have acquired the right to reside in their own
name. However, one method of limitation on entry would clearly not be compat-
ible with the Directive, as it does not expressly permit the application of quotas
as a method for admission of family members, and in light of the context and
purpose of the Directive, the list of possible conditions and limitations set out
in the Directive must be considered to be exhaustive.
Although the limitation of entry and possible expulsion of family members
on grounds of “public policy, public security and public health” makes no ref-
erence to the substantive rules applied to migrant EU citizens and their family
members by Directive 64/221,70 it is nonetheless arguable that equal treatment
is required. The argument for this interpretation is that the Council has in a
number of cases inserted into the Directive additional grounds for admission
of third-country national family members (such as the integration requirement,
discussed below) or different wording regarding their conditions of entry, includ-
ing different wording on the procedures to dispute an expulsion or a refusal to
admit. Logically the failure to insert additional or different wording as regards
the substance of the exception for public policy, et. al exception suggests that this
exception has the same substantive meaning as it does under EC free movement
law.71
What about the possible conditions of accommodation, sickness insurance
and stable and sufficient resources? The key question here is what happens if the
conditions are not met after entry. Article 16(1)(a) could be interpreted to mean
that failure to satisfy any of these conditions after entry could justify removal.
While avoidance of an additional cost to the public could be considered justified
on economic grounds under Article 8(2) ECHR, the Strasbourg case law makes
clear that removals on purely economic grounds in the absence of criminal activ-
ity by the family member are very difficult to justify.72 If family members’ hous-
ing is considered inadequate after entry, but without a demand for public funds,
it is hard to see how expulsion could be justified.73
As for the possibility of requiring third-country nationals to comply with
national “integration measures”, the timing of this optional requirement is
left open (except as regards refugees, when it can only be applied after family
70 Arts. 2(2), 3, 4(1) and (3) of Directive (OJ Spec. Ed., 1963-64, 117).
71 On checking family members’ names in the Schengen Information System and the
application of Directive 2001/40 on mutual recognition of expulsion decisions to
family members, see the analysis in s. 4.2 of Ch. 20, which applies mutatis mutandis
to family members.
72 See Berrehab v Netherlands (Series A, no. 138) and Ciliz v Netherlands (Reports of
Judgments and Decisions, 2000-VIII).
73 See Case 249/86 Commission v Germany [1989] ECR 1263.
596
reunion). Logically, non-resident family members cannot be required to comply

with this condition in advance. The crucial question is again what happens if
this criterion is failed after entry of the family members. While the extent of
integration of family members into the host State is always taken into account
by the Human Rights Court when balancing the interests of the family member
in staying against the reasons for expulsion on other grounds (criminal activity
or economic interests), it is hard to see how a failure to comply with national
integration measures could by itself ever justify expulsion under the ECHR.
Next, the standards relating to the status of family members were also
reduced considerably during negotiations, in particular by permitting Member
States to decline to issue independent residence permits for family members
other than spouses and partners and by giving them great discretion over the
conditions and duration of the independent status. The right to equal treatment
as regards employment, self-employment and education is also highly limited.
However, on both of these points the ability of family members to obtain long-
term residence status in accordance with the relevant Directive will limit the
negative impact. It should be kept in mind that the status of the sponsor as
regards access to employment, education and vocational training will often itself
be defined by Community law,74 and that in accordance with Article 3(4)(a), any
more favourable provisions found in association agreements will apply in the
event of overlap.75
Moreover, the national power over the conditions for independent status in
Article 15 cannot be unlimited. In particular, in the absence of express wording,
Member States cannot set conditions which negate their mandatory substantive
obligations set out in the rest of Article 15: an Article 15(1) right to a permit
after five years, at least for a spouse or partner in the event of relationship break-
down, and an Article 15(3) right to a permit in the event of difficult circum-
stances, applicable whenever the circumstances occur and arguably to a broader
category of persons. So the residual discretion can apply only to procedural
matters such as setting a time period to apply for the permit and time periods
for administrations to reply, and possibly also to a limited range of substantive
issues not addressed in Article 15, such as the extent of permitted absence during
the qualification period for an Article 15(1) permit. In any event, following the
case law of the Court of Justice on remedies issues, it is arguable that the condi-
tions could not be so stringent as to make it impossible or excessively difficult for
family members to exercise the substantive rights set out in the Directive.
What about the procedural rights set out in Article 18? It might be ques-
tioned whether a right to “mount a legal challenge”, with national control over
74 For example, by the long-term residents’ Directive (see Ch. 20) and/or EC-Turkey
Association Council Decision 1/80 (see Peers, n. 3 above).
75 For example, Article 9 of Decision 1/80 on Turkish workers’ children access to edu-
cation; on this issue, see the judgment in Gurol, n. 7 above.
597
the procedure and the competence involved, amounts to a right of access to a

court, including a right to demand a review of the merits of the decision. Despite
the weak wording used, in light of the right to an effective remedy in Article 13
ECHR, the procedural rights stemming directly from Article 8 ECHR,76 and the
requirement stemming from the general principles of EU law to secure a fair
trial and an effective remedy in connection with EU law, it must be concluded
that there is indeed a right to at least one level of judicial challenge concerning
the merits as well as the law. The same conclusion must logically apply to other
matters not expressly mentioned in Article 18, such as the right of family mem-
bers to employment and an independent residence permit. Again, it is strongly
arguable that the Member States’ powers under Article 18 to control the proce-
dure and competence involved cannot be exercised so as to make it impossible or
excessively difficult for family members to mount legal challenges.
Finally, it should be kept in mind that the long-term residents’ Directive
contains express provisions on the rights of family members who move with a
long-term resident to another Member State, and also apparently permits family
members of third-country nationals to gain long-term residence status in their
own right. These issues are considered in detail in Chapter 20.
5 Conclusions
How low can minimum standards go? In this Directive, they went very low
indeed. Given the deletion of the proposed “standstill” requirement, there is a
serious risk that Member States will move towards the very low “floor” estab-
lished by the Directive. The huge distinctions between this Directive and the
family reunion standards applicable to EU citizens amount to indirect discrimi-
nation on racial and religious grounds. Coupled with the specific conditions in
the Directive, they also result in class discrimination and hostility to those whose
families differ from the married heterosexual norm. It is clear that the Tampere
principles of comparable treatment for third-country nationals generally and
equal treatment for long-term residents in particular were simply disregarded
when the Directive was discussed and agreed.
76 See Al-Nashif v Bulgaria, judgment of 10 June 2002, not yet reported.
598

on the right to family reunification
(OJ 2003 L 251/12)
Having regard to the Treaty establishing the Euro-

pean Community, and in particular Article 63(3)(a) thereof,
Whereas:
(1) With a view to the progressive establishment of an area of freedom, secu-

rity and justice, the Treaty establishing the European Community provides
both for the adoption of measures aimed at ensuring the free movement of
persons, in conjunction with flanking measures relating to external border
controls, asylum and immigration, and for the adoption of measures relat-
ing to asylum, immigration and safeguarding the rights of third-country
nationals.
(2) Measures concerning family reunification must be adopted in conformity

with the obligation to protect the family and respect family life enshrined in
many instruments of international law. This Directive respects the funda-
mental rights and observes the principles recognised in particular by Article
8 of the European Convention on Human Rights and Fundamental Free-
doms and in the Charter of Fundamental Rights of the European Union.
(3) The European Council, at its special meeting in Tampere on 15 and 16 Octo-
ber 1999, acknowledged the need for harmonisation of national legislation on
the conditions for admission and residence of third-country nationals. In this
context, it has in particular stated that the European Union should ensure
fair treatment of third-country nationals residing lawfully on the territory of
the Member States and that a more vigorous integration policy should aim
at granting them rights and obligations comparable to those of citizens of
the European Union. The European Council accordingly asked the Council
rapidly to adopt the legal instruments on the basis of Commission proposals.
The need for achieving the objectives defined at Tampere were reaffirmed by
the Laeken European Council on 14 and 15 December 2001.
599
(4) Family reunification is a necessary way of making family life possible. It

helps to create socio-cultural stability facilitating the integration of third-
country nationals in the Member State, which also serves to promote eco-
nomic and social cohesion, a fundamental Community objective stated in
the Treaty.
(5) Member States should give effect to the provisions of this Directive with-
out discrimination on the basis of sex, race, colour, ethnic or social origin,
genetic characteristics, language, religion or beliefs, political or other opin-
ions, membership of a national minority, fortune, birth, disabilities, age or
sexual orientation.
(6) To protect the family and establish or preserve family life, the material con-
ditions for exercising the right to family reunification should be determined
on the basis of common criteria.
(7) Member States should be able to apply this Directive also when the family
enters together.
(8) Special attention should be paid to the situation of refugees on account

of the reasons which obliged them to flee their country and prevent them
from leading a normal family life there. More favourable conditions should
therefore be laid down for the exercise of their right to family reunifica-
tion.
(9) Family reunification should in any case apply to members of the nuclear
family, that is to say the spouse and the minor children.
(10) It is for the Member States to decide whether they wish to authorise family
reunification for relatives in the direct ascending line, adult unmarried chil-
dren, unmarried or registered partners as well as, in the event of a polyga-
mous marriage, minor children of a further spouse and the sponsor. Where
a Member State authorises family reunification of these persons, this is
without prejudice of the possibility, for Member States which do not recog-
nise the existence of family ties in the cases covered by this provision, of not
granting to the said persons the treatment of family members with regard
to the right to reside in another Member State, as defined by the relevant
EC legislation.
(11) The right to family reunification should be exercised in compliance with

the values and principles recognised by the Member States, in particular
with respect to the rights of women and children; such compliance justifies
600
the possible taking of restrictive measures against applications for family

reunification of polygamous households.
(12) The possibility of limiting the right to family reunification of children over
the age of 12, whose primary residence is not with the sponsor, is intended
to reflect the children’s capacity for integration at early ages and shall ensure
that they acquire the necessary education and language skills in school.
(13) A set of rules governing the procedure for examination of applications for
family reunification and for entry and residence of family members should
be laid down. Those procedures should be effective and manageable, taking
account of the normal workload of the Member States’ administrations, as
well as transparent and fair, in order to offer appropriate legal certainty to
those concerned.
(14) Family reunion may be refused on duly justified grounds. In particular, the
person who wishes to be granted family reunification should not constitute
a threat to public policy or public security. The notion of public policy may
cover a conviction for a serious crime. In this context, it has to be noted
that the notion of public policy and public security covers also cases in
which a third-country national belongs to an association which supports
the international terrorism, supports such an association or has extremistic
aspirations.
(15) The integration of family members should be promoted. To that end, they
should be granted a status independent of that of the sponsor, in particular
in cases of breakup of marriages and partnerships, and access to education,
employment and vocational training on the same terms as the person with
whom they are reunited, under the relevant conditions.
(16) Since the objectives of the proposed action, namely the establishment of
a right to family reunification for third-country nationals to be exercised
in accordance with common rules, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale and impact of the
action, be better achieved by the Community, the Community may adopt
measures, in accordance with the principle of subsidiarity as set out in Arti-
cle 5 of the Treaty. In accordance with the principles of proportionality as
set out in that Article, this Directive does not go beyond what is necessary
in order to achieve those objectives.
(17) In accordance with Articles 1 and 2 of the Protocol on the position of the
United Kingdom and Ireland annexed to the Treaty on European Union
and the Treaty establishing the European Community, and without preju-
601
dice to Article 4 of the aforementioned Protocol, these Member States are

not participating in the adoption of this Directive and are not bound by it
or subject to its application.
(18) In accordance with Article 1 and 2 of the Protocol on the position of Den-
mark annexed to the Treaty on European Union and the Treaty establishing
the European Community, Denmark does not take part in the adoption of
this Directive, and is not bound by it or subject to its application.
CHAPTER I
GENERAL PROVISIONS
Article 1
The purpose of this Directive is to determine the conditions in which the right
to family reunification may be exercised by third-country nationals residing law-
fully in the territory of the Member States.
Article 2
For the purpose of this Directive:

(a) “third-country national” means any person who is not a citizen of the
Union within the meaning of Article 17(1) of the Treaty;
(b) “refugee” means any third-country national or stateless person enjoying
refugee status within the meaning of the Convention on the Status of Refu-
gees of 28 July 1951, as amended by the Protocol signed in New York on 31
January 1967;
(c) “sponsor” means a third-country national residing lawfully in a Mem-
ber State and applying or whose family members apply for family reunifica-
tion to be joined with him/her;
(d) “family reunification” means the entry into and residence in a Member
State by family members of a third-country national residing lawfully in
that Member State in order to preserve the family unit, whether the family
relationship arose before or after the resident’s entry;
(e) “residence permit” means any authorisation issued by the authorities of a
Member State allowing a third-country national to stay legally in its ter-
ritory, in accordance with the provisions of Article 1(2)(a) of Regulation
1030/2002 laying down a uniform format for residence permits for third-
country nationals;
(f) “unaccompanied minor” means third-country nationals or stateless per-
sons below the age of eighteen, who arrive on the territory of the Member
602
States unaccompanied by an adult responsible by law or custom, and for

as long as they are not effectively taken into the care of such a person, or
minors who are left unaccompanied after they entered the territory of the
Member States.
Article 3
1. This Directive shall apply where the sponsor is holding a residence permit
issued by a Member State for a period of validity of one year or more who
has reasonable prospects of obtaining the right of permanent residence, if
the members of his or her family are third-country nationals of whatever
status.
2. This Directive shall not apply where the sponsor is:

(a) applying for recognition of refugee status whose application has not
yet given rise to a final decision;
(b) authorised to reside in a Member State on the basis of temporary pro-
tection or applying for authorisation to reside on that basis and await-
ing a decision on his status;
(c) authorised to reside in a Member State on the basis of a subsidiary
form of protection in accordance with international obligations,
national legislation or the practice of the Member States or applying
for authorisation to reside on that basis and awaiting a decision on his
status.
3. This Directive shall not apply to members of the family of a Union citi-
zen.
4. This Directive is without prejudice to more favourable provisions of:

(a) bilateral and multilateral agreements between the Community or the
Community and its Member States, on the one hand, and third coun-
tries, on the other;
(b) the European Social Charter of 18 October 1961, the amended Euro-
pean Social Charter of 3 May 1987 and the European Convention on
the Legal Status of Migrant Workers of 24 November 1977.
5. This Directive shall not affect the possibility for the Member States to adopt
or retain more favourable provisions.
603
CHAPTER II
FAMILY MEMBERS
Article 4
1. The Member States shall authorise the entry and residence, pursuant to
this Directive and subject to compliance with the conditions laid down in
Chapter IV, as well as in Article 16, of the following family members:
(a) the sponsor’s spouse;
(b) the minor children of the sponsor and of his/her spouse, including
children adopted in accordance with a decision taken by the compe-
tent authority in the Member State concerned or a decision which
is automatically enforceable due to international obligations of that
Member State or must be recognised in accordance with international
obligations;
(c) the minor children including adopted children of the sponsor where
the sponsor has custody and the children are dependent on him or her.
Member States may authorise the reunification of children of whom
custody is shared, provided the other party sharing custody has given
his or her agreement;
(d) the minor children including adopted children of the spouse where
the spouse has custody and the children are dependent on him or her.
Member States may authorise the reunification of children of whom
custody is shared, provided the other party sharing custody has given
his or her agreement.
The minor children referred to in this Article must be below the age of
majority set by the law of the Member State concerned and must not be
married.
By way of derogation, where a child is aged over 12 years and arrives inde-
pendently from the rest of his/her family, the Member State may, before
authorising entry and residence under this Directive, verify whether he or
she meets a condition for integration provided for by its existing legislation
on the date of adoption of this Directive.
2. The Member States may, by law or regulation, authorise the entry and resi-
dence, pursuant to this Directive and subject to compliance with the condi-
tions laid down in Chapter IV, of the following family members:
(a) first-degree relatives in the direct ascending line of the sponsor or his
or her spouse, where they are dependent on them and do not enjoy
proper family support in the country of origin;
604
(b) the adult unmarried children of the sponsor or his or her spouse, where
they are objectively unable to provide for their own needs on account
of their state of health.
3. The Member States may, by law or regulation, authorise the entry and
residence, pursuant to this Directive and subject to compliance with the
conditions laid down in Chapter IV, of the unmarried partner, being a
third-country national, with whom the sponsor is in a duly attested stable
long-term relationship, or of a third-country national who is bound to the
sponsor by a registered partnership in accordance with Article 5(2), and
the unmarried minor children, including adopted children, as well as the
adult unmarried children who are objectively unable to provide for their
own needs on account of their state of health, of such persons.
Member States may decide that registered partners are to be treated equally
as spouses with respect to family reunification.
4. In the event of a polygamous marriage, where the sponsor already has a

spouse living with him in the territory of a Member State, the Member
State concerned shall not authorise the entry and residence of a further
spouse.
By way of derogation from paragraph 1(c), Member States may limit the
family reunification of minor children of a further spouse and the spon-
sor.
5. In order to ensure better integration and to prevent forced marriages,

Member States may require the sponsor and his/her spouse to be of a mini-
mum age, and at maximum 21 years, before the spouse is able to join him/
her.
6. By way of derogation, Member States may request that the applications

concerning family reunification of minor children have to be submitted
before the age of fifteen, as provided for by its existing legislation on the
date of the implementation of this Directive. If the application is submitted
after the age of fifteen, the Member States which decide to apply this dero-
gation shall authorise the entry and residence of such children on grounds
other than family reunification.
605
CHAPTER III
SUBMISSION AND EXAMINATION OF THE APPLICATION
Article 5
1. Member States shall determine whether, in order to exercise the right to

family reunification, an application for entry and residence shall be submit-
ted to the competent authorities of the Member State concerned either by
the sponsor or by the family member or members.
2. The application shall be accompanied by documentary evidence of the

family relationship and of compliance with the conditions laid down in
Articles 4 and 6 and, where applicable, Articles 7 and 8, as well as certified
copies of family member(s)’ travel documents.
If appropriate, in order to obtain evidence that a family relationship exists,

Member States may carry out interviews with the sponsor and his/her family
members and conduct other investigations that are found to be necessary.
When examining an application concerning the unmarried partner of the

sponsor, Member States shall consider, as evidence of the family relation-
ship, factors such as a common child, previous cohabitation, registration of
the partnership and any other reliable means of proof.
3. The application shall be submitted when the family members are outside
the territory of the Member State in which the sponsor resides.
By way of derogation, a Member State may, in appropriate circumstances,

accept an application submitted when the family members are already in its
territory.
4. The competent authorities of the Member State shall give the persons, who
has submitted the application, written notification of the decision as soon
as possible and in any event no later than nine months from the date on
which the application was lodged.
In exceptional circumstances linked to the complexity of the examination

of the application, the time limit referred to in the first subparagraph may
be extended.
Reasons shall be given for the decision rejecting the application. The conse-
quences of no decision being taken by the end of the period provided for in
606
the first subparagraph shall be determined by the national legislation of the

relevant Member State.
5. When examining an application, the Member States shall have due regard
to the best interests of minor children.
CHAPTER IV
REQUIREMENTS FOR THE EXERCISE OF THE RIGHT
TO FAMILY REUNIFICATION
Article 6
1. The Member States may reject an application for entry and residence of
family members on grounds of public policy, public security or public
health.
2. Member States may withdraw or refuse to renew a family member’s resi-

dence permit on grounds of public policy or public security or public
health.
When taking the relevant decision, the Member State shall consider, besides
Article 17, the severity or type of offence against public policy or public
security committed by the family member, or the dangers that are emanat-
ing from this person.
3. Renewal of the residence permit may not be withheld and removal from the
territory may not be ordered by the competent authority of the Member
State concerned on the sole ground of illness or disability suffered after the
issue of the residence permit.
Article 7
1. When the application for family reunification is submitted, the Member

State concerned may ask the person who has submitted the application to
provide evidence that the sponsor has:
(a) accommodation regarded as normal for a comparable family in the
same region and which meets the general health and safety standards
in force in the Member State concerned;
(b) sickness insurance in respect of all risks normally covered for its own
nationals in the Member State concerned for himself/herself and the
members of his/her family;
(c) stable and regular resources which are sufficient to maintain himself/
herself and the members of his/her family, without recourse to the
607
social assistance system of the Member State concerned. Member

States shall evaluate these resources by reference to their nature and
regularity and may take into account the level of minimum national
wages and pensions as well as the number of family members.
2. Member States may require third-country nationals to comply with integra-

tion measures, in accordance with national law.
With regard to the refugees/family members of refugees referred to in Arti-

cle 12 the integration measures referred to in the first sub-paragraph may
only be applied once the persons concerned have been granted family reuni-
fication.
Article 8
The Member States may require the sponsor to have stayed lawfully in their ter-
ritory for a period not exceeding two years, before having his/her family mem-
bers join him/her.
By way of derogation, where the legislation of a Member State relating to family

reunification in force on the date of adoption of this Directive has regard for its
reception capacity, the Member State may provide for a waiting period of no
more than three years between submission of the application for family reunifi-
cation and the issue of a residence permit to the family members.
CHAPTER V
FAMILY REUNIFICATION OF REFUGEES
Article 9
1. This Chapter shall apply to family reunification of refugees.
2. Member States may confine the application of this Chapter to refugees

whose family relationships predate their entry.
3. This Chapter is without prejudice to any rules granting refugee status to

family members.
Article 10
1. Article 4 shall apply to the family members of refugees. The third subpara-
graph of paragraph 1 thereof shall not apply to the children of refugees.
608
2. The Member States may authorise family reunification of other family

members not referred to in Article 4, if they are dependent on the refugee.
3. If the refugee is an unaccompanied minor, the Member States:

(a) shall authorise the entry and residence for the purposes of family
reunification of his/her first-degree relatives in the direct ascending line
without applying the conditions laid down in Article 4(2)(a);
(b) may authorise the entry and residence for the purposes of family reuni-
fication of his legal guardian or any other member of the family, where
the refugee has no relatives in the direct ascending line or such relatives
cannot be traced.
Article 11
1. Article 5 shall apply to the submission and examination of the application,

subject to paragraph 2 of this Article.
2. Where a refugee cannot provide official documentary evidence of the family

relationship, the Member States shall have regard to other evidence, to be
assessed in accordance with national law, of the existence of such relation-
ship. A decision rejecting an application may not be based solely on the fact
that documentary evidence is lacking.
Article 12
1. By way of derogation from Article 7, the Member States shall not require
the refugee and/or family member(s) to provide, in respect of applications
concerning those family members referred to in Article 4(1), the evidence
that the refugee fulfils the requirements of accommodation, sickness insur-
ance and stable resources.
Without prejudice to international obligations, where family reunification

is possible in a third-country with which the sponsor/family member has
special links, Member States may require the evidence referred to in the first
sub-paragraph.
Member States may require the refugee to meet the conditions referred to
in Article 7(1) if the application for family reunification is not submitted
within a period of three months after the granting of the refugee status.
2. By way of derogation from Article 8, the Member States may not require
the refugee to have resided in their territory for a certain period of time,
before having his/her family members join him/her.
609
CHAPTER VI
ENTRY AND RESIDENCE OF FAMILY MEMBERS
Article 13
1. As soon as the application for family reunification has been accepted, the
Member State concerned shall authorise the entry of the family member
or members. In that regard, Member States shall grant such persons every
facility for obtaining the requisite visas.
2. The Member State concerned shall grant the family members a first resi-
dence permit of at least one year’s duration. This residence permit shall be
renewable.
3. The duration of the residence permits granted to the family member(s)

shall in principle not go beyond the date of expiry of the residence permit
held by the sponsor.
Article 14
1. The sponsor’s family members shall be entitled, in the same way as the
sponsor, to:
(a) access to education;
(b) access to employment and self-employed activity;
(c) access to vocational guidance, initial and further training and retrain-
ing.
2. Member States may decide according to national law the conditions under
which family members shall exercise an employed or self-employed activ-
ity. These conditions shall set a time-limit which shall in no cases exceed 12
months, during which Member States may examine the situation of their
labour market before authorising family members to exercise an employed
or self-employed activity.
3. Member States may restrict access to employment or self-employed activ-

ity by first-degree relatives in the direct ascending line or adult unmarried
children to whom Article 4(2) applies.
Article 15
1. Not later than after five years of residence, and provided that the family
member has not been granted a residence permit for reasons other than
family reunification, the spouse or unmarried partner and a child who has
610
reached majority shall be entitled, upon application, if required, to an

autonomous residence permit, independent of that of the sponsor.
Member States may limit the granting of the residence permit referred to
in the first sub-paragraph to the spouse or unmarried partner in cases of
breakdown of the family relationship.
2. The Member States may issue an autonomous residence permit to chil-

dren of full age and to relatives in the ascending line to whom Article 4(2)
applies.
3. In the event of widowhood, divorce, separation, or death of first-degree rel-

atives in the direct ascending or descending line, an independent residence
permit may be issued, upon application, if required, to persons who have
entered by virtue of family reunification. Member States shall lay down
provisions ensuring the granting of an independent residence permit in the
event of particularly difficult circumstances.
4. The conditions relating to the granting and duration of the autonomous

residence permit are established by national law.
CHAPTER VII
PENALTIES AND REDRESS
Article 16
1. Member States may also reject an application for entry and residence for
the purpose of family reunification, or, if appropriate, withdraw or refuse to
renew a family member’s residence permit, in the following circumstances:
(a) where the conditions laid down by this Directive are not or are no
longer satisfied.
When renewing the residence permit, where the sponsor has not suf-
ficient resources without recourse to the social assistance system of
the Member State, as referred to in Article 7(1)(c), the Member State
shall take into account the contributions of the family members to the
household income;
(b) where the sponsor and his family member(s) do not or no longer live in
a full marital or family relationship.
(c) where it is found that the sponsor or the unmarried partner is married
or is in a stable long-term relationship with another person.
611
2. Member States may also reject an application for entry and residence for
the purpose of family reunification, or withdraw or refuse to renew the
family member’s residence permits, where it is shown that:
(a) false or misleading information, false or falsified documents were used,
fraud was otherwise committed or other unlawful means were used;
(b) the marriage, partnership or adoption was contracted for the sole pur-
pose of enabling the person concerned to enter or reside in a Member
State.
When making an assessment with respect to this point, Member States
may have regard in particular to the fact that the marriage, partnership
or adoption was contracted after the sponsor had been issued his/her
residence permit.
3. The Member States may withdraw or refuse to renew the residence permit
of a family member where the sponsor’s residence comes to an end and the
family member does not yet enjoy the autonomous right of residence under
Article 15.
4. Member States may conduct specific checks and inspections where there
is reason to suspect that there is fraud or a marriage, partnership or adop-
tion of convenience as defined by paragraph 2. Specific checks may also be
undertaken on the occasion of the renewal of family members’ residence
permit.
Article 17
Member States shall take due account of the nature and solidity of the person’s
family relationships and the duration of his residence in the Member State and
to the existence of family, cultural and social ties with his/her country of origin
where they reject an application, withdraw or refuse to renew a residence permit
or decide to order the removal of the sponsor or members of his family.
Article 18
The Member States shall ensure that the sponsor and/or the members of his/her
family have the right to mount a legal challenge where an application for family
reunification is rejected or a residence permit is either not renewed or is with-
drawn or removal is ordered.
The procedure and the competence according to which the right referred to in
the first subparagraph is exercised shall be established by the Member States
concerned.
612
CHAPTER VIII
FINAL PROVISIONS
Article 19
Periodically, and for the first time no later than 3 October 2007, the Commission
this Directive in the Member States and shall propose such amendments as may
appear necessary. These proposals for amendments shall be made by way of
priority in relation to Articles 3, 4, 7, 8 and 13.
Article 20
provisions necessary to comply with this Directive not later than 3 October
2005. They shall forthwith inform the Commission thereof. When Member
States adopt those provisions, they shall contain a reference to this Directive
or be accompanied by such a reference on the occasion of their official publica-
tion. The methods of making such reference shall be laid down by the Member
States.
Article 21
This Directive shall enter into force on the day of its publication in the Official
Journal of the European Union.
Article 22
613
Chapter 20 Long-term Residents
1 Summary
The Commission proposed a Directive on the status of long-term resident third-
country nationals in the European Union in March 2001. After lengthy discus-
sions, the JHA Council agreed in principle on the final text of this Directive in
June 2003, and Directive 2003/109 was formally adopted in November 2003.1
The UK and Ireland opted out of the Directive, and Denmark was automati-
cally excluded from it. All other Member States must apply the Directive by 23
January 2006.
Chapter I of the Directive (Articles 1-3) sets out its purpose, definitions
and scope. It applies to all lawful residents of a Member State, except for: dip-
lomats; persons who are seeking or who have received refugee status, tempo-
rary protection or subsidiary protection; students; temporary residents such as
au pairs, seasonal workers, cross-border service providers, workers posted by
a cross-border service providers, or persons whose “residence permit has been
formally limited” (Article 3(2)). A later separate proposal suggested extending
the Directive to persons with subsidiary protection status, but this was rejected
for now.2 Although the Commission committed itself to making a separate pro-
posal within a year at the latest to extend the scope of this Directive to refugees
and persons with subsidiary protection, that proposal had not yet appeared by
1 January 2006.
The Directive is without prejudice to more favourable provisions of existing
EC or mixed agreements with third states, pre-existing treaties of Member States
and certain Council of Europe migration treaties (Article 3(3)).
1 For the original proposal, see COM (2001) 127, 13 Mar. 2001; OJ 2001 C 240 E/79.
For the adopted text, see OJ 2004 L 16/44 (reproduced in Annex).
2 See Ch. 13.
Chapter II (Articles 4-13) sets out rules concerning long-term resident

status in one Member State. The basic rule is that third-country nationals are
entitled to such status after residing “legally and continuously for five years in
the territory of the Member State concerned” before their application for status
(Article 4). Absences of up to six months at a time, totalling no more than ten
months during the five-year period, must be taken into account in calculating
that period. Member States may permit longer periods of absence for “specific or
exceptional reasons of a temporary nature and in accordance with their national
law”, but such absences will not count toward the qualifying period (in other
words, the clock will be stopped). But Member States may allow the clock to
keep ticking if a person is detached for employment purposes. Prior residence as
a diplomat or on a temporary permit will not count at all, while prior residence
as a student will be discounted 50%.
Status may be denied on grounds of insufficient resources or public policy
or public security (Articles 5 and 6). The Directive also sets out detailed rules on
the procedure for acquisition and withdrawal of status (Articles 7-10). Substan-
tively, the status entitles long-term residents to equal treatment with nationals
in a number of areas and enhanced, although not absolute, protection against
expulsion (Articles 11 and 12). Member States may create or maintain national
systems that are more favourable than the rules in Chapter II, but acquisition of
status under such more favourable rules will not confer the right of residence in
other Member States pursuant to Chapter III (Article 13).
Chapter III (Articles 14-22) concerns the exercise of the right of residence
for periods above three months in other Member States, other than as a posted
worker or provider of services (Article 14). Member States can impose labour
market tests limiting movement on economic grounds,3 or an overall quota on
third-country nationals, along with special rules restricting movement of sea-
sonal workers or cross-border workers. The right of residence can be exercised
if the long-term resident is pursuing an economic activity or a non-economic
activity, but the “second” Member State can insist that the long-term resident
has sufficient resources and sickness insurance and comply with integration
measures, provided that such measures were not already complied with in the
first Member State (Article 15). Long-term residents can bring with them their
3 This issue was not addressed by the proposed Directive on migration for employ-
ment or self-employment (Ch. 21). Art. 6 of that proposal only listed the categories
of persons who have preference over a third-country national applying for entry
into the EU on economic grounds, or applying to change jobs during the first three
years of residence. It did not set out a ranking of preference within the categories
of persons who have preference, and in any event those categories did not expressly
include a third-country national with long-term resident status under the long-term
residents’ Directive.
616
“core” family members as defined by the family reunion Directive,4 but the
second Member State retains the option to decide whether to admit other family
members (Article 16). Again, sickness insurance and sufficient resources tests
can apply. Admission of long-term rsidents and their family members can also
be refused not just on grounds of public policy and public security (Article 17),
but also public health (Article 18).
The potential “second” Member State must process the application within
four months, with a potential three-month extension. If the various conditions
are met, the second Member State must issue the long-term resident and his/her
family members with a renewable residence permit (Article 19). Reasons must
be given if the application is rejected, and there is a “right to mount a legal chal-
lenge” where an application is rejected or a permit is withdrawn or not renewed
(Article 20). Once they have received their residence permit, long-term residents
have the right to equal treatment (as defined in Article 11) in the second Member
State, “with the exception of social assistance and study grants”, and subject to
a possible one-year delay in full labour market access (Article 21). Family mem-
bers have the same status as family members under the family reunion Directive
as regards access to employment and education, once they have received their
long-term residence permit.
Before the long-term resident gains long-term resident status in the second
Member State, that Member State can remove or withdraw his or her residence
permit and expel the long-term resident and family in accordance with national
procedures on grounds of public policy or public security, where the conditions
for admission are no longer met and where the third-country national “is not
lawfully residing” there (Article 22). The first Member State must readmit such
persons although if there are “serious grounds of public policy or public secu-
rity” the person concerned can be expelled outside the EU. Once the conditions
for obtaining long-term resident status are satisfied in the second Member State,
the long-term resident can apply for long-term resident status there, subject to
the same procedural rules that apply to initial applications for long-term resi-
dent status (Article 23).
Finally, Chapter IV (Articles 24-28) sets out final provisions, including a
“rendez-vous” clause, which requires the Commission to propose amendments
in future by way of priority to the Articles concerning the calculation periods for
status, the conditions of resources and sickness insurance, withdrawal or loss of
status and movement to additional Member States.
4 See Ch. 19.
617

2.1 The “Maastricht era”
The Council agreed a Resolution on the status of long-term residents back in
1996, during the “Maastricht-era” of JHA cooperation.5 This is a non-binding
measure which does not set a specific time limit for acquisition of long-term
status besides a maximum wait of ten years. Recognised refugees are excluded
from its scope. Vague rights to equality as regards a limited number of issues
(not including family reunion and access to employment) are provided for, as
well as imprecise enhanced rights against expulsion, but there are no rights to
move to another Member State. The text was weakened considerably during
negotiations.6
However, the Commission’s proposed Convention on migration law, issued
in 1997, would have improved the position of long-term residents somewhat.7
This proposal, which included recognised refugees, would have required the
grant of long-term residence status after five years’ residence if a permit for a
further five years had already been granted. Such status would entail broader
rights to equal treatment in the Member State which granted it, although the
position as regards protection against expulsion and the status of family mem-
bers was vaguer. Long-term residents would have been able to move to another
Member State and seek employment on the same footing as nationals. This
proposal obviously formed the basis of the Commission’s proposed Directive.8
But during discussions in the Council’s working party, a majority of Member
States opposed the principle of movement of long-term residents, and several
also objected to the extent of equality rights in the Commission’s proposal and
5 OJ 1996 C 80/1. For comments see Hedemann-Robinson, “Third-Country Nation-

als, European Union Citizenship and Free Movement of Persons: A Time for
Bridges Rather than Divisions” 16 YEL (1996) 321 at 327-328 and Peers, “Under-
cutting Integration: Developments in EU Policy on Third-Country Nationals” 22
ELRev. (1997) 76.
6 On the negotiations, see Peers, “Building Fortress Europe: the Development of EU
Migration Law” 35 CMLRev. (1998) 1235 at 1252-1257.
7 COM (97) 387, 30 July 1997; OJ 1997 C 337/9. For comments, see Peers, “Raising
Minimum Standards or Racing to the Bottom? The Commission’s Proposed Migra-
tion Convention”, in Guild, ed., The Legal Framework and Social Consequences of
Free Movement of Persons in the European Union (Kluwer, 1999) 149 at 164-165 and
Hedemann-Robinson, “From Object to Subject? Non-EC Nationals and the Draft
Proposal of the Commission for a Council Act Establishing the Rules for Admis-
sion of Third-Country Nationals to the Member States” 18 YEL (1998) 289 at 315-
317 and 327-332.
8 See also Curtin, et al., “Draft Regulation on Freedom of Movement for Workers
Within the European Community for Third-Country Nationals with Long-Term
Residence in One Member State”, in Free Movement for non-EC Workers Within the
European Community (Standing Committee of Experts on Immigration, 1997).
618
the transfer of long-term residence status. Several wanted to follow the wording
of the more restrictive Council Resolution, to impose additional conditions on
the acquisition of long-term residence (an issue that recurred when discussing
the proposed Directive) and to make more references to national law, rather than
EC-wide rules. Several thought the Convention could be more generous and
there were also questions about the meaning of “enhanced protection” in expul-
sion cases (an issue the Commission addressed in more detail in its proposal
for a Directive).9 For its part, the EP voted to exclude the long-term residents’
chapter from the proposed Convention altogether, although it suggested that the
Commission should come forward with a separate proposal on this subject.10
2.2 The Tampere Conclusions and Commission proposal

Next, the principles relating to long-term residents of the EU were set out by the
Tampere European Council in October 1999. The European Council noted that
while the EU “must ensure fair treatment of third country nationals” generally,
including “[a] more vigorous integration policy” which “should aim at granting
them rights and obligations comparable to those of EU citizens”, there was a
specific paragraph on the treatment of long-term residents:11
The legal status of third country nationals should be approximated to that

of Member States’ nationals. A person, who has resided legally in a Member
State for a period of time to be determined and who holds a long-term resi-
dence permit, should be granted in that Member State a set of uniform rights
which are as near as possible to those enjoyed by EU citizens; e.g. the right to
reside, receive education, and work as an employee or self-employed person,
as well as the principle of non-discrimination vis-à-vis the citizens of the State
of residence.
The European Council clearly chose the principle of equality with EU citizens,
rather than the competing approaches it could have considered (basing the text
on existing national law, extending the personal scope of existing international
instruments or extending the rules in EC association agreements).12 In turn, the
9 Council doc. 6488/98 add 3, 16 Nov. 1998.

10 OJ 1999 C 150/187.
11 For the full text of the Tampere Conclusions, see Annex 4.
12 On these models, see Groenendijk, “Security of Residence and Access to Free
Movement for Settled Third-Country Nationals under Community Law” in Guild
and Harlow, Implementing Amsterdam: Immigration and Asylum Rights in EC Law
(Hart, 2001) 225.
619
Commission, following a detailed study of Member States’ law,13 based its pro-
posal on the same principles.
The Commission’s initial proposal differed in a number of important
respects from the final text agreed in the Council. Recognised refugees were ini-
tially covered by the proposal, as were students who were studying for a doctor-
ate.14 There was no exclusion for persons whose residence permit was formally
limited. Family members of migrant EC nationals were expressly covered by the
Directive, but on the condition that they could gain long-term residence status
only once they had attained permanent residence status in that Member State
pursuant to EC free movement law; this obviously assumed prior agreement on
the Commission’s subsequent proposal concerning the rights of EU citizens and
their family members, which was not adopted until April 2004, five months after
the long-term residents’ Directive was adopted.15 There was no provision per-
mitting Member States to maintain pre-existing bilateral agreements, but there
was a clause providing that the Directive was “without prejudice” to Article 33
of the 1951 Geneva Convention on refugees or Article 3 ECHR; presumably
the deletion of refugees from the scope of the Directive rendered this clause
unnecessary.16 Also, there was a non-discrimination clause in the main text of
the Directive, which was moved to the preamble instead.17
The Commission’s proposal on calculating the time period to obtain status
differed from the final text by including a requirement to include time spent as
an asylum-seeker or pursuant to temporary protection if the person were a refu-
gee. Time spent as a doctoral student would not have been discounted. The basic
principle of only six consecutive months away was retained by the Council, but
the Commission had proposed more rigid additional rules, which would have
exempted all time outside the country related to certain grounds, including time
spent as a family member of a long-term resident or an EC national who moves
to another Member State.18
As for the other conditions to acquire status, the original proposal for
the “stable resources” test would only have required resources higher than the
level of the minimum social security pension, rather than the minimum wage.
13 For a summary, see Guild and Groenendijk, “Converging Criteria: Creating an

Area of Security of Residence for Europe’s Third-Country Nationals” 3 EJML
(2001) 37.
14 Art. 3(2) of the original proposed Directive.
15 Art. 3(3) of the original proposed Directive. On the citizenship Directive, see the
proposal in COM (2001) 257, 23 May 2001 and the final text (Directive 2004/58, OJ
2004 L 229/35).
16 Art. 3(5) of the original proposed Directive.
17 Art. 4 of the original proposed Directive.
18 Art. 5 of the original proposed Directive. This would also have included a special
rule on family members of EC nationals who spent a period in a non-EU country.
620
Originally the requirements for resources and sickness insurance would not
have applied to refugees and those born in a Member State, but the Council
deleted this exception and added the optional exception for integration require-
ments. The next condition was originally a “public policy and domestic security”
exception, which could only have been applied where the “personal” conduct of
the person was an “actual” threat to “public order or domestic security”, with
the extra proviso that criminal convictions could not “in themselves automati-
cally warrant” refusal. These criteria were similar to those applying in EC free
movement law.19 In addition to deleting these protections, the Council inserted a
clause in the preamble relating to the concept of public policy (specifying that it
could cover a conviction for committing a serious crime), along with a provision
on the criteria for Member States to take into account when taking the relevant
decision. These criteria are clearly based on the Article 8 ECHR case law con-
cerning expulsion.20
The initial proposal did not include the optional requirements for Member
States to insist that an applicant for long-term resident status submit a valid
travel document or certified copy, or documentation regarding accommodation,
with his or her application for long-term resident status. Also, it would have set
an absolute limit of six months to reply to the migrant’s application for long-
term resident status and would have required Member States to allow additional
time if an element of the application was missing. It would have specified that
the long-term residence permit was valid for ten years, rather than five years, and
would have required Member States to issue the permit free of charge or for the
same sum as nationals’ identity cards.
As for loss of status, the Commission had proposed a period of two consec-
utive years’ absence from the host Member State (rather than two years’ absence
from Community territory) in order to lose status. However, the Commission’s
proposal had given Member States less flexibility to waive the limits. The origi-
nal proposal also had contained a more limited right to stay in the country on
another ground where long-term residence status is cancelled, overlooked the
issue of whether Member States should provide an expedited procedure for re-
acquisition of status in certain cases and contained a provision that resident
third-country nationals should have the right to apply again for long-term resi-
dent status following an initial refusal if their circumstances changed.
The Commission’s proposals for equal treatment were also more generous.
Its original proposal differed from the final text because it did not contain the
“national law” rule on equality in education or the restrictive preambular clause
19 See Directive 64/221 (OJ Spec. Ed., 1963-64, 117).

20 For a detailed analysis of those rules, see van Dijk, “Protection of ‘Integrated’
Aliens against Expulsion under the European Convention on Human Rights” in
Guild and Minderhoud, eds., Security of Residence and Expulsion: Protection of
Aliens in Europe (Kluwer, 2001) 23.
621
on this issue; it did not include a “national procedures” rule regarding recogni-
tion of diplomas, et al or a “national law” criterion regarding social security,
social assistance and social protection; it included references to “social benefits”
and “health-care” (although arguably these are still covered); it did not contain
a “public policy and public security” exception regarding freedom of associa-
tion; it lacked the “security” exception applying to free movement; and it did not
permit limitations of equal treatment on grounds of residence, limited priority
for economic acitivity, additional tests for access to education or training or
limiting of social rights to “core benefits”.
Equally the Commission took a far more liberal approach to protection
against expulsion. It proposed that Member States could only expel a person
based on his “personal conduct”, and further proposed a paragraph spelling
out that there was no “sufficiently serious threat” unless a Member State took
“severe enforcement measures” against its own nationals committing the same
offences. Again the Commission had suggested that criminal convictions could
not automatically lead to expulsion. All of these points were based on the pro-
tection available to EU citizens. The Commission had also proposed that chal-
lenges to expulsion decisions should have suspensory effect, and that emergency
expulsion proceedings should be prohibited.
As for movement to other Member States, the Commission had proposed
a simple right to move whenever the long-term resident wanted to take up activ-
ity, without any provision for labour market priority, quotas on third-country
nationals or special rules on seasonal workers or cross-frontier workers. In the
original proposal, only long-term residents moving for non-economic purposes
would have had to meet resources and sickness insurance criteria, and moreover
the resources test would have simply required that the long-term resident would
not be a burden on the second Member State. Again, there was no possibility of
imposing integration requirements, or any reference to documenting the accom-
modation situation of the long-term resident. As a requirement to obtain the
right to move, the Commission’s proposal did not refer to national law to test
whether the long-term resident had the funds to exercise a self-employed activ-
ity or had been hired by an employer. Nor did it allow Member States to limit
movement of family members to the spouse and minor children alone, or to
impose a higher resources threshold (measured against minimum wages, rather
than recourse to social assistance) upon them. As in other parts of the Directive,
the Commission had proposed that only the personal conduct of a long-term
resident or his or her family members could justify a rejection of a residence
application on grounds of public order or public security threats, along with a
criterion of “actual” threat and a proviso that criminal convictions could not
automatically justify refusal.
The Commission’s proposal on the examination of applications was also
more favourable. It had proposed a three-month time limit which could only be
extended if the applicant had not supplied all of the necessary evidence. Again,
622
the Commission proposed that the residence permits should be issued for free or
for the same amount required for nationals’ identity cards, and that applicants
have access to the courts for disputes over residence (as distinct from “mount-
ing a legal challenge”). The Commission had suggested full equal treatment for
long-term residents moving to another Member State as soon as their application
was accepted, without any prospect of limiting workers and the self-employed
to specified activities for up to a year and limiting any or all access to economic
activity for those who move initially for non-economic grounds.
During the transitional period before long-term resident gained long-term
resident status in the second Member State, the Commission had proposed that
removal should only be possible where the public policy exception applied or
where the conditions of residence were no longer met. There would have been
no possibility of expulsion outside the EU or for a permanent ban on residence
in the second Member State, and no mention of a possible move by the long-
term resident to a third Member State to avoid expulsion. The Commission had
also proposed detailed rules on maintenance of status in the first Member State
before obtaining status in the second Member State, as well as detailed rules per-
mitting economically active long-term residents to retain their status as workers
in the second Member State (presumably pending acquisition of full long-term
residence status in that Member State).21 The former set of rules were in part
rendered redundant by the Council’s decision to provide that long-term resi-
dents cannot lose status on grounds of absence except for a departure from EC
territory. However, the deletion of the proposed rules could cause problems for
family members of long-term residents who have not yet acquired the status
themselves, because the Commission had suggested that they continue to retain
residence permits in the first Member State and to accrue the right of indepen-
dent status in that State.22
2.3 Council negotiations

When faced with a proposal for a legally binding measure implementing the
Tampere conclusions on long-term residents, the Member States proved reticent
to agree. In the first two readings of the proposed Directive in the Council’s work-
ing party on migration (completed by March 2002),23 objections were raised to
the personal scope of the proposal, the time period for acquisition of long-term
21 Arts. 23 and 16(2) of the Commission’s initial proposal.

22 The family reunion Directive does not contain a provision on either issue.
23 On the first reading, see Council docs. 11702/01, 2 Aug. 2001 (outcome of proceed-
ings of working party, 6/7 and 17 Sep. 2001) and earlier 10698/01, 2 Aug. 2001
(outcome of proceedings of working party, 2/3 July 2001). On the second reading,
see Council docs. 12983/01, 26 Oct. 2001; 13420/01, 18 Dec. 2001; and 5580/02, 22
Mar. 2002 (outcome of proceedings of working party, 5 Oct. 2001; 30 Oct. and 13
Nov. 2001; and 17 Jan. and 11 Feb. 2002).
623
resident status, the rights to be acquired in the first Member State, and to the
details of the right to move to another Member State. Particular objections were
raised to many aspects of the principle of equality between long-term residents
and EU nationals, suggesting that some delegations overlooked the principle
established by Tampere. On the other hand, some delegations were objecting to
any weakening of the text, making it difficult to see how a compromise could be
reached. During the second reading, the Spanish Council Presidency suggested
a few amendments, concerning disregard of the period before the issue of an
initial residence permit, expansion of the grounds on which a long-term resident
could be removed from a second Member State, and allowing for expulsion of
the long-term resident by the second Member State to a country outside the
European Union during the transitional period in certain circumstances.
In the meantime, the EP suggested a number of amendments to the pro-
posal.24 These would have enhanced the equality provisions of the Directive in
several respects, as well as strengthened the references to international human
rights instruments. They would also have made explicit reference to EC legisla-
tion on expulsion of EU citizens and extended the Directive’s expulsion protec-
tion for long-term residents. However, they would have weakened the equality
principle by removing the protection against emergency expulsion, permitting
lifetime bans to be issued against long-term residents, allowing Member States
full discretion to determine a “sufficiently serious” threat to public policy and
permitting unspecified derogations from the obligation to apply the rules gov-
erning expulsion of EU citizens. Unfortunately even the EP does not always have
full regard to the Tampere principles. Also, they would have permitted Member
States to insist that third-country nationals had equal retirement provision to
nationals in the same situation before gaining the status of long-term resident
– an absurd suggestion where a person has spent part of his or her working life
outside the EU.
During the spring and summer of 2002, intense negotiations continued in
the Council’s bodies, moving to discussions on the basic disagreements between
Member States on the proposal. Discussions during the Spanish Presidency first
focussed on possible restrictions in the scope of the proposal (Articles 1-5), ini-
tially dropping both recognised refugees and doctoral students, but with some
Member States wishing to retain refugees within the scope of the Directive.25
Discussions then moved on to Chapters II and III of the proposal, on the basis
of proposed Presidency changes.26
24 Plenary vote on 5 Feb. 2002 (OJ 2002 C 284 E/94).

25 Council doc. 7193/02, 22 March 2002 (outcome of proceedings of working party, 11
Feb. 2002).
26 See proposals in SN 1743/02 and SN 2452/02 (meeting docs. migr 2/02 and migr
4/02, both 14 Mar. 2002) and consideration in Council docs. 7558/02, 27 May 2002
624
The incoming Danish Council Presidency then decided to consult SCIFA

late in July 2002 on the six core issues which remained outstanding: the inclu-
sion of refugees; the possible lengthening of the five-year wait for status; the
possible additional conditions for status; the extent of equality rights; the ability
to move to another Member State; and the possible limitations on employment
in another Member State.27 At the SCIFA discussions,28 a “large number” of
Member States supported the inclusion of refugees, but not all. A “vast majority”
supported the five-year deadline, but two still held out for their national limits of
ten and six years. Some wanted to see new conditions for acquisition of status:
appropriate accommodation, integration and compliance with tax obligations.
One Member State wanted full discretion to determine stable resources, and
some wanted to deny status to persons who threatened international relations or
who had committed particularly serious crimes. But a number of Member States
opposed new conditions. The Member States favouring an “integration” condi-
tion were invited to propose a draft text. As for equality of long-term residents,
several Member States were anxious to ignore the clear wording of the Tampere
principle of equal treatment for long-term residents and deny full application
of the principle. The Presidency invited the dissenters to submit a list of rights
which would be subject to the equality principle. Finally, discussions on mobility
focussed on the issue of whether there should be conditions on the access to the
labour market; the Presidency announced it would propose a compromise.
The Presidency’s proposed compromise was that a Member State could pre-
vent the right of residence of long-term residents by quotas on the total number
of persons to be granted residence rights or by limiting access to certain fields of
employment when justified by the labour market conditions of the host state.29
A separate German, Dutch and Austrian proposal concerned possible integra-
tion conditions for long-term residence. The Presidency then sent four of the six
core issues to Coreper and the October 2002 JHA Council,30 where all Member
States agreed that the directive should facilitate mobility of long-term residents;
a large majority wanted to include refugees and permit Member States to apply
an optional integration requirement for the grant of status; and all but one could
accept a five-year wait for long-term resident status.
(outcome of proceedings of working party, 22 Mar. 2002) and 9636/02, 18 July 2002
(outcome of proceedings of working party, 28 and 29 May 2002).
27 Council doc. 10462/02, 3 July 2002.
28 See Council doc. 11360/02, 30 July 2002 (outcome of proceedings of SCIFA, 22 and
23 July 2002).
29 Council doc. 11932/02, 20 Sept. 2002.
30 Council docs. 12383/02, 30 Sept. 2002 and 12624/02, 9 Oct. 2002.
625
The Danish and Greek Presidencies also continued discussion on the more
technical aspects of Chapters I and II of the proposed Directive.31 By January
2003, the draft permitted Member States to retain prior bilateral agreements
with non-Member States setting out more favourable conditions. The special
provision on the status of family members of migrant EC nationals and the non-
discrimination provision (Articles 3(3) and 4) were deleted, although the latter
Article was placed in the preamble. The exception for military and other reasons
from the obligation to spend five years in the host Member State continuously
before obtaining status was broadened by adding a reference to civilian service
obligations, but the detailed calculation of the time spent abroad would in most
cases be left to national law. Next, the draft proposed to give Member States the
option to require third-country nationals to “comply with integration measures,
in accordance with national law”. The public policy, et al conditions for gaining
status were to be rendered less similar to the rules for EC nationals by deleting
the proviso that criminal convictions alone could not justify refusal of status.
However, the Directive would refer to a “public security” exception rather than a
“domestic security” exception. National administrations would also be allowed
more time to consider the application for status, as there could be an indefinite
time period for an administration to respond to a request for long-term resident
status in the first Member State, and the fee for a permit (in the first or second
Member State) would not expressly have to be equal to charges for national
identity permits, another move away from equality with EC nationals. Member
States would no longer have to issue residence permits to former long-term resi-
dents in cases when an expulsion had been ordered but could not be carried out,
and residence permits would only have to be valid for at least five years, not at
least ten years.
Next, the right to equality was weakened in response to objections from
some Member States. The Danish Presidency had suggested that the “equal
treatment” clause be restructured to require equal treatment for some matters,
but that a more qualified equality right apply to other matters, including access
to employment (with related rights, including equality in working conditions)
and access to social benefits. Also, if the first Member State granted equal treat-
ment for matters not mentioned in the Directive, any other Member States the
long-term resident moves to would not have to recognise it. Finally, the protec-
tion against expulsion was weakened, with the deletions of the provisos that
expulsion from the first Member State should not happen for criminal convic-
tions alone, of the requirement to permit possible suspensive effect of a chal-
lenge and of the ban on emergency expulsions of long-term residents. However,
the Directive would again refer to a “public security” exception in place of a
“domestic security” exception. A new Chapter IIa would bring together all of
31 Council docs. 13700/02, 9 Dec. 2002; 15483/02, 20 Dec. 2002; and 5533/03, 3 Feb.
2003.
626
the provisions on refugees in the original Directive, which were unchanged from
the Commission’s original proposal except for the proviso that the five-year resi-
dence period would only be calculated from the time of recognition of refugee
status.
As for the position in the second Member State (Chapter III), activity as a
cross-border worker would be excluded, leaving Member States free to regulate
this issue. Conditions and requirements would be increased: an accommoda-
tion requirement was added; travel documents would have to be provided; the
relevant resources requirements would be defined by national law; and a long-
term resident would have to apply for long-term residence status in the second
Member State within five years, or s/he could lose that status in the first Member
State. At this point it was suggested that long-term residents would not initially
have the right to study or maintenance grants in the second Member State. More-
over, expulsion would be allowed on public health grounds and on grounds of
unlawful residence, expulsion to the country of origin would be permitted and a
permanent ban on return could be imposed in a number of cases.32
Following further intensive detailed discussions, the May 2003 JHA Coun-
cil reached agreement on the status of long-term residents in their first Member
State, although Italy still held out for a six-year period for acquisition of long-
term residence status.33 In particular, the JHA Council deleted refugees from the
scope of the Directive, on condition that the Commission proposed a new Direc-
tive within a year applying the long-term Directive to both recognised refugees
and persons with subsidiary protection. Of course, there is no guarantee that the
Commission proposal will be agreed; and as noted at the outset of this Chapter,
by 1 Jan. 2006, the proposal had not even been submitted yet. The other changes
made between January and May 2003 were: the exclusion of persons whose resi-
dence permit has been “formally limited” from the scope of the Directive; the
substantial amendment of the rules for calculating residence; more flexibility
for Member States in applying the “sufficient resources” requirement; deletion
of the exemption of third-country nationals born in the relevant Member State
from meeting the resources and employment conditions; deletion of the require-
ment to issue long-term residence permits for free or at cost; amendment of the
rules on withdrawal or loss of status so that loss follows one year’s absence from
EC territory, rather than two years’ absence from the relevant Member State,
inclusion of a six-year maximum absence from the Member State granting the
status is permitted, along with rules on re-acquisition of status; deletion of the
clause allowing for later applications for long-term resident status if the first
32 See also French proposal on the application of Council Directive 2001/40 on the
mutual recognition of expulsion orders (meeting doc. migr 3/02, 22 Mar. 2002).
33 For the agreed text, see Council docs. 9025/03, 6 May 2003 and 9389/03, 16 May
2003.
627
application is rejected; and revision of the equality rules (although there were
still some reservations here).
The May 2003 JHA Council also held a discussion on the key issues related
to movement to the second Member State. By May, the Council working group
had agreed to refer to long-term residents’ “right to reside” in the Directive and
had dropped the idea of an express accommodation requirement, but conversely
had agreed that the right could be limited on grounds of labour market priority
or the setting of a total quota for third-country nationals. The provision on reten-
tion of worker status in the event of difficulties during the transitional period
had also been deleted. It had also been agreed to amend the other conditions
and procedures for moving to the second Member State and obtaining long-term
resident status there to align them with the rules on first obtaining long-term resi-
dence status. The proposed detailed rules on the status of long-term residents and
their family members during the first five years in the second Member State had
been deleted, although there would no longer be an express obligation to apply
for status after five years. It would now be possible to remove a person who was
not “lawfully residing” before obtaining long-term residence status in the second
Member State But there were still wide differences of view on the extent of equal
treatment that long-term residents should enjoy in the second Member State
before they obtained long-term status there. The final text on withdrawal of the
residence permit and the obligation to readmit had been agreed by this point.
This left a hard core of difficult issues to negotiate by the June 2003 JHA
Council, which agreed a final compromise on four issues: the period for acquisi-
tion of status (Italy finally relinquished its objection); additional restrictions on
equal treatment as regards study grants and social benefits; the issue of family
members (with Austria accepting it could not impose a quota on family mem-
bers of long-term residents in return for other Member States accepting that an
overall quota on third-country nationals in a member State could be imposed);
and treatment in the second Member State (where it was accepted that access to
social assistance and study grants would be permitted during the study period in
return for a prospect of revoking residence if social assistance were applied for,
and where the one-year delay in full access to the labour market splits the differ-
ence between those who wanted no delay and those who wanted two years).
3 Legal Analysis
A standard criticism of some Member States regarding the Commission’s immi-
gration and asylum proposals is the alleged restriction on the EC’s competence
over access to employment for third-country nationals. As argued elsewhere, the
EC has competence to regulate this issue under Article 137 EC, or failing that
Article 63 EC; Article 39 EC could govern those who move within the EC to
take up employment in a second Member State.34
628
It is also useful to compare this Directive to the obligations stemming from

other instruments. A number of Council of Europe Conventions grant protec-
tion for nationals of the other Contracting Parties to the Convention after a
period of residence,35 and the Council of Europe’s Committee of Ministers later
adopted a Recommendation on the status of long-term residents in 2000.36 The
Recommendation applies regardless of nationality, and suggests recognition of
long-term status after five years’ lawful and habitual residence. Long-term resi-
dents should enjoy equal treatment with nationals, in accordance with national
law, as regards access to employment, working conditions, the right of associa-
tion, social security and assistance, housing, education, healthcare, free move-
ment and participation in public life at local level. The Recommendation also
suggests a detailed scale of restrictions on expulsion, with no expulsions pos-
sible for minors, persons born on the territory or entering before the age of ten
or following residence for twenty years except on national security grounds or
on grounds of public safety. Procedural rights for expulsion cases were also rec-
ommended. This Recommendation is broadly comparable to the agreed Direc-
tive, except that the latter is less precise as regards expulsion, provides for more
exclusions from its scope, is less qualified as regards equality rights (although
certain equality rights are not within its scope) and regulates movement between
States.
4 Comments37
Of course, any legislation which creates a right for third-country nationals to
move between Member States is an accomplishment because any such move-
ment was otherwise wholly at the discretion of the Member States (leaving aside
the EEA, Switzerland, the position of third-country national family members
of EU nationals and third-country national employees of EU companies, whom
their employers have the right to post to other Member States as part of their
right to provide services).38 Given that the equal treatment principle as set out
35 On these measures, see Groenendijk, “Long-Term Immigrants and the Council of

Europe”, in Guild and Minderhoud, eds. (n. 20 above), 7.
36 Rec. (2000) 15, 13 Sep. 2000.
37 For more detailed comments on the Directive, including elaboration of all the
points made here (except the issue of the movement of family members to another
Member State, which is fully examined in s. 4.4 this Chapter), see Peers, “Imple-
menting Equality? The Directive on Long-Term Resident Third-Country Nation-
als” (2004) 29 ELRev. 437.
38 On the final category, see Cases C-43/93 Van der Elst [1994] ECR I-3803 and C-
445/03 Commission v Luxembourg [2004] ECR I-10191. See also Cases C-168/04
Commission v Austria and C-244/04 Commission v Germany, both pending (an
Opinion in the latter case was issued 15 Sep. 2005; the judgment is due 19 Jan.
2006).
629
in the Tampere conclusions is expressly part of the preamble to this Directive,

along with the objectives of ensuring integration of third-country nationals and
facilitating their mobility to other Member States, it is arguable that any ambi-
guity in this Directive should be resolved in favour of the long-term resident
and family members. As a corollary, any exceptions to their rights should be
interpreted narrowly.
Moreover, the core provisions of the Directive, concerning acquisition of
long-term residence status and connected rights to equal treatment, along with
subsequent residence, equal treatment, entry of family members and acquistion
of long-term residence status in a second Member State, clearly meet the criteria
for direct effect. Having said that, the limitations in scope of this Directive and
the conditions placed upon acquisition of long-term residence status and the
right to move to another Member State clearly reduce its value as a contribution
to ensuring equality between long-term resident third-country nationals and EU
citizens, as called for in the Tampere conclusions.
4.1 Scope of the Directive

The largest and most disappointing omission from the scope of the Directive is
the deletion of refugees and the exclusion of persons with subsidiary protection,
even though a large majority of Member States favoured the inclusion of the
former. Combined with the questionable substantive rules on cessation of refu-
gee status, the limited provisions regarding refugees’ residence permits and the
ambiguous position regarding cessation procedures in other EC legislation,39 the
EC’s commitment to ensuring a secure residence status for refugees appears dis-
turbingly weak. However, it is arguable that if a third-country national’s refugee
status ceases after more than five years’ legal residence he or she will be covered
by this Directive anyway. Moreover, a refugee resident for a long period in a
Member State will have some protection against expulsion conferred by Article
8 ECHR ceases. It is also arguable that the family members of refugees will be
able to obtain long-term residence status under the Directive, if those family
members do not hold refugee status (or another form of protection status) in
their own right.
Despite the limitations of the Directive’s scope, it clearly applies to all legally
residing third-country nationals who are not expressly excluded by Article 3.
The Directive will therefore cover persons whose status has been regularised,
with the right to long-term residence status accruing from the date of regulari-
sation; the objections to this raised by some Member States during discussions
in the Council had been lifted by early 2003. If there was some time during the
five-year period when the applicant lacked full documentation, it is arguable that
if the underlying residence was legal for that entire period, then the right to long-
term residence status has accrued despite the lack of documentation proving
630
that status during certain periods. Since the Directive does not refer to national
law for the meaning of “lawful” residence, and there are frequent express refer-
ences to “national law” or “national procedures” for definition of other parts
of the Directive, it should follow by a contrario reasoning that the concept of
“lawful residence” has a standard Community meaning. In addition, a standard
Community meaning will ensure greater uniformity in the application of the
Directive; this can also be justified on the grounds that admission of persons
under the Directive will impact on all Member States
It also follows that the Directive applies to family members of third-coun-
try nationals who meet the criteria to obtain long-term residence status, along
with third-country national family members of EU citizens, whether those per-
sons have moved within the EU with their sponsors (and are therefore covered
by EC free movement law) or not.
As for the exception for persons who have only a limited residence permit,
it should follow from the reasoning set out above that the definition of limited
residence permits is again an issue of Community law, not national law. The best
interpretation of this exception is that it can only apply to persons whose resi-
dence permit cannot in principle be extended under the relevant applicable rules
for more than a certain period.
Finally, in the absence of wording to the contrary the Directive should
apply to persons who were already resident in the Member States at the time
of its adoption (as well as those who enter later) and any persons who already
meet the criteria for long-term residence as of January 2006 (or who satisfy the
criteria during the following five years) should be able to claim status from Janu-
ary 2006 or during the following five years, rather than wait until five years have
passed from the deadline date for application of the Directive.
4.2 Status in the First Member State

As for the conditions for obtaining status, it is greatly regrettable that the Com-
mission’s proposal was weakened to permit a higher threshold as regards the
resources requirement, to reduce the comparability between the position of EU
citizens and third-country nationals and to introduce a possible “integration
requirement”. However, it could still be argued that in the absence of express
wording to the contrary, applicants for long-term residence status have the right
to submit a later application if the first one is rejected.
The grounds for loss of long-term residence status in the first Member
State in Article 9 (fraud, absence, transfer or expulsion) must surely, in light of
the text, context and purpose of the Directive, be considered to be exhaustive.
Therefore it is not possible to terminate status or expel a long-term resident on
any other grounds.
As for procedural guarantees, it is again regrettable that the Council did not
follow the standards in EC free movement law, but it is arguable that given the
right to an effective remedy before a court, enshrined in the general principles of
631
EC law, the right to “mount a legal challenge” must include the right to argue
the merits of any issue falling within the scope of the Directive (not just the
renewal of residence permits) before a court or tribunal.
Although the Council was particularly contemptuous of the Tampere prin-
ciples when agreeing rules on equal treatment for long-term residents, it is impor-
tant to examine the text closely to see exactly when equality can (and cannot) be
restricted. First, there is no possibility to restrict equality to “core benefits” as
regards “social security”. Second, the various references to “national law” and
“national procedures” should not be interpreted to permit restriction of equal
treatment, except where the Directive expressly permits a restriction of equal-
ity).
Next, as noted above, the Tampere principles have been further disregarded
as regards protection against expulsion. However, it is still arguable that a “per-
sonal conduct” test applies here, along with a requirement that criminal con-
victions will not automatically lead to expulsion and the procedural protection
granted by EC free movement law, in the absence of wording to the contrary. The
Directive should also limit Member States from placing a long-term resident’s
name in the Schengen Information System (SIS) or using SIS data to cases where
the public policy, etc. criteria for expulsion or refusing status in this Directive
are met. Similarly, while Directive 2001/40, on mutual recognition of expulsion
measures,40 could apply to long-term residents, where relevant Member States
have to consider the restrictions on expulsion in the long-term residents’ Direc-
tive when enforcing an expulsion pursuant to the earlier measure.
4.3 Movement to the Second Member State

First of all, since there are many express possibilities for Member States to
limit movement of long-term residents, it should follow that unless one of these
express exceptions applies, long-term residents enjoy equal treatment as regards
the initial take-up of employment, self-employment or non-economic activities
in the second Member State. Next, the Directive appears to assume that long-
term residents and their family members have a “right of residence” in a second
Member State even pending the issue of a residence permit. The use of the SIS
in the second Member State should be limited by the principles set out above.
As for the rights in the second Member State pending acquisition of long-term
residence status there, the exceptions to equal treatment should be interpreted
narrowly. For example, switching between categories can only be prohibited to
the extent that the Directive expressly permits it. Similarly, the grounds for ter-
mination of residence during this period should be considered an exhaustive list
with each ground to be interpreted narrowly.
As regards family members of long-term residents, it appears that the Direc-
tive can be used where a long-term resident wishes to move between Member
40 OJ 2001 L 149/34. See Ch. 25.
632
States to join a sponsor in another Member State. This means that such persons
will only have to satisfy the criteria for obtaining long-term residents’ status, and
may therefore avoid the limitations and conditions set out in the family reunion
Directive or EC free movement law. It will also be possible for a family member
who was originally sponsored into a Member State to obtain the status of long-
term resident, then move to another Member State and act as a sponsor for
the person who originally sponsored his or her entry. The long-term residents’
Directive also replaces the family reunion Directive for most rules relating to
movement to the second Member State, thus removing a number of onerous con-
ditions in the latter Directive restricting entry of families. Since family members
in the second Member State gain the same rights in the second Member State
as the sponsor regarding employment, self-employment, education and voca-
tional training, once a residence permit has been issued,41 their status regarding
these issues also flows from the long-term residents’ Directive. Next, it appears
that the family member can gain independent or long-term resident status in the
second Member State, in accordance with the relevant rules.
4.4 Family Members in the Second Member State

Clearly the long-term residents’ Directive provides for admission of family mem-
bers into a second Member State where the long-term resident is a sponsor. But
can the Directive be used where the long-term resident is a family member wish-
ing to join a sponsor in another Member State? For example, imagine that an
American national with long-term resident status in France wishes to move to
Austria to marry a Russian national resident there. Would the American be sub-
ject to the potential restrictions in the family reunion Directive (assuming that
the Russian qualified as a sponsor under that Directive), or would the Ameri-
can be able to move as a long-term resident exercising the right of residence in
another Member State pursuant to this Directive? The latter approach would
avoid any possible waiting period and any bars to the Russian qualifying as a
sponsor under the family reunion Directive, and would ensure broader equality
rights for the American in Austria. The only comparative disadvantage would
be that a general quota on third-country nationals might apply under the long-
term residents’ Directive. The American would also be able to retain long-term
resident status in France for a time; this could be useful in the event of family
breakdown.
Furthermore, the comparative value of the long-term residents’ Directive
would be even more obvious if it could be applied to “non-core” family reunion
as defined by the family reunion Directive. In the same scenario, what if the
American sought to become the unmarried companion (whether same-sex or
opposite-sex) of the Russian? Or what if the parents or adult children of the
Russian, holding long-term residence status in Germany, wished to move to Aus-
41 Art. 21(3), referring to Art. 14 of the family reunion Directive.
633
tria? For that matter, what if a sibling of the Russian with long-term residence
status sought to join him or her in Austria, even though siblings are not covered
at all by the family reunion Directive? In all these scenarios, the status of the
Russian in Austria is irrelevant, since the family members would be moving there
to exercise their own right of residence as long-term residents.42 If the Russian
were a long-term resident there, it could be argued that Article 16(5) of the long-
term residents’ Directive precludes subsequent entry of family members except
under the conditions set out in the family reunion Directive; but in the absence
of express wording to the contrary, this should be seen as a lex specialis dealing
with entry of family members who do not already have their own long-term resi-
dent status. Of course, in each case, a family member using his or her status as a
long-term resident would have to meet the criteria for long-term residence and
subsequent residence in a second Member State under the Directive, but there is
nothing to preclude support from a relative being considered to satisfy the suf-
ficient resources requirement for movement to the second Member State.
Does this Directive permit such movement? Or should such activity be
ruled out, as a form of evasion of the rules in the family reunion Directive (or
other family reunion rules)? Surely the Directive does permit such movement as
long as the long-term residents have gained that status and exercise the right to
residence based on the criteria in the Directive. The position is really no different
from EC free movement law, where a French national in Austria could be joined
by his or her adult independent child, his unmarried companions of both sexes
and his siblings, as long as they are all EU citizens who independently meet the
criteria for exercising free movement rights, even though EC free movement law
denies the French national the right to bring such people into Austria as family
members. EC free movement law does not allow Member States to examine the
subjective reasons for moving, but gives a right to move whenever objective cri-
teria are met,43 and there is nothing in the text of the long-term residence Direc-
tive to suggest that it should be interpreted any differently.
Building on this analysis, there is nothing to preclude the simultaneous
application of EC free movement law and the long-term residence Directive,
where a family contains both EU citizens and long-term residents. This could
apply where the long-term residents do not meet the family criteria in EC free
movement law: for example, a French national moving to Austria with his or her
American unmarried companion. At first sight, it could also be useful where the
EU citizen is wholly dependent upon the long-term resident, for example where
a French national moves with his or her American spouse to Austria, and the
42 However, if the family member already in Austria were an EU citizen exercising free
movement rights, it is hard to see any advantage to use of the long-term residents’
Directive as compared to the free movement rules, except for family members falling
outside the scope of the latter rules (siblings and unmarried companions).
43 For example, see Case 53/81 Levin [1982] ECR 1035.
634
former is not earning any income at all. But it would be better to treat these as
cases falling within the scope of Directive 90/364, which permits EU citizens to
move if they can support themselves without assistance from the host Member
State, for that Directive applies to all Member States and allows family mem-
bers to take up any employment in the host Member State without the possible
restrictions permitted by the long-term residents Directive.44
A parallel question is whether a long-term resident can move from one
Member State to another with “non-core” family members who are long-term
residents in their own right. For example, can an American long-term resident
move with his American unmarried partner from France to Austria, if both
are long-term residents? At first sight, the Directive appears to preclude this,
because it only gives a right of entry in Article 16 to the movement of family
members who “fulfill the conditions of ” Article 4(1) of the family reunion Direc-
tive; Member States have discretion to admit family members “other than those
referred to” in Article 4(1). But in the absence of express wording to the con-
trary, Article 16 should be seen as a lex specialis dealing with the admission of
family members who do not meet the conditions for long-term residence status
and subsequent exercise of the right of residence in their own right.
We now move to the situation of family members who fall within the express
rule for admission of family members set out in Article 16. Here, the most useful
approach to analysing their position is to compare it to that under the family
reunion Directive, given the express connections drawn within the Directive.45
The first issue in family reunion law is that of the definition of sponsors. This is
easily dealt with, as long-term residents moving to a second Member State are
automatically presumed to be sponsors for the purpose of family reunion.46
The second issue is the definition of family members. What does the long-
term residence Directive mean when it refers to admission of family members
who “fulfil the conditions” in Article 4(1) of the family reunion Directive? The
temporal scope of this clause is important; it does not refer to those admitted
pursuant to Article 4(1) of the other Directive, but only those who fulfil the
conditions. So family members admitted before the application of the family
reunion Directive, or born in the first Member State, or who were already resi-
dent there on other grounds, are covered. Similarly, it is possible that a person
who originally sponsored a family member to join him or her in the first Member
44 The long-term residents’ Directive could still be significant in this scenario if the
family later breaks up. On the interpretation of Directive 90/364, see Case C-200/02
Chen [2004] ECR I-9925.
45 Unfortunately, the final Directive does not contain the Commission’s proposed pre-
ambular clause providing that “[t]he right of residence should be exercised on terms
similar to those enjoyed by citizens of the Union when they exercise their right to
free movement”.
46 See the discussion of Art. 3(1) of the family reunion Directive in Ch. 19.
635
State, or who married a third-country national resident there, can switch to the
status of family member for the purpose of the move to the second Member
State, with the family member who gained, or who already had, the status of
long-term resident now acting as sponsor. So, for example, if a Turkish man
resident in Austria sponsors the entry of an American woman as his wife, and
she later gains long-term residence status and meets the criteria to exercise the
right of residence in France, he can now accompany or join her as her family
member.47 By virtue of the reference to Article 4(1) of the family reunion Direc-
tive, it follows that none of the other criteria in Article 4 of that Directive apply.
So all that need be shown is that the spouse or child meets the criteria set out in
Article 4(1). The possible derogation to stop independent entrance of children
over 12 is irrelevant at this point since Article 16(1) of the long-term residence
Directive only applies to family members who have been “constituted in” the
first Member State. Article 16(5) applies to those family members who have not
been “constituted in” the first Member State, and so the host Member State
will be able to refuse the subsequent entry of such children if the derogation in
Article 4(1) of the family reunion Directive applies.48 But the other conditions
in Article 4(4), (5) and (6) of that Directive (regarding children of polygamous
marriages, a minimum age for marriage, and special rules for applications of
children over 15) cannot apply to those family members who have already been
constituted in the first Member State.
Next, the third issue is the conditions for entry. Since the only cross-refer-
ences to the family reunion Directive are in Articles 16 and 21(3) of this Direc-
tive, and this Directive expressly refers to family members in Articles 17-19, 21
and 22 (and implicitly in Article 20), the long-term Directive applies in place of
the family reunion Directive for all the isues dealt with in these Articles. So in the
absence of wording to the contrary, the long-term residence Directive implic-
itly prohibits any waiting period for admission of family members as set out in
Article 8 of the family reunion Directive. The application process is addressed
by Articles 16(3), 16(4), 19 and 20 of this Directive, so implicitly Article 5 of the
family reunion Directive does not apply and there is a fixed time period to reply
47 It is irrelevant in this scenario whether the Turkish husband has long-term residence
status, or whether the admission of the American wife was pursuant to the family
reunion Directive.
48 This analysis is based on a presumption that where the family has been partly con-
stituted in the first Member State, Article 16(1) or (2) applies to the move of those
already in that State to the second Member State, and Article 16(5) applies to the
later admission of family members. Since the Directive does not specifically address
the situation of partly constituted families, it could be argued it prohibits later
admission of family members not yet constituted in the first Member State, but such
an intepretation would clearly breach the objectives of both the relevant Directives
and violate the ECHR (see Sen v Netherlands, discussed in Ch. 19).
636
to applications. As for the substantive criteria for entry, Articles 16(4), 17 and 18
of this Directive apply,49 rather than Articles 6 and 7 of the family reunion Direc-
tive; this means that no accommodation requirement or integration requirement
applies.50 As for entry of the family member, it is implicit in Article 15(1) of this
Directive (referred to in Article 16(3)) that the family member is already present
when the application for a permit is submitted, so the second Member State has
to admit the family member as soon as the right of residence is exercised by the
long-term resident, as confirmed by the wording of Article 16(1).51 The second
Member State must issue the family member with a renewable residence permit
of the same duration as the sponsor.52 However, it should be emphasised that
the overall limit on the number of third-country nationals permitted by Arti-
cle 14(4) of this Directive cannot apply to family members, since Article 14(4)
expressly only applies to Article 14(1), which concerns the right of residence for
long-term residents.
As for the status of family members, it is clear that they gain the same rights
in the second Member State as the sponsor regarding employment, self-employ-
ment, education and vocational training once a residence permit has been issued,
by reference to the family reunion Directive.53 In fact, since the sponsor’s position
is also set out in the long-term residents’ Directive, family members’ status can
also be determined on the basis of the Directive. Next, can the family member
gain independent status in the second Member State? It is unfortunate that the
Council dropped the Commission’s proposal on this issue. In its absence, there
is no reference in this Directive to Article 15 of the family reunion Directive, but
since there is no replacement rule in this Directive dealing with this subject, it
should follow that family members will begin accruing independent status in the
second Member State (pursuant to the family reunion Directive) from scratch.
Their ability to retain independent status or to continue acquiring it in the first
Member State will depend on how that first Member State deals with absence in
its national rules on acquiring and retaining such status. There will be parallel
issues concerning the retention of status under Decision 1/80 of the EC-Turkey
Association Council. However, there is nothing to prevent the family member
from obtaining long-term resident status in the second Member State if the cri-
teria are met.
Next, Article 22 of this Directive is ambiguous as to whether it covers loss
of status by and expulsion of family members independently or only in the case
where the sponsor loses status. If the former interpretation is correct, this Direc-
49 On the implications for checks in the SIS, see s. 4.2 above.

50 There is nothing to indicate that Art. 15(3) or (4) apply to family members.
51 Compare with Art. 13(1) of the family reunion Directive.
52 Art. 19(3); compare with Art. 13(2) and (3) of the family reunion Directive.
53 Art. 21(3), referring to Art. 14 of the family reunion Directive.
637
tive would replace Articles 16 and Article 17 of that Directive in all cases. If
the latter interpretation is correct, then this Directive would only replace those
Articles in some cases. As as observed above, Articles 17 and 22 of this Directive
do not adequately address the possible development of family and private life
in the second Member State or the retention of such links in the first Member
State. In any event, it is arguable that if family members have long-term resident
status in their own right, Member States must appraise their status and expul-
sion wholly independently. It should be recalled that despite the reference to
“readmission” to the first Member State, the family members might have been
born in the second Member State or admitted there having lived in a third coun-
try, or have lived in the first Member State but left it many years before the spon-
sor. According to the case law on Article 8 ECHR, this will certainly strengthen
their position (and indirectly that of the expellee). The family members might
even be EU citizens, with rights under free movement law if they have exercised
free movement rights or absolute rights to remain if they are citizens of the
second Member State. In either case, their status should strengthen the position
of the sponsor.
Finally, the right to a legal challenge for family members is covered in Arti-
cle 20(2) of this Directive, rather than Article 18 of the family reunion Direc-
tive.
4.5 UK and Irish Position

It is striking that despite rhetoric on the importance of securing fair treatment
for long-term legal foreign residents, the UK opted out of this Directive. Certain
changes in UK policy on long-term residents announced early in 2005 mirror
the EC Directive, in particular the requirement of a test on knowledge of Eng-
lish and the UK before the grant of permanent settlement status (in light with
the optional “integration” requirement in the Directive) and the move to a five-
year waiting period (rather than four years) before permanent settlement can
be granted. The UK government states explicitly that the latter change “brings
our practice more into line with the European norm”.54 On the other hand, the
change in UK policy to permit only skilled or highly skilled workers to apply for
permanent settlement is out of line with the Directive, which does not permit
Member States to distinguish between applicants for long-term residence status
based on skill levels. In fact, it is quite likely that many lower-skilled migrants will
meet the “sufficient resources” requirement in Article 5(1)(a) of the Directive, as
long as they have been in stable and regular employment without accessing state
benefits. Also, it is not clear whether the future UK policy will give any particu-
lar preference to long-term resident third-country nationals resident in other
Member States; although entry for skilled workers will only be authorised when
54 See “Controlling our Borders: Making Migration Work for Britain. A Five Year
Strategy for Asylum and Migration” (Home Office, Feb. 2005), pp. 21-22.
638
“an employer cannot find the skills they need within the UK or the EU”,55 it is
not known yet whether this test will require preference for EU citizens only, or
non-EU residents of other Member States. In any event, even if the UK decides
to give preferential treatment to long-term residents of other Member States, the
other Member States will be under no obligation to reciprocate, and will likely
be unenthusiastic about doing so.
5 Conclusion
Since it will be awkward for Member States to run parallel national and Com-
munity systems regarding long-term residence status, there is a good chance that
many or all Member States will align themselves on the EC model. This is desir-
able if the EC system represents an improvement on the national system, but if
it does not, then the Directive will have resulted in a reduction of standards.
The detailed analysis above shows that the Directive has the potential to
enhance the position of long-term residents considerably if intepreted in light of
the objectives of ensuring mobility, equality and integration, despite the reduc-
tion in the level of protection proposed by the Commission. The core right to
move between Member States if the conditions are met remains, and this is cer-
tainly a novel right of both practical and symbolic imporatnce to third-country
nationals. However, Member States have many opportunities to set stringent
limits on the right, so it is possible that few if any third-country nationals will be
able to move in practice. The practical usefulness of this Directive will therefore
depend on Member States’ approach to exercising its numerous options.
55 See ibid., p. 37.
639

concerning the status of third-country nationals who are long-term residents
[OJ 2004 L 16/44]
ticular Article 63(3) and (4) thereof,

Having regard to the Opinion of the European Parliament,
Having regard to the Opinion of the Economic and Social Committee,
Whereas:

rity and justice, the Treaty establishing the European Community provides
both for the adoption of measures aimed at ensuring the free movement of
persons, in conjunction with flanking measures relating to external border
controls, asylum and immigration, and for the adoption of measures relat-
ing to asylum, immigration and safeguarding the rights of third-country
nationals.

October 1999, stated that the legal status of third-country nationals should
be approximated to that of Member States’ nationals and that a person
who has resided legally in a Member State for a period of time to be deter-
mined and who holds a long-term residence permit should be granted in
that Member State a set of uniform rights which are as near as possible to
those enjoyed by citizens of the European Union.
recognised in particular by the European Convention on Human Rights
and Fundamental Freedoms and the Charter of Fundamental Rights of
the European Union.
(4) The integration of third-country nationals who are long-term residents in

the Member States is a key element in promoting economic and social cohe-
sion, a fundamental objective of the Community stated in the Treaty.
640

sexual orientation.
(6) The chief criterion for acquiring the status of long-term resident should
be the duration of residence in the territory of a Member State. Residence
should be both legal and continuous in order to show that the person has
put down roots in the country. Provision should be made for a degree of
flexibility so that account can be taken of circumstances in which a person
might have to leave the territory on a temporary basis.
(7) To acquire long-term resident status, third-country nationals should prove

that they have adequate resources and sickness insurance cover, to avoid
becoming a burden for the Member State. Member States, when making an
assessment of the possession of stable and regular resources may take into
account factors such as contributions to the pension system and fulfilment
of tax obligations.
(8) Moreover, third-country nationals who wish to acquire and maintain long-
term residence status should not constitute a threat to public order and
domestic security. The notion of public policy may cover a conviction for
committing a serious crime.
(9) Economic considerations should not be a ground for refusing to grant long-
term resident status and shall not be considered as interfering with the rel-
evant conditions.
(10) A set of rules governing the procedures for the examination of application
for long-term resident status should be laid down. Those procedures should
be effective and manageable, taking account of the normal workload of the
Member States’ administrations, as well as transparent and fair in order to
offer appropriate legal certainty to those concerned. They should not con-
stitute a means of hindering the exercise of the right to residence.
(11) The acquisition of long-term resident status should be certified by resi-

dence permits enabling those concerned to prove their legal status easily
and immediately. Such residence permits should also satisfy high-level
technical standards, notably as regards protection against falsification and
counterfeiting, in order to avoid abuses in the Member State in which the
status is acquired and in Member States in which the right of residence is
exercised.
641
(12) In order to constitute a genuine instrument for the integration of long-

term residents into the society in which they live, long-term resident status
should ensure equality of treatment with citizens of the Member State in a
wide range of economic and social matters, under the relevant conditions
defined by this Directive.
(13) With regard to social assistance, the possibility of limiting the benefits for
long-term residents to core benefits is to be understood in the sense that
this notion covers at least minimum income support, assistance in case of
illness, pregnancy, parental assistance and long-term care. The modalities
for granting such benefits will be determined by national law.
(14) The Member States should remain subject to the obligation to afford access
for minors to the educational system under conditions similar to those laid
down for their nationals.
(15) The notion of study grants in the field of vocational training does not cover
measures which are financed under social assistance schemes. Moreover,
access to study grants may be dependent on the fact that the person who
applies for such grants fulfils on his/her own the conditions for acquiring
long-term resident status. As regards the issuing of study grants, Member
States may take into account the fact that Union citizens may benefit from
this same advantage in the country of origin.
(16) Long-term residents should enjoy reinforced protection against expulsion.

This protection is based on the criteria determined by the decisions of the
European Court of Human Rights. In order to ensure protection against
expulsion, Member States should provide for effective legal redress.
(17) Harmonisation of the terms for acquisition of long-term resident status

promotes mutual confidence between Member States. Certain Member
States issue permits with permanent or unlimited validity on conditions
that are more favourable than those provided for by this Directive. The pos-
sibility of applying more favourable national provisions is not excluded by
the Treaty. However, for the purposes of this Directive, it should be pro-
vided that permits issued on more favourable and unharmonised terms do
not confer the right to reside in other Member States.
(18) Establishing the conditions subject to which the right to reside in another
Member State may be acquired by third-country nationals who are long-
term residents should contribute to the effective attainment of an internal
market as an area in which the free movement of persons is ensured. It
642
could also constitute a major factor of mobility, notably on the Union’s

employment market.
(19) Provision should be made that the right of residence in another Member
State may be exercised in order to work in an employed or self-employed
capacity, to study or even to settle without exercising any form of economic
activity.
(20) Family members should be able to settle in that other Member State with
long-term residents in order to preserve family unity and to avoid hinder-
ing the exercise of the long-term resident’s right of residence. With regard
to the family members who may be authorised to accompany or to join the
long-term residents Member States should pay special attention to the situ-
ation of disabled adult children and of the first degree relatives in the direct
ascending line who are dependent on them.
(21) The Member State in which a long-term resident intends to exercise his right
of residence should be able to check that the person concerned meets the
conditions for residing in its territory. It should also be able to check that
the person concerned does not constitute a threat to public order, public
security or public health.
(22) To avoid rendering the right of residence nugatory, long-term residents

should enjoy in the second Member State the same treatment, under the
conditions defined by this Directive, they enjoy in the Member State in which
they acquired the status. The granting of benefits under social assistance is
without prejudice to the possibility for the Member States to withdraw the
residence permit if the person concerned no longer fulfils the requirements
set by this Directive.
(23) Third-country nationals should be granted the possibility to acquire long-

term resident status in the Member State where they have moved and have
decided to settle under comparable conditions to those required for its
acquisition in the first Member State.
(24) Since the objectives of the proposed action, namely the the determination
of terms for granting and withdrawing long-term resident status and the
rights pertaining thereto and terms for the exercise of rights of residence by
long-term residents in other Member States, cannot be sufficiently achieved
by the Member States and can therefore, by reason of the scale and impact
of the action, be better achieved by the Community, the Community may
adopt measures, in accordance with the principle of subsidiarity as set out
in Article 5 of the Treaty. In accordance with the principles of proportion-
643
ality as set out in that Article, this Directive does not go beyond what is
necessary in order to achieve those objectives.
United Kingdom and Ireland annexed to the Treaty on European Union
dice to Article 4 of the said Protocol, these Member States are not partici-
pating in the adoption of this Directive and are not bound by or subject to
its application.
(26) In accordances with Article 1 and 2 of the Protocol on the position of Den-
CHAPTER I
GENERAL PROVISIONS
Article 1 Subject matter
This Directive determines:
(a) the terms for conferring and withdrawing long-term resident status granted
by a Member State in relation to third-country nationals legally residing in
its territory, and the rights pertaining thereto; and
(b) the terms of residence in Member States other than the one which con-
ferred that status on them for third-country nationals enjoying that status.

(b) “long-term resident” means any third-country national who has long-term
resident status as provided for by under Articles 4 to 7;
(c) “first Member State” means the Member State which for the first time
granted long-term resident status to a a third-country national;
(d) “second Member State” means any Member State other than the one
which for the first time granted long-term resident status to a third-country
644
national and in which that long-term resident exercises the right of resi-
dence;
(e) “family members” means the third-country nationals who reside in the
Member State concerned in accordance with Council Directive 2003/.../EC
of …. on the right to family reunification.
(f) “refugee” means any third-country national enjoying refugee status within
the meaning of the Geneva Convention on the Status of Refugees of 28
July 1951, as amended by the Protocol signed in New York on 31 January
1967;
(g) “long-term resident’s EC residence permit” means a residence permit issued
by the Member State concerned upon the acquisition of long-term resident
status.
Article 3 Scope
1. This Directive applies to third-country nationals residing legally in the ter-

ritory of a Member State.
2. This Directive does not apply to third-country nationals who:

(a) reside in order to pursue studies or vocational training;
(b) are authorised to reside in a Member State on the basis of temporary
protection or have applied for authorisation to reside on that basis and
are awaiting a decision on their status;
(c) are authorised to reside in a Member State on the basis of a subsid-
iary form of protection in accordance with international obligations,
national legislation or the practice of the Member States or have
applied for authorisation to reside on that basis and are awaiting a
decision on their status;
(d) are refugees or have applied for recognition as refugees and whose
application has not yet given rise to a final decision;
(e) reside solely on temporary grounds such as au pair or seasonal worker,
or as workers posted by a service provider for the purposes of cross-
border provision of services, or as cross-border providers of services or
in cases where their residence permit has been formally limited;
(f) enjoy a legal status governed by the Vienna Convention on diplomatic
relations of 1961, the Vienna Convention on Consular Relations of
1963, the Convention of 1969 on Special Missions or the Vienna Con-
vention on the Representation of States in their Relations with Inter-
national Organisations of a Universal Character of 1975.
3. This Directive shall apply without prejudice to more favourable provisions

of:
645
(a) bilateral and multilateral agreements between the Community or the

Community and its Member States, on the one hand, and third coun-
tries, on the other;
(b) bilateral agreements already concluded between a Member State and a
third country before the entry into force of this Directive;
(c) the European Convention on Establishment of 13 December 1955, the
European Social Charter of 18 October 1961, the amended European
Social Charter of 3 May 1987 and the European Convention on the
Legal Status of Migrant Workers of 24 November 1977.
CHAPTER II
LONG-TERM RESIDENT STATUS IN A MEMBER STATE
Article 4 Duration of residence
1. Member States shall grant long-term resident status to third-country

nationals who have resided legally and continuously for five years in the ter-
ritory of the Member State concerned immediately prior to the submission
of the relevant application.
2. Periods of residence for the reasons referred to in Article 3(2), (e) and (f)
shall not be taken into account for the purposes of calculating the period
referred to in paragraph 1.
Regarding the cases covered in Article 3(2)(a), where the third-country

national concerned has acquired a title of residence which will enable him/
her to being granted long-term resident status, only half the periods of resi-
dence for study purposes or vocational training may be taken into account
in the calculation of the period referred to in paragraph 1.
3. Periods of absence from the territory of the Member State concerned shall
not interrupt the period of legal and continuous residence referred to in
paragraph 1 and shall be taken into account for its calculation where they
are shorter than six consecutive months and do not exceed in total ten
months within the period referred to in paragraph 1.
In cases of specific or exceptional reasons of a temporary nature and in

accordance with their national law, Member States may accept that a longer
period of absence than that which is referred to in the first sub-paragraph
will not interrupt the period of legal and continuous residence referred to
in paragraph 1. In such cases Member states shall not take into account the
relevant period of absence in the calculation of the period referred to in
paragraph 1.
646
By way of derogation from the second sub-paragraph, Member States may

take into account in the calculation of the total period referred to in para-
graph 1 periods of absence relating to secondment for employment pur-
poses, including the provision of cross-border services.
Article 5 Conditions as to resources and sickness insurance
1. Member States shall require third-country nationals to provide evidence

that they have, for themselves and for dependent family members:
(a) stable and regular resources which are sufficient to maintain himself/
herself and the members of his/her family, without recourse to the
social assistance system of the Member State concerned. Member
States shall evaluate these resources by reference to their nature and
regularity and may take into account the level of minimum national
wages and pensions prior ro the application for long-term resident
status.
(b) sickness insurance in respect of all risks normally covered for his own
nationals in the Member State concerned.

tion conditions, in accordance with national law.
Article 6 Public policy and public security
1. Member States may refuse to grant long-term resident status on grounds

of public policy or public security. When taking the relevant decision, the
Member State shall consider the severity or type of offence against public
policy or public security, or the danger that emanates from the person con-
cerned, while also having proper regard to the duration of residence and to
the existence of links with the country of residence.
2. The refusal referred to in paragraph 1 may not be founded on economic

considerations.
Article 7 Acquisition of status
1. To acquire long-term resident status, the third-country national concerned

shall lodge an application with the competent authorities of the Member
State in which he resides. The application shall be accompanied by docu-
mentary evidence to be determined by national law that he/she meets the
conditions set out in Articles 4 and 5 as well as, if required, by a valid travel
document or its certified copy.
647
The evidence referred to in the first sub-paragraph may also include docu-
mentation with regard to appropriate accommodation.
2. The competent national authorities shall give the applicant written notifica-
tion of the decision as soon as possible and in any event no later than six
months from the date on which the application was lodged. Any such deci-
sion shall be notified to the third-country national concerned in accordance
with the notification procedures under the relevant national legislation.
In exceptional circumstances linked to the complexity of the examination

of the application, the time limit referred to in the first subparagraph may
be extended.
In addition, the person concerned shall be informed about his/her rights

and obligations under this Directive.
Any consequences of no decision being taken by the end of the period pro-
vided for in this provision shall be determined by national legislation of the
relevant Member State.
3. If the conditions provided for by Articles 4 and 5 are met, and the person
does not represent a threat within the meaning of Article 6, the Member
State concerned shall grant the third-country national concerned long-term
resident status.
Article 8 Long-term resident’s EC residence permit
1. The status as long-term resident shall be permanent, subject to Article 9.
2. Member States shall issue a long-term resident’s EC residence permit to

long-term residents. The permit shall be valid at least for five years; it shall,
upon application if required, be automatically renewable on expiry.
3. A long-term resident’s EC residence permit may be issued in the form of a

sticker or of a separate document. It shall be issued in accordance with the
rules and standard model as set out in Council Regulation (EC) 1030/2002,
of 13 June 2002, laying down a uniform format for residence permits for
third-country nationals. Under the heading “type of permit”, the Member
States shall enter “long-term resident – EC”.
648
Article 9 Withdrawal or loss of status
1. Long-term residents shall no longer be entitled to maintain long-term resi-

dent status in the following cases:
(a) detection of fraudulent acquisition of long-term resident status;
(b) adoption of an expulsion measure under the conditions provided for

in Article 12;
(c) in the event of absence from the territory of the Community for a
period of twelve consecutive months.
2. By way of derogation from paragraph 1(c), Member States may provide

that absences exceeding twelve consecutive months or for specific or excep-
tional reasons shall not entail withdrawal or loss of status.
3. Member States may provide that the long-term resident shall no longer be
entitled to maintain his/her long-term resident status in cases where he/she
constitutes a threat to public policy, in consideration of the seriousness of
the offences he/she committed, but such threat is not a reason for expulsion
within the meaning of Article 12.
4. The long-term resident who has resided in another Member State in accor-
dance with Chapter III shall no longer be entitled to maintain his/her long-
term resident status when such a status is granted in another Member State
In any case after six years of absence from the territory of the Member
State that granted long-term resident status the person concerned shall no
longer be entitled to maintain his/her long term resident status in the said
Member State.
By way of derogation from the second sub-paragraph the Member State

concerned may provide that for specific reasons the long-term resident shall
maintain his/her status in the said Member State in case of absences for a
period exceeding six years.
5. With regard to the cases referred to in paragraph 1(c) and in paragraph 4,

Member States who have granted the status shall provide for a facilitated
procedure for the re-acquisition of long-term resident status.
The said procedure shall apply in particular to the cases of persons that
have resided in a second Member State on grounds of pursuit of studies, as
provided for in Article 14(2)(b).
649
The conditions and the procedure for the re-acquisition of long-term resi-
dent status shall be determined by national law.
6. The expiry of a long-term resident’s EC residence permit shall in no case

entail withdrawal or loss of long-term resident status.
7. Where the withdrawal or loss does not lead to removal, the Member State
shall authorise the person concerned to remain in its territory if he/she ful-
fils the conditions provided for in its national legislation and/or if he/she
does not constitute a threat to public policy or public security.
Article 10 Procedural guarantees
1. Reasons shall be given for any decision rejecting an application for long-
term resident status or withdrawing that status. It shall be notified in writ-
ing to the third-country national concerned. The notification shall specify
the redress procedures available and the timewithin which he may act.
2. Where an application for long-term resident status is rejected or that status

is withdrawn or the residence permit is not renewed, the person concerned
shall have the right to mount a legal challenge in the Member State con-
cerned.
Article 11 Equal treatment
1. Long-term residents shall enjoy equal treatment with nationals as regards:

(a) access to employment and self-employed activity, provided such activi-
ties do not entail even occasional involvement in the exercise of public
authority, and conditions of employment and working conditions,
including conditions regarding dismissal and remuneration;
(b) education and vocational training, including study grants, in accor-
dance with national law;
(c) recognition of professional diplomas, certificates and other qualifica-
tions, in accordance with the relevant national procedures;
(d) social security, social assistance and social protection as defined in
national law;
(e) tax benefits;
(f) access to goods and services and the supply of goods and services made
available to the public, and to procedures for obtaining housing;
(g) freedom of association and affiliation and membership of an organisa-
tion representing workers or employers or of any organisation whose
members are engaged in a specific occupation, including the benefits
650
conferred by such organisations, without prejudice to the national pro-

visions on public policy and public security;
(h) free access to the entire territory of the Member State concerned,
within the limits provided for by the national legislation for reasons of
security.
2. With respect to the provisions of paragraph 1, points (b), (d) (e), (f) and (g),
the Member State concerned may restrict equal treatment to cases where
the registered or usual place of residence of the long-term resident, or that
of family members for whom he/she claims benefits, lies within the territory
of the Member State concerned.
3. Member States may restrict equal treatment with nationals in the following
cases:
a) Member States may retain restrictions to access to employment or self-
employed activities in cases where, in accordance with existing national
or Community legislation, these activities are reserved to nationals,
EU or EEA citizens;
b) Member States may require proof of appropriate language proficiency
for access to education and training. Access to university may be sub-
ject to the fulfilment of specific educational prerequisites.
4. Member States may limit equal treatment in respect of social assistance and
social protection to core benefits.
5. Member States may decide to grant access to additional benefits in the areas
referred to in paragraph 1.
Member States may also decide to grant equal treatment with regard to
areas not covered in paragraph 1.
Article 12 Protection against expulsion
1. Member States may take a decision to expel a long-term resident solely

where he/she constitutes an actual and sufficiently serious threat to public
policy or public security
2. The decision referred to in paragraph 1 may not be founded on economic

considerations.
3. Before taking a decision to expel a long-term resident, Member States shall

have regard to the following factors:
(a) the duration of residence in their territory;
651
(b) the age of the person concerned;

(c) the consequences for the person concerned and family members;
(d) links with the country of residence or the absence of links with the
country of origin.
4. Where an expulsion decision has been adopted, a judicial redress proce-

dure shall be available to the long-term resident in the Member State con-
cerned.
5. Legal aid shall be given to long-term residents lacking adequate resources,

on the same terms as apply to nationals of the State where they reside.
Article 13 More favourable national provisions
Member States may issue residence permits of permanent or unlimited validity

on terms that are more favourable than those laid down by this Directive. Such
residence permits shall not confer the right of residence in the other Member
States as provided by Chapter III of this Directive.
CHAPTER III
RIGHT OF RESIDENCE IN THE OTHER MEMBER STATES
Article 14 Principle
1. A long-term resident shall acquire the right to reside in the territory of

Member States other than the one which granted him/her the status, for a
period exceeding three months, provided that the conditions in this Chapter
are met.
2. A long-term resident may reside in a second Member State on the following

grounds:
(a) exercise of an economic activity in an employed or self-employed
capacity; or
(b) pursuit of studies or vocational training; or
(c) other purposes.
3. In cases of an economic activity in an employed or self-employed capacity

referred to in paragraph 2(a) Member States may examine the situation
of their labour market and apply their national procedures regarding the
requirements for, respectively, filling a vacancy, or for exercising such activi-
ties.
652
For reasons of labour market policy, Member States may give preference
to Union citizens, to third-country nationals, when provided for by Com-
munity legislation, as well as to third-country nationals who reside legally
and receive unemployment benefits in the Member State concerned.
4. By way of derogation from the provisions of paragraph 1, Member States

may limit the total number of persons entitled to be granted right of resi-
dence, provided that such limitations are already set out for the admission
of third-country nationals in the existing legislation at the time of the adop-
tion of this Directive.
5. This Chapter does not concern the residence of long-term residents in the
territory of the Member States:
(a) as employed workers posted by a service provider for the purposes of
cross-border provision of services; or
(b) as providers of cross-border services.
Member States may decide, in accordance with national law, the conditions
under which long-term residents who wish to move to a second Member
State with a view to exercising an economic activity as seasonal workers
may reside in that Member State. Cross-border workers may also be subject
to specific provisions of national law.
6. This Chapter is without prejudice to the relevant Community legislation on

social security with regard to third-country nationals.
Article 15 Conditions for residence in a second Member State
1. As soon as possible and no later than three months after entering the terri-
tory of the second Member State, the long-term resident shall apply to the
competent authorities of that Member State for a residence permit.
Member States may accept that the long-term resident submits the appli-
cation referred to in the first sub-paragraph to the competent authorities
of the second Member state while still residing in the territory of the first
Member State.
2. Member States may ask the persons concerned to provide evidence that
they have:
(a) stable and regular resources which are sufficient to maintain them-
selves and the members of their families, without recourse to the social
assistance of the Member State concerned. For each of the catego-
ries referred to in Article 14(2) Member States shall evaluate these
653
resources by reference to their nature and regularity and may take into
account the level of minimum wages and pensions.
(b) sickness insurance covering all risks in the second Member State nor-
mally covered for its own nationals in the Member State concerned.

tion measures, in accordance with national law.
This condition shall not apply where the third-country nationals concerned
have been required to comply with integration conditions in order to be
granted long-term resident status, in accordance with the provisions of
Article 5(2).
Without prejudice to the second sub-paragraph, the persons concerned

may be required to attend language courses.
4. The application shall be accompanied by documentary evidence, to be

determined by national law, that the persons concerned meets the relevant
conditions, as well as by their long-term resident permit and a valid travel
document or their certified copies.
The evidence referred to in the first sub-paragraph may also include docu-
mentation with regard to appropriate accommodation.
In particular:
(i) in case of exercise of an economic activity the second Member State
may ask the person concerned to provide evidence:
(a) if they are in employed capacity, that they have an employment
contract, a statement by the employer that they are hired or a pro-
posal for an employment contract, under the conditions provided
for by national legislation. Member States shall determine which
of the said forms of evidence is required.
(b) if they are in a self-employed capacity, that they have the appro-
priate funds which are needed, in accordance with national law,
to exercise an economic activity in such capacity, presenting the
necessary documents and permits.
(ii) in case of study or vocational training the second Member State may ask
the person concerned to provide evidence of enrolment in an accredited
establishment in order to pursue studies or vocational training.
654
Article 16 Family members
1. When the long-term resident exercises his/her right of residence in a second

member State and when the family was already constituted in the first
Member State, the members of his/her family, who fulfil the conditions
referred to in Article 4(1) of Directive 2003/.../EC [on the right to family
reunification] shall be authorised to accompany or to join the long-term
resident.
2. When the long-term resident exercises his/her right of residence in a second

member State and when the family was already constituted in the first
Member State, the members of his/her family, other than those referred to
in Article 4(1) of Directive 2003/.../EC [on the right to family reunification]
may be authorised to accompany or to join the long-term resident.
3. With respect to the submission of the application for a residence permit, the
provisions of Article 15(1) apply.
4. The second Member State may require the family members concerned to
present with their application for a residence permit:
(a) their long-term resident’s permit or residence permit and a valid travel
document or their certified copies;
(b) evidence that they have resided as members of the family of the
long-term resident in the first Member State;
(c) evidence that they have stable and regular resources which are sufficient
to maintain himself/herself without recourse to the social assistance of
the Member State concerned or that the long-term resident has such
resources and insurance for them, as well as sickness insurance cover-
ing all risks in the second Member State. Member States shall evaluate
these resources by reference to their nature and regularity and may
take into account the level of minimum wages and pensions.
5. Where the family was not already constituted in the first Member State,
Directive 2003/…/EC [on the right to family reunification] shall apply.
Article 17 Public policy and public security
1. Member States may refuse applications for residence from long-term resi-
dents or family members where the person concerned constitutes a threat to
public policy or public security.
When taking the relevant decision, the Member State shall consider the
severity or type of offence against public policy or public security commit-
655
ted by the long-term resident or his/her family member(s), or the danger

that emanates from the person concerned.
2. The refusal referred to in paragraph 1 may not be founded on economic

considerations.
Article 18 Public health
1. Member States may refuse applications for residence from long-term resi-
dents or their family members where the person concerned constitutes a
threat to public health.
2. The only diseases or infirmities that may justify a refusal to allow entry or
the right of residence in the territory of a Member State shall be the dis-
eases as defined by the relevant applicable instruments of the World Health
Organisation’s and such other infectious or contagious parasite-based dis-
eases as are the subject of protective provisions in relation to nationals in
the host country. Member States shall not introduce new more restrictive
provisions or practices.
3. Diseases or infirmities contracted after the first residence permit was issued
in the second Member State shall not justify a refusal to renew the permit
or expulsion from the territory.
4. A Member State may impose a medical examination, performed free of

charge, for persons to whom this Directive applies, in order to certify that
they do not suffer from any of the diseases referred to in paragraph 1. Such
medical examinations, which may be free of charge, may not be performed
on a systematic basis.
Article 19 Examination of applications and issuance of a residence permit
1. The competent national authorities shall examine applications within four

months from the date they these have been lodged. If an application is not
accompanied by the documentary evidence listed in Articles 15 and 16, or
in exceptional circumstances linked with the complexity of the examina-
tion of the application, the time-limit referred to in the first sub-paragraph
may be extended for a period not exceeding three months. In such cases the
competent national authorities shall inform the applicant thereof.
2. If the conditions provided for in Articles 14, 15 and 16 are met, then, sub-
ject to the provisions relating to public policy, public security and public
health in Articles 17 and 18, the second Member State shall issue the long-
656
term resident with a renewable residence permit. This residence permit

shall, upon application, if required, be renewable on expiry. The second
Member State shall inform the first Member State of its decision.
3. The second Member State shall issue members of the long-term resident’s
family with renewable residence permits valid for the same period as the
permit issued to the long-term resident.
Article 20 Procedural guarantees
1. Reasons shall be given for any decision rejecting an application for a resi-
dence permit. It shall be notified in writing to the third-country national
concerned in accordance with the notification procedures under the rele-
vant national legislation. The notification shall specify the possible redress
procedures available and the time limit for taking action.
2. Where an application for a residence permit is rejected, or the permit is

not renewed or is withdrawn, the person concerned shall have the right to
mount a legal challenge in the Member State concerned.
Article 21 Treatment granted in the second Member State
1. As soon as they have received the residence permit provided for by Article
19 in the second Member State, long-term residents shall in that Member
State enjoy equal treatment in the areas and under the conditions referred
to in Article 11.
2. Long-term residents shall have access to the labour market in accordance

with the provisions of paragraph 1.
Member States may provide that the persons referred to in Article 14(2)(a)
shall have restricted access to employed activities different than those for
which they have been granted their residence permit under the conditions
set by national legislation for a period not exceeding twelve months.
Member States may decide in accordance with national law the conditions
under which the persons referred to in Article 14(2)(b) or (c) may have
access to an employed or self-employed activity.
3. As soon as they have received the residence permit provided for by Article
19 in the second Member State, members of the family of the long-term
resident shall in that Member State enjoy the rights listed in Article 14 of
Directive 2003/.../EC [on the right to family reunification]
657
Article 22 Withdrawal of residence permit and obligation to readmit
1. Until the third-country national has obtained long-term resident status,

the second Member State may decide to refuse to renew or to withdraw
the resident permit and to oblige the person concerned and his/her family
members, in accordance with the procedures provided for by national law,
including removal procedures, to leave its territory in the following cases:
(a) on grounds of public policy or public security as defined in Article
17;
(b) where the conditions provided for by Articles 14, 15 and 16 are no
longer met;
(c) where the third-country national is not lawfully residing in the Member
State concerned.
2. If the second Member State adopts one of the measures referred to in para-
graph 1, the first Member State shall immediately readmit without formali-
ties the long-term resident and his family members. The second Member
State shall notify the first Member State of its decision.
3. Until the third-country national has obtained long-term resident status and
without prejudice to the obligation to readmit referred to in paragraph 2,
the second Member State may adopt a decision to remove the third-country
national from the territory of the Union, in accordance with and under
the guarantees of Article 12, on serious grounds of public policy or public
security.
In such cases, when adopting the said decision the second Member State
shall consult the first Member State.
When the second Member State adopts a decision to remove the third-
country national concerned, it shall take all the appropriate measures to
effectively implement it. In such cases the second Member State shall pro-
vide to the first Member State appropriate information with respect to the
implementation of the removal decision.
4. Expulsion decisions may not be accompanied by a permanent ban on resi-

dence in the cases referred to in paragraph 1(b) and (c).
5. The obligation to readmit referred to in paragraph 2 shall be without preju-

dice to the possibility of the long-term resident and his/her family members
moving to a third Member State.
658
Article 23 Acquisition of long-term resident status in the

second Member State
1. Upon application, the second Member State shall grant long-term residents
the status provided for by Article 7, subject to the provisions of Articles 3,
4, 5 and 6. The second Member State shall notify its decision to the first
Member State.
2. The procedure laid down in Article 7 shall apply to the presentation and
examination of applications for long-term resident status in the second
Member State. Article 8 shall apply for the issuance of the residence permit.
Where the application is rejected, the procedural guarantees provided for
by Article 10 shall apply.
CHAPTER IV
FINAL PROVISIONS
Article 24 Report and rendez-vous clause
Periodically, and for the first time no later than 23 January 2011, the Commis-
sion shall report to the European Parliament and the Council on the application
of this Directive in the Member States and shall propose such amendments as
may be necessary. These proposals for amendments shall be made by way of
priority in relation to Articles 4, 5, 9, 11 and to Chapter III.
Article 25 Contact points
Member States shall appoint contact points who will be responsible for receiving
and transmitting the information referred to in Articles 19(2), 22(2) and 23(1).
Member States shall provide appropriate co-operation in the exchange of the

information and documentation referred to in the first sub-paragraph.
provisions necessary to comply with this Directive by 23 January 2006 at the
latest. They shall forthwith inform the Commission thereof.
official publication. The methods of making such reference shall be laid down
by Member States.
659
This Directive shall enter into force on the on the day of its publication in the
Official Journal of the European Union.
660
Chapter 21 Migration for Employment and
Self-employment
In July 2001, the Commission proposed a Directive which would set out gen-
eral rules on migration for employment and self-employment into the European
Union.1 However, the Council has held only brief discussions on this proposed
Directive, and due to strong opposition to the Directive from some Member
States, discussions on the proposal stalled. The Commission issued a Green
Paper early in 2005 to relaunch discussions on the issue, and subsequently with-
drew the proposed Directive entirely in September 2005, and EU action was e
reconsidered. Ultimately, in a “policy plan” on legal migration issued at the end
of 2005, the Commission announced plans to propose two Directives in 2007
(on the admission of highly-skilled workers and for a general framework on
the status of all persons admitted for employment), one Directive in 2008 (on
seasonal workers) and two Directives in 2009 (on intra-corporate transferees
and remunerated trainees).2 Nevertheless, the 2001 proposal for a Directive is
presented and discussed here as the relevant provisions of the proposal may well
form the starting point for the planned future proposals; in any event, the issues
raised by the proposal will have to be addressed again in the planned future pro-
posals. Ireland opted in to discussions on the Directive, but the UK opted out,
while Denmark was not eligible to participate.
In March 2004, the Commission proposed a Directive (and two Recom-
mendations) regarding migration for employment (in effect) of a very specific
category of persons: researchers. The Council was able to reach agreement on
the proposed Directive quickly, in November 2004, and it formally adopted the
1 COM (2001) 386, 11 July 2001; OJ 2001 C 332 E/248.

2 See respectively COM (2004) 811, 11 Jan. 2005 (Green Paper); COM (2005) 462, 27
Sep. 2005 (withdrawal); COM (2005) 669, 21 Dec. 2005 (policy plan).
Directive in October 2005. The text of this Directive is also presented and dis-
cussed in this Chapter. Again, Ireland opted in this Directive, the UK opted out,
and Denmark was not eligible to participate.3
1.1 General Rules

The 2001 proposal for general rules on admission for employment or self-employ-
ment inevitably raised issues that are at the very core of the debate over migra-
tion into the European Union, as it can be expected that a significant number
of people who enter the EU for these purposes will stay for a lengthy period and
thus impact upon the culture and society of the EU. Moreover migration for
these purposes will obviously have a greater direct impact on the EU’s economy
and employment market than other forms of migration. Legally, migrants who
enter for employment or self-employment will often attain the status of long-
term residents and become eligible for family reunion.
The proposed Directive was divided into six Chapters. Chapter I (Articles
1-3) contained introductory provisions, addressing respectively the purpose,
the definitions and the scope of the proposal. The definition of “activity as an
employed person” in Article 2(b) was clearly based on the definition developed
by the Court of Justice for EU citizens.4 Articles 3(1) and 3(4) allowed for higher
standards for certain groups; but in the absence of those standards, the Direc-
tive would have applied to them. First, Article 3(1) allowed for the application
of more favourable rules under Community, national or mixed agreements with
third countries. The application of this rule would not have been limited in time
(as it was in the Commission’s original family reunion proposal of 1999). Second,
Article 3(4) would have permitted Member States to apply more favourable
national rules as regards six specified categories of entrants; this implied a con-
trario that Member States could not have applied different rules as regards other
categories (unless they did so by means of an international agreement pursuant
to Article 3(1)). The form which more favourable treatment could have taken
was not further defined and there were no transparency requirements regarding
these categories in Article 30 of the proposal. The explanatory memorandum
to the proposal implied that the Commission would be considering proposals
to cover these groups in future. In fact, as noted above, in 2004 the Commission
proposed, and the Council agreed, a Directive on admission of third-country
national researchers (considered below).
Article 3(2) and 3(3) excluded certain groups entirely from the proposal.
Article 3(2) stated that the Directive would not have applied to stays under three
months that were “directly linked with the supply of goods or services from
third countries to the Community”. The scope of this exception was unclear; the
3 The UK decision not to opt in is explained in the 35th report of the House of Com-
mons Select committee on European Scrutiny (2003-2004).
4 See discussion of the case law in Ch. 22.
662
Chapter 21 Migration for Employment and Self-employment
explanatory memorandum observed in particular that the wording was designed

to ensure that short-term transport workers, for instance, were not included, but
seasonal workers were.
Article 3(3) excluded five categories of persons from the Directive on the
grounds that there were separate existing or proposed rules which covered four
of these categories (see the explanatory memorandum). First, the Directive
would not have covered posted workers and service providers established within
the EC. The reason for this was that both these categories would have been gov-
erned (at the time of the proposal in 2001) by separate proposals on this issue
dating from 1999.5 Furthermore, posted workers (as distinct from self-employed
service providers) were (and still are) governed by Article 49 EC, giving their
employers rights to post them between Member States, as clarified by the Van
der Elst judgment of the Court of Justice.6 The explanatory memorandum failed
to mention this. Second, the Directive would not have covered asylum-seekers,
as they were covered by the Directive on reception conditions,7 or persons with
temporary protection or subsidiary protection status, as they were also covered
by agreed or proposed (since adopted) Directives.8 Furthermore, Article 3(3) of
the 2001 proposal would also apparently have excluded persons in national tem-
porary protection schemes as well those in any EC scheme set up in accordance
with Directive 2001/55, as there was no definition of the terms “temporary pro-
tection” or “subsidiary forms of protection” in Article 3(3)(ii).
Thirdly, persons whose residence is “not legal” and who could not be
deported for legal or factual reasons would have been excluded by Article 3(3).
This category was not covered by agreed or proposed legislation as of 2001
and was not further defined or discussed in the explanatory memorandum,
although the status of such persons would be covered by a subsequent proposal
of September 2005 on expulsion standards.9 Fourthly, the proposal excluded
family members of EU citizens who have moved within the EU. The explana-
5 For the text of the 1999 proposals, see COM (1999) 3, 26 Feb. 1999. In the mean-
time, these proposals have been withdrawn (COM (2004) 542, 1 Oct. 2004) but
posted workers (as distinct from the self-employed) are covered by a more general
proposal on services issued early in 2004 (COM (2004) 2, 5 March 2004), and still
under discussion in the Council and EP as of end-2005.
6 Case C-43/93 [1994] ECR I-3803. The Van der Elst judgment has since been supple-
mented by the Court’s judgment in Case C-445/03 Commission v Luxembourg [2004]
ECR I-10191. See also Cases C-168/04 Commission v Austria and C-244/04 Com-
mission v Germany, both pending (an Opinion in the latter case was released on 15
Sep. 2005).
7 See Ch. 12.
8 See Chapters 13 and 15.
9 COM (2005) 391, 1 Sep. 2005.
663
tory memorandum only mentioned Regulation 1612/68 in this context,10 but

of course this category also covered the family members of EU citizens who
have moved for non-economic reasons or for self-employment or the provision
of services.11 Finally, the proposal excluded persons covered by family reunion
rules. The wording of this exclusion would have covered national as well as EC
rules, which now include in particular Directive 2003/86 on family reunion.12 It
might appear by an a contrario interpretation that recognised refugees would
have been governed by the Directive, but this was clearly not the Commission’s
intention. This is evidenced by the explanatory memorandum to this proposal,
which argued that the Geneva Convention on refugee status fell within the scope
of Article 3(1)(b), and by the later proposal for a Directive on refugee status
(since adopted), which includes provisions on access to employment.13
Chapter II (Articles 4-16) contained provisions on employment, consist-
ing of Section 1 on general rules (Articles 4-11) and Section 2 on special rules
(Articles 12-16). Member States could only have authorised a person to take up
employment if a residence permit had been issued in accordance with Articles
5 and 6, unless a Member State invoked the exceptions in Articles 26-28. The
procedural rules in Article 29 would have applied. Article 5 set out specific rules
regarding applications; it was significant here that applications could have been
made from within a Member State by a legally resident or present person. This
would have been a significant departure from national practice in many Member
States, which only permit applications by employers. Among other things, Arti-
cle 5 included a “minimum resources” requirement applying to the duration of
the stay, set a condition of “a valid work contract or a binding offer of work” as
a condition for the application and required applications from outside the EU to
be made to the consular offices of Member States. Article 6(1) contained the key
rule on requirements for admission: it had to be demonstrated that there was no
“acceptable” application “in the short term” (Article 6(2)) from one of six listed
categories who could have taken the job. The categories comprised:
1) EU citizens (with further comments on the intended preference for nation-
als of new Member States after accession in the explanatory memoran-
dum);
2) the family members of a migrant EU citizen; again the explanatory memo-
randum inaccurately only mentions Regulation 1612/68;
10 OJ 1968 L 257/2.
11 Subsequently, the Council and EP adopted a Directive that will consolidate all the
rules on family members of migrant EU citizens, as from April 2006: Directive
2004/38 (OJ 2004 L 229/35).
12 See Ch. 19.
13 See Ch. 13.
664
3) third-country nationals with “full” labour market access under interna-

tional treaties (the proposed Directive did not restrict this category to those
already present in the host Member State, or even in the EU);
4) other third-country nationals with access (not “full” access) to the national
labour market under national or EC law; or
5 third-country nationals who had been employed and resident in a Member
&
6
} State for three years or for three of the last five years in that Member
State.
Pursuant to Article 6(2), this preference rule was “deemed to be fulfilled” if a job
had been offered through “several” Member States for over four weeks, particu-
larly through the use of EURES, the employment clearance system established
by Regulation 1612/68. But Article 6(2) also referred to job applications from
nationals of countries which have begun negotiations to join the EU (twelve
countries at the time of the Commission’s proposal and four countries as the end
of 2005); it is not clear how such persons would have fitted in to the system.
Articles 6(3) to 6(5) listed options for Member States as regards possible
automatic exemptions from the Article 6(2) procedure (a “sectoral labour short-
age” test, a “high-income” test and a “compensating payment” test). The explan-
atory memorandum explained that the Commission envisioned Member States
competing in this context to show which one has the best model. The first option
also gave preference to citizens of applicant countries, without any procedure
for implementing this preference.
Articles 5 and 6 did not make a distinction between unskilled and skilled
workers per se, although in practice it may have been that it would have been
easier to find a “domestic” applicant for an unskilled job. While the option in
Article 6(4) regarding automatic exemption for high-paying jobs would in prac-
tice have favoured many highly skilled employees (although sadly it will not
apply to academics unless the threshold is quite low!), even if a Member State
uses this option Article 6(2) would still have applied as regards lower-paid (pre-
dominantly unskilled) workers. The Directive did not state expressly whether or
not a permit must be issued if the criteria in Articles 5 and 6 were met (excluding
any application of the exceptions), but that was certainly an arguable interpreta-
tion.
Articles 7 to 10 concerned revocation and renewal of the permit. There
was an underlying rule, also present in Articles 5 and 6, that the position of the
worker had to be simplified after three years’ legal employment (or three years
out of the last five). The explanatory memorandum (but not the main text of
the proposed Directive) made reference to the application of the proposed long-
term residents’ directive (since adopted) after five years.14 Member States would
14 On this proposed Directive (adopted as Directive 2003/109), see Ch. 20.
665
have been left full discretion as regards the period of validity of the permit and
of any renewals, according to Article 7.
Article 11 contained provisions on equal treatment for workers. Certain
matters (such as social assistance) were omitted, and certain exclusions were
allowed. There was no reference to equal treatment from the employment ser-
vices as regards employment assistance.
The special cases listed in Section 2 of Chapter II were subject to the same
rules as in Section 1, unless otherwise specified. They comprised rules for sea-
sonal workers, transfrontier workers, intra-corporate transferees, remunerated
trainees and au pairs.
Chapter III (Articles 17-24) contained the provisions on self-employment.
It was worded similarly to Chapter II, although there were no “special cases”.
Here the key test was that an investment would employ the applicant and have
a favourable impact on employment or economic development in that Member
State.15 Member States had the option to create “sectoral” or “large investment”
exceptions.16
Chapter IV (Articles 25-28) contained “horizontal” rules applying to the
employed and self-employed. The key provision here was Article 26, which
allowed Member States to prohibit or reduce the number of permits issued,
“taking into account the overall capacity to receive and to integrate third coun-
try nationals on their territory or in specific regions thereof ”. The proposed
Directive did not specify what criteria could be used to issue permits within
any quota, although there were procedural requirements for the exercise of this
exception in Article 30. Article 27 comprised a simplified version of exceptions
relating to public security, public health and public order, and Article 28 was a
“public employment” and “official authority” exception.
Finally, Chapter V (Articles 29-31) contained procedural rules; and Chapter
VI (Articles 32-37) contained general and final provisions. The former Chapter
in particular required a decision on applications within six months, and set out
a series of transparency requirements.17 The latter Chapter contained a non-dis-
crimination rule, although it did not extend to non-discrimination on grounds
of nationality.18
1.2 Researchers
In order to increase the number of research workers in the EU with a view to
meeting the “Lisbon agenda” objective of making the EU the world’s most com-
petitive and dynamic knowledge economy by 2010, the Commission proposed
15 Art. 19(1).
16 Art. 19(2) and (3).
17 Arts. 29 and 30.
18 Art. 32.
666
in March 2004 a Directive and a Recommendation on admission of third-coun-

try national researchers, along with a parallel Recommendation on the issue of
short-term visas to third-country national researchers.19 The Council was able
to agree in principle on the Recommendation on admission in principle early in
June 2004,20 and soon after it also agreed in principle on the recommendation
on researchers’ short-term visas.21 It also began actively discussing the proposed
Directive immediately, and the Directive was agreed in principle by the JHA
Council of 19 November 2004 and adopted (along with the Recommendation
on admission of researchers) in October 2005.22 Member States will have to
implement the Directive by October 2007.23
The Directive applies to admission as a researcher for periods of more than
three months.24 It contains definitions of “researcher”, “research”, “research
organisation” and “residence permit”.25 “Research” is broadly defined to mean
“creative work undertaken on a systematic basis in order to increase the stock of
knowledge”. A “research organisation” could include not just a public organisa-
tion but also a private organisation.
As for the scope, the Directive will apply to persons applying for admission
to carry out a research project.26 But the Directive will not apply to: applicants
for international protection; persons on a temporary protection scheme; persons
applying for admission as students under Directive 2004/114 on the admission
of students and other categories of persons to take up doctoral studies;27 per-
sons whose expulsion is suspended for reasons of fact or law; or researchers
seconded by a research organisation to another research organisation in a dif-
ferent Member State.28 The Directive is without prejudice to more favourable
provisions in treaties concluded by the Member States, the Community, or both
together; and it leaves Member States the power to adopt more favourable provi-
sions of national law.29
19 COM (2004) 178, 16 March 2004.

20 The Recommendation is discussed in detail in Peers, EU Justice and Home Affairs
Law, second edition (OUP, 2006, forthcoming), Ch. 4.
21 The visas Recommendation, which was formally adopted in July 2005 (OJ 2005 L
289/23) is discussed in Peers, ibid., Ch. 3.
22 Directive 2005/71 (OJ 2005 L 289/15); see Annex 2 to this Chapter. The Recommen-
dation is published in OJ 2005 L 289/26.
24 Art. 1.
25 Art. 2.
26 Art. 3(1).
27 On this Directive, see Ch. 22.
28 Art. 3(3).
29 Art. 4 of the Directive; Art. 3(1) and part of Art. 3(2) of the proposal.
667
The core of the Directive is a special procedure for admitting research-

ers, which entails a significant delegation of power from national immigration
authorities to research institutions as regards the admission of researchers. First
of all, there are detailed rules on the process of Member States’ approval of the
research institutions.30 Such approval shall be based on national law or prac-
tice, and must be for a minimum period of five years, although Member States
may, in “exceptional cases”, grant shorter periods of approval. Member States
may require the research institutions to be responsible for the costs of stay and
return if a researcher remains illegally on the territory, although such responsi-
bility must lapse at the latest six months after the “hosting agreement” with the
researcher has been terminated. Member States may also require confirmation
that the research work has been carried out within two months of the expiry of
the agreement. Research organisations may be punished by Member States with
a refusal to renew or a withdrawal of their approval, “among other measures”, if
they no longer meet the criteria for approval, do not meet their requirements to
report on the research work or assume responsibility for illegal residents, signed
a hosting agreement fraudulently or negligently, or obtained approval by fraud.
This may entail a ban on re-application for approval for up to five years. Member
States “may” determine in national law what impact such a decision would have
on the researchers’ hosting agreements or residence permits.
Then, the Directive sets out rules concerning the “hosting agreement” to
be agreed between the institution and the researcher.31 These agreements will
provide for the institution to host the researcher while the researcher works on
a research project for the institution, subject to the issue of a residence permit
to the researcher. An agreement can only be signed if: the research project has
been accepted by the institution, in light of the purpose and duration of the
research and financial resources to fund it, along with the researchers’ qualifi-
cations; the researcher can meet resources and sickness insurance conditions;
and the agreement sets out the legal relationship and working conditions of the
researcher. Member States may require the institution to issue a statement to the
researcher that it assumes responsibility for his or her stay and return costs if the
researcher becaoomes and illegal resident. Also, the agreement will lapse if the
legal relationship between the researcher and the institution is terminated, or if
the researcher is not admitted.
As for the immigration process, Member States are obliged to admit research-
ers following the mandatory conclusion of checks to ensure that the conditions
for admission are met.32 The conditions are fourfold: possession of a valid travel
document, as determined by national law; a hosting agreement; a statement of
30 Art. 5.
31 Art. 6.
32 Art. 7(3).
668
financial responsibility from the host institution; and a lack of threat to public
policy, public security or public health.33 Member States may also check the
hosting agreement’s terms.34 Member States must issue residence permits for at
least one year, unless the period of project is less than one year’s duration, and
the permit must be renewed if the conditions for its renewal are still met.35 How-
ever, as in the Directive on admission of students and others, Member States will
have a further two-year period before they are obliged to issue permits to per-
sons covered by the Directive in the form of residence permits.36 A provision on
family members specifies that their residence permit shall have the same validity
as that of the researcher, if the validity of their travel documents allows it; but
Member States may shorten such permits’ validity in “duly justified” cases.37
Moreover, the period of residence of family members shall not be made depen-
dent on a minimum period of residence of the researcher. However, there is no
explicit right of family reunion, although a recital to the preamble encourages
family members’ admission. Member States may withdraw or refuse to renew a
permit if it was acquired by fraud, if the holder no longer meets the conditions
of the permit or is residing for other purposes, or on grounds of public policy
or public security.38
Chapter III of the Directive concerns researchers’ rights. Research-
ers admitted under the Directive may teach in accordance with national law,
although Member States may set a maximum number of teaching hours per
year.39 They have the right to equal treatment as regards recognition of diplo-
mas, certificates and qualifications, working conditions (including pay and dis-
missal), social security as defined under EC free movement legislation, subject to
the limitations allowed by the Regulation extending those rules to third-country
nationals, tax benefits, and access to goods and services made available to the
public.40 Finally, a researcher has the right of mobility to other Member States
to conduct part of his or her research project there.41 If the period of mobility
is less than three months, the second Member State cannot insist on a new host-
ing agreement, although the mobility is subject to meeting a sufficient resources
test and requirements of public policy, et al in the second Member State. After
33 Art. 7(1).
34 Art. 7(2).
35 Art. 8.
37 Art. 9. There is no definition of “family members”.
38 Art. 10.
39 Art. 11.
40 Art. 12. On the social security legislation applicable to third-country nationals, see
Ch. 23.
41 Art. 13.
669
three months, the second Member State may insist on the negotiation of a new
hosting agreement. Any necessary visas or residence permits must be issued “in
a timely manner” and Member States cannot require the researcher to leave their
territory while the application is processed.
The procedural rules in Chapter IV of the Directive comprise first of all an
option for Member States to determine whether the researcher or the research
organisation submits the application. An application can be submitted in the
researcher’s country of residence or in a Member State, and Member States have
an option to consider applications made by persons who are already present.42
Member States must respond to applications “as soon as possible”, but with no
deadline set. Persons must be notified of negative decisions and have a right to
“mount a legal challenge before the authorities” of the relevant Member State
in the event of a dispute.43

2.1 Background
The EU first tried to address migration for employment and self-employment by
means of two separate “Resolutions” agreed by the Council in 1994.44 These Res-
olutions set out general principles concerning admission of these categories that
are particularly restrictive in the case of employment migration, apparently sug-
gesting that all such migration should be temporary. The “labour market needs”
test that should apply to migration for employment is particularly ambiguous.45
There were also special rules for trainees, frontier workers and intra-corporate
transferees as defined in the Resolution, although casual work in the course of
youth exchange and youth mobility schemes (including au pairs) were outside its
scope. Next, the Commission proposed provisions on migration for employment
and self-employment in its 1997 proposal for a migration Convention.46 The pro-
posed Convention contained a simplified labour market test for employment
42 Art. 14. A clause in the preamble states that holders of residence permits “should”
be able to make an application for researcher status without leaving the territory.
43 Art. 15.
44 OJ 1996 C 274/3 and 7.
45 On the resolutions, see Peers, “Building Fortress Europe: the Development of EU
Migration Law” 35 CMLRev. (1998) 1235 at 1242-1251 and Guild and Niessen, The
Developing Immigration and Asylum Policies of the European Union: Adopted Con-
ventions, Resolutions, Recommendations, Decisions and Conclusions (Kluwer, 1996)
at 311-330 and 361-375.
46 COM (97) 387, 30 July 1997; OJ 1997 C 337/9. For comments, see Peers, “Raising
Minimum Standards or Racing to the Bottom? The Commission’s Proposed Migra-
tion Convention”, in Guild, ed., The Legal Framework and Social Consequences of
Free Movement of Persons in the European Union (Kluwer, 1999) 149 at 156-157 and
Hedemann-Robinson, “From Object to Subject? Non-EC Nationals and the Draft
670
admissions, permitting entry of persons where posts could not be filled “in the
short term” by EU citizens, legally resident third-country nationals in the “regu-
lar labour market” of a Member State, or “long-term residents” (presumably as
defined by the Convention). The only specific rules concerned seasonal work-
ers and trans-frontier workers, while trainees were addressed in the “students”
chapter of the Convention and au pairs in the chapter on “others”. To obtain
admission for self-employment, applicants would have to show that their activity
would have a beneficial effect on employment in that Member State. Switching
between categories would be highly restricted and in principle all applications
would have to be submitted while the applicant was outside the territory of the
EU. It was not clear whether Member States would be permittted to provide for
more favourable treatment for migrants than that set out in the Convention, or
rather whether the Convention would set out fully harmonised rules.
In its response to the proposed Convention, the EP suggested deletion of
the strict rules requiring applications from outside the EU and limiting switch-
ing between categories. The labour migration rules would be amended by per-
mitting Member States to establish quotas or “other measures” instead of a
labour market test, and requring the Commission to set up a Europe-wide moni-
toring system on admissions for employment. Applicants would have to show
only the offer of a work contract 47 As for the Council, various Member States
objected to many points of detail in the proposal, in particular the merger of
work and residence permits, the proposed conditions for admission, the restric-
tions on renewal of permits, the lack of possible exemptions and the length of
the admission permit. Some thought that the rules on self-employment in the
draft Convention were too rigid, although others thought a proposed two-year
entry permit was too generous.48
2.2 Legislative History

2.2.1 General Rules
The proposed Directive was discussed at three meetings of the migration work-
ing party over the spring and summer of 2002, after which discussions stopped,
perhaps because the conclusions of the Seville European Council in June 2002
did not set a deadline to agree the text. Neither did the conclusions of the Thes-
saloniki European Council a year later.49 At the initial meeting to discuss the
proposal in March 2002,50 several Member States expressed misgivings over the
Proposal of the Commission for a Council Act Establishing the Rules for Admission
of Third-Country Nationals to the Member States” 18 YEL (1998) 289 at 308-311.
47 OJ 1999 C 150/187.
48 Council doc. 6488/98, 8 Apr. 1998.
49 See Annex 5.
50 See Council doc. 7557/02, 10 June 2002 (outcome of proceedings of migration
working party, 21 March 2002).
671
legal basis of the proposal, suggesting that Article 63(3)(a) does not extend to
competence over labour migration. The Council legal service was asked to give
its view on this matter.51 A number of Member States indicated that other min-
istries besides interior ministries had to be involved in the discussions on the
proposal, and expressed doubts about merging the decision-making regarding
work and residence permits.
The same meeting first discussed Articles 1-4 of the proposal in detail, and
the minutes record Member States’ doubts about the connection between deci-
sions on migration for employment and self-employment and the issue of visas
to the persons concerned. Some of the definitions in Article 2 were questioned,
in particular because some Member States wished to retain a distinction between
work and residence permits and the distinction between students and trainees
was unclear. There was some discussion of whether, instead of permitting “more
favourable” rules for certain categories of persons in Article 3(4), the Directive
should permit “more specific” rules--meaning that the groups listed could be
worse off under national legislation. Some Member States wanted to make this
list non-exhaustive. Taken together, those two amendments would render the
Directive virtually meaningless, as Member States would be free to apply better
or worse treatment to any category of workers. Other Member States wanted
to add a category of “highly qualified workers” and widen the exception for
“journalists”. As for Article 4, several Member States wanted the Directive to
state explicitly that there was no obligation to issue permits to persons if the
criteria were met, and four Member States objected to a merger between work
and residence permits.
Subsequently, the “core” Articles 5-10 were discussed at working party
meetings in April and June 2002.52 Member States made detailed objections
about nearly every provision. First, some Member States objected to the idea
that only employees could make applications. Second, one or more Member
States wanted exceptions in limited circumstances from the obligation to hold
a residence permit in order to undertake employment. Third, some Member
States objected to the possibility to submit an application while in-country.
As to the conditions of employment, some Member States wanted more
conditions added before a permit could be granted (accommodation, require-
ment of integration or commitment of employer to pay expenses). On the other
hand, one Member State wanted the possibility to offer admission without a
specific job offer already received; at least one Member State wanted to make
the “good conduct” condition mandatory; and others wanted to impose crimi-
nal record and “public order” requirements as regards the application. All of
the core labour market conditions for admission for employment and the pos-
51 See further s. 3 below.

52 Council doc. 9862/02, 8 July 2002 (outcome of proceedings of migration working
party, 16 April and 10 June 2002).
672
sible exceptions to them set out in Article 6 were controversial, with the appar-
ent exception of the prospect of simplifying admission for those offered a job
paying above an income threshold in Article 6(4).
There were also differing views about the status of workers and the self-
employed after admission. Member States disagreed on the prospect of impos-
ing a maximum three year validity on the first residence permit, including the
obligation to submit an application for renewal three months or more before
expiry of the existing permit. At least one Member State had reservations about
exempting persons holding a permit for over three years from renewed checks.
A majority wanted a more flexible approach to the obligation to restrict workers
initially to specified professional fields or fields of activities; this would entail
simplification of checks on changes in employment during the first three years.
Finally, as might be expected, Article 10(3) concerning the position following
unemployment was highly controversial, with several delegations wanting the
deletion of this provision or major changes to it.
The Directive was discussed again in July 2003, and then not discussed
again until a Council working party meeting of October 2003, which concluded
the first reading of the proposal.53 It emerged from further discussions that many
Member States had objections to the proposed rules on the rights of third-coun-
try nationals set out in Article 11. Objections were also raised to the proposed
rules on all the special categories of workers in the Directive, except for the rules
on youth exchange schemes/au pairs.
As for self-employment, some Member States questioned the Community’s
competence on this issue and the need for Community rules on admission of the
self-employed. Other objections concerned separate work and residence permits
for this category of persons, the issue of retaining separate rules on the initial
entry of the self-employed, and the question of the extent of Member States’
discretion in deciding on admission. There were also objections to the text on
procedures for obtaining a residence permit for self-employment, including the
question of whether persons present on a tourist visa could apply for one, and
to some items on the detailed list of documents which an applicant would have
to provide. Several Member States also had concerns about the proposed sub-
stantive criteria which would apply to applications for self-employment. It was
assumed that Member States had reservations on the general rules concerning
self-employment (rules on issue, limitations upon and removal of a residence
permit, and rules on equal treatment) which matched their reservations about
the general rules on admission for employment.
Next, Member States had reservations about most of the horizontal provi-
sions, with objections to the proposed text regarding fees, Member States’ right
to set quotas, and the limitation of the “public policy or public security” limita-
53 Council doc. 13954/03, 25 Nov. 2003 (outcome of proceedings of migration work-

ing party, 22 Oct. 2003).
673
tion to the “personal conduct” of the individual concerned. Some Member States
even objected to the need for a “public policy” et al restriction, on grounds that,
in their view, there was no need for such criteria because the proposal would not
create a right of immigration. However, there were no objections to the “public
employment” and “official authority” exception.
There were objections to most of the remaining substantive provisions, in
particular those concerning procedural rights and transparency, on the grounds
that these rules would create an undue burden for national administrations and
were redundant in light of the lack of “rights” for the individuals concerned.
The Council working party was able to reach some limited agreement on the
final provisions, agreeing to move the “non-discrimination” clause to the pre-
amble, to delete the “penalties” clause and to set a date for implementation of
two years after the Directive’s adoption.
The “state of play” as regards discussions on the Directive was mentioned
at the JHA Council at end November 2003, and this was the final time that the
Council made any effort to discuss the Directive before its withdrawal by the
Commission. It appears from Member States’ reactions during the first reading
of the Directive in the Council that it would be very difficult to agree this pro-
posal, despite the Commission’s apparent tactic of trying to overcome opposi-
tion to the detail by suggesting a general “escape” clause. There seemed to be a
general unwillingness (seen also in other immigration and asylum discussions at
EU level) to change current national law and practice in any way, with Member
States wanting so much flexibility on top of the flexible approach already sug-
gested by the Commission that little or no common minimum rules would be left
if Member States had their way.
As for the European Parliament, it adopted a resolution on the proposed
Directive in Feburary 2003, suggesting considerable liberalisation.54 Corporate
transferees would need only to have been employed for six months before the
transfer; the definition of “trainees” would have been clarified so that the link
with employment would have been clearer; the list of possible special rules autho-
rised by Article 3(4) would have been widened and rendered non-exhaustive;
six-month permits to seek employment would have been issued; the conditions
concerning work contracts and certificates of good conduct would have been
clarified; Member States could only have required a job to be advertised for three
weeks, not four, before the labour market test would have been deemed satisfied;
an employer would have been exempt from further labour market testing if the
third-country national employee left the job within a year; and it would poten-
tially have been mandatory to consult the social partners in individual cases.
After employment, the restriction on employment to a particular region would
have been dropped and other restrictions would have been dropped on the first
renewal of the permit. There would have been simplified approval for a person
54 Plenary vote following Terron i Cusi report (A5-0010/2003).
674
taking a new job in the same field, and Member States would not have been able
to withdraw a permit where a person was receiving unemployment benefit. The
EP also suggested equal treatment as regards education and study grants, social
assistance for housing and access to legal aid, and proposed family reunion for
persons covered by the Directive. As for the special categories of workers, the
EP wanted corporate transferees to have the right to move to all Member States
and advocated a new special category of employees of contractual service pro-
viders (presumably from outside the EU). Finally, the EP suggested changes to
the horizontal provisions, including limitation of the costs which Member States
can charge, the ability for Member States to provide for more favourable rules
and an obligation to respond to applications within three months. However, the
improvement in status for working three years within the last five years would
have been tightened so that it would only apply following three years’ work in
the last six years.
2.2.2 Researchers
The Council made a number of changes to the Commission’s proposal as a result
of intensive negotiations in the Council’s migration working group throughout
2004. The definitions in Article 2 of the Directive were amended so that a “resi-
dence permit” is defined as any permit issued by a Member State designating the
holder as a “researcher”, not just permits issued “under this Directive”. The def-
inition of “researcher” was made more flexible, and the definition of “research
organisation” no longer refers explicitly to a “private firm”, but only a “private
organisation”, leaving open the question of whether a “firm” could be consid-
ered an “organisation”. As for the scope of the Directive, the Council specified
that it only applied to persons applying for admission to carry out a research
project,55 and dropped a proviso that Member States could choose to apply the
Directive to persons requesting permission to enter and teach at a “higher edu-
cation establishment” as defined in national law.56 Instead, a clause in the pre-
amble states that Member States may choose to apply “similar” rules to persons
who apply to carry out such teaching “in the context of a research project”.
As for the special procedure for admission, the Council granted more flexi-
blity to Member States.57 First of all, it simplified the proposed rules on autho-
rization of the institutions and publication of the list of approved institutions.
Next, it allowed more control over authorization of research institutions: the
Commission had proposed proposed an unlimited period of authorization for
public institutions, and a five-year minimum period of authorization for pri-
vate firms, without any possibility of “exceptional” approval for a more lim-
55 Art. 3(1).
56 Art. 3(2) of the proposal.
57 Art. 5.
675
ited period. The rules on responsibility for costs of an illegal researcher were
simplified; these rules and the rule on proof that the research was carried out
became optional, rather than mandatory. Also, the threshold for Member States
to remove approval for a research institution was raised and the possibility of a
five-year ban before reapplication became optional, rather than mandatory. The
provision on research agreements was amended so that the institutions will not
be required to issue a statement to the researcher that it assumes responsibility
for his or her health, residence and return costs; there is rather only an option
for Member States to require issuing a statement in respect of the costs of stay
and return if the researcher resides illegally.58
The admission conditions were amended by the Council to refer to a require-
ment to hold a travel document as defined in national law, rather than a valid
passport or travel document.59 Also, the Council added the proviso that Member
States may require the travel document to have longer validity than the research
period. The Council dropped the requirement of a condition to show proof of
funding and a certified copy of the researchers’ degree, but it added instead the
option for Member States to check the basis of the hosting agreement. On the
issue of renewal, the original proposal had provided for annual renewal of the
permit, but the agreed text still provides for a renewal obligation.60 The provision
on family members is entirely new.61 As for withdrawal or non-renewal of resi-
dence permits,62 the Council dropped the proposed requirement for mandatory
withdrawal of the permit in cases of fraud;63 this matches an amendment made
to Directive 2004/114 on admission of students and others.64 Also, the Council
removed a reference to withdrawal or non-renewal on grounds of public health,
as well as a limitation which the Commission proposed upon the application of
the public policy and public security exception.
A number of changes were also made to Chapter III, on researchers’ rights.
Article 10 of the Commission’s proposal, concerning the right for researchers
to enter and reside on the territory and carry out the research agreement, along
with the facility to obtain entry visas, was deleted, but it appears that Articles
6(3) and the last part of Article 14(2), both added by the Council, cover the same
ground, except for the lack of an explicit right to carry out the research agree-
ment. Article 11 initially provided that researchers admitted under the Direc-
tive may teach in “higher education establishments” as defined by national law
58 Art. 6.
59 Art. 7.
60 Art. 8.
61 Art. 9.
62 Art. 10.
63 Art. 9 of the Commission proposal.
64 See Ch. 22.
676
or practice; the text agreed by the Council states instead that researchers “may
teach”, and the Council dropped the apparent obligation for Member States
to set a maximum number of teaching hours per year. The equal treatment
clause was amended to cover “tax benefits” (instead of “tax concessions”) and
to “social security” by reference to EC legislation (rather than “social insurance”
as defined by national law).65 As for the right to mobility of researchers between
Member States, Article 13 of the proposal was revised to provide more clearly
for a distinction between moves for less than and more than three months, with
the waiver of any obligation to sign a new hosting agreement if the stay is less
than three months, and to permit Member States to impose visa or residence
permit requirements.
As with other EC immigration and asylum legislation, the procedural safe-
guards were significantly weakened. The Commission had proposed that an
application could be submitted while the researcher was lawfully present in a
Member State,66 and had suggested a deadline of 30 days for deciding on appli-
cations (with exceptional extensions possible), with reasons given for negative
decisions and the right to appeal to the courts against them.67 All these pro-
visions were dropped by the Council, as were a provision limiting fees to the
administrative costs involved and a detailed proposed provision on transparency
requirements.68
Finally, two clauses were added to the final provisions, concerning a delayed
obligation to issue residence permits to the persons concerned, and the status of
Ireland.69
In April 2005, the plenary EP adopted a resolution giving its opinion on the
proposed Directive, although the Council subsequently changed the text only to
add one clause to the preamble (point 7), which in fact concerns researchers who
are EU citizens.
3 Legal Analysis
It is not known what view the Council legal service took of the EC’s competence
to adopt the 2001 proposal for a general Directive on economic migration. But
for the reasons set out elsewhere in this book, it is arguable that Article 137 EC
governs access to employment for third-country nationals, while Article 63(3)(a)
EC governs their access to self-employment and the rules related to the entry and
65 Art. 12.
68 Arts. 16 and 17 of the Commission’s proposal. Both issues are addressed in the
preamble, although there is no reference there to the idea of a limit on fees.
69 Arts. 18 and 19 of the agreed text.
677
residence of both groups.70 But if Article 137 does not govern the issue of access
to employment for third-country nationals, it is clear that Article 63(3)(a) would
do so in their first Member State of residence. This conclusion is based on a wide
interpretation of the concept of “conditions” of entry and residence which the
Community has power to regulate pursuant to Article 63(3)(a), in the absence of
any express limitation on the scope of that power. Logically the “conditions” of
entry and residence also comprise the grounds on which persons are permitted
to stay and reside. These cannot merely be negative conditions because Article
61 refers expressly to the Community objective of “safeguarding the rights” of
third-country nationals. Furthermore, the broad objective of Title IV is to grant
the EC powers to regulate the “entry and movement” of third-country nationals,
according to Article 3(1) EC. There is nothing in this objective to prevent the EC
from regulating labour migration.71 For that matter, the posting of third-country
national managers of an EC company to another Member State arguably falls
within the scope of Article 44 EC.72
A second legal issue is the cross-over between the status of paid trainees in
the 2001 proposal and unpaid trainees in the parallel proposal (since adopted)
on the status of students and others. This issue was eventually addressed by
excluding persons admitted for employment from the Directive on students and
others, but if negotiations on the issue of admission for employment resume, the
Council will have to be careful to consider the possible overlap between the two
measures.73
4. Comments
4.1 General Rules
Despite many positive elements to the 2001 proposal, there were a number of
potential conflicts with international treaties on labour migration and a number
of further potential issues, including compatibility with the “Tampere princi-
ples” of EU immigration and asylum law.74
4.1.1 Compatibility with Human Rights and other International Rules

Certainly in the narrow sense, the 2001 proposal was compatible with interna-
tional rules, because Article 3(1) preserved the effect of international treaties
70 See Ch. 3. This is similar to the distinction between Reg. 1612/68, n. 10 above, and
Dir. 68/360 (OJ 1968 L 257/13) as regards EC national workers and their family
members.
71 For further comments on the scope of Art. 63(3)(a), see Ch. 3.
72 See Ch. 4.
74 For the Tampere principles, see Annex 4. The following analysis is in part adapted
from comments prepared as a contribution to ILPA’s comments on the Directive.
See: <www.ilpa.org.uk>.
678
concluded by the EC, the Member States or both, if those treaties were more
favourable. However, a number of provisions in those treaties were not found in
the proposed Directive. This is troubling because, in the case of certain Council
of Europe treaties (the European Social Charter, the European Convention on
Migrant Workers and the European Convention on Establishment), Member
States would thus have been applying a preferential standard for nationals of
European states, thus perpetuating a distinction on the labour force between
various groups of third-country employees. In the case of obligations that
Member States must secure for all persons as a result of the European Conven-
tion on Human Rights (ECHR), International Labour Organisation (ILO) Con-
ventions, and UN Covenants, the Directive would have had to be in accordance
with such obligations as a result of Article 6(2) of the EU Treaty (for the ECHR)
and the general principles of EC law (which are inspired by all international
human rights treaties on which Member States have collaborated, as the Court
of Justice has repeatedly made clear). Also, in these cases, including lower stan-
dards in this Directive could have discouraged Member States from ratifying or
fully applying such measures.
Certain provisions of the proposed Directive did adequately implement
international obligations. However, other international rules were omitted,
and in some cases, the Directive clearly set a lower standard than international
instruments dealing with the same topic.75
Article 7 of the proposal provided for unspecified periods for renewal of the
permit. However, Article 8(3) of the European Convention on Migrant Workers
(ECMW) specifies that permits must be renewable for at least a one-year period.
Article 8 of the proposal allowed for limited occupational and geographic mobil-
ity for up to three years. On the former point, Article 14a of ILO Convention
143 requires equal treatment after two years, or the conclusion of the first work
contract, if that period is shorter. On the latter point, Article 8(2) of the ECMW
prohibits restrictions on a worker’s locality for more than one year.
Article 10(3)(a) of the proposed Directive allowed workers to be limited to
a three-month period of stay if they become unemployed during their first two
years. However, Article 9(4) ECMW requires states to permit workers to stay for
a five-month period, if they are unemployed due to illness or accident, or invol-
untarily unemployed. Moreover, Article 19(8) of the European Social Charter
(ESC) and Article 3(1) of the European Convention on Establishment (ECE)
prohibit any expulsion except for national security, public policy or public moral-
ity. Article 8(1) of ILO Convention 143 specifies that termination of a contract
does not necessarily mean that a worker is in an irregular situation.
75 For a detailed examination of these instruments, see Cholewinski, Migrant Workers

in International Human Rights Law (OUP, 1997). The following analysis leaves aside
the UN Convention on the Rights of Migrant Workers (in force 2003), because it
has not been signed or ratified by any Member State.
679
Article 11 of the proposal did not include the rights to equal treatment as
regards help and assistance from the employment services. This right is set out
in Articles 10(2) and 27 ECMW. Article 19(1) ESC requires free assistance for
migrant workers from the employment services. Nor did Article 11 include an
obligation as regards teaching the language of the host state, as found in Article
14(2) ECMW and Article 19(11) of the revised ESC. Article 11 was also miss-
ing a provision requiring transfer of earnings and savings of migrant workers,
found in Article 17 ECMW, Article 10(9) ESC and Article 9 ILO Convention
97. There was no provision on equality in taxation, despite Article 19(5) of the
ESC, Article 23 ECMW, Article 6(1)(c) ILO Convention 97 and Article 21(1)
ECE. There was no provision on equal access to the courts, as found in Article
26 ECMW and Articles 7 and 8 ECE (including legal aid).
Article 11(1)(d) did not refer to free movement within the Member State of
residence, as provided for in Article 12(1) of the International Covenant on Civil
and Political Rights (ICCPR) and the Fourth Protocol to the ECHR. Article
11(1)(f)(i) on equal treatment in working conditions, pay and dismissal, con-
formed to Article 16(1) ECMW, Article 19(4)(a) ESC, Article 6(1)(a)(i) of ILO
Convention 97 and Article 17(1) ECE. However, there was no provision equiva-
lent to Article 16(2) ECMW, preventing derogation by contract. Nor was there a
provision applying equal treatment as regards occupational diseases and indus-
trial accidents, or occupational rehabilitation (Article 20 ECMW) or as regards
inspection of working conditions (Article 21 ECMW). While the inclusion of
dismissal conformed to Article 24(2) ECMW, there was no reference to equality
as regard expiry of contracts, as required by Article 24(1) ECMW.
Article 11(1)(f)(ii) only included equality rights as regards “vocational
training” connected to the residence permit. However, Article 14(1) ECMW
requires equal treatment as regards general education and retraining, along with
the admission requirements to higher education (although Article 14(3) ECMW
apparently leaves equal treatment as regards scholarships to higher education to
the discretion of Member States). Similarly, Article 13 of the International Cov-
enant on Economic, Social and Cultural Rights (ICESR) recognises a right to
education, and Article 3(1)(e) of the UNESCO Convention on Discrimination
in Education bans discrimination in access to education as regards resident for-
eign nationals, although Article 3(1)(c) appears to accept inequality as regards
scholarships. There is no time limitation on these wider rights, unlike the limit
proposed in Article 11(2). Article 11(1)(f)(iii), on qualifications, conformed to
Article 15 ECE.
Article 11(1)(f)(iv), on social security and health care, conformed to Article
12(4) ESC as regards equality of treatment in social security, but not as regards
aggregation of benefits. It also conformed to Article 1 of the First Protocol to the
ECHR, in conjunction with Article 14, and the right to social security in Article
9 of the ICESR. However, it was questionable whether Article 11(3) complied
with those obligations, as it appeared to be a derogation from the equal treat-
680
ment principle. There was no right to equal treatment as regards social assis-
tance, unlike Article 13(4) ESC and Article 1 of the European Convention on
Social and Medical Assistance.
Article 11(1)(f)(v) only included equality rights as regards “public hous-
ing”. However, Article 13(1) ECMW requires equal treatment as regards “hous-
ing and rents”. Article 19(4)(c) ESC and Article 6(1)(a)(iii) ILO Convention 97
require equal treatment as regards accommodation. Article 11(1) ICESR grants
a right to housing. None of these three instruments allow for any temporal limi-
tation, as would have been permitted by Article 11(2) of the proposal, and all
three instruments have a wider scope, covering private housing to the extent
regulated by the authorities. Moreover, Article 12(2) to (4) ECMW places obli-
gations on states as regards fitness of accommodation, suitability of housing,
and protection from exploitation in respect of rents.
Article 11(1)(f)(vi) conformed to Article 19(4)(b) ESC, Article 6(1)(a)(ii)
ILO Convention 97, Article 28 ECMW, Article 22 ICCPR and Article 8
ICESCR. However, it did not extend to the “participation” equality right found
in Article 29 ECMW.
Article 25 of the Directive allowed for a charge that “may” be limited to
the costs involved. However, Article 18(2) ESC requires the reduction or aboli-
tion of existing dues and charges placed upon workers and employers. Similarly,
Article 21(2) ECE and Articles 4(3) and 9(2) ECMW require that the charge
should be no greater than the administrative costs of processing.
Article 29(4) conformed to the standards set by Article 9(5) ECMW, as
regards appeal rights against withdrawal of a permit. However, there was no pro-
vision in the Directive allowing appeals against breaches of the equality rights
in the Directive. To the extent that such rights implement the ECHR, this would
have been a breach of Article 13 ECHR, requiring effective remedies to secure
the rights in the ECHR. More generally, it would have been a breach of the
“effective remedies” principle of EC law, which requires Member States to allow
for proceedings to enforce any right provided for in EC law. This principle is now
set out in the EU Charter of Fundamental Rights. Also, Article 19(7) ESC and
Article 6(1)(d) ILO Convention 97 require states to provide for access to a court
to enforce any of the employment rights set out in the relevant Articles.
Article 29 lacked a provision concerning expulsion, which might be ordered
pursuant to a separate proceeding following the withdrawal or non-renewal of
a permit. Article 13 ICCPR sets out procedural rights including the right to
submit reasons against the expulsion and the right to appear before a competent
authority. Similar provisions appear in Protocol 7 of the ECHR.
Article 31 did not go as far as Article 19(1) ESC, Article 3(1) ILO Conven-
tion 97 and Article 6(3) ECMW, which also require Member States to take steps
to prohibit misleading information. Also, Article 19(1) ESC, Article 2 ILO Con-
vention 97 and Article 6(1) ECMW require such information to be free.
681
4.1.2 Further Comments

Did the proposed Directive satisfy the principles in the Tampere conclusions,
which called for “fair treatment of third-country nationals”, including treat-
ment “comparable” to nationals of Member States? Of course, “comparable”
treatment does not always mean “identical” treatment. But there are already
substantially different rules that apply to the initial take-up of employment or
self-employment (and consequential entry and residence) by EU citizens as com-
pared to third-country nationals entering the EU, and there are also possible
later restrictions on employment or self-employment of third-country nation-
als for two years after entry suggested by the Directive. Any further differences
in treatment as regards labour market position or social advantages between
migrant citizens of the EU and third-country nationals legally migrating for
employment or self-employment into an EU Member State cannot be justified,
except possibly in the case of persons admitted as “special cases” set out in this
Directive. Such further differences in status should be rejected because they
could result in the development of a (or entrench an existing) “two-tier” labour
market, potentially leading to (or reinforcing) social exclusion, indirect racial,
religious and ethnic discrimination and greater tensions between lower-paid
immigrants and the native population. It follows that such further differences in
treatment would not be “fair” as required by the Tampere conclusions.
The obvious argument to the contrary is that some privileged status should
be maintained after that point for EU citizens, in order to protect the domestic
workforce. But the possibility of imposing a labour-market test on the initial
admission of third-country nationals, coupled with an initial limitation of activ-
ity, would already have been sufficient to ensure that third-country nationals will
only be admitted where there is no sufficiently accessible domestic labour supply.
Where unemployment is high and rising, fewer new jobs will become available in
any event, and the potential of supplying that lower demand from the domestic
workforce will be higher given the larger pool of unemployed nationals. Many
third-country nationals will also have difficulties competing equally for employ-
ment in any event for practical reasons, such as differences in qualifications
(resulting in difficulties ensuring recognition of those qualifications in law or
practice) and possibly limited fluency in the host Member State’s language(s).
So continued legal inequality between EU citizens and third-country nation-
als would go beyond what is necessary to ensure priority for the EU national
workforce. In fact, continued restrictions on third-country nationals might have
the opposite effect to that intended: if third-country nationals lack equal status
on the labour market, equal protection against expulsion and equal status as
regards social advantages, it will inevitably be tempting for employers to use
them as a cheap source of labour in preference to domestic employees. Such a
development would lower the overall standard of social protection and so would
clearly be contrary to the objectives of EC social policy, as set out in Article 136
EC.
682
Did the proposed Directive satisfy these principles? Article 11 of the pro-
posal did require equal treatment between third-country national migrants and
EU nationals in some circumstances. This would have been a useful contribution
to ensuring equality between third-country nationals and EU citizens, and the
provision would clearly have conferred directly effective rights.76 However, there
were several issues where the treatment of third-country nationals is not “com-
parable” with EU citizens. First of all, there were detailed substantive and pro-
cedural rules concerning expulsion and refusal of entry of EU citizens,77 which
would not fully have applied as such to third-country nationals covered by the
2001 proposal. Having said that, the proposal would have applied some of the
substantive rules derived from EC free movement law (the “personal conduct”
test and the restriction of application of the public health exception to pre-exist-
ing illness or disability), and the general principles of EC law could have required
application of some or all of the procedural protections against expulsion guar-
anteed by EC law.78 Secondly, the 2001 proposal would not expressly have per-
mitted third-country nationals who were formerly employed or self-employed in
a Member State to stay there as long as they are looking for employment and
could show there is a reasonable prospect of finding it, if they are relying on
their own assets or an entitlement to social benefits which they have qualified
for in the host Member State (at least until the expiry of their residence permit),
although the provisions on this issue in Articles 10(3) and 23(3) of the proposal
would nonetheless have offered a degree of useful protection to third-country
nationals in this situation. Finally, Article 11 of this proposal did not go as far
as Regulation 1612/68, which ensures equal treatment as regards social and tax
advantages, housing and trade union rights for EC national workers and their
family members.79
As for definitions set out in the proposed Directive, it would certainly have
been useful, as proposed by the Commission, to combine residence permits
with work or self-employment permits (Article 2(d) and (e)). A single document
would have streamlined costs and procedures for employers, employees and the
public authorities. The scope of the proposed Directive was unclear in one area
in particular: the exclusion for persons involved in short-term activities linked
76 The same could have been said of Article 24 of the proposal.

77 The rules for EU citizens currently appear in Dir. 64/221 (OJ Spec. Ed. 1964, 850/64,
p. 117), and will be consolidated from April 2006 in Arts. 27-33 of Directive 2004/38
(n. 11 above).
78 Although the 2001 proposal only set out criteria governing revocation, et al, of the
residence permit, rather than expulsion as such, the two issues are logically insepa-
rable, as the expulsion of a person with a valid residence permit would have frus-
trated the effet utile of the Directive and circumvented the criteria set out in the
Directive restricting the revocation of residence permits.
79 See now Art. 24 of Directive 2004/38 (n. 11 above).
683
with the supply or goods or services (Article 3(2)). It would in particular have
been unclear when this Directive would have applied to persons governed by the
General Agreement on Trade in Services (GATS) commitments of the Com-
munity and the Member States. It might be opportune to consider this point in
future in light of the EC’s offer to expand its GATS commitments in the current
round of world trade discussions.
It would have been useful that the Directive would have allowed Member
States to adopt more favourable rules for distinct categories of persons (Arti-
cle 3(4)), but it would have been better if this clause were widened to permit
Member States to apply more favourable rules for any category of workers and
self-employed persons, to avoid lowering existing national standards or unneces-
sarily restraining Member States from developing higher standards in future. In
the same vein, there would have been a strong case for a standstill provision to
prevent more favourable existing national law from being lowered to the mini-
mum standards set out in the Directive, in order to safeguard the rights of those
who already enjoy higher standards.
Moving on to the general rules on paid employment, the extent of exami-
nation of entry applications by Member States’ consular offices is crucial to the
practical application of any system of labour market migration. So it would have
been useful to clarify that consular offices can only investigate the background
to applications to the extent strictly necessary. Having said that, the proposal to
allow third-country nationals to submit the application in the Member State in
which they are already legally present or resident was eminently sensible, as it
would have prevented a pointless return to the country of origin.
As for the labour market test, the term “acceptable application” was
extremely vague and subjective. There was no clear indication when an “accept-
able” job application would have been deemed to have been received. For exam-
ple, there could be numerous job applications for a particular post which are
acceptable on the face of it, but it might turn out following job interviews that
the candidates are not really suitable for the job after all.
The next point particularly worth mentioning is the absence of skill thresh-
olds in the labour market test. Whenever there is a demand for lesser skilled and
unskilled labour from third-countries, it is unrealistic to attempt to prevent such
migration from happening at all, as this will only lead to additional irregular
migration and unauthorised employment, leaving employees without adequate
social protection and creating unfair competition for legally employed workers.
An avenue for legal recruitment for both skilled and unskilled migrant labour is
therefore essential.
Finally, the idea of restricting residence permits to specific professional
activities, fields of activities or even regions is simply not in keeping with the
flexibility required of modern economies and touted by the EU as an essential
factor in the EU’s plans (since modified) to create the world’s most competitive
economy. Employees’ skills may be transferable across a range of different sec-
684
tors, and it is illogical to prevent companies from hiring the best person for the
job because he or she is restricted to working in a particular region, as the result
may be that the company has to look for an employee who is outside the EU.
As for the provisions on self-employment, again the possibility of making
applications “in-country”, the exemption from demonstrating economic benefit
for those who have held a self-employed residence permit for three years and the
flexibility for businesses suffering “temporary commercial difficulties” were all
eminently sensible. On the other hand, again the possibility for a Member State
to restrict self employment to specific activities or fields of activities and indeed
to specific regions seems even more archaic in light of modern business practice.
The regional restrictions would often be logically impossible to apply in any
meaningful sense to information technology specialists, or to any person who
can use information technology to carry out most or all of his or her activities.
Finally, as for the horizontal provisions, Article 26 of the proposal was obvi-
ously designed to reassure Member States that the Directive would not prevent
them from limiting the numbers of third-country nationals entering the country.
Any perceived “swamping” or “flood” could therefore have been stopped by per-
mitting Member States to impose quotas or stop issuing permits altogether. It
seems from the wording of Article 26 that such decisions could have been made
on the basis of the Member State’s political willingness to take foreign nation-
als. Legally speaking, Article 26 was vague as to how any quota could be applied
and how this should reflect the other provisions in the Directive, for example,
as regards ranking of categories of migrants. But the underlying problem was
that decisions on quotas could be driven by political and not economic con-
siderations. Thus, racial unrest resulting from action by far-right wing groups
against third-country national communities, even in certain regions, could have
led a Member State to invoke Article 26. The far right would thus have had a
licence to attempt to take control of the immigration agenda. Logically, for the
reasons set out above, there is no need for rules restricting entry of third-country
nationals above and beyond the labour market and economic benefits tests set
out elsewhere in the Directive. If there must be a residual power to invoke quotas
simply in order to gain political agreement on a future proposal (and now in
light of the reservation of competence on this issue to Member States by the
proposed Constitutional Treaty, if it is ratified), Member States should only be
able to invoke that power on economic grounds, for example following serious
labour market problems or a specified rise in unemployment.
As for the future, it is paradoxical that a fundamentally economic Com-
munity should have no directive on economic migration. At the very least, the
EC should use its powers to regulate the social and legal rights of economic
migrants, to ensure that the migrant labour force is not exploited; this will
reduce unfair competition between Member States’ industries as well as assist
in securing decent living and working conditions for migrant workers and native
workers alike – contributing to two key objectives of the Community. Further-
685
more, as long as there are jobs available that the local labour force cannot or is
unwilling to do, the absence of legislation in this area leaves open the attraction
of irregular entry and stay, which could be reduced by enlarging the avenue of
legal entry.
4.2 Researchers
It is evident that the Commission’s proposal was a considered attempt to ensure
that Member States actually direct their immigration systems toward securing
admission of a category of migrants whose admission would be in the economic
interests of the European Union. The adopted Directive would go some way
towards achieving this objective, particularly in light of the special procedure for
admission, the implied abolition of work permit requirements and quotas, the
provisions on family members, the rights to equal treatment, mobility and (argu-
ably) academic employment, the right to renewal of residence permits, and the
absence of any economic needs test. The provisions of Articles 7(3), 8, 9(1) (first
sentence), 11, 12, 13 and 15 are sufficiently clear, precise and unconditional to
confer directly effective rights, so the Directive inter alia provides a right of entry
and residence for researchers once the criteria for admission are met initially,
and a right of continued residence if the conditions for admission are still met.
However, with the weakening of the proposed procedural standards, in
particular the removal of the proposed provisions on speedy responses to appli-
cations and the right to submit in-country applications, there will remain a pros-
pect that delays in issuing long-term visas or residence permits could frustrate
the intention of the Directive. Furthermore, the absence of any provision grant-
ing a right to family reunion (or any status for family members after entry, such
as the right to work) could deter researchers from seeking entry, if the family
reunion rules are set at the lowest standard permitted by Directive 2003/86 or
if the Member State takes the view that the researchers, when they are initially
admitted, do not even meet the conditions for application of that Directive
at first, given its application only to persons with a “reasonable prospect” of
obtaining permanent residence.80 In that case, even lower national standards on
family reunion, perhaps even entailing a complete ban, could apply, although the
researchers’ Directive clearly at least precludes banning entry of family members
based solely on the time period of the researchers’ entry.
Of course, the question of applicability of the family reunion Direc-
tive depends in part upon application of the long-term residents’ Directive to
researchers.81 There is no provision in the researchers’ Directive on its relationship
with Directive 2003/109 on long-term residents. However, it can be assumed that
in the absence of any explicit derogation in either Directive that researchers will
80 See Ch. 19.

81 On the links between the family reunion Directive and the long-term residents
Directive, see Chs. 19 and 20.
686
ultimately be able to qualify for long-term residence status, particularly because

their residence permits under the researchers’ Directive are expressly renewable
as long as the conditions for their issue are still met, and therefore should not
be considered as “limited” permits taking them outside the scope of the long-
term residents’ Directive.82 Indeed, conversely, it will be possible for long-term
residents settled in one Member State to become researchers covered by this
Directive in another Member State; this could be appealing where the second
Member State is applying restrictions on movement of long-term residents per-
mitted by Directive 2003/109.83 Eventual long-term resident status for research-
ers would offer the added attraction of enhanced long-term movement between
Member States, expanded equality rights (except as regards social security in
the first Member State, where the researchers’ Directive is more beneficial),84
and the ability to switch status. For example, researchers might wish to take up
a relevant job in a university or private industry that falls outside the scope of
the “researcher” category defined by this Directive, or to establish a company
that makes use of their expertise. Also, as argued elsewhere, the acquisition or
prospect of long-term resident status would be sufficient to trigger application
of the family reunion Directive,85 and indeed it could be argued that the right to
a renewable permit under the researchers’ Directive offers researchers a strong
argument that they have a “reasonable prospect” of permanent residence, as
required for that Directive to apply, not long after their initial entry.
It is also worth considering the interaction between the researchers’ Direc-
tive and another set of EC law rules – the Association Agreement with Turkey.
Since the Directive is “without prejudice to more favourable provisions” of such
agreements,86 it should follow that the two sets of rules both apply to Turk-
ish workers, with the highest standard of protection applying in the event of
overlap. First of all, there seems little doubt that Turkish nationals admitted as
researchers pursuant to the researchers’ Directive are to be considered “work-
ers” under the EC-Turkey agreement, whenever they have an employment rela-
tionship with the research institution they sign a hosting agreement with, or

83 The Commission’s explanatory memorandum to the researchers’ Directive expressly
refers to this possibility. On the other hand, it is likely that long-term residents would
prefer to use the long-term residents’ Directive to move to another Member State
as a researcher if at all possible, since the 2003 Directive will generally give them
enhanced status, including family reunion rights, protection against expulsion and
equal treatment rights, superior to that set out in the researchers’ Directive.
84 The long-term residents’ Directive grants the right to equal treatment in social secu-
rity with nationals “as defined by national law”, not as defined by EC social security
legislation. See further ibid.
86 Art. 4(1) of the agreed text of the Directive.
687
with or another entity in a Member State,87 considering that Member States

cannot create special forms of workforce participation which exclude Turkish
workers from the protection of the EC-Turkey rules.88 It follows that in those
cases, a Turkish worker who is a researcher under the Directive will have the
right to continue working for his or her employer after one year, the right to
take up any work within the same occupation (presumably research work) after
three years, and the right to take up any work in the Member State concerned
after four years, with corollary rights to reside. The right to stay with the initial
employer after one year goes beyond the right to renewal of the residence permit
as a researcher under the Directive, since it is not dependent upon continuing to
work on a research project.
One important question relevant to the prospect of researchers attaining
long-term residence status is whether the right to renewal of a residence permit
applies even if the researcher’s initial research project has been completed, but
the researcher wishes to agree a new research project with the same research
institution or another research institution in the Member State concerned.
Article 7 of the Directive does not expressly indicate whether this is possible
or not. But the goals of the legislation would obviously be furthered by such
an interpretation, and such a possibility is expressly supported in the Commis-
sion’s explanatory memorandum to the proposed Directive. By the same token,
it should follow that persons already involved with a research project when the
Directive is applied by the Member States should be able to obtain renewal of
their previous permit in accordance with Article 7.
As to the more specific issues raised by the Directive, there are two issues
relating to its scope. First, it would have been better to make clear that private
companies can use the Directive to employ researchers, particularly given the
role of companies in applied research which contributes massively to the com-
petitiveness of the EU economy. However, despite the absence of express refer-
ence to private firms in the final Directive, it is arguable that national law might
provide for private firms to be considered to be private organisations for the
purpose of the Directive, to support or establish such private organisations indi-
rectly or possibly even to establish and/or fund a “public organisation”. Second,
the Directive (taken with the Directive on admission of students and others)
does not deal adequately with the situation of Ph.D. students who do extensive
87 See the explanatory memorandum to the Directive, which makes clear that the legal
nature of the relationship between the researcher and the research institution will
be governed by the hosting agreement; this may entail an employment relationship
or another type of relationship. On this point, see Art. 6(2)(d) of the agreed Direc-
tive.
88 See Case C-36/96 Günaydin [1997] ECR I-5143, Case C-98/96 Ertanir [1997] ECR
I-5179, Case C-188/00 Kurz [2002] ECR I-10691 and Opinion of 6 Sep. 2005 in Case
C-230/03 Sedef, pending.
688
research work as part of their doctoral studies. There is a risk that such students
will fall under neither Directive, with the result that a category of persons who
could potentially make a contribution to the EU economy and research base
would not be regulated by Community law, even though it would be desirable for
EC rules to facilitate the admission of such persons.
Article 5 of this Directive could be interpreted to mean that research insti-
tutions could be liable for the cost of an illegally resident researcher for a lengthy
period, particularly where expulsion of the researcher is impossible in practice.
Here, the EC law principle of proportionality is relevant; surely research institu-
tions could only be liable for the costs of stay and return where the expulsion of
the illegal resident can be carried out within a reasonable period. It could even
be argued that it would be disproportionate to make research institutions liable
for any such costs unless they have been negligent or there has been a causal link
between the action or inaction of the research institution and the illegal resi-
dence of the individual concerned. After all, research institutions cannot issue
or enforce expulsion orders. Any Member State which tries to enforce such a
liability rule enthusiastically may find its research institutions under such finan-
cial strain that the goal of increasing the number of researchers (even EU citizen
researchers) is jeopardised.
As for Member State’s withdrawal of approval of a research institution,
it is arguable that national authorities would need to show proof of fraud to
a criminal standard in relation to allegations of fraudulent approval or host-
ing arrangements; negligence regarding signing of research agreements should
have to be shown to a civil standard. The proportionality rule would also be
relevant to the consequences to innocent researchers who would be affected by
any cancellation of approval of research institutions. Since their status could
not really be considered illegal or irregular, as long as they had entered legally
in good faith, Member States should not be entitled to take criminal proceed-
ings against them or any persons who assisted their entry in good faith, or to list
such persons in the Schengen Information System. There would be an ethical,
and arguably a legal, obligation for a Member State to ensure that such innocent
researchers could complete their research project in another institute if possible.
After all, such an approach would best ensure that the Directive’s objective of
assisting the Member States’ need for legitimate researchers is met.
As for the clause on family members, it is hard to see when it would be “duly
justified” to limit the duration of residence of family members. In the absence
of a reference to national law, the concept should be considered a concept of
Community law. The obligation for due justification implies a duty to give objec-
tive reasons to the person concerned and since the potential limitation would
amount to an exception to a rule in the Directive, it should be interpreted nar-
rowly. In cases where the family reunion directive applies to admission of family
members of researchers, there will be a curious situation because the family
members will only be entitled under EC law to take up work as a researcher (if
689
the researcher has an employment contract), until the researcher gains long-
term residence rights.89 Obviously Member States will have to consider whether
insisting on such a limit on family members’ employment is likely to assist the
objective of recruiting more researchers.
As for the rights of researchers, the absence of a specific reference to a right
to carry out the research agreement (as proposed by the Commission) cannot
mean that no such right exists. Such a right exists implicitly; in its absence, the
Directive would have no practical effect, especially in light of the right to enter
and reside. It might also be questioned whether, in the agreed version of the
Directive, there is still a right for researchers to teach. Here it is arguable that the
reference to national law allows Member States to place reasonable and propor-
tionate limits on the right to teach, but a complete or nearly-complete ban on
teaching would violate the Directive. After all, the provision appears in a chapter
entitled “researcher’s rights”, so there is an implied limitation upon the discre-
tion conferred upon Member States. As a purely practical matter, it may not be
realistic for research institutions to sign non-EU citizens to research agreements
unless the researchers can take up some of the teaching load of the institution (if
the institution has students); and any deterrent to signing such agreements will
make the objectives of the Directive harder to achieve.
Finally, as in other EC immigration and asylum law measures, the weak pro-
cedural standards are objectionable in principle. But in light of the procedural
rights inherent in the general principles of EC law,90 Member States’ authorities
nevertheless have a duty to give reasons for negative decisions, and Member
States must allow challenges to such decisions in the courts.
89 See Art. 14(1)(b) of the family reunion Directive (OJ 2003 L 251/12).
90 On the use of the general principles of EC law to guarantee procedural rights rel-
evant to EC immigration and asylum law, see further Ch. 5.
690
Proposal for a
COUNCIL DIRECTIVE
on the conditions of entry and residence of third-country nationals for the pur-
pose of paid employment and self-employed economic activities
ticular Article 63 thereof,
Whereas:

rity and justice, Article 63(3) (a) of the Treaty provides that the Council
is to adopt measures on immigration policy relating to the conditions of
residence, and standards on procedures for the issue by Member States of
residence permits.
(2) The European Council, at its special meeting in Tampere on 15 and 16 Octo-
ber 1999, acknowledged the need for approximation of national legislation
on the conditions for admission and residence of third country nationals
and it requested to this end rapid decisions by the Council, on the basis of
proposals by the Commission.
(3) Regulation of immigration for the purpose of exercising employed or self-

employed economic activities is a cornerstone of immigration policy and
the development of a coherent Community immigration policy could not
succeed without specifically addressing this issue at Community level.
(4) All Member States have regulated access of third country nationals to
work with detailed national administrative rules and a successfully operat-
ing Community policy in this field should be put in place progressively. As
a first step it should be aimed at laying down certain common definitions,
criteria and procedures, which give a common legal frame to the discretion
of Member States.
(5) The newly established Community rules should be based on concepts, which
have already been successfully applied in Member States.
691
(6) In an increasingly global labour market and faced with “skills-gaps” in cer-
tain sectors of the European labour market the Community should rein-
force its competitiveness to recruit and attract third country workers, when
needed. This should be facilitated by administrative simplification and by
facilitating access to relevant information. Transparent and harmonised
rules on the conditions under which third country nationals may enter
and stay in the Community to pursue economic activities, and their rights,
should be laid down.
(7) Provision for a single national application procedure leading to one com-
bined title, encompassing both residence and work permit within one
administrative act, should contribute to simplifying and harmonising the
diverging rules currently applicable in Member States.
(8) The chief criterion for admitting third country nationals to activities as
an employed person should be fulfilment of a test demonstrating that a
post cannot be filled from within the domestic labour market. The chief
criterion for admitting third country nationals to self-employed economic
activities should be fulfilment of a test demonstrating an added value for
employment or the economic development of the host Member State.
(9) Several ways and options for demonstrating fulfilment of these tests in
the form of individual or horizontal assessments should provide a flexible
frame allowing all interested parties including Member States to react flex-
ibly to changing economic and demographic circumstances.
(10) Member States should be allowed to apply horizontal measures (such as

ceilings or quota) limiting the admission of third country nationals.
(11) Whenever Member States adopt national provisions as provided for by this
Directive, they should comply with certain procedural and transparency
requirements and in particular an obligation to notify to the Commission,
in order to allow for an exchange of views, further consideration and com-
plementary action within the context of an open co-ordination mechanism
on Community immigration policy.
(12) Member States should lay down rules on penalties applicable to infringe-
ments of the provisions of this Directive and ensure that they are imple-
mented. Those penalties must be effective, proportionate and dissuasive.
European Union.
692
(14) In accordance with the principles of subsidiarity and proportionality as set

out in Article 5 of the Treaty, the objectives of the proposed action, namely
the determination of a harmonised legal framework at Community level
concerning the conditions of entry and residence of third-country nationals
for the purpose of paid employment and self employed economic activities
and of the procedures for the issue by Member States of pertinent permits
cannot be sufficiently achieved by the Member States and can therefore, by
reason of the scale and effect of the action, be better achieved by the Com-
munity. This Directive confines itself to the minimum required to achieve
that objectives and does not go beyond what is necessary for that purpose.
CHAPTER I
GENERAL PROVISIONS
Article 1
The purpose of the Directive is:

(a) To determine the conditions of entry and residence of third-country nation-
als for the purpose of paid employment and self employed economic activi-
ties and
(b) To determine standards on procedures for the issue by Member States of
permits to third country nationals to enter and reside in its territory and to
exercise activities as employed or self employed person.
Article 2

Union within the meaning of Article 17(1) of the Treaty establishing the
European Community, including stateless persons;
(b) “activity as an employed person” means any remunerated economic activity
for and under the direction of another person;
(c) “activity as a self-employed person” means any remunerated economic
activity , which is not accomplished for and under the direction of another
person;
(d) “residence permit – worker” means a permit or authorisation issued by the
authorities of a Member State allowing a third-country national to enter
and reside in its territory and to exercise activities as an employed person;
(e) “residence permit – self employed person” means a permit or authorisa-
tion issued by the authorities of a Member State allowing a third-country
693
national to enter and reside in its territory and to exercise activities as a self
employed person;
(f) “seasonal workers” means third-country nationals who retain their legal
domicile in a third country but are employed in the territory of a Member
State in a sector of activity dependent on the passing of the seasons, under
a fixed-term contract for a specific job;
(g) “transfrontier workers” means third-country nationals resident in the fron-
tier zone of a neighbouring country who are employed in the frontier zone
of an adjacent Member State and who return to the frontier zone of the
neighbouring country each day or at least once a week;
(h) “intra-corporate transferees” means third-country nationals working
within a legal person and being temporarily transferred into the territory
of a Community Member State to either the principal place of business or
an establishment of that legal person. The natural person concerned must
have worked for the legal person concerned for at least the year immediately
preceding the transfer;
(i) “trainees” means third-country nationals whose presence in the territory of
a Member State is strictly limited in duration and closely connected with
increasing their skills and qualifications in their chosen profession before
returning to their own country to pursue their career.
Article 3
1. The provisions of this Directive shall apply to third-country nationals,

except where provisions that are more favourable apply under:
(a) bilateral or multilateral agreements concluded between the Commu-
nity, or the Community and its Member States, on the one hand, and
third countries on the other hand;
(b) bilateral or multilateral agreements concluded between one or more
Member States and third countries.
2. The provisions of this Directive shall not apply to the exercise of activi-
ties which are directly linked to the supply of goods or services from third
countries to the Community, as long as third country nationals carrying out
these activities do not stay for more than three months in the Community.
3. The provisions of this Directive shall not apply to:

(i) Third country nationals established within the Community who are
posted worker for the purpose of providing cross-border services or
who provide cross border services;
(ii) Third country nationals staying in a Member State as applicant for
asylum, under subsidiary forms of protection or under temporary pro-
tection schemes;
694
(iii) Third country nationals in an irregular situation whose deportation

has been suspended for factual or legal reasons.
(iv) Third country nationals who are family members of citizens of the
Union who have exercised their right to free movement within the EU.
(v) Third country nationals staying in a Member State under family reuni-
fication rules.
4. In the absence of more favourable provisions of Community law, Member

States may maintain or introduce more favourable provisions regarding:
(i) Researchers and academic specialists;
(ii) Priests and members of religious orders;
(iii) Sport professionals;
(vi) Artists;
(v) Journalists;
(vi) Representatives of non-profit making organisations.
CHAPTER II
ENTRY AND RESIDENCE FOR THE PURPOSE OF
PAID EMPLOYMENT
Section 1
General Rules
Article 4
1. Member States shall only authorise third country nationals to enter and reside
in a Member State for the purpose of exercising activities as an employed
person where a “residence permit – worker” has been issued by the compe-
tent authorities of that Member State in accordance with this Directive.
2. A “residence permit – worker” shall only be issued if, after verification

of the particulars and documents, it appears that the applicant fulfils the
requirements for obtaining a “residence permit – worker” in accordance
with Articles 5 and 6, unless a Member State makes use of the possibility to
impose limitations in accordance with Articles 26, 27 and 28.
3. When handling an application, the competent authorities shall comply with

the procedural safeguards provided for in Article 29.
Article 5
1. In order to obtain a “residence permit – worker”, a third country national

intending to exercise activities as an employed person in a Member State
695
shall apply to the competent authority of the Member State concerned.

The future employer of a third country national shall have the possibility to
submit an application on behalf of the third country national applicant.
2. Applications for a “residence permit – worker” shall be submitted via the

representation of a Member State competent for the state of legal residence
of the applicant or directly in its territory, if the applicant is already resi-
dent or legally present in the territory of the Member State concerned.
3. The application shall be accompanied by the following particulars and doc-

uments:
(a) name and address of the applicant and the employer;
(b) a valid work contract or a binding offer of work in the Member State
concerned, covering the term of the residence permit applied for;
(c) description of the envisaged activities as an employed person in the
Member State concerned;
(d) appropriate evidence of fulfilment of the requirement laid down in
Article 6(1) as provided for in paragraphs (2), (3), (4) and (5) of Article
6;
(e) if required by the Member State concerned a certificate or adequate
proof of good life and behaviour and a health certificate;
(f) valid travel documents and, if appropriate, evidence of valid residence
title;
(g) documents proving the skills which are necessary for the performance
of the envisaged activities and evidence of fulfilment of all the condi-
tions applicable to nationals of the Member State concerned for the
exercise of the employed activity in question;
(h) evidence that the applicant has sufficient resources to support him/her-
self and his/her family members to avoid becoming a burden on the
social assistance system of the host Member State for the duration of
their stay and to have sickness insurance covering all risks in the host
Member State. Those resources shall be deemed sufficient where they
are at, or above, the threshold below which the host Member State
may grant social assistance to its nationals. Where this criterion is not
applicable, the applicant’s resources shall be deemed sufficient where
they are no less than the amount of the minimum social security pen-
sion paid by the host Member State;
(i) proof of payment of the fee for handling the application.
4. Third-country nationals who have been legally resident in a Member State

and who have legally exercised activities there as an employed person for
more than three years over the preceding five years shall not be required to
provide evidence of fulfilment of the requirement laid down in Article 6(1)
696
when submitting an application for a “residence permit – worker” in that

Member State.
Article 6
1. When submitting an application in accordance with Article 5 it must be

demonstrated that a job vacancy in that Member State cannot be filled in
the short term either
(a) by citizens of the Union; or
(b) by third country nationals who are family members of citizens of the Union
who have exercised their right to free movement within the EU; or
(c) by third-country nationals already enjoying full access to the national
labour market concerned under the legal instruments referred to in Article
3 (1); or
(d) by third-country nationals already enjoying access to the national labour
market concerned under existing national legislation or under Community
legislation; or
(e) by third-country nationals who are legally resident in a Member State and
who are and have been legally exercising activities as an employed person in
that Member State for more than three years; or
(f) by third-country nationals who have been legally resident in that Member
State and who have legally exercised activities as an employed person in that
Member State for more than three years over the preceding five years.
2. The requirement laid down in paragraph 1 shall be deemed to be fulfilled

if a specific job vacancy has been made public via the employment services
of several Member States for a period of at least four weeks, (for example
and when appropriate by means of the European Employment Services
(EURES) network, established by Commission Decision 93/569/EEC,) and
no acceptable job application from persons listed in paragraph 1 or from
third country nationals who are citizens of countries with which acces-
sion negotiations have been started has been received. The published job
vacancy must contain realistic, reasonable and proportionate requirements
for the offered post. This shall be checked and scrutinised by competent
authorities when evaluating an application for a residence permit submitted
in accordance with Article 5.
3. Member States may adopt national provisions according to which the

requirement laid down in paragraph 1 is deemed to be fulfilled for a specific
number of jobs, in a specific sector, for a limited time-period and, – if appro-
priate, – in a specific region without the need for an individual assessment.
These national provisions shall lay down in detail the criteria according to
which applications for work permits shall be ranked when the number of
697
applications received outnumber the published number of jobs. Member

States shall consider in first place applications from citizens of countries
with which accession negotiations have been started.
requirement laid down in paragraph 1 is deemed to be fulfilled if the annual
income offered to a third country national exceeds a defined threshold.
requirement laid down in paragraph 1 is deemed to be fulfilled for a specific
third country national, if a defined amount of money has been paid by the
future employer of that person to the competent authorities. The money
received from the employer must be spent for measures promoting the inte-
gration of third country nationals or for vocational training purposes.
Article 7
1. A “residence permit – worker” shall be issued for a predefined period of

validity. The initial “residence permit – worker” granted shall be valid for
a period of up to three years to be determined in accordance with national
legislation. It shall be renewable for periods of up to three years, to be deter-
mined in accordance with national legislation, on application by the holder
preferably at least three months before the expiry date and after consider-
ation by the competent authority of a file containing updated information
on the items referred to in Article 5(3)(a) to (i) and in particular detailed
information on the activities exercised as an employed person.
2. Applicants for renewal who have been holding a “residence permit –

worker” in the Member State concerned for more than three years shall not
be required to provide evidence of fulfilment of the requirement laid down
in Article 6 (1).
Article 8
A “residence permit – worker” shall initially be restricted to the exercise of spe-

cific professional activities or fields of activities. It may also be restricted to the
exercise of activities as an employed person in a specific region. After three years
it shall not be subject to these restrictions.
Article 9
1. After a “residence permit – worker” has been issued, its holder must notify
any changes to the information provided in accordance with Article 5 to the
competent authorities. If these changes relate to Article 5(3) (b) and (c) they
698
shall be subject to the approval of the competent authority of the Member

State concerned.
2. During the period of validity of a “residence permit – worker”, competent

authorities shall not consider changes that relate to Article 5(3) (d).
Article 10
1. The competent authorities shall revoke a “residence permit – worker” which

has been fraudulently acquired.
2. The competent authorities may suspend or revoke a “residence permit –

worker” where the particulars supporting the application as provided for
in Article 5 are incorrect or have not been amended in accordance with
Article 9. Member States may also suspend or revoke a “residence permit
– worker” when such measure is considered necessary for reasons of public
policy or public security by a Member State in accordance with Article 27.
3. Unemployment in itself shall not constitute a sufficient reason for revoking

a “residence permit – worker” unless the period of unemployment exceeds
the following duration:
(a) three months within a 12 months period – for holders of a “residence
permit – worker” who have legally exercised activities as employed or
self-employed persons in the Member State concerned for less than 2
years.
(b) six months within a 12 months period – for holders of a “residence
permit – worker” who have legally exercised activities as employed or
self-employed persons in the Member State concerned for more than 2
years.
Article 11
1. During the period of its validity, a “residence permit – worker” shall entitle
its holder at a minimum to the following:
(a) entry to the territory of the Member State issuing the “residence permit
– worker”;
(b) re-entry to the territory of the Member State issuing the “residence
permit – worker” after temporary absence;
(c) passage through other Member States in order to exercise the rights
under point (a) and (b);
(d) residence in the Member State issuing the “residence permit –
worker”;
699
(e) exercise of the activities authorised under the “residence permit –

worker”;
(f) enjoyment of equal treatment with citizens of the Union at least with
regard to:
(i) working conditions, including conditions regarding dismissals
and remuneration;
(ii) access to vocational training necessary to complement the activi-
ties authorised under the residence permit;
(iii) recognition of diplomas, certificates and other qualifications
issued by a competent authority;
(iv) social security including healthcare;
(v) access to goods and services and the supply of goods and services
made available to the public, including public housing;
(vi) freedom of association and affiliation and membership of an
organisation representing workers or employers or of any organi-
sation whose members are engaged in a specific occupation,
including the benefits conferred by such organisations.
2. Member States may restrict the rights conferred under paragraph 1 (f) (ii)
to third country nationals who have been staying or who have the right to
stay in its territory for at least one year.
They may restrict the rights conferred under paragraph 1 (f) (v) with respect
to public housing to third country nationals who have been staying or who
have the right to stay in its territory for at least three years.
3. After expiry of a “residence permit – worker” and following the return to

a third country, former holders of a “residence permit – worker” shall have
the possibility to request and obtain the payment of the contributions made
by them and by their employers into public pension schemes during the
period of validity of the “residence permit – worker” insofar as the follow-
ing conditions are met:
(a) no Member State pension is or will be payable, under national law or
under the provisions referred to in Article 3(1), to the applicant when
residing in a third country;
(b) the applicant is unable, under national law or the provisions referred
to in Article 3(1), to transfer pension rights to a scheme of the third
country where the applicant reside;
(c) the applicant formally waives all rights/claims acquired under the
national pension scheme concerned;
(d) the application is submitted from a third country.
700
Section 2
Special Cases
Article 12
1. Without prejudice to section 1, “seasonal workers” may be granted a “resi-

dence permit – seasonal worker” for up to 6 months in any calendar year,
after which they must return to a third country.
A “residence permit – seasonal worker” shall not be prolonged to cover a

total period exceeding that period. Member States may, however, issue up
to five “residence permits – seasonal worker” covering up to five subsequent
years within one administrative act (“multi-annual residence permit – sea-
sonal worker”).
2. Member States may ask applicants or their future employers to depose

security, which shall be repayable at the return of the seasonal worker to a
third country.
Article 13
1. Without prejudice to section 1, transfrontier workers may be granted a

“permit – transfrontier worker”. Such permit shall not confer on its holder
the right provided for in Article 11 (1) (d).
Article 14
1. Intra-corporate transferees must either be
“Key personnel”, that is working in a senior management or executive posi-

tion within a legal person, receiving general supervision or direction prin-
cipally from the board of directors or stockholders of the business or their
equivalent. The functions of key personnel can include: directing the estab-
lishment or a department or sub-division of the establishment; supervising
and controlling the work of other supervisory, professional or managerial
employees; and/or having the authority personally to hire and fire or rec-
ommend hiring, firing or other personnel actions; or “Specialists”, that is
possessing uncommon knowledge essential to the establishment’s service,
research equipment, techniques or management. In assessing such knowl-
edge, account will be taken not only of knowledge specific to the estab-
lishment, but also of whether the person has a high level of qualification
referring to a type of work or trade requiring specific technical knowledge.
701
2. Without prejudice to section 1, applicants for a “residence permit – intra-

corporate transferee” shall not be required to provide evidence of fulfilment
of the requirement laid down in Article 6(1). Instead, applicants shall dem-
onstrate that they fulfil the criteria set out above. The initial period of valid-
ity of the “residence permit – intra-corporate transferee” shall be equal to
the duration applied for, with a maximum period of validity of five years.
Article 15
1. Without prejudice to section 1, applicants for a “residence permit – trainee”

shall not be required to provide the evidence of fulfilment of the require-
ment laid down in Article 6(1). Instead, applicants shall demonstrate that
the planned activity is strictly limited in duration and closely connected
with increasing their skills and qualifications.
2. The overall validity of a “residence permit – trainee” shall not exceed one
year. This period may be extended exclusively for the time needed to obtain
a professional qualification recognised by the Member State concerned in
the sphere of activity of the trainee.
Article 16
1. Third country nationals pursuing activities as employed person in the

course of youth exchange or youth mobility schemes, including “au pairs”,
may be granted a “residence permit – youth exchange/au pair”.
2. Without prejudice to section 1, applicants for a “residence permit – youth

exchange/au pair” shall not be required to provide evidence of fulfilment of
the requirement laid down in Article 6(1). Instead, applicants shall demon-
strate that the planned activity is strictly limited in duration and connected
with a youth exchange or youth mobility scheme officially recognised by
the Member State concerned. Member States may ask applicants or their
future employers to depose security, which shall be repayable at the return
to a third country.
3. The overall validity of a “residence permit – youth exchange/au pair” shall

not exceed one year. This period may be extended exceptionally if a youth
exchange or youth mobility scheme officially recognised by a Member State
provides for that possibility.
702
CHAPTER III
ENTRY AND RESIDENCE FOR THE PURPOSE OF EXERCISING
SELF EMPLOYED ECONOMIC ACTIVITIES
Article 17
1. Member States shall only authorise third country nationals to enter and
reside in a Member State for the purpose of exercising activities as self-
employed persons where a “residence permit – self-employed person” has
been issued by the competent authorities of that Member State in accor-
dance with this Directive.
2. A “residence permit – self-employed person” shall only be issued if, after

verification of the particulars and documents, it appears that the applicant
fulfils the requirements for obtaining a “residence permit – self-employed
person” in accordance with Articles 18 and 19, unless a Member State makes
use of the possibility to impose limitations in accordance with Articles –26,
27 and 28.
3. When handling an application, the competent authorities shall comply with

the procedural safeguards provided for in Article 29.
Article 18
1. In order to obtain a “residence permit – self-employed person”, a third

country national intending to exercise activities as a self-employed person
in a Member State shall apply to the competent authority of the Member
State concerned.
2. Applications for obtaining a “residence permit – self-employed person”

shall be submitted via the representation of a Member State competent
for the state of legal residence of the applicant or directly in its territory,
if the applicant is already resident or legally present in the territory of the
Member State concerned.
3. The application shall be accompanied by the following particulars and doc-

uments:
(a) name and address of the applicant and of the location of exercise of
the planned self-employed economic activities;
(b) detailed business plan covering the time-period for which a “residence
permit – self-employed person” is requested;
(c) evidence that the applicant has sufficient financial means (including
own resources) in accordance with the business plan and – if appli-
703
cable – to assure investment of the required minimum investment sum

including financial guarantees;
(d) appropriate evidence of fulfilment of the requirement laid down in
Article 19(1);
(e) if required by the Member State concerned a certificate or adequate
proof of good life and behaviour and a health certificate;
(f) valid travel documents and, if appropriate, evidence of valid residence
title;
(g) documents proving the skills which are necessary for the performance
of the envisaged activities and evidence of fulfilment of all the condi-
tions applicable to nationals of the Member State concerned for the
exercise of the self-employed activity in question;
(h) evidence to have sufficient resources to support the applicant and his/
her family members to avoid becoming a burden on the social assis-
tance system of the host Member State for the duration of their stay
and to have sickness insurance covering all risks in the host Member
State. Those resources shall be deemed sufficient where they are at, or
above, the threshold below which the host Member State may grant
social assistance to its nationals. Where this criterion is not applicable,
the applicant’s resources shall be deemed sufficient where they are no
less than the amount of the minimum social security pension paid by
the host Member State;
(i) proof of payment of the fee for handling the application.
4. Third-country nationals who have been legally resident in a Member State

and who have legally exercised activities there as a self-employed person for
more than three years over the preceding five years shall not be required to
provide evidence of fulfilment of the requirement laid down in Article 19(1)
when submitting an application for a “residence permit – self-employed
person” in that Member State.
Article 19
1. When submitting an application in accordance with Article 18 it must be

demonstrated that the self-employed economic activities will create an
employment opportunity for the applicant and will have a beneficial effect
on employment in the Member State concerned or on the economic devel-
opment of that Member State.
2. Member States may adopt national provisions according to which the require-
ment laid down in paragraph 1 is deemed to be fulfilled, or not fulfilled for
specific self-employed economic activities in specific sectors and, – if appro-
priate, – in a specific region without the need for an individual assessment.
704

requirement laid down in paragraph 1 is deemed to be fulfilled for specific
self-employed economic activities in specific sectors and, – if appropriate,
– in a specific region if an applicant invests a defined minimum amount of
own resources.
Article 20
1. A “residence permit – self-employed person” shall be issued for a predefined

period of validity. The initial “residence permit – self-employed person”
granted shall be valid for a period of up to three years to be determined in
accordance with national legislation. It shall be renewable for periods of up
to three years, to be determined in accordance with national legislation, on
application by the holder preferably at least three months before the expiry
date and after consideration by the competent authority of a file contain-
ing updated information on the items referred to in Article 18(3) (a) to (i)
and in particular detailed information on the activities exercised as a self-
employed person.
2. Applicants for renewal who have been holding a “residence permit – self-
employed person” in the Member State concerned for more than three years
shall not be required to provide the evidence of fulfilment of the require-
ment laid down in Article 19(1).
Article 21
A “residence permit – self-employed person” shall initially be restricted to the

exercise of specific self-employed economic activities or fields of activities. It
may also be restricted to the exercise of activities as a self-employed person in a
specific region. After three years it shall not be subject to these restrictions.
Article 22
1. After a “residence permit – self-employed person” has been issued, its

holder must notify any changes to the information provided for in accor-
dance with Article 18 to the competent authorities. If these changes relate
to Article 18(3) (b) and (c) they shall be subject to the approval of the com-
petent authority of the Member State concerned.
2. During the period of validity of a “residence permit – self-employed

person”, competent authorities shall not consider changes that relate to
Article 18 (3) (d).
705
Article 23
1. The competent authorities shall revoke a “residence permit – self-employed

person” which has been fraudulently acquired.
2. The competent authorities may suspend or revoke a “residence permit

– self-employed person” where the particulars supporting the application
as provided for in Article 18 are incorrect or have not been amended in
accordance with Article 22. Member States may also suspend or revoke a
“residence permit – self-employed person” when such measure is consid-
ered necessary for reasons of public policy or public security by a Member
State in accordance with Article 27.
3. Commercial difficulties shall not constitute a sufficient reason for revoking

a “residence permit – self-employed person” unless the period during which
the holder is not able to meet the costs of living in accordance with Article
18(3)(h) exceeds the following time:
(a) three months within a 12 months period – for holders of a “residence
permit – self-employed person” who have legally exercised activities as
employed or self-employed persons in the Member State concerned for
less than 2 years.
(b) six months within a 12 months period – for holders of a “residence
permit – self-employed person” who have legally exercised activities as
employed or self-employed persons in the Member State concerned for
more than 2 years.
Article 24
The rules set out in Article 11 shall also apply to holders of a “residence permit
– self-employed person”
CHAPTER IV
HORIZONTAL PROVISIONS
Article 25
Member States may request applicants to pay fees for handling applications in
accordance with this Directive. The level of fees must be proportionate and may
be based on the principle of the service actually provided.
706
Article 26
Member States may decide to adopt national provisions limiting the issuing of
permits in accordance with this Directive to a defined ceiling or suspending or
stopping the issuing of these permits for a defined period, taking into account
the overall capacity to receive and to integrate third country nationals on their
territory or in specific regions thereof. These national provisions must state in
detail which groups of persons are covered by or exempted from the measure. If
these national provisions impose ceilings, they shall lay down in detail the crite-
ria according to which applications for permits in accordance with this Directive
shall be ranked when the number of applications received exceeds the defined
ceilings.
Article 27
Member States may refuse to grant or to renew or revoke permits in accordance

with this Directive on grounds of public policy, public security or public health.
The grounds of public policy or public security must be based exclusively on the
personal conduct of the third country national concerned. Reasons of public
health shall not be invoked by Member States for revoking or not renewing a
residence permit for the sole ground of illness or disability suffered after the
issue of the residence permit.
Article 28
This Directive is without prejudice to the application of national legislation reg-

ulating the access of third country nationals to employment in the public service
or to activities which in that Member State are connected, even occasionally,
with the exercise of official authority.
CHAPTER V
PROCEDURE AND TRANSPARENCY
Article 29
1. Member States shall ensure that a decision to grant, to modify or to renew

a permit in accordance with this Directive, is adopted and communicated
to the applicant at the latest within 180 days of its receipt. Decisions on an
application submitted in accordance with Articles 14, 15 and 16 shall be
adopted and communicated to the applicant within 45 days of its receipt.
707
2. Member States shall make public the average time necessary for its authori-
ties to issue, modify or renew permits in accordance with this Directive and
inform applicants thereof upon receipt of an application.
3. If the information supporting the application is inadequate, the competent

authorities shall notify the applicant of what detailed additional informa-
tion is required. The period referred to in paragraph 1 shall be suspended
until the authorities have received the additional information required.
4. Any decision not to grant, to modify or to renew a permit in accordance

with the application and any decision suspending or withdrawing a permit
shall contain a statement of reasons based upon objective and verifiable
criteria on which the decision is based. The person concerned shall have the
right to apply to the courts of the Member State concerned and shall be
informed of the time limits allowed for applying for such remedies.
Article 30
When Member States choose to adopt national measures in accordance with

Article 6 (3) – (5); Article 19 (2) and (3) or Article 26, the following rules shall be
respected, without prejudice to Article 35:
(a) the Member State shall base its national provisions on the criteria listed in
the relevant provisions of this Directive.
(b) the national provisions shall include a statement of reasons based upon
objective and verifiable criteria.
(c) the national provisions shall be subject to regular review at national level to
ascertain whether it is justified in accordance with the present Directive that
the national provisions be maintained unchanged.
(d) the national provisions shall be made public in advance of their entering
into force.
(e) the Member State shall notify the national provision to the Commission
and they shall submit an annual report on the application of these national
provisions to the –Commission.
Article 31
Each Member State shall ensure that an exhaustive and regularly updated set
of information concerning the conditions of entry and stay of third-country
nationals to its territory for the purpose of pursuing activities as employed or
self-employed person is made available to the general public.
708
CHAPTER VI
FINAL PROVISIONS
Article 32
The Member States shall give effect to the provisions of this Directive without
discrimination on the basis of sex, race, colour, ethnic or social origin, genetic
characteristics, language, religion or beliefs, political or other opinions, mem-
bership of a national minority, fortune, birth, disabilities, age or sexual orienta-
tion.
Article 33
Member States shall lay down the rules on penalties applicable to infringements
of the national provisions adopted pursuant to this Directive and shall take all
measures necessary to ensure that they are implemented. The penalties provided
for must be effective, proportionate and dissuasive. The Member States shall
notify those provisions to the Commission by the date specified in Article 38 at
the latest and shall notify it without delay of any subsequent amendment affect-
ing them.
Article 34
No later than four years after the date specified in Article 35 the Commission
this Directive in the Member States and may propose such amendments as may
appear necessary.
Article 35
Member States shall adopt and publish, before 1 January 2004 the provisions
necessary to comply with this Directive. They shall forthwith inform the Com-
mission thereof.
They shall apply those provisions from 1 January 2004.
official publication. Member States shall determine how such reference is to be
made.
[“boilerplate” Articles 36 and 37 omitted]
709

on a specific procedure for admitting third-country nationals
for purposes of scientific research
[OJ 2005 L 289/15]
ticular Article 63(3)(a) and (4) thereof,
Whereas:
(1) With a view to consolidating and giving structure to European research

policy, the Commission considered it necessary in January 2000 to establish
the European Research Area as the lynchpin of the Community’s future
action in this field.
(2) Endorsing the European Research Area, the Lisbon European Council
set the Community the objective of becoming the most competitive and
dynamic knowledge-based economy in the world by 2010.
(3) The globalisation of the economy calls for greater mobility of research-
ers, something which was recognised by the sixth framework programme
of the European Community, when it opened up its programmes further to
researchers from outside the European Union.
(4) The number of researchers which the Community will need to meet the
target set by the Barcelona European Council of 3% of GDP invested in
research is estimated at 700,000. This target must be met through a series
of interlocking measures such as making scientific careers more attractive
to young people, extending the opportunities for training and mobility in
research, improving the career prospects for researchers in the Commu-
nity and opening the Community up to third-country nationals who could
potentially be admitted for research purposes.
(5) This Directive is intended to contribute to achieving those goals by fos-

tering the admission and mobility for research purposes of third-country
nationals for stays of more than three months, in order to make the Com-
710
munity more attractive to researchers from around the world and to boost
its position as an international centre for research.
(6) Implementation of this Directive should not encourage a brain drain from
emerging or developing countries. Back-up measures to promote research-
ers’ integration into their countries of origin as well as the movement of
researchers should be taken in partnership with the countries of origin with
a view to establishing a comprehensive migration policy.
(7) For the achievement of the objectives of the Lisbon process it is also impor-
tant to foster the mobility within the Union of researchers who are EU citi-
zens, and in particular researchers from the Member States which acceded
in 2004, for the purpose of carrying out scientific research.
(8) Given the openness imposed by changes in the world economy and the
likely requirements to meet the 3% target, third-country researchers poten-
tially eligible under this Directive should be defined broadly in accordance
with their qualifications and the research project which they intend to carry
out.
(9) As the effort to be made to achieve the 3% of GDP target for investment
in research largely concerns the private sector, which must therefore recruit
more researchers in the years to come, the research organisations poten-
tially eligible for the Directive belong to both the public and private sec-
tors.
(10) Each Member State should ensure that the most comprehensive informa-
tion possible, regularly kept up to date, is made publicly available, via the
Internet in particular, on the research organisations, approved under this
Directive, with which researchers could conclude a hosting agreement, and
on the conditions and procedures for entry and residence on its territory for
the purposes of carrying out research, as adopted under this Directive.
(11) It is appropriate to facilitate the admission of researchers by establishing an

admission procedure which does not depend on their legal relationship with
the host research organisation and by no longer requiring a work permit in
addition to the residence permit. Member States could apply similar rules
for third-country nationals requesting admission for the purposes of teach-
ing in a higher education establishment in accordance with national legisla-
tion or administrative practice, in the context of a research project.
(12) At the same time, the traditional avenues of admission (employment, work
placement, etc.) should be maintained, especially for doctoral students car-
711
rying out research as students, who must be excluded from the scope of the
Directive and are covered by Council Directive 2004/114 on the conditions
of admission of third-country nationals for the purposes of studies, pupil
exchange, unremunerated training or voluntary service.
(13) The specific procedure for researchers is based on the collaboration between
the research organisations and the immigration authorities in the Member
States: it gives the former a key role in the admission procedure with a view
to facilitating and speeding up the entry and residence of third-country
researchers in the Community, while preserving Member States’ preroga-
tives with respect to immigration policing.
(14) Research organisations approved in advance by the Member States must

be able to sign a hosting agreement with a third-country national for the
purposes of carrying out a research project. Member States will issue a
residence permit on the basis of the hosting agreement if the conditions for
entry and residence are met.
(15) In order to make the Community more attractive to third-country research-

ers, they should be granted, during their stay, equal social and economic
rights with nationals of the host Member State in a number of areas and
the possibility to teach in higher education establishments.
(16) The Directive adds a very important improvement in the field of social
security as the non-discrimination principle also applies directly to persons
coming to a Member State directly from a third country. Nevertheless, it
has to be emphasized that the Directive should not confer more rights than
those already provided in existing Community legislation in the field of
social security for third-country nationals who have cross-border elements
between Member States. The Directive furthermore should not grant rights
in relation to situations which lie outside the scope of Community legisla-
tion like for example family members residing in a third country.
(17) It is important to foster the mobility of researchers as a means of devel-

oping and consolidating contacts and networks between partners at world
level. Researchers should be able to exercise mobility under the conditions
established by this Directive. The conditions for exercising mobility under
this Directive do not affect the rules currently governing recognition of the
validity of travel documents.
(18) Special attention should be paid to the facilitation and support of the pres-
ervation of the unit of family members of the researchers, according to the
712
Council Recommendation of …. to facilitate the admission of third-coun-

try nationals to carry out scientific research in the European Community.
(19) In order to preserve family unity and to enable mobility, family members
should be able to join the researcher in another Member State under condi-
tions determined by the national law of such Member State, including its
obligations arising from bilateral or multilateral agreements.
(20) Holders of residence permits should be in principle allowed to submit an

application for admission while remaining on the territory of the Member
State concerned.
(21) Member States should have the right to charge applicants for the processing
of applications for residence permits.
(22) This Directive should not affect in any circumstances the application of
Council Regulation 1030/2002 of 13 June 2002 laying down a uniform
format for residence permits for third-country nationals.
(23) The objectives of this Directive, namely the introduction of a special

admission procedure and the adoption of conditions of entry and resi-
dence applicable to third-country nationals for stays of more than three
months in the Member States for the purposes of conducting a research
project under a hosting agreement with a research organisation, cannot be
sufficiently achieved by the Member States, especially as regards ensuring
mobility between Member States, and can therefore be better achieved by
the Community. The Community is therefore entitled to take measures in
accordance with the subsidiarity principle laid out in Article 5 of the Treaty.
In accordance with the principle of proportionality set out in that Article,
this Directive does not go beyond what is necessary to achieve those objec-
tives.
sexual orientation.
European Union.
713
(26) In accordance with paragraph 34 of the Interinstitutional agreement on

better law-making, Member States are encouraged to draw up, for them-
selves and in the interest of the Community, their own tables, which will,
as far as possible, illustrate the correlation between the Directive and the
transposition measures and to make them public.
Kingdom and Ireland annexed to the Treaty on European Union and the
Treaty establishing the European Community, Ireland has given notice by
letter of 1 July 2004 of its wish to participate in the adoption and applica-
tion of this Directive.
United Kingdom and Ireland, annexed to the Treaty on European Union
dice to Article 4 of the said Protocol, [the] United Kingdom is not partici-
pating in the adoption of this Directive and is not bound by it or subject to
its application.
(29) In accordance with Articles 1 and 2 of the Protocol on the position of Den-
CHAPTER I
GENERAL PROVISIONS
Article 1 Purpose
This Directive lays down the conditions for the admission of third-country
researchers to the Member States for more than three months for the pur-
poses of carrying out a research project under a hosting agreement with a
research organisation.

(a) “Third-country national” means any person who is not a Union citizen
within the meaning of Article 17(1) of the Treaty;
(b) “Research” means creative work undertaken on a systematic basis in order
to increase the stock of knowledge, including knowledge of man, culture
and society, and the use of this stock of knowledge to devise new applica-
tions;
714
(c) “Research organisation” means any public or private organisations which

conducts research and which has been approved for the purposes of this
Directive by a Member State in accordance with the latter’s legislation or
administrative practice;
(d) “Researcher” means a third-country national holding an appropriate higher
education qualification, which gives access to doctoral programmes, who is
selected by a research organisation for carrying out a research project for
which the above qualification is normally required;
(e) “Residence permit” means any authorisation bearing the term “researcher”
issued by the authorities of a Member State allowing a third-country
national to stay legally on its territory, in accordance with Article 1(2)(a) of
Council Regulation (EC) No 1030/2002.
Article 3 Scope
1. This Directive shall apply to third-country nationals who apply to be admit-

ted to the territory of a Member State for the purpose of carrying out a
research project.
2. This Directive shall not apply to:

(a) third-country nationals staying in a Member State as applicants for
international protection or under temporary protection schemes;
(b) third-country nationals applying to reside in a Member State as stu-
dents within the meaning of Directive 2004/114/EC in order to carry
out research leading to a doctoral degree;
(c) third-country nationals whose expulsion has been suspended for rea-
sons of fact or law;
(d) researchers seconded by a research organisation to another research
organisation in a different Member State.
1. This directive is without prejudice to more favourable provisions of:

(a) bilateral or multilateral agreements concluded between the Commu-
nity or between the Community and its Member States on the one
hand and one or more non-member countries on the other;
(b) bilateral or multilateral agreements concluded between one or more
Member States and one or more non-member countries.
2. This Directive shall not affect the right of Member States to adopt or retain
more favourable provisions for persons to whom it applies.
715
CHAPTER II
RESEARCH ORGANISATIONS
Article 5 Approval
1. Any research organisation wishing to host a researcher under the admis-

sion procedure laid down in this Directive must first be approved for that
purpose by the Member State concerned.
2. The approval of the research organisations shall be in accordance with pro-

cedures set out in the national law or administrative practice of the Member
States. Applications for approval by both public and private organisations
shall be made in accordance with those procedures and shall be based on
their statutory tasks or corporate purposes as appropriate and on proof
that they conduct research.
The approval granted to a research organisation shall be for a minimum

period of five years. In exceptional cases, Member States may grant approval
for a shorter period.
3. Member States may require, in accordance with national legislation, a writ-

ten undertaking of the research organisation that in cases where a researcher
remains illegally in the territory of the Member State concerned, the above
organisation is responsible to reimburse the costs related to his/her stay and
return incurred by public funds. The financial responsibility of the research
organisation shall end at the latest 6 months after the termination of the
hosting agreement.
4. Member States may provide that, within two months of the date of expiry
of the hosting agreement concerned, the approved organisation shall pro-
vide the competent authorities designated for the purpose by the Member
States with confirmation that the work has been carried out for each of the
research projects in respect of which a hosting agreement has been signed
5. The competent authorities in each Member State shall publish and update
regularly lists of the research organisations approved for the purposes of
this Directive.
6. A Member State may, among other measures, refuse to renew or decide to

withdraw the approval of a research organisation which no longer meets
the conditions laid down in paragraphs 2, 3 or 4 or in case the approval has
been fraudulently acquired or where a research organisation has signed a
716
hosting agreement with a third-country national fraudelently or negligently.

Where approval has been refused or withdrawn, the organisation concerned
may be banned from reapplying for approval up to five years from the date
of publication of the decision on withdrawal or non-renewal.
Member States may determine in their national legislation the conse-

quences of the withdrawal of the approval or refusal to renew the approval
for the existing hosting agreements, concluded in accordance with Article
6, as well as the consequences for the residence permits of the researchers
concerned.
Article 6 Hosting agreement
1. A research organisation wishing to host a researcher shall sign a hosting

agreement with the latter whereby the researcher undertakes to complete
the research project and the organisation undertakes to host the researcher
for that purpose without prejudice to Article 7.
2. Research organisations may sign hosting agreements only if the following

conditions are met:
(a) the research project has been accepted by the relevant authorities in
the organisation, after examination of:
(i) the purpose and duration of the research, and the availability of the
necessary financial resources for it to be carried out;
(ii) the researcher’s qualifications in the light of the research objectives,
as evidenced by a certified copy of his /her qualification in accor-
dance with Article 2(d);
(b) during his /her stay the researcher will have sufficient monthly resources
to meet his / her expenses and return travel costs in accordance with
the minimum amount published for the purpose by the Member State,
without having recourse to the Member State’s social assistance
system;
(c) during his /her stay the researcher will have sickness insurance for all
the risks normally covered for nationals of the Member State con-
cerned.
(d) the hosting agreement specifies the legal relationship and working con-
ditions of the researchers.
3. Once the hosting agreement is signed, the research organisation may be

required, in accordance with national legislation, to provide the researcher
with an individual statement that for costs within the meaning of Article
5(3) financial responsibility has been assumed.
717
4. The hosting agreement shall automatically lapse when the reserarcher is

not admitted or when the legal relationship between the researcher and the
research organisation is terminated.
5. Research organisations shall promptly inform the authority designated

for the purpose by the Member States of any occurrence likely to prevent
implementation of the agreement.
CHAPTER III
ADMISSION OF RESEARCHERS
Article 7 Conditions for admission
1. A third-country national who applies to be admitted for the purposes set

out in this Directive shall:
(a) present a valid travel document, as determined by national law. Member
States may require the period of the validity of the travel document to
cover at least the duration of the residence permit,
(b) present a hosting agreement signed with a research organisation in
accordance with Article 6(2), and
(c) where appropriate, present a statement of financial responsibility
issued by the research organisation in accordance with Article 6(3),
and
(d) not be considered to pose a threat to public policy, public security or
public health.
Member States shall check that all the conditions referred to in points (a),
(b), (c) and (d) are met.
2. Member States may also check the terms upon which the hosting agree-
ment has been based and concluded.
3. Once the checks referred to in paragraphs 1 and 2 have been positively con-
cluded, researchers shall be admitted on the territory of the Member States
to carry out the hosting agreement.
Article 8 Duration of residence permit
Member States shall issue a residence permit for a period of at least one year
and shall renew it if the conditions laid down in Articles 6 and 7 are still met. If
the research project is scheduled to last less than one year, the residence permit
shall be issued for the duration of the project.
718
Article 9 Family members
1. When a Member State decides to grant a residence permit to the family

members of a researcher, the duration of validity their residence permit
shall be the same of that of the residence permit issued to the researcher
insofar as the period of validity of their travel documents allows it. In duly
justified cases, the duration of the residence permit of the family member
of the researcher may be shortened.
2. The issue of the residence permit to the family members of the researcher
admitted to a Member State shall not be made dependent on the require-
ment of a minimum period of residence of the researcher.
Article 10 Withdrawal or non-renewal of the residence permit
1. Member States may withdraw or refuse to renew a residence permit issued

on the basis of this Directive when it has been fraudulently acquired or
wherever it appears that the holder did not meet or no longer meets the
conditions for entry and residence provided by Articles 6 and 7 or is resid-
ing for purposes other that that for which he was authorised to reside.
2. Member States may withdraw or refuse to renew a residence permit for rea-
sons of public policy, public security or public health.
CHAPTER IV
RESEARCHERS’ RIGHTS
Article 11 Teaching
Researchers admitted under this Directive may teach in accordance with national
legislation.
Member States may set a maximum number of hours or of days for the activity
of teaching.
Article 12 Equal treatment
Holders of a residence permit shall be entitled to equal treatment with nationals

as regards:
(a) recognition of diplomas, certificates and other professional qualifications
in accordance with the relevant national procedures;
(b) working conditions, including pay and dismissal;
719
(c) branches of social security as defined in Council Regulation (EEC) No

1408/71 of 14 June 1971 on the application of social security schemes to
employed persons, to self-employed persons and to their families moving
within the Community. The special provisions in the Annex to Council
Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of
Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nation-
als of third countries who are not already covered by these provisions solely
on the ground of their nationality shall apply accordingly;
(d) tax benefits;
(e) access to goods and services and the supply of goods and services made
available to the public.
Article 13 Mobility between Member States
1. A third-country national who has been admitted as a researcher under this

Directive shall be allowed to carry out part of his/her research in another
Member State under the conditions as set out in this Article.
2. If the researcher stays for a period up to three months in another Member

State, the research can be carried out on the basis of the hosting agreement
concluded in the first Member State, provided that he will have sufficient
resources in the other Member State, and he is not considered as a threat to
public policy, public security or public health in the second Member State.
3. If the researcher stays more than 3 months, Member States may require a
new hosting agreement to carry out the research in the Member State con-
cerned. At all events, the conditions set out in Articles 6 and 7 have to be
met in relation to the second Member State.
4. Where the relevant legislation provides for the requirement of a visa or

a residence permit, for exercising mobility, such a visa or permit shall be
granted in a timely manner within a period that does not hamper the pur-
suit of the research, whilst leaving the competent authorities sufficient time
to process the applications.
5. Member States shall not require the researcher to leave their territory in
order to submit applications for the visas or residence permits.
720
CHAPTER V
Article 14 Applications for admission
1. The Member States shall determine whether applications for residence per-
mits are to be made by the researcher or by the research organisation con-
cerned.
2. The application shall be considered and examined when the third country
national concerned is residing outside the territory of the Member States to
which he / she wishes to be admitted.
3. Member States may accept, in accordance with their national legislation, an

application submitted when the third country national concerned is already
in their territory.
4. The Member State concerned shall grant the third country national who
has submitted an application and who meets the conditions of Articles 6
and 7 every facility to obtain the requisite visas.
Article 15 Procedural safeguards
1. The competent authorities of the Member States shall adopt a decision on

the complete application as soon as possible and, where appropriate, pro-
vide for accelerated procedures.
2. If the information supplied in support of the application is inadequate

the consideration of the application may be suspended and the competent
authorities shall inform the applicant what further information they need.
3. Any decision rejecting an application for a residence permit shall be noti-

fied to the third – country national concerned in accordance with the noti-
fication procedures under the relevant national legislation. The notification
shall specify the possible redress procedures available and the time limit for
taking action.
4. Where an application is rejected, or a residence permit, issued in accor-

dance with this Directive, is withdrawn, the person concerned shall have the
right to mount a legal challenge before the authorities of the Member State
concerned.
721
CHAPTER VI
FINAL PROVISIONS
Article 16 Reports
Periodically, and for the first time no later than three years after the entry into
force of this Directive, the Commission shall report to the European Parliament
and the Council on the application of this Directive in the Member States and
shall propose any amendments that are necessary.
1. Member States shall implement the laws, regulations and administrative

provisions needed in order to comply with this Directive by 12 October
2007.
When Member States adopt those provisions, they shall contain a reference
to this Directive or be accompanied by such a reference on the occasion of
their official publication. Member States shall determine how such refer-
ence is to be made.
2. Member States shall communicate to the Commission the text of the main
provisions of national law which they adopt in the field covered by this
Directive.
Article 18
By way of derogation from the provisions set out in Chapter III, Member States
are not obliged to issue permits in accordance with this Directive in the form of
a residence permit for a period of up to two years, after the date referred to in
Article 17(1).
Article 19
Nothing in this Directive shall affect the right of Ireland to maintain the Common
Travel Area arrangements referred to in the Protocol, annexed by the Treaty of
Amsterdam to the Treaty on European Union and the Treaty establishing the
European Community, on the application of certain aspects of Article 14 of
the Treaty establishing the European Community to the United Kingdom and
Ireland.
722
This Directive is addressed to the Member States.
723
Chapter 22 Admission of Students and Others
1 Summary of content
Directive 2004/114 concerning the entry and stay of students, certain school
pupils, unremunerated trainees and volunteers was adopted in December 2004,
following a “political agreement” on the proposed text at the March 2004 JHA
Council.1 The Directive has a “legal base” of Article 63(3)(a) EC, concerning
legal migration, and Article 63(4) EC, concerning residence in another Member
State. Member States have to implement the Directive by 12 January 2007, there-
fore the Directive will begin to impact upon students or school pupils from the
academic year 2007-2008. The UK and Ireland both opted out of this Directive,
and Denmark was not eligible to participate in it.
Chapter I of the Directive (Articles 1-4) sets out general provisions, com-
prising the purpose of the Directive, definitions and scope. It is clear from Arti-
cle 1 that the Directive will only cover stays of over three months. As for the
scope (Article 3(1)), Member States are only obliged to apply the Directive to
students; application of the rules in the Directive to the other three categories
of persons remains optional. There are specific exclusions from the scope of
the Directive (Article 3(2)) for asylum-seekers, persons on temporary protection
or subsidiary protection schemes, persons whose expulsion is suspended, long-
term residents within the scope of Directive 2003/109, third-country nationals
who are the family members of EU citizens who have moved within the Com-
munity and persons defined as employees or self-employed persons according
to national law. Member States are free to provide for more favourable rules
in national law or by international treaties; the Community (alone or with the
1 OJ 2004 L 375/12. The Commission’s original proposal can be found in COM (2002)
548, 7 Oct. 2002.
Member States) is also empowered to adopt more favourable rules by means of

treaties (Article 4).
Chapter II (Articles 5-11) sets out conditions of entry and residence. Article
5 sets out the general principle that a person can only enter if he or she meets
the specific conditions set out for various categories of persons set out in the
Directive. Article 6(1) sets out the general rules applying to all four categories
of migrant: presentation of a travel document; parental authorisation if the
migrant is a minor; sickness insurance; requirements of public policy, public
security or public health; and proof of fee payment. Article 6(2) requires the
Member States to facilitate admission for persons participating in Community
education schemes.
Specific conditions and specific limits on residence status for each of the
four groups are set out in turn for: students (Articles 6 and 11); school pupils
(Articles 8 and 12); school pupils (Articles 9 and 13); and volunteers (Articles 10
and 14). Article 8 sets out a subsidiary rule regarding mobility between Member
States for students. General rules on termination of residence permits are set out
in Article 16, concerning public policy, et al and termination of residence if the
conditions are no longer met, along with fraud.
Chapter IV (Article 17) concerns the treatment of third-country nationals
covered by the Directive, and specifies that students are entitled to work, subject
to certain limits. Chapter V (Articles 18–20) concerns procedural rights, and
addresses time limits for taking decisions, appeals against negative decisions, an
optional “fast-track” procedure for applications by students and school pupils
(entailing delegation of certain aspects of admission decisions to the educa-
tional institutions or organisations) and a provision on charging fees for consid-
ering applications. Finally, Chapter VI (Articles 21-26) sets out final provisions,
including an obligation for the Commission to report on the application of the
Directive by January 2010.

2.1 Education and Migration in EC law
To place this proposal in perspective, a short overview of the migration status
of students in EC law is necessary. First of all, the Court of Justice ruled that
all EC nationals should be treated equally as regards conditions of enrolment in
“vocational training”, in particular tuition fees and funding related to such fees,
although this did not extend to maintenance grants. The concept of “vocational
training” for this purpose was very broad, encompassing any higher or further
education which might be relevant to a profession, trade or employment, exclud-
ing only courses solely intended to increase general knowledge.2 EU citizens also
2 Cases 152/82 Forcheri [1983] ECR 2323; 293/83 Gravier [1985] ECR 593; 24/86
Blaizot [1988] ECR 379; 39/86 Lair [1988] ECR 3161; 197/86 Brown [1988] ECR
3205; 263/86 Humbel [1988] ECR 5365; C-42/87 Commission v Belgium [1988] ECR
726
have the right to move as students to receive “vocational training” on the basis
of Articles 12 and 150 of the EC Treaty, as found by the Court of Justice in
its 1992 Raulin judgment.3 This right was also facilitated by legislation on the
subject, originally set out in Directive 90/366 agreed by the Council in 1990, but
subsequently set out in Directive 93/96 agreed in 1993,4 following the annulment
of the earlier Directive for having the wrong “legal base”.5 It is now clear that
the right to reside of students and the ancillary right of access to funding have
a broader scope due to the introduction of the formal status of citizenship of
the Union.6
EC nationals who move to another Member State as workers also have the
right to take up education in the host state, and can claim maintenance grants as
“social advantages” even if unemployed, if the education they seek is connected
to their prior employment in that Member State or if unemployment forces
retraining in another area.7 Their children can also claim the right to equal treat-
ment in education, including maintenance grants,8 as can other family members
as “social advantages”.9 It appears that the children of the self-employed must
5445; C-109/92 Wirth [1993] ECR I-6447; and C-47/93 Commission v Belgium [1994]
ECR I-1593.
3 Case C-357/89 [1992] ECR I-1027.
4 See respectively OJ 1990 L 180/30 and OJ 1993 L 317/59. On this Directive, see fur-
ther Case C-424/98 Commission v Italy [2000] ECR I-4001 and the cases of Grzelc-
zyk and Bidar (n. 6 below).
5 Case C-295/90 Parliament v Council [1992] ECR I-4193.
6 On the implications of EU citizenship for students, see particularly Cases C-184/99
Grzelczyk [2001] ECR I-6293, C-224/98 D’Hoop [2002] ECR I-6191, the Opinion in
Case C-413/01 Ninni-Orasche [2003] ECR I-13187, and Case C-209/03 Bidar [2005]
ECR I-2119. On the issue of EU citizen students, see also Case C-65/03 Commission
v Belgium ([2004] ECR I-6507) and the judgment of 7 July 2005 in Case C-147/03
Commission v Austria, not yet reported.
7 See Art. 7(2) of Reg. 1612/68 (OJ 1968 L 257/2), as interpreted in Lair and Brown, n.
2 above and the judgment in Ninni-Orasche, ibid.; Case C-3/90 Bernini [1992] ECR
I-1071; Case 235/87 Matteucci [1988] ECR 5589; and Raulin, n. 3 above.
8 See Art. 12 of Reg. 1612/68 (ibid.), as interpreted in Cases 9/74 Casagrande [1974]
ECR 773; C-389/87 and 390/87 Echternach and Moritz [1989] ECR 723; C-308/89 Di
Leo [1990] ECR I-4185; C-7/94 Gaal [1995] ECR I-1031; C-337/97 Meeusen [1999]
ECR I-3289; Bernini, ibid; and Brown, n. 2 above.
9 In Bernini, n. 7 above, and Meeusen (ibid.), the Court found that education grants
for children were “social advantages” for workers pursuant to Art. 7(2) of Reg.
1612/68. Since “social advantages” for other family members are also covered by
that provision (see for example, Case 32/75 Cristini [1975] ECR 1085), it follows
that other family members are entitled to equal treatment as regards educational
grants.
727
be given identical treatment.10 The various rights have been consolidated, clari-
fied and arguably enhanced by the 2004 Directive on EU citizenship rights.11
Students from Norway, Iceland, Liechtenstein and Switzerland have identi-
cal rights pursuant to treaties with the Community and its Member States, with
the exception of a Protocol to the European Economic Area agreement that
denies students from the first three states equal treatment in tuition fees. As
for Turkey, the EC-Turkey Association Agreement has been supplemented by
implementing rules giving Turkish graduates, after completion of a course of
vocational training in a Member State, the right to take up employment in that
Member State on an equal footing with EC nationals if one of their parents is
or has been employed in that Member State.12 The EC-Turkey rules also address
access to education.13
Other third-country nationals are covered to some extent by rules in the
proposed or adopted directives on reception conditions, the content of refugee
and subsidiary protection status, temporary protection, migration for employ-
ment or self-employment, family reunion, long-term residence and victims of
trafficking and facilitation of illegal entry and residence.14
2.2 Background to the Directive

As part of the “soft law” adopted in the Maastricht era of JHA cooperation,
the Community agreed a Resolution on admission of students in 1994.15 This
10 Meeusen, n. 8 above.
11 Directive 2004/38 (OJ 2004 L 229/35). But see the judgment in Bidar, n. 6 above,
which indicates that rights for students above and beyond those set out in the Direc-
tive may be derived from the principle of EU citizenship.
12 See Article 7, part 2 of EC-Turkey Association Council Decision 1/80, as interpreted
in Case C-355/93 Eroglu [1994] ECR I-5113 and Case C-210/97 Akman [1998] ECR
I-7519. See generally annotation of Akman by Peers, 36 CMLRev. (1999) 1027.
13 See Article 9 of Decision 1/80, as interpreted in the judgment of 7 July 2005 in
Case C-374/03 Gurol, not yet reported. See generally annotation of Akman by Peers,
ibid.
14 See respectively Arts. 10 and 12 of Directive 2003/9 on reception conditions (Ch.
12); Arts. 26(4) and 27 of Directive 2004/83 on refugee and subsidiary protection
status (Ch. 13); Art. 14 of Directive 2001/55 on temporary protection (Ch. 15); Arts.
11 and 24 of the proposed Directive on migration for employment or self-employ-
ment (Ch. 21); Art. 14(1)(a) of Directive 2003/86 on family reunion (Ch. 19); Art. 11
of Directive 2003/109 on long-term residents (Ch. 20); and Art. 11(2) of Directive
2004/81 on victims of trafficking or smuggling (Ch. 29).
15 OJ 1996 C 274/10. For the history of negotiations on this proposal, see Peers, “Build-
ing Fortress Europe: The Development of EU Migration Law”, 35 CMLRev. (1998)
1235 at 1252. For further analysis, see Guild and Niessen, The Developing Immigra-
tion and Asylum Policies of the European Union: Adopted Conventions, Resolutions,
Recommendations, Decisions and Conclusions (Kluwer, 1996), 347-360.
728
Resolution was narrower in scope and far vaguer and less detailed than the later
Directive. For instance, it expressly excluded school pupils, and in view of its
clear limitation to students in formal education institutions, it excluded most
or all unremunerated trainees and all volunteers.16 Unlike the Directive, it was
not clear whether “professional schools” were included. Family members of
students were mentioned, but it was up to national law to decide whether to
admit them. The Resolution, unlike the Directive, exempted persons admitted
for family reunion from its scope. Member States had the option of requiring
proof of continuity between prior studies and planned studies. The rules on
residence permits were roughly the same, although in principle employment was
prohibited, with an option for Member States to allow “short-term or subsid-
iary jobs”.
In 1995, the Council considered a proposed measure to adopt standard
rules on the admission of “others” not covered by the Resolutions on family
reunion or admission for employment, self-employment or studies. Admission
would be for one year at first, with subsequent extensions. However, it proved
impossible to reach agreement on this proposal.17
In 1997, the Commission proposed a Convention on migration which
inter alia covered the status of students and “others”.18 This proposal brought
together rules relating to trainees and students in a single chapter, and was simi-
lar to the prior Resolution, with the most significant change an obligation to
permit students to take up short-term and subsidiary work. The provisions on
“others” were also similar to the proposal considered in 1995. When considering
the proposal,19 several Member States thought that the types of establishments
covered were too narrow, with some wanting secondary schools within the scope
of the Convention also. The prospect of a ban on changing courses appeared
too restrictive to many Member States, although conversely some wanted to
set additional conditions for students. Several Member States objected to the
proposed chapter on “others” from both the liberal and conservative points of
16 The exclusion of trainees was also perhaps implicit in the express exclusion of
“apprentices”.
17 See Peers, n. 14 above, at 1247-1248.
18 COM (1997) 387, 30 July 1997; OJ 1997 C 337/9. For analysis, see Hedemann-
Robinson, “From Object to Subject? Non-EC Nationals and the Draft Proposal
of the Commission for a Council Act Establishing the Rules for Admission of
Third-Country Nationals to the Member States” 18 YEL (1998) 289 at 311-315 and
Peers, “Raising Minimum Standards or Racing to the Bottom? The Commission’s
Proposed Migration Convention”, in Guild, ed., The Legal Framework and Social
Consequences of Free Movement of Persons in the European Union (Kluwer, 1999)
149 at 157-159. On the Convention proposals regarding other categories of migrant,
see Chs. 19-21.
19 Council doc. 6488/98 add 1, 1 Sep. 1998.
729
view, and there were different views on whether au pairs should be covered in the
Convention (the Commission said they were covered by the “others” chapter).
2.3 Directive 2004/114

The European Parliament suggested amendments to the proposal for a Direc-
tive in June 2003. The EP suggested bringing unremunerated researchers within
the scope of the Directive (and giving them the right to move between Member
States), establishing a standstill to prevent reduction of more favourable stan-
dards, exempting students from the resources requirement in certain cases,
simplifying the conditions for volunteers, permitting renewal of pupils’ and vol-
unteers’ permits, granting access to employment in further cases, and enhancing
the procedural rights of students, researchers and volunteers.
For its part, the Council’s working group began discussion on the Directive
late in 2003, and agreement by the Council in March 2004 came soon afterwards.
However, the Council made a number of changes to the Commission’s proposal.
First, in the definitions clause, the definition of “student” was merged with the
definition of “course of study”.20 The merged definition was amended to clarify
that a student had to be “accepted by an establishment of higher education”, to
pursue study as “his/her main activity”, and to leave coverage of preparatory
courses as part of the definition as an option for Member States, “according
to national legislation”.21 The definition of “school pupil” was clarified to indi-
cate that pupils could only be admitted to “follow a recognised programme of
secondary education”, rather than to “follow courses at an accredited establish-
ment of secondary education”.22 As a result, in the final text, the definition of
“establishment” is only relevant to students, instead of both students and pupils.
This definition was amended by the Council to specify that the body could either
be recognised by a Member State or that its courses of study could be recog-
nised by a Member State, without reference to specific forms of education; the
Commission had proposed to define “establishment” by reference to national
accreditation or financing of an establishment providing “higher, vocational or
secondary education”,23 and it had further proposed a definition of “vocational
training”, which was dropped entirely by the Council.24 Next, the final definition
of “unremunerated trainee” was clarified to indicate that the admission would
20 Arts. 2(b) and 2(c) of the proposal; Art. 2(b) of the final Directive.
21 The original proposal had defined a preparatory course as a “preparatory year”,
while the final Directive contains a recital in the preamble stating that the duration
and conditions of preparatory courses shall be defined in national legislation.
22 Art. 2(d) of the proposal; Art. 2(c) of the final Directive.
23 Art. 2(g) of the proposal; Art. 2(e) of the final Directive.
24 Art. 2(f) of the proposal.
730
take place “in accordance with national law”.25 As for the definition of “volun-
tary service scheme”, the Council amended the definition so that such schemes
are not defined by reference to national regulations or practice, or “operated
by a non-profit organisation”, but rather are “based on a Community or State
scheme”.26 Finally, the Council added a new definition to the Directive, defining
“residence permit” by reference to an EC Regulation standardising the format
of such permits.27
In order to address the concerns of Member States which do not admit
all of the categories of persons covered by the Directive, the Council added the
proviso that the rules were only mandatory as far as students are concerned. The
Council also added the exclusion from the Directive for persons considered to be
employees or self-employed under national law as well as two connected recitals
to the preamble, specifying that unremunerated trainees or volunteers consid-
ered to be employed under national law should be excluded from the Directive
and that admission of students planning specialist medical studies “should be
determined by the Member States”.
As for the rules on admission, the Council deleted a proviso that required
the prior issue of a residence permit before admission of any persons pursuant
to the Directive.28 The Council also amended the general conditions of entry to
specify that national law will determine what travel document will be required
for admission, and to delete a proviso that the “public policy” and “public secu-
rity” grounds apply exclusively to the personal conduct of the individual. The
latter amendment was accompanied by a detailed new recital in the preamble.29
The specific rules on admission of students were amended to simplify the
criterion that the student obtain admission to a higher educational institution
first, to add a recital in the preamble permitting Member States to require further
evidence from the applicant “in order to fight against abuse and misuse of the
procedure” and to delete a specific clause on language schools.30 Also, the mobil-
ity clause relating to students was amended by the Council to limit its application
25 Art. 2(e) of the proposal; Art. 2(d) of the final Directive.

26 Art. 2(h) of the proposal; Art. 2(f) of the final Directive. It is not expressly stated
that such measures need be a Member State scheme, so arguably the Directive could
encompass schemes established by non-Member States providing for their citizens
or residents to volunteer in foreign countries.
27 Art. 2(g) of the final Directive, referring to Reg. 1030/2002 (OJ 2002 L 157/1).
28 Art. 5 of the final Directive; Art. 4(1) of the proposal.
29 Art. 6(1) of the final Directive; Art. 5(1) of the proposal.
30 Art. 7 of the final Directive; Art. 6 of the proposal. A provision concerning use of a
letter or certificate to confirm enrolment was moved from the main text to a recital,
but a provision concerning confirmation of admission pending success in a lan-
guages test was dropped. Also, a provision in the recital specifying that fellowships
may be taken into account when determining the student’s resources was added.
731
in several respects: the mobility must concern a complementary course of study;

Member States are not obliged to apply to a mobility application within thirty
days; the student must participate in a bilateral or EC exchange programme or
have been admitted as a student for at least two years (subject to an exemption
if the course of studies requires the student to study in another Member State);
and the first Member State shall send to the second Member State on request
“appropriate information” on the student’s “stay”, not just about his or her aca-
demic record.31 The clause on admission of volunteers was amended to provide
that Member States will have an option, not an obligation, to require volunteers
to take courses in the language, history and political and social structures of the
host State.32
A number of amendments were made to the rules on specific forms of resi-
dence permit. There is no longer an express reference to provisional admission of
students pending completion of further requirements, and the proposed detailed
limits on Member States’ power to withdraw residence permits if students failed
to make sufficient progress in their studies were removed.33 The words “non-
renewable” were dropped from the provisions on residence permits for pupils
and volunteers, but the final Directive nevertheless still sets limits on those per-
mits’ renewability. On the other hand, the final Directive permits Member States
to issue a residence period to volunteers for periods of more than one year in
exceptional circumstances.34 As for trainees, the Directive no longer refers to
non-renewal of their permits if they breach the limitations set upon their right
to take up employment, because the final version of the Directive no longer con-
fers such a right.35 The general rules on withdrawal or non-renewal of residence
permits were amended to provide that fraud is only an optional, rather than
a mandatory, ground for non-renewal or withdrawal, and to delete the limits
which the Commission proposed to apply to the possibility of withdrawal on
grounds of public policy, public security and public health.36
Chapter IV was redubbed the Chapter concerning “[t]reatment” of third-
country nationals, rather than a Chapter setting out “[r]ights”, as the Com-
mission had proposed. Moreover, the Commission’s proposal to provide that
holders of a residence permit have the right to enter and reside, and a parallel
provision in Chapter V on the procedure for applications for admission, were
both dropped by the Council.37 Instead, a recital in the preamble provides that
31 Art. 8 of the final Directive; Art. 7 of the proposal.

32 Art. 11(d) of the final Directive; Art. 10(d) of the proposal.
34 Arts. 13 and 15 of the Directive; Arts. 12 and 14 of the proposal.
35 Art. 14 of the final Directive; Art. 13(2) of the proposal.
36 Art. 16 of the final Directive; Arts. 15 and 16 of the proposal.
37 Arts. 17 and 19 of the proposal.
732
Member States “can issue in a timely manner” a residence permit or visa in

order to provide for entry of the persons concerned. So the final Chapter IV
consists of a single clause on students’ right to work or take up self-employment;
as noted above, the Council dropped such a right for trainees.38 The final Direc-
tive allows Member States to take account of the labour market in this context,
and permits them more flexibility to set a maximum period of hours per week
that students can work (the Commission had proposed a 20 hours/week limit).
A new provision also states that Member States can grant students or employers
prior authorisation, in accordance with national legislation.
The standards in Chapter V, concerning procedures, were lowered con-
siderably by the Council. In particular, the procedural rights proposed by the
Commission were weakened in several respects,39 limiting their scope to applica-
tions for initial issue or renewal of a residence permit, dropping the 90-day time
limit for the authorities’ decision and the requirement to “give reasons based on
objective and verifiable criteria” for negative decisions, and replacing the entitle-
ment to “apply to the courts of the Member State concerned” with the “right
to mount a legal challenge before the authorities” of that Member State. Also,
a provision permitting Member States to establish a “fast-track” system allow-
ing Member States to delegate some responsibility for considering applications
from students and school pupils was simplified, to omit the detail proposed by
the Commission.40 As for fees, the final Directive drops the proposed proviso
that fees cannot exceed the authorities’ administrative costs.41 A specific clause
on transparency was dropped from the main text and inserted in the preamble
instead.42
Finally, within Chapter VI, setting out final provisions, the clauses on non-
discrimination and penalties were dropped,43 and two new clauses were added,44
providing that Member States have a further two-year period after the deadline
to implement the Directive before they have to issue permits in the form of a
residence permit, and specifying that Member States were not obliged to take
account of the periods of residence spent by persons admitted pursuant to the
Directive in order to grant them further rights under national law.45

43 Arts. 24 and 25 of the proposal.
45 On the position pursuant to the long-term residents’ Directive, which Art. 24 of
Directive 2004/114 is expressly “without prejudice” to, see Ch. 20.
733
3 Legal Analysis
Since this Directive does not expressly exclude persons admitted for family
reunion from its scope, there could be confusion as regards the access to educa-
tion of family members as distinct from persons admitted as students or pupils
under this Directive. This is relevant because Member States appear to have
more discretion over admission to education under this Directive than under the
family reunion Directive.
As to the EC’s competence to adopt measures on access to employment
within the scope of this Directive, it is argued elsewhere that the EC has compe-
tence under either Article 63 EC or Article 137 EC to regulate this issue.46
In the explanatory memorandum, the Commission argues that it was
unnecessary for the proposed Directive to state expressly that non-resident
third-country nationals cannot claim maintenance grants, on the grounds that
third-country nationals are not covered by Article 12 of the EC Treaty. This
argument raises the complex question of the application of Article 12 to third-
country nationals, an issue considered elsewhere in this volume.47 In any event,
at the time of the Commission’s initial proposal, the argument missed the point,
since the case law of the Court of Justice at that point had held that Article 12
did not grant the right to equal treatment in maintenance grants even for EU
citizens if they moved as students.48
The other legal question relevant to this Directive is its relationship with
Community powers over education pursuant to Articles 149 and 150 EC, which
grant relatively limited powers to the Community, preventing it from harmonis-
ing national law.49 Should the Directive have been adopted pursuant to those
powers, or alternatively do the limits on EC powers in those provisions preclude
adoption of this Directive? It seems obvious in the absence of more explicit
wording in the provisions of the Treaty (such as the wording of Articles 49 and
137 EC) that Article 63(3) (taken with Article 63(4) for cross-border movement
within the EU) is lex specialis as regards rules on the entry, residence and status
of third-country nationals. Although Articles 149 and 150 include the issue of
“mobility” of students and trainees, in comparison with Article 63 there is no
explicit reference to powers over migration law and so it follows that “mobility”

47 See Ch. 4.
48 See Lair, Brown and Wirth, n. 2 above; but in its Grzelczyk judgment (n. 6 above)
the Court had appeared to hint that the position might be revisited in light of EU
citizenship. The judgment in Bidar (n. 6 above) has subsequently overturned the
prior case law and established that in light of EU citizenship, some further catego-
ries of persons besides migrant workers, self-employed persons and their children
are entitled to equal treatment as regards maintenance grants.
49 This issue is logically not relevant to the provisions of the Directive concerning
volunteers.
734
only extends to the conditions of access to education and vocational training.

However, the Directive does not appear to govern the conditions of access to
education or training.
4 Comments
A fundamental question regarding the Directive is the extent of discretion left
to Member States to control the numbers of persons entering pursuant to the
Directive, or to set conditions for entry other than those specified within the
Directive (on top of the discretion Member States have as to whether to apply
the Directive at all to three of the categories of persons within its scope). There
is no provision of the Directive expressly indicating whether such further discre-
tion, limits and conditions are permissible or not. On the one hand, Article 8 of
the Directive, which obliges Member States to permit student mobility within
the EU when the relevant conditions are met, suggests a contrario that the other
provisions on entry and residence of students leave entry of persons essentially
to the discretion of Member States even where the conditions for entry are sat-
isfied. On the other hand, the right to bring complaint proceedings as regards
application of the Directive and the option of Member States to apply the Direc-
tive only to one, two or three of the four categories within its scope implies that
the rules in the Directive are the sole rules that apply to national authorities as
regards admission of students and (at Member States’ option) the other catego-
ries of persons. Furthermore, the general principles of Community law, includ-
ing equality and proportionality, will apply to national decisions taken pursuant
to the Directive, or (if permissible) any additional national rules. The better view
therefore is that while Member States may in principle impose rules such as an
overall limit on persons admitted as students or for other purposes, such rules
could be struck down if they infringe the general principles of Community law.
Alternatively it could be argued that such rules fall within the “public policy”
exception permitted by the Directive. In any case, an absolute discretion for
authorities over admission would not be permissible.
In any case, it is clear from the wording of Articles 8 and 12 that Member
States must permit mobility of students if the relevant conditions are met, and
must renew students’ residence permits if the conditions set out in Article 6 and
7 are still met; the wording of the latter provision can only be interpreted to
mean that the conditions in Articles 6 and 7 are exhaustive as regards renewal
of residence permits. In fact, it is arguably implicit from the wording of Article
12 that Articles 6 and 7 also set out an exhaustive list of criteria applying to the
initial admission of students.
A closely connected issue is the question of whether the Directive obliges
Member States to permit the entry and residence of persons covered by the
Directive, aside from the clear obligations to permit entry and continued resi-
dence set out in Articles 8 and 12. There is no convincing reason why Article 5(2)
restricts itself to an obligation to “facilitate” admission of persons who meet
735
the criteria for admission on EU schemes. If those persons meet the criteria for
inclusion on those schemes as well as the specific criteria in Articles 6-10, why
should Member States not be under an obligation to admit them? Similarly,
there is no convincing reason why the provisions in the proposed Directive on
entry into the territory of the Member States for all the persons within the scope
of the Directive were dropped, considering that the adoption of rules on entry
and residence of third-country nationals are the entire point of Articles 63(3)(a)
and 63(4). However, it could be argued that there is an implied obligation to
ensure the entry and residence of all persons who meet the criteria for admis-
sion set out in the Directive (and who also meet any further national criteria
for admission, if such criteria are permitted), as a corollary of the rules set out
within it; otherwise the Directive would lose much of its effet utile.50
The extended scope of this Directive as compared to the prior Resolution
on students is welcome, but it would have been preferable to include all persons
not covered by other EC migration legislation. Such an approach would have
guaranteed that minimum standards on entry and residence apply to all persons
who have been legally authorised to reside by a Member State. It would also
have been preferable to retain the Commission’s initial approach of requiring
Member States to apply the rules concerning all four categories of migrants, not
just students. There seems little purpose to including “rules” on the other three
categories in the Directive if those rules are not binding at all. Moreover, there is
no “rendez-vous” clause directing the Commission to consider proposing amend-
ments on this issue (or any other specific issue) when it reviews Member States’
application of the Directive.51 The result is that, in at least those Member States
that opt out of this Directive’s rules, the EU has not fundamentally achieved any
more harmonisation of the rules on admission of “other” categories than it had
following the failed attempts to agree soft law on such admission in 1995. In the
absence of any obligation to publish information in the EU’s Official Journal on
the options chosen by Member States, it may not even be clear which Member
States have opted to apply the Directive’s rules on the three “other” categories
of migrant.
Also, it is disappointing that family members, at least of students, are
not included within the scope of the Directive, particularly as family members
of any sponsors resident for more than one year were within the scope of the
Commission’s first family reunion proposal.52 The presence of family members
could facilitate students’ integration into the life of the host state and provide
50 There is a precedent for this interpretation of the word “facilitate” in EC legislation:

see Case C-459/99 MRAX [2002] ECR I-6591.
51 The reports on implementation shall be periodic, starting three years after the dead-
line to implement the Directive (Art. 21).
52 See Ch. 19.
736
them with financial and emotional support; some of the best students might be
deterred from entry if they cannot bring their family members with them.
Next, it appears that the final Directive clarifies to some extent (although
not fully) the question of whether students doing a “year abroad” as one year
within their degree (where that degree will be awarded by an institution outside
the EU), or even a term abroad (if that term is longer than the three-month min-
imum in the Directive) in the same circumstances, are covered by this proposal.
In the original proposal, the answer to this question was unclear because of the
lack of a definition of “course of study”. The final Directive refers to courses
of study as recognised by a Member State; but it is still possible that a Member
State could be considered to “recognise” a course of study offered by a non-EU
university or college.
As regards the rules on residence permits, the limitations on stay are under-
standable as regards students and school pupils. To a large extent they are
understandable as regards trainees, on the assumption that since it is possible
that it will take longer than two years to obtain a qualification in some cases,
the “exceptional” renewal of residence permits can last for longer than one year.
As for volunteers, given the applicable conditions for a volunteer permit in the
Directive, there seems little point to a one-year limitation on stay with only an
exceptional possibility of renewal, rather than an obligation to meet the origi-
nal conditions in order to secure a renewed permit (as suggested in the 1995
proposal on “others”). In any event, these rules are subject to the proviso that
Member States can adopt more favourable rules for the persons concerned.
It would have been preferable to specify clearly that fraud has to be proved
before residence status is withdrawn pursuant to the Directive, although the
Directive could still be interpreted to this effect. As for expulsion or refusal to
admit on grounds of public policy, et al, it would have been preferable to retain
the Commission’s proposed limits on use of such criteria in order to provide for
“fair” treatment of third-country nationals and “comparable” to that of EU citi-
zens, in line with the Tampere conclusions. Nevertheless, in the absence of a ref-
erence to national law for interpreting such concepts, it could still be argued that
the restrictions for public policy, et al have an EC-wide meaning, possibly even a
meaning identical or comparable to that applicable to EU citizens. In any event,
it could be argued that the EC law principle of “proportionality” would limit a
Member State’s expulsion. For example, if a Member State refuses to renew a
resident permit where the student is not making sufficient progress in studies,
the decision could be disproportionate if the student’s lack of progress is due to
extenuating circumstances, or a change in course; and it should in any event be
sufficient to meet this criterion that the student is passing his or her studies, or
at least willing to switch to another course if having difficulty with the original
course of studies (for example, switching from a Ph.D. to an M.Phil.).
The right of employment for students is welcome, but the final Directive is
very vague on this point. They do not appear to enjoy a right of equal access to
737
employment; but it would breach the principle of proportionality to interpret

the Directive to mean that Member States’ power to “take account” of their
labour market can justify an absolute ban on any employment or self-employ-
ment by students, in light of the various options to restrict students’ economic
activities that the Directive sets out. Also, although the Directive does not
require Member States to permit persons other than students to have access to
employment or self-employment, it should be kept in mind that Member States
retain the power to set standards higher than those provided for in the Directive;
this must entail a power to provide for wider access to economic activities for
these other categories of migrant.
Next, the weakening of the provisions on procedural rights in the Directive
is highly objectionable, given the basic principle of the rule of law underlying
Community law, the basic procedural standards of international human rights
law regarding expulsion of lawful migrants, and the effects of expulsion upon
the individuals concerned. In light of all of these principles, and the right of
effective judicial protection that forms part of the general principles of Commu-
nity law, it is arguable that notwithstanding the wording of the final Directive,
persons who wish to contest decisions taken in the context of this Directive have
a right to a sufficiently reasoned and objective decision and the right to contest
that decision in the courts of the Member State concerned.53 This should also
apply to disputes over the access to employment of students and unremunerated
trainees, and disputes with private bodies when they are able to take decisions
affecting entry and residence under a “fast-track” procedure or send progress
reports on students to the State authorities.
Finally, in light of the exchange of personal data between educational insti-
tutions and the State provided for in the Directive, some of which could impact
upon students’ migration status, there should have been an express reference
to data protection rules in the Directive. It would have been best to provide
expressly that students (or would-be students) must have access to their personal
data held in connection with the scope of the “fast-track” procedure referred to
in the Directive and whenever an educational institution sends progress reports
on students to the Member State authorities. At the very least, it should have
been made clear in the preamble to the Directive that EC data protection rules
and international obligations, including data protection principles derived from
human rights law, will apply.
53 On the issue of procedural rights in immigration and asylum law and the general
principles of EC law, see further Ch. 5.
738

on the conditions of admission of third-country nationals
for the purposes of studies, pupil exchange, unremunerated training or voluntary
service
(OJ 2004 L 375/12)
ticular points (3)(a) and (4) of the first subparagraph of Article 63 thereof,
Having regard to the Opinion of the European Economic and Social Commit-
tee,
Having regard to the Opinion of the Committee of the Regions,
Whereas:
(1) For the gradual establishment of an area of freedom, security and justice,
the Treaty provides for measures to be adopted in the fields of asylum,
immigration and the protection of the rights of third-country nationals.
(2) The Treaty provides that the Council is to adopt measures on immigration
policy relating to conditions of entry and residence, and standards on pro-
cedures for the issue by Member States of long-term visas and residence
permits.
(3) At its special meeting at Tampere on 15 and 16 October 1999, the European
Council acknowledged the need for approximation of national legislation
on the conditions for admission and residence of third-country nationals
and asked the Council to rapidly adopt decisions on the basis of proposals
by the Commission.
(4) This Directive respects the fundamental rights and observes the princi-
ples recognised by the Charter of Fundamental Rights of the European
Union.
(5) The Member States should give effect to the provisions of this Directive
without discrimination on the basis of sex, race, colour, ethnic or social
origin, genetic features, language, religion or belief, political or any other
opinions, membership of a national minority, property, birth, disability, age
or sexual orientation.
739
(6) One of the objectives of Community action in the field of education is to

promote Europe as a whole as a world centre of excellence for studies and
vocational training. Promoting the mobility of third-country nationals to
the Community for the purpose of studies is a key factor in that strategy.
The approximation of the Member States’ national legislation on condi-
tions of entry and residence is part of this.
(7) Migration for the purposes set out in this Directive, which is by definition
temporary and does not depend on the labour-market situation in the host
country, constitutes a form of mutual enrichment for the migrants con-
cerned, their country of origin and the host Member State and helps to
promote better familiarity among cultures.
(8) The term admission covers the entry and residence of third-country nation-
als for the purposes set out in this Directive.
(9) The new Community rules are based on definitions of student, trainee, edu-
cational establishment and volunteer already in use in Community law, in
particular in the various Community programmes to promote the mobility
of the relevant persons (Socrates, European Voluntary Service etc.).
(10) The duration and other conditions of preparatory courses for students cov-
ered by the present Directive should be determined by Member States in
accordance with their national legislation.
(11) Third-country nationals who fall into the categories of unremunerated

trainees and volunteers and who are considered, by virtue of their activities
or the kind of compensation or remuneration received, as workers under
national legislation are not covered by this Directive. The admission of
third-country nationals who intend to carry out specialisation studies in
the field of medicine should be determined by the Member States.
(12) Evidence of acceptance of a student by an establishment of higher educa-

tion could include, among other possibilities, a letter or certificate confirm-
ing his/her enrolment.
(13) Fellowships may be taken into account in assessing the availability of suf-
ficient resources.
(14) Admission for the purposes set out in this Directive may be refused on duly
justified grounds. In particular, admission could be refused if a Member
State considers, based on an assessment of the facts, that the third-coun-
try national concerned is a potential threat to public policy or public secu-
740
rity. The notion of public policy may cover a conviction for committing a
serious crime. In this context it has to be noted that the notions of public
policy and public security also cover cases in which a third-country national
belongs or has belonged to an association which supports terrorism, sup-
ports or has supported such an association, or has or has had extremist
aspirations.
(15) In case of doubts concerning the grounds of the application of admission,

Member States should be able to require all the evidence necessary to assess
its coherence, in particular on the basis of the applicant’s proposed studies,
in order to fight against abuse and misuse of the procedure set out in this
Directive.
(16) The mobility of students who are third-country nationals studying in sev-
eral Member States must be facilitated, as must the admission of third-
country nationals participating in Community programmes to promote
mobility within and towards the Community for the purposes set out in
this Directive.
(17) In order to allow initial entry into their territory, Member States should be
able to issue in a timely manner a residence permit or, if they issue residence
permits exclusively on their territory, a visa.
(18) In order to allow students who are third-country nationals to cover part of
the cost of their studies, they should be given access to the labour market
under the conditions set out in this Directive. The principle of access for
students to the labour market under the conditions set out in this Directive
should be a general rule; however, in exceptional circumstances Member
States should be able to take into account the situation of their national
labour markets.
(19) The notion of prior authorisation includes the granting of work permits to
students who wish to exercise an economic activity.
(20) This Directive does not affect national legislation in the area of part-time
work.
(21) Provision should be made for fast-track admission procedures for study
purposes or for pupil exchange schemes operated by recognised organisa-
tions in the Member States.
(22) Each Member State should ensure that the fullest possible set of regularly
updated information is made available to the general public, notably on the
741
Internet, as regards the establishments defined in this Directive, courses of

study to which third-country nationals may be admitted and the conditions
and procedures for entry and residence in its territory for those purposes.
(23) This Directive should not in any circumstances affect the application of
Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uni-
form format for residence permits for third-country nationals [4].
(24) Since the objective of this Directive, namely to determine the conditions
of admission of third-country nationals for the purposes of study, pupil
exchange, unremunerated training or voluntary service, cannot be suffi-
ciently achieved by the Member States and can, by reason of its scale or
effects, be better achieved at Community level, the Community may adopt
measures, in accordance with the principle of subsidiarity as set out in Arti-
cle 5 of the Treaty. In accordance with the principle of proportionality as
set out in that Article, this Directive does not go beyond what is necessary
to achieve that objective.
United Kingdom and Ireland, annexed to the Treaty on European Union
and to the Treaty establishing the European Community, and without prej-
udice to Article 4 of the said Protocol, these Member States are not taking
part in the adoption of this Directive and are not bound by it or subject to
its application.

tion,
CHAPTER I
GENERAL PROVISIONS
Article 1 Subject matter
The purpose of this Directive is to determine:

(a) the conditions for admission of third-country nationals to the territory of
the Member States for a period exceeding three months for the purposes of
studies, pupil exchange, unremunerated training or voluntary service;
742
(b) the rules concerning the procedures for admitting third-country nationals to
the territory of the Member States for those purposes.

(a) “third-country national” means any person who is not a citizen of the Euro-
pean Union within the meaning of Article 17(1) of the Treaty;
(b) “student” means a third-country national accepted by an establishment of
higher education and admitted to the territory of a Member State to pursue
as his/her main activity a full-time course of study leading to a higher edu-
cation qualification recognised by the Member State, including diplomas,
certificates or doctoral degrees in an establishment of higher education,
which may cover a preparatory course prior to such education according to
its national legislation;
(c) “school pupil” means a third-country national admitted to the territory of
a Member State to follow a recognised programme of secondary education
in the context of an exchange scheme operated by an organisation recog-
nised for that purpose by the Member State in accordance with its national
legislation or administrative practice;
(d) “unremunerated trainee” means a third-country national who has been
admitted to the territory of a Member State for a training period without
remuneration in accordance with its national legislation;
(e) “establishment” means a public or private establishment recognised by the
host Member State and/or whose courses of study are recognised in accor-
dance with its national legislation or administrative practice for the pur-
poses set out in this Directive;
(f) “voluntary service scheme” means a programme of activities of practical
solidarity, based on a State or a Community scheme, pursuing objectives of
general interest;
(g) “residence permit” means any authorisation issued by the authorities of a
Member State allowing a third-country national to stay legally in its terri-
tory, in accordance with Article 1(2)(a) of Regulation (EC) No 1030/2002.
Article 3 Scope
1. This Directive shall apply to third-country nationals who apply to be admit-

ted to the territory of a Member State for the purpose of studies.
Member States may also decide to apply this Directive to third-country

nationals who apply to be admitted for the purposes of pupil exchange,
unremunerated training or voluntary service.
743
2. This Directive shall not apply to:

(a) third-country nationals residing in a Member State as asylum-seekers,
or under subsidiary forms of protection, or under temporary protec-
tion schemes;
(b) third-country nationals whose expulsion has been suspended for rea-
sons of fact or of law;
(c) third-country nationals who are family members of Union citizens
who have exercised their right to free movement within the Commu-
nity;
(d) third-country nationals who enjoy long-term resident status in a
Member State in accordance with Council Directive 2003/109/EC
of 25 November 2003 on the status of third-country nationals who
are long-term residents and exercise their right to reside in another
Member State in order to study or receive vocational training;
(e) third-country nationals considered under the national legislation of
the Member State concerned as workers or self-employed persons.
1. This Directive shall be without prejudice to more favourable provisions of:

(a) bilateral or multilateral agreements between the Community or the
Community and its Member States and one or more third countries;
or
(b) bilateral or multilateral agreements between one or more Member
States and one or more third countries.
2. This Directive shall be without prejudice to the right of Member States to

adopt or maintain provisions that are more favourable to the persons to
whom it applies.
CHAPTER II
CONDITIONS OF ADMISSION
Article 5 Principle
The admission of a third-country national under this Directive shall be subject

to the verification of documentary evidence showing that he/she meets the con-
ditions laid down in Article 6 and in whichever of Articles 7 to 11 applies to the
relevant category.
744
Article 6 General conditions
1. A third-country national who applies to be admitted for the purposes set

out in Articles 7 to 11 shall:
(a) present a valid travel document as determined by national legislation.
Member States may require the period of validity of the travel docu-
ment to cover at least the duration of the planned stay;
(b) if he/she is a minor under the national legislation of the host Member
State, present a parental authorisation for the planned stay;
(c) have sickness insurance in respect of all risks normally covered for its
own nationals in the Member State concerned;
(d) not be regarded as a threat to public policy, public security or public
health;
(e) provide proof, if the Member State so requests, that he/she has paid
the fee for processing the application on the basis of Article 20.
2. Member States shall facilitate the admission procedure for the third-coun-
try nationals covered by Articles 7 to 11 who participate in Community
programmes enhancing mobility towards or within the Community.
Article 7 Specific conditions for students
1. In addition to the general conditions stipulated in Article 6, a third-country

national who applies to be admitted for the purpose of study shall:
(a) have been accepted by an establishment of higher education to follow
a course of study;
(b) provide the evidence requested by a Member State that during his/her
stay he/she will have sufficient resources to cover his/her subsistence,
study and return travel costs. Member States shall make public the
minimum monthly resources required for the purpose of this provi-
sion, without prejudice to individual examination of each case;
(c) provide evidence, if the Member State so requires, of sufficient knowl-
edge of the language of the course to be followed by him/her;
(d) provide evidence, if the Member State so requires, that he/she has paid
the fees charged by the establishment.
2. Students who automatically qualify for sickness insurance in respect of all

risks normally covered for the nationals of the Member State concerned
as a result of enrolment at an establishment shall be presumed to meet the
condition of Article 6(1)(c).
745
Article 8 Mobility of students
1. Without prejudice to Articles 12(2), 16 and 18(2), a third-country national

who has already been admitted as a student and applies to follow in another
Member State part of the studies already commenced, or to complement
them with a related course of study in another Member State, shall be
admitted by the latter Member State within a period that does not hamper
the pursuit of the relevant studies, whilst leaving the competent authorities
sufficient time to process the application, if he/she:
(a) meets the conditions laid down by Articles 6 and 7 in relation to that
Member State; and
(b) has sent, with his/her application for admission, full documentary evi-
dence of his/her academic record and evidence that the course he/she
wishes to follow genuinely complements the one he/she has completed;
and
(c) participates in a Community or bilateral exchange programme or has
been admitted as a student in a Member State for no less than two
years.
2. The requirements referred to in paragraph 1(c), shall not apply in the case
where the student, in the framework of his/her programme of studies, is
obliged to attend a part of his/her courses in an establishment of another
Member State.
3. The competent authorities of the first Member State shall, at the request of
the competent authorities of the second Member State, provide the appro-
priate information in relation to the stay of the student in the territory of
the first Member State.
Article 9 Specific conditions for school pupils
1. Subject to Article 3, a third-country national who applies to be admitted in

a pupil exchange scheme shall, in addition to the general conditions stipu-
lated in Article 6:
(a) not be below the minimum age nor above the maximum age set by the
(b) provide evidence of acceptance by a secondary education establish-
ment;
(c) provides evidence of participation in a recognised pupil exchange
scheme programme operated by an organisation recognised for that
purpose by the Member State concerned in accordance with its national
legislation or administrative practice;
746
(d) provides evidence that the pupil exchange organisation accepts respon-
sibility for him/her throughout his/her period of presence in the
territory of the Member State concerned, in particular as regards sub-
sistence, study, healthcare and return travel costs;
(e) be accommodated throughout his/her stay by a family meeting the
conditions set by the Member State concerned and selected in accor-
dance with the rules of the pupil exchange scheme in which he/she is
participating.
2. Member States may confine the admission of school pupils participating

in an exchange scheme to nationals of third countries which offer the same
possibility for their own nationals.
Article 10 Specific conditions for unremunerated trainees
Subject to Article 3, a third-country national who applies to be admitted as an

unremunerated trainee shall, in addition to the general conditions stipulated in
Article 6:
(a) have signed a training agreement, approved if need be by the relevant
authority in the Member State concerned in accordance with its national
legislation or administrative practice, for an unremunerated placement with
a public- or private-sector enterprise or vocational training establishment
recognised by the Member State in accordance with its national legislation
or administrative practice;
(b) provide the evidence requested by a Member State that during his/her stay
he/she will have sufficient resources to cover his/her subsistence, training
and return travel costs. The Member States shall make public the mini-
mum monthly resources required for the purpose of this provision, without
prejudice to individual examination of each case;
(c) receive, if the Member State so requires, basic language training so as to
acquire the knowledge needed for the purposes of the placement.
Article 11 Specific conditions for volunteers
Subject to Article 3, a third-country national who applies to be admitted to a

voluntary service scheme shall, in addition to the general conditions stipulated
in Article 6:
(a) not be below the minimum age nor above the maximum age set by the
(b) produce an agreement with the organisation responsible in the Member
State concerned for the voluntary service scheme in which he/she is par-
ticipating, giving a description of tasks, the conditions in which he/she is
supervised in the performance of those tasks, his/her working hours, the
747
resources available to cover his travel, subsistence, accommodation costs

and pocket money throughout his/her stay and, if appropriate, the training
he will receive to help him/her perform his/her service;
(c) provide evidence that the organisation responsible for the voluntary ser-
vice scheme in which he/she is participating has subscribed a third-party
insurance policy and accepts full responsibility for him/her throughout his/
her stay, in particular as regards his/her subsistence, healthcare and return
travel costs;
(d) and, if the host Member State specifically requires it, receive a basic intro-
duction to the language, history and political and social structures of that
Member State.
CHAPTER III
RESIDENCE PERMITS
Article 12 Residence permit issued to students
1. A residence permit shall be issued to the student for a period of at least

one year and renewable if the holder continues to meet the conditions of
Articles 6 and 7. Where the duration of the course of study is less than one
year, the permit shall be valid for the duration of the course.
2. Without prejudice to Article 16, renewal of a residence permit may be

refused or the permit may be withdrawn if the holder:
(a) does not respect the limits imposed on access to economic activities
under Article 17;
(b) does not make acceptable progress in his/her studies in accordance
with national legislation or administrative practice.
Article 13 Residence permit issued to school pupils
A residence permit issued to school pupils shall be issued for a period of no

more than one year.
Article 14 Residence permit issued to unremunerated trainees
The period of validity of a residence permit issued to unremunerated trainees

shall correspond to the duration of the placement or shall be for a maximum
of one year. In exceptional cases, it may be renewed, once only and exclusively
for such time as is needed to acquire a vocational qualification recognised by
a Member State in accordance with its national legislation or administrative
practice, provided the holder still meets the conditions laid down in Articles 6
and 10.
748
Article 15 Residence permit issued to volunteers
A residence permit issued to volunteers shall be issued for a period of no more

than one year. In exceptional cases, if the duration of the relevant programme
is longer than one year, the duration of the validity of the residence permit may
correspond to the period concerned.
Article 16 Withdrawal or non-renewal of residence permits
1. Member States may withdraw or refuse to renew a residence permit issued

on the basis of this Directive when it has been fraudulently acquired or
wherever it appears that the holder did not meet or no longer meets the
conditions for entry and residence laid down in Article 6 and in whichever
of Articles 7 to 11 applies to the relevant category.
2. Member States may withdraw or refuse to renew a residence permit on

grounds of public policy, public security or public health.
CHAPTER IV
TREATMENT OF THE THIRD-COUNTRY
NATIONALS CONCERNED
Article 17 Economic activities by students
1. Outside their study time and subject to the rules and conditions applicable
to the relevant activity in the host Member State, students shall be entitled
to be employed and may be entitled to exercise self-employed economic
activity. The situation of the labour market in the host Member State may
be taken into account.
Where necessary, Member States shall grant students and/or employers

prior authorisation in accordance with national legislation.
2. Each Member State shall determine the maximum number of hours per
week or days or months per year allowed for such an activity, which shall
not be less than 10 hours per week, or the equivalent in days or months per
year.
3. Access to economic activities for the first year of residence may be restricted
by the host Member State.
4. Member States may require students to report, in advance or otherwise,

to an authority designated by the Member State concerned, that they are
749
engaging in an economic activity. Their employers may also be subject to a

reporting obligation, in advance or otherwise.
CHAPTER V
Article 18 Procedural guarantees and transparency
1. A decision on an application to obtain or renew a residence permit shall be

adopted, and the applicant shall be notified of it, within a period that does
not hamper the pursuit of the relevant studies, whilst leaving the competent
authorities sufficient time to process the application.
2. If the information supplied in support of the application is inadequate, pro-

cessing of the application may be suspended and the competent authorities
shall inform the applicant of any further information they need.
3. Any decision rejecting an application for a residence permit shall be noti-

fied to the third-country national concerned in accordance with the notifi-
cation procedures provided for under the relevant national legislation. The
notification shall specify the possible redress procedures available and the
time limit for taking action.
4. Where an application is rejected or a residence permit issued in accordance

with this Directive is withdrawn, the person concerned shall have the right
to mount a legal challenge before the authorities of the Member State con-
cerned.
Article 19 Fast-track procedure for issuing residence permits

or visas to students and school pupils
An agreement on the establishment of a fast-track admission procedure allow-

ing residence permits or visas to be issued in the name of the third-country
national concerned may be concluded between the authority of a Member
State with responsibility for the entry and residence of students or school
pupils who are third-country nationals and an establishment of higher edu-
cation or an organisation operating pupil exchange schemes which has been
recognised for this purpose by the Member State concerned in accordance
with its national legislation or administrative practice.
750
Article 20 Fees
Member States may require applicants to pay fees for the processing of applica-
tions in accordance with this Directive.
CHAPTER VI
FINAL PROVISIONS
Article 21 Reporting
Periodically, and for the first time by 12 January 2010, the Commission shall
report to the European Parliament and the Council on the application of this
Directive in the Member States and propose amendments if appropriate.
provisions necessary to comply with this Directive by 12 January 2007. They
shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to
this Directive or shall be accompanied by such reference on the occasion of their
official publication. The methods of making such reference shall be laid down
by Member States.
Article 23 Transitional provision
By way of derogation from the provisions set out in Chapter III and for a period
of up to two years after the date set out in Article 22, Member States are not
obliged to issue permits in accordance with this Directive in the form of a resi-
dence permit.
Article 24 Time limits
Without prejudice to the second subparagraph of Article 4(2) of Directive

2003/109/EC, Member States shall not be obliged to take into account the time
during which the student, exchange pupil, unremunerated trainee or volunteer
has resided as such in their territory for the purpose of granting further rights
under national law to the third-country nationals concerned.
751
752
Chapter 23 Social Security
1 Summary
Regulation 859/2003, on the coordination of social security for third-country
nationals,1 has applied since 1 June 2003. The UK and Ireland opted into the
Regulation, and Denmark was unable to participate. This Regulation has the
“legal base” of Article 63(4) EC, which confers powers on the EC to adopt
measures on the rights of third-country nationals who move between Member
States.
The text of the Regulation is quite straightforward. Article 1 extends the
EC legislation on social security coordination to all third-country nationals and
members of their families who are not already covered by that Regulation, on
two conditions: they must be “legally resident” and there must be a cross-border
dimension within the EU (meaning that the person concerned must have lived
in more than one of the EU Member States).2 Article 2 sets out the details of
the transitional application of the Regulation; third-country nationals had to
apply for equal treatment within two years (so by 1 June 2005), otherwise they
would be limited to equal treatment from the time of their application, unless a
Member State chooses to be more generous. Article 3 sets the date of application
of the Regulation. Finally, an Annex provides that in Germany, only persons in
possession of a particular permit will qualify for certain family benefits, while
Austria is permitted to set out special additional conditions for access to family
allowances.
1 OJ 2003 L 124/1.
2 Reg. 1408/71 (OJ 1971 L 149/2).
2 History and Legislative Background

This measure began life as a proposal from the Commission in late 1997 to
amend the EC’s social security Regulation to add within its scope third-country
nationals besides stateless persons, refugees and third-country national family
members of EC nationals, who had always been covered by this legislation since
its adoption at the very beginning of the Community.3 This initiative gained sup-
port from the EP without amendment in October 1998.4 However, the measure
was not agreed, largely due to a dispute over the “legal base” of the proposal.
The Commission proposed the use of Articles 42 and 308 EC (then Articles
51 and 235 EC), which respectively give the EC power to adopt measures on
social security for migrant workers and provide for residual powers for the EC
where no other provision of the Treaty confers them.5 Article 308 was neces-
sary because at least the extension of social security rules to the self-employed
required its use. However, while welcoming the idea of extending at least some
of the EC social security rules to third-country nationals in principle, a number
of Member States took the view that Article 42 did not extend to third-coun-
try nationals, even though as noted above, certain categories of third-country
nationals had always been within its scope. It was never quite clear whether the
Commission intended its proposal to cover all third-country nationals in the
Community, or only those who moved between Member States. Obviously, the
former would entail higher perceived costs for Member States and they would
thus be more reluctant to agree to the proposal.
Following the entry into force of the Treaty of Amsterdam in May 1999,
the Commission maintained that its proposed legal bases were still correct,
despite the creation of the new Title IV of Part Three of the EC Treaty, dealing
largely with third-country nationals. At this point, while some Member States
were maintaining their reserves about the legal base, all were focussing on the
substance of the proposal. Some wanted to exclude the principle of equal treat-
ment, while others were determined that it should be included. As for the specific
benefits, only Greece, Portugal and Luxembourg supported the full extension of
the EC rules, while others had objections to certain provisions. The UK objected
to any extension except for the provisions on health care and posted workers.6 In
3 COM (97) 561, 12 Nov. 1997. EC national survivors of third-country nationals were
also covered already.
4 OJ 1998 C 313/8.
5 At the time, both these provisions called for consultation of the EP and a unanimous
vote of the Council. Following the entry into force of the Treaty of Amsterdam,
Art. 42 became subject to the “co-decision” procedure while retaining unanimity in
the Council.
6 See Council doc. 8807/99, 1 June 1999 (outcome of proceedings of working party
on 27 May 1999).
754
contrast to the Commission, the Council legal service took the view that the new
Article 63(4) EC was now the correct legal base.7
The Finnish Presidency tried to move the debate forward by proposing the
lowest common denominator of the extension of the provisions on posted work-
ers and medical care, based on Articles 42 and 308 EC coupled with a request
to the planned Inter-governmental Conference (which ultimately culminated in
the Treaty of Nice) to address this issue.8 But it soon proposed an even narrower
extension, to posted workers only.9 However, it became clear that despite such
compromises on the substance, and the support of all Member States except
Denmark for the extension of some of the EC rules to third-country nation-
als, some delegations were still unwilling to agree the text as long as the “legal
base” issue remained under dispute. In particular, the UK, Ireland and Den-
mark (the “opt-out” Member States) supported the use of Article 63(4), the
Dutch eventually supported Article 308 only, and the remaining eleven Member
States supported Article 42. The matter was referred to the employment Council
in November 1999, but the deadlock remained, and the next three Council Presi-
dencies saw no point in revisiting the issue.10
The matter was revived by the Belgian Council Presidency in the second
half of 2001, and the employment Council of October 2001 asked Coreper to
examine the “legal base” issue again. Shortly afterward, the Court of Justice
delivered its judgment in the cases of Khalil and others and Addou.11 In its judg-
ment, which concerned refugees and stateless persons, the Court concluded that
the Council had validly included such categories of persons within the scope of
the EC’s existing social security Regulation by using what was originally Article
51 EEC as a “legal base”. But the Court also ruled that the legislation only
governed the position of refugees and stateless persons when they moved within
the Community. Since, unlike Community nationals and their family members,
refugees and stateless persons have no right of free movement under EC law, the
EC social security rules would therefore be of little use to them.
7 Council doc. 9745/99, 1 July 1999 (not released, but the content of the opinion can
be surmised from other documents). The legal service had issued a legal opinion in
1998 on the “legal base” of the proposal prior to the Treaty of Amsterdam, but it is
not known what view it took then.
8 Council docs. SN 4079/99, 15 Sep. 1999; SN 4079/1/99, 17 Sep. 1999; and 11043/99,
17 Sep. 1999. Ultimately the issue of the legal base for social security rules gov-
erning third-country nationals was discussed extensively during the Treaty of Nice
negotiations, but no relevant Treaty amendment was agreed.
9 Council docs. 11746/99, 13 Oct. 1999 and SN 4079/2/99, 20 Oct. 1999.
10 Council docs. 12830/99, 11 Nov. 1999; 12831/99, 12 Nov. 1999; and 13186/99, 22
Nov. 1999.
11 Joined Cases C-95/99 to 98/99 Khalil and others and C-180/99 Addou [2001] ECR
I-7413.
755
The Council legal service analysed this judgment shortly afterwards.12 Its
view is not known, but it seems likely that it reiterated its previous view on the
legal base, for the Belgian Presidency proposed Conclusions supporting the legal
base of Article 63(4), which the employment Council agreed in December 2001.13
To implement this agreement, in Februrary 2002 the Commission proposed a
fresh Regulation based on Article 63(4), with essentially the same content as the
prior Regulation.14 Article 1 extended the application of Regulation 1408/71 to
all third-country nationals not already covered by it, “provided they are legally
resident within the territory of a Member State and move legally within the
Community”, while Article 2 set out transitional provisions.
The proposal was swiftly discussed in the Council’s working group on social
policy, and the Employment and Social Policy Council duly reached a “general
approach” on the text in June 2002.15 There were limited amendments to Article
1 of the text and to the preamble, concerning the requirement of legal residence
for its beneficiaries and to clarify more clearly that the proposal only covers
those who move between Member States (see particularly recitals 11 to 13).
Some Member States had misgivings about extending family benefits, unem-
ployment benefits and the equality principle fully even to this limited group of
third-country nationals. Ultimately, Finland withdrew its objections on family
benefits and Germany, Luxembourg and the Netherlands withdrew their objec-
tion on unemployment benefits, but Germany and Austria insisted on the limits
ultimately set out in the Annex to the Regulation. Their argument was the cost of
extension plus “reverse discrimination” between migrant third-country nation-
als and “non-migrant” third-country nationals, the latter being worse off. The
compromise was to keep family benefits within the scope of the proposal, with a
limited exception for those Member States.
Rather tardily, the EP adopted its opinion on the proposal in November
2002, approving it with five amendments despite its view that the “legal base”
should still be Articles 42 and 308.16 It suggested one amendment to the main
text, extending the period for claiming under the Regulation from two years to
four years. The four suggested amendments to the preamble expanded upon
the reference to the EU Charter of Fundamental Rights, referred to the “great
12 Council doc. 12748/01, 18 Oct. 2001 (not released).

13 Council docs. 13545/01, 13 Nov. 2001; 14380/01, 22 Nov. 2001; 14600/01, 28 Nov.
2001; 14493/01, 30 Nov. 2001; and 15056/01, 6 Dec. 2001 (final text agreed by the 3
Dec. 2001 Council).
14 COM (2002) 59, 6 Feb. 2002; OJ 2002 C 126 E/388.
15 Council docs. 6273/02, 25 Feb. 2002; 6771/02, 12 Mar. 2002; 7440/02, 27 Mar. 2002;
8309/02, 25 Apr. 2002; 8604/02, 13 May 2002; 9009/02, 30 May 2002; 8957/02 ext 2,
17 May 2002; 9232/02 ext 2, 25 May 2002; and 9673/02, 10 June 2002.
16 Plenary vote of 21 Nov. 2002. See also its resolution on the “legal base” issue (OJ
2001 C 276/242).
756
importance” of the proposal, placed it in the context of the proposed Directive

on long-term residents and added a specific reference to the relevance of enlarg-
ment to this Regulation. Three of the five amendments were rejected by the
Commission and delegations, with the enlargement amendment accepted in part
and the UK delegation concerned about an expanded reference to the EU Char-
ter.17 The UK withdrew its reservation following discussion in Coreper, and the
text was “politically agreed” at the employment, health and consumers Council
in December 2002.18 It was subsequently formally adopted by the Transport,
Energy and Telecommunications Council on 14 May 2003.
Although this Regulation only governs the situation of third-country
nationals who move between Member States, it should be recalled that the situ-
ation of those within a single Member State is covered by other provisions of
adopted or proposed EC legislation or treaties binding the Community. As noted
above, refugees, stateless persons and third-country national family members
linked to EC nationals migrating within the EC have always been covered by
Regulation 1408/71, and in 1996 the Court of Justice enhanced the application
of the Regulation to those family members’ by largely scrapping the “derived
rights” rule that had previously limited their access to social security benefits in
some cases.19
Other persons are covered by association agreements adopted by the Com-
munity or measures implementing such agreements. Nationals of Norway, Ice-
land and Liechtenstein are fully covered by the EC’s internal rules because of
the EEA agreement, and Swiss nationals are fully covered by the EC’s internal
rules because of the bilateral EC/Swiss treaty on free movement of persons.20
This means that such persons are covered by the rule of equal social security
treatment in one Member State as well as the coordination rules if they move
to another Member State. In principle, Turkish nationals are covered by both
the principle of equal treatment in one Member State and a version of the EC’s
internal coordination rules if they move to another Member State, by virtue
of a 1980 Decision of the EC-Turkey Association Council established by the
EC-Turkey association agreement. However, the Court of Justice has ruled that
17 Council doc. 13258/02, 23 Nov. 2002.

18 Council doc. 14799/02, 27 Nov. 2002. See finalised text in Council doc. 15040/02, 20
Jan. 2003.
19 Case C-308/93 Cabanis-Issarte [1996] ECR I-2097. See comments by Peers, “Equal-
ity, Free Movement and Social Security” 22 ELRev. (1997) 342. The “derived rights”
rule still applies to unemployment benefits: see Case C-189/00 Ruhr [2001] ECR
I-8225.
20 OJ 1994 L 1/1 and OJ 2002 L 114. Indeed, the coordination rules in the EC legisla-
tion have also been extended to benefits deriving from periods of social security
insurance in those non-EU countries.
757
while the equal treatment provisions of this Decision are directly effective,21 the
coordination rules cannot apply until the EC adopts internal legislation to apply
them.22 Such an internal measure will presumably be unnecessary following
the adoption of Regulation 859/2003. Finally, nationals of the Maghreb States
(Morocco, Algeria and Tunisia) are also covered by equal treatment rules by
virtue of association agreements.23
The social security position of nationals of all other non-EU countries is
governed by adopted Title IV measures are or would be governed by adopted
or proposed Title IV measures. These rules appear in the adopted Directives on
temporary protection, refugee and subsidiary protection status, long-term resi-
dents, and researchers, and the proposed Directive on migration for employment
and self-employment (since withdrawn).24 It is not clear whether persons with
refugee status can rely on the association agreements if they have the relevant
nationality,25 although it seems clear that persons with dual nationality of an
EU Member State and a non-EU country cannot rely on the association agree-
ments.26
It should also be noted that the European Court of Human Rights has
ruled in the case of Gaygusuz v. Austria that discrimination on grounds of
nationality, as regards at least contributory social security benefits, infringed the
right to property as guaranteed by the First Protocol to the ECHR, taken with
Article 14 ECHR, which requires non-discrimination in respect of the rights in
the Convention and its Protocols.27 A later judgment in Poirrez v France con-
firmed that the equal treatment principle also bans nationality discrimination as
21 Case C-262/96 Surul [1999] ECR I-2685.

22 Case C-277/94 Taflan-Met [1996] ECR I-4085. However, equal treatment still applies
to some cross-border situations which do not entail the application of coordination
rules: see Case C-373/02 Ozturk, judgment of 28 April 2004, not yet reported.
23 See case law beginning with Case C-18/90 Kziber [1991] ECR I-199.
24 See respectively Art. 12 of Directive 2001/55 (see Ch. 15); Art. 26(5) of Directive
2004/83 on refugee and subsidiary protection status (see Ch. 13); Art. 11(1)(d) of
Directive 2003/109 on long-term residents (see Ch. 20); Art. 11(1)(f)(iv) of the pro-
posal on migration for employment or self-employment (see Ch. 21); and Art. 12(c)
of the Directive on admission of researchers (see Ch. 21). Other measures refer to
access to employment, but make no mention of social security: Art. 11 of Directive
2003/9 on reception conditions for asylum-seekers (see Ch. 12); Art. 11 of Direc-
tive 2004/81 on victims of trafficking in persons (see Ch. 29); Art. 17 of Directive
2004/114 on admission of students and others (OJ 2004 L 375/12; see Ch. 22).
25 The point was relevant in Khalil and Addou, n. 11 above, but was not referred by
the national court, which assumed that refugees could not rely on the EC-Morocco
agreement. For the argument that refugees can rely on such agreements, see Peers,
case note on Khalil and Addou, 39 CMLRev. (2002) 1395.
26 Case C-179/98 Mesbah [1999] ECR I-7955.
27 Reports of Judgments and Decisions, 1996-IV.
758
applied to non-contributory social security benefits.28 It is also arguable that the

general principle of equality in EC law requires an application of the non-dis-
crimination principle to all forms of social security, particularly in light of these
Strasbourg judgments and the broad non-discrimination obligation in Article 26
of the International Covenant of Civil and Political Rights.29
3 Legal Analysis
The central legal question in this case is whether Regulation 859/2003 needed to
be adopted on the basis of Article 63(4) EC or Article 42 EC. Although both
provisions call for unanimous voting in the Council, there are several important
differences: Article 42 requires “co-decision”, rather than mere consultation,
with the EP; the UK, Ireland and Denmark have an opt-out as regards Article
63(4);30 and only final courts can refer questions on measures adopted pursuant
to Article 63(4).31 There is something of a “Catch-22” here in that Denmark
was opposed in principle to the concept of extending the social security rules to
third-country nationals – even before the election of a Danish government with
even more conservative views on the treatment of third-country nationals. So
Danish participation might have prevented adoption of this Regulation.
In the Court’s view, “the Council cannot be criticised for having, in the exer-
cise of the powers which have been conferred on it under Article 51 of the EEC
Treaty, also included stateless persons and refugees resident on the territory of
the Member States in order to take into account [Member States’] international
obligations.”32 It also noted that instead of using the EC coordination legisla-
tion, Member States would otherwise have had to establish a second, separate
regime for the coordination of social security for this category of persons.
28 Judgment of 30 Sep. 2003, not yet reported (particularly para. 37). See earlier judg-
ment of 11 June 2002 in Willis v UK, para. 35 and admissibility decision in Wessels-
Bergervoet v Netherlands, 3 Oct. 2000; and subsequently admissibility decision of 16
Dec. 2003 in Van den Bouwhuijsen and Schuring v Netherlands, not yet reported and
Grand Chamber judgment of 28 April 2004 in Azinas v Cyprus, not yet reported
(particularly dissenting judgment of judges Costa and Garlicki).
29 For more detailed analysis, see Verschueren, “EC Social Security Coordination
Excluding Third-Country Nationals: Still in Line with Fundamental rights After
the Gaygusuz judgment?” 24 CMLRev. (1997) 991.
30 However, the UK and Ireland exercised their “opt-in” in this case.
31 Another distinction is that Member States could propose measures based on Art.
63(4) up until 1 May 2004, whereas only the Commission can propose measures
based on Art. 42. But this is something of a moot point, since the Commission pro-
posed this measure in any case and the Member States have since lost their right of
initiative now that the date of 1 May 2004 has passed.
32 Para. 56 of the judgment (n. 11 above).
759
In its conclusions of December 2001, the Council stated simply that Article
42 EC, “interpreted in light of the case law of the Court of Justice, in particular
the judgment in the Khalil case…does not appear to be an adequate legal basis
for such an extension” and stated that Article 63(4) is the legal basis for decid-
ing on the conditions under which third-country nationals can reside in other
Member States.
There is little detailed reasoning in either the Court’s conclusions or the
Council’s. However, the Court seemed to place particular stress on the interna-
tional legal obligations of the Member States, with the administrative conve-
nience of establishing a single coordination scheme as an ancillary reason for
concluding that Article 42 EC applied. To what extent does the same reason-
ing apply to other third-country nationals? As noted above, the Gaygusuz judg-
ment (confirmed by the subsequent Poirrez judgment) of the European Court of
Human Rights made clear that there is an obligation to afford equal treatment
to social security without discrimination on the basis of nationality. So there is
an international legal obligation binding the Member States as regards all third-
country nationals, which also dates from a pre-existing international treaty. In
fact, the agreed Regulation acknowledges the ECHR in its preamble. Moreover,
there are other international treaties placing more precise obligations of non-
discrimination in social security on the Member States.33 As for the argument
that a single social security coordination system is easier to administer, this is
undoubtedly correct; but this consideration applies equally to all third-country
nationals, not just to refugees and stateless persons. Indeed, the preamble to
Regulation 859/2003 expressly acknowledges this.
Can it be argued that with the entry into force of the Treaty of Amsterdam,
the legal position on this issue changed? If Regulation 859/2003 were intrin-
scially connected with the free movement of third-country nationals, it would
indeed be arguable that Article 63(4) EC was the correct legal basis. But it clearly
is not; again the preamble to the Regulation expressly asserts that the Regula-
tion gives persons no right to enter, stay or reside in a Member State. It is thus
disconnected from the heart of the power conferred upon the EC by Article
63(4) EC. Of course, the extension of the coordination regime will facilitate free
movement of third-country nationals, but one can have free movement without
social security coordination or conversely social security coordination without
free movement. Self-employed EC nationals were in the former position before
1981, and refugees and stateless persons have always been in the latter position
to date. The UK and Ireland have placed themselves in the latter position as
regards long-term resident third-country nationals, and all Member States will
be in this position to some extent, since the agreed Regulation does not confine
its application to long-term residents and the long-term residents’ Directive will
not apply for some time after the Regulation does.
760
It is even arguable, in light of the human rights case law and the general
principle of equality discussed above, that the Annex to the Regulation is invalid
for setting impermissible limitations on the right to non-discrimination as
regards social security.
4 Comments
The extension of equal treatment to third-country nationals after such a lengthy
period is obviously welcome. Of course, the EC’s success in adopting this mea-
sure must be weighed against the practical limitation that the Regulation is con-
fined to third-country nationals in cross-border situations, meaning only those
third-country nationals posted by their EC employers across borders were cov-
ered by the Regulation as of right at the outset.34 It must also be weighed against
the exclusions from the scope of the Regulation in Germany and Austria and
the inability of lower courts and tribunals, at least at present, to send questions
about its application (or the validity of these exclusions) to the Court of Justice.
Because of the distinctions in personal and material scope (as well as ECJ juris-
diction) between the Regulation on EC nationals’ social security (as extended to
certain countries by association agreements) on the one hand, and Regulation
859/2003 on the other hand, it will still be important to ascertain which Regula-
tion a person is covered by. For example, the limits on certain German and Aus-
trian benefits in the extension Regulation do not apply to refugees and stateless
persons, as they are covered by the general EC regime; and despite the limits on
the geographical scope of the extension Regulation, a number of persons can
already claim equality in social security in one Member State without having to
move within the EC, because of agreements between the EC and third countries
discussed above.
The real importance of the extension Regulation will be obvious once
Member States apply Directive 2003/109 on long-term residents,35 which pro-
vides for the right for long-term resident third-country nationals (subject to
many qualifications) to move between Member States. The deadline for them to
do so is 23 January 2006. At that point the scope of the persons covered by the
Regulation in practice is bound to increase, and the legally questionable limits
on benefits in certain Member States could well come under challenge. However,
the long-term residents’ Directive does not at present cover refugees or persons
with subsidiary protection – so oddly the one group of persons (refugees) who
34 Case C-43/93 Van der Elst [1994] ECR I-3803 and Case C-445/03 Commission v
Luxembourg, judgment of 21 Oct. 2004, not yet reported. See also Cases C-168/04
Commission v Austria and C-244/04 Commission v Germany, both pending (an
Opinion in the latter case was issued on 15 Sep. 2005). Of course, any refugees and
stateless persons who are posted to another Member State by their employer are
already covered by the existing EC rules.
761
have always been covered by the EC social security coordination rules will still
be excluded even from the limited form of free movement right granted to most
third-country nationals by the Directive.36 In any event, given the limitations on
the scope of the long-term residents’ Directive and upon long-term residents’
ability to move between Member States, for most third-country nationals, the
most relevant challenge will still be to ensure that EC legislation ensures their
right to equal treatment in social security in their first Member State of resi-
dence.
Finally, the peculiar position of the UK and Ireland should be exam-
ined. These Member States have opted into this Regulation, but not Directive
2003/109. So in practice, leaving aside refugees and stateless persons, the Regula-
tion will only apply in the UK and Ireland to those third-country nationals who
have been posted by their EC employer pursuant to Article 49 EC, and to any
other third-country nationals previously resident elsewhere in the Community
which those Member States choose to admit pursuant to their national immigra-
tion law.
36 Conversely, however, stateless persons are not as such excluded from the scope of the
long-term residents Directive (unless they fall within another exclusion, such as the
exclusion for refugees).
762
Council Regulation 859/2003 of 14 May 2003 extending the provisions of Regu-

lation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third
countries who are not already covered by those provisions solely on the ground of
their nationality
(OJ 2003 L 124/1)
Having regard to the Treaty establishing the European Community and in par-
ticular Article 63, point 4 thereof,
Whereas:
(1) As its special meeting in Tampere on 15 and 16 October 1999, the European
Council proclaimed that the European Union should ensure fair treatment
of third-country nationals who reside legally in the territory of its Member
States, grant them rights and obligations comparable to those of EU citi-
zens, enhance non-discrimination in economic, social and cultural life and
approximate their legal status to that of Member States’ nationals.
(2) In its resolution of 27 October 1999, the European Parliament called for
prompt action on promises of fair treatment for third-country nationals
legally resident in the Member States and on the definition of their legal
status, including uniform rights as close as possible to those enjoyed by the
citizens of the European Union.
(3) The Economic and Social Committee has also appealed for equal treat-
ment of Community nationals and third-country nationals in the social
field, notably in its opinion of 26 September 1991 on the status of migrant
workers from third countries.
(4) Article 6(2) of the Treaty on European Union provides that the Union shall
respect fundamental rights, as guaranteed by the European Convention on
the Protection of Human Rights and Fundamental Freedoms signed in
Rome on 4 November 1950 and as they result from the constitutional tradi-
tions common to the Member States, as general principles of Community
law.
763
(5) This Regulation respects the fundamental rights and observes the princi-
ples recognised in particular by the Charter of Fundamental Rights of the
European Union, in particular the spirit of its Article 34(2).
(6) The promotion of a high level of social protection and the raising of the
standard of living and quality of life in the Member States are objectives of
the Community.
(7) As regards the conditions of social protection of third-country nationals,

and in particular the social security scheme applicable to them, the Employ-
ment and Social Policy Council argued in its conclusions of 3 December
2001 that the coordination applicable to third-country nationals should
grant them a set of uniform rights as near as possible to those enjoyed by
EU citizens.
(8) Currently, Council Regulation (EEC) No 1408/71 of 14 June 1971 on the

application of social security schemes to employed persons and their fami-
lies moving within the Community, which is the basis for the coordination
of the social security schemes of the different Member States, and Council
Regulation (EEC) No 574/72 of 21 March 1972, which lays down the pro-
cedure for implementing Regulation (EEC) No 1408/71, apply only to cer-
tain third-country nationals. The number and diversity of legal instruments
used in an effort to resolve problems in connection with the coordination
of the Member States’ social security schemes encountered by nationals of
third countries who are in the same situation as Community nationals give
rise to legal and administrative complexities. They create major difficulties
for the individuals concerned, their employers, and the competent national
social security bodies.
(9) Hence, it is necessary to provide for the application of the coordination

rules of Regulation (EEC) No 1408/71 and (EEC) Regulation No 574/72
to third-country nationals legally resident in the Community who are not
currently covered by the provisions of these Regulations on grounds of
their nationality and who satisfy the other conditions provided for in this
Regulation; such an extension is in particular important with a view to the
forthcoming enlargement of the European Union.
(10) The application of Regulation (EEC) No 1408/71 and Regulation (EEC)

No 574/72 to these persons does not give them any entitlement to enter, to
stay or to reside in a Member State or to have access to its labour market.
(11) The provisions of Regulation (EEC) No 1408/71 and Regulation (EEC)

No 574/72 are, by virtue of this Regulation, applicable only insofar as the
764
person concerned is already legally resident in the territory of a Member

State. Being legally resident is therefore a prerequisite for the application of
these provisions.
(12) The provisions of Regulation (EEC) No 1408/71 and Regulation (EEC)

No 574/72 are not applicable in a situation which is confined in all respects
within a single Member State. This concerns, inter alia, the situation of a
third country national which has links only with a third-country which has
factors linking it only with a third country and a single Member State.
(13) The continued right to unemployment benefit, as laid down in Article 69 of

Regulation (EEC) No 1408/71, is subject to the condition of registering as
a job-seeker with the employment services of each Member State entered.
Those provisions may therefore apply to a third-country national only pro-
vided he has the right, where appropriate pursuant to his residence permit,
to register as a job-seeker with the employment services of the Member
State entered and the right to work there legally.
(14) Transitional provisions should be adopted to protect the persons covered

by this Regulation and to ensure that they do not lose rights as a result of
its entry into force.
(15) To achieve these objectives it is necessary and appropriate to extend the

scope of the rules coordinating the national social security schemes by
adopting a Community legal instrument which is binding and directly
applicable in every Member State which takes part in the adoption of this
Regulation.
(16) This Regulation is without prejudice to rights and obligations arising from
international agreements with third countries to which the Community is a
party and which afford advantages in terms of social security.
(17) Since the objectives of the proposed action cannot be sufficiently achieved
by the Member States and can therefore, by reason of the scale or effects
of the proposed action, be better achieved at Community level, the Com-
munity may take measures in accordance with the principle of subsidiar-
ity enshrined in Article 5 of the Treaty. In compliance with the principle
of proportionality as set out in that Article, this Regulation does not go
beyond what is necessary to achieve these objectives.
Kingdom and Ireland annexed to the Treaty on the European Union and to
the Treaty establishing the European Community, Ireland and the United
765
Kingdom gave notice, by letters of 19 and 23 April 2002, of their wish to

take part in the adoption and application of this Regulation.

Denmark annexed to the Treaty on the European Union and to the Treaty
adoption of this Regulation and is not therefore bound by or subject to it,
Article 1
Subject to the provisions of the Annex to this Regulation, the provisions of

Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 shall apply to
nationals of third countries who are not already covered by those provisions
solely on the ground of their nationality, as well as to members of their families
and to their survivors, provided they are legally resident in the territory of a
Member State and are in a situation which is not confined in all respects within
a single Member State.
Article 2
1. This Regulation shall not create any rights in respect of the period before 1
June 2003.
2. Any period of insurance and, where appropriate, any period of employ-

ment, self-employment or residence completed under the legislation of a
Member State before 1 June 2003 shall be taken into account for the deter-
mination of rights acquired in accordance with the provisions of this Regu-
lation.
3. Subject to the provisions of paragraph 1, a right shall be acquired under

this Regulation even if it relates to a contingency arising prior to 1 June
2003.
4. Any benefit that has not been awarded or that has been suspended on
account of the nationality or the residence of the person concerned shall,
at the latter’s request, be awarded or resumed from 1 June 2003, provided
that the rights for which benefits were previously awarded did not give rise
to a lump-sum payment.
766
5. The rights of persons who prior to 1 June 2003, obtained the award of a
pension may be reviewed at their request, account being taken of the provi-
sions of this Regulation.
6. If the request referred to in paragraph 4 or paragraph 5 is lodged within

two years from 1 June 2003, rights deriving from this Regulation shall be
acquired from that date and the provisions of the legislation of any Member
State on the forfeiture or lapse of rights may not be applied to the persons
concerned.
7. If the request referred to in paragraph 4 or paragraph 5 is lodged after

expiry of the deadline referred to in paragraph 6, rights not forfeited or
lapsed shall be acquired from the date of such request, subject to any more
favourable provisions of the legislation of any Member State.
Article 3
This Regulation shall enter into force on the first day of the month following
that of its publication in the Official Journal of the European Communities.
Member States in accordance with the Treaty establishing the European Com-
munity.
ANNEX
SPECIAL PROVISIONS REFERRED TO IN ARTICLE 1
I. GERMANY
In the case of family benefits, this Regulation shall apply only to third-country
nationals who are in possession of a residence permit meeting the definition in
German law of the “Aufenthaltserlaubnis” or “Aufenthaltsberechtigung”.
II. AUSTRIA
In the case of family benefits, this Regulation shall apply only to third-country
nationals who fulfil the conditions laid down by Austrian legislation for perma-
nent entitlement to family allowances.
767
Chapter 24 The Socio-Economic Agenda of
EC Immigration and Asylum Policy
1 Introduction
The socio-economic agenda related to EU immigration and asylum policy is
characterised by the emergence of a Community-wide labour market, which has
been matched by attempts to manage it at the European level. The drive for a joint
labour market strategy gained momentum after the inclusion of an Employment
Title in the Amsterdam Treaty, which declared employment a matter of common
concern. This formed the basis for the European Employment Strategy, which
was initiated at the 1997 Luxembourg Jobs Summit. An annual cycle of pro-
gramming, reporting, peer review, assessment and adjustment of the objectives
was established and formally adopted as an “open method of co-ordination” at
the 2000 Lisbon European Council. As Member States set the goal for the Union
to become “the most competitive and dynamic knowledge based economy in the
world capable of sustained economic growth with more and better jobs and
greater social cohesion”, the Employment Strategy became an important vehicle
for setting objectives and measuring progress. Other dimensions of the so-called
Lisbon strategy are addressed through an Open Method on Social Inclusion,
one on pensions, and related policy instruments.
This chapter charts the gradual (re-) insertion of immigration on the
European Union’s socio-economic agenda. Demographic changes and labour
market mismatches led to the recognition that without immigration, achieving
the ambitious “Lisbon goals” would be even more difficult. While the European
Commission set out the rationale for moving away from zero immigration in
successive Communications, Member States began to mention immigration in
their National Action Plans submitted under the European Employment Strat-
egy. While alternative strategies to increase labour supply, such as raising the
participation rates of women and of older workers and encouraging the mobil-
ity of EU nationals continued to play a prominent role, immigration came to be
considered a complementary strategy. This development culminated in the 2003

Communication on immigration, integration and employment adopted during
the 2003 Greek Presidency. While the economic downturn has put the highlight
on unemployment rather than the fall in labour supply, immigration has come
to be considered seriously as an element of Europe’s economic future. At the
same time, the issue of (intra-European) mobility, which has long been on the
European agenda, has become more connected to the question of immigration
from outside the Union.
Integration has become a key topic since the 2002 Danish Presidency.
Already since 2001, the Open Method on Social Inclusion addresses the vul-
nerability of immigrants and ethnic minorities to poverty. In the absence of
European competence on integration, countries influence each other’s policies
through an ongoing exchange of experience and policy models. An exception is
the anti-discrimination field, where two Directives have been adopted.
2 The Employment Strategy

Immigration was re-instated on the socio-economic agenda of Europe and its
Member States through a combination of demographic and labour market fac-
tors. The issue of demographic change moved from being an academic topic to
the centre of debates about Europe’s growth potential and about the sustain-
ability of pensions and welfare and health benefits. Key to this shift was the
recognition that the ageing of Europe’s population would gradually lead to a
contraction in the labour force. With fertility rates at 1.47 in 2001, well below the
replacement level of 2.1, and life expectancy growing, it was projected that by
2030 there would be 110 million people over the age of 65 in the EU25, up from
71 million in 2000. At the same time, the old age dependency ratio – the percent-
age of people aged 65 and above compared to the number of people aged 15-64
– would increase from 23% in 2000 to 39% in 2030.1
In response to the projected decline in the labour force, the 2000 Lisbon
Summit set a number of targets, including an increase in the EU employment
rate from 61% to 70% by 2010, and an increase in the number of employed
women from 51% to 60%. The 2001 Stockholm European Council then agreed
that half of the EU population in the 55-64 age group should be in employment
by 2010, and the 2002 Barcelona European Council concluded that a progressive
increase of about 5 years in the effective average age at which people stop work-
ing in the European Union should be sought by 2010.
That reaching these targets would be difficult was already clear in 2000.
In this context, the Commission’s Communication on a Community immigra-
tion policy suggested that sufficient attention had not been given to the role of
1 Jobs, Jobs, Jobs – Creating more Employment in Europe (2003). Report of the
Employment Task Force chaired by Wim Kok, p.12. See now the Green Paper on
Confronting Demographic Change (COM (2005) 94, 16 March 2005).
770
Chapter 24 Socio-economic Agenda of EC Immigration and Asylum Policy
third-country nationals in the labour market.2 In an annex on “the economic

and demographic context”, the Communication noted that “shortages could
threaten the EU’s competitiveness in the global economy”. It was therefore nec-
essary to recognise that the “zero” immigration policies of the past 30 years
were no longer appropriate. While the declared aim of the 2000 Communica-
tion was to stimulate debate, the 2001 Communication on an open method of
coordination for the Community immigration policy went further in suggest-
ing that Member States should work together on regulating migration.3 It sug-
gested that in parallel with the existing Employment Strategy, Member States
should prepare National Action Plans on immigration in response to guidelines
adopted by the Council. The Commission would then prepare a synthesis report
drawing attention to common problems and identifying areas where European
solutions might be appropriate. The Communication referred to the proposed
Directive on the admission of third country nationals for the purpose of taking
up employment and suggested that the Open Method could ensure its transpar-
ent and coherent application.
Despite the fact that more and more governments publicly acknowledged
Europe’s need for immigration, the proposed Directive on the entry and residence
of third-country nationals for the purpose of employment and self-employed
economic activities continued to meet strong resistance in the relevant Council
Migration Admission Working Group, until eventually the Commission with-
drew the proposal and promised a batch of more limited proposals in future.4
Similarly, the proposed open method of coordination on immigration was not
received warmly by Member States. However, immigration for labour market
reasons started to play a role in the framework of the Employment Strategy by
appearing in Guidelines, National Action Plans and Joint Employment Reports,
i.e. the key points in the Employment Strategy’s annual cycle. The cycle starts
with the Commission drafting Guidelines which recommend a range of policies
and seek to form an integrated set of objectives and targets. These guidelines
are passed by qualified majority voting in the Council. Each Member State then
draws up a National Action Plan (NAP) describing how the guidelines are being
put into practice. The Commission assesses each Member State’s compliance
with the guidelines and can propose to the Council that recommendations be
directed at specific countries. At the end of the annual cycle, the Commission
and the Council present a Joint Employment Report to the European Council.
While the Joint Employment Report is being written, guidelines for the follow-
ing year are developed and the cycle begins again.
2 COM(2000)757.
3 COM (2001)387.
4 For details, see Ch. 21.
771
The 2000 Joint Employment Report, for instance, mentioned the tightening
of the labour market supply of high tech professionals, leading to adaptations
of immigration policies in a few Member States.5 Specifically, the report identi-
fied a tightening of the labour market supply in Sweden, Denmark, Ireland, the
Netherlands, Northern Italy and Belgium. Adjustment in immigration provi-
sions for high tech professionals was recorded for Germany, Denmark, Sweden,
Ireland, the UK and Finland. However, the report only mentioned these devel-
opments in passing, moving on to point out the importance of lifelong learning
and training initiatives in Member States.
The 2001 Joint Employment Report reported on Member States’ answers
under Guideline 6, which asked Member States to identify and prevent emerging
bottlenecks. It commented on the National Action Plans, in which Italy, Finland,
Sweden, the United Kingdom and France stated that their labour shortages were
mainly limited to a few occupations/sectors and regions. At the other end of the
spectrum, it noted that Finland, Ireland and the Netherlands found themselves
in very tight labour markets, with shortages in both high and low skill occupa-
tions. It concluded that “most Member States anticipate the problems becoming
more serious in the near and mid term future, based on combined economic and
demographic forecasts”. In commenting on the policies adopted to alleviate this
problem, the report noted that Luxembourg and Ireland resort to bringing in a
significant number of foreign workers compared to other Member States, with
Ireland conducting active recruitment campaigns inside and outside the Euro-
pean Union. The United Kingdom, Finland, Austria, Germany and Portugal
were listed as reforming their system on work permits to allow for more flexible
recruitment of foreign workers for bottleneck occupations. Policies to legalise
ethnic minorities and migrant workers were recorded for Portugal and Greece.6
The worsening economic climate was apparent in the 2002 NAPs, in which
references to immigration were made only by Finland, Germany, the Nether-
lands, Ireland, and Austria. Nevertheless, the Draft Joint Employment Report
2002 summed up that “several Member States present labour immigration as
part of the solution to labour shortages, thus recognising the importance of a
better-integrated European labour market”.7
After five years of operation, the Employment Strategy was reviewed and
modified in some of its aspects. In particular, Member States decided that the
Strategy should be co-ordinated more closely with economic policy instruments.
In a new “streamlined” process, the Commission now presents an “implementa-
5 European Commission, Joint Employment Report 2000, COM(2000)551, p 56.

6 European Commission, ‘Assessment of the Implementation of the 2001 Employ-
ment Guidelines,’ Supporting Document to the Joint Employment report 2001,
p. 71.
7 European Commission, Draft Joint Employment Report 2002, COM(2002) 621,
p. 38.
772
tion package” each January, which includes the Broad Economic Policy Guide-
lines Implementation Report, the Draft Joint Employment Report and the
Implementation Report on the Internal Market Strategy.
The 2003/2004 Draft Joint Employment Report notes that immigration is
considered by most Member States as an important source of additional labour
supply, but only for professions or sectors encountering recruitment difficulties.8
Belgium, Germany, Spain and Ireland are cited as aiming to simplify the system
of work permits and regulations for recruiting immigrants. The report suggests
that most Member States give increased attention to migrants currently living
in the EU, responding to the fact that the unemployment gap between EU and
non-EU nationals remains stable at the high level of 7.7%. Indeed, the Swedish
NAP of 2003 notes that 37.0% of foreign-born women and 27.2% of foreign-
born men aged 16-64 are excluded from the labour market and says that it is
necessary to study the causes of this high percentage, “particularly in view of
the future efforts that will be necessary to make full use of the potential labour
supply”. Similarly, the Dutch NAP sets the target of increasing labour force
participation amongst ethnic minorities to 54% by 2005. Beyond that, the Neth-
erlands maintains that it is “pursuing a restrictive, demand-driven labour migra-
tion policy”, but one which “allows for the (temporary) admission of highly
qualified migrants, in particular, to combat labour shortages, or to boost the
knowledge economy on a demand-driven basis”. Finland most explicitly refers
to demographic changes and announces that “preparations are being made for
a possible increase in the immigration of foreign labour through an immigration
policy programme that will be ready in spring 2005. If the economic depen-
dency ratio so requires, the Government will promote immigration in support
of labour supply”.
The brief overview shows that within the context of the Employment Strat-
egy, immigration has been considered as a possible policy response to both the
projected overall drop in labour supply and specific skill shortages and mis-
matches. It also shows that immigration has been considered most seriously
in times of high economic growth and widespread labour shortages. While the
economic downturn has not completely eliminated references to immigration
from Member States’ National Action Plans, a recent report states that ‘at this
time of job cuts and increasing unemployment, there is a real danger that the
more serious structural challenges of economic transformation and demograph-
ics will be forgotten’.9 The future of the “immigration option” on the European
socio-economic agenda, then, depends partly on the foresight of policy makers.
8 European Commission, Draft Joint Employment Report 2003/2004, COM(2004)

24.
Employment Task Force chaired by Wim Kok.
773
It also depends on the success of alternative strategies to increase labour supply,

in particular by raising employment rates.
The Joint Employment Report 2003/2004 indicates that progress towards
the target of a 70% overall employment rate has come to a standstill and that, at
64.3%, it is now clear that the EU will miss the intermediate employment target
of 67% for 2005. The employment rate for women improved in 2002 (55.6%),
and the report considers that it remains on track towards the intermediate target
for 2005 (57%). However, progress towards the target for 2010 will most crucially
depend upon improvements in the employment rate of older workers. Although
this rate has increased to just over 40% in 2002, the 2005 target of 50 % for 2010
is a considerable way off.10 The Commission has produced numerous documents
on the subject of older workers, most recently a Communication on increas-
ing the employment of older workers and delaying their exit from the labour
market.11 One of the sections, entitled “Member States must take drastic action”,
declares that Belgium, Luxembourg and Italy have the worst record with regard
to the employment of older workers. On the other hand, it remarks that Finland,
France and Portugal have set targets to raise the average exit age.
The problems with implementing policies such as active ageing across the
board indicate that while the Lisbon Strategy has been a success in terms of set-
ting goals and objectives, it does not always lead to swift changes in the actions
of Member States. Only 7 out of the 40 directives due for transposition by the
end of 2003 have been transposed by all Member States. Within an average
transposition rate of 58.3%, Denmark, Spain and Italy have the best records (75
to 85% of “Lisbon” directives transposed), while France, Germany and Greece
are the furthest behind (42 to 35%). As for the policy development of countries
since 1999, the Commission estimates that Belgium, France and Greece have
made rather good progress, while progress in Germany, Luxembourg, Austria
and Portugal has been rather disappointing.12 The Commission and Council
agree that the pace of reform at Member State level has to be stepped up in
order to safeguard the credibility of the process.
It is therefore unlikely that the drop in labour supply which European coun-
tries will face can be compensated through quick increases in participation rates.
Aware of this situation, the European Commission unambiguously states that
‘given ageing and related skills gaps, fulfilling the Lisbon objectives by 2010 and
beyond will notably depend on the shape and dynamics of immigration in the
10 European Commission, Draft Joint Employment Report 2003/2004, COM(2004)

24.
11 COM(2004) 146.
12 Report from the Commission to the Spring European Council: Delivering Lisbon –
Reforms for the Enlarged Union, COM(2004) 29-2.
774
EU’.13 Member States must make use of the additional labour supply resulting
from immigration. This is also recognised within the Open Method on pensions,
which was launched by the 2001 Laeken European Council. The 2003 Joint
Report on Pensions14 cites Spain and Greece as countries expecting that immi-
grants will generate an important extra supply of labour. The Spanish report in
particular stresses the important contribution of foreign workers to the current
favourable financial situation of the social insurance system, as the number of
foreigners covered by the social security system more than doubled from 332,000
in 1999 to 792,000 in 2002.
3 Mobility
The free movement of persons has been a part of European Union integra-
tion from the beginning, and has consistently been extended and promoted by
Member States. For instance, free movement rights were extended from workers
to students, pensioners and others not taking up a gainful activity. With the
completion of the internal market (i.e. the removal of internal border control
between most of the Member States) and the introduction of EU citizenship in
the early 1990s, the movement of Member States nationals from one Member
State to another ceased to be regarded as migration. These persons were merely
exercising their free movement rights. Intra-Union migration became simply
“internal mobility”. Member States promote internal mobility because the free
movement of persons is one of the four freedoms anchored in the 1957 Treaty
establishing the European Community, alongside the freedom of movement for
services, capital and goods. They also promote internal mobility because of its
contribution to a genuinely pan-European labour market, which could alleviate
skills gaps and labour market mismatches in individual countries.
These efforts are long-standing and cover a wide range of areas and mecha-
nisms. They have intensified significantly since the 2000 Nice European Council
which stressed the need to break down barriers to mobility. An Action Plan for
mobility was adopted which included a “toolbox” of 42 measures, ranging from
financial support to linguistic and cultural preparation for mobility.15 The 2001
Stockholm European Council endorsed this Plan.
13 Communication on the Future of the European Employment Strategy (EES) – A

strategy for full employment and better jobs for all, COM(2003)6, p.13.
14 European Commission and Council, Draft Joint Report on Adequate and Sustain-
able Pensions 2003, p. 46.
15 Council and Representatives of the Governments of the Member States meeting
within the Council, Resolution 13649/00 concerning an Action Plan for Mobility,
(OJ 2000 C 371).
775
In 2001, the Commission proposed a Directive on the freedom of move-

ment of Union citizens, which was adopted in 2004.16 This Directive eliminates
the need for EU citizens to obtain a residence card, introduces a permanent
right of residence -which is no longer subject to any conditions- after five years
of uninterrupted residence in the host Member State, clarifies the situation of
family members, and restricts the scope for refusing or terminating residence.
Mobility also plays a key role in the Strategy on Building New European
Labour Markets by 2005, which the Commission launched in February 2001.
As part of the Strategy, the Commission established a High Level Task Force
on Skills and Mobility in 2001, whose findings, presented in the same year, laid
the foundation for an Action Plan developed by the Commission in 2002.17 This
Action Plan makes proposals for adapting education and training systems and
for facilitating access to mobility, but also notes that ‘a declining EU workforce
due to demographic changes suggests that immigration of third country nation-
als would also help satisfy some of the skill needs’. In fact, a report on the Action
Plan’s implementation notes that the increase in geographical mobility remained
minute, growing from 1.45% in 1998 to a mere 1.50% in 2001.18 The report reiter-
ates that obstacles and disincentives to labour mobility – both geographical and
occupational – impede the proper functioning of the labour market and that
the match between job openings and the human resources available to fill them
should be improved.
The 2004 Brussels Spring Council Conclusions devote a paragraph to
“Enhancing the free movement of workers” and mention the reform of Regula-
tion No 1408/71, which simplifies and modernises the provisions protecting the
social security rights and schemes applying to EU workers and families moving
within the Union, as an example of progress.19 The Conclusions also note that
this reform, based on a Commission proposal in 200220 and adopted by the
Council in 2003,21 also provides for the extension of the Regulation provisions to
third country nationals not covered by the original Regulation solely on grounds
of their nationality.
16 European Commission, Proposal for a European Parliament and Council Directive

on the right of citizens of the Union and their family members to move and reside freely
within the territory of the Member States, COM(2001) 257. For the adopted text, see
Directive 2004/58 (OJ 2004 L 229/35).
17 European Commission, Action Plan for skills and mobility in the European
Union, COM(2002) 72. In response, the “Employment and Social Policy” Council in
June 2002 adopted a resolution on skills and mobility (CSL 9614/2002).
18 Report on the Implementation of the Commission’s Action Plan for Skills and Mobil-
ity, COM(2002) 72and COM(2004) 66.
19 Presidency Conclusions, 2004 Brussels European Council.
20 COM(2002) 59.
21 Regulation No 859/2003, (OJ 2003, L124). See Ch. 23.
776
The adoption in 2003 of the Directive on long-term residents provided for

a limited measure of mobility for third-country nationals but left many obsta-
cles in place.22 The extension of social security rights to third country nationals
further facilitated their mobility within the Union; an issue which emerged as
part of the free movement agenda over the past years. As the continuously low
rates of movement indicated that European Union citizens were adverse to the
risk of moving even under improved conditions, third-country nationals who
had already taken a migration decision became a significant target of mobility
policies. At the same time, extending free movement rights was considered to be
a step towards equal treatment for third-country nationals. The extension was
brought forward, thus, to honour the commitment in the European Council of
Tampere to ensure fair treatment of third-country nationals who reside legally
in the territory of the Union and grant them rights and obligations comparable
to those of EU citizens.
The debate on the socio-economic aspects of immigration was strongly
encouraged by the 2003 Greek Presidency, which declared itself committed to
“develop migration regimes that contribute tangibly to economic needs”. In 2003,
a Communication on immigration, integration and employment was published
and reinforced the positive attention given to the socio-economic dimension of
migration.23 The Communication reiterates that both migration pressures and
migration needs will persist. In particular, it underlines that immigration helps
reduce labour shortages and bottlenecks which are increasing in sectors such
as information and communication technologies or healthcare, but also among
some low-skilled occupations. The Communication argues that these labour
shortages are expected to grow in the medium term and that economic immigra-
tion could play a role in tackling labour market imbalances provided the quali-
fications of immigrants are appropriate. Lastly, the Communication’s analysis
suggests that immigration could also contribute to improve the sustainability of
pensions even though, on its own, it cannot solve all the effects of population
ageing. The Communication then goes on to call for a more coherent European
framework for integration to ensure that immigration contributes more effec-
tively to the new demographic and economic environment. It claims that the
successful integration of immigrants is both a matter of social cohesion and a
prerequisite for economic efficiency. Calling for a holistic approach, the Com-
munication touches upon economic and social aspects of integration as well as
issues related to cultural and religious diversity, citizenship, social participation
and political rights. Education and access to housing, health and social services
are all mentioned.
22 See Ch. 20.

23 COM(2003) 336.
777
4 Integration
In the framework of the Employment Strategy, the labour market integration of
migrants is a priority in the Commission guidelines and many National Action
Plans. For instance, the 2003 Guidelines propose a related target to be achieved
by 2010, namely to achieve a significant reduction in the unemployment gaps
between non-EU and EU nationals.24 In 2002, the unemployment rate was more
than twice as high among non-EU nationals than among EU nationals. The
biggest gaps were reported for Belgium and France. Moreover, the employment
rate of non-EU nationals is on average much lower than for EU nationals (13.8
percentage points lower in 2002). The gap is wider for women (17.6 percentage
points lower) than for men (10.0 percentage points lower). In Belgium, the over-
all gap is 30 percentage points, and it exceeds 20 percentage points in Denmark,
the Netherlands, Sweden and France. On the other hand, employment rates are
lower for EU nationals than for non-EU nationals in Spain, Greece and Por-
tugal. With regard to wages, the non-adjusted wage gap between EU nationals
and non-EU nationals in 2000 amounted to 6 percent (10 percent for women
and 4 percent for men).25 Summarising the above developments, a recent report
argued that more attention to the integration of minorities and immigrants in
the labour market was especially needed in Belgium, France, Sweden, Finland,
Denmark, Germany, the Netherlands and the UK. Within the new Member
States, the Czech Republic, Hungary, Slovakia, as well as the Baltic countries,
face a particular challenge in integrating minorities.26
Besides the Employment Strategy, the Social Inclusion Process also addresses
the socio-economic situation of migrants. The Social Inclusion Process was ini-
tiated at the 2000 Lisbon Summit and the ideas developed there were further
detailed in a Commission communication on the European Social Agenda.27
The 2001 Stockholm European Council called for a social inclusion programme,
saying that ‘the fight against social exclusion is of utmost importance for the
Union’. Building on this work, the 2000 Nice European Council approved the
European Social Agenda, which includes the goal of “fighting poverty and
all forms of exclusion and discrimination in order to promote social integra-
tion”. It also called for an “open method” approach such as that followed by
the Employment Strategy, with the difference that Member States would submit
their National Action Plans every two years instead of every year.
The first National Action Plans against poverty and social exclusion were
submitted in 2001. In the Common Outline for the second round – due in July
24 Council decision on employment guidelines, (OJ 2003, L 197).

25 Figures taken from the European Commission’s ‘Immigration and employment in
the EU’, Employment in Europe report 2003, chapter 6, pp. 185-198.
Employment Task Force chaired by Wim Kok, p. 46.
27 COM(2000) 379.
778
2003 – making a drive to reduce poverty and social exclusion of immigrants and
ethnic minorities was made a key priority.28 As a result, the higher risk of pov-
erty and social exclusion linked to immigration or as a result of coming from an
ethnic minority was highlighted far more in the 2003 NAPs by many Member
States.
The second Joint Inclusion Report29 summarises the particular aspects
mentioned by Member States, including difficulties in finding accommodation,
acquiring a well-paid job, and barriers in access to training, especially in lan-
guages. While the German NAP highlights older immigrants, Sweden refers to
the poorer health of many immigrants and gender differences are also high-
lighted (as they are in the Irish NAP). However, in its evaluation of the NAPs,
the Commission notes that the lack of data on vulnerable groups, and in par-
ticular migrant and ethnic groups continues to be a major problem. Only a small
number of countries (including the United Kingdom, Belgium, Netherlands,
Spain and France) list data or indicators for people of immigrant origin. In
the Commission’s view, the lack of detailed data and indicators hinders any
thorough analysis of the situation facing these groups. Moreover, only a few
countries attempt to identify trends, negative or positive, in the living and work-
ing conditions of immigrants. Few NAPs give clear evidence that the situation
facing migrant populations has improved since the submission of the first action
plans in 2001.
In its Joint Inclusion Report, the Commission also voices grave concerns
about the lack of rights-based integration policies in many Member States. It
criticizes that little attention is paid to promoting the access of immigrants and
ethnic minorities to resources, rights, goods and services, in particular to social
protection schemes, to decent and sanitary housing, to appropriate healthcare
and to education. Rather, the report identifies a ‘narrow integrationist approach,
comprising mainly language and training measures’ and notes that ‘in many
cases the emphasis is on the need for immigrants to adapt’.30
At the European level, integration has steadily gained prominence since the
2002 Danish Presidency. A group of National Contact Points on Integration is
meeting regularly under the coordination of the European Commission’s DG
Justice and Home Affairs. The group was set up following the October 2002 Jus-
tice and Home Affairs Council and was endorsed at the 2003 Thessaloniki Euro-
pean Council. It is currently working on producing a Handbook on Integration,
including general guidelines and principles as well as best practice examples. A
new budget line on the integration of third country nationals (INTI) came into
28 Social Protection Committee, Common Outline for the 2003/2005 NAPs/inclusion, p.

2.
29 Joint report on social inclusion summarising the results of the examination of the
National Action Plans for Social Inclusion (2003-2005), COM(2003) 773.
30 Idem, pp. 94 and 95.
779
existence in 2003 with a budget allocation of four million Euros for the first year.
The INTI programme funds pilot projects for the integration of third country
nationals, with an emphasis on promoting dialogue with civil society, developing
integration models, seeking out and evaluating best practices in the integration
field and setting up networks at European level.
The social and economic integration of refugees is supported through the
European Refugee Fund, which was established in 2000. 216 million Euros were
allocated in total; the budget available for the year 2003 was 2,113.550 Euros.
Integration activities accounted for 28% of national activities supported by
the Fund between 2000 and 2002. Aid went in particular to language training;
activities promoting employability and providing advice on housing, education,
understanding and accessing social benefits; public information campaigns on
refugee issues; and to developing partnerships between public authorities, com-
munity organisations, and employers and housing associations. In its initial
form, the European Refugee Fund (ERF) came to an end in December 2004.
The second ERF (ERF II, running from 2005-2010) gives more detail on integra-
tion measures to be funded, suggesting that eligible actions could include: social
assistance; participation in civil and cultural life; education, vocational training
and recognition of qualifications; actions designed to enable [these persons] to
provide for themselves; and actions to promote contact and dialogue with “key
partners” such as local authorities, the general public or refugee associations
(Article 6).31 As in the ERF’s first phase, the target group includes recognized
refugees as well as asylum seekers and those with subsidiary protection.
5 Anti-discrimination
The Commission’s recent Social Inclusion report warns that the Social Inclu-
sion Process may not have a close enough connection to anti-discrimination. It
observes that only four Member States highlight the Council Directive on com-
bating discrimination on the grounds of ethnic or racial origin, which was to be
implemented into national law during 2003.
The Amsterdam Treaty provides a legal basis for Community measures to
combat discrimination on the grounds of sex, racial or ethnic origin, religion
or belief, disability, age and sexual orientation. In 2000, European legislation
was adopted in the form of the Directive implementing the principle of equal
treatment irrespective of racial or ethnic origin (the Racial Equality Directive)
and Council Directive establishing a general framework for equal treatment in
employment and occupation prohibiting discrimination on the grounds of reli-
gion or belief, disability, age or sexual orientation (the Framework Directive).
The provisions of the Racial Equality Directive and the Framework Directive
are largely parallel, with some distinctions for individual grounds. Both Direc-
31 See the first ERF Decision (OJ 2000 L 252/12) and the second ERF Decision (OJ
2004 L 381/52).
780
tives outlaw discrimination in employment-related situations, but the Racial

Equality Directive goes beyond employment relationships, prohibiting discrimi-
nation in social protection, education and access to and supply of public goods
and services.
The concept of discrimination is broken down into four key concepts: direct
discrimination, indirect discrimination, harassment and instruction to discrimi-
nate.32 Direct discrimination occurs when one person is treated less favourably
than another is, has been or would be treated in a comparable situation on the
grounds of racial or ethnic origin, or religion or belief. Direct discrimination
may be overt or covert, and it may be intentional or sub-conscious. The reasons
behind discrimination are irrelevant; it is the discriminatory result that counts.
The prohibition covers situations in which a person is perceived to be of a certain
racial or ethnic origin, and where a person is discriminated against on the basis
of their association with a person who is of a certain racial or ethnic origin. The
less favourable treatment may have occurred in the past, may be currently taking
place, or it may be purely hypothetical.
Indirect discrimination occurs when an apparently neutral provision, cri-
terion or practice would put persons of a racial or ethnic origin – or having
a particular religion or belief – at a particular disadvantage compared with
other persons, unless that provision, criterion or practice is objectively justified
by a legitimate aim and the means of achieving that aim are appropriate and
necessary. An example of probable indirect discrimination is requiring fluency
in a particular language for a cleaning job. The nature of the job in question
will determine whether such a requirement is objectively justified and therefore
valid. The concept “objectively justified” must be interpreted strictly, taking into
account whether the aim is legitimate and proportionate by weighing the dis-
crimination against the needs of the discriminator.
Harassment is unwanted conduct with the purpose or effect of violating the
dignity of a person and creating an intimidating, hostile, degrading, humiliating
or offensive environment. This prohibition covers jokes, offensive remarks, inap-
propriate use of email or bullying in the office by colleagues or a third party. It
is important that the employer or other persons to which the Directive applies
have a duty to take steps to prevent harassment. An instruction to discriminate
on any of the prohibited grounds constitutes an act of discrimination. Thus, for
example, an employer cannot instruct a recruitment agency not to send persons
of a particular ethnic origin for interview.
Discrimination on the ground of nationality is excluded from the protection
afforded by the Directives, though third country nationals would be protected
from discrimination on the grounds of race or ethnicity. Furthermore, direct
nationality-based discrimination may also be found to be indirect discrimination
32 The following overview considers first and foremost the provisions of the Racial
Equality Directive.
781
on the grounds of racial or ethnic origin. In addition, the Directives are without
prejudice to provisions and conditions relating to the entry and residence of
third-country nationals and stateless persons in the territory of Member States,
and to any treatment which arises from the legal status of third-country nation-
als and stateless persons.
States may provide that “a difference in treatment which is based on a char-
acteristic related to any of the protected grounds shall not constitute discrimi-
nation where, by reason of the particular occupational activities concerned or
the context in which they are carried out, such a characteristic constitutes a
genuine and determining occupational requirement provided that the objective
is legitimate and the requirement is proportionate”. However, these exceptions
may occur “in very limited circumstances” and must be included in the informa-
tion provided by Member States to the European Commission. Special excep-
tions related to the ethos of religious organisations may be maintained. This
may allow churches to insist that teachers in their religious schools are of that
religion, although the same could not be said for posts such as care takers or
cleaners whose religion should be irrelevant to the completion of their tasks.
In order to achieve equality it may be necessary to treat (groups of) indi-
viduals differently. Positive action measures can be taken to overcome disadvan-
tages of a particular group. The provision on positive action in the Directives is
likely to be interpreted in accordance with the European Court of Justice’s rul-
ings on positive action in relation to sex discrimination, in particular the require-
ments that measures be limited in time to the period necessary to overcome the
disadvantage being targeted, and that they be sufficiently flexible to allow excep-
tions in particular cases. Measures should be assessed and evaluated on a regular
basis.
The anti-discrimination Directives set out a series of guarantees designed to
improve the chances of justice for victims of discrimination. Firstly, all persons
who consider themselves wronged must have access to judicial or administrative
procedures, and conciliation procedures may provide an additional alternative
forum to seek justice. These remedies must be available even after the relation-
ship in which the discrimination took place has ended. Secondly, associations,
organisations or other legal entities with a legitimate interest in ensuring compli-
ance with the Directives’ provisions may engage in proceedings in support of or
on behalf of the complainant with their approval. Member States must define the
criteria that govern the rights of associations to support a complainant, and “a
legitimate interest” should not be construed narrowly. Member States can go yet
further by providing that organisations can act in their own name or by allowing
class actions. The Directives provide for a partial shift in the burden of proof to
the defender of the discrimination claim once the complainant has established
facts from which discrimination can be presumed. It is for the national authori-
ties to determine the point at which such facts have been established.
782
Member States of the EU are under an obligation to introduce measures as

are necessary to protect individuals against victimisation, described as “adverse
treatment or adverse consequences as a reaction to a complaint or proceedings
aimed at enforcing compliance with the principle of equal treatment”. It protects
against “dismissal or other adverse treatment by the employer as a reaction…”.
It is important that measures protect not only complainants, but also witnesses
who provide evidence to support the complainant.
The Racial Equality Directive places a duty upon Member States to des-
ignate a body or bodies for the promotion of equal treatment of all persons
without discrimination on the grounds of racial or ethnic origin. They may form
part of agencies charged at national level with the defence of human rights or
the safeguarding of individual rights. The competences of these bodies must
include providing independent assistance to victims of discrimination in pursu-
ing their complaints, conducting independent surveys on discrimination, pub-
lishing independent reports and making recommendations on any issue relating
to such discrimination.
783
Section V Irregular Migration
Chapter 25 Mutual Recognition of Expulsion Decisions
1 Summary
Council Directive 2001/40/EC on the mutual recognition of decisions on the
expulsion of third country nationals entered into force on 2 June 2001. It aims to
ensure greater effectiveness in enforcing expulsion decisions and better coopera-
tion between Member States though mutual recognition of expulsion decisions.
The preamble to the Directive recalls that decisions on expulsion must be taken
in accordance with fundamental human rights standards and in particular the
European Convention on Human Rights. The UK and Ireland have opted into
this Directive. Member States were required to make legislative and administra-
tive provision for the implementation of the Directive by 2 December 2002, and
to inform the Commission about these provisions (Article 8). The Commission
has brought infringement proceedings to enforce this deadline.1
Article 1 of the Directive set out the purpose of the Directive, which oper-
ates without prejudice to the Convention implementing the Schengen Agree-
ment. Article 1(1) makes clear that the Directive applies to expulsion decisions
taken against third country nationals only but does not apply to expulsion deci-
sions taken against the family members of citizens of the Union.
Article 3 set out the type of expulsion decisions which are the subject of the
Directive. Article 3(1)(a) refers to expulsion decision based on serious and pres-
ent threat to public order or national security following conviction of an offence
1 Two judgments largely supported the Commission, except as regards the applica-
tion of Art. 7 of the Directive: Cases C-462/04 Commission v Italy and C-448/04
Commission v Luxembourg, both judgments 8 Sept. 2005, unreported. Two other
cases were withdrawn, presumably after late compliance by the Member States con-
cerned: Cases C-474/04 Commission v Greece, withdrawn 9 March 2005, and C-
450/04 Commission v France, withdrawn 29 Sept. 2005.
Section V – Irregular Migration
punishable by at least one year’s imprisonment or where there is existence of

serious grounds for suspecting that the person has committed or intended to
commit serious criminal offences. Article 3(1)(b) brings within the scope of
the Directive any expulsion decision based on failure to comply with domestic
immigration laws. The Directive applies without prejudice to the application of
the Dublin Convention; presumably this now must be read as a reference to the
Dublin II Regulation (Article 3(3)).
Article 4 requires Member States to enable the person subject of such expul-
sion decision to bring proceedings against a measure in the enforcing State.
Article 5 refers to the protection of personal data and data security. Article
6 directs that the Member State which issues the expulsion decision should pro-
vide the enforcing State with all documents needed to determine the continued
enforceability of the decision. The enforcing Member State is required to ensure
compliance with relevant international instruments.
Article 7 provides that Member States will compensate each other for finan-
cial imbalances which may result from the application of the Directive.
In pursuance of Article 7 of the Directive a Council Decision has been
adopted on financial imbalances. Council Decision 2004/191/EC of 23 Febru-
ary 20042 provides essentially that the Member State which issued the expulsion
decision shall compensate the Member State that enforces the expulsion deci-
sion. The enforcing Member State is to provide information about the trans-
port, administrative, accommodation and medical costs related to the expulsion.
Reimbursement cannot be claimed for the enforcement of expulsion decisions
made more than four years prior to the expulsion taking place. Requests for
reimbursement should be made within one year of enforcement and replies to
requests must be made within 3 months.
In September 2005, the Commission proposed a new Directive setting
common minimum standards for expulsion,3 which would include provisions
on the possible mutual recognition of expulsion decisions.4 As a result, Direc-
tive 2001/40 would be repealed.5 However, the 2001 Directive is still considered
in detail in this book, as it is likely to remain in force for at least a further three
years. Moreover, it remains to be seen if the 2005 proposal is adopted at all, or
at least adopted in the form proposed by the Commission.
2 COUNCIL DECISION of 23 February 2004 setting out the criteria and practical
arrangements for the compensation of the financial imbalances resulting from the
application of Directive 2001/40/EC on the mutual recognition of decisions on the
expulsion of third-country nationals (2004/191/EC), 27.02.2004 OJ L 60/55.
3 COM (2005) 391, 1 Sept. 2005. This proposal is too recent to be considered in detail
in this chapter.
788

The original French proposal for a Directive on mutual recognition of expul-
sion decisions was submitted in June 2000.6 In its initial version, it intended to
“make possible the enforcement of an expulsion order” issued by one Member
State in another Member State, against a third-country national over the age
of majority present in the latter. Such expulsions would be enforceable if the
third-country national faced an expulsion decision on one of two grounds. First,
expulsion orders could be recognised where there was a “serious and present
threat to public policy or public security or to national security”, as shown by a
non-suspended sentence of at least a year, “serious grounds for believing that”
he or she had “committed serious criminal offences”, or “solid evidence” of an
intention to commit such offences within a Member State. These criteria were
obviously based on Article 96 of the Schengen Convention, concerning drawing
up a list of persons to be denied entry into all the (Schengen) Member States.
The existence of a residence permit would not prevent carrying out an expulsion
decision on this ground. Second, expulsion orders could be recognised where a
third-country national had “failed to comply with national regulations on the
entry or residence” of foreigners. Member States would have to comply with the
ECHR only in the former case; the drafters were either ignorant of or hoping
to overturn the jurisprudence of the European Court of Human Rights on this
point.7 The enforcing state would have to check with the issuing state on the con-
tinued effect of the expulsion order, and would first have to examine the person’s
situation under the “relevant international instruments” and applicable national
rules. However, the expellee must be given a remedy against the enforcing state’s
measures, although there would be no obligation to confer suspensive effect if
a person brought such proceedings. Data protection must be ensured pursuant
to EC legislation.
Some delegations expressed misgivings about the proposal, and the French
Presidency duly issued a questionnaire to clarify what existing national laws
provided for.8 However, the replies were not compiled under December 2000,9
and in the meantime there was “political agreement” in the Mixed Commit-
tee (involving ministers from Norway and Iceland) meeting alongside the JHA
Council on 30 November and 1 December 2000.10 During the autumn of 2000,
the proposal had been discussed intensively, and redrafted to make clear that it
would only apply to administrative decisions, that enforcement measures would
6 Council doc. 9896/00, 30 June 2000. The official proposal (Council doc. 10130/00,
20 July 2000) was published in OJ 2000 C 243/1.
7 On ECHR protection against expulsion of irregular migrants, see D. v. United King-
dom and Dahlia v. France.
8 Council doc. 11119/00, 15 Sep. 2000.
9 Council doc. 14404/00, 21 Dec. 2000.
10 The text agreed by the Council was set out in Council doc. 13968/00, 29 Nov. 2000.
789
apply the law of the enforcing Member State, that even suspended sentences
could result in an expulsion order, that it was “without prejudice” to the Dublin
Convention and readmission agreements, and that all expulsion decisions “must
comply with” the ECHR “and other applicable international instruments”.11
The provisions on remedies were weakened, the provision on the connection
between residence permits and expulsion was clarified and the exclusion (based
on French law) for persons under the age of majority was dropped. On the other
hand, the Council agreed to exempt all family members of EC citizens who have
moved within the Community and provided for the adoption of a subsequent
measure on compensating Member States for applying the Directive. As a result
of the Directive’s application to such persons, the Council asserted that it builds
upon the Schengen acquis.
Formal adoption of the Directive had to wait several months because the
EP was still deliberating on the text, and had waited to consider the amend-
ments agreed by the Council. Ultimately, the EP voted to reject the Directive in
March 2001 on the ground that Article 63(3)(b) EC was not an adequate “legal
base” for the adoption of such an act.12 Ignoring this view, the May 2001 JHA
Council then formally adopted the Directive.13 In the meantime, there had been
some changes to the text. The final version of Article 3(2) weakens protection
for human rights, so that Member States need no longer “comply with” but must
simply have “due regard” to the relevant agreements. A number of additional
references to the Schengen Convention were also inserted. In fact this followed
a last-minute intervention from the Council legal service, which had sought to
delete any reference to human rights protection from the main text of the Direc-
tive and moreover had suggested the repeal of part of Article 96 of the Schengen
Convention.14
Finally, the Council inserted two statements into the minutes when adopt-
ing the Directive. Finland called for “appropriate harmonisation of national
legislation in this area in future”, and the Council urged the Commission to pro-
pose the compensation measure at the earliest opportunity.15 In fact, the Com-
mission waited until winter 2003 to make this proposal, which was adopted, as
noted above, the following February.
11 Council docs. 11120/00, 15 Sep. 2000; 11384/00, 18 Oct. 2000; 11384/00 Add 1, 25
Oct. 2000; 12323/00, 13 Oct. 2000; 12957/00, 3 Nov. 2000; 13168/00, 9 Nov. 2000;
13095/00, 9 Nov. 2000; 13095/1/00, 17 Nov. 2000; 13095/2/00, 24 Nov. 2000.
12 OJ 2001 C 343.
13 OJ 2001 L 149/34.
14 See Council doc. migr. 8/01, 17 May 2001, following the previously agreed text in
Council doc. 7859/01, 27 April 2001. The text following this intervention can be
found in Council docs. migr. 9/01, 18 May 2001, and 7859/1/01, 22 May 2001.
15 See Statements 49/01 and 50/01, in the monthly summary of Council Acts for May
2001 (Council doc. 10571/01, 4 July 2001).
790
3 Legal Analysis
The potential for this Directive to conflict with a range of international and
other EU instruments is wide. First and most importantly, the lack of specific
and detailed human rights safeguards is notable. Whilst Article 3(2) of the Direc-
tive requires Member States generally to apply the Directive with due respect for
human rights and fundamental freedoms, this provision is very vague and does
not adequately guide Member States on the specific approach to be taken. In
particular, plainly any expulsion decision may only be enforced if it expulsion is
compatible with Articles 3 and 8 ECHR and the provisions of the 1951 Conven-
tion on the Status of Refugees. All of these provisions require an assessment
of the conditions facing the expellee in the country to which he will be expelled
which is to be made at the time of expulsion. The potential for the enforcing
Member State to rely on the assessment of compatibility with these standards
made by the issuing Member State is high. This is dangerous and may lead to
potential breaches of these standards if the expulsion decision was taken some
time prior to proposed enforcement or on the basis of incomplete information.
In any event changing circumstances in the country of origin of the person to be
expelled can mean that an expulsion decision may quickly become incompatible
with those human rights standards.
Furthermore there is a lack of reference or recognition of the rights of
long-term resident third country nationals. Again expulsion of such persons
may raise questions of compatibility with Article 8 ECHR16 and the Council
of Europe Committee of Ministers Recommendation (2000) 15 concerning the
security of residence of long-term migrants.17
Apart from potential conflict with international human rights standards
there is potential in the Directive for conflict with European Community free
movement law. Article 1(3) makes clear that the Directive does not apply to
the family members of European Union citizens who are exercising free move-
ment rights . However no mention is made of the family members of other EEA
nationals, namely of Norway, Iceland and Liechtenstein. The Treaty establish-
ing the European Economic Area provides for expulsion of nationals of these
States and their family members in strict conformity with the EC Treaty and
Directive 64/221. The Directive on expulsion decisions cannot override the pro-
visions of the EEA Treaty. Furthermore no mention is made in the Directive
on the family members of the Swiss nationals who are exercising free move-
ment rights under the terms of the EC-Swiss Agreement on Free Movement of
Persons. Again such persons are to be protected from expulsion except in strict
conformity with Council Directive 64/221. Finally no mention is made in the
16 See for instance C v. Belgium, 7 August 1997, Judgment of the European Court of
Human Rights
17 On the relationship between this Directive and the Directive on long-term residents,
see Ch. 20.
791
Directive of Turkish nationals or their family members who fall within the scope
of the EC-Turkey Association Agreement 1963 and its Additional Protocol. The
Court of Justice has already held that such persons are to be protected by the
standards of Council Directive 64/221.18
4 Comments
There are considerable differences across the Member States in the manner in
which expulsion decisions are taken, the grounds for taking such decisions and
the manner of execution. The problem with a Directive on mutual recognition
is that to some extent it takes on trust that decision-making in this area will be
relatively uniform. That is not borne out by reality. Although the expulsion deci-
sions to which this Directive applies are limited to specific types of decision, the
criteria for determining whether an expulsion decision falls within the scope of
such types of decision is relatively broad and will encompass a broad range of
decisions.
Whilst this Directive is a Title IV measure it plainly builds on Article 96
of the Schengen Convention. Some commentators have objected to the UK in
particular seemingly becoming an indirect party to that controversial provision
in the Schengen Convention without becoming a full Schengen State.19 In par-
ticular the lack of safeguards regarding data emanating from the UK is high-
lighted.
There are plainly inherent problems with Member States enforcing the
expulsion decisions made by other Member States. A lack of information or
data is likely to be the foremost problem in enforcing the decision and ensur-
ing that the enforcement of decision is compatible with human rights obliga-
tions. The problem for the enforcing Member State is that if it is considering
enforcing a decision made by another Member State it will have the administra-
tive and judicial burden of possible challenges to that expulsion. It will have to
consider for itself if the enforcement can take place in light of human rights
considerations at that time. Such obligations exist notwithstanding that another
Member State may have carried out such assessment at an earlier stage since
it is not possible for one Member State to hide behind the decision making of
another Member State to avoid obligations under the ECHR or other human
rights instruments.20
18 Cases C-340/97 Nazli v Stadt Nürnberg [2000] ECR I–957, C-467/02 Cetinkaya
[2004] ECR I-10895 and C-136/03 Dorr and Unal (judgment of 2 June 2005, not yet
reported).
19 See for instance ILPA’s response to the French Presidency Proposals of November
2000, submitted to the House of Lords European Sub Committee enquiry.
20 See for instance T.I. v United Kingdom, Application no. 43844/98, Admissibility
Decision of European Court of Human Rights, 7 March 2000.
792
Furthermore the financial burden placed on the enforcing Member State

is likely to be a barrier to effective use of the Directive. The Council Decision
on Financial Imbalances is a measure taken to compensate enforcing Member
States for the financial burdens placed on them in carrying out enforcement
of other Member States’ expulsion decisions. However the Commission has
recognised that such bilateral compensation system is unlikely to work in the
long term if there is insufficient information on the expulsion decisions made by
other Member States.21
In its Communication on Illegal Immigration of June 2003 the Commis-
sion reported that despite the implementation date of 2 December 2002 passing,
many Member States had failed to inform it of any measures taken to transpose
the Directive into national legislation.22
The Directive is not all negative. In particular there is specific reference to
the requirement that Member States provide procedures for remedy against the
enforcement of expulsion decisions (Article 4). It is not clear that the Directive
intends that such proceedings should be suspensive in effect. However such pro-
ceedings are likely to be rendered theoretical and illusory rather than real and
meaningful if they are not suspensive.23
There are no statistics or information on the use of the Directive but anec-
dotal evidence suggests that its use has been rare; this was confirmed by the
Commission in a 2004 report.24 It is perhaps not surprising in light of the dif-
ficulties with the Directive that the Commission has suggested that the Directive
be repealed in its entirety.25
21 European Commission Communication to the European Parliament and the Coun-

cil of the Development of a Common Policy on Illegal Immigration, Smuggling and
Trafficking of Human Beings, External Borders and the Return of Illegal Residents.
COM (2003) 323 Final of 3 June 2003.
22 Ibid, page 9. On the subsequent infringement proceedings, see s. 1.
23 See the discussion of suspensive effect in Ch. 14.
24 Communication on policy regarding irregular migration (SEC (2004) 1349, 25 Oct.
2004), page 10: “So far, the impact, ie cases of formal recognition, was almost inex-
istent” [sic]. But the Commission argued that exchange of data on national expul-
sion decisions would improve the situation: see subsequently the proposal for a Reg.
on a second-generation Schengen Information System (COM(2005)236, 31 May
2005), particularly Art. 18(1).
25 See n. 5 above.
793

of 28 May 2001
on the mutual recognition of decisions on the expulsion of third country nationals
(OJ 2001 L 149/34)
ticular Article 63(3) thereof,
Having regard to the initiative of the French Republic,
Whereas:
(1) The Treaty stipulates that the Council is to adopt measures on immigration
policy within areas comprising conditions of entry and residence as well as
illegal immigration and illegal residence.
(2) The Tampere European Council on 15 and 16 October 1999 reaffirmed its
resolve to create an area of freedom, security and justice. For that purpose,
a common European policy on asylum and migration should aim both at
fair treatment of third country nationals and better management of migra-
tion flows.
(3) The need to ensure greater effectiveness in enforcing expulsion decisions

and better cooperation between Member States entails mutual recognition
of expulsion decisions.
(4) Decisions on the expulsion of third country nationals have to be adopted in

accordance with fundamental rights, as safeguarded by the European Con-
vention for the Protection of Human Rights and Fundamental Freedoms
of 4 November 1950, in particular Articles 3 and 8 thereof, and the Geneva
Convention relating to the Status of Refugees of 28 July 1951 and as they
result from the constitutional principles common to the Member States.
(5) In accordance with the principle of subsidiarity, the objective of the pro-
posed action, namely cooperation between Member States on expulsion
of third country nationals, cannot be sufficiently achieved by the Member
States and can therefore, by reason of the effects of the envisaged action, be
better achieved by the Community. This Directive does not go beyond what
is necessary to achieve that objective.
794
Treaty establishing the European Community, the United Kingdom has
given notice by letter of 18 October 2000 of its wish to take part in the
the European Community, Denmark is not participating in the adoption of
this Directive, and is therefore not bound by it or subject to its application.
Given that this Directive aims to build upon the Schengen acquis under the
provisions of Title IV of the Treaty establishing the European Community,
in accordance with Article 5 of the abovementioned Protocol, Denmark
will decide within a period of six months after the Council has adopted this
Directive whether it will transpose this decision into its national law.
(8) As regards the Republic of Iceland and the Kingdom of Norway, this Direc-
tive constitutes a development of the Schengen acquis within the meaning
of the agreement concluded on 18 May 1999 between the Council of the
European Union and those two States. As a result of the procedures laid
down in the agreement, the rights and obligations arising from this Direc-
tive should also apply to those two States and in relations between those
two States and the Member States of the European Community to which
this Directive is addressed,
Article 1
1. Without prejudice to the obligations arising from Article 23 and to the

application of Article 96 of the Convention implementing the Schengen
Agreement of 14 June 1985, signed at Schengen on 19 June 1990, hereinaf-
ter referred to as the “Schengen Convention”, the purpose of this Directive
is to make possible the recognition of an expulsion decision issued by a
competent authority in one Member State, hereinafter referred to as the
“issuing Member State”, against a third country national present within the
territory of another Member State, hereinafter referred to as the “enforcing
Member State”.
2. Any decision taken pursuant to paragraph 1 shall be implemented accord-

ing to the applicable legislation of the enforcing Member State.
795
3. This Directive shall not apply to family members of citizens of the Union
who have exercised their right of free movement.
Article 2
For the purposes of this Directive,

(a) “third country national” shall mean anyone who is not a national of any of
the Member States;
(b) “expulsion decision” shall mean any decision which orders an expulsion
taken by a competent administrative authority of an issuing Member
State;
(c) “enforcement measure” shall mean any measure taken by the enforcing
Member State with a view to implementing an expulsion decision.
Article 3
1. The expulsion referred to in Article 1 shall apply to the following cases:

(a) a third country national is the subject of an expulsion decision based
on a serious and present threat to public order or to national security
and safety, taken in the following cases:
– conviction of a third country national by the issuing Member
State for an offence punishable by a penalty involving deprivation
of liberty of at least one year,
– the existence of serious grounds for believing that a third country
national has committed serious criminal offences or the existence
of solid evidence of his intention to commit such offences within
the territory of a Member State.
Without prejudice to Article 25(2) of the Schengen Convention, if
the person concerned holds a residence permit issued by the enforcing
Member State or by another Member State, the enforcing State shall
consult the issuing State and the State which issued the permit. The
existence of an expulsion decision taken under this point shall allow
for the residence permit to be withdrawn if this is authorised by the
national legislation of the State which issued the permit;
(b) a third country national is the subject of an expulsion decision based
on failure to comply with national rules on the entry or residence of
aliens.
In the two cases referred to in (a) and (b), the expulsion decision must
not have been rescinded or suspended by the issuing Member State.
2. Member States shall apply this Directive with due respect for human rights
and fundamental freedoms.
796
3. This Directive shall be applied without prejudice to the provisions of the

Convention Determining the State Responsible for Examining Applica-
tions for Asylum Lodged in one of the Member States of the European
Communities and readmission agreements between Member States.
Article 4
The Member States shall ensure that the third country national concerned may,
in accordance with the enforcing Member State’s legislation, bring proceedings
for a remedy against any measure referred to in Article 1(2).
Article 5
Protection of personal data and data security shall be ensured in accordance

with Directive 95/46/EC of the European Parliament and of the Council of 24
October 1995 on the protection of individuals with regard to the processing of
personal data and on the free movement of such data.
Without prejudice to Articles 101 and 102 of the Schengen Convention, per-
sonal data files shall be used in the context of this Directive only for the pur-
poses laid down therein.
Article 6
The authorities of the issuing Member State and of the enforcing Member State
shall make use of all appropriate means of cooperation and of exchanging infor-
mation to implement this Directive.
The issuing Member State shall provide the enforcing Member State with all
documents needed to certify the continued enforceability of the decision by the
fastest appropriate means, where appropriate in accordance with the relevant
provisions of the SIRENE Manual.
The enforcing Member State shall first examine the situation of the person
concerned to ensure that neither the relevant international instruments nor the
national rules applicable conflict with the enforcement of the expulsion deci-
sion.
After implementation of the enforcement measure, the enforcing Member State

shall inform the issuing Member State.
797
Article 7
Member States shall compensate each other for any financial imbalances which
may result from application of this Directive where expulsion cannot be effected
at the expense of the national(s) of the third country concerned.
In order to enable this Article to be implemented, the Council, acting on a

proposal from the Commission, shall adopt appropriate criteria and practical
arrangements before 2 December 2002. These criteria and practical arrange-
ments shall also apply to the implementation of Article 24 of the Schengen Con-
vention.
Article 8
1. Member States shall bring into force the laws, regulations and adminis-
trative provisions necessary to comply with this Directive not later than 2
December 2002. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference
to this Directive or shall be accompanied by such reference on the occasion
of their official publication. The methods of making such reference shall be
laid down by Member States.
provisions of domestic law which they adopt in the field governed by this
Directive.
Article 9
This Directive shall enter into force the day of its publication in the Official
Journal of the European Communities.
Article 10
This Directive is addressed to the Member States, in accordance with the Treaty
798
Chapter 26 Carrier Sanctions
1 Summary
The Directive supplementing the Convention implementing the Schengen
Agreement re financial penalties on carriers transporting third-country nation-
als without correct documentation1 came into force on 19 August 2001 with
implementation necessary by 11 February 2003. One Member State has been
condemned by the Court of Justice for failure to implement the Directive on
time,2 while another two Member States escaped sanction by implementing the
Directive while proceedings before the Court of Justice were underway.3
As the preamble makes clear, this Directive builds on the Schengen acquis,
in accordance with the Protocol integrating it into the framework of the Euro-
pean Union, as laid down by Annex A to Council Decision 1999/435/EC of 20
May 1999 concerning the definition of the Schengen acquis the purpose of deter-
mining, in conformity with the relevant provisions of the Treaty establishing the
European Community and the Treaty on European Union, the legal basis for
each of the provisions or decisions which constitute the acquis. In accordance
with Article 3 of the Protocol on the position of the United Kingdom and Ire-
land annexed to the Treaty on European Union and the Treaty establishing the
European Community, the United Kingdom has given notice of its wish to take
part in the adoption and application of this Directive. Ireland and Denmark,
however, did not participate in the adoption of this Directive. Although Ireland
1 Directive 2001/51/EC, OJ 2001 L 187/45.

2 Case C-449/04 Commission v Luxembourg, judgment of 21 July 2005, unreported.
3 Cases C-460/04 Commission v Netherlands and C-516/04 Commission v Belgium
(both withdrawn).
subsequently opted in due to its participation in aspects of the Schengen acquis,

the Directive has not yet been made applicable to Ireland.4
Article 1 of the Directive states that the Directive is to supplement the provi-
sions of Article 26 of the Convention implementing the Schengen Agreement.5
Article 2 provides that Member States must take the necessary steps to
ensure that the obligation placed on carriers to return third country nationals
in Article 26(1)(a) of the Schengen Convention will also apply when entry is
refused to a third country national in transit if the carrier which was to take him
on to his country of destination refuses to take him on board or the authorities
in the State of destination have refused him entry and have sent him back to the
Member State of transit.
Carriers which are unable to return the third country national whose entry
is refused are to find means of onward transportation immediately and to bear
the costs or if immediate transportation is not possible, to bear the costs of stay
and return of the third country national.6
Under Article 4(1) the penalties to be imposed by Member States on car-
riers under the provisions of Article 26 of the Schengen Convention, as sup-
plemented by this Directive, are laid down. The maximum penalty per person
carried should be no less than €5000 or the minimum penalty should be no less
than €3000. Alternatively, where the carrier is fined a lump sum for an infringe-
ment, the maximum amount imposed should be no less than €500 000, irrespec-
tive of numbers of persons carried. Article 4(2) provides that these rules are
“without prejudice to Member States’ obligations in cases where a third-country
national seeks international protection”. Member States are not prevented
from adopting or retaining other penalties against carriers such as immobilisa-
tion, seizure and confiscation of the transport.7
Article 6 provides that Member States are obliged to ensure that their laws
and procedures provide that the carriers against whom proceedings are brought
have effective rights of defence and appeal.

Article 26(1)(a) of the Schengen Convention requires carriers to “take responsi-
bility for” third-country nationals whom the carriers have brought to the exter-
nal borders of the Community but who are then refused entry. The carriers, at
the border authorities’ request, must return such persons to a third state as spec-
4 See Council Decision on Irish participation in Schengen (OJ 2002 L 64/20), Arts.
2(2)(c) and 6(3).
5 OJ 2000 L 239/1.
800
ified in the Convention.8 Article 26(1)(b) requires carriers to ensure that third-
country nationals have the travel documents required for entry. To enforce this
obligation, Article 26(2) and 26(3) require Member States to impose (unspeci-
fied) penalties on carriers which transport, by air, sea or coach, third-country
nationals who do not possess the necessary travel documents from a third state
to their territories. The UK and Ireland have opted into this provision of the
Schengen acquis.9
The French Council Presidency in the second half of 2000 proposed
a Directive that would have applied alongside these provisions. As originally
proposed, the Directive would have altered the carriers’ obligations under the
Convention.10 First, where persons were refused entry owing to lack of travel
documents or visas, the carrier would have to “take charge” of those persons
and return them to the state of origin, the state issuing them a travel document,
or any other state willing to guarantee their entry. Second, the same obligations
would apply to persons in transit to a third state if that state refused to admit
them and sent them back, or if a carrier refused to transport them. Third, if a
carrier could not return such persons, it would have to find means of onward
transportation immediately and bear the costs; if onward transportation were
not possible, the carrier would have to “take charge” of them. Also, the Direc-
tive would have specified that Member States’ penalties for transporting persons
without travel documents or visas should be at least €2000 a person, but this
would not apply where persons were “admitted to the territory for asylum pur-
poses”. Member States would be free to impose more stringent penalties on car-
riers, and could apply the Directive to crossing of internal Community borders
if they applied checks on internal borders as provided for by derogation from
the Schengen Convention. This latter provision was obviously a reflection of the
particular situation of France, which had retained such checks on its borders
with Belgium and Luxembourg.
Significant changes to the text were made in the Council working group on
migration.11 First, the text was redrafted so that it would only supplement the
provisions of Article 26 of the Schengen Convention, rather than run alongside
and apparently alter it. Also, the revised proposal would not alter the existing
rules concerning persons refused entry into a Member State. Instead, the pro-
8 The State from which that person came, the State issuing that person a travel docu-
ment, or any other State willing to guarantee entry of that person.
9 See Decisions on UK and Irish Schengen participation (OJ 2000 L 131/43 and n. 4
above).
10 OJ 2000 C 269/8. A slightly different version had been proposed beforehand (Coun-
cil docs. 10186/00, 7 July 2000 and 10186/1/00, 31 July 2000).
11 Council docs. 11761/00, 27 Sep. 2000; 12488/00, 18 Oct. 2000; 13161/00, 9 Nov.
2000; 13138/00, 10 Nov. 2000; 13510/00, 16 Nov. 2000; 13510/1/00, 21 Nov. 2000;
13510/2/00, 28 Nov. 2000; and 14074/00, 29 Nov. 2000.
801
posal would simply extend those rules to persons denied transport to or returned
from a third state. Carriers would still have obligations to move, or in default,
“take charge” of persons, and there would be options as regards penalties: either
a maximum amount of €5,000 per person, a minimum amount of €3,000 per
person or a lump sum with a maximum amount of at least €500,000. The exemp-
tion for persons admitted for asylum was gone, after at least one delegation
expressly argued that this exemption “could make penalties for carriers inef-
fective and increase asylum applications”.12 However, a vague clause requiring
Member States to grant “effective rights of defence and appeal” against penal-
ties was added.
Since there were still some reservations from Member States and the Euro-
pean Parliament (EP) had not yet voted on the proposal, discussions contin-
ued during the Swedish Presidency in the first half of 2001. Eventually the EP,
in plenary session, rejected the proposed Directive in March 2001, although
the Council was unfazed by this.13 SCIFA reached a compromise in May 2001
that consisted of three amendments.14 First, the obligation for carriers to “take
charge” of a person was replaced by an obligation to pay for stay and return.
Second, at the behest of Belgium and Sweden, a weak form of the “asylum
exemption” was re-inserted: the obligation to impose penalties is “without preju-
dice to Member States’ obligations in cases where a third-country national seeks
international protection”. Third, the proposed clause concerning reimposition
of carrier sanctions if a Member State reimposed checks on its internal borders
was deleted.
The Directive was agreed politically at the May 2001 JHA Council and then
formally adopted by the Transport and Telecoms Council of 27/28 June 2001. A
declaration in the Council minutes concerning the definition of the absence of
travel documents was also adopted.15
3 Legal Issues
As noted above, according to Article 4(2) of the Directive, the imposition of pen-
alties is “without prejudice to Member States’ obligations in cases where a third-
country national seeks international protection”. This meagre substitute for a
provision exempting carriers from penalties in cases where the person claims
asylum places the Member States potentially in breach of its obligations under
the 1951 Convention on the Status of Refugees. The “without prejudice” provi-
sion does not appear to expressly disallow the imposition of penalties in such
12 Comments of German delegation (Council doc. 12361/00, 16 Oct. 2000).

13 OJ 2001 C 343. Compare with the Kirkhope report approved in committee on 26
Feb. 2001, which instead suggested amendments (A5-0069/2001).
14 Council docs. 8650/01, 10 May 2001 and 8916/01, 17 May 2001.
15 See Statement 75/01, in the monthly summary of Council Acts for June 2001 (Coun-
cil doc. 11450/01, 27 Aug. 2001).
802
cases. However if the obligations imposed on Member States under the Refugee
Convention were to be interpreted in good faith there is a good argument for
suggesting mechanisms designed to prevent the travel of asylum seekers from
their countries of origin strike at the heart of the Refugee Convention: the right
to seek asylum in country other than that of habitual residence or nationality.16
Furthermore, the Refugee Convention explicitly recognises that some refugees
will have no option but to use illegal means of entry and prohibits States from
imposing penalties on refugees on account of their illegal entry or presence.
Insofar as carrier sanctions legislation is designed to prevent irregular or illegal
entry, it is certainly arguable that such legislation is broadly inconsistent with
Article 31, which accepts that there is justification for illegal entry by refugees.
The lack of proper procedural safeguards contained in the Directive poten-
tially raises issue of compatibility with Article 6 of the European Convention
on Human Rights. It might be tempting for Member States bearing in mind the
requirements of the Directive to impose mandatory penalties on carriers and
the weakness of the provision relating to appeals to impose automatic sanctions
on a carrier thus reversing the burden of proof. Principles of justice contained
within Article 6, particularly Article 6(3), mean that the burden should be on the
authorities to prove the offence, rather than the carrier to disprove it.
Furthermore it is questionable whether provisions permitting the confisca-
tion of vehicles or other forms of transport owned by the carrier are compatible
with Article 1 of Protocol 1 to the ECHR and the right to property. Depending
on the nature of the offence, confiscation of a carrier’s transport could be seen
as disproportionate to any aim of the authorities in preventing the carrying of
illegal immigrants.17
4 Comments
Carriers sanction legislation has been controversial both from the point of view
of the carriers and of those representing passengers, particularly vulnerable
groups. Whether or not they are legally impermissible for reasons of conflict
with the Refugee Convention, as discussed above, a number of non-governmen-
16 The UK House of Lords has however rejected a similar argument in relation to

the imposition of immigration officers at Prague Airport in the case of R (on the
application of European Roma Rights Centre & ors) v Immigration Officer at Prague
Airport & Anor (2004) [2004] UKHL 55.
17 The compatibility of mandatory sentences as well as power to confiscate or detain
transport with Article 6 and Article 1 of Protocol 1 to the European Convention
of Human Rights was examined in the context of the UK regime by the Court of
Appeal in International Transport Roth GmbH v Secretary of State for the Home
Department [2003] QB 728. The Court of Appeal found that both Article 1 of Pro-
tocol 1 and Article 6 were infringed by the carriers sanction legislation in place at
the time.
803
tal organisations for moral and practical reasons oppose the use of carrier sanc-
tions as a means of preventing asylum seekers from travelling to assert their
claims.18 They have argued that not only does the use of sanctions give the car-
rier the role of immigration officer, but it ignores the fact that there is no avail-
able means whereby asylum seekers can get pre-clearance to come to countries
within the EU to assert their claims for asylum in any event. The consequential
“demonising” of all asylum seekers trying to get to the EU as “illegal immi-
grants”, despite the fact that the Refugee Convention requires that an asylum
seeker be outside his or her country of feared persecution in order to make a
claim to be a refugee in any event, is reprehensible. Putative refugees have, by
reason of the carrier sanctions regimes in place, no alternative but to resort to
the use of false documents to travel and the extreme measures sought to be taken
to make their claims.
There are other fundamental criticisms to be made of carrier sanctions leg-
islation. The increasing use of such legislation and the strict liability which is
placed on carriers means that they have no choice but to undertake the role of
immigration officers. Whilst neither trained in the complex immigration laws of
the Member States nor granted the legal power to make immigration decisions
on behalf of Members States, carriers are forced to decide for Member States
who shall be allowed to travel and who shall not.19 Not only does this place
carriers in the invidious position of taking on the role of immigration officer
on behalf of the Member State but it is highly unsatisfactory for the passen-
ger rejected by the carrier. Whereas any passenger refused entry or a visa by a
Member State may avail himself of the legal remedies available for challenging a
refusal, the passenger will have little or no redress against the carrier for refusing
passage. This not only affects the ability of refugees to reach places of sanctu-
ary but potentially interferes with the passengers’ rights to family and private
life. Even if the refused passenger were able to bring some form of civil action
against the carrier for wrongly refusing passage, for many passenger the relief
obtained would be too late depending on the reasons for travel.
18 See, for instance, ILPA statements at <www.ilpa.org.uk> and ECRE statements

and policy papers at >http://www.ecre.org>.
19 This point was made also by the House of Lords, Select Committee on European
Union, Fifth Report (2003-04), <http://www.parliament.the-stationery-office.co.uk/
pa/ld200304/ldselect/ldeucom/29/2910.htm>.
804

of 28 June 2001
supplementing the provisions of Article 26 of
the Convention implementing the Schengen Agreement of 14 June 1985
(OJ 2001 L 187/45)
ticular Article 61(a) and Article 63(3)(b) thereof,
Whereas:
(1) In order to combat illegal immigration effectively, it is essential that all the
Member States introduce provisions laying down the obligations of carri-
ers transporting foreign nationals into the territory of the Member States.
In addition, in order to ensure a greater effectiveness of this objective, the
financial penalties currently provided for by the Member States for cases
where carriers fail to meet their control obligations should be harmonised
to the extent possible, taking into account the differences in legal systems
and practices between the Member States.
(2) This measure is among the general provisions aimed at curbing migratory
flows and combating illegal immigration.
(3) Application of this Directive is without prejudice to the obligations result-

ing from the Geneva Convention relating to the Status of Refugees of 28
July 1951, as amended by the New York Protocol of 31 January 1967.
(4) The freedom of the Member States to retain or introduce additional mea-
sures or penalties for carriers, whether referred to in this Directive or not,
should not be affected.
(5) Member States should ensure that in any proceedings brought against car-
riers which may result in the application of penalties, the rights of defence
and the right of appeal against such decisions can be exercised effectively.
(6) This Directive builds on the Schengen acquis, in accordance with the Proto-
col integrating it into the framework of the European Union, as laid down
by Annex A to Council Decision 1999/435/EC of 20 May 1999 concerning
805
the definition of the Schengen acquis for the purpose of determining, in

conformity with the relevant provisions of the Treaty establishing the Euro-
pean Community and the Treaty on European Union, the legal basis for
each of the provisions or decisions which constitute the acquis.
Treaty establishing the European Community, the United Kingdom gave
notice, by letter of 25 October 2000, of its wish to take part in the adoption
(8) Pursuant to Article 1 of the aforementioned Protocol, Ireland is not par-

ticipating in the adoption of this Directive. Consequently and without prej-
udice to Article 4 of the aforementioned Protocol, the provisions of this
Directive do not apply to Ireland.
the European Community, Denmark is not participating in the adoption
of this Directive, and is therefore not bound by it or subject to its applica-
tion. Given that this instrument aims to build upon the Schengen acquis
under the provisions of Title IV of the Treaty establishing the European
Community, in accordance with Article 5 of the abovementioned Protocol,
Denmark shall decide within a period of 6 months after the Council has
adopted this Directive whether it will implement it in its national law.
(10) As regards the Republic of Iceland and the Kingdom of Norway, this Direc-
tive constitutes a development of the Schengen acquis within the meaning
of the Agreement concluded on 18 May 1999 by the Council of the Euro-
pean Union and those two States concerning the lattter’s association with
the implementation, application and development of the Schengen acquis,
Article 1
The aim of this Directive is to supplement the provisions of Article 26 of the

Convention implementing the Schengen Agreement of 14 June 1985, signed at
Schengen on 19 June 1990(5) (hereinafter referred to as “the Schengen Conven-
tion”) and to define certain conditions with respect to their implementation.
806
Article 2
Member States shall take the necessary steps to ensure that the obligation of
carriers to return third country nationals provided for in the provisions of Arti-
cle 26(1)(a) of the Schengen Convention shall also apply when entry is refused
to a third-country national in transit if:
(a) the carrier which was to take him to his country of destination refuses to take
him on board;
(b) or the authorities of the State of destination have refused him entry and have
sent him back to the Member State through which he transited.
Article 3
Member States shall take the necessary measures to oblige carriers which are
unable to effect the return of a third-country national whose entry is refused to
find means of onward transportation immediately and to bear the cost thereof,
or, if immediate onward transportation is not possible, to assume responsibility
for the costs of the stay and return of the third-country national in question.
Article 4
1. Member States shall take the necessary measures to ensure that the penal-
ties applicable to carriers under the provisions of Article 26(2) and (3) of
the Schengen Convention are dissuasive, effective and proportionate and
that:
(a) either the maximum amount of the applicable financial penalties is
not less than EUR 5000 or equivalent national currency at the rate of
exchange published in the Official Journal on 10 August 2001, for each
person carried, or
(b) the minimum amount of these penalties is not less than EUR 3000 or
equivalent national currency at the rate of exchange published in the
Official Journal on 10 August 2001, for each person carried, or
(c) the maximum amount of the penalty imposed as a lump sum for each
infringement is not less that EUR 500000 or equivalent national cur-
rency at the rate of exchange published in the Official Journal on 10
August 2001, irrespective of the number of persons carried.
2. Paragraph 1 is without prejudice to Member States’ obligations in cases

where a third country national seeks international protection.
807
Article 5
This Directive shall not prevent Member States from adopting or retaining, for
carriers which do not comply with the obligations arising from the provisions of
Article 26(2) and (3) of the Schengen Convention and of Article 2 of this Direc-
tive, other measures involving penalties of another kind, such as immobilisation,
seizure and confiscation of the means of transport, or temporary suspension or
withdrawal of the operating licence.
Article 6
Member States shall ensure that their laws, regulations and administrative provi-
sions stipulate that carriers against which proceedings are brought with a view to
imposing penalties have effective rights of defence and appeal.
Article 7
1. Member States shall take the necessary measures to comply with this Direc-
tive not later than 11 February 2003. They shall forthwith inform the Com-
mission thereof.
2. When Member States adopt these measures, they shall contain a reference
3. Member States shall communicate the main provisions of national law

which they adopt in the field covered by this Directive to the Commission.
Article 8
This Directive shall enter into force 30 days after its publication in the Official
Article 9
808
Chapter 27 Trafficking in Human Beings
1 Summary
The Council Framework Decision on combating trafficking in human beings1
entered into force on 1 August 2002, and Member States had to implement it by
1 August 2004.2 Its aim is to contribute to the fight against and prevent of traf-
ficking in human beings by complementing other instruments in this area.3
The preamble to the Framework Decision recognises that trafficking in
human beings represents serious violations of fundamental rights and human
dignity, which involves the use of ruthless practices and violence. It also recog-
nises the particular vulnerability of women and children to trafficking, and
states that action against trafficking in human beings must take place at both a
national and European level. The Framework Decision affirms that it is neces-
sary to introduce sanctions on perpetrators which are sufficiently severe.
Article 1 defines the concept of trafficking in human beings for the purpose
of labour or sexual exploitation. The Member States must punish any form of
recruitment, transportation, transfer or harbouring of a person who has been
deprived of his/her fundamental rights in this context. Thus, all criminal con-
duct which abuses the physical or mental vulnerability of a person as defined by
1 Framework Decision 2002/629/JHA, OJ 2002 L 203/1.

2 Arts. 11 and 10(1) of the Framework Decision.
3 Such as the Council Joint Action 96/700/JHA establishing an incentive and exchange
programme for persons responsible for combating trade in human beings and sexual
exploitation of children (OJ 1996 L 322/7), and programmes such as the Daphne
programme on preventative measures to fight violence against children, young per-
sons and women (Decision No. 293/2000/EC of the European Parliament and of
the Council, OJ 2000 L 34/1; in the meantime this has been replaced by the “Daphne
II” programme: OJ 2004 L 143/1).
the Framework Decision will be punishable. There is no requirement that there

is a cross border element to the offence and thus offences could take place within
one Member State.
Article 1(2) makes clear that the victim’s consent is irrelevant where the
offender’s conduct is of a nature which would constitute exploitation within the
meaning of the proposal, that is, involving:
– the use of coercion, force or threats, including abduction;
– the use of deceit or fraud;
– the abuse of authority or influence or the exercise of pressure;
– the offer of payment.
None of the above means need to be used for the acts to be punishable if the
victim is a child.4
Article 2 provides that Member States should take action to make insti-
gating trafficking in human beings and being an accomplice or attempting to
commit a crime punishable.
Article 3 states that penalties provided for by national legislation must
be “effective, proportionate and dissuasive.” The maximum penalty is to be
no fewer than eight years imprisonment if certain conditions are met includ-
ing whether the offence has deliberately endangered the life of the victim, there
has been a use of serious violence or harm to the victim or where the victim is
particularly vulnerable. Additionally the maximum penalty will apply where the
crime is committed within the framework of a criminal organisation as defined
by Joint Action 98/733/JHA.5
Articles 4 and 5 create obligations on Member States to have in place mea-
sures necessary to ensure that criminal or civil liability attaches to legal persons
as well as natural persons. Legal persons will be held liable for offences com-
mitted for their benefit by any person acting either individually or a part of the
organ of the legal person, or who exercises a power of decision.
Penalties on legal persons must be “effective, proportionate and dissuasive”;
they must include criminal or non-criminal fines and specific sanctions such as
a temporary or definitive ban on commercial activities, a judicial dissolution
measure or the exclusion from public benefits or advantages.
Article 6(1) provides that a Member State is to establish jurisdiction over
offences committed in whole or part within their territories, where the offender
is one of its nationals or where the offence is committed for the benefit of a legal
person established in the territory of that Member State, although Article 6(2)
4 Art. 1(3).
5 OJ 1998 L 351/1. In the meantime the Commission has proposed a Framework
Decision which would replace this Joint Action (COM (2005) 6, 19 Jan. 2005; see
Art. 9); as of Jan. 2006 it was still under discussion in the Council.
810
Chapter 27 Trafficking in Humans
permits Member States to limit this obligation to offences wholly or partly com-
mitted within their territory.
Article 6(3) makes clear that if a Member State does not extradite its own
nationals it must exercise jurisdiction over and prosecute an offence committed
by one of its nationals outside its territory.
Article 7 provides that the investigation or prosecution of offences will not
be dependant on the reporting or accusation made by a victim of the offences.
Child victims of trafficking are entitled to special assistance, in accordance with
Framework Decision 2001/220/JHA on the standing of victims in criminal pro-
ceedings.6
Article 9 repeals a prior measure, Joint Action 97/154/JHA, as regards com-
bating trafficking in human beings.7
Member States had to transmit to the General Secretariat of the Coun-
cil and to the Commission the provisions transposing the Framework Decision
into their national legislation. On the basis of a written report drawn from this
information, and a written report submitted by the Commission, the Council
had to check by 1 August 2005 that the Member States have taken the necessary
measures to implement the Framework Decision.8 In fact, the Commission had
not submitted its report, and the Council had not yet assessed national imple-
mentation, as of 1 January 2006.

The first EU measure on this issue was a Joint Action from 1997, which also cov-
ered the issue of sexual exploitation of children.9 To replace this act, at the end
of 2000 the Commission proposed two parallel third pillar Framework Deci-
sions, concerning trafficking in humans and sexual exploitation of children.10
Both proposals followed the conclusion of the United Nations Convention
on organised crime and its protocols, signed by the Community in December
2000.11 Ultimately discussions on the latter proposal turned out to be more dif-
ficult, with the Council reaching “political agreement” on it in October 2002 and
adopting it formally in December 2003.12
6 OJ 2001 L 82/1.
7 OJ 1997 L 63. That Joint Action remained in force as regards sexual exploitation of
children, although it was later rescinded by a further Framework Decision on that
issue: see s. 2 below.
8 Article 10 of the Framework Decision.
9 N. 7 above.
10 COM (2000) 854, 21 Dec 2000; OJ 2001 C 62 E/324.
11 OJ 2001 L 30/44.
12 OJ 2004 L 13/44. Member States must apply this Framework Decision by 20 Jan.
2006 (Art. 12(1)).
811
The original proposal for a Framework Decision on trafficking contained

two key offences. First, Member States had to criminalise “labour exploitation”,
where a person’s “fundamental rights are suppressed” for the purpose of exploit-
ing him or her in infringement of labour standards. The second requires Member
States to criminalise trafficking of a person “where the purpose is to exploit him
or her in prostitution or in pornographic performances or in production of por-
nographic material”. In either case, Member States had to ban the recruitment,
transportation, harbouring or transfer of a person, and the offence would only
exist where there was coercion, deceit, misuse of authority of another form of
abuse. The maximum punishment in normal cases would be at least six years,
and in certain circumstances (where there was “particular ruthlessness”, or gen-
eration of “substantial proceeds”, or involvement of organised crime) it would
be ten years. There were further provisions concerning jurisdiction and coopera-
tion between Member States.
During the Swedish Presidency, the Council devoted considerable effort to
the Commission’s proposal. Following discussions in the Article 36 Committee
and the working party on substantive criminal law, the proposal was amended,
with reservations remaining on the definitions, the applicable penalties and the
deletion of the provisions on cooperation between Member States.13 Following
discussion in Coreper, reservations were removed except as regards the issue of
penalties, which was left to the May 2001 JHA Council to discuss.14 The Council
was unable to reach agreement on this issue, although it “froze” the other provi-
sions of the text.15
The first change agreed to the text was the merger and restructuring of the
offences which Member States would have to create or retain. Instead of sepa-
rate offences for “labour exploitation” and “sexual exploitation”, the Council
agreed a single offence comprising either form of exploitation. The definition
of the offences was also altered, with the definition of “sexual exploitation”
becoming slightly vaguer and the definition of “labour exploitation” consisting
of “exploitation of that person’s labour or services, including at least” forced
labour or forms of slavery or servitude, rather than suppression of “fundamen-
tal rights” in infringement of labour standards. Member States still have to ban
the recruitment, transportation, harbouring or transfer of a person in the con-
text of either form of exploitation. While both forms of exploitation could still
occur whenever coercion or deceit is involved, the further alternative of “misuse
of authority” became “abuse of authority”, with an extended definition, and
“another form of abuse” became instead payments to secure the consent of a
person controlling the victim. Moreover, in the case of a child, simple exploita-
13 Council doc. 8599/01, 14 May 2001; see also 8599/01 cor 2, 15 May 2001.
14 Council doc. 8599/1/01, 23 May 2001.
15 See the JHA Council Press Release and also the outcome of proceedings on this
issue (Council doc. 9009/01, 1 June 2001).
812
tion must constitute an offence, even without any of the listed forms of control.
Finally, the agreed text also specified that the consent of the victim would be
irrelevant.
Instead of a normal maximum sentence of at least six years with exten-
sions to ten years in certain circumstances as the Commission had proposed, the
normal sentence must simply consist of custodial penalties, with extensions to
eight years in some circumstances. Those circumstances were also more precisely
defined, now consisting of circumstances endangering the life of the victim, oth-
erwise involving inhuman or degrading treatment, or entailing involvement of
organised crime as defined in the very broad EU Joint Action on the concept of
“criminal organisation”.16 However, this issue was still open to debate.
The agreed text also deleted the provision on cooperation between Member
States proposed by the Commission and completely redrafted the provision con-
cerning protection of victims, replacing a general obligation to ensure adequate
legal protection and standing with specific rules on protection of children by ref-
erence to a Framework Decision on victims’ rights and permitting investigations
or prosecutions to begin in the absence of a complaint by a victim.
In June 2001, the EP delivered its opinion on the proposal, but it had little
effect on the Council, which had already reached a consensus on so much of the
text.17 A number of the amendments in any event reflected agreements within
the Council on the definition of the crimes. However, an important amendment
suggested exempting “[a]ssistance given on humanitarian grounds to persons
not in possession of the proper papers who are seeking entry and residence”
from the scope of the measure, and a further safeguard clause would specify
that nothing in the measure would “adversely affect the rights, obligations and
responsibilities of States and individuals under international law, including
international humanitarian law and international human rights law”, includ-
ing the Geneva Convention on refugees “in particular”.18 These amendments
would have aligned the trafficking measure more closely with the two facilitation
measures,19 with the significant distinction that the humanitarian exception here
would be mandatory. There would also be further protection for victims, includ-
ing the possibility of a temporary residence permit.20
16 N. 5 above.
17 OJ 2002 C 53 E/121.
18 Amendments 14 and 35, suggesting new Arts. 1(1a) and 8a.
19 See Ch. 28.
20 See amendments 24, 30, 32, 33, 56, 44 and 47, suggesting new Arts. 4(2a), 6(ea) and
7a and an amendment to Art. 8.
813
Coreper was unable to reach a conclusion on this proposal at its meetings

in June and September 2001,21 and so the text was sent back to the Council at
the end of September. This time the Council was able to reach political agree-
ment on the text.22 The final compromise maintained the period of eight years
sentence for all Member States, where the offender has: endangered the life of
the victim “deliberately or by gross negligence”; committed the crime against
a “particularly vulnerable” victim, who is “at least” a person under the age of
sexual majority in national law who was trafficked for the purpose of sexual
exploitation; committed the offence “by use of serious violence or caused partic-
ularly serious harm to the victim”; or trafficked within the framework of organ-
ised crime, as defined in the EU Joint Action mentioned above, but without the
threshold for criminal liability set out in that measure.
Following this political agreement, a number of parliamentary scrutiny res-
ervations prevented the adoption of the proposal. After an instruction from the
Seville European Council to adopt this measure by the next JHA Council at the
latest, and the eventual withdrawal of the scrutiny reservations, the Council was
able to adopt the Framework Decision formally in July 2002.23 Three statements
were inserted in the minutes when it was adopted, concerning the concept of
“aggravating circumstances”, the definition of “porrnography” and the issue of
harmonising penalties.24
The Framework Decision should also be seen in the broader context. EU
measures concerning trafficking in humans also comprise a Directive on the
migration status of victims, with the objective of enabling the victims to assist in
effective prosecution of the offenders,25 along with soft law: Council conclusions
on trafficking (including endorsement of the 2002 “Brussels Declaration” on the
issue),26 a Council resolution on the law enforcement response27 and a Commis-
sion decision establishing an expert group of advisors.28 The Hague Programme
21 See Council docs. 9401/01, 18 June 2001; 10313/01, 26 June 2001; and 11911/01, 17
Sep. 2001.
22 Council doc. 13149/01, 24 Oct. 2001 (outcome of proceedings). For the agreed text
following consideration of the EP’s Opinion, see Council doc. 14216/01, 3 Dec.
2001. The only substantive difference was the addition of a clause extending the
measure to Gibraltar.
23 N. 1 above.
24 Statements 129 to 131/02 in the Monthly Summary of Council Acts for July 2002
(Council doc. 12399/02, 27 Sept. 2002).
25 See Ch. 29.
26 OJ 2003 C 137/1.
27 OJ 2003 C 260/4.
28 OJ 2003 L 79/25. The later reports and opinions of the group are online at: <http://
www.europa.eu.int/comm/justice_home/doc_centre/crime/trafficking/doc_crime_
human_trafficking_en.htm#>.
814
has committed the Commission and Council to adopt an action plan against
trafficking in persons by the end of 2005,29 and an action plan was adopted by
the Council in December 2005.30 The Commission has also proposed that the
EC conclude the Protocol to the UN organised crime Convention,31 and in the
meantime, the Council of Europe has drawn up its own Convention against traf-
ficking in persons,32 which the EC may ultimately sign and conclude.33
More broadly, there is an EU Framework Decision on the status of victims
in criminal proceedings,34 and an EC Directive on state compensation for victims
of crime.35 The Directive essentially only applies where there is a cross-border
element within the EU, but it does require Member States to establish a system
of state compensation for victims of “violent intentional crime”, although the
detailed requirements for such national systems are not set out.36 The meaning
of “violent intentional crime” is not expressly defined in the Directive, but in
the absence of any contrary indication, it is a concept of Community law which
must have a uniform meaning if the Directive is to achieve its intended effects.37
Obviously the victims of trafficking should often, or perhaps always, be able to
claim that the crimes committed against them were violent and intentional, in
light of the definitions in this Framework Decision and the general consider-
ations set out in its preamble. However, the cross-border aspects of the Directive
will only apply where a person is “habitually resident” in a Member State, thus
29 OJ 2005 C 53/1, point 1.7.1.

30 OJ 2005 C 311/1. See the drafts submitted by the UK Council Presidency (Coun-
cil doc. 12402/05, 19 Sep. 2005) and the Commission (COM (2005) 514, 18 Oct.
2005).
31 COM (2003) 512, 22 Aug. 2003. As of 6 Jan. 2006, sixteen Member States had
ratified the Protocol, which entered into force on 25 Dec. 2003 (Austria, Belgium,
Cyprus, Denmark, Estonia, France, Latvia, Lithuania, Malta, Netherlands, Poland,
Portugal, Slovenia, Slovakia, Spain and Sweden). The other nine Member States
had signed the Protocol, but not ratified it (the Czech Republic, Finland, Germany,
Greece, Hungary, Ireland, Italy, Luxembourg and the UK). The EC has ratified the
main UN Convention on organised crime (OJ 2004 L 261/69).
32 ETS 197, open for signature 16 May 2005. As of 8 Jan. 2006, twenty-four States,
including twelve Member States, had signed the Convention (Austria, Belgium,
Cyprus, Germany, Greece, Italy, Luxembourg, Malta, Netherlands, Poland, Portu-
gal and Sweden). No State had yet ratified it; it requires 10 ratifications, including
eight by Council of Europe Member States, to enter into force.
33 See Hague Programme implementation Action Plan (OJ 2005 C 198/1), point 2.6.
34 N. 6 above. For a detailed discussion of the Framework Decision, see Peers, EU
Justice and Home Affairs Law, 2nd edition (forthcoming, OUP, 2006), Ch. 9.
35 Directive 2004/80 (OJ 2004 L 261/15). For a detailed discussion, see ibid.
37 See Ch. 1.
815
precluding any trafficking victim habitually resident outside the EU from relying
upon those provisions. However, the obligation to establish national schemes
does not contain such a territorial limitation, so it should follow by a contrario
reasoning that the national schemes must compensate all persons who suffered
an intentional violent crime while present on the territory of a Member State,
whatever their immigration status.
Member States had to set up a national scheme for compensation by 1 July
2005, and had to comply with the rest of the Directive by 1 January 2006.38
Finally, it should be emphasised that the Directive is not based on Title IV EC,
but on Article 308 EC, the “residual powers” clause in the EC Treaty. So the
Directive applies to all Member States, including the UK, Ireland and Denmark,
and any national court or tribunal may (or, in the case of final courts, must) refer
questions about it to the Court of Justice.
3 Legal Analysis
The first legal issue that needs consideration is the legal effect of a Framework
Decision in EU law. The EU’s Court of Justice has considered this issue in
the context of the Framework Decision on the standing of victims in criminal
proceedings39 in the case of Pupino.40 In that case the Court of Justice made
clear that framework decisions have indirect effect, placing an obligation on the
authorities of Member States and national courts to interpret domestic law in
conformity with the Framework Decision. The Member States are given latitude
in the manner of implementation of the Framework Decision but the decision
binds the Member State as to the result to be achieved. However, the Court also
confirmed that like Directives, Framework Decisions cannot aggravate criminal
liability until a Member State transposes them into national law. The Court also
observed that criminal trials to implement Member States’ obligations under
Framework Decisions must comply with the right to a fair trial as guaranteed by
Article 6 ECHR, as interpreted by the European Court of Human Rights.
Following a subsequent decision of the Court of Justice,41 it might now be
questioned whether the Framework Decision falls in part within EC compe-
tence, at least to the extent that the requirement to adopt criminal penalties (and
penalties against legal persons) against trafficking in persons falls within the
EC’s powers concerning “illegal migration”.42
38 Art. 18.
39 N. 6 above.
40 Criminal Proceedings against Maria Pupino, Case C-105/03, Judgment of 16 June
2005, not yet reported.
41 Case C-176/03 Commission v Council, judgment of 13 Sept 2005, not yet reported.
816
In comparison to the Council of Europe’s Convention on Trafficking43 the

Framework Decision is weak. Notably the Council of Europe’s Convention
contains clauses requiring Parties to take measures to reduce the demand that
fosters all forms of exploitation of humans.44 It contains far more extensive mea-
sures to protect and promote the rights of victims of trafficking including that
no steps to expel a victim will be taken before identification of the person as a
victim of trafficking has occurred.45 Additionally the victim’s right to privacy
is to be respected46 and appropriate assistance and welfare is to be afforded to
the victim.47 Due regard is given to the need to offer residence to the victim.48
Specifically child victims of trafficking are to be granted residence permits in
accordance with the principles of the rights of the child. States must take into
account the personal circumstances of adult victims, and whether their presence
is required for the purposes of criminal prosecution.
It is welcomed however that the same definition of trafficking is contained
in both the Framework Decision and the Council of Europe Convention. The
latter is however more specific including within its scope trans-national and
intra-national activities.49
The Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Conven-
tion against Transnational Organized Crime50 also shows up the weaknesses of
the Framework Decision. Again the UN Protocol provides for protection to
be given to the victims of trafficking including residence permits, temporary or
permanent as appropriate, recognizing the risks to victims of trafficking in their
countries of origin. Repatriation should generally be voluntary and the safety
of the victim must be taken into consideration. Furthermore the social welfare
needs of the victims are specifically referred to although the provision of social
assistance, education and housing is not made obligatory by the Protocol. Social
methods of prevention, such as research, advertising and social or economic
support, are also provided for. The specific provisions of the Protocol are to be
read in conjunction with the parallel provisions of the UN Convention against
Transnational Organized Crime, which contains additional language dealing
43 Council of Europe Convention on Action against Trafficking in Human Beings

CETS No.: 197 which opened for signature on 16 May 2005.
44 Article 6 of the Council of Europe Convention on Action against Trafficking in
Human Beings.
45 Article 10 of the Council of Europe Convention.
50 A/RES/55/25, 8 January 2001.
817
with the alleviation of social conditions and the need for public information
campaigns.
4 Comments
The proposal for a Framework Decision was commented upon most notably by
Human Rights Watch and Anti-Slavery International.51 They offered a guarded
welcome to the Commission’s proposal although criticised it for the lack of
attempt to tackle the root causes of trafficking in the proposal despite the refer-
ences to root causes in the draft preamble.
Regrettably any reference to root causes of trafficking has been removed
in the final adopted Framework Decision. The preambles only refer to the need
for co-operation and harmonisation of legal approach to the judicial and law
enforcement against trafficking human beings. In this regard the Framework
Decision is clearly lacking. The call for further actions in the “fight against traf-
ficking in women” in the EU’s Vienna Action Plan on the development of JHA
law and policy52 must logically include action to combat the causes of trafficking
which have their roots in violence against women and children in their coun-
tries of origin as well as lack of opportunities for those women and children.
There was a clear opportunity for the EU to take co-ordinated and concerted
efforts to tackle the causes of trafficking through social programmes, advertising
campaigns, education of social workers, teachers and employers and redressing
imbalances in educational and employment opportunities for women and chil-
dren both within the European Union and outside it.
There is no explicit recognition in the Framework Decision that the traffick-
ing of human beings can involve the co-operation or complicity of state officials
or state agents. Although such individuals can plainly be subject to the penalties
set out in Article 3, the involvement of state officials should have been subject
of specific provision to ensure that Member States take appropriate measures
against such individuals.
The provisions on the protection of and assistance to the victims of traf-
ficking are extremely weak. Under Article 7 the only “protection and assistance”
that adult victims receive is that they should not have to report or make any
accusation in order for a Member State to bring a prosecution. The only “protec-
tion” is afforded to children, where Member States are obliged to take measures
to ensure “appropriate assistance” for his or her family. It is certainly arguable
that the protection measures should have included protection against prosecu-
tion for victims of trafficking (including for breach of immigration laws or for
prostitution). Furthermore the parallel Directive on the victims of traffick-
ing, adopted two years later, does not do enough to require Member States to
51 <http://www.antislavery.org/archive/other/trafficking-framework.htm>.
52 The Action Plan of the Council and Commission, OJ C 19, 23.1.1999, p.1.
818
provide sanctuary and social and health services as appropriate to the victims
of trafficking.53
It has to be appreciated that unless and until the root causes of traffick-
ing are tackled, the trafficking and exploitation of humans is likely to continue.
Furthermore the lack of any sufficient attempt to provide protection and basic
needs for the victims of trafficking will surely only serve to ensure that victims
do not come forward to report their traffickers and the traffickers remain unpun-
ished and undetected. At the very least the Framework Decision should have
set standards for legal assistance to be provided to the victims of trafficking
to ensure that both civil and criminal proceedings can be brought against the
perpetrators of such crimes and the victims can effectively participate in such
proceedings.54 The potential involvement in a criminal prosecution for a victim
of trafficking can often be bewildering and frightening, unless legal, social and
psychological assistance is given to him or her.
The Framework Decision is also silent on the co-operation and co-ordi-
nation of efforts with third countries, either countries of origin and countries
of transit. Since much of human trafficking into the European Union has an
external dimension, the Framework Decision should have created obligations
for such co-operation and co-ordination.
53 See Ch. 29.

54 The Framework Decision on the standing of victims in criminal proceedings (n. 6
above) is not sufficiently specific enough regarding this issue.
819
Council Framework Decision

of 19 July 2002
on combating trafficking in human beings
(OJ 2002 L 203/1)
Having regard to the Treaty on European Union, and in particular Article 29,
Article 31(e) and Article 34(2)(b) thereof,
Having regard to the proposal of the Commission,
Whereas:
(1) The Action Plan of the Council and the Commission on how best to imple-
ment the provisions of the Treaty of Amsterdam on an area of freedom,
security and justice, the Tampere European Council on 15 and 16 October
1999, the Santa Maria da Feira European Council on 19 and 20 June 2000,
as listed in the Scoreboard, and the European Parliament in its Resolution
of 19 May 2000 on the communication from the Commission “for further
actions in the fight against trafficking in women” indicate or call for legisla-
tive action against trafficking in human beings, including common defini-
tions, incriminations and sanctions.
(2) Council Joint Action 97/154/JHA of 24 February 1997 concerning action

to combat trafficking in human beings and sexual exploitation of children
needs to be followed by further legislative action addressing the divergence
of legal approaches in the Member States and contributing to the develop-
ment of an efficient judicial and law enforcement cooperation against traf-
ficking in human beings.
(3) Trafficking in human beings comprises serious violations of fundamental

human rights and human dignity and involves ruthless practices such as the
abuse and deception of vulnerable persons, as well as the use of violence,
threats, debt bondage and coercion.
(4) The UN protocol to prevent, suppress and punish trafficking in persons,

especially women and children, supplementing the UN Convention against
transnational organised crimes, represents a decisive step towards interna-
tional cooperation in this field.
820
(5) Children are more vulnerable and are therefore at greater risk of falling
victim to trafficking.
(6) The important work performed by international organisations, in particu-

lar the UN, must be complemented by that of the European Union.
(7) It is necessary that the serious criminal offence of trafficking in human

beings be addressed not only through individual action by each Member
State but by a comprehensive approach in which the definition of con-
stituent elements of criminal law common to all Member States, including
effective, proportionate and dissuasive sanctions, forms an integral part.
In accordance with the principles of subsidiarity and proportionality, this
Framework Decision confines itself to the minimum required in order to
achieve those objectives at European level and does not go beyond what is
necessary for that purpose.
(8) It is necessary to introduce sanctions on perpetrators sufficiently severe to
allow for trafficking in human beings to be included within the scope of
instruments already adopted for the purpose of combating organised crime
such as Council Joint Action 98/699/JHA of 3 December 1998 on money
laundering, the identification, tracing, freezing, seizing and confiscation of
the instrumentalities and the proceeds from crime and Council Joint Action
98/733/JHA of 21 December 1998 on making it a criminal offence to par-
ticipate in a criminal organisation in the Member States of the European
Union.
(9) This Framework Decision should contribute to the fight against and pre-
vention of trafficking in human beings by complementing the instruments
adopted in this area such as Council Joint Action 96/700/JHA of 29 Novem-
ber 1996 establishing an incentive and exchange programme for persons
responsible for combating trade in human beings and sexual exploitation
of children (STOP)(7), Council Joint Action 96/748/JHA of 16 December
1996 extending the mandate given to the Europol Drugs Unit, Decision
No 293/2000/EC of the European Parliament and of the Council of 24
January 2000 adopting a programme of Community action (the Daphne
programme) (2000 to 2003) on preventive measures to fight violence against
children, young persons and women, Council Joint Action 98/428/JHA of
29 June 1998 on the creation of a European Judicial Network, Council
Joint Action 96/277/JHA of 22 April 1996 concerning a framework for the
exchange of liaison magistrates to improve judicial cooperation between the
Member States of the European Union and Council Joint Action 98/427/
JHA of 29 June 1998 on good practice in mutual legal assistance in criminal
matters.
821
(10) Council Joint Action 97/154/JHA should accordingly cease to apply in so

far as it concerns trafficking in human beings,
HAS ADOPTED THIS FRAMEWORK DECISION:
Article 1 Offences concerning trafficking in human beings
for the purposes of labour exploitation or sexual exploitation
1. Each Member State shall take the necessary measures to ensure that the
following acts are punishable:
the recruitment, transportation, transfer, harbouring, subsequent reception

of a person, including exchange or transfer of control over that person,
where:
(a) use is made of coercion, force or threat, including abduction, or
(b) use is made of deceit or fraud, or
(c) there is an abuse of authority or of a position of vulnerability, which
is such that the person has no real and acceptable alternative but to
submit to the abuse involved, or
(d) payments or benefits are given or received to achieve the consent of a
person having control over another person
for the purpose of exploitation of that person’s labour or services, including

at least forced or compulsory labour or services, slavery or practices similar
to slavery or servitude, or
for the purpose of the exploitation of the prostitution of others or other

forms of sexual exploitation, including in pornography.
2. The consent of a victim of trafficking in human beings to the exploitation,

intended or actual, shall be irrelevant where any of the means set forth in
paragraph 1 have been used.
3. When the conduct referred to in paragraph 1 involves a child, it shall be a

punishable trafficking offence even if none of the means set forth in para-
graph 1 have been used.
4. For the purpose of this Framework Decision, “child” shall mean any person
below 18 years of age.
822
Article 2 Instigation, aiding, abetting and attempt
Each Member State shall take the necessary measures to ensure that the instiga-
tion of, aiding, abetting or attempt to commit an offence referred to in Article
1 is punishable.
Article 3 Penalties
1. Each Member State shall take the necessary measures to ensure that an
offence referred to in Articles 1 and 2 is punishable by effective, proportion-
ate and dissuasive criminal penalties, which may entail extradition.
2. Each Member State shall take the necessary measures to ensure that an
offence referred to in Article 1 is punishable by terms of imprisonment with
a maximum penalty that is not less than eight years where it has been com-
mitted in any of the following circumstances:
(a) the offence has deliberately or by gross negligence endangered the life
of the victim;
(b) the offence has been committed against a victim who was particularly
vulnerable. A victim shall be considered to have been particularly vul-
nerable at least when the victim was under the age of sexual majority
under national law and the offence has been committed for the pur-
pose of the exploitation of the prostitution of others or other forms of
sexual exploitation, including pornography;
(c) the offence has been committed by use of serious violence or has
caused particularly serious harm to the victim;
(d) the offence has been committed within the framework of a criminal
organisation as defined in Joint Action 98/733/JHA, apart from the
penalty level referred to therein.
Article 4 Liability of legal persons
1. Each Member State shall take the necessary measures to ensure that legal
persons can be held liable for an offence referred to in Articles 1 and 2, com-
mitted for their benefit by any person, acting either individually or as part
of an organ of the legal person, who has a leading position within the legal
person, based on:
(a) a power of representation of the legal person, or
(b) an authority to take decisions on behalf of the legal person, or
(c) an authority to exercise control within the legal person.
2. Apart from the cases already provided for in paragraph 1, each Member
State shall take the necessary measures to ensure that legal persons can be
823
held liable where the lack of supervision or control by a person referred to

in paragraph 1 have rendered possible the commission of an offence referred
to in Articles 1 and 2 for the benefit of that legal person by a person under
its authority.
3. Liability of legal persons under paragraphs 1 and 2 shall not exclude crimi-
nal proceedings against natural persons who are perpetrators, instigators or
accessories in an offence referred to in Articles 1 and 2.
4. For the purpose of this Framework Decision, legal person shall mean any
entity having such status under the applicable law, except for States or other
public bodies in the exercise of State authority and for public international
organisations.
Article 5 Sanctions on legal persons
Each Member State shall take the necessary measures to ensure that a legal
person held liable pursuant to Article 4 is punishable by effective, proportionate
and dissuasive sanctions, which shall include criminal or non-criminal fines and
may include other sanctions, such as:
(a) exclusion from entitlement to public benefits or aid, or
(b) temporary or permanent disqualification from the practice of commercial
activities, or
(c) placing under judicial supervision, or
(d) a judicial winding-up order, or
(e) temporary or permanent closure of establishments which have been used
for committing the offence.
Article 6 Jurisdiction and prosecution
1. Each Member State shall take the necessary measures to establish its juris-
diction over an offence referred to in Articles 1 and 2 where:
(a) the offence is committed in whole or in part within its territory, or
(b) the offender is one of its nationals, or
(c) the offence is committed for the benefit of a legal person established in
the territory of that Member State.
2. A Member State may decide that it will not apply or that it will apply only in
specific cases or circumstances, the jurisdiction rules set out in paragraphs
1(b) and 1(c) as far as the offence is committed outside its territory.
3. A Member State which, under its laws, does not extradite its own nation-
als shall take the necessary measures to establish its jurisdiction over and
824
to prosecute, where appropriate, an offence referred to in Articles 1 and 2

when it is committed by its own nationals outside its territory.
4. Member States shall inform the General Secretariat of the Council and the
Commission accordingly where they decide to apply paragraph 2, where
appropriate with an indication of the specific cases or circumstances in
which the decision applies.
Article 7 Protection of and assistance to victims
1. Member States shall establish that investigations into or prosecution of

offences covered by this Framework Decision shall not be dependent on the
report or accusation made by a person subjected to the offence, at least in
cases where Article 6(1)(a) applies.
2. Children who are victims of an offence referred to in Article 1 should be

considered as particularly vulnerable victims pursuant to Article 2(2), Arti-
cle 8(4) and Article 14(1) of Council Framework Decision 2001/220/JHA
of 15 March 2001 on the standing of victims in criminal proceedings.
3. Where the victim is a child, each Member State shall take the measures
possible to ensure appropriate assistance for his or her family. In particular,
each Member State shall, where appropriate and possible, apply Article 4
of Framework Decision 2001/220/JHA to the family referred to.
Article 8 Territorial scope
This Framework Decision shall apply to Gibraltar.
Article 9 Application of Joint Action 97/154/JHA
Joint Action 97/154/JHA shall cease to apply in so far as it concerns trafficking

in human beings.
Article 10 Implementation
1. Member States shall take the necessary measures to comply with this
Framework Decision before 1 August 2004.
2. By the date referred to in paragraph 1, Member States shall transmit to

the General Secretariat of the Council and to the Commission the text of
the provisions transposing into their national law the obligations imposed
on them under this Framework Decision. The Council will, by 1 August
825
2005 at the latest, on the basis of a report established on the basis of this
information and a written report transmitted by the Commission, assess
the extent to which Member States have taken the necessary measures in
order to comply with this Framework Decision.
This Framework Decision shall enter into force on the day of its publication in
the Official Journal.
826
Chapter 28 Facilitation of Irregular Entry, Residence
and Movement
1 Summary
Two measures relating to facilitation of “unauthorised entry, transit and resi-
dence” were adopted in November 2002: Council Framework Decision on the
strengthening of the penal framework to prevent the facilitation of unauthorised
entry, transit and residence,1 and Council Directive defining the facilitation of
unauthorised entry, transit and residence.2 The two are intended to complement
one another. The Framework Decision lays down minimum rules regarding pen-
alties for facilitation of irregular entry, transit and residence whereas the Direc-
tive defines the nature of facilitation of irregular entry, transit and residence.
The Framework Decision is adopted under Title VI of the EU Treaty. As
the preamble states it is considered part of common action in the fields of police
and judicial cooperation in criminal matters. However it supplements measures
adopted under Title IV of the Treaty relating to trafficking in human beings for
instance. The preamble states that as the Framework Decision is a “develop-
ment” of the provisions of the Schengen acquis, the arrangements for Iceland
and Norway regarding Schengen3 are extended to the Framework Decision. The
United Kingdom and Ireland are stated in the preamble to be taking part in the
Framework Decision in accordance with Article 5 of the Protocol integrating
the Schengen acquis into the framework of the European Union annexed to the
EU Treaty and EC Treaty.
Article 1 directs Member States to ensure that infringements set out in the
related Directive are punishable by “effective, proportionate and dissuasive”
1 OJ 2002 L 328/1, 5 December 2002, Council Framework Decision 2002/946/JHA.

2 OJ 2002 L 328/17, 5 December 2002, Council Directive 2002/90/EC.
3 OJ 1999 L 176, Council Decision 1999/437/EC of 17 May 1999.
criminal penalties. Article 1(2) suggests that penalties may be accompanied by

confiscation of transport means and deportation. Article 1(3) states that where
certain infringements are committed for “financial gain” these should be punish-
able by custodial sentences with a maximum sentence of no less than eight years
when committed as an activity of a criminal organisation or while endangering
lives. Article 1(4) provides a caveat to Article 1(3) such that the maximum sen-
tence could be no less than six years if “imperative to preserve the coherence of
the national penalty system”.
Article 2 directs Member States to take measures to ensure that legal per-
sons can be held liable for infringements including in circumstances where a lack
of control or supervision make possible the commission of the infringements.
Liability will be established where the infringements are committed by a person
who has “a leading position within the legal person” whether acting alone or as
part of an organ of the legal person.
Article 3 directs Member States to ensure that where legal persons are held
liable for infringements they are punishable by effective, proportionate and dis-
suasive sanctions which will include criminal and “non-criminal” fines.
Article 4 stipulates that Member States should establish jurisdiction with
regard to infringements which are committed in whole or part of their territo-
ries, by their own nationals and legal persons established in their territories.
Article 5 provides that where a Member State does not extradite its own
nationals, it should have in place measures to establish jurisdiction over infringe-
ments committed by its own nationals outside its territory.
Article 6 states that the provisions of the Framework Decision apply with-
out prejudice to the protection afforded to refugees and asylum seekers and in
accordance with Member States’ obligations under Articles 31 and 33 of the
1951 Convention relating to the Status of Refugees.
Article 7 lays down rules for cooperation between Member States. If a
Member State is aware of breaches of the rules in the Framework Decision
which infringe the laws of another Member State, the former must inform the
latter. Where a Member State requests another Member State to prosecute on
the grounds of breach of the former Member State’s laws on the entry and resi-
dence of third-country nationals, a certificate or official report must be submit-
ted specifying the provisions of its law which have been breached.
Article 8 states that the Framework Decision applies to Gibraltar. Article
9 stipulates that Member States had to adopt the measures necessary to comply
with the Framework Decision by 5 December 2004. Before 5 June 2005 the
Council was required to assess the extent to which Member States have complied
with the provisions of this Framework Decision, on the basis of a report by the
Commission; there had been no review or report by 1 January 2006. Article 10
makes clear that the provisions of Article 27(2) and (3) of the 1990 Schengen
Convention, which are repeated in Article 7 of the Framework Decision (see
below) are repealed.
828
Chapter 28 Facilitation of Illegal Entry, Residence and Movement
The Council Directive makes clear that it is adopted under Title IV of the
EC Treaty (Article 61(a) and Article 63(3)(b) EC). The preamble states that the
purpose of the Directive is to provide a definition of the facilitation of illegal
immigration and to make “more effective” the Framework Decision on facilita-
tion. Both the UK and Ireland take part in the adoption and application of the
Directive.
Articles 1 and 2 define what acts are to be sanctioned. Article 1 sets out
the general infringement which includes where a person intentionally assists a
non-national to enter or transit the territory of a Member State in breach of its
immigration laws or where for financial gain the person intentionally assists a
non-national to reside in the territory of a Member State in breach of its laws.
Article 1(2) provides that Member States may decide not to impose sanctions
where the aim of the activity is “to provide humanitarian assistance”.
Article 2 directs Member States to adopt sanctions in respect of any person
who is the instigator of, an accomplice in or who attempts to commit one of
the infringements in Article 1. Article 3 provides that the sanctions adopted by
Member States are to be “effective, proportionate and dissuasive”.
The Directive had to be implemented by 5 December 2004. Article 27(1)
of the 1990 Schengen Convention, which had provided more generally that
Member States had to establish penalties for facilitation of irregular migration
for “financial gain” (see below), was repealed by the Directive on that date. There
is no provision for a report on or a review of the Directive.

This subject of facilitation of irregular entry and residence was already partly
addressed by Article 27 of the Schengen Convention, according to which the
Member States “[undertook] to impose appropriate penalties on any person who
for the purposes of gain, assists or tries to assist a person to enter or reside within
the territory” of a Member State contrary to that Member State’s national law
(Article 27(1) of the Convention).4 If a Member State had information about
such an infringement of the law of another Member State, it had to inform that
State (Article 27(2)). If one Member State asked another to prosecute because
of such a breach of the former’s immigration law, the former Member State had
to indicate which provisions of its national law had been infringed. The Decision
allocating the Schengen acquis allocated Article 27(1) to Article 63(3)(b) EC,
while the other two paragraphs were allocated to the “third pillar”.5 The UK
and Ireland had opted into this Schengen provision.6
4 OJ 2000 L 239/19.
5 OJ 1999 L 176/17.
6 See Decisions on UK and Irish Schengen participation (OJ 2000 L 131/43 and OJ
2002 L 64/20).
829
The proposal from the French Presidency on this topic came initially
solely in the form of a third pillar Framework Decision.7 Shortly afterward,
after objections from the Council legal service, that proposal was split into a
Directive (concerning the definition of facilitation of irregular entry, residence
or movement) and a Framework Decision (setting out the criminal penalties
that must apply along with rules on jurisdiction).8 This reflected the allocation
of Article 27 of the Schengen Convention between the first and third pillars. The
initial version of the Directive would have required Member States to treat as an
offence “the act of facilitating intentionally, by aiding directly or indirectly, the
unauthorised entry, movement or residence in its territory” of a third-country
national (emphasis added). Participation, instigation and attempt would also
have had to be included, and the “financial gain” requirement from the Schengen
rules would have been dropped. Member States could optionally have exempted
close relatives from liability. According to the proposed Framework Decision,
penalties had to include custodial sentences and possibly also confiscation of
transport, practice of an occupation and deportation. Penalties would have been
increased by an unspecified amount in “aggravating circumstances”, defined as
commission by a member of a criminal organisation or for the purpose of traf-
ficking in humans, sexual exploitation or employment. Legal persons would also
have been made liable.
Compared to Article 27(1) of the Schengen Convention, the French propos-
als were narrower in scope on one point: they only applied to breach of immi-
gration law in one Member State, not other Member States. However, they were
wider in that: their legal force was clearer; the extent of penalties was more pre-
cise, and included both exemptions and penalties in “aggravated” circumstances;
the “financial gain” requirement would be dropped; more inchoate offences were
covered; and there were provisions on jurisdiction and liability of legal persons.
However, at this point the legal relationship between the French proposals and
the Schengen rules was not clear.
The proposals were redrafted following discussion in the Council’s crimi-
nal law working group.9 First, the group agreed to extend their scope to the
impugned activity within any Member State (as in the Schengen rules). As a
compromise between those Member States who wanted to retain the “financial
gain” test and those who wanted to abolish it, the text would distinguish between
assistance to enter or transit within a Member State (where the “financial gain”
test would apply) and assistance to reside within a Member State (where it would
7 Council doc. 9892/00, 30 June 2000.

8 Respectively OJ 2000 C 253/1 and 6; Council docs. 10675/00 and 10676/00, 3 Aug.
2000.
9 See Council docs. 10859/00, 8 Sep. 2000; 12025/00 and 12026/00, 6 Oct. 2000;
12914/00, 31 Oct. 2000; 12914/1/00, 13 Nov. 2000; 13578/00, 3 Nov. 2000; and
13739/00, 24 Nov. 2000.
830
not). The optional exemption for family members was deleted, but a mandatory
“savings clause” for the Geneva Convention on refugees and other human rights
rules relating to refugee protection was added. In parallel, the list of “aggravat-
ing circumstances” was lengthened, then shortened again, so that it would apply
to any of the general or inchoate offences defined in the Directive, on the double
condition that the “financial gain” criterion applied and that the case involved
either organised crime or a threat to the lives of migrants. But this provision also
became more precise, as the majority wanted to provide for a maximum custo-
dial sentence of at least eight years when such circumstances applied. However
some Member States were concerned that the strengthening of sanctions was
insufficient attention to protection needs. The JHA Council/Mixed Commit-
tee of 30 November and 1 December 2000 discussed the proposal, and showed
interest in adding a humanitarian exception to address these concerns.
Much effort was then expended during the Swedish Council Presidency to
agree the wording of such an exception. In addition, some Member States were
still concerned about the width of the “aggravating circumstances” obligation
and the level of penalties to be attached.10 Ultimately, “political agreement” was
reached at the JHA Council/Mixed Committee in May 2001, subject to scru-
tiny reservations from Sweden, Denmark and the UK.11 The final deal was that
Member States could apply an optional humanitarian exception. However, the
“aggravated” penalties only apply where a person assisted irregular entry or tran-
sit or instigated such activity, not to the offence of irregular residence or to other
inchoate offences. Moreover, it was agreed that Member States could reduce the
maximum sentence to at least six years if necessary to preserve the coherence of
national penalty systems. But conversely, in a statement in the Council minutes,
several Member States asserted their intention to subject the impugned conduct
to custodial penalties of over ten years.
Several more technical amendments were also agreed at this point. The appli-
cation of the aggravated penalties to activities of “criminal gangs” was replaced
by a reference to activities of a criminal organisation as defined in a 1998 EU
Joint Action. A standard requirement for Member States to either prosecute
or extradite when the relevant conduct is committed by its own nationals out-
side its territory was added. Also, the provisions of Article 27(2) and (3) of the
Schengen Convention were added to the Framework Decision, and as a result
it was decided that the two measures between them will repeal Article 27 of the
10 Council docs. SN 5410/00, 30 Nov. 2000; 14920/00, 22 Dec. 2000; 5186/01, 11 Jan.
2001; 5645/01, 31 Jan. 2001; 6254/01, 15 Feb. 2001; 6465/01, 23 Feb. 2001; 6766/01,
9 Mar. 2001; 7671/01, 2 Apr. 2001; 8164/01, 24 Apr. 2001; 8115/01, 26 Apr. 2001;
8242/01, 26 Apr. 2001; 8522/01, 8 May 2001; 8632/01, 11 May 2001; and 8632/01
add 1, 21 May 2001.
11 See Council doc. 9403/01, 12 Jun. 2001; for a consolidated agreed text, see Council
doc. 10075/01, 5 July 2001.
831
Convention. The Commission objected to the “legal base” of the Framework

Decision, arguing that the entire subject fell within the scope of Article 63(3)(b)
EC,12 but the Council was obviously not convinced.
As for the European Parliament (EP), a committee report urged amend-
ments to the two proposals, suggesting in particular limiting their scope to cases
where the acts were committed for gain. Subsequently the plenary EP returned
the report to the committee for reconsideration, and later voted to reject both
measures in February 2001.13 However, the Council paid no heed to this.
National parliaments proved harder to ignore, but following the urging of the
Seville European Council to adopt these measures at the next meeting of the
JHA Council, the final parliamentary reservations were withdrawn and the two
acts were adopted at the November 2002 JHA Council.14 When adopting the
measures, the Council also agreed a statement concerning their political context,
while the Commission issued a statement objecting to the “legal base” of the
Framework Decision.15
3 Legal Analysis
Despite the declaration that the Directive and the Framework Decision build on
the Schengen acquis and that they replace Article 27(1) of the Schengen Conven-
tion, there are significant differences from the Schengen provisions. Article 2 of
the Directive includes those who have “indirect” involvement with facilitation
such as those who are accomplices rather only those with direct involvement.16
The use of Title VI as the legal base for the Framework Decision is highly
questionable. Article 31(e) of the EU Treaty relates for instance to “progressively
adopting measures establishing minimum rules relating to … penalties in the
fields of organised crime, terrorism and illicit drug trafficking”. The Framework
Decision however does not confine itself to activities relating to organised crime
although this can be an aggravating factor. As noted above, the Commission has
argued that the Framework Decision should have been a first pillar measure;
indeed, following a Court of Justice judgment on the scope of the Community’s
criminal law powers,17 the Commission has argued that the Framework Deci-
sion must be replaced by a Directive.18 It remains to be seen whether the Council
12 SEC (2001) 727, 4 May 2001.

13 OJ 2001 C 276.
14 OJ 2002 L 328/1 and 17, cited above
15 Council doc. 10430/2/02, 7 Oct. 2002.
16 Article 27(1) of the Schengen Convention imposed penalties only on those with
direct involvement with facilitation of illegal entry or residence of aliens.
17 Case C-176/03, Commission v Council, judgment of 13 Sep. 2005, not yet reported.
18 COM (2005) 583, 23 Nov. 2005. See further Ch. 3 for a discussion of the issue.
832
will accept this analysis. From either perspective, the validity of the Framework
Decision could therefore be questioned.
The difference in legal base chosen for the Framework Decision and that
chosen for the Directive creates legal problems particularly in relation to jurisdic-
tion of the Court of Justice and the general applicability of EC law. Whereas the
interpretation of the definition of what “acts” are to be sanctioned are subject
to the ultimate jurisdiction of the Court of Justice, the Framework Definition
imposing penalties for such acts is only partly within the Court’s jurisdiction,
as it is a Title VI measure.19 In theory, in some Member States, this could lead
to a situation where an accused person is able to rely on EC law, and ultimately
seek a reference to the Court of Justice on the question of interpretation of the
Directive, in the context of an appeal against conviction but not in relation to an
appeal against sentence.
The Framework Decision and the Directive do not compare favourably
with the UN Protocol against the Smuggling of Migrants by Land, Sea and
Air.20 The UN Protocol has a stronger savings provision than that contained in
Article 6 of the Framework Decision in that it provides that it refers to the pro-
tection afforded by international human rights law and the obligations imposed
on a State by such law, as opposed confining itself to the Geneva Convention
and its Protocol.21 The UN Protocol defines “smuggling” and is clearly aimed at
people smuggling for material gain.22 Article 5 of the UN Protocol makes clear
that the victims of smuggling shall not be liable to the prosecution provided for
in the Protocol themselves. The UN Protocol contained far tighter definitions
and provisions relating to criminalisation of activities. Unlike the Framework
Decision and the Directive, the UN Protocol is much more clearly aimed at
targeting those criminal organizations and networks who smuggle persons for
19 There are no infringement actions for breach of Title VI measures and only fourteen
Member States have accepted the Court’s jurisdiction to receive references for a
preliminary ruling from national courts on the interpretation or validity of Title VI
measures (for the latest list, see OJ 2005 L 327/19); of these, two only permit final
courts to send questions.
20 Supplementing the United Nations Convention against Transnational Organized
Crime, General Assembly resolution 55/25, annex III. The Community has signed
the Protocol (OJ 2001 L 30/44), but not yet ratified it (see Commission proposal
to ratify, COM (2003) 512, 22 Aug. 2003). As of 6 Jan. 2006, thirteen Member
States had ratified the Protocol, which entered into force on 28 Jan. 2004 (Belgium,
Cyprus, Estonia, France, Latvia, Lithuania, Malta, Netherlands, Poland, Portugal,
Slovenia, Slovakia and Spain). The other twleve Member States had signed the Pro-
tocol, but not ratified it (Austria, the Czech Republic, Denmark, Finland, Germany,
Greece, Hungary, Ireland, Italy, Luxembourg and the UK). The EC has ratified the
main UN Convention on organised crime (OJ 2004 L 261/69).
21 Article 19 of the UN Protocol.
22 Article 3 of the UN Protocol.
833
financial gain rather than any person or persons who assist others to enter or
remain in the territory of the Member States unlawfully. The UN Protocol is
confined to addressing the smuggling of migrants by organized criminal groups
and not to mere migration or migrants, even in cases where it involves entry or
residence that is illegal under the laws of the State concerned.23 Furthermore
the UN Protocol recognizes the difference between smuggling and trafficking
of persons. The major differences lie in the fact that, in the case of trafficking,
offenders recruit or gain control of victims by coercive, deceptive or
abusive means and obtain profits as a result of some form of exploitation of
the victims after they have been moved. Finally the UN Protocol is clearly aimed
only at smuggling of persons from one State to another, whereas the Framework
Decision and Directive are not confined to illegal entry but attempt to cover
activities such as illegal residence that may have no transnational element. It
is regrettable that the European Union did not attempt to align itself with the
precedent set by the UN and has adopted measures that rather than reinforce
the UN Protocol, detract from it through a lack of clarity and precision.
4 Comments
There are inherent difficulties with the adoption of these two measures. Apart
from the peculiarity of attempting to use different legal bases for the two mea-
sures, both measures apparently ignore the extensive work carried out by the
Commission, amongst others, in the area of trafficking and smuggling. There is
little attempt in either of the measures to take account of the fact that there are
different type of “facilitation” employing different methods, with varying objec-
tives and varying impact on immigration control and public order. Although the
Framework Decision provides a short list of aggravating factors, there is no real
attempt to separate trafficking from people smuggling and those who exploit
others, including children, from those who assist others to remain unlawfully.
There is further example of the lack of precision in these measures in the
Framework Decision where there is no attempt to distinguish between degrees
of culpability in the liability imposed on legal persons for lack of supervision or
control. It is certainly arguable that there should have been a distinction made
between corruption and negligence.
A lack of harmonisation of immigration and criminal laws and practices
including penalties, defences, evidence and standard and burden of proof in
criminal cases between Member States is likely to cause considerable problems
with the “extra-territorial” provisions in the Framework Decision. Unless there
is harmonisation in this area or a provision that prosecution in the prosecuting
Member State was only permissible in so far as the laws and penalties of that
State are no more restrictive that those of the State in which the offence was
23 See articles 5 and 6, paragraph 4, of the UN Protocol.
834
committed, there is a real risk of a breach of Article 7(1) of the European Con-
vention on Human Rights “no punishment without law”.
The sanctions included in Article 3 of the Framework Decision also poten-
tially conflict with the European Convention on Human Rights since these
include “non-criminal fines”. Any attempt to exclude sanctions imposed on
“offending” legal persons from the scope of Article 6(2) and (3) of the Con-
vention protection would run counter to the constant jurisprudence of the
European Court of Human Rights. The nature of the offences clearly bring the
sanctions within the scope of “criminal charges” within the terms of Article 6
of the Convention.
The potential sanctions listed in Article 1(2) of the Framework Decision
also potentially raises conflict with Community law and international human
rights law in so far as “deportation” is suggested as a sanction. Clearly before
making any deportation order Member States must have regard for any claim
to refugee status under the Refugee Convention or claim that the deportation
would infringe the person’s rights under the Convention on Human Rights law.
Furthermore Member States must have regard to any rights the person may have
under Community law, for instance as a third country family member of Union
citizen or under the terms of any Association Agreement or Cooperation Agree-
ment between the EC and a third country.
Finally it is regrettable that the “humanitarian aid” provision in Article 1(2)
of the Directive permitting Member States not to impose sanctions on those
who provide humanitarian assistance is not more strongly worded to make
such exception mandatory. It is plainly undesirable to make the work of refugee
organisations and other bona fide legal representatives capable of criminalisa-
tion.
835
Council Framework Decision

of 28 November 2002
on the strengthening of the penal framework to prevent
the facilitation of unauthorised entry, transit and residence
(OJ 2002 L 328/1)
Having regard to the Treaty establishing the European Union, and in particular
Article 29, Article 31(e) and Article 34(2)(b) thereof,
Whereas:
(1) One of the objectives of the European Union is to provide citizens with a
high level of safety within an area of freedom, security and justice by devel-
oping common action among the Member States in the fields of police and
judicial cooperation in criminal matters.
(2) In this framework, measures should be taken to combat the aiding of illegal
immigration both in connection with unauthorised crossing of the border
in the strict sense and for the purpose of sustaining networks which exploit
human beings.
(3) To that end it is essential to approximate existing legal provisions, in par-

ticular, on the one hand, the precise definition of the infringement in ques-
tion and the cases of exemption, which is the subject of Council Directive
2002/90/EC of 28 November 2002 defining the facilitation of unauthorised
entry, transit and residence and, on the other hand, minimum rules for pen-
alties, liability of legal persons and jurisdiction, which is the subject of this
framework Decision.
(4) It is likewise essential not to confine possible actions to natural persons

only but to provide for measures relating to the liability of legal persons.
(5) This framework Decision supplements other instruments adopted in order

to combat illegal immigration, illegal employment, trafficking in human
beings and the sexual exploitation of children.
(6) As regards Iceland and Norway, this framework Decision constitutes a

development of provisions of the Schengen acquis within the meaning of
836
the Agreement concluded by the Council of the European Union and the
Republic of Iceland and the Kingdom of Norway concerning the associa-
tion of those two States with the implementation, application and devel-
opment of the Schengen acquis, which fall within the area referred to in
Article 1(E) of Council Decision 1999/437/EC of 17 May 1999 on certain
arrangements for the application of that Agreement.
(7) The United Kingdom is taking part in this framework Decision in accor-
dance with Article 5 of the Protocol integrating the Schengen acquis into
the framework of the European Union annexed to the Treaty on European
Union and to the Treaty establishing the European Community, and Arti-
cle 8(2) of Council Decision 2000/365/EC of 29 May 2000 concerning the
request of the United Kingdom of Great Britain and Northern Ireland to
take part in some of the provisions of the Schengen acquis.
(8) Ireland is taking part in this framework Decision in accordance with Arti-
cle 5 of the Protocol integrating the Schengen acquis into the framework of
the European Union annexed to the Treaty on European Union and to the
Treaty establishing the European Community, and Article 6(2) of Council
Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to
take part in some of the provisions of the Schengen acquis,
HAS ADOPTED THIS FRAMEWORK DECISION:
Article 1 Penalties
1. Each Member State shall take the measures necessary to ensure that the
infringements defined in Articles 1 and 2 of Directive 2002/90/EC are pun-
ishable by effective, proportionate and dissuasive criminal penalties which
may entail extradition.
2. Where appropriate, the criminal penalties covered in paragraph 1 may be

accompanied by the following measures:
– confiscation of the means of transport used to commit the offence,
– a prohibition on practising directly or through an intermediary the
occupational activity in the exercise of which the offence was commit-
ted,
– deportation.
3. Each Member State shall take the measures necessary to ensure that, when
committed for financial gain, the infringements defined in Article 1(1)(a)
and, to the extent relevant, Article 2(a) of Directive 2002/90/EC are punish-
837
able by custodial sentences with a maximum sentence of not less than eight
years where they are committed in any of the following circumstances:
– the offence was committed as an activity of a criminal organisation as
defined in Joint Action 98/733/JHA,
– the offence was committed while endangering the lives of the persons
who are the subject of the offence.
4. If imperative to preserve the coherence of the national penalty system, the

actions defined in paragraph 3 shall be punishable by custodial sentences
with a maximum sentence of not less than six years, provided that it is
among the most severe maximum sentences available for crimes of compa-
rable gravity.
Article 2 Liability of legal persons
1. Each Member State shall take the measures necessary to ensure that legal
persons can be held liable for the infringements referred to in Article 1(1)
and which are committed for their benefit by any person, acting either indi-
vidually or as part of an organ of the legal person, who has a leading posi-
tion within the legal person, based on:
– a power of representation of the legal person,
– an authority to take decisions on behalf of the legal person, or
– an authority to exercise control within the legal person.
2. Apart from the cases already provided for in paragraph 1, each Member
State shall take the necessary measures to ensure that a legal person can
be held liable where the lack of supervision or control by a person referred
to in paragraph 1 has made possible the commission of the infringements
referred to in Article 1(1) for the benefit of that legal person by a person
under its authority.
3. Liability of a legal person under paragraphs 1 and 2 shall not exclude crimi-
nal proceedings against natural persons who are perpetrators or instigators
of or accessories in the offences referred to in paragraph 1.
Article 3 Sanctions for legal persons
1. Each Member State shall take the measures necessary to ensure that a legal
person held liable pursuant to Article 2(1) is punishable by effective, pro-
portionate and dissuasive sanctions, which shall include criminal or non-
criminal fines and may include other sanctions such as:
(a) exclusion from entitlement to public benefits or aid;
838
(b) temporary or permanent disqualification from the practice of com-

mercial activities;
(c) placing under judicial supervision;
(d) a judicial winding-up order.
2. Each Member State shall take the measures necessary to ensure that a legal
person held liable pursuant to Article 2(2) is punishable by effective, pro-
portionate and dissuasive sanctions or measures.
Article 4 Jurisdiction
1. Each Member State shall take the measures necessary to establish its juris-
diction with regard to the infringements referred to in Article 1(1) and com-
mitted
(a) in whole or in part within its territory;
(b) by one of its nationals, or
(c) for the benefit of a legal person established in the territory of that
Member State.
2. Subject to the provisions of Article 5, any Member State may decide that it
will not apply, or that it will apply only in specific cases or circumstances,
the jurisdiction rule set out in:
– paragraph 1(b),
– paragraph 1(c).
3. Each Member State shall inform the Secretary-General of the Council

in writing if it decides to apply paragraph 2, where appropriate with an
indication of the specific circumstances or conditions in which its decision
applies.
Article 5 Extradition and prosecution
1. (a) Any Member State which, under its law, does not extradite its own
nationals shall take the necessary measures to establish its jurisdiction over
the infringements referred to in Article 1(1) when such infringements are
committed by its own nationals outside its territory.
(b) Each Member State shall, when one of its nationals is alleged to have
committed in another Member State the infringements referred to in Arti-
cle 1(1) and it does not extradite that person to that other Member State
solely on the ground of his nationality, submit the case to its competent
authorities for the purpose of prosecution, if appropriate. In order to enable
prosecution to take place, the files, information and exhibits relating to the
offence shall be transmitted in accordance with the procedures laid down in
839
Article 6(2) of the European Convention on Extradition of 13 December

1957. The requesting Member State shall be informed of the prosecution
initiated and of its outcome.
2. For the purpose of this Article, a “national” of a Member State shall be

construed in accordance with any declaration made by that State under
Article 6(1)(b) and (c) of the European Convention on Extradition, where
appropriate as amended by any declarations made with respect to the Con-
vention relating to extradition between the Member States of the European
Union.
Article 6 International law on refugees
This framework Decision shall apply without prejudice to the protection afforded
refugees and asylum seekers in accordance with international law on refugees or
other international instruments relating to human rights, in particular Member
States’ compliance with their international obligations pursuant to Articles 31
and 33 of the 1951 Convention relating to the status of refugees, as amended by
the Protocol of New York of 1967.
Article 7 Communication of information between the Member States
1. If a Member State is informed of infringements referred to in Article 1(1)

which are in breach of the law on the entry and residence of aliens of
another Member State, it shall inform the latter accordingly.
2. Any Member State which requests another Member State to prosecute, on

the grounds of a breach of its own laws on the entry and residence of aliens,
infringements referred to in Article 1(1) must specify, by means of an offi-
cial report or a certificate from the competent authorities, the provisions of
its law which have been breached.
Article 8 Territorial application
This framework Decision shall apply to Gibraltar.
1. Member States shall adopt the measures necessary to comply with the pro-
visions of this framework Decision before 5 December 2004.
2. By the same date, Member States shall transmit to the General Secretariat
of the Council and to the Commission the text of the provisions transpos-
840
ing into their national law the obligations imposed on them by this frame-
work Decision. On the basis of a report established using this information
by the Commission, the Council shall, before 5 June 2005, assess the extent
to which Member States have complied with the provisions of this frame-
work Decision.
Article 10 Repeal
The provisions of Article 27(2) and (3) of the 1990 Schengen Convention shall
be repealed as from 5 December 2004. Where a Member State implements this
framework Decision pursuant to Article 9(1) in advance of that date, the said
provisions shall cease to apply to that Member State from the date of implemen-
tation.
This framework Decision shall enter into force on the day of its publication in
the Official Journal.
841

of 28 November 2002
defining the facilitation of unauthorised entry, transit and residence
(OJ 2002 L 328/17)
ticular Article 61(a) and Article 63(3)(b) thereof,
Whereas:
(1) One of the objectives of the European Union is the gradual creation of an
area of freedom, security and justice, which means, inter alia, that illegal
immigration must be combated.
(2) Consequently, measures should be taken to combat the aiding of illegal

immigration both in connection with unauthorised crossing of the border
in the strict sense and for the purpose of sustaining networks which exploit
human beings.
(3) To that end it is essential to approximate existing legal provisions, in partic-

ular, on the one hand, the precise definition of the infringement in question
and the cases of exemption, which is the subject of this Directive and, on
the other hand, minimum rules for penalties, liability of legal persons and
jurisdiction, which is the subject of Council framework Decision 2002/946/
JHA of 28 November 2002 on the strengthening of the penal framework to
prevent the facilitation of unauthorised entry, transit and residence.
(4) The purpose of this Directive is to provide a definition of the facilitation of

illegal immigration and consequently to render more effective the implementa-
tion of framework Decision 2002/946/JHA in order to prevent that offence.
(5) This Directive supplements other instruments adopted in order to combat

illegal immigration, illegal employment, trafficking in human beings and
the sexual exploitation of children.
(6) As regards Iceland and Norway, this Directive constitutes a development

of provisions of the Schengen acquis within the meaning of the Agree-
ment concluded by the Council of the European Union and the Republic of
842
Iceland and the Kingdom of Norway concerning the association of those

two States with the implementation, application and development of the
Schengen acquis(4), which fall within the area referred to in Article 1(E) of
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for
the application of that Agreement.
(7) The United Kingdom and Ireland are taking part in the adoption and
application of this Directive in accordance with the relevant provisions of
the Treaties.
mark annexed to the Treaty on European Union and to the Treaty establish-
ing the European Community, Denmark is not taking part in the adoption
of this Directive and is not bound by it or subject to its application. Given
that this Directive builds upon the Schengen acquis under the provisions of
Title IV of Part Three of the Treaty establishing the European Community,
Denmark shall, in accordance with Article 5 of the said Protocol, decide
within a period of six months after the Council has adopted this Directive
whether it will implement it in its national law,
Article 1 General infringement
1. Each Member State shall adopt appropriate sanctions on:

(a) any person who intentionally assists a person who is not a national of a
Member State to enter, or transit across, the territory of a Member State in
breach of the laws of the State concerned on the entry or transit of aliens;
(b) any person who, for financial gain, intentionally assists a person who is not a
national of a Member State to reside within the territory of a Member State
in breach of the laws of the State concerned on the residence of aliens.
2. Any Member State may decide not to impose sanctions with regard to the
behaviour defined in paragraph 1(a) by applying its national law and prac-
tice for cases where the aim of the behaviour is to provide humanitarian
assistance to the person concerned.
Article 2 Instigation, participation and attempt
Each Member State shall take the measures necessary to ensure that the sanc-
tions referred to in Article 1 are also applicable to any person who:
(a) is the instigator of,
(b) is an accomplice in, or
843
(c) attempts to commit
an infringement as referred to in Article 1(1)(a) or (b).
Article 3 Sanctions
Each Member State shall take the measures necessary to ensure that the infringe-
ments referred to in Articles 1 and 2 are subject to effective, proportionate and
dissuasive sanctions.
tive provisions necessary to comply with this Directive before 5 December
of their official publication. The methods of making such a reference shall
be laid down by the Member States.
provisions of their national law which they adopt in the field covered by this
Directive, together with a table showing how the provisions of this Direc-
tive correspond to the national provisions adopted. The Commission shall
inform the other Member States thereof.
Article 5 Repeal
Article 27(1) of the 1990 Schengen Convention shall be repealed as from 5

December 2004. Where a Member State implements this Directive pursuant to
Article 4(1) in advance of that date, the said provision shall cease to apply to that
Member State from the date of implementation.
844
Chapter 29 Victims of Trafficking or Smuggling
1 Summary
Directive 2004/81 was formally adopted by the JHA Council on 29 April 2004
(text in Annex).1 It does not apply to the UK, Ireland or Denmark. Member
States are obliged to apply the Directive by 6 August 2006.2 Article 1 sets out the
purpose of the Directive: to define the conditions for issuing a limited residence
permit, linked to the length of the judicial proceedings, to persons who coop-
erate in the fight against trafficking or the facilitation of illegal immigration.
The Directive defines trafficking and the facilitation of illegal immigration by
reference to the EU acts concerning these issues, but not exhaustively; so further
national definitions could also apply.3 The definition of “measure to enforce an
expulsion order” in the Directive will apply to both judicial and administrative
decisions.4 “Unaccompanied minors” are also defined.5
Member States are obliged to apply the Directive to victims of trafficking
in persons, although it is specified that the Directive also applies to those who
did not enter legally.6 Its application to persons who have been “the subject of
an action to facilitate illegal migration” is optional.7 Its application to minors
1 OJ 2004 L 261/19.
2 Art. 17.
3 Art. 2(b) and (c). See the Framework Decision and Directive 2002/90 on facilitation
of illegal entry and residence (OJ 2002 L 328/1 and 17) and the Framework Decision
on trafficking in persons (OJ 2002 L 203/1), discussed in Chs. 27 and 28.
4 Art. 2(d).
5 Art. 2(e).
6 Art. 3(1).
7 Art. 3(2).
is also optional.8 The preamble includes a safeguard clause on protection for

refugees, persons with subsidiary protection and asylum-seekers, as well as a
non-discrimination clause.9 Member States are free to provide for more exten-
sive protection for persons covered by the Directive.10
Member States’ authorities will usually trigger the application of the Direc-
tive by informing persons whom they believe could fall within its scope; Member
States have an option to decide if NGOs can also trigger the process.11 After
that point, there is a reflection period for the persons concerned to decide if
they wish to cooperate with the authorities; the starting point and length of this
period are determined by national law.12 During this period, expulsion orders
cannot be enforced and the person concerned is entitled to minimum standards
of treatment as regards subsistence, emergency medical treatment, translation
and interpretation and (at the option of Member States) legal aid.13 The reflec-
tion period does not create a right to subsequent residence,14 and a Member
State may end the period if the person concerned “actively, voluntarily and on
his/her own initiative” renews contact with the perpetrators, or on grounds of
public policy or national security.15 Following (or possibly before) the end of
the reflection period, the national authorities shall consider the “opportunity
presented by” the continued stay of the victim, his/her intention to cooperate
and whether he or she has severed relations with the perpetrators,16 before issu-
ing a residence permit. However, the Directive does not appear to create a right
to a permit if the conditions are met.17 The permit must be valid for at least six
months, and may be renewed if these conditions are still met,18 but there is no
express reference to using the EC’s uniform residence permit. Nevertheless, it is
clear that the uniform permit will have to be used for the permits issued pursu-
ant to this Directive anyway;19 the lack of an express reference to the uniform
8 Art. 3(3).
9 Clauses 4 and 7 in the preamble.
10 Art. 4.
11 Art. 5.
12 Art. 6(1).
13 Arts. 6(2) and 7.
14 Art. 6(3).
15 Art. 6(4).
16 Art. 10(1).
17 Art. 8(2).
18 Art. 8(3).
19 The scope of the uniform permit (Art. 1(2)(a) of Reg. 1030/2002, OJ 2002 L 157/1)
is identical to the definition of “residence permit” in Art. 2(e) of this Directive.
The exception in Art. 1(2)(a)(iii) of Reg. 1030/2002 for permits of up to six months
issued by non-Schengen States is irrelevant as those States have not opted into this
846
permit simply means that there is no obligation to indicate that the permit issued
to persons covered by this Directive is a “short-term residence permit”. Member
States are encouraged to consider authorising the stay of the victim’s family
members on other grounds.20
The Directive also sets out rules on the treatment of the victims after the
special permit is issued. Member States must continue to extend minimum
standards regarding subsistence, emergency medical treatment, translation and
interpretation and (optionally) legal aid to victims, and must also give neces-
sary medical or other assistance to victims with special needs and without suffi-
cient resources.21 If Member States apply the Directive to minors, they must take
account of the best interests of the child, give access to education on the same
basis as nationals (although this may be limited to the public education system)
and establish the identity and nationality of, trace the family members of and
ensure legal representation for unaccompanied minors in accordance with
national law.22 Member States must define the rules for victims’ access to the
labour market, vocational training and education during the period of the resi-
dence permit; it is not clear whether this gives them discretion over whether to
allow such access or only discretion as regards the extent of and procedures for
exercising such access.23 The persons concerned by the Directive must be given
access to schemes designed to assist them to develop a normal social life, if such
schemes exist, including courses to improve professional skills or to prepare for
assisted return to their country of origin. Member States may also provide for
special schemes designed for the persons concerned, and may make the residence
permit conditional on participation in either the general or special schemes.24
The permit shall not be renewed if the proceedings are over or if the condi-
tions for its issue cease to be satisfied. After this point, normal immigration law
applies, but the preamble to the Directive states that Member States “should
consider the fact that” the person concerned already has a residence permit
issued on the basis of this Directive if that person applies to stay on another
ground.25 The permit may also be withdrawn on grounds of: the person con-
cerned “actively, voluntarily and on his/her own initiative” renewing contact
with the suspected perpetrators; the authorities’ belief in fraudulent cooperation
or a fraudulent complaint by the person concerned; public policy or national
Directive, although arguably this exception could apply to new Member States
before they apply Schengen in full.
20 Para. 15 of the preamble.
21 Art. 9.
22 Art. 10.
23 Art. 11.
24 Art. 12.
25 Art. 13 and para. 18 of preamble.
847
security; the person concerned ceasing to cooperate; and discontinuation of the

proceedings. These grounds appear to be non-exhaustive.26
The final provisions of the Directive specify inter alia that the Directive is
without prejudice to national law on the protection of victims and witnesses and
require a report on its application four years after its adoption and every three
years afterwards.27
Subsequently, the Council of Europe Convention has adopted a Convention
on trafficking in persons, which will offer more support to victims.28 It remains
to be seen whether the Directive will be reviewed in light of the Convention.
2 Legislative History
The Commission’s initial proposal for a Directive dates from February 2002.29
The proposal was not discussed in the Council until the Italian Presidency, which
began discussions in July 2003. The JHA Council of early November 2003 was
able to reach agreement on the proposal, and it was formally adopted the fol-
lowing April.
The adopted Directive differs in several respects from the Commission’s
initial proposal. The definitions in the Directive define trafficking and the facili-
tation of illegal immigration not, as the Commission had proposed, solely by
reference to the EU acts concerning these issues; rather the definitions in the EU
acts are not exhaustive.30 A standard definition of “unaccompanied minors” was
also added.31
The scope of the Directive was narrowed, as Member States are only
obliged to apply it to victims of trafficking in persons, not “victims” of smug-
gling as well, as the Commission had proposed.32 The Council also specified that
the Directive applies to persons who did not enter legally.33 The safeguard clause
on protection for refugees, persons with subsidiary protection and asylum-seek-
ers and the non-discrimination clause have were moved from the main text to the
preamble.34
26 Art. 14.
27 Respectively Arts. 15 and 16.
28 See Ch. 27.
29 COM (2002) 71, 11 Feb. 2002.
30 Art. 2(b) and (c).
31 Art. 2(e).
32 Art. 3(1).
33 Art. 3(2).
34 Arts. 4 and 5 of the initial proposal; see clauses 4 and 7 in the preamble to the final
Directive.
848
The final Directive also makes it optional, rather than mandatory, for
Member States to decide if NGOs can also trigger the process.35 The length of
the following reflection period is now determined by national law, rather than by
a standard rule.36 Furthermore, the Council lowered the standard of treatment
which persons must receive during this period,37 and revised the grounds upon
which a Member State may end the period.38 The grounds for issuing the permit
were also revised,39 and the apparent right to a permit in the initial proposal
appears to have been dropped by the Council.40 Some of the rules on renewal
of the permit were dropped,41 as was the express reference to using the EC’s
uniform residence permit,42 although as observed above, the uniform permit will
have to be used anyway.43 The encouragement to consider authorising the stay of
the victim’s family members on other grounds was moved to the preamble.44
The treatment accorded to victims after the special permit is issued was
amended, in some respects to increase standards.45 There were minor changes to
35 Art. 5 of the final Directive; see Art. 7 of the initial proposal, where involvement of
associations and NGOs was mandatory. The final Directive no longer specifies that
the national authorities must be prosecution authorities, and limits the involvement
of associations and NGOs to those “specifically appointed by the Member State
concerned”.
36 Art. 6(1) of the final Directive. See Art. 8(1) of the initial proposal, which set a
standard reflection period of 30 days, beginning from the date on which the victim
severed contact with the perpetrator.
37 Arts. 6(2) and 7 of the final Directive. See Arts. 8(2) and 9 of the initial proposal,
which also required access to accommodation, social welfare and medical care that
could not be postponed, as well as mandatory access to legal aid.
38 Art. 6(4) of the final Directive. Art. 8(4) of the initial proposal would have permit-
ted termination of the reflection period simply on grounds of “renewed contact”
with the perpetrator, and also included a “public order” ground for termination,
rather than a “public policy” ground.
39 Art. 10(1) of the final Directive. The Commission had proposed a ten-day maxi-
mum for the authorities to reach their decision, had suggested as grounds the ques-
tion of whether the victim was “useful” and had proposed detailed guidelines on
what constituted an intention to cooperate (Art. 10(1), initial proposal).
40 Art. 8(2) of the final Directive; see Art. 10(2) of the initial proposal.
41 Art. 8(3) of the final Directive. Art. 10(3) of the initial proposal proposed a stan-
dard period of six months for the permit and six months for any renewal.
42 See Art. 11 of the initial proposal.
43 See n. 20 above.
44 Para. 15 of the preamble of the final Directive; see Art. 10(4) of the initial pro-
posal.
45 Art. 9 of the final Directive. Compare with Art. 13 of the initial proposal, which
required Member States to give access to primary medical care but neglected to
849
the provisions on treatment of minors,46 and more significant changes to the pro-
visions on access to the labour market, vocational training and education during
the period of the residence permit,47 and on access to special schemes.48
The obligation to take account of victims’ assistance after the proceed-
ings are over was weakened,49 and the grounds for withdrawal of the permit
were revised, in particular to indicate that these grounds are apparently non-
exhaustive.50 Finally, provisions on penalties for breach of the Directive and the
exchange of information with the Commission were dropped.51
3 Legal Analysis
The first legal question concerning this Directive is whether the Council was
right to use the EC’s powers concerning both legal and illegal migration to adopt
it. This issue would be moot if the EU Constitution enters into force, as the same
decision-making procedure would apply regardless. But the issue would be rel-
evant if the EU Constitution does not enter into force and there is an intention
to amend the Directive, or to adopt legislation on similar or parallel issues, for
in that case, there will be a distinction between unanimous voting and consul-
tation of the EP on issues concerning legal migration, and qualified majority
voting and co-decision of the EP on issues concerning irregular migration (from
extend access to accommodation, subsistence, translation, interpretation and legal

aid into the period of authorised residence.
46 Compare Art. 10 of the final Directive to Art. 14 of the initial proposal; the changes
concern only the obligation to establish the nationality of unaccompanied minors
and the reference to national law. Also, as noted above, the final Directive provides
a definition of “unaccompanied minors”.
47 Compare Art. 11 of the final Directive with Art. 12 of the initial proposal, which
did not refer to national discretion but which did not define the extent of the access
to be granted.
48 Compare Art. 12 of the final Directive to Art. 15 of the initial proposal, which
instead provided simply that Member States could make the residence permit condi-
tional on participation in programmes aimed at “integration into the host country”
or assisted return to the host country or another State willing to accept the person
concerned.
49 Art. 13 and para. 18 of preamble of the final Directive. Art. 16(2) of the initial pro-
posal expressly required Member States to “take account of [victims’] cooperation”
if they applied for another type of residence permit.
50 Art. 14 of the final Directive. Art. 17 of the initial proposal instead provided for an
apparently exhaustive list of three grounds for withdrawal: renewed contact with
the suspected perpetrators, defined less precisely; the authorities’ belief in fraudu-
lent or wrongful cooperation; or public order or national security.
51 Arts. 18 and 19 of the initial proposal. Para. 19 of the preamble to the final Direc-
tive is a weaker version of the proposed Article on exchange of information.
850
1 January 2005).52 As set out elsewhere in this book, it is arguable that since the
Directive concerns the acquisition and loss of legal migration status, it should
have been based on the EC’s legal migration powers alone.53
The second issue is the ability of persons covered by the Directive to claim
protection status. The European Court of Human Rights has made clear that
persons who need protection from attacks from private individuals or groups
may, in principle, claim the protection of Article 3 ECHR.54 This rule should
logically apply to persons covered by the Directive, who could face retaliation by
traffickers in the country of origin (particularly where the police forces in that
country are unwilling or unable to protect individuals in such cases) as hinted at
in the Commission’s explanatory memorandum to its proposal.55 Such an inter-
pretation is consistent with the provisions of the preamble to the Directive con-
cerning the rights of refugees and similar groups needing or seeking protection,
and the consideration which Member States should give to applications to stay
on other grounds following the end of the legal proceedings.
4 Comments
This Directive could not avoid the inherent tension between trying to combat
irregular immigration by encouraging victims of trafficking and smuggling to
testify, and the risk that the incentives offered to the victims would either be
abused or have the result that the victims would be able to stay in the “host”
Member State longer than it would wish. The key changes to the text as pro-
posed by the Commission made the application of the Directive to smuggling
cases optional and weaken the extent and precision of the obligations imposed
upon Member States as regards victims. While the first of these changes will
likely have limited relevance, since most persons using smugglers will not con-
sider themselves “victims”, the second main change will make the scheme estab-
lished by the Directive less attractive to victims. It will also be harder to monitor
the usefulness of the Directive in practice in light of the deletion of the provi-
sions on exchange of information. As a result, while one can only hope that the
Directive does make a significant contribution to its main goal of combatting
trafficking in persons, its appeal to victims may be so limited that agreement on
the text appears to be a public relations gesture.
To what extent will the Directive ameliorate the very difficult circumstances
which the victims of trafficking are in? First of all, it will only benefit minor
victims in Member States which exercise the option set out in Article 3(3). Psy-
chological assistance will only be granted “if provided by national law” (Article

53 See Ch. 3.
54 See the H.L.R. v France judgment (Reports 1997-III).
55 See p. 11 of the explanatory memorandum (n. 29 above). On the issue of persecu-
tion by non-state actors, see generally Ch. 13.
851
7(1)). The legal status of the victim will be contingent upon the progress of the
prosecution against her tormentors, a process outside her control; moreover her
involvement in the proceedings may well risk reprisals against her or her family.
There is no express provision for procedural rights as regards withdrawal of a
residence permit, although arguably the general principles of Community law
confer implied procedural rights.56 Access to the labour market, including voca-
tional training and education, may be limited to a significant degree by Member
States, according to Article 11 (although the text of this Article does not appear
to permit Member States to withhold such access entirely). In any event, labour
market access will cease once the impermanent residence permit expires or is
withdrawn, so it will not normally be realistic for the victim to hope for a job at a
level much above the margins of the labour market, or to undertake education or
training in that Member State in order to aspire to a better job in future. There is
no express reference to housing, or to access to self-employment, or to the status
of the victim’s children (if they are also present in the Member State concerned).
In light of all these limitations, it is unlikely that the Directive can make a major
contribution to guaranteeing the basic rights of victims of trafficking.
56 See Ch. 5.
852

of 29 April 2004
on the residence permit issued to third-country nationals who are victims of traf-
ficking in human beings or who have been the subject of an action to facilitate
illegal immigration, who cooperate with the competent authorities
(OJ 2004 L 261/19)
ticular point 3 of Article 63 thereof,
Having regard to the opinion of the European Economic and Social Committee,
Having consulted the Committee of the Regions,
Whereas:
(1) The framing of a common immigration policy, including the definition of

the conditions of entry and residence for foreigners and measures to combat
illegal immigration, is a constituent element of the European Union’s objec-
tive of creating an area of freedom, security and justice.
(2) At its special meeting in Tampere on 15 and 16 October 1999 , the Euro-
pean Council expressed its determination to tackle illegal immigration at
source, for example by targeting those who engage in trafficking of human
beings and the economic exploitation of migrants. It called on the Member
States to concentrate their efforts on detecting and dismantling criminal
networks while protecting the rights of victims.
(3) An indication of the growing concern about this phenomenon at interna-

tional level was the adoption by the United Nations General Assembly of
a Convention against Transnational Organised Crime, supplemented by a
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children, and a Protocol Against the Smuggling of Migrants
by Land, Sea and Air. These were signed by the Community and the 15
Member States in December 2000.
(4) This Directive is without prejudice to the protection granted to refugees,

to beneficiaries of subsidiary protection and persons seeking international
protection under international refugee law and without prejudice to other
human rights instruments.
853
(5) This Directive is without prejudice to other provisions on the protection of

victims, witnesses or persons who are particularly vulnerable. Nor does it
detract from the prerogatives of the Member States as regards the right of
residence granted on humanitarian or other grounds.
(6) This Directive respects fundamental rights and complies with the principles
recognised for example by the Charter of Fundamental Rights of the Euro-
pean Union.
(7) Member States should give effect to the provision of this Directive with-
genetic characteristics, language, religion or belief, political or other opin-
sexual orientation.
(8) At European level, Council Directive 2002/90/EC of 28 November 2002

defining the facilitation of unauthorised entry, transit and residence and
Council Framework Decision 2002/629/JHA of 19 July 2002 on combating
trafficking in human beings were adopted to strengthen the prevention and
the fight against the above offences.
(9) This Directive introduces a residence permit intended for victims of traf-
ficking in human beings or, if a Member State decides to extend the scope
of this Directive, to third-country nationals who have been the subject of an
action to facilitate illegal immigration to whom the residence permit offers
a sufficient incentive to cooperate with the competent authorities while
including certain conditions to safeguard against abuse.
(10) To this end, it is necessary to lay down the criteria for issuing a residence
permit, the conditions of stay and the grounds for non-renewal and with-
drawal. The right to stay under this Directive is subject to conditions and is
of provisional nature.
(11) The third country nationals concerned should be informed of the possibil-
ity of obtaining this residence permit and be given a period in which to
reflect on their position. This should help put them in a position to reach a
well-informed decision as to whether or not to cooperate with the compe-
tent authorities, which may be the police, prosecution and judicial authori-
ties (in view of the risks this may entail), so that they cooperate freely and
hence more effectively.
(12) Given their vulnerability, the third-country nationals concerned should be

granted the assistance provided by this Directive. This assistance should
854
allow them to recover and escape the influence of the perpetrators of the
offences. The medical treatment to be provided to the third-country nationals
covered by this Directive also includes, where appropriate, psychotherapeuti-
cal care.
(13) A decision on the issue of a residence permit for at least six months or its
renewal has to be taken by the competent authorities, who should consider
if the relevant conditions are fulfilled.
(14) This Directive should apply without prejudice to the activities carried out
by the competent authorities in all phases of the relevant national proceed-
ings, and in particular when investigating the offences concerned.
(15) Member States should consider authorising the stay on other grounds,
according to their national legislation, for third-country nationals who may
fall within the scope of this Directive, but who do not, or no longer, fulfil
the conditions set by it, for the members of his/her family or for persons
treated as members of his/her family.
(16) To enable the third-country nationals concerned to gain their independence

and not return to the criminal network, the holders of the residence permit
should be authorised, under the conditions set by this Directive, to have
access to the labour market and pursue vocational training and education.
In authorising access of the holders of the residence permit to vocational

training and education, Member States should consider in particular the
likely duration of stay.
(17) The participation of the third-country nationals concerned to programmes

and schemes, already existing or to be introduced, should contribute to
their recovery of a normal social life.
(18) If the third-country nationals concerned submit an application for another

kind of residence permit, Member States take a decision on the basis of
ordinary national aliens’ law. When examining such an application, Member
States should consider the fact that the third-country nationals concerned
have been granted the residence permit issued under this Directive.
(19) Member States should provide the Commission, with respect to the imple-
mentation of this Directive, with the information which has been identified
in the framework of the activities developed with regard to the collection
and treatment of statistical data concerning matters falling within the area
of Justice and Home Affairs.
855
(20) Since the objective of introducing a residence permit for the third-country
nationals concerned who cooperate in the fight against trafficking in human
beings cannot be sufficiently achieved by the Member States and can there-
fore, by reason of the scale of the action, be better achieved at the Com-
munity level, the Community may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the Treaty. In accordance
with the principle of proportionality, as set out in that Article, this Directive
does not go beyond what is necessary in order to achieve that objective.

the United Kingdom and Ireland, annexed to the Treaty on the European
Union and to the Treaty establishing the European Community and with-
out prejudice to Article 4 of the said Protocol, these Member States are
not taking part in the adoption of this Directive and are not bound by it or
subject to its application.
(22) In accordance with Article 1 and 2 of the Protocol on the position of Den-
mark, annexed to the Treaty on the European Union and the Treaty establish-
ing the European Community, Denmark does not take part in the adoption
of this Directive and is not bound by it or subject to its application,
CHAPTER I
GENERAL PROVISIONS
Article 1 Purpose
The purpose of this Directive is to define the conditions for granting residence
permits of limited duration, linked to the length of the relevant national pro-
ceedings, to third-country nationals who cooperate in the fight against traffick-
ing in human beings or against action to facilitate illegal immigration.

(b) “action to facilitate illegal immigration” covers cases such as those referred
to in Articles 1 and 2 of Directive 2002/90/EC;
(c) “trafficking in human beings” covers cases such as those referred to in Arti-
cles 1, 2 and 3 of Framework Decision 2002/629/JHA;
856
(d) “measure to enforce an expulsion order” means any measure taken by a

Member State to enforce the decision of the competent authorities ordering
the expulsion of a third-country national;
(e) “residence permit” means any authorisation issued by a Member State,
allowing a third-country national who fulfils the conditions set by this
Directive to stay legally on its territory.
(f) “unaccompanied minors” means third-country nationals below the age of
eighteen, who arrive on the territory of the Member State unaccompanied
by an adult responsible for them whether by law or custom, and for as long
as they are not effectively taken into the care of such a person, or minors
who are left unaccompanied after they have entered the territory of the
Member State.
Article 3 Scope
1. Member States shall apply this Directive to the third-country nationals who
are, or have been victims of offences related to the trafficking in human
beings, even if they have illegally entered the territory of the Member
States.
2. Member States may apply this Directive to the third-country nationals who
have been the subject of an action to facilitate illegal immigration.
3. This Directive shall apply to the third-country nationals concerned having

reached the age of majority set out by the law of the Member State con-
cerned.
By way of derogation, Member States may decide to apply this Directive to

minors under the conditions laid down in their national law.
This Directive shall not prevent Member States from adopting or maintaining
more favourable provisions for the persons covered by this Directive.
CHAPTER II
PROCEDURE FOR ISSUING THE RESIDENCE PERMIT
Article 5 Information given to the third-country nationals concerned
When the competent authorities of the Member States take the view that a third-
country national may fall into the scope of this Directive, they shall inform the
person concerned of the possibilities offered under this Directive.
857
Member States may decide that such information may also be provided by a
non-governmental organisation or an association specifically appointed by the
Member State concerned.
Article 6 Reflection period
1. Member States shall ensure that the third-country nationals concerned are
granted a reflection period allowing them to recover and escape the influ-
ence of the perpetrators of the offences so that they can take an informed
decision as to whether to cooperate with the competent authorities.
The duration and starting point of the period referred to in the first sub-
paragraph shall be determined according to national law.
2. During the reflection period and while awaiting the decision of the compe-
tent authorities, the third-country nationals concerned shall have access to
the treatment referred to in Article 7 and it shall not be possible to enforce
any expulsion order against them.
3. The reflection period shall not create any entitlement to residence under
this Directive.
4. The Member State may at any time terminate the reflection period if the
competent authorities have established that the person concerned has
actively, voluntarily and on his/her own initiative renewed contact with the
perpetrators of the offences referred to in Article 2(b) and (c) or for reasons
relating to public policy and to the protection of national security.
Article 7 Treatment granted before the issue of the residence permit
1. Member States shall ensure that the third-country nationals concerned who
do not have sufficient resources are granted standards of living capable of
ensuring their subsistence and access to emergency medical treatment. They
shall attend to the special needs of the most vulnerable, including, where
appropriate and if provided by national law, psychological assistance.
2. Member States shall take due account of the safety and protection needs
of the third-country nationals concerned when applying this Directive, in
accordance with national law.
3. Member States shall provide the third-country nationals concerned, where

appropriate, with translation and interpreting services.
858
4. Member States may provide the third-country nationals concerned with

free legal aid, if established and under the conditions set by national law.
Article 8 Issue and renewal of the residence permit
1. After the expiry of the reflection period, or earlier if the competent authori-
ties are of the view that the third-country national concerned has already ful-
filled the criterion set out in subparagraph (b), Member States shall consider:
(a) the opportunity presented by prolonging his/her stay on its territory
for the investigations or the judicial proceedings, and
(b) whether he/she has shown a clear intention to cooperate and
(c) whether he/she has severed all relations with those suspected of acts
that might be included among the offences referred to in Article 2(b)
and (c).
2. For the issue of the residence permit and without prejudice to the reasons
relating to public policy and to the protection of national security, the fulfil-
ment of the conditions referred to in paragraph 1 shall be required.
3. Without prejudice to the provisions on withdrawal referred to in Article

14, the residence permit shall be valid for at least six months. It shall be
renewed if the conditions set out in paragraph 2 of this Article continue to
be satisfied.
CHAPTER III
TREATMENT OF HOLDERS OF THE RESIDENCE PERMIT
Article 9 Treatment granted after the issue of the residence permit
1. Member States shall ensure that holders of a residence permit who do not
have sufficient resources are granted at least the same treatment provided
for in Article 7.
2. Member States shall provide necessary medical or other assistance to the

third-country nationals concerned, who do not have sufficient resources
and have special needs, such as pregnant women, the disabled or victims
of sexual violence or other forms of violence and, if Member States have
recourse to the option provided for in Article 3(3), minors.
Article 10 Minors
If Member States have recourse to the option provided for in Article 3(3), the
following provisions shall apply:
859
(a) Member States shall take due account of the best interests of the child when
applying this Directive. They shall ensure that the procedure is appropriate
to the age and maturity of the child. In particular, if they consider that it is
in the best interest of the child, they may extend the reflection period.
(b) Member States shall ensure that minors have access to the educational
system under the same conditions as nationals. Member States may stipu-
late that such access must be limited to the public education system.
(c) In the case of third-country nationals who are unaccompanied minors,
Member States shall take the necessary steps to establish their identity,
nationality and the fact that they are unaccompanied. They shall make
every effort to locate their families as quickly as possible and take the neces-
sary steps immediately to ensure legal representation, including representa-
tion in criminal proceedings, if necessary, in accordance with national law.
Article 11 Work, vocational training and education
1. Member States shall define the rules under which holders of the residence
permit shall be authorised to have access to the labour market, to voca-
tional training and education.
Such access shall be limited to the duration of the residence permit.
2. The conditions and the procedures for authorising access to the labour
market, to vocational training and education shall be determined, under
the national legislation, by the competent authorities.
Article 12 Programmes or schemes for the third-country nationals concerned
1. The third-country nationals concerned shall be granted access to existing

programmes or schemes, provided by the Member States or by non-govern-
mental organisations or associations which have specific agreements with
the Member States, aimed at their recovery of a normal social life, includ-
ing, where appropriate, courses designed to improve their professional
skills, or preparation of their assisted return to their country of origin.
Member States may provide specific programmes or schemes for the third-
country nationals concerned.
2. Where a Member State decides to introduce and implement the programmes

or schemes referred to in paragraph 1, it may make the issue of the resi-
dence permit or its renewal conditional upon the participation in the said
programmes or schemes.
860
CHAPTER IV
NON-RENEWAL AND WITHDRAWAL
Article 13 Non-renewal
1. The residence permit issued on the basis of this Directive shall not be
renewed if the conditions of Article 8(2) cease to be satisfied or if a decision
adopted by the competent authorities has terminated the relevant proceed-
ings.
2. When the residence permit issued on the basis of this Directive expires ordi-
nary aliens’ law shall apply.
Article 14 Withdrawal
The residence permit may be withdrawn at any time if the conditions for the
issue are no longer satisfied. In particular, the residence permit may be with-
drawn in the following cases:
(a) if the holder has actively, voluntarily and in his/her own initiative renewed
contacts with those suspected of committing the offences referred to in
Article 2(b) and (c); or
(b) if the competent authority believes that the victim’s cooperation is fraudu-
lent or that his/her complaint is fraudulent or wrongful; or
(c) for reasons relating to public policy and to the protection of national secu-
rity; or
(d) when the victim ceases to cooperate; or
(e) when the competent authorities decide to discontinue the proceedings.
CHAPTER V
FINAL PROVISIONS
Article 15 Safeguard clause
This Directive shall apply without prejudice to specific national rules concerning
the protection of victims and witnesses.
Article 16 Report
1. No later than 6 August 2008 , the Commission shall report to the Euro-
pean Parliament and the Council on the application of this Directive in
the Member States and propose any amendments that are necessary. The
Member States shall send the Commission any information relevant to the
preparation of this report.
861
2. After presenting the report referred to in paragraph 1, the Commission

shall report to the European Parliament and the Council at least every three
years on the application of this Directive in the Member States.
Article 17 Transposal
The Member States shall bring into force the laws, regulations and administra-
tive provisions necessary to comply with this Directive before 6 August 2006 .
They shall immediately inform the Commission accordingly.
When the Member States adopt these measures, they shall contain a reference
to this Directive or shall be accompanied by such a reference on the occasion
of their official publication. The methods of making such reference shall be laid
down by Member States.
862
Chapter 30 Transit for Expulsion
Directive 2003/110 on transit for “removals” (expulsion) by air, a German initia-
tive based on Article 63(3)(b) EC, was formally proposed in late 2002, agreed in
principle by the JHA Council in June 2003 and formally adopted in November
2003.1 Member States had to apply the Directive by 6 December 2005, except for
the UK and Ireland, which opted out of the Directive.
Article 1 sets out the purpose of the Directive: to assist with expulsion in
EU airports. Article 2 sets out definitions. The core obligations to assist expul-
sions by air and the grounds for refusal to assist appear in Article 3. A requesting
Member State should give priority to direct flights to the country of origin and
should “in principle” not request assistance if this involves transfer between dif-
ferent airports within another Member State (Article 3(2)). A requested Member
State may refuse to assist with expulsion if criminal charges would be brought
against the person concerned in the requested State or if the person concerned
“is wanted for the carrying out of a sentence”; if transit to or admission into
the State of destination is not feasbile; if a change of airport in the requested
State would be required; if the assistance is temporarily not available for “prac-
tical reasons”; or if the person concerned “will be a threat to public policy,
public security, public health or to the international relations” of the requested
Member State (Article 3(3)). A transit authorisation, once given, may also be
revoked on the same grounds (Article 3(5)). The requested Member State must
give reasons to the requesting Member State in the event of refusal or revocation
on the grounds listed in Article 3(3) or 3(5) “or of any other reason why the tran-
sit is not possible” (Article 3(6)); this suggests strongly that the listed grounds for
refusal or revocation are non-exhaustive. The preamble states that transit by air
1 OJ 2003 L 321/26; the proposed text was in OJ 2003 C 4/4.
“should be neither requested nor granted if in the third country of destination

or transit faces the threat of inhumane or humiliating treatment, torture or the
death penalty” for the person concerned, or if his life or liberty would be at risk
by reason of his race, religion, nationality, membership of a particular social
group or political conviction.”
Article 4 describes the procedure for making and replying to requests,
although the German proposal to exempt the expelled person from visa require-
ments in the Member State of transit was dropped. Article 5 describes the spe-
cific obligations of requested Member States, makes clear that the requested
Member State’s law has responsibility for organising such measures, sets out the
status of escorts from the requesting Member States and allocates the cost of
various aspects of the expulsion between the requesting and requested Member
States.
Article 6 sets out readmission obligations for the requesting Member State
in the event that transit was refused or revoked on the grounds listed in Article
3; the expulsion was unsuccessful or the person concerned tried to enter the
requested Member State without authorisation; or “transit by air is not possible
for another reason”. Again this wording suggests that the grounds for refusing
or revoking assistance listed in Article 3 are not exhaustive. Article 7 sets out the
powers of escorts sent by the requesting State, providing that they may act in
“self-defence” and use “reasonable and proportionate action” to prevent risks
posed by third-country nationals, but may not carry weapons, must wear civilian
clothes and must comply with the requested State’s legislation.
There is a “savings clause” (Article 8) specifying that the Directive is “with-
out prejudice to” the Geneva Convention on the status of refugees, international
human rights treaties or international extradition treaties. Finally, Articles 9 to
13 set out final provisions. There is no review clause. An Annex sets out a stan-
dard form for use in requesting cooperation under the Directive and for replying
to those requests; the Commission is empowered to amend it via use of a “comi-
tology” procedure (Article 9). A pre-existing Schengen Executive Committee
Decision on transit for expulsion is repealed.2

Even before the “Maastricht-era” of JHA cooperation, the Interior Ministers of
Member States were keen to set out prinicples regarding transit for expulsion.
A Ministers’ Recommendation of 1992, supplemented by an addendum in 1993
and a Council recommendation in 1995, sets out general guidelines for facilitat-
ing such transit.3 The 1992 and 1993 measures cover much of the same ground
2 Sch/Com-ex (98) 10, 21 Apr. 1998 (OJ 2000 L 239/193).

3 OJ 1996 C/5, 7 and 3. On the 1992 and 1993 measures, see Guild and Niessen, The
Developing Immigration and Asylum Policies of the European Union: Adopted Con-
ventions, Resolutions, Recommendations, Decisions and Conclusions (Kluwer, 1996)
864
as the 2003 Directive, although they are less precise and cover other forms of
transit besides air transit.
For its part, the Schengen Executive Committee agreed a Decision on transit
for expulsion in 1998.4 This Decision set out a standard form to facilitate coop-
eration for expulsion along with six guidelines for use of the form. The request
for cooperation must have been sent two days in advance, except in a justified
emergency; it must have contained specified information on the person to be
expelled; this information was to be sent to the relevant border control officials;
other precautionary measures (use of escorts and premises, contacts with airport
staff) had to be taken where necessary; the request could be be refused “espe-
cially where the declared period of transit” is longer than that allowed under the
requested State’s law; and the Member States were to inform each other of the
relevant contact persons and authorities. There were no human rights protec-
tions expressly provided for. When allocating the “Schengen acquis” in 1999, the
Council allocated this Decision to Articles 62(3) and 63(3) EC.5
Subsequently, in the last few weeks of the “Maastricht era” of EU asylum
and immigration law, the German government proposed a “Joint Action” on
cooperation in expulsion by air, building upon the Executive Committee Deci-
sion.6 This proposal, taking a more clearly legislative form than the Decision,
was the basis for the subsequent proposal for a Directive. It started out with
definitions of “third-country alien”, “escort” and “transit” (Article 1), then set
out a core obligation to cooperate in transit requests, with specified exceptions
(Article 2). Remaining provisions addressed the readmission obligations of
the requesting Member State (Article 3); specific obligations of the requested
State to facilitate removal (Article 4); the procedure for making requests for
cooperation (Article 5); detailed data protection obligations (Article 6); and a
“saving clause” regarding the Geneva Convention on the status of refugees and
the Dublin Convention (Article 7). An Annex comprised a form for use with
transit requests; this was identical to the form attached to the Schengen Execu-
tive Committee Decision. This proposal lapsed when the Treaty of Amsterdam
entered into force.7 Later on, the German government informally suggested an
initiative on the limited issue of visa exemptions in transit cases.8 The Germans
at 239-250. For discussion in the context of the overall pre-Amsterdam acquis on

irregular migration, see Peers, EU Justice and Home Affairs Law (1st edition, Long-
man, 2000), 94-99.
4 N. 2 above.
5 OJ 1999 L 176/17.
6 Council doc. 7264/99, 12 Apr. 1999. For the background, see Council doc. 14348/98,
21 Dec. 1998.
7 Outcome of proceedings of the working party on 26-27 Jan. 2000 (Council doc.
5771/01, 7 Feb. 2000).
8 Council doc. 10290/01, 22 June 2001.
865
placed both issues on the agenda of a working party meeting shortly after 11
September 2001; there was some interest in the first initiative but many misgiv-
ings over the second one.9
In the meantime, the Council had arranged a questionnaire on the current
functioning of expulsion procedures between Member States (and Norway and
Iceland). Nearly half of the Member States indicated that they had no experi-
ence of practical difficulties arranging expulsion through other Member States’
airports in 1999, but the other half reported problems such as refusals to permit
transit. In many cases, however, expulsions were delayed or prevented by airlines
or by the behaviour of the deportee--issues which have nothing to do with cross-
border cooperation.10
Subsequently, the broader German proposal on transit for the purposes of
expulsion was formally revived in the summer of 2002 following the adoption
in February 2002 of the Council’s Action Plan on illegal immigration, which
called for rules on the transit of expellees to be agreed in the short-term (within
one year).11 Later on, the Commission advocated the adoption of rules on this
issue in its Green Paper on return policy and its ensuing Communication, and
the final Council Action Plan on return policy endorsed the consideration of
the proposal, along with the idea of a further measure concerning transit via
land.12
This new version of the proposal, now in the form of a Directive, largely
made only technical changes to the 1999 proposal.13 However, there were some
significant changes: “torture” was now expressly added to the list of grounds
which could justify refusal to make a request for cooperation or a refusal to
accept it, and it was now mandatory, not merely optional, to refuse a request for
cooperation where the rights of the individual were threatened or at risk. The
data protection clause was deleted, the “savings clause” now included extradi-
tion conventions and the form in the Annex was expanded, inter alia to include
space for officials to indicate that they knew of no grounds to refuse transit.
After the opinion of the Council’s legal service on whether the proposal fell
within the scope of the Schengen acquis,14 a formal German proposal for a Direc-
9 Outcome of proceedings of the working party on 24 Sep. 2001 (Council doc.

13079/01, 30 Oct. 2001).
10 See replies to questionnaire and analysis of replies (Council docs. 7200/00, 29 Mar.
2000 and 7941/00, 4 May 2000). Note that nearly 167,000 expulsions from the EU
and Norway were carried out in 1999.
11 OJ 2002 C 142/23, points 78 and 79 and Annex.
12 Point 3.3 of Green Paper (COM (2002) 175, 10 Apr. 2002); point 2.2.7 of Commu-
nication (COM (2002) 564, 14 Oct. 2002); and paras. 46-48 and Annex 2 of Action
Plan (Council doc. 14673/02, 25 Nov. 2002).
13 Council doc. 10386/02, 27 June 2002.
14 Council doc. 11936/02, 12 Sep. 2002, not released by the Council.
866
tive was submitted in November 2002, along with an accompanying explanatory

memorandum.15 This was sent to the EP for official consultation once the title of
the proposed Directive was altered so that it concerned “removal” rather than
“expulsion”,16 even though the latter, more honest, word was used in the title of
Directive 2001/40 on mutual recognition of expulsion decisions. But this change
was purely cosmetic, as none of the substance of the provisions were further
altered.
The official November 2002 proposal differed slightly from the July draft
in that it officially built on the “Schengen acquis”, thus potentially applying to
Norway and Iceland and permitting Denmark to apply it in the form of inter-
national law. As a consequence, nationals of Norway and Iceland cannot be
considered “third-country nationals”. A preambular human rights clause and a
clause on the purposes of the Directive (Article 1) were added. Also, the require-
ment to consider direct flights as a priority was new. The provision concerning
refusal of transit in cases of specified human rights breaches again became an
option, rather than an obligation, and the possibility of refusal of transit on
operational grounds was added. Unlike previous versions, escorts from request-
ing Member States did not have to be involved in decisions to readmit. No time
limit for applications applied in the case of unescorted transit. There was no
longer an obligation for the requesting Member State to assert that it knows of
no impediments to transit as described in the Directive, although the form in the
Annex still provided for a possible statement on this issue.
Following negotiations in the Council’s working group on migration and the
Strategic Committee on Immigration, Frontiers and Asylum, the Mixed Com-
mittee (including Norway and Iceland) reached a “general approach” on the text
in June 2003, and the Economic and Financial Council formally adopted the
text on 29 November 2003.
Comparing the proposed text to the adopted text, it is no longer speci-
fied that a requested Member State is in principle bound to assist with a transit
request (see Article 3(1) of proposed text). On the other hand, the final Directive
does not make it clear that the Directive will only apply where Member States
volunteer to cooperate with each other (as is the case with Directive 2001/40).
As for grounds to refuse transit assistance, the specific provisions on human
rights grounds were moved from the main text to the preamble, where they are
no longer mandatory (stating only what Member States “should” do). Other
grounds were reworded (regarding practicality and feasibility of removal, and
the prospect of the expellee serving a sentence in the requested State) or added
(the exceptions for changing airports and for public policy, et al). The provisions
on exemption from visa requirements was also dropped, and the detailed rules
on the competence of escorts were added. There is nothing in the final text to
15 Council docs. 13861/02, 7 Nov. 2002; 13861/02 add 1, n. 2 above (memorandum).

16 Council doc. 14848/02, n. 1 above.
867
indicate that (as suggested by the explanatory memorandum to the proposal) the
costs rule in the Directive is provisional,17 to be replaced by the separate Deci-
sion to allocate the costs connected with the application of Directive 2001/40.18
Finally, the savings clause no longer includes any reference to the Dublin Con-
vention (or its successor Regulation), although the reference to international
human rights treaties was added to this clause.
3 Legal Analysis
First of all, this Directive implicitly applies to third-country national family
members of EU citizens (and Norwegian and Icelandic citizens) who have
migrated within the EU. It is highly questionable whether a Title IV “illegal
immigration” measure can regulate their status in any way.
The connection of this measure with the Schengen acquis is also unclear.
Neither the final Directive, the original proposal nor the explanatory memoran-
dum to the proposal do anything to explain the connection with Schengen. Pre-
sumably the connection is that the measure will apply if a person who entered
one Member State becomes an illegal entrant or overstayer on the territory of
another Member State, in which case Article 23 of the 1990 Schengen Conven-
tion, governing expulsion and readmission in such circumstances, will apply.19
However, it is clear from its placement in Chapter 4 of Title II of the Conven-
tion that Article 23 does not apply to all cases of irregular entry and stay, but
only to cases involving more than one Schengen state. An expulsion via another
Member State certainly does not mean that the Schengen rules on freedom to
travel are being applied, since the mere fact of the expulsion (if it is valid) indi-
cates that the criteria to exercise that freedom are not fulfilled.20 So the Direc-
tive therefore goes well beyond the scope of the Schengen rules as its scope is
not limited to cases within the scope of Article 23 of the 1990 Convention. For
example, the Directive might equally apply where a third-country national has
entered Greece via an external maritime border or Germany via an external land
border and has not entered the territory of any other Schengen State, but where
Greece or Germany requests France to assist with the expulsion because direct
flights to that person’s country of origin are only available from France.
It was also initially unclear how the proposed Directive linked to the 1998
Schengen Executive Committee Decision on expulsion by air. That Decision was
adopted “having regard to” Article 23 of the 1990 Convention, and so presum-
ably was limited in scope to expulsions within the scope of Article 23, as the
Executive Committee did not have the power to adopt a measure based on Arti-
17 Council doc. 13861/02 add 1, 7 Nov. 2002.

18 OJ 2004 L 60/55.
19 OJ 2000 L 239/19.
20 On these rules, see further Ch. 9.
868
cle 23 regulating an issue not covered by that Article. In fact, there are no other
Schengen Convention provisions on expulsion besides the carrier sanctions pro-
vision of Article 26 and the redundant “Dublin” provisions in Articles 28-38, so
the Executive Committee clearly lacked the power to adopt a broader measure.
It is even questionable whether the Executive Committee had the power to adopt
a measure implementing Article 23 of the 1990 Convention, as the Convention
does not expressly confer such a power, although it could be argued that Arti-
cle 131 of the Convention (“the overall task of the Executive Committee is to
ensure that this Convention is implemented correctly”) amounts to a general
implementing power.
In any event, there was no convincing reason to leave the Schengen measure
in force. There appeared to be no principle in the Executive Committee Decision
not addressed in the proposed Directive; and even if there were, such a provision
could easily have been integrated into the proposal. Given the extensive overlap
between the two measures, along with the poor drafting, ambiguous legal effect,
uncertain scope and dubious validity of the Executive Committee Decision – to
say nothing of the complete absence in the Decision of even the weak standards
of human rights protection found in the Directive – the repeal of the Decision
by the Directive can only be welcomed.
4 Comments21
At the time this Directive was revived, it prejudged not only the need for an EU
expulsion policy and the timing of that policy, but the Council plan on “return”
policy which was to be adopted following a further Commission Communication
and public consultation on the Commission’s Green Paper on return. Clearly the
Council saw no need to wait for the results of public consultation before begin-
ning work on this proposal.
It is not clear why data protection safeguards were dropped when the pro-
posal was revived in 2002. Perhaps it was thought that Directive 95/46 on data
protection offered sufficient data protection for individuals without the need to
supplement it further.22 If that was the case, then this should have been explained
in the preamble.
The core issue with the Directive, as with Directive 2001/40,23 is the princi-
ple of mutual recognition of expulsion decisions at the present time. Requested
Member States “should” refuse to request or assist with transit, or revoke their
agreement to assist, in case of a threat of human rights breach to the person
21 These comments build upon and update an analysis for Statewatch, “Expelling
migrants from the EU: Fast-track legislation and sham consultation”, online at:
<http://www.statewatch.org/news/2002/jul/13expul.htm>.
22 OJ 1995 L 281/31. See for instance, Reg. 333/2002 (OJ 2002 L 53/4), recital 8 and
Art. 4.
23 See Ch. 25.
869
concerned in another country, and this is only provided for in the preamble;
there is no longer even an obligation for the requesting State’s authorities to
certify when they fill out the Annex that no such grounds exist. Also, there is no
reference to a requesting State withdrawing a request if such a breach becomes
evident later. So the final Directive contains weaker protection for human rights
than originally proposed by Germany, and the reference to human rights treaties
in the savings clause is too vague to make up for this.
In any event, how is the requested Member State to determine whether
there is such a human rights breach? According to the Directive, the only infor-
mation available to it will be the brief information included on the standard
request form. As noted above, in the final version of the Directive, the form no
longer contains even a box to ticked to indicate that, in the view of the request-
ing Member State, there is no human rights problem with expulsion. Clearly this
does not supply enough information for the requested Member State to come to
its own conclusion on that subject. The requesting Member State is not obliged
to limit requests to certain situations, or to consider human rights issues before
deciding to expel and requesting assistance of another Member State.
Compared with Directive 2001/40, which already sets a weak standard as
regards human rights protection,24 there is no obligation in the agreed text of
the Directive for requested Member States to ensure that there are no human
rights risks before they carry out an expulsion order at another Member State’s
request. Also, there is no comparable requirement upon the requested Member
State to permit migrants to challenge its decision to enforce expulsion decisions.
Directive 2001/40 only applies to expulsion where certain substantive criteria
are met, and the family members of EU nationals are exempt from it. There
are express rights on data protection in the earlier Directive, and the main text
of that Directive explicitly requires Member States to apply the Directive “with
due regard for human rights and fundamental freedoms”. All these essential
limits and safeguards are missing from Directive 2003/110, which merely refers
to human rights protection in the preamble and vaguely in the safeguard clause.
So even the weak standards agreed in 2001 are apparently dropped where the
2003 Directive applies. Since the requested Member State will clearly be exercis-
ing jurisdiction over the person concerned if it agrees to cooperate in carrying
out the expulsion,25 there are no grounds for a lower level of protection due to
that State’s more limited contact with the individual concerned.
It may be objected that the Directive, unlike Directive 2001/40, contains an
express “savings clause” as regards the Geneva Convention on the status of refu-
gees. But it is questionable whether this clause provides sufficient protection in
the absence of any detailed rules on how to ensure respect for that Convention.
There will likely be cases where the Directive would apply to rejected asylum-
24 See ibid.
25 This is obvious from Article 5 of the Directive.
870
seekers, following a superficial examination of their claim (or even a refusal to

examine it) and denial of suspensive effect of any appeal against a negative deci-
sion.26 In the absence of an express provision to require a full examination of
any asylum claim and effective procedural remedies in the case of any appeal
before applying this Directive, the “savings clause” is simply window-dressing.
Without agreed minimum EU standards on expulsion decisions and asylum
procedures set at a high level, this Directive will run a huge risk of violating fun-
damental human rights when applied to certain particular cases. It remains to be
seen whether the Commission’s proposal concerning expulsion standards will be
agreed at all, and will set such standards at a sufficiently high level.27
26 See discussion of the Directive on asylum procedures (Ch. 14).

27 COM (2005) 391, 1 Sept. 2005. The proposed Directive is too recent to be consid-
ered in detail in this book.
871

of 25 November 2003
on assistance in cases of transit for the purposes of removal by air
(OJ 2003 L 321/26)
ticular Article 63(3)(b) thereof,
Having regard to the initiative of the Federal Republic of Germany,
Whereas:
(1) Mutual assistance for the purposes of removal takes into consideration the
common objective of ending the illegal residence of third-country nation-
als who are the subject of removal orders. Rules binding on all the Member
States contribute furthermore to legal certainty and standardisation of pro-
cedures.
(2) Removal by air is increasingly gaining in importance for the purpose of ter-
minating the residence of third-country nationals. Despite the efforts of the
Member States to give priority to using direct flights, it may be necessary,
from an economic viewpoint or insufficient availability of direct flights, to
use flight connections via airports of transit of other Member States.
(3) The Council recommendation of 22 December 1995 on concerted action

and cooperation in carrying out removal measures(1) and the decision of
the Executive Committee of 21 April 1998 on cooperation between the Con-
tracting Parties in returning third-country nationals by air, (SCH/Com-ex
(98) 10) already address the need for cooperation between Member States
in the field of removal by air of third-country nationals.
(4) The sovereignty of the Member States, particularly with regard to the use
of direct force against third-country nationals resisting removal should
remain unaffected.
(5) The Convention of 14 September 1963 on Offences and Certain Other Acts
committed on board Aircraft (Tokyo Convention), particularly with regard
to the on-board powers of the pilot responsible and matters of liability
should remain unaffected.
872
(6) With regard to the briefing of airlines as to how to conduct unescorted and
escorted removals, reference is made to Annex 9 to the Convention of the
International Civil Aviation Organisation (ICAO) of 7 December 1944.
(7) Member States are to implement this Directive with due respect for human
rights and fundamental freedoms, in particular the Geneva Convention
relating to the status of refugees of 28 July 1951, as amended by the New
York Protocol of 31 January 1967 and the European Convention for the
Protection of Human Rights and Fundamental Freedoms. In accordance
with the applicable international obligations, transit by air should be nei-
ther requested nor granted if in the third country of destination or of tran-
sit the third-country national faces the threat of inhumane or humiliating
treatment, torture or the death penalty, or if his life or liberty would be at
risk by reason of his/her race, religion, nationality, membership of a par-
ticular social group or political conviction.
(8) The measures necessary for the implementation of this Directive should
be adopted in accordance with Council Decision 1999/468/EC of 28 June
1999 laying down the procedures for the exercise of implementing powers
conferred on the Commission.
the European Community, Denmark is not participating in the adoption
of this Directive, and is therefore not bound by it or subject to its applica-
tion. Given that this Directive builds upon the Schengen acquis under the
provisions of Title IV of part Three of the Treaty establishing the European
Community to the extent that it applies to third-country nationals who do
not fulfil or who no longer fulfil the conditions for a short stay applicable
within the territory of a Member State by virtue of the provisions of the
Schengen acquis, in accordance with Article 5 of the abovementioned Pro-
tocol, Denmark is to decide within a period of six months after the Council
has adopted this Directive, whether it will implement it in its national law
or not.
(10) As regards the Republic of Iceland and the Kingdom of Norway, this
Directive constitutes a development of the provisions of the Schengen
acquis within the meaning of the Agreement concluded on 18 May 1999 by
the Council of the European Union and the Republic of Iceland and the
Kingdom of Norway concerning the association of these two States with
the implementation, application and development of the Schengen acquis,
to the extent that it applies to third-country nationals who do not fulfil or
who no longer fulfil the conditions for a short stay applicable within the
873
territory of a Member State by virtue of the provisions of the Schengen

acquis, which fall within the area referred to in Article 1, point C, of Coun-
cil Decision 1999/437/EC of 17 May 1999 on certain arrangements for the
application of that Agreement.
United Kingdom and Ireland annexed to the Treaty on the European Union
and to the Treaty establishing the European Community, these Member
States are not taking part in the adoption of this Directive and therefore,
subject to Article 4 of that Protocol, are not bound by it or subject to its
application.
(12) This Directive constitutes an act building on the Schengen acquis or oth-
erwise related to it within the meaning of Article 3(1) of the 2003 Act of
Accession,
Article 1
The purpose of this Directive is to define measures on assistance between the

competent authorities at Member State airports of transit with regard to unes-
corted and escorted removals by air.
Article 2

(a) “third-country national” means any person who is not a national of a
Member State of the European Union, the Republic of Iceland or the
Kingdom of Norway;
(b) “requesting Member State” means the Member State which enforces a
removal order in respect of a third-country national and requests transit
via the airport of transit of another Member State;
(c) “requested Member State” or “transit Member State” means the Member
State via whose airport of transit the transit is to be effected;
(d) “escort” means all persons from the requesting Member State responsible
for accompanying the third-country national, including persons responsible
for medical care and interpreters;
(e) “transit by air” means the passage of the third-country national and, if nec-
essary, the escort through the area of the airport of the requested Member
State for the purposes of removal by air.
874
Article 3
1. A Member State wishing to return a third-country national by air shall

examine whether it is possible to use a direct flight to the country of desti-
nation.
2. If a Member State wishing to return a third-country national cannot for

reasonable practical circumstances use a direct flight to the country of des-
tination, it can request transit by air via another Member State. An applica-
tion for transit by air shall in principle not be made if the removal measure
requires a change of airport on the territory of the requested Member
State.
3. Without prejudice to the obligations of Article 8, the requested Member

State may refuse transit by air if:
(a) the third-country national under national legislation in the requested
Member State is charged with criminal offences or is wanted for the
carrying out of a sentence;
(b) transit through other States or admission by the country of destination
is not feasible;
(c) the removal measure requires a change of airport on the territory of
the requested Member State;
(d) the requested assistance is impossible at a particular moment for prac-
tical reasons, or
(e) the third-country national will be a threat to public policy, public secu-
rity, public health or to the international relations of the requested
Member State.
4. In the case of paragraph 3(d), the requested Member State shall as quickly
as possible inform the requesting Member State of a date as close as pos-
sible to the originally requested date on which transit by air may be assisted,
in so far as the other conditions are complied with.
5. Authorisations for transit by air which have already been issued may be
revoked by the requested Member State if circumstances within the mean-
ing of paragraph 3 subsequently come to light, justifying a refusal of the
transit.
6. The requested Member State shall inform the requesting Member State
forthwith of the refusal or revocation of a transit by air authorisation under
paragraph 3 or 5 or of any other reason why the transit is not possible, and
shall provide an explanation of the reasons.
875
Article 4
1. The request for escorted or unescorted transit by air and the associated assis-
tance measures under Article 5(1) shall be made in writing by the requesting
Member State. It shall reach the requested Member State as early as pos-
sible, and in any case no later than two days before the transit. This time
limit may be waived in particularly urgent and duly justified cases.
2. The requested Member State shall inform the requesting Member State
forthwith of its decision within two days. This time limit may be extended
in duly justified cases by a maximum of 48 hours. Transit by air shall not be
started without the approval of the requested Member State.
Where no reply is provided by the requested Member State within the dead-
line referred to in the first subparagraph, the transit operations may be
started by means of a notification by the requesting Member State.
Member States may provide on the basis of bilateral or multilateral agree-

ments or arrangements that the transit operations may be started by means
of a notification by the requesting Member State.
Member States shall notify the Commission regarding the agreements or
arrangements referred to in the third subparagraph. The Commission shall
regularly report to the Council on such agreements and arrangements.
3. For the purposes of dealing with the request under paragraph 1, the infor-
mation on the form to be used for requesting and authorising transit by air
in accordance with the Annex shall be forwarded to the requested Member
State.
The measures necessary for the update and the adjustment of the transit
request as set out in the Annex as well as the methods of its transmission
shall be taken in accordance with the procedure referred to in Article 9(2).
4. With respect to any request for transit, the requesting Member State shall
provide the requested Member State with the details as provided for in the
Annex.
5. The Member States shall each appoint a central authority to which requests
under paragraph 1 are to be sent.
The central authorities shall appoint contact points for all the relevant air-
ports of transit who can be contacted throughout the transit operations.
876
Article 5
1. The requesting Member State shall take appropriate arrangements to ensure

that the transit operation takes place in the shortest possible time.
The transit operation shall take place at a maximum within 24 hours.
2. The requested Member State, subject to mutual consultations with the

requesting Member State within available means and in compliance with
relevant international standards, shall provide all the assistance measures
necessary from landing and the opening of the aircraft doors until it is
ensured that the third-country national has left. However, mutual consulta-
tions are not required in the cases referred to in point (b).
This relates to the following assistance measures in particular:

(a) meeting the third-country national at the aircraft and escorting him/
her within the confines of the transit airport, in particular to his/her
connecting flight;
(b) providing emergency medical care to the third-country national and, if
necessary, his/her escort;
(c) providing sustenance for the third-country national and, if necessary,
his/her escort;
(d) receiving, keeping and forwarding travel documents, particularly in the
case of unescorted removals;
(e) in cases of unescorted transit, informing the requesting Member State
of the place and time of departure of the third-country national from
the territory of the Member State concerned;
(f) informing the requesting Member State if any serious incidents took
place during the transit of the third-country national.
3. The requested Member State may, in accordance with its national law:
(a) place and accommodate the third-country nationals in a secure facil-
ity;
(b) use legitimate means to prevent or end any attempt by the third-coun-
try national to resist the transit.
4. Without prejudice to Article 6(1), in cases where the completion of transit

operations cannot be ensured, despite the assistance provided for in accor-
dance with paragraphs 1 and 2, the requested Member State may, upon
request by and in consultation with the requesting Member State, take all
the necessary assistance measures to continue the transit operation.
877
In such cases, the time limit referred to in paragraph 1 may be extended by

a maximum of 48 hours.
5. The competent authorities of the requested Member State with whom

responsibility for the measure lies shall decide the nature and extent of the
assistance afforded under paragraphs 2, 3 and 4.
6. The costs of the services provided according to paragraph 2(b) and (c) shall
be borne by the requesting Member State.
The remaining costs shall also be borne by the requesting Member State to
the extent that they are actual and quantifiable.
Member States shall provide appropriate information with regard to the

criteria of quantification of the costs referred to in the second subpara-
graph.
Article 6
1. The requesting Member State shall undertake to readmit the third-country

national forthwith if:
(a) the transit by air authorisation was refused or revoked under Article
3(3) or (5);
(b) the third-country national entered the requested Member State with-
out authorisation during the transit;
(c) removal of the third-country national to another transit country or to
the country of destination, or boarding of the connecting flight, was
unsuccessful; or
(d) transit by air is not possible for another reason.
2. The requested Member State shall assist with the readmission of the third-
country national to the requesting Member State in the cases referred to in
paragraph 1. The requesting Member State shall bear the costs incurred in
returning the third-country national.
Article 7
1. When carrying out the transit operation, the powers of the escorts shall
be limited to self-defence. In addition, in the absence of law-enforcement
officers from the transit Member State or for the purpose of supporting the
law-enforcement officers, the escorts may use reasonable and proportionate
action in response to an immediate and serious risk to prevent the third-
878
country national from escaping, causing injury to himself/herself or to a

third party, or damage to property.
Under all circumstances escorts must comply with the legislation of the
requested Member State.
2. Escorts shall not carry weapons during transit by air and shall wear civilian
clothes. They shall provide means of appropriate identification, including
the transit authorisation delivered by the transit Member State, or where
applicable, the notification referred to in Article 4(2), at the request of the
requested Member State.
Article 8
This Directive shall be without prejudice to the obligations arising from the
Geneva Convention relating to the status of refugees of 28 July 1951, as amended
by the New York Protocol of 31 January 1967, from international conventions
on human rights and fundamental freedoms and from international conventions
on the extradition of persons.
Article 9
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision

1999/468/EC shall apply.
at one month.
3. The Committee shall adopt its Rules of Procedure.
Article 10
tive provisions necessary to comply with this Directive before 6 December
879
provisions of national law which they adopt in the field covered by this
Directive.
Article 11
The Decision of the Executive Committee of 21 April 1998 on cooperation

between the Contracting Parties in returning foreign nationals by air (SCH/
Com-ex (98) 10) shall be repealed.
Article 12
Article 13
880
Chapter 31 EC Readmission Agreements
1.1 Introduction
By 1 January 2006, the Commission had negotiated five readmission agreements
on behalf of the European Community, and had mandates from the Council to
negotiate a further six agreements (see section 2 below). The first negotiation to
conclude was between the Community and the Special Administrative Region
of Hong Kong. An agreed text of an agreement was initialled on 22 November
2001 and this was the first EC readmission agreement to enter into force, on 1
March 2004.1 A second EC readmission treaty, with Macao, entered into force
on 1 June 2004.2 A third treaty, with Sri Lanka, was initialled in May 2002,
signed in June 2004 and entered into force on 1 May 2005.3 Early in 2004, the
Commission proposed that the Council sign and conclude a fourth EC readmis-
sion agreement, negotiated with Albania.4 As of the start of 2006, this treaty
had been signed and concluded by the Council, but had not yet been concluded
by Albania. Finally, in October 2005, the Commission and Russia concluded
1 OJ 2004 L 17/23. For notification of entry into force, see OJ 2004 L 64/38. See
Commission proposal to Council for Decisions on signature and conclusion of the
agreement (SEC (2002) 412, 18 Apr. 2002; Council doc. 8518/02, 2 May 2002).
2 OJ 2004 L 143/97. For notification of entry into force, see OJ 2004 L 258/17. See
Commission proposal to Council for Decisions on signature and conclusion of the
agreement (COM (2003) 151, 31 Mar. 2003).
3 OJ 2005 L 124/41. For notification of entry into force, see OJ 2005 L 138/17. For
the proposal to sign and conclude the agreement, see SEC (2003) 255, 21 Mar. 2003
(Council doc. 7831/1/03, 9 Apr. 2003).
4 OJ 2005 L 124/21. For the proposal to sign and conclude the agreement, see COM
(2004) 92, 12 Feb. 2004.
negotiations on a readmission treaty, in parallel with agreement on a visa facili-

tation treaty; but neither treaty had been published by the start of 2006.
1.2 Contents
The EC/Hong Kong and EC/Macao agreements contain 21 Articles within eight
Sections, and there are six attached Annexes. In contrast, the EC/Sri Lanka
agreement has 22 Articles and seven Annexes, and the EC-Albania agreement
has 23 Articles and six Annexes. The reasons for the distinctions are that the EC-
Sri Lanka agreement contains an additional provision on the territorial scope
of the agreement, and an additional Annex comprising the EU’s standard travel
document. The EC-Albania agreement also contains an additional provision on
territorial scope, along with a further additional provision on “readmission in
error”.
Each agreement has an Article 1 setting out definitions. Here there are three
differences between the agreements. First, the agreement with Sri Lanka speci-
fies that a person denouncing or deprived of his or her nationality cannot be
considered “stateless” unless a State has promised them nationality. The Hong
Kong and Albania agreements do not contain this stipulation, while the Macao
agreement does not define “stateless” at all. Second, the Hong Kong agreement
specifies that permissions to stay as a visitor cannot be considered a “residence
authorisation”. The other agreements lack this definition. Third, the Hong Kong
agreement defines a “visa” as a document issued before arrival at the border; this
would exclude the exceptional issue of visas as the border as permitted under
EU rules,5 or the issue of visas at the Hong Kong borders if that is permitted
under Hong Kong law. Again, the other agreements lack this proviso.
Section 1 of each agreement, comprising Articles 2 and 3, sets out the
obligation of the non-EC party to accept respectively its own permanent resi-
dents (in the case of Hong Kong and Macao) or citizens (in the case of Sri
Lanka and Albania) and nationals of non-contracting parties (called “persons
of another jurisdiction” in the Hong Kong and Macao agreements and “third-
country nationals” in the Sri Lanka and Albania agreements). The obligation
to readmit a party’s own nationals or permanent residents ceases if they have
been naturalised (according to the Macao agreement) or promised naturalisa-
tion (in the Hong Kong agreement); the latter rule applies to Sri Lanka by virtue
of the definition of “stateless person” in that agreement and Albania by virtue
of an exemption from the obligation to readmit. Section 2 of each agreement,
comprising Articles 4 and 5, sets out reciprocal obligations for the European
Community (in the form of its Member States) to accept nationals of Member
States and of non-contracting parties. Of course, despite the form of reciproc-
ity, in practice the agreements will overwhelmingly be applied to expel persons
from the EC, not to it. However, one can imagine a scenario when migrants cross
5 See the Schengen rules and Regulation on this issue, discussed in Ch. 9.
882
Greece and then Albania, intending to transit to other Member States; if the
Albanian authorities intercept such persons, in principle they could be returned
to Greece under the readmission agreement, subject to its detailed provisions.
In the case of the agreement with Albania, there is a two-year delay after entry
into force of the agreement before it applies to readmission of nationals of non-
contracting parties.
There are important conditions relating to the core obligation to readmit
persons. The obligation only applies to persons who do not or no longer meet the
conditions for entry, residence or presence in the expelling (“requesting”) party.
There must be either proof or prima facie evidence as to the status of the person
concerned (see further below). As a corollary obligation, the party with readmis-
sion obligations must issue a travel document valid for six months. If the first
document expires and it has not been possible to transfer the person concerned
in that period for legal or factual reasons, Hong Kong, Macao and Albania
must issue a fresh travel document within 14 days and Sri Lanka must renew the
first travel document or issue a fresh document within 30 days (and “normally”
within 14 days). Moreover, if Albania or Hong Kong or Macao do not issue the
travel document within 15 days, if Macao does not reply to a Member State’s
request to issue one within 15 days, or if Sri Lanka does not acknowledge receipt
of a Member State’s request within 30 days, they shall each be deemed to have
accepted the use of the standard EC travel document for expulsion.6 There is no
means by which Hong Kong or Sri Lanka can impose reciprocal obligations on
the EC Member States to accept their travel documents, but Macao and Albania
can insist on use of their travel documents in this scenario.
The conditions for application of the readmission obligation as regards
nationals of non-contracting parties are that these persons hold a valid visa or
residence authorisation from the requested contracting party and entered the
territory of one party coming unlawfully directly from the other (in the case of
Hong Kong, Macao or Sri Lanka), or after staying on or transiting across the
territory (in the case of Albania). In the Sri Lanka agreement (but not the agree-
ments with Hong Kong or Macao) the concept of “coming directly” is more fully
explained as “an arrival by air or ship without having entered another country in
between”, and a declaration asserts that airside transit should not be considered
entry into another country for this purpose. Two exceptions from the readmis-
sion obligation appear in all agreements (where the person concerned has only
been in airside transit in the requested state, and where the expelling state has
issued the person concerned a visa or residence authorisation with longer valid-
ity). The Hong Kong agreement has a third exception not found in the other
agreements: the readmission obligation will not apply to non-visa nationals. In
6 On the standard travel document, see further s. 2 below. In the case of Sri Lanka
(but not the other agreements) the standard travel document is also annexed to the
agreement.
883
the agreement with Albania, the second exception does not apply if the Member
State’s visa or permit has been obtained by false or forged documents. There is
a specific provision governing the responsibility as between Member States in all
agreements, specifying which specific Member State is responsible if the other
contracting party wishes to return a person to the Community and multiple
Member States have issued visas and residence permits.
Section III of each agreement (Articles 6-11) sets out the rules on proce-
dures. According to Article 6(1), readmission can normally take place only on
the basis of a written application, but this can be waived under the conditions
set out in Article 6(2). Three agreements (all except the agreement with Albania)
only permit such a waiver if the person concerned is willing to return. Article
7 sets out which details need to be included in a readmission application. Here
there are subtle differences between the agreements with Albania, Hong Kong
and Macao on the one hand and Sri Lanka on the other. The latter agreement
only requires that the information listed in Article 7(1) concerning evidence and
personal particulars of the person concerned be submitted “to the extent pos-
sible” and is less definitive as regards the effect of supplying that information,
but it provides for more information to be transmitted. Articles 8 and 9 set out
rules relating to means of proof and prima facie evidence as set out in attached
Annexes, and here the specific means of proof and evidence differs somewhat
in the various agreements. Article 10 provides for time limits for sending and
replying to an application for readmission and Article 11 governs the transport
procedure, leaving much flexibility to the parties to arrange for methods of
transport.
Section IV of each agreement (Articles 12-13; Articles 13-14 in the Albania
agreement) concerns transit through each party’s territory on the way to another
destination – an obligation that will likely have more practical application in
the agreements with Hong Kong and Macao (as regards return to China), and
possibly Albania (as regards return to Kosovo). In each agreement there is an
obligation to permit transit subject to optional exceptions where there is a risk
of persecution of the person concerned or where that person could be subject to
criminal prosecution or sanctions.7 The Albanian agreement is the only one to
contain an express human rights exception, permitting refusal of transit if there
is a “real risk” of torture, et al, the death penalty or persecution on Geneva Con-
vention grounds in the State of destination. Next, Section V (Article 14; Article
15 in the Albania agreement) allocates costs to the requesting Member State and
Section VI (Articles 15 and 16; Articles 16 and 17 in the Albania agreement) set
certain limits on the application of the agreement. Article 15 of each agreement
(Article 16, Albania agreement) sets out detailed data protection principles and
requires the authorities in the EC to comply with the EC’s data protection direc-
7 These provisions can be compared with EU rules on transit for expulsion: see Ch.
30.
884
tive, but there is no obligation for the non-EC party to establish an independent
supervisory authority or to give the data subject rights to check what infor-
mation is being transmitted or any other remedy such as the right to demand
correction or erasure of the data. Article 16 (Article 17, Albania agreement)
provides that the agreement is “without prejudice to the rights, obligations and
responsibilities” of the parties arising from “International Law”; the Sri Lanka
agreement refers “in particular” to “any applicable International Convention or
agreement” which the contracting parties are parties to. There is no specific ref-
erence to human rights or refugee law, except in the Albania agreement, which
refers expressly to the ECHR, the Geneva Convention on Refugees and its Pro-
tocol, and extradition treaties.
The rules on implementation and application of each agreement are set out
in Section VII (Articles 17-19; Articles 18-20 of the Albania agreement). Article
17 provides for a readmission committee which can monitor the application of
the agreement, decide on implementing arrangements, exchange information on
implementing Protocols and recommend amendments to the agreement. In the
case of the Sri Lanka agreement, the power of this committee is broader, as it
can also amend the annexes and decide on implementing arrangements con-
cerning “an orderly management of return flows”. The Sri Lanka and Albania
agreements also provide expressly that the committee decisions are binding. In
either case, the EC is represented by the Commission. According to the final
or proposed Council decisions on conclusion of each agreement, the Commis-
sion will have the power to agree the rules of procedure of these committees on
behalf of the EC, but otherwise it will be up to the Council, acting by qualified
majority on a proposal from the Commission, to decide the EC’s position. Each
agreement also provides that Member States can draw up special implementing
protocols with the other side, but conversely that the agreement takes prece-
dence over any incompatible bilateral agreement between a Member State and
the other contracting party. All the treaties provide for denunciation, but there is
no provision for settling disputes that might arise between the parties.
The approved mandates for readmission treaties with Algeria, Turkey,
Albania and China are essentially identical to the basic provisions of the first
three treaties agreed by the EC, except that they contain a more detailed provi-
sion on respect for international treaties, referring in particular to the Geneva
Convention on refugees and its Protocol, international conventions on asylum
responsibility, the ECHR, the UN Convention against Torture, international
conventions on extradition and transit and multilateral international conven-
tions and agreements on the readmission of foreign nationals.8 It is interesting
that the final EC-Albania treaty made no reference to the Convention against
Torture.
885

2.1 “Maastricht-era” Measures
The European Community’s involvement in readmission issues began before the
Treaty of Amsterdam, when despite the lack of Community competence on the
issue at that time, it decided to link the subject to the conclusion of more general
agreements between third countries and the Community. To this end, the Coun-
cil reached agreement on a standard clause to be inserted into “mixed” agree-
ments (treaties which have to be ratified by the EC and the Member States) at
the JHA Council in November 1995.9 The Council’s goal was to encourage third
countries to sign such agreements with the Member States. To make this easier,
it adopted a Recommendation on a standard readmission agreement between a
Member State and a third country in 1994,10 and then in 1995 adopted a Recom-
mendation on a standard Protocol on means of proof to be attached to such
agreements.11 It also agreed in 1994 on a Recommendation on a standard travel
document to be used for expulsion proceedings.12 Towards the end of the “Maas-
tricht era”, the Council discussed a draft standard multilateral agreement which
could be concluded between all the Member States and a given third country,
although it did not agree on a text.13 Most Member States made frequent use of
the standard readmission agreement and over half used the standard protocols,
but experience with the standard travel document varied widely.14
Comparing the standard bilateral agreement from 1994 and the draft multi-
lateral agreement discussed in 1998 and 1999 to the first two Community agree-
ments, it is striking that the content has remained much the same over time.
However, in the 1994 Recommendation and the draft multilateral agreement,
there was express protection for human rights and refugee treaties (referring to
9 Council doc. 12509/95. See Press Releases of JHA Council, 23 Nov. 1995 (agree-
ment on the text) and Environment Council, 4 Apr. 1996 (formal adoption of the
text). The text is reproduced in the Annex to this Chapter.
10 OJ 1996 C 274/21. For analysis of this Recommendation, see Guild and Niessen,
The Developing Immigration and Asylum Policies of the European Union: Adopted
Conventions, Resolutions, Recommendations, Decisions and Conclusions (Kluwer,
1996), 405-411.
11 OJ 1996 C 274/25.
12 OJ 1996 C 274/20. For analysis of this Recommendation, see Guild and Niessen, n.
8 above, 385-391.
13 The drafts appear in Council docs. 10338/98, 13 July 1998; 10338/1/98, 21 Dec. 1998;
and 10338/2/98, 22 Apr. 1999. See also the Danish discussion paper (Council doc.
7669/99, 26 Apr. 1999) and the working party proceedings of 28 Apr. 1999 (Council
doc. 8124/99, 10 May 1999).
14 Council doc. 7668/1/99, 14 June 1999. For the initial experience of the Member
States in using the standard travel document, see Council doc. 10340/2/95, 30 Oct.
1995.
886
the ECHR, the Geneva Convention on the status of refugees and treaties on
asylum responsibility), rather than a vague protection for “international law”
and treaties generally. In the first draft of the multilateral agreement, there was
also more detailed express protection for persons subject to transit, permitting
transit to be cancelled on certain human rights grounds, but that protection was
dropped in later drafts.
The EU has taken a number of initiatives to promote the use and accep-
tance of its standard travel document and to encourage third states to issue
travel documents in turn. One measure was the decision to send a letter to all
third countries drawing the existence of the standard EU travel document to
their attention and asking them to recognise it.15 Later, the Council took a paral-
lel decision to encourage requested states to issue travel documents. In its Con-
clusions of December 2000, the Council noted that some states were more more
willing to issue such documents following direct contact with their national
authorities, bypassing their consulates in the expelling state.16 The Conclusions
therefore suggested that a Member State experiencing such difficulties should
contact its ambassador posted to the country concerned and suggest contacting
the local authorities, in cooperation with other EU ambassadors and the Com-
mission delegation to that country. The issue could in particular be referred to
the Ambassador of the Member State holding the Presidency of the Council
of the EU. In the event of continued problems, the Member State experienc-
ing problems can act in liaison with the other Member States and inform the
Council, so that the Council could make unspecified threats against the non-
cooperating state.
Subsequently, the February 2002 JHA Council agreed to send an annual
questionnaire to the Member States in order to collect detailed information
regarding difficulties in expelling persons to third countries. The questionnaire
includes questions on use of the EU travel document and measures taken or to
be taken against the other country, including potential “suspension of financial
and technical aid”.17
2.2 Implementing the Treaty of Amsterdam

With the entry into force of the Treaty of Amsterdam, it became arguable that
the Community had external competence to sign readmission treaties in its own
right. Although there is no express power for the Community to agree any exter-
nal treaties in Title IV of the EC Treaty, the Court of Justice has long held that
15 Council doc. 7665/99, 26 Apr. 1999, approved by the General Affairs Council on 31
May 1999.
16 See Council doc. 13995/00, 29 Nov. 2000, approved by the General Affairs Council
on 4 Dec. 2000.
17 Council doc. 6071/02, 7 Feb. 2002. See earlier Council docs. 13661/01, 26 Nov. 2001;
5180/02, 10 Jan. 2002; and 5180/1/02, 18 Jan. 2002.
887
the Community can enjoy implied external relations power in the absence of
express powers in the Treaty.18 A crucial question is whether the EC’s external
competence on a given issue is exclusive (meaning that the Member States are
precluded from signing their own external treaties in that area, unless the EC
permits them to do so) or shared with the Member States.
The procedure for negotiation and conclusion of treaties between the Com-
munity and states or bodies is set out in Article 300 EC. First, the Commission
asks the Council for a mandate to negotiate, which the Council then decides
upon. Negotiations are handled by the Commission, assisted by a “watchdog”
committee appointed by the Council. If the negotiations are successful, the
Commission and the other party’s negotiator then initial the text, and the Com-
mission suggests that the Council sign and then conclude the agreement. Con-
clusion of the treaty usually cannot take place without prior consultation of the
EP.19 As for the Council, the voting rule applied throughout the procedure is the
same as the voting rule it must use for the same subject internally. So until 1 Jan-
uary 2005, the Council had to act unanimously as regards readmission treaties
because the relevant internal voting rule was unanimity.20 But from 1 January
2005, the internal Council voting rule regarding irregular immigration measures
moved to a qualified majority, as provided for by the Hague Programme;21 since
that point, the Council has also voted by a qualified majority as regards read-
mission treaties. Also, the Court of Justice has jurisdiction to rule on the inter-
pretation of agreements concluded by the Community, and on the validity of
the decision to conclude (or terminate) such treaties.
The Commission initially took the view that conclusion of readmission
agreements was the exclusive competence of the Community following the entry
into force of the Treaty of Amsterdam. Member States had a negative reaction
to this assertion and the German Presidency of the Council duly drew up con-
clusions rejecting this view in May 1999.22 However, despite this view as to the
lack of exclusive competence, the Tampere European Council soon endorsed
the Community’s involvement in readmission from two perspectives, asserting
that: “[t]he Amsterdam Treaty conferred powers on the Community in the field
18 Case 22/70 Commission v Council (ERTA) [1971] ECR 263.

19 There are exceptions where the EP has no consultation right or has the right of
assent before conclusion of an international agreement by the EC, but those excep-
tions are not material here.
20 Art. 63(3)(b) EC, the legal base for adopting measures concerning illegal migra-
tion.
21 See Annex 6 and discussion in Ch. 3.
22 See Press Release of JHA Council, 27/28 May 1999. For Member States’ reaction,
see outcome of proceedings of the migration working party on 12 Jan. 1999 (Coun-
cil doc. 5677/99, 4 Feb. 1999). See also Council docs. 8265/99, 18 May 1999 and
13757/99, 7 Dec. 1999.
888
of readmission” and inviting the Council “to conclude readmission agreements

or to include standard clauses in other agreements between the European Com-
munity and relevant third countries or groups of countries.”23
The latter approach was obviously a continuation of the prior policy, in
which the EC had inserted readmission clauses into broader treaties, but the
Council decided to adapt the relevant clauses to take account of the new legal
position. A Decision to this end was then adopted by the Council in December
1999.24
The next question was which states to “target” for agreements with the
Community and the text that the Commission would use as a negotiator. This
discussion replaced the discussions held prior to the entry into force of the
Treaty of Amsterdam on a draft agreement between all the Member States and
particular third countries.25 After difficult discussions,26 the Council approved in
September 2000 a mandate for the Commission to negotiate readmission trea-
ties with Russia, Pakistan, Sri Lanka and Morocco. Subsequently, in conjunc-
tion with the decision to drop visa requirements for persons with legal status
granted by Hong Kong or Macao, the Council decided that these entities should
in return agree readmission agreements with the Community “as soon as pos-
sible”.27 Negotiating mandates for these two treaties were formally granted to
the Commission by the JHA Council on 28 May 2001. Subsequently the Com-
mission sought a mandate to negotiate with Ukraine, which the JHA Council
granted on 13 June 2002.
In the meantime, the Council, having recently adopted an Action Plan on
illegal immigration,28 agreed criteria for selecting states for further readmission
23 See Annex 4.
24 Press Release of JHA Council, 2 Dec. 1999. The text is reproduced in the Annex
to this Chapter. For detailed background, see Council docs. 6098/99, 17 Feb. 1999;
7292/99, 11 May 1999; 11052/99, 23 Sep. 1999; 12134/99, 21 Oct. 1999; and 13409/99,
25 Nov. 1999.
25 See outcomes of proceedings of the migration working party on 12 Jan. 1999, 15
Sep. 1999, 27 Jan. 2000 and 29 Feb. 2000/1 Mar. 2000 (respectively n. 20 above and
Council docs. 11042/99, 23 Sep. 1999; 5773/00, 31 Jan. 2000; and 7505/00, 10 Apr.
2000). See also the letter on the inclusion of a readmission clause in Member States’
bilateral agreements with China on “Approved Destination Status” for Chinese
nationals (Council doc. 13206/01, 25 Oct. 2001).
26 See the outcome of proceedings of the SCIFA meeting on 16 Nov. 1999 (Council
doc. 13888/99, 7 Dec. 1999) and outcomes of proceedings of the migration work-
ing party on 15 Sep. 1999, 27 Jan. 2000 and 29 Feb. 2000/1 Mar. 2000 (respectively
Council docs. 11042/99, 23 Sep. 1999; 5773/00, 31 Jan. 2000; and 7505/00, 10 Apr.
2000)). See earlier Council doc. 10795/99, 9 Sep. 1999.
27 See JHA Council Conclusions, 30 Nov/1 Dec 2000.
28 See OJ 2002 C 142.
889
agreements and named the next four “targets”, Algeria, Albania, China and
Turkey.29 The Commission duly submitted negotiating mandates for these four
states, and the November 2002 JHA Council granted them.30
An agreement within the Council to negotiate a readmission treaty does
not, of course, mean that the other country will necessarily agree. In fact, a
Commission report of October 2002 admitted that, more than two years after
the Council gave the Commission a mandate, Morocco, Pakistan and Russia
had not even agreed to begin negotiations.31 Since then, following an agreement
over the status of Kaliningrad after Lithuania’s accession to the EU at the EU/
Russia summit in November 2002, Russia agreed to begin talks, and the conclu-
sion of negotiations with Ukraine is correspondingly more likely. The agree-
ment with Russia became linked with negotiation of a separate agreement to
facilitate issue of visas by both the EU Member States and Russia; as noted
above, the two treaties were agreed together in October 2005. It subsequently
became clear that the EC was also willing to negotiate a visa facilitation agree-
ment with Ukraine in parallel to the readmission agreement, and the Council
granted the Commission a formal negotiating mandate for the visa treaty in
November 2005. Negotiations on the readmission treaty with Morocco are also
apparently well advanced.
One related issue sparked by the prospect of Community readmission trea-
ties was the idea of “internal readmission” rules to govern readmissions between
Member States, governing both the issue of the Member State responsible when
an external agreement was applied to send a person back to the EU, and the
issue of the Member State responsible when a person had travelled through
several Member States. The Finnish Council Presidency launched a discussion
on this issue in late 1999 and proposed a Regulation to govern the issue. This
proposal was loosely based on the rules in the Dublin Convention, although it
contained less detail and the relationship between the proposed Regulation and
the Dublin Convention was unclear. However, due to the misgivings of several
Member States and the prospect that the planned EC readmission agreements
would address this issue (as they ultimately did), discussions were terminated
by the Portuguese Presidency.32 The Finnish proposal later lapsed after the end
29 Council doc. 7990/02, 15 Apr. 2002, approved by the JHA Council, 25/26 Apr.
2002.
30 Press release of JHA Council, 28/29 Nov. 2002.
31 Council doc. 12625/02, 10 Oct. 2002.
32 See discussion papers (Council docs. 10504/99, 29 July 1999 and 11672/99 and 11
Oct. 1999); outcomes of proceedings of the migration working party meetings on
15 Sep. 1999 (n. 23 above), 11 Oct. 1999, 29 Nov. 1999 and 27 Jan. 2000 (Council
docs. 12294/99, 26 Oct. 1999; 5599/00, 24 Jan. 2000; and 5774/00, 31 Jan. 2000). The
official text transmitted to the EP is in OJ 1999 C 353/6.
890
of the transition period for adoption of EU immigration and asylum law on 1

May 2004.
The negotiation of EC readmission treaties should now be seen in the con-
text of the conclusions of the Seville European Council, which sought to place
pressure on third countries to cooperate with the EU’s immigration and asylum
objectives.33 These principles were implemented by the General Affairs Council
in November 2002. It decided that the EU should intensify relations with Alba-
nia, China, Yugoslavia, Morocco, Russia, Tunisia, Ukraine and Turkey. These
States were expected to sign broad-ranging readmission agreements with the EU
as well as engage in other forms of dialogue relating to migration issues. The
punishment for those countries unwilling to engage with the EU along these
lines remains to be seen, but the June 2003 Thessaloniki European Council
established the principle of an annual report assessing third states’ willingness
to cooperate with the EU.34 The first such report appeared in summer 2005.35
In the meantime, the General Affairs (Foreign Ministers) Council adopted
conclusions on readmission treaties in November 2004, following an unpub-
lished report by the Commission on the difficulties of negotiating them. These
conclusions update the criteria for negotiating readmission agreements, to
include readmission agreements and the offer of non-EU countries to conclude
the agreements. They also call upon the Commission to consider a strategy for
negotiating such agreements, by reference to “necessary measures” in other
Community areas. This is a reference to the need to offer many non-EU coun-
tries some incentive to conclude readmission agreements with the Community.
The Council also called upon Member States to assist the Commission in its
readmission negotiations with non-EU countries, and asked the Commission
to assess the readmission issue in its annual report on the external aspects of
migration policy. Finally, the Hague programme calls upon the Commission to
appoint promptly a Special Representative for a common readmission policy.
3 Legal Analysis
Does the Community have exclusive external competence over readmission agree-
ments? It would certainly have such competence if it fully harmonised all related
aspects of internal law.36 Although the extent of the harmonisation required to
33 See Annex 6 and comments in Peers, “EU Immigration and Asylum Law after
Seville”, 16 IANL Journal (2002) 176.
34 See Annex 7 and also Regulation 491/2004 on cooperation with third states on
asylum and migration (OJ 2004 L 80/1). For analysis of this issue, see Peers, “Irregu-
lar Immigration and EU External Relations” in Bogusz, Cholewinski, Cygan, and
Szyszczak, eds., Irregular Migration and Human Rights (Martinus Nijhoff, 2004).
35 COM (2005) 352, 28 July 2005.
36 See Opinion 2/91 [1993] ECR I-1061, as clarified by Opinion 1/94 [1994] ECR I-
5273.
891
give rise to this outcome is unclear, it would likely entail full harmonisation of
asylum procedures and substantive refugee law along with similar harmonisa-
tion as regards subsidiary protection, along with harmonisation of most areas
of law related to irregular immigration. Certainly the EC had not achieved such
harmonisation as of the spring of 1999 and indeed had not achieved it by Sep-
tember 2005 either. In fact, it could not achieve it even if it adopted all outstand-
ing legislative proposals, for the simple reason that many provisions of Article
63 EC as they presently stand preclude full harmonisation of national law, at
least as regards asylum. It is also possible for the EC to gain exclusive external
competence on a matter if internal law expressly grants such negotiating power
to the EC, but that has not happened as regards readmission treaties.
But there is an alternative means of gaining exclusive external competence,
which the Commission was relying on in its argument for exclusivity in this case.
This consists of cases where it is impossible to exercise the internal competence
without first (or simultaneously) exercising the external competence. Was the
German Council Presidency right to reject this assertion? From the Court’s case
law, it seems clear that it was. The case law states that for the principle to apply,
it must be technically impossible to exercise the internal competence without the
external competence.37 Obviously the Commission believed that the EC could
not adopt rules relating to expulsion outside the EU unless third countries were
legally obliged to take the relevant persons back. Yet the experience of countries
like the UK which traditionally eschewed formal readmission treaties shows that
it is technically possible to expel people without such formal arrangements.
Since the EC lacks exclusive competence, is it wrong for the EC to adopt
such treaties alone, without the involvement of the Member States, particularly
given that the treaties take precedence over any treaties concluded by the Member
States? On this point, it should be recalled that even where the EC lacks exclu-
sive competence, it is not precluded from acting externally altogether. Rather
the EC is able to act externally wherever it has internal powers;38 it is not limited
to exercising those powers only in cases where it has exclusive competence. This
tends to be forgotten because Member States are usually very unwilling to agree
to the EC exercising its non-exclusive powers. It is striking that they are quite
anxious for the EC to exercise these powers in the field of readmission, presum-
ably in the belief that the Member States can better achieve their objetives by
acting through the EC, particularly in light of the EC’s powers over trade, finan-
cial aid and association agreements which can be used to encourage third States
to accept conclusion of a readmission agreement.
Finally, it should not be forgotten that because the Court of Justice has
the jurisdiction to interpret readmission agreements and rule on the validity of
the Council’s decision to conclude them, it is therefore competent to rule on the
37 See the interpretation of Opinion 1/76 [1977] ECR 741 in Opinion 1/94, ibid.
38 See Commission v Council, n. 18 above.
892
interpretation of the “saving clauses” in three of the four agreements to deter-

mine whether they extend to international human rights treaties (in the case of
the treaty with Albania, this is, of course, not necessary). Logically, given that
such treaties are sources of international law like any other and in light of the
place of human rights as general principles of EC law, such treaties must fall
within the scope of the “savings clauses”. In an individual case, it should there-
fore be arguable that the “savings clause” operates so as to preclude operation
of the agreement. Furthermore, it could be arguable in the event of continued
human rights problems that the Council is under a legal obligation to suspend
the agreement. Since the EC courts have found in several cases involving indi-
viduals that they have jurisdiction over wrongful conclusion and termination of
agreements and arguably also over wrongful behaviour by the EC as a member
of an international organisation, they logically have jurisdiction over wrongful
failure by the Council to terminate a treaty.39
4 Comments
A significant number of those persons expelled by means of a readmission
agreement are likely to be rejected asylum-seekers or rejected applicants for
other forms of international protection. These could include those who might in
principle have an arguable claim to protection, but whose claim was not exam-
ined as to the substance because they have allegedly passed through “safe third
countries”. Another significant proportion will likely have entered or stayed ille-
gally, but without making a protection claim. Possibly there will also be persons
whose refugee or other protection status has ended for one reason or another,
as well as those whose legal migration status has ended. Specialised readmission
rules are a central element in any scheme to allocate asylum responsibility, such
as the Dublin Convention and “Dublin II” rules,40 and in any system permit-
ting freedom to travel or reside in different Member States.41 For those who
arguably have a protection need, the link between readmission agreements and
human rights law is essential. Conversely, they are attractive to most Member
39 For individual cases, see Cases 241/87 Maclaine Watson [1990] ECR I-1797, T-
572/93 Odigtria [1995] ECR II-2025 and C-162/96 Racke [1998] ECR I-3655. On the
priority of human rights and other general principles over treaties concluded by the
Community, see Cases C-268/94 Portugal v Council [1996] ECR I-6177, particularly
the Opinion of the Advocate-General, and C-122/95 Germany v Council [1998] ECR
I-973. Such priority is also assumed in Case C-347/03 ERSA [2005] ECR I-3785;
and jus cogens human rights principles even take priority over Security Council
resolutions: Cases T-306/01 Yusuf and T-315/01Kadi, judgments of 21 Sept. 2005,
not yet reported. Internal EC rules on termination of treaties are expressly set out
in Art. 300 EC.
40 See Ch. 10.
41 On the latter point, see Ch. 20 (long-term residents).
893
States because no decision to expel a person can be effective unless another State
agrees to take that person onto its territory, and most Member States believe
that a formal treaty obligation will assist in accomplishing this objective. In
particular, such treaties can be used to extend readmission obligations beyond
their traditional application to the requested State’s own nationals in order to
include the nationals of other States who passed through the requested state, to
permit the application of “safe third country” rules. They can also be used to set
out rules on means of “proof ” and “evidence” to increase the prospect that the
requested State will accept people back, and to include rules on transit through
the requested State (not strictly speaking a readmission issue at all).
What are the human rights problems with readmission agreements in prac-
tice? During the Global Consultations on International Protection, the UNHCR
approach to readmission agreements emerged clearly.42 There was a particular
concern about the connection between such treaties and the “safe third coun-
try” principle, with an insistence that persons should not be removed to suppos-
edly safe countries without certain procedural safeguards, including a guarantee
that their claim would be examined effectively in that country. More broadly, it
was stated that “the sending and re-admitting states share the responsibility for
ensuring that the combined application of the notion of ‘safe third country’ and
the re-admission does not lead to refoulement by way of chain deportation”.
Do the EC readmission agreements discharge this responsibility? It seems
clear that they do not. There are no provisions specifically dealing with those
with potential protection claims in the requested State (or in another State) and
no direct reference to non-refoulement principles, although it can be hoped (as
suggested above) that in an appropriate case the Court of Justice would infer
such principles into the application of the agreement. But it would obvious be
preferable to have detailed rules in the readmission agreement rather than rely
on a hypothetical judgments that can inevitably only address ad hoc situations.
Moreover, in the absence of effective procedural protection within the EU for
“safe third country” cases,43 none of the principles suggested by the UNHCR
can be met.
Two other aspects of readmission agreements also give rise to concern.
First, this is apparently the only area of EC external relations where the EC
draws up negotiating mandates without first ensuring through informal contacts
that the other party wishes to negotiate an agreement. In fact in several cases the
other side has clearly refused to engage in detailed negotiations with the EC on
a readmission agreement. This is undoubtedly one of the factors that led to the
Seville conclusions on potential punishment of third States that refused to coop-
erate with the EC’s migration policies. The prospect of readmission agreements
42 See the Conclusions of the Regional meeting in Budapest, 6-7 June 2001 (EC/
GC/01/14, 15 June 2001).
43 On the relevant provisions in the agreed asylum procedures Directive, see Ch. 14.
894
is thus inevitably tied up with the application of the Seville conclusions, which
raises a number of legal and political difficulties.44
The final point is the assumption in the readmission agreements that per-
sons can be left in limbo indefinitely awaiting the application of the readmission
agreement where there is a delay preventing its application. In the absence of
any rules in the readmission agreement definitively terminating the prospect of
readmission after a certain period, or of any internal EC rules governing the
status of persons in such limbo, there is a risk of a potentially indefinite period
of uncertainty without any guaranteed access to an income or (for children)
education.
44 See Peers, n. 33 above.
895
ANNEX
Clauses to be inserted in future mixed agreements- Council conclusions (1995

text)
“THE COUNCIL AND THE REPRESENTATIVES OF THE MEMBER

STATES, MEETING WITHIN THE COUNCIL,
AGREE that with regard to future mixed agreements the insertion of the follow-
ing clauses shall be considered on a casebycase basis when adopting the guide-
lines for their negotiation:
(a) Recital in the Preamble
Recognizing that cooperation for the prevention and control of illegal immigra-
tion constitutes one of the primary objectives of this Agreement.
(b) Articles of the Agreement
The relevant articles may be, where appropriate, preceded by a Title “N” called
“Readmission. Cooperation for the prevention and control of illegal immigra-
tion”.
ARTICLE X
The Member States of the European Union and State X agree to cooperate in
order to prevent and control illegal immigration. To this end:
– State X agrees to readmit any of its nationals illegally present on the ter-
ritory of a Member State, upon request by the latter and without further
formalities;
– and each Member State agrees to readmit any of its nationals, as defined
for Community purposes, illegally present on the territory of State X, upon
request by the latter and without further formalities.
The Member States and State X will also provide their nationals with appropri-
ate identity documents for such purposes.
ARTICLE Y
State X agrees to conclude bilateral agreements with Member States which so

request, regulating specific obligations for readmission including an obligation
for the readmission of nationals of other countries and stateless persons who
896
have arrived on the territory of any such Member State from State X or who
have arrived on the territory of State X from any such Member State.
ARTICLE Z
The Cooperation Council shall examine what other joint efforts can be made to
prevent and control illegal immigration.”
Council decision (1999 text)
Readmission clauses in Community agreements or mixed agreements
“The Council of the European Union has decided that the standard clauses set
out below should be included in all future Community agreements and in agree-
ments between the Community, its Member States, and third countries
ARTICLE A
The European Community andState X agree to cooperate in order to prevent

and control illegal immigration. To this end:
– State X agrees to readmit any of its nationals illegally present on the terri-
tory of a Member State of the European Union, upon request by the latter
and without further formalities;
– and each Member State of the European Union agrees to readmit any of its
nationals, as defined for Community purposes, illegally present on the terri-
tory of State X, upon request by the latter and without further formalities.
The Member States of the European Union and State X will also provide their
nationals with appropriate identity documents for such purposes.
ARTICLE B
The Parties agree to conclude upon request an agreement between State X and
the European Community regulating the specific obligations for State X and
the Member States of the European Community for readmission, including an
obligation for the readmission of nationals of other countries and stateless per-
sons.
ARTICLE C
Pending the conclusion of the agreement referred to in Article B, State X agrees

to conclude, upon request of a Member State, bilateral agreements with indi-
vidual Member States of the European Community regulating the specific
897
obligations for readmission between State X and the Member State concerned,
including an obligation for the readmission of nationals of other countries and
stateless persons.
ARTICLE D
The Cooperation Council shall examine what other joint efforts can be made to
prevent and control illegal immigration.”
898
Chapter 32 Control of Irregular Migration and EU
Law and Policy:
A Human Rights Deficit
Ryszard Cholewinski*
1 Introduction
[T]he life of entrants and residents without regular migration status is usually
a rightless existence without the basic protections of criminal and civil law and
with no legal avenues by which to assert an entitlement to just and humane
treatment. Irregular migrants in Europe typically find themselves in a position
where they reside and work in a European country, but are without the basic
protections associated with regular residence. They are … the ‘civic dead’. …
[M]igrants with irregular status are frequently prey – and always vulnerable –
to exploitation and deception by: employers (who often refuse to pay them for
work done); traffickers and irregular migration networkers (who often exploit
* Centre for European Law and Integration, Faculty of Law, University of Leices-
ter, United Kingdom. This article develops arguments advanced in my paper “The
Legal Situation of Irregular Migrants: is their dignity guaranteed in the receiving
countries?”, Council of Europe, Conference on “Irregular Migration and Dignity
of Migrants: Co-operation in the Mediterranean Region”: Proceedings, Athens, 3-4
October 2001, Doc. MG-FL (2002) 7 (see the Council of Europe’s Social Cohesion
website at <http://www.coe.int/T/E/Social_Cohesion/Migration/Activities/Proceed-
ings_Athens%20-%20Final%20ver.pdf>) 54, and the article “The EU Acquis on
Irregular Migration: Reinforcing Security at the Expense of Rights” (2000) 2 EJML
361. The chapter uses the term “irregular” rather than “illegal” migration to avoid
the connotation of illegality and criminality often association with the latter. I am
grateful to Nicola Rogers and Steve Peers for their comments on earlier drafts and
to Steve Peers for bringing to my attention many of the most recent EU measures
and documents discussed in this article. I remain solely responsible for any errors,
factual or otherwise. This chapter does not take account of the proposed Reg. on
SIS II (COM (2005) 236, 31 May 2005) or the proposed Dir. on expulsion standards
(COM (2005) 391, 1 Sept. 2005), as they have not yet been agreed or adopted.
Ryszard Cholewinski
or deceive them); and even members of their own ethnic communities (who
often take advantage of their enfeebled market position in the area of housing
or medical care). All immigrants are, of course, vulnerable in the process of
adjusting to a new society. For people with irregular status, however, this state
of vulnerability is permanent and dictated by the need to avoid the attention
of the authorities if they are to remain in the country.1
The human vulnerability of irregular migrants is self-evident and must not

be overlooked or ignored in the adoption of legal norms to control irregular
migration. In its landmark Communication on immigration and asylum policies
in 1994, the European Commission argued that restrictive policies to control
irregular migration can only be justified within the context of a framework of
protecting the human rights of irregular migrants:
Although a generally firm and effective action against illegal immigration is

essential ... , it should not be forgotten that the persons concerned can be sub-
ject to exploitation and be in an extremely vulnerable position. It should there-
fore be taken into account that they are entitled to a fair procedure ensuring
full protection of the human rights and fundamental freedoms as provided by
international law. To this effect, defining minimum standards will be a neces-
sary step which will equally help ensure the credibility of restrictive policies
concerning illegal immigration.2
This sensible and humanitarian approach recognising that the protection of

human rights must play a significant role in the adoption of common European
Union (EU) policies in respect of the complex phenomenon of irregular migra-
tion has been neglected in the Commission’s most comprehensive statement on
the subject. In its Communication on a common policy on illegal immigration,
published in November 2001,3 only one small part is wholly devoted to human
rights under the promising heading, “Compliance with International Obliga-
tions and Human Rights”.4 According to this section, however, the rights that
would appear to matter are those that are accorded to irregular migrants as
refugees, namely protection from refoulement under Article 33 of the Geneva
1 Gibney, “Outside the Protection of the Law: The Situation of Irregular Migrants in
Europe: A synthesis report commissioned by the Jesuit Refugee Service-Europe”,
Working Paper No. 6 (Refugee Studies Centre, University of Oxford, 2000) at 21.
2 Commission, Communication to the Council and the European Parliament on immi-
gration and asylum policies (COM (94) 23, 23 Feb. 1994), 29, para.109. Emphasis
added.
3 Commission Communication to the Council and the European Parliament on a
common policy on illegal immigration (COM (2001) 672, 15 Nov. 2001).
4 Ibid. at 7.
900
Chapter 32 Control of Irregular Migration and EU Law and Policy
Convention relating to the Status of Refugees (Geneva Convention) and Article

3 of the European Convention on Human Rights (ECHR) as well as Article 31
of the Geneva Convention, which prohibits states from imposing penalties on
refugees for their irregular entry or presence if they have come directly from a
territory where their life or freedom was threatened. Rather than proposing that
more legal channels should be opened to ensure that asylum-seekers can enter
the EU without being branded as irregular migrants, the Communication tacitly
accepts that current EU policies leave asylum-seekers no alternative and pro-
poses instead that it is better if they do not move at all and that Member States
use their discretion to allow more asylum applications to be made from abroad
or processed in regions of origin.5 The discussion above is an example of the
overall tone of the Commission’s Communication, which conveniently forgets
that irregular migrants possess rights not only as refugees, but more generally
as human beings. The Communication is silent on the question of the rights
of irregular migrants while in the host country preferring instead to focus on
ever more ingenious ways of preventing their entry in the first place, resorting
increasingly to technological innovations, and punishing those responsible for
facilitating their entry and presence in the EU, particularly traffickers, smugglers
and employers of illegal migrant labour. Undoubtedly, the focus on restrictive
measures has been reinforced in the context of the EU’s concern to respond to
terrorist threats in the light of the attacks in New York on 11 September 2001.
Moreover, at its summit in Laeken, Belgium, on the 14-15 December 2001, the
European Council called for the development of an Action Plan based on the
Commission’s Communication and the Justice and Home Affairs (JHA) Coun-
cil has since adopted a Comprehensive Plan to Combat Illegal Immigration and
the Trafficking of Human Beings in the European Union, which closely follows
the Communication in content and which is presently being implemented.6 The
European Council Conclusions in Seville on 21-22 June 2002 identified the adop-
tion of measures to control irregular migration as a priority.7 More recently, EU
activity in respect of irregular migration has been stepped up further by the
rapid development of a EU return policy on irregular residents, which is dis-
cussed in the context of its human rights implications in Sections 3.5 and 4.
This Chapter focuses on the important issues that are conspicuously absent
from the Commission’s Communication and the Council’s Comprehensive Plan
5 Ibid. at 8.
6 See respectively Presidency Conclusions: Laeken European Council, 14-15 December
2001, Bulletin EU 12-2001, points I.2-I.29, Conclusion 40, first indent and Proposal
for a Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human
Brings in the European Union [hereinafter Council Plan to Combat Illegal Immigra-
tion], OJ 2002 C 142/23.
7 Presidency Conclusions: Seville European Council, 21-22 June 2002, Bulletin EU 6-
2002, points I2-I33, Conclusion 30.
901
Ryszard Cholewinski
to Combat Illegal Immigration. It begins by outlining in broad terms the gen-

eral human rights framework within which action against irregular migration
should be located. The chapter then considers the importance of the developing
EU law and policy on irregular migration, both for EU Member States, candi-
date states as well as countries further afield, and illustrates, with reference to
some of the measures analysed in this volume, how the EU’s recent obsessive
focus on restrictive policies in this area is not only detrimental for developing a
more rights-oriented approach, but also seriously undermines the protection of
human rights generally. Finally, some positive measures are proposed that would
restore, or at least alleviate, the human rights deficit in EU law and policy aimed
at controlling irregular migration. Although the Commission’s paper and the
Council’s Plan also refer to a number of such measures, in parts these references
are rather oblique, whereas in others they are generally timid and thus insuffi-
cient to redress the human rights imbalance.
2 Human Rights of Irregular Migrants

That irregular migrants possess rights should not of course be in dispute. After
all, general international human rights law recognises the basic principle that
the rights of all human beings should be guaranteed irrespective of citizenship
and legal status.8 This principle applies not just to traditional civil and political
rights, but also economic and social rights, which are of particular importance
to irregular migrants in host countries. While international human rights law
recognises that states can determine who enters their territory, subject to the
fundamental principle of non-refoulement in the case of refugees or important
human rights guarantees such as the protection of family life, it is also strongly
arguable that states would not be permitted to deprive irregular migrants of
basic subsistence in the event that their departure or removal from the country
was impossible for legal or practical reasons.
This overall inclusive approach to international human rights protection
should not be obscured by the more specialist instruments adopted to protect
migrant workers, including those who are in an irregular situation. Two instru-
ments are particularly important here. The first is the United Nations Interna-
tional Convention on the Protection of the Rights of All Migrant Workers and
8 E.g. see the non-discrimination provision, Art. 2(1), in the International Covenant
on Civil and Political Rights (ICCPR), ratified by all the EU Member States and
candidate countries: “Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject to its jurisdic-
tion the rights recognised in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status”. Emphasis added. See also Art. 1 of
the ECHR: “The High Contracting Parties shall secure to everyone within their juris-
diction the rights and freedoms defined in Section I of this Convention”. Emphasis
added.
902
Members of Their Families, which was adopted by the UN General Assem-

bly in December 1990.9 This Convention divides the group to be protected into
two basic categories: those lawfully resident and employed in the host country
and those who are working without authorisation. It guarantees a set of rights
to both kinds of migrants, although the protections are more comprehensive
with regard to regular migrant workers. The Convention guarantees to irregular
migrants the whole panoply of human rights, including in particular the follow-
ing economic and social rights: rights to equal conditions of work and terms
of employment; trade union rights; social security rights; rights to emergency
healthcare; rights of migrant children to primary education; and a number of
detailed safeguards against expulsion. However, this ambitious, though com-
plex, document only received the 20 ratifications necessary for its entry into
force in spring 2003, entailing its entry into force from 1 July 2003. Ratifying
states include only two European countries, Turkey and Bosnia and Herzegov-
ina, and largely consist of migrant sending countries.10 The second important
international instrument, which also extends protection to irregular migrants,
is International Labour Organisation (ILO) Convention No. 143 concerning
Migrations in Abusive Conditions and the Promotion of Equality of Opportu-
nity and Treatment of Migrant Workers, which was adopted by the International
Labour Conference in 1975. Article 1 of this Convention imposes an obligation
on States Parties to “respect the basic human rights of all migrant workers”.11
While this Convention has not been widely accepted either, it is in force and is
also applicable in three EU Member States and one European Economic Area
(EEA) country: Italy, Portugal, Sweden and Norway.12
The poor ratification record for these two specialist international instru-
ments concerning migrant workers indicates that states, particularly those in
Europe, are clearly unwilling to enter into commitments protecting the dignity
9 UN GA Res. 45/158 of 18 December 1990.

10 The following 34 countries had ratified the UN Convention as of 27 Oct. 2005:
Algeria, Azerbaijan, Belize, Bolivia, Bosnia and Herzegovina, Burkina Faso, Cape
Verde, Chile, Colombia, Ecuador, Egypt, El Salvador, Ghana, Guatemala, Guinea,
Honduras, Kyrgyzstan, Lesotho, Libya, Mali, Mexico, Morocco, Nicaragua, Peru,
Philippines, Senegal, Seychelles, Sri Lanka, Syria, Tajikistan, Timor-Leste, Turkey,
Uganda, Uruguay. The Convention has also been signed by 15 states: Argentina,
Bangladesh, Benin, Cambodia, Comoros, Gabon, Guinea-Bissau, Guyana, Indo-
nesia, Liberia, Paraguay, Sao Tome and Principe, Serbia and Montenegro, Sierra
Leone and Togo. On the Convention, see generally http://www.december18.net.
11 Emphasis added.
12 In addition, as of 28 Dec. 2005, the following countries have ratified ILO Conven-
tion No. 143 (European countries listed first): Bosnia and Herzegovina, Cyprus,
Italy, Norway, Portugal, San Marino, Serbia and Montenegro, Slovenia, Sweden,
The former Yugoslav Republic of Macedonia, Benin, Burkina Faso, Cameroon,
Guinea, Kenya, Togo, Uganda, and Venezuela.
903
Ryszard Cholewinski
and basic human rights of irregular migrants. As one commentator argues, in

describing the silence of governments on the injustices of irregular migration:
“European states ritually condemn irregular migration and, from time to time,
enact measures to combat it. But they have been extremely reluctant to examine
closely the conditions faced by status-less migrants within their territory”.13 It
must be emphasised, however, that the commitments in these specialist instru-
ments merely build upon and clarify those to which states are already bound under
general international human rights treaty law. Clearly, though, the reluctance of
governments to accept explicitly the specific commitments protecting irregular
migrants can only raise serious doubts regarding their readiness to protect the
fundamental human rights of this vulnerable group. Moreover, it is doubtful
whether the sole reason for refusing to accept these standards lies in their exten-
sion to protect the rights of irregular migrants. The record of governments in
agreeing to any sort of binding legal commitments in respect of migrants, with
the notable exception of EU migrants, is generally poor. For example, the Coun-
cil of Europe Convention on the Legal Status of Migrant Workers, which only
applies on a reciprocal basis to protect lawfully admitted migrants from other
Contracting Parties, has received a mere eight ratifications.14
Unfortunately, the Commission’s Communication on illegal immigration
and the Council’s Plan make no reference at all to the two instruments discussed
above, even though three Member States have accepted ILO Convention No.
143. This position should be contrasted sharply to the standpoint adopted in the
1994 Communication, in which the Commission recommended that Member
States sign and ratify the UN Convention on Migrant Workers.15 It can only be
concluded, ignorance aside, that the Commission would appear to be of the view
that such positive suggestions are no longer in line with the overriding emphasis
in most Member States on controlling and adopting restrictive approaches in
respect of irregular migration. This apparent change of heart is unfortunate
because it seems to imply that the instruments discussed are no longer relevant
in the present climate. However, they remain relevant, and arguably more so than
ever. Contrary perhaps to official perception, these instruments are not utopian
in character. They seek to prevent irregular migration rather than to encour-
age it and indeed contain numerous measures on combating this phenomenon.
13 Gibney, n. 1 above, at 2.
14 European Convention on the Legal Status of Migrant Workers, Strasbourg, 24
November 1977, European Treaty Series No. 93. As of 28 Dec. 2005, the Conven-
tion has been ratified by France, Italy, the Netherlands, Norway, Portugal, Spain,
Sweden and Turkey. It has also been signed by Belgium, Germany, Greece, Luxem-
bourg, Moldova, and Ukraine. Part II of ILO Convention No. 143 on Promotion
of Equality of Opportunity and Treatment of Migrant Workers, n. 12 above, is also
only applicable to lawfully resident migrants.
15 Communication on immigration and asylum policies, n. 2 above, at 29-30, para. 110.
904
However, their importance is reflected in the principle that controlling irregular

migration is best pursued within a framework of human rights protection, the
position which the Commission itself advanced in its 1994 Communication.16
A holistic approach addressing irregular migration is therefore required, which
should encompass positive measures, including those safeguarding the funda-
mental rights of irregular migrants. The adoption of a common EU policy on
irregular migration, which focuses overly on prevention, cannot succeed in the
long term and, as illustrated below, further diminishes human rights protection,
not only for those persons who migrate without authorisation but also citizens
of EU Member States and other states, particularly those countries in accession
negotiations with the EU. As discussed towards the end of the chapter in Section
4, there are signs that the Commission intends to revisit the UN Convention on
Migrant Workers and its significance for the developing common EU migration
law and policy.
3 EU Law and Policy on Irregular Migration

The EU is now clearly at the vanguard of European policy-making in the field of
irregular migration for a number of reasons. First, since the transfer of asylum
and immigration matters to the Community pillar by virtue of the Amsterdam
Treaty amendments, the EU is developing a common asylum and immigration
policy within the framework of Title IV of Part Three of the EC Treaty on visas,
asylum and immigration and other policies related to free movement of persons.
Title IV TEC mandates the Council to adopt measures on immigration policy
in the area of, inter alia, “illegal immigration and illegal residence, including
repatriation of illegal residents” (Article 63(3)(b) TEC). At first glance, there-
16 The tension between controlling irregular migration and the protection of the rights
of irregular migrants is well articulated by Gibney, n. 1 above, at 23, who under-
scores the importance of the latter: “[T]he goal of reducing irregular migration is
potentially in conflict with the goal of improving the conditions faced by irregular
residents. Extensive rights to health care, education, employment protection, politi-
cal participation, or residence might serve to attract more people to life as a migrant
with irregular status. European states are thus unlikely to recognise wide-ranging
entitlements for irregular migrants lest they encourage more migrants to violate
immigration laws. … This conflict should not be exaggerated. It seems plausible
that granting well-defined, limited rights, such as a right of access to emergency
health care, would not have much of a magnet effect on irregular migration. Fur-
thermore, current practices hardly insulate officials from the accusation of hypoc-
risy. Is it not dubious for governments to proclaim the importance of human rights
abroad and yet ignore egregiously exploited irregular migrants at home? Nonethe-
less, it is important that policy recommendations balance, on the one hand, the need
to treat people with irregular migration status in a humane and rights-respecting
manner with, on the other hand, the legitimate aspiration of states to avoid attract-
ing increasing numbers of people to enter and reside without permission”.
905
Ryszard Cholewinski
fore, positive measures safeguarding the rights of irregular migrants are not pre-
cluded in principle. Further measures relating to irregular migration can also be
adopted under the restructured third pillar on police and judicial cooperation
in criminal matters (Title VI of the Treaty on European Union), particularly in
the context of combating trafficking in persons. Secondly, many of the measures
adopted will also now be legally binding in contrast to the body of soft law
agreed to as a result of the previous intergovernmental cooperation under the
former third pillar. This also means that they will be ultimately subject to the
jurisdiction of the Court of Justice. Although the Court’s jurisdiction under
Title IV TEC is more limited than under other parts of the Community pillar,17
the importance of the Court’s role in this area should not be underestimated
given that fundamental human rights as guaranteed by the ECHR are consid-
ered as constituting general principles of Community law18 and given the solemn
proclamation in December 2000 of the EU Charter of Fundamental Rights,19
which, though non-binding, is regarded as an important statement of the rights
protected within the EU.20 Nonetheless, as noted below, the JHA Council is
increasingly resorting to the adoption of “soft law” instruments in the field of
irregular migration, which give Member States greater scope for undertaking
more immediate operational activities. Thirdly, the measures adopted will have
a far broader territorial application than in those twenty-three Member States
participating in Title IV TEC. Although Ireland and the United Kingdom have
opted out of Title IV, these countries can also opt in to certain measures, and
both have already done so in respect of a number of measures relating to asylum
and irregular migration. Moreover, EU candidate states are also required to
accept these measures as part of the EU’s JHA acquis. Indeed, as described
below, some candidate countries have enthusiastically embraced the principles
advanced by these measures to the extent of going far beyond the acquis. EU
preventive policies on irregular migration are also being “exported” to other
European countries participating in the Stabilisation and Association Process in
17 For an analysis of this jurisdiction, see Guild and Peers, “Deference or Defiance?
The Court of Justice’s Jurisdiction over Immigration and Asylum” in Guild and
Harlow, eds., Implementing Amsterdam: Immigration and Asylum Rights in EC Law
(Hart, 2001) 267 at 277 et seq.
18 Article 6(2) TEU.
19 OJ 2000 C 364/1.
20 For the Charter’s potential application to matters of asylum and immigration, see
Peers, “Immigration, Asylum and the European Union Charter of Fundamental
Rights” (2001) 3 EJML 141.
906
the Balkans,21 and further afield, particularly in the context of the adoption of
EU readmission agreements with third countries.22
EU law and policy on irregular migration adopted to date under Titles IV
TEC and VI TEU has focused unduly on preventive measures with the result
that the prospect of developing a more rights-based approach has diminished
considerably. Moreover, some of these measures arguably undermine rights still
further and the Commission’s Communication on a common policy on illegal
immigration and the subsequent Plan of the Council appear to indicate that
more restrictive proposals are in the pipeline. These questions are discussed
below with reference to a number of the recently adopted measures and in the
context of five problematic issues: criminalisation of irregular migration; cross
or mutual recognition of national decisions; exporting control policies on irreg-
ular migration; the situation of irregular migrants as victims of human rights
abuses; and the rapidly developing EU return policy on irregular residents.
3.1 Criminalisation of Irregular Migration

Criminality and asylum and immigration were already controversially connected
in EU consciousness in the former third pillar where cooperation regarding
immigration, including combating unauthorised migration, was found alongside
preventing and combating terrorism, unlawful drug trafficking and other serious
forms of international crime, as matters of intergovernmental cooperation in
the JHA fields.23 Although these matters have since been divided between the
Community and revised third pillars, in November 2002 the Council adopted
two measures aimed at punishing those who facilitate irregular migration. These
measures approximate the legal provisions in Member States by defining the
criminal offence in question, including the permissible exceptions, and establish-
21 See Council and Commission Decision 2004/239/EC of 23 February 2004 concern-

ing the conclusion of the Stabilisation and Association Agreement between the
European Communities and their Member States, of the one part, and the former
Yugoslav Republic of Macedonia, of the other part, OJ 2004 L 84/1, Art. 76 (Pre-
vention and control of illegal immigration; readmission) and the Stabilisation and
Association Agreement between the European Communities and their Member
States, of the one part, and Croatia (OJ 2005 L 26), Art. 77 (Prevention and control
of illegal immigration; readmission).
22 EU readmission agreements have entered into force with Hong Kong on 1 March
2004 (OJ 2004 L 64/38), Macao on 1 June 2004 and Sri Lanka on 1 May 2005. A
readmission agreement has also been signed with Albania and agreed with Russia,
and the Commission has a mandate to negotiate readmission agreements with Alge-
ria, China, Morocco, Pakistan, Turkey and Ukraine. See further Ch. 31.
23 Former Title VI of the Treaty on European Union (Arts. K.1(3)(c) and K.1(9)
respectively).
907
Ryszard Cholewinski
ing minimum rules for penalties, the liability of legal persons and jurisdiction.24
The Council has also adopted a Framework Decision on combating traffick-
ing in human beings, which is discussed in Section 3.4 below, and a Directive
building on the Schengen acquis in respect of carriers’ liability.25 The Schengen
acquis (the Convention Implementing the Schengen Agreement of June 1985
(SIA) and implementing measures) is now part of Community law as a result of
its integration by the Treaty of Amsterdam into TEC and TEU structures. Mea-
sures imposing financial sanctions on transport carriers do not necessarily entail
criminal liability, but they can be regarded as being tantamount to criminal pen-
alties because they arguably serve similar goals, namely those of retribution and
deterrence,26 even though they are not subject to the procedural and substantive
safeguards inherent in criminal proceedings.
The Commission’s Communication on illegal immigration in the section
under the heading “Aliens Law and Criminal Law”, is clearly supportive of the
above measures identifying them, rather crudely, as part of “a ‘classical approach’
to fight illegal immigration”. Moreover, the Commission envisages the adoption
of further measures, particularly in the area of combating illegal employment in
order to supplement the soft law that already exists in this area:27
It would seem clear that in order to address the problem of illegal immigration
comprehensively, the illegal employment of illegal residents should be put back
on the political agenda. The demand for illegal workers is especially caused by
their employers. Sanctions against illegal employment should be harmonised
24 See respectively Council Directive 2002/90/EC of 28 November 2002 defining the

facilitation of unauthorised entry, transit and residence, OJ 2002 L 328/17, and
Council Framework Decision 2002/946/JHA of 28 November 2002 on the strength-
ening of the penal framework to prevent the facilitation of unauthorised entry, tran-
sit and residence, OJ 2002 L 328/1. These measures develop the Schengen acquis and
replace Art. 27 of the Schengen Implementing Agreement (SIA). Under Art. 27(1)
SIA, “[t]he Contracting Parties undertake to impose appropriate penalties on any
person who, for financial gain, assists or tries to assist an alien to enter or reside in
the territory of one of the Contracting Parties in breach of that Contracting Party’s
laws on the entry and residence of aliens”. See further Ch. 28.
25 Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of
Article 26 of the Convention Implementing the Schengen Agreement of 14 June
1985, OJ 2001 L 187/45. See further Ch. 26.
26 For a sceptical view on whether carrier sanctions actually achieve these goals, see
Cruz, Shifting Responsibility: Carriers Liability in the Member States of the Euro-
pean Union and North America (Stoke-on-Trent: Trentham Books, 1995) at 81.
27 See in particular Council Recommendation of 27 September 1996 on combating the
illegal employment of third-country nationals, OJ 1996 C 304/1.
908
for the elimination of all competitive advantages, which is a very basic prin-
ciple of Community law. This includes minimum criminal penalties.28
In this regard, the Communication refers to the Commission’s aim to table a

proposal for a Directive on the employment of illegal residents from third coun-
tries.29 Moreover, the imposition of criminal penalties should be buttressed by
further financial sanctions against employers.30 Such measures are not uncom-
mon at national level and indeed are supported by the international instruments
discussed earlier. For example, Article 6(1) of ILO Convention No. 143 calls for
the imposition of administrative, civil and penal sanctions in respect of those
who employ irregular migrants, organise their movements and knowingly assist
in such movements.31
What appears to be frequently overlooked, and indeed finds no mention
in the Commission’s 2001 Communication or the Council’s Plan, is that EU
law on irregular migration clearly supports the imposition of criminal penal-
ties on migrants themselves for their unauthorised entry or stay in the country
concerned. Article 3(2) SIA obliges participating states to “introduce penalties
for the unauthorised crossing of external borders”. This particular part of the
Schengen acquis has been allocated to Article 62(2)(a) EC concerning the “stan-
dards and procedures to be followed by Member States in carrying out checks
on persons at [external] borders” with the proviso that “the nature, modalities
and severity of the penalty provisions required … is a matter for the Member
28 Communication on a common policy on illegal immigration, n. 3 above, at 23. See also

Council Plan to Combat Illegal Immigration, n. 6 above, points 92-93.
29 Ibid. But the proposed Directive has not yet been advanced, although the plan for
implementation of the Hague Programme (OJ 2005 C 198) refers to a possible mea-
sure in this area (point 2.6(f)).
30 The Communication, n. 3 above, at 23-24, goes to considerable lengths in suggesting
how these might be assessed and the uses to which the funds collected might be put:
“On a subsidiary basis employers of illegal workers could also be charged in full for
the return costs of returning their illegal workers, including all costs of their stay
until return, which are, at present, usually covered by social welfare or other public
means. Financial sanctions for employers of illegal workers could be introduced in
order to decrease the financial attractiveness of illegal employment. These financial
sanctions could be assessed according to the estimated savings made from the illegal
employment. The resources from the financial sanctions could be used for voluntary
return programmes, thus creating a perspective for returned migrants in their coun-
tries of origin. These financial measures would significantly diminish the interest in
promoting illegal immigration. Member States should ensure that this business does
not pay”.
31 See also UN Convention on Migrant Workers, n. 9 above, Arts. 68(1)(b) and (c) and
68(2).
909
Ryszard Cholewinski
States”.32 Although it was originally understood that this provision would not
require harmonisation of sanctions,33 the same approach was taken in respect
of Article 26 SIA on carriers’ liability,34 which has since been supplemented by
the Directive referred to above. Indeed, Member States already have such pen-
alties in place, which may range from a few days imprisonment or a fine to up
to two years imprisonment.35 Moreover, as discussed in Section 3.3 below, pen-
alties have also been introduced in EU candidate countries in respect of their
own citizens who migrate to the EU without authorisation. Criminalisation of
irregular migration becomes especially problematic at this juncture. While pro-
portionate penalties aimed at those who facilitate and employ irregular migrant
labour might be viewed as legitimate, punishing irregular migrants, who cannot
be equated to criminals, particularly if their only “offence” is to seek a better
life for themselves, is very questionable from the standpoint of human rights.
Indeed, the ILO Committee of Experts on the Application of ILO Conventions
and Recommendations has cast doubt on the validity of imposing such crimi-
nal penalties with reference to Article 6(1) of Convention No. 143. In its 1999
General Survey on the ILO instruments concerning migrant workers, the Com-
mittee observed that this provision as well as the whole of Part I of this Con-
vention aimed at preventing irregular migration are “primarily targeted at the
demand for clandestine labour rather than supply” and that sanctions against
migrant workers in an irregular situation are “contrary to the spirit of the [ILO]
instruments”.36 The European Parliament has also underlined that “[s]ince
32 Council Decision 1999/436/EC of 20 May 1999, OJ 1999 L 176/17, Annex A, 19.

Art. 3(2) SIA is reiterated essentially in the Commission’s Proposal for a Council
Regulation establishing a Community Code on the rules governing the movement of
persons across borders (COM (2004) 391, 26 May 2004) at 46 (draft Art. 4(3)), which,
on adoption, would replace the relevant parts of the Schengen acquis. However, a
reference has been added to international protection obligations to ensure in par-
ticular that refugees, coming directly from a country where their life or freedom is
threatened, and who enter or are present in the territory of Member State without
authorisation, are not subject to criminal penalties in accordance with Article 31 of
the Geneva Convention (ibid. at 17).
33 Wagner, “The Integration of Schengen into the Framework of the European Union”
(1998/2) Legal Issues of European Integration 1 at 20.
34 Council Decision 1999/436/EC, n. 32 above, Annex A, 20. See also Wagner, ibid., at
21.
35 See B. Ghosh, Huddled Masses and Uncertain Shores: Insights into Irregular Migra-
tion (The Hague: Martinus Nijhoff, 1998) at 99 (Table 4.1), referring to measures in
place as of 1995-96 in Belgium, Denmark, France, Germany, Italy, and the Nether-
lands.
36 International Labour Conference, 87th Session, Geneva, June 1999, Report III (1B),
Migrant Workers: General Survey on the Reports on the Migration for Employment
Convention (Revised) (No. 97), and Recommendation (Revised) (No. 86), 1949,
910
immigration is a complex phenomenon involving political, historical, social and

economic factors, illegal immigrants cannot be considered to be criminals in
the same way as persons guilty of serious offences involving organised crime”.37
Moreover, the application of criminal sanctions on irregular migrants hardly
makes sense from an economic standpoint. Indeed, a number of countries, such
as the United Kingdom, essentially recognise that it is more cost-effective to
remove or deport irregular migrants rather than to pursue a prosecution under
the immigration legislation.38 But the very fact that laws criminalising irregular
migrants themselves exist and are also supported by the EU legal regime hardly
serves as a good base for developing a normative framework which also protects
the rights of irregular migrants.
3.2 Cross or Mutual Recognition of National Decisions

Cross or mutual recognition of national decisions constitutes the basis of EU
action in respect of irregular migrants. It means in effect the recognition and
enforcement of the decisions of the authorities of one Member State by another
notwithstanding that they are made on the basis of different procedural and
substantive rules. This approach is very different from that of harmonisation
where Member States aim to approximate their laws by adopting common
rules.39 While such an approach may be workable and acceptable in other areas
of Community law, such as the mutual recognition of administrative decisions
concerning the admission of goods into the common market or judicial decisions
in civil cases, it is problematic in the field of asylum and immigration where a dif-
ference in approach, however slight, may well lead to the denial of fundamental
human rights,40 such as the right to non-refoulement. The exemplar of such an
approach is the system operated under the Dublin Convention determining the
State responsible for examining an asylum application, which was replaced by a
and the Migrant Workers (Supplementary Provisions) Convention (No. 143), and
Recommendation (No. 151), 1975 (Geneva: International Labour Office, 1999) (see
also <http://www.ilo.org/public/english/standards/relm/ilc/ilc87/r3-1b.htm>), para.
338.
37 European Parliament Resolution of 30 March 2000 on asylum-seekers and migrants
– action plans for countries of origin or transit, OJ 2000 C 378/75, point 22.
38 See Immigration and Nationality Directorate (IND) Instructions, Ch. 13, Section
2 (Administrative Removal under Section 10 of the 1999 Act), para. 2.1. These
Instructions can be accessed at <http://www.ind.homeoffice.gov.uk/ind/en/home/
laws___policy/policy_instructions/table_of_contents.html>?
39 Cf. Groenendijk, “The Directive on Mutual Recognition of Expulsion Decisions:
Symbolic or Unbalanced Politics?” in P. De Bruycker, ed., The Emergence of a Euro-
pean Immigration Policy (Bruylant, 2003) 447.
40 Cf. ibid. at 460-461.
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Ryszard Cholewinski
Council Regulation early in 2003.41 In agreeing to return an asylum applicant,

whose claim has been rejected or who did not lodge a claim, to the Member
State responsible, the authorities of the sending State are effectively recognising
the actual or prospective determination of the asylum claim by the receiving
state, even though the latter may apply quite a different understanding of the
definition of refugee under the Geneva Convention with all the adverse conse-
quences such a decision may hold for the individual concerned. Indeed, such a
divergence was brought to light most strikingly in the judgment of the House of
Lords in Adan and Aitseguer,42 which precluded the United Kingdom authorities
from sending back two asylum-seekers fearing persecution by non-state agents
to Germany and France respectively because this conception of persecution was
perceived more narrowly in those countries than in the United Kingdom.
With regard to the application of the cross or mutual recognition of deci-
sions in respect of irregular migrants, two examples are pertinent. Under EU
rules on the crossing of the external border, “a failure to comply with national
regulations on the entry or residence of aliens” (Article 96(3) SIA) can trigger
repressive action by Member State authorities in that the person concerned may
be reported in the Schengen Information System (SIS), a European database of
undesirable persons and objects.43 A serious consequence of such a report is that
participating Member States are then under a strict obligation to refuse future
entry to the person concerned in respect of the whole of the Schengen territory,
although it remains still possible to admit him or her to the territory of a single
state on humanitarian grounds, on grounds of national interest or because of
international obligations (Article 5(2) SIA). The principal mischief of these
rules is that reports are made on the basis of national conceptions of what is an
infringement of national immigration rules and not on a Community-wide con-
ception. As a result, “a failure to comply with national regulations on the entry
or residence of aliens” may result in the reporting of irregular migrants in the
SIS by some States but not by others. Such an approach is clearly unsatisfactory
41 See respectively Convention determining the State responsible for examining appli-
cations for asylum lodged in one of the Member States of the European Communi-
ties, 15 June 1990, OJ 1997 C 254/1 and Reg. 343/2003 (OJ 2003 L 50/1). See further
Ch. 10.
42 R v. Secretary of State, ex parte Adan; R v. Secretary of State, ex parte Aitseguer
[2001] All E.R. 593. The Council has now adopted a common EU approach to the
concept of persecution by non-state agents, which conforms with the broader posi-
tion taken in the United Kingdom, in the Directive on minimum standards for the
qualification and status of third country nationals and stateless persons as refugees
or as persons who otherwise need international protection (Directive 2004/83, OJ
2004 L 304/12, Art. 6(c)). See further Ch. 13.
43 For a comprehensive study of the operation of this system, see JUSTICE, The
Schengen Information System: A human rights audit (London: JUSTICE, 2000).
912
given the adverse consequences for the affected individual and has profound
implications for the operation of the non-discrimination principle since persons
in analogous situations are likely to be treated differently for SIS reporting pur-
poses depending on the Member State in which they find themselves. This con-
cern has since been confirmed in practice by judicial decisions at the national
level, particularly in France where SIS reports made by German authorities
were challenged before the courts by two third-country nationals (a Moroccan
and Romanian) who were refused visas to come to France on the basis of such
reports. In both cases, the Conseil d’Etat quashed the refusal decisions because
neither litigant was provided with sufficient information to challenge the SIS
entry.44 It emerged that the German entries in the SIS were made because the
individuals concerned had previously applied for asylum in Germany and their
claims had been rejected, which in most participating Member States would not
be a valid reason for a report in the SIS.
A similar approach, based on the cross or mutual recognition of national
decisions is being adopted in the context of expulsion of third-country nation-
als, including those who have entered a Member State without authorisation or
reside there unlawfully. In May 2001, the Council adopted Directive 2001/40/EC
on the mutual recognition of decisions on the expulsion of third-country nation-
als,45 a measure originally based on the initiative of the French Government,
enabling EU Member States to recognise and enforce certain expulsion decisions
made by the authorities of another Member State. According to Article 3(1) of
the Directive, such recognition may take place in cases where the expulsion deci-
sion is based on a “serious and present threat to public order or to national secu-
rity and safety” in two specified cases46 or the “failure to comply with national
44 See the cases of Hamssaoui (No. 198344) and Forabosco (No. 190384), discussed
by Guild, “Adjudicating Schengen: National Judicial Control in France” (1999) 1
EJML 419.
45 Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of deci-
sions on the expulsion of third country nationals, OJ 2001 L 149/34. The Direc-
tive should have been implemented by Member States by 2 Dec. 2002 (Art. 8(1)),
although in June 2003, the Commission reported that “a majority of Member States
have failed so far to communicate to the Commission any measures incorporat-
ing this Directive into national law”. Commission, Communication to the European
Parliament and the Council in view of the European Council of Thessaloniki on the
development of a common policy on illegal immigration, smuggling and trafficking of
human beings, external borders and the return of illegal residents (COM (2003) 323, 3
June 2003) at 9. See further Ch. 25.
46 These are “conviction of a third country national by the issuing Member State for an
offence punishable by a penalty involving deprivation of liberty of at least one year”
and “the existence of serious grounds for believing that a third country national has
committed serious criminal offences or the existence of solid evidence of his inten-
tion to commit such offences within the territory of a Member State”. In the former
913
Ryszard Cholewinski
rules on the entry or residence of aliens”. With regard to the latter situation, the
Directive provides no guidance as to what these national rules should contain
at a minimum. Although EU Member States are under an obligation to apply
the Directive with “due respect for human rights and fundamental freedoms”
(Article 3(2)), the final text is weaker than an earlier draft version of the Direc-
tive, which provided that expulsion decisions and enforcement measures must
comply with the ECHR and other applicable international instruments.47 The
extension of cross or mutual recognition to other types of national decisions
and action in respect of the return of irregular migrants is supported by the
rapidly developing EU return policy on irregular residents, which is discussed
in Section 3.5 below. Indeed, in this context, the Council has adopted a Council
Directive on assistance in cases of transit for the purposes of removal by air,
which, subject to certain conditions, would place the pertinent authorities of
requested Member States under an obligation to assist the transit of third-coun-
try nationals who are being removed by the requesting Member State.48
In its Communication on illegal immigration, the Commission laments that
Member States are not properly enforcing the common rules that already exist:
It does not make any sense to introduce new rules or to harmonise rules at
EU level, if present regulations are not enforced with sufficient resources and,
most importantly, the necessary will. Common efforts are condemned to fail,
if Member States’ services and practices do not follow the rules adopted in
common, i.e. relating to visa issuance and external border controls … Only the
practical implementation and efficient enforcement of existing rules as well as of
future common measures will ensure the credibility of the rule of law in the area
of freedom, security and justice as foreseen in the Treaty of Amsterdam.49
Despite these misgivings, the Commission has pressed ahead with the develop-
ment of a European Visa Identification System (VIS), prompted by the Conclu-
sions of the JHA Council at its extraordinary meeting on 20 September 2001 in
response to the terrorist attacks on the United States.50 The initiative was given
instance, the third-country national need not have actually been imprisoned for this
period and, in the latter instance, there is no requirement that the person concerned
must have been convicted of an offence.
47 Peers, “Key Legislative Developments on Migration in the European Union” (2002)
4 EJML 85 at 118.
48 Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of tran-
sit for the purposes of removal by air, OJ 2003 L 321/26. See further Ch. 30.
49 Communication on a common policy on illegal immigration, n. 3 above, at 10. Empha-
sis added.
50 See Conclusions adopted by the Council (Justice and Home Affairs) on the fight
against terrorism, Bulletin EU 9-2001, point 1.4.6, para. 26, in which the JHA Coun-
914
further political impetus by the Presidency Conclusions adopted at the Laeken

European Council summit on 14-15 December 2001 and by the JHA Council
Plan to Combat Illegal Immigration.51 The Council has now formally decided
to establish the VIS, the content and operation of which will be determined by
a Regulation on the VIS, which the Commission proposed in December 2004.52
However, the purpose and structure of VIS were earlier outlined in Conclusions
adopted by the JHA Council in February 2004 and in earlier guidelines.53 The
VIS is to be developed in concert with the second generation Schengen Infor-
mation System (SIS II)54 (necessary for the application of the SIS to the new
Member States). The VIS aims to record the personal data of all Schengen visa
applicants to the EU, and, in its second stage, is likely to include their biometric
data. In addition, it is proposed that the VIS also records supporting documents,
which would therefore include information on EU citizens and lawfully resi-
dent third-country nationals issuing invitations to third-country national rela-
tives and others travelling to the EU. With regard to the prevention of irregular
migration, the purpose of the VIS is to
– facilitate checks that the carrier and the holder of the visa are the same
person, at external border checkpoints or at immigration or police check-
points;
– contribute to the prevention of “visa shopping”; [and]
cil “invites the Commission to submit proposals for establishing a network for infor-
mation exchanges concerning … visas issued”.
51 See respectively Presidency Conclusions: Laeken European Council, n. 6 above, where
the European Council requested “the Council and the Member States to take steps
to set up a common visa identification system” (Conclusion 42), and Council Plan
to Combat Illegal Immigration, n. 6 above, points 34-40.
52 See respectively Council Decision 2004/512/EC of 8 June 2004 establishing the
Visa Information System (VIS) (OJ 2004 L 213/5) and proposed Regulation (COM
(2004) 835, 28 Dec. 2004).
53 See respectively Conclusions on the development of the Visa Information System
(VIS), (Council Doc. 6534/04, 20 Feb. 2004) and Guidelines for the introduction of
a “common system for an exchange of visa data” (Council doc. 7309/3/02, 7 May
2002).
54 Conclusions on the development of VIS, n. 54 above, Annex to the Annex, point 6.
For the measures on SIS II, see Council Regulation 2424/2001/EC of 6 December
2001 on the development of the second generation Schengen Information System
(SIS II), OJ 2001 L 328/4; Council Decision 2001/886/JHA of 6 December 2001 on
the development of the second generation Schengen Information System (SIS II),
OJ 2001 L 328/1.
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Ryszard Cholewinski
– assist in the identification and documentation of undocumented illegals

and simplify the administrative procedures for returning citizens of third
countries.55
However, the establishment of the VIS is particularly problematic because it will

extend to visa refusals as well as issued visas. As recognised by the Commission
in its Communication on a common policy on illegal immigration, the common
rules on visa issuance, which are found in the Common Consular Instructions,
are hardly being applied uniformly, a position confirmed by a study on the EU
rules on borders and visas in the light of European and international anti-dis-
crimination norms.56 Therefore, in the absence of further progress in harmonis-
ing visa-issuing policy, the extension of the VIS, constructed on similar lines as
the SIS, to visa refusals would formalise these uneven Member State practices
and would effectively constitute their mutual or cross recognition. More impor-
tantly, if adherence to the fundamental principle of the rule of law, as the Com-
mission rightly accepts, requires uniform application of the common EU rules
(which must also be equitable rules and human rights compliant), there is little
prospect of this principle applying under a system of mutual or cross recogni-
tion of national rules, where, by definition, the application of such rules cannot
possibly result in the equal treatment of persons in like situations. While EU law
precludes such an outcome in respect of the entry of EU citizens and their family
members under the freedom of movement regime, it appears to readily accept it
in respect of most third-country nationals, and particularly those who have an
irregular status in the Member State concerned. It is rather disconcerting, there-
fore, that the JHA Council Conclusions (and the Commission’s proposal for a
Regulation) confirm that the database should not only contain details of visas
issued but also data concerning visas requested, visas formally refused, and visas
annulled, revoked and extended.57
55 Conclusions on the development of VIS, n. 54 above, Annex to the Annex, points

1(c), (d) and (f). With regard to the third aim, the term “illegals” is the actual term
used in the Council Conclusions.
56 See Cholewinski, Borders and Discrimination in the European Union (London/Brus-
sels: ILPA/MPG, 2002).
57 See Conclusions on the Development of VIS, n. 54 above, Annex to the Annex,
point 3(b). However, the Conclusions also state that “standard grounds for refus-
ing, cancelling, withdrawing and extending visas” should also be processed in the
VIS, which should contribute to a more harmonised approach. Such harmonisation
is in evidence in respect of the rules on external borders. At its meeting on 29 April
2004, the JHA Council adopted Decision 2004/574/EC on amending the Common
(Borders) Manual (OJ 2004 L 261/36) providing for a standard form for refusal of
entry at the EU external border.
916
3.3 Exporting Control Policies on Irregular Migration

EU rules and policies relating to irregular migration may well also have implica-
tions for the rights of irregular migrants beyond the borders of receiving coun-
tries and on their return to countries of origin. Council Regulation 539/2001/EC
of 15 March 2001 listing the third countries whose nationals must be in pos-
session of visas when crossing the external border and those whose nationals
are exempt from that requirement identifies irregular migration as an important
criterion in deciding whether nationals of certain countries should be subject
to a visa requirement.58 In the reports of the Commission, which recommended
the removal of Bulgaria and Romania from the “negative” or “black” visa list,59
a particularly disturbing feature comes to light. The Commission praises Bul-
garian and Romanian attempts to prevent the irregular migration of their own
nationals. These attempts, moreover, reveal a ready willingness to prohibit per-
sons, who have been apprehended as irregular migrants in Member States, from
leaving their homelands for a considerable period of time, together with commit-
ments to increase the periods of the prohibitions on exit in the future. Bulgarian
law imposes a ban on leaving the country for a one-year period on Bulgarian
citizens who have violated the immigration law of another country or who have
been expelled from another country. However, the Commission’s report refers
to a draft amendment providing for an extension of this period to two years.
The information provided on Romania is more extensive. Romanians who have
been apprehended while attempting to leave Romania without authorisation or
returned there on the basis of readmission agreements can have their passports
withdrawn for a maximum period of 12 months, although the Commission’s
reports on Romania also refer to a proposal to increase this period to three
years. Statistics are also cited illustrating that over 27,000 Romanian citizens
were forbidden to exit the country between 1998 and 2000. Although over 7,000
58 OJ 2001 L 81/1, Recital 5. Indeed, in November 2002, the Commission proposed

that Ecuador should be placed on the negative visa list because Member States
reported increasing irregular migration from that country. The Council adopted
this proposal in spring 2003. Council Regulation 453/2003/EC of 6 March 2003
amending Regulation 539/2001/EC, OJ 2003 L 69/10, Recital 1 and Art. 1(1)(b). (see
Ch. 7).
59 See Commission, Report from the Commission to the Council regarding Bulgaria in
the perspective of the adoption of the Regulation determining the list of third coun-
tries whose nationals must be in possession of visas when crossing the external borders
and those whose nationals are exempt of that requirement, COM (2001) 61, 2 Feb.
2001, Vol. 1; Commission, Intermediate Report on Visa Issues (Romania), COM
(2001) 61, 2 Feb. 2001, Vol. II; and Commission, Report from the Commission to
the Council – Exemption of Romanian Citizens from Visa Requirement, COM (2001)
361, 29 June 2001. See also Council Regulation 2414/2001/EC of 7 December 2001
amending Regulation 539/2001/EC (OJ 2001 L 327/1) and confirming that Roma-
nian nationals are to be exempt from the visa requirement.
917
Ryszard Cholewinski
of these cases were explained by reference to a range of immigration offences, no

reasons are provided for the remainder amounting to over 20,000 citizens. The
2003 Regular Report on Romania’s progress towards accession reveals a stag-
gering increase in the number of Romanian citizens prohibited from leaving the
country, which increased from 23,311 in 2001 to 417,969 in 2002.60 The report
also reveals that Romanians returned to Romania from EU Member States face
up to five years imprisonment. Rather than being critical of such measures,
however, the Commission appears more concerned with the fact that irregular
migration from Romania continues to increase and with the alleged problems
Romanian nationals cause in Member States:
As far as visa policy is concerned, the visa-free regime introduced for Roma-
nian nationals by Schengen member states in January 2002 has had mixed
results. Despite an almost eighteen-fold increase in the number of Romanians
who were not permitted to exit in 2002 compared to 2001 and an overall
decrease in exits from Romania by more than a million, the number of Roma-
nians returned from the Schengen Area has continued to increase.
...
Despite the strict self-imposed exit requirements, and the fact that Romanians
sent back to Romania face up to five years in prison, there has been an increase
in the number of Romanians returned from EU member states. The large num-
bers of Romanian nationals involved in petty crime, aggressive begging and
other anti-social behaviour across the EU has prompted several member states
to take action.61
While the right to leave any country including one’s own country, such as that
guaranteed by Article 2(2) of Protocol No. 4 to the ECHR,62 is not an absolute
right and can be restricted in Article 2(3) on a number of grounds, such as in the
interests of national security and the maintenance of public order, the extensive
measures in place in these two EU candidate countries, which include the depri-
60 Commission, 2003 Regular Report on Romania’s progress towards accession (SEC

(2003) 1211/1, 5 Nov. 2003) at 101. The report, ibid., also notes that the number of
Romanians returned from the Schengen zone increased from approximately 9,000
in 2001 to over 11,000 in 2002 and almost 10,000 for the first half of 2003. Presum-
ably, these 30,000 nationals would be subject to the measures withdrawing their
passports to prevent them from leaving Romania. The report is available from the
Commission’s web site at <http://europa.eu.int/comm/enlargement/report_2003/
pdf/rr_ro_final.pdf>.
61 Ibid. at 104 and 105.
62 Protocol No. 4 to the ECHR, Strasbourg, 16 September 1963, European Treaty
Series No. 46. Both Bulgaria (4 November 2000) and Romania (20 June 1994) have
ratified this instrument.
918
vation of liberty, are very unlikely to satisfy the proportionality criteria devel-
oped by the European Court of Human Rights in respect of the imposition of
restrictions on rights under the ECHR. Moreover, the Commission’s apparent
acquiescence in the adoption of these draconian measures, which certainly do
not constitute a part of the EU JHA acquis raises serious questions regarding
the EU and its Member States’ liability for the possible human rights abuses
taking place.
3.4 Irregular Migrants as Victims of Human Rights Abuses

Another problematic issue relates to the situation of irregular migrants as vic-
tims of human rights abuses and the need to recognise this clearly in the mea-
sures that are adopted. For example, this is plainly a concern regarding those
irregular migrants who have also been trafficked into the destination country,
particularly women. The criminal treatment of trafficked women in transit and
destination countries has been described as follows:
The [trafficked] women are controlled by various mechanisms: isolating strate-

gies to deprive them of their personal freedom, refusal to provide legal and
medical assistance, withholding their pay; physical intimidation and depen-
dency on drugs and alcohol. Out of 250 cases studied in the Netherlands
alone, 177 reported rape, passport confiscation, the withholding of salaries,
and physical and psychological abuse suffered at the hands of their pimps and
clients as well as those of the traffickers themselves.63
The particularly vulnerable situation of trafficked migrants is perhaps the clear-

est example where tackling an undesired activity can only be effective in concert
with safeguarding fundamental human rights. In order to prosecute traffick-
ers successfully, victims have to be encouraged to testify against them and they
will often only be willing to do so if granted a secure status. But this is also an
area demonstrating that the human rights of migrants in an irregular situation
must be protected independently of any other objective. It is strongly arguable
that the grant of a secure or permanent residence status should be possible in
some circumstances, particularly in those instances where trafficked women fear
serious reprisals against them or members of their families in their country of
origin. Indeed, this possibility is recognised by the recent Palermo Protocol sup-
63 Salt, Migrant Trafficking and Human Smuggling in Europe: A Review of the Evi-
dence with Case Studies from Hungary, Poland and Ukraine (Geneva: IOM, 2000)
at 52, citing from Caldwell, et al., Crime and Servitude: An Exposé of the Traffic in
Women for Prostitution from the Newly Independent States, a report prepared for
presentation at an International Conference on Trafficking of NIS Women Abroad,
Moscow, 3-5 November 1997 (Washington D.C., New York: The Global Survival
Network in collaboration with the International League for Human Rights, 1997).
919
Ryszard Cholewinski
plementing the UN Convention against Transnational Organised Crime 2000 to

Prevent, Suppress and Punish Trafficking in Persons, which has also been signed
by all Member States as well as by the EU.64
EU measures adopted to date have arguably devoted insufficient attention
to trafficked persons as victims and to their rights. Earlier measures, agreed to
in the context of intergovernmental cooperation under the former third pillar,
spoke of the possibility of granting victims provisional residence status with
a view to enabling them to give evidence in a criminal prosecution against the
traffickers.65 This limited protection, however, is not reiterated in the recently
adopted Council Framework Decision on combating trafficking in human
beings”.66 The possibility of providing some kind of residence status for victims
did not appear to have entered the Council’s deliberations on the Framework
Decision. Instead, there is merely a provision entitled “Protection of and assis-
tance to victims”, the main aim of which is to shield the victim from the proceed-
ings by ensuring that the investigation or prosecution is not solely dependant
64 G.A. Res. 55/25 of 15 November 2000 and Council Decision 2001/87/EC of 8

December 2000 on the signing on behalf of the Community, of the United Nations
Convention against transnational organised crime and its Protocols on combat-
ing trafficking in persons, especially women and children, and the smuggling of
migrants by land, air and sea, OJ 2001 L 30/44. On 29 April 2004, the JHA Coun-
cil adopted Decision 2004/579/EC on the conclusion, on behalf of the European
Community, of the United Nations Convention Against Transnational Organised
Crime, OJ 2004 L 261/69. See also the Council Resolution of 20 October 2003 on
initiatives to combat trafficking in human beings, in particular women (OJ 2003 C
260/4), which calls on Member States “to ratify and fully implement all interna-
tional conventions and instruments against trafficking in human beings, in particu-
lar the Palermo [Anti-Trafficking] Protocol”. The Convention entered into force on
29 Sept. 2003 and, as of 13 Dec. 2005, had been ratified by 115 states parties. The
Anti-Trafficking and Anti-Smuggling Protocols entered into force on 25 Dec. 2003
and 28 Jan. 2004 respectively and, as of 15 March 2005, had been ratified by 95 and
85 States Parties respectively. See Ch. 27 for details of EU Member States’ ratifica-
tions of the Anti-Trafficking Protocol. The relevant obligations in Arts. 7(1) and
(2) of the Protocol on combating trafficking in persons read as follows: (1) “[E]ach
State Party shall consider adopting legislative or other appropriate measures that
permit victims of trafficking in persons to remain in its territory, temporarily or
permanently, in appropriate cases. (2) In implementing the provision contained in
paragraph 1 of this article, each State Party shall give appropriate consideration to
humanitarian and compassionate factors”. Emphasis added.
65 JHA Council Joint Action 97/154/JHA of 24 February 1997 concerning action to
combat trafficking in human beings and sexual exploitation of children, OJ 1997 L
63/2, para. F(b)(i).
66 Council Framework Decision 2002/629/JHA of 19 July 2002 on combating traffick-
ing in human beings, OJ 2002 L 203/1.
920
on information provided by the victim.67 The Commission’s Communication on

illegal migration, however, does recognise the need to adopt further measures in
this area, although it only foresees the granting of short-term residence and not
permanent residence.68
These intentions have now crystallised in the Council Directive on the short-
term residence permit issued to third-country nationals who are victims of traf-
ficking in human beings or illegal immigration facilitators, who cooperate with
the competent authorities, adopted at the end of April 2004.69 The Directive is
located in the Community pillar, with a legal base in Article 63(3) EC, which
is appropriate given that the core issue is the grant of a short-term residence
permit to third-country nationals. It is also broad in personal scope because the
potential beneficiaries of this residence permit, which is to be valid for at least six
months and is also renewable, are not just victims of trafficking but also victims
of facilitators of irregular migration. Although the Commission was at pains to
point out in the Explanatory Memorandum to the draft Directive that the latter
are to be defined narrowly in that they must have suffered harm (“for example
having their lives endangered or physical injury”),70 this limitation is not evident
anywhere in the text of the adopted Directive, although its application to third-
67 See Art. 7(1): “Member States shall establish that investigations into or prosecu-
tion of offences covered by this Framework Decision shall not be dependent on
the report or accusation made by a person subjected to the offence, at least in cases
where Article 6(1)(a) applies [where the offence is committed in whole or in part
within the territory of the Member State]”. The Decision repeals the 1997 Joint
Action, n. 67 above, in so far as it concerns trafficking in human beings (Art. 9).
68 Communication on a common policy on illegal immigration, n. 3 above, at 22: “It is
… also important to clarify the status of the victims of trafficking in terms of their
right of residence when they are prepared to co-operate in investigations against
their exploiters. On the one hand, such a clarification would provide a platform
for a more structured assistance and protection focusing directly on the victims’
individual situation and needs, and, on the other hand, on the need of the law
enforcement and the judiciary to conduct efficient investigations against traffick-
ers”. Significantly, the Council’s Plan, n. 6 above, point 91, avoids the reference to
residence rights repeating the above paragraph but replacing the words “their right
of residence” with “certain benefits or special assistance”.
69 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to
third-country nationals who are victims of trafficking in human beings or who have
been the subject of an action to facilitate illegal immigration, who cooperate with
the competent authorities, OJ 2004 L 261/19. For the Commission’s proposal see
COM (2002) 71, 11 Feb. 2002 [hereinafter Proposal for a Council Directive on the
short-term residence permit issued to victims]. The Directive is restricted to adults,
although Member States may apply it to minors. Ibid., Art. 3(3). See further Ch.
29.
70 Proposal for a Council Directive on the short-term residence permit issued to victims,
n. 71 above, at 7.
921
Ryszard Cholewinski
country nationals who have been the subject of an action to facilitate irregular
migration is made only optional rather than compulsory as in the case of victims
of trafficking.71 Access to this special residence status, however, is hedged in by
a series of conditions. It is not granted immediately to victims of trafficking or
irregular migration, but is preceded by an initial “reflection period”, the duration
and starting point of which is to be determined according to national law. The
purpose of this period is to enable victims to recover and escape the influence of
their perpetrators and take an informed decision whether they wish to cooperate
with the competent authorities.72 The grant of the residence permit is subject
to three conditions: the opportunity presented by prolonging the victim’s stay
for the investigation or the judicial proceedings; whether the victim has shown
“a clear intention to cooperate”; and whether the victim has severed all rela-
tions with the suspects. Moreover, the permit will only be issued if there are no
objections on the grounds of public policy or protection of national security.73
Member States may also make the issue of the residence permit or its renewal
conditional on the participation of victims in programmes or schemes “aimed
at their recovery of a normal social life, including, where appropriate, courses
designed to improve their professional skills, or preparation of their assisted
return to their country of origin”.74 The permit foresees access to the labour
market, vocational training and education, the conditions and procedures for
which are to be determined in accordance with national legislation.75
Although the Directive contains a number of positive features, particu-
larly in its potentially broad personal scope and the possibility for the holder
of the short-term residence permit to access important economic rights, includ-
ing access to employment, these are outweighed by the negative elements. First,
the Directive is hardly victim-friendly. While avoiding abuse of the proposed
71 Directive, n. 70 above, Art. 3(2). I am also grateful to Steve Peers for drawing my
attention to this discrepancy.
72 Ibid., Art. 8. During this reflection period, victims who do not have sufficient
resources are entitled to “standards of living capable of ensuring their subsistence
and access to emergency medical treatment” and Member States are required “to
attend to the special needs of the most vulnerable, including, where appropriate and
if provided by national law, psychological assistance”. Ibid., Art. 7(1). Moreover,
any outstanding expulsion order cannot be enforced during the reflection period.
Ibid., Art. 6(2).
73 Ibid., Arts 8(1) and (2) respectively.
74 Ibid., Art. 12.
75 Ibid., Art. 11. The Directive also contains in Art. 9(2) a positive obligation on
Member States to provide “necessary medical or other assistance to the third-coun-
try nationals concerned, who do not have sufficient resources and have special needs,
such as pregnant women, the disabled or victims of sexual violence or other forms
of violence …”.
922
permit system is a legitimate concern, the conditions that have to be met before
the permit is granted mean in practice that victims are unlikely to come for-
ward in substantial numbers. Secondly, while implementation of the Directive
by Member States may well lead to the victim’s eventual settlement in the host
country, this is likely to be rare given that the permit cannot be renewed if the
conditions for its original issue are no longer satisfied or if the relevant proceed-
ings have been terminated by a decision of the competent authorities.76 More-
over, the permit can be withdrawn at any time on a broad range of grounds: if
its holder has renewed contacts with those suspected of the criminal offences
in question; if the competent authority considering the case believes that the
victim’s cooperation is fraudulent or wrongful; for public policy or national
security reasons; when the victim ceases to cooperate; or when the competent
authorities decide to discontinue the proceedings.77 Consequently, the victim’s
continued residence will be dependent on the national immigration measures in
the host Member State, which may well lead to discriminatory treatment of vic-
tims in like situations across the EU.78 Thirdly and most importantly, however,
the Directive does not hold the victims’ fundamental human rights at heart. As
the title of the Directive indicates, a clear intention to cooperate with the com-
petent authorities is the trigger to obtaining the short-term residence permit and
not human rights abuses suffered per se. Moreover, this intention to cooperate
with the authorities is insufficient alone to qualify for the status on offer. The
presence of the victim has to be “useful” to the investigation or prosecution. Vic-
tims, who cannot satisfy this condition, because, for example, those suspected
of the crimes are no longer traceable, but who clearly have suffered harm at
the hands of the traffickers or smugglers or who might fear reprisals, have no
redress under this proposed measure.79 Indeed, the Commission emphasised in
the Explanatory Memorandum to the draft Directive that the principal purpose
of the proposal is combating irregular migration rather than the protection of
victims.80
76 Ibid., Art. 13.

77 Ibid., Art. 14.
78 The draft Directive, n. 71 above, Art. 16(2), imposed an obligation on Member
States to take victims’ cooperation into account when considering their applications
for another type of residence permit, but this is not found in the adopted text.
79 In the latter instance, however, victims are not precluded from applying for inter-
national protection. See Recital 5 of the Directive, n. 71 above. Interestingly, the
safeguard in the text to this effect in the proposed Directive (n. 71 above, draft Art. 4
and Explanatory Memorandum, ibid. at 11) was moved to the Preamble in the final
version adopted by the JHA Council.
80 Ibid. at 8: “The purpose of the proposed Directive is to introduce a residence permit,
with the aim of enhancing measures to combat illegal immigration. The text is not
intended to incriminate networks of organised crime or to arrange protection for
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Ryszard Cholewinski
3.5 Return Policy on Irregular Residents

The Council’s Comprehensive Plan to Combat Illegal Immigration called on the
Commission, as a matter of urgency, to present a Green Paper outlining the con-
tours of a Community return policy.81 The Commission tabled the Green Paper
in April 2002.82 In June 2002, the Seville European Council identified expulsion
and repatriation policies as a top priority and called on the JHA Council to
adopt the components of a repatriation programme by the end of the year.83 In
October 2002, the Commission published a Communication on a Community
return policy in response to the consultation exercise commenced by the Green
Paper,84 and the JHA Council adopted a Return Action Programme at its meet-
ing on 28-29 November 2002.85 Shortly afterwards, the Council also adopted
a specific EU Plan for Return to Afghanistan.86 Most recently, in June 2004,
the Council adopted Conclusions on return management in the area of migra-
tion, which constitute a set of guidelines for the Commission and the basis for a
future instrument in this area.87
Apart from the speed by which this EU return policy has developed, which
in itself brings into serious question the legitimacy of the Commission’s earlier
consultation exercise, the policy also raises a whole host of human rights con-
cerns. While the documents referred to above consider a number of relevant
human rights standards, such as the ECHR, the Geneva Convention, the UN
Convention on the Rights of the Child and the EU Charter of Fundamental
victims or witnesses. The proposal does not regulate these aspects, even though they
are to some extent related to the subject matter of the text”.
81 Council Plan to Combat Illegal Immigration, n. 6 above, point 69.
82 Commission, Green Paper on a Community Return Policy on Illegal Residents (COM
(2002) 175, 10 Apr. 2002) [hereinafter Green Paper on Return].
83 Presidency Conclusions: Seville European Council, n. 7 above, Conclusion 30.
84 Commission, Communication to the Council and the European Parliament on a Com-
munity return policy on illegal residents (COM (2002) 564, 14 Oct. 2002) [hereinafter
Communication on return].
85 Proposal for a Return Action Programme, (Council doc. 14673/02, 25 Nov. 2002)
[hereinafter Return Action Programme], adopted at the JHA Council meeting on
28-29 November 2002 (Council doc. 14817/02).
86 EU Plan for Return to Afghanistan (Council doc. 15215/02, 4 Dec. 2002).
87 Conclusions on the elements for establishing preparatory actions for a financial
instrument for return management in the area of migration, adopted by the JHA
Council at its meeting on 8 June 2004 (Council doc. 10305/04, 9 June 2004). The
Commission has since proposed a Decision establishing the Return Fund (COM
(2005) 123, 6 April 2005), and a Directive on expulsion standards (COM (2005) 391,
1 Sep. 2005).
924
Rights,88 they fail to consider any of the specialist instruments referred to in

Section 2, which also contain important provisions on the return of irregular
residents.89 Moreover, no reference is made to the fact that the EU Charter has
not yet achieved the status of a binding legal instrument. Nor do these measures
attempt to design detailed protective frameworks within which the return of
third-country nationals should take place. Indeed, the EU documents seem to
convey the impression that practices in Member States generally comply with
human rights standards,90 which is patently not the case given that recent ECHR
case law has demonstrated that irregular migrants have suffered serious human
rights violations at the hands of officials when being returned to their coun-
try of origin.91 It is strongly arguable that sweeping rhetorical statements, for
example that “integrated return plans shall be adopted and implemented with
due respect for the rule of law as well as for human and minority rights and
for fundamental freedoms”,92 are hardly sufficient to constitute the necessary
safeguards. Moreover, as noted in Section 3.2 above, the developing EU return
policy also strongly supports the extension of the principle of cross or mutual
recognition to a broader range of national return decisions, which gives rise to
considerable concerns about adherence to the fundamental principle of non-dis-
crimination. Another criticism, aimed primarily at the Council’s Return Action
Programme, concerns the high priority given to practical and operational mea-
sures to enhance cooperation between so-called “return practitioners” in prefer-
ence to the adoption of a common legal framework of normative measures to
inform practice.93 Perversely, the adoption of a legal framework is considered to
be a medium and long-term objective. It is difficult to see how return practices
88 Green Paper on Return, n. 83 above, at 10; Communication on return, n. 85 above, at

8; Return Action Programme, n. 86 above, point 13; Conclusions on return manage-
ment in the area of migration, n. 88 above, recital 11.
89 E.g. UN Migrant Workers Convention, n. 9 above, Art. 22.
90 See Return Action Programme, n. 86 above, point 41, which notes that “Member
States’ return and removal procedures are already, and should of course continue to
be, conducted in accordance with human rights standards and international obliga-
tions”. Emphasis added.
91 See Čonka v. Belgium, Eur. Ct. H.R., judgment of 5 Feb. 2002, (2002) 34 EHRR
1298, concerning the forced return of a group of Roma asylum-seekers by the Bel-
gian authorities, where the Court found a violation of a number of ECHR pro-
visions, including Article 4 of Protocol No. 4, n. 63 above, concerned with the
prohibition on the collective expulsion of aliens. See also the friendly settlement in
Sulejmanovic and Others v. Italy, Eur. Ct. H.R., 8 Nov. 2002. The Čonka judgment
and the friendly settlement in Sulejmanovic are also available from the web site of
the European Court of Human Rights at <http://hudoc.echr.coe.int/hudoc>.
92 Conclusions on return management in the area of migration, n. 88 above, point 2.
93 Return Action Programme, n. 86 above, points 4 and 15.
925
Ryszard Cholewinski
at the national level can conform adequately to important human rights guar-
antees without the adoption of a common framework of standards affording
a high level of human rights protection. In this respect, therefore, the Com-
mission’s intention to advance a proposed Directive on Minimum Standards for
Return Procedures, particularly as regards the treatment of returnees during the
return operation and while in detention pending removal,94 is rather lacking in
ambition. As discussed in Section 4 below, the Action Programme also focuses
on facilitating forced returns95 despite earlier assertions, by both the Council and
Commission, that voluntary return should be given priority. The preoccupation
with forced return is also complemented by the undue emphasis on readmission
of own nationals and third-country nationals to countries of origin and tran-
sit, a process supported by the development of Community readmission agree-
ments.96 Aside from being based on the somewhat dubious international law
principle of a State obligation to readmit own nationals, which is discussed in
Section 4 below, this approach considers the problem of irregular migration to
be largely an external matter and reflects the unwillingness of Member States to
deal with irregular migration in a holistic context by shifting the burden for deal-
ing with irregular residents to third countries. In this respect, the veiled “threats”
found in the Council’s Return Action Programme and Plan on Illegal Immi-
gration to consider all possible avenues in the context of EU external relations
policy to ensure that third countries comply with their readmission obligations97
are particularly troubling.
4 Restoring the Human Rights Deficit

Clearly, there are profound human rights concerns in focusing unduly on pre-
ventive policies in combating irregular migration. What kind of positive mea-
sures or more rights-oriented measures might therefore be contemplated by the
EU to complement preventive strategies?
94 Communication on return, n. 85 above, at 18 and 20. See also Commission Score-

board, n. 29 above, at 6.
95 Return Action Programme, n. 86 above, point 12.
96 See Section 3, n. 22 above.
97 Return Action Programme, n. 86 above, point 64: “[I]t is … important for the Euro-
pean Union to consider the use of all appropriate instruments available in the con-
text of the Union’s external relations to further negotiations with third countries
without jeopardizing the fundamental legal position, that the readmission of own
nationals is a non-negotiable obligation incumbent on any state”. See also the rather
stronger wording in the Council Plan to Combat Illegal Immigration, n. 6 above,
point 76, which urges the EU to “use its political weight to encourage third countries
which show a certain reluctance to fulfil their readmission obligations”. Emphasis
added.
926
First, the rights of irregular migrants should be explicitly recognised. Often

preventive strategies are formulated on the basis that restrictive measures will
operate as a deterrent to those other migrants contemplating entering EU ter-
ritory without authorisation. Unfortunately, it is forgotten or easily overlooked
that protecting irregular migrants’ rights and attempting to implement such
rights, albeit admittedly a difficulty in practice, would send a clear signal to
those who wish to treat them in an exploitative manner, particularly employ-
ers and those who facilitate irregular migration in receiving countries. The UN
Convention on Migrant Workers supports this approach, which has also been
advocated in the past by the European Commission in its Communication on
immigration and asylum policies in 1994. Indeed, as noted in Section 2 above,
the Commission recommended at the time that Member States sign and ratify
the UN Convention. The omission from the Commission’s Communication on
illegal immigration and the Council’s Plan of a reference to this instrument,
other international treaties explicitly protecting the human rights of irregular
migrants and general international human rights treaty law, are telling signs
that any previous concern with the protection of irregular migrants’ rights has
been neglected in the wake of the plethora of adopted and proposed repres-
sive measures. In June 2004, however, in an own-initiative opinion on the UN
Convention, the European Economic and Social Committee (EESC) encour-
aged Member States to ratify the Convention and also called upon the Commis-
sion and EU Presidency to undertake the necessary political initiatives to ensure
that Member States ratify the instrument within two years and that the EU also
ratifies it when the Constitutional Treaty comes into force authorising it to sign
international agreements.98 Furthermore, the EESC recommended that, to facil-
itate ratification, the EU undertake a study analysing national and Community
legislation in relation to the Convention.99 There are signs that the Commission
may well be taking the UN Convention more seriously given the earlier reply of
the previous JHA Commissioner Vitorino to a question from a Member of the
European Parliament where he stated that the Commission would undertake a
study examining the compatibility of the common EU immigration policy with
the Convention.100 However, the prospects for a speedy ratification appear to
be less optimistic given that the former Commissioner also noted in his reply
that “one of the main obstacles to ratification seems to be that the Convention
98 Opinion of the EESC Committee on the International Convention on Migrants

(Own-initiative opinion), doc. SOC/173, 30 June 2004, para. 6.1-6.2.
99 Ibid., para. 6.2.
100 Answer given by Mr. Vitorino on behalf of the Commission (written question E-
0068/04 by MEP Miet Smet (PPD-PE) on the International convention on the pro-
tection of the rights of all migrant workers and their families) (5 March 2004).
927
Ryszard Cholewinski
recognises rights in respect of all migrant workers regardless of whether they are
in the host country legally or illegally”.101
Secondly, the EU should at least consider the regularisation of the status
of irregular migrants as a possible common policy measure, given especially that
individual Member States have periodically constructed various types of regula-
risation programmes.102 The Commission only refers fleetingly to national regu-
larisation procedures in its Communication on illegal immigration in the context
of the collection of statistics, and it also mentions such programmes in the Com-
munication on a Community immigration policy, published in November 2000,
but without expressing a view on whether an EU-wide approach would be more
preferable or desirable.103 While Member States clearly do not wish to legalise
their foreign undocumented population too frequently because such actions are
likely to be counter-productive or self-defeating in encouraging further irregular
migration, regularisation can nonetheless be viewed as a legitimate legal and
policy mechanism for reducing the number of irregular migrants present in the
country concerned provided that measures are also taken and implemented to
check further irregular entry. It has been argued that regularisation undermines
the exploitative underground labour market where most irregular migrant work-
ers are found and supports modernising trends in the economy.104 Regularisa-
tion is also cost-effective because it facilitates the integration of such migrants
thus helping them to become useful and productive members of the host society.
Moreover, it has an important humanitarian dimension. EU Member States, as
evidenced by their periodic resort to national regularisation programmes, clearly
find it difficult to expel those irregular migrants who have been employed within
their territory for a lengthy period of time, particularly if their presence has also
been tolerated by the authorities. In those circumstances, therefore, where regu-
larisation is clearly the decent and most equitable option, it should be explicitly
recognised in the development of a EU common policy on irregular migration.
In its June 2003 Communication on immigration, integration and employment,
the Commission does take the view that regularisation of irregular migrants,
101 Ibid.
102 See in particular the national reports in de Bruycker, ed., Regularisations of Ille-
gal Immigrants in the European Union (Bruylant, 2000). For a summary report, see
Apap, De Bruycker and Schmitter, “Regularisation of Illegal Aliens in the Euro-
pean Union: Summary Report of a Comparative Study” (2001) 2 EJML 263.
103 Commission, Communication to the Council and the European Parliament on a Com-
munity immigration policy (COM (2000) 757, 22 Nov. 2000) at 6 and 13.
104 Ghosh, n. 35 above, at 150-151: “[O]ne of the main justifications of regularisation
is to end the human suffering and exploitation of irregular immigrants and improve
their general working conditions. By removing an important source of cheap and
docile labour, it encourages the process of industrial upgrading and structural
change in the economy”.
928
who cannot be removed from EU territory for legal, humanitarian or practi-

cal reasons, contributes to the fight against social exclusion and supports the
integration process.105 But its most explicit statement on the matter is given in
the June 2004 study on the links between legal and illegal migration where it
also assesses the pros and cons of regularisation.106 While the Commission does
finally advocate a common EU approach, the tone of the document appears
to steer towards the adoption of further restrictions in this field rather than
suggesting a more open and liberal policy. The Commission contends that a
common approach is necessary because wide-scale regularisation measures in
one Member State may attract further irregular migration and are also likely
to impact on other Member States given the abolition of internal borders. The
foreseen common approach would effectively avoid or limit such measures and
might require Member States contemplating a significant regularisation exercise
to notify other Member States and consult on the details of their proposals.107
Unfortunately, if such an approach is eventually implemented, a valid humani-
tarian measure to address the situation of irregular migrants in a Member State
would become less frequent particularly given that some large Member States
oppose wide-scale regularisation exercises.
Thirdly, where it is possible for irregular migrants to leave EU Member
States, tangible and workable measures should be put in place to ensure that vol-
untary return takes priority over involuntary or forced expulsion. Indeed, this is
recognised to a certain extent in current EU law where Article 23(1) SIA, which
is concerned with expulsion and readmission, stipulates that the first obligation is
on the irregular migrant to leave the territory. Assisting the voluntary return of
illegally resident third-country nationals was also regarded by the JHA Council
in 1997 as being “in line with the European humanitarian tradition and may
contribute to finding a dignified solution to reducing the number of illegally
resident third-country nationals in the Member States”.108 In this context, in
contrast to its apparent amnesia on the rights of irregular migrants, the Com-
mission has taken a more consistent approach. In its 1994 Communication, it
contended that “[t]he best form of repatriation remains voluntary return”109 and
more recently, in its Communication on illegal immigration, it recognises “the
105 Commission, Communication to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions on immigration,
integration and employment (COM (2003) 366, 3 June 2003) at 26.
106 Commission, Study on the links between legal and illegal migration (COM (2004)
410, 4 June 2004) at 9-10.
107 Ibid. at 17.
108 JHA Council Decision of 26 May 1997 on the exchange of information concern-
ing assistance for the voluntary repatriation of third-country nationals, OJ 1997 L
147/3, Preamble, Recital 5.
109 Communication on immigration and asylum policies, n. 2 above, at 30, para. 111.
929
Ryszard Cholewinski
priority of voluntary return over forced return” as an important common prin-

ciple of a Community return policy.110 This principle, together with another prin-
ciple identified by the Commission, namely the need to strengthen the obligation
under international law to readmit own nationals, are viewed as constituting the
basis of the development of common standards on expulsion, detention and
deportation,111 notwithstanding that the latter principle is questionable given its
clear conflict with the duty of states to protect individual human rights including
the right to leave one’s country, which is recognised in all international human
rights instruments.112 While the Council’s Comprehensive Plan to Combat Ille-
gal Immigration emphasises the second principle, significantly it does not refer
to the first principle prioritising voluntary return over forced return.113 This
dichotomy is repeated in the EU policy on return of irregular residents that is
being established with the Commission preferring voluntary over forced return
and the Council clearly favouring the latter.114 Given these developments, there-
fore, together with the legally binding measures that have and are being adopted,
such as the Directive on the mutual recognition of expulsion decisions, recent
measures facilitating the expulsion from EU territory, particularly where transit
through another Member State is necessary to effect the removal of the third-
country national and the organisation of joint flights for their removal,115 and
the negotiation of Community readmission agreements with third countries,
forced return is becoming the preferred option in practice.
110 Communication on a common policy on illegal immigration, n. 3 above, at 24.

111 Ibid.
112 E.g. Art. 12(2) of the ICCPR: “Everyone shall be free to leave any country, includ-
ing his own”. See also Art. 2(2) of Protocol No. 4 to the ECHR, n. 63 above.
114 Although the Council Conclusions on return management in the area of migration,
n. 88 above, points 7 and 8, envisage Community support for integrated return plans
in respect of action concerning both forced and voluntary returns, more financial
support, including reception assistance, is contemplated for persons who agree to
return voluntarily (ibid., point 9(2)).
115 Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of tran-
sit for the purposes of removal by air, OJ 2003 L 321/26; Council Conclusions of 22
December 2003 on assistance in cases of short-term transit by land or sea through
the territory of another Member States in the course of effecting of a removal
adopted by a Member State against a third-country national in the framework of
the operational cooperation among Member States (Council doc. 15988/1/03 REV
1, 12 December 2003); Council Decision 2004/573/EC of 29 April 2004 on the
organisation of joint flights for removals, from the territory of two or more Member
States, of third-country nationals who are subjects of individual removal orders, OJ
2004 L 261/28; Council Conclusions on ways of giving practical effect to the draft
Council Decision on the organisation of joint flights for removals, adopted by the
General Affairs Council on 12-13 July 2004 (Council doc. 8540/4, 28 June 2004).
930
Fourthly, the establishment of effective and concrete cooperation between

all countries involved in the process of irregular migration (countries of destina-
tion, origin and transit), and based primarily on a human rights ethos, can be
of particular importance in preventing irregular migration. In its Communica-
tion on illegal immigration, the Commission refers to the “actors-in-the-chain
approach”, which should include the implementation of the following measures
at the beginning of the migration chain: “the promotion of peace, political sta-
bility, human rights, democratic principles and sustainable economic, social and
environmental development of the countries of origin”.116 In its subsequent
Communication on integrating migration issues in the EU’s relations with third
countries, the Commission identifies a three-pronged strategy: a balanced overall
approach addressing the root causes of migratory movements, including action
to promote human rights, support democracy, prevent conflicts and improve
the general economic and social situation, which all contribute to migratory
pressures in third countries; a partnership on migration with third countries to
define common interests and to be integrated into a political dialogue with those
countries, which should focus not only on irregular migration but also legal
migration channels; and specific and concrete initiatives to assist third countries
to increase their migration management capacities.117 Arguably, however, the
specific and concrete initiatives to date have focused largely on the promotion
of repressive measures in the context of preventing irregular migration, while
devoting insufficient attention to human rights, the promotion of regular migra-
tion, and other related issues.118 In the EU, this activity was initially conducted
within the High Level Working Group of senior civil servants on Asylum and
Migration, set up in December 1998 with a mandate “to establish a common
integrated, cross-pillar approach targeted at the situation in the most important
countries of asylum-seekers and migrants”.119 The Working Group prepared
action plans on a number of specified countries (Afghanistan, Albania, Iraq,
116 Communication on a common policy on illegal immigration, n. 3 above, at 8. See also

Council Plan to Combat Illegal Immigration, n. 6 above, point 13.
117 Commission, Communication to the Council and the European Parliament: Integrat-
ing migration issues in the European Union’s relations with third countries (COM
(2002) 703, 5 Dec. 2002) at 46.
118 Indeed, the Commission, ibid. at 51-61 (Annex 2) lists the financial resources pro-
grammed for external aid 2000-2006 and linked to the migration issue, which only
mentions one specific project concerned with the promotion of regular migration,
namely the allocation of EUR 5 million for the organization of legal emigration via
creation of a migration centre in Morocco (ibid. at 57-58).
119 Terms of Reference of the High Level Working Group on Asylum and Migration;
preparation of actions plans for the most important countries of origin and transit
of asylum-seekers and migrants, 25 January 1999, Council doc. C4-0133/99, para.
1.
931
Ryszard Cholewinski
Morocco, Somalia and Sri Lanka), which were adopted by the Council, and
the report on the implementation of these action plans was presented to the
Nice European Council in December 2000.120 These action plans, however, were
criticised by the European Parliament on a number of grounds, such as the fail-
ure to adequately consult or involve the political leaders and representatives of
civil society in the target countries in the drafting of the plans, the undue focus
on prevention measures, the devotion of insufficient attention to human rights
issues, and the lack of an appropriate budgetary allocation as well as the provi-
sion of an unrealistic timetable for their implementation.121 The evaluation by
the Belgian Presidency of the Conclusions of the Tampere European Council in
December 2001 underlined that “[o]ne basic lesson to be drawn from experience
acquired to date is the fact that no future action plan should be drawn up except
in close partnership with the “target” country,”122 and noted the establishment of
a specific budget heading for external policy action regarding migration, which
it argued should make it possible to realise progress on implementation of the
action plans.123 The protection of human rights is a particularly important con-
sideration when negotiating readmission agreements with third countries. The
Commission observes in its Communication on illegal immigration: “[B]efore
the negotiation of any readmission agreement, the political and human rights
situation in the country of origin or transit should be taken into account”.124
However, “taking into account” human rights is rather different from adhering
to them and therefore this would appear to be rather a weak commitment par-
ticularly in the light of the cardinal principle of non-refoulement. Moreover, the
Council’s Comprehensive Plan to Combat Illegal Immigration omits the refer-
ence to human rights altogether and only argues for the need to take the inter-
ests of the EU and of the Member States into account before negotiating any
readmission agreements.125 Recent developments reinforce the impression that
cooperation with and assistance to third countries is still overly focused on pre-
venting irregular migration and readmission. Rather ominously, the Conclusions
120 Commission Scoreboard, n. 29 above, at 18.

121 Resolution of 30 March 2000 on asylum-seekers and migrants -- action plans for
countries of origin and transit, n. 37 above, points H, I, J and 30 respectively. Fol-
lowing the report to the Nice European Council, the High Level Working Group
has decided for the moment to launch no new action plans. Commission Scoreboard,
n. 29 above, at 18.
122 Evaluation of the Conclusions of the Tampere European Council (Council doc.
14926/01, 6 Dec. 2001) at 13.
123 Ibid. However, the funds allocated for 2001, 2002 and 2003, though increasing, were
very modest at EUR 10, 12.5 and 20 million respectively. Commission Scoreboard,
n. 29 above, at 18.
124 Communication on a common policy on illegal immigration, n. 3 above, at 25.
932
of the Thessaloniki European Council in June 2003 recognise the importance of

“developing an evaluation mechanism to monitor relations with third countries
which do not cooperate in combating illegal immigration”126 While participa-
tion in relevant international instruments, such as the Geneva Convention and
human rights treaties, is considered a topic of primary importance, the other
matters listed, with the exception of the creation of asylum systems with specific
reference to access to effective protection, are mainly repressive in nature: coop-
eration of third countries in the readmission and return of their nationals and of
third-country nationals; efforts in border control and interception of irregular
migrants; combating of trafficking in human beings; cooperation on visa policy
and possible adaptation by third countries of their visa systems; and efforts in
re-documentation of their nationals.127 The Commission reports in its Decem-
ber 2003 JHA Scoreboard that this evaluation mechanism is in preparation.128
Moreover, in March 2004, the Council and European Parliament adopted a
Regulation establishing a programme for financial and technical assistance to
third countries in the areas of migration and asylum, which is “particularly, but
not exclusively, intended for those third countries actively engaged in preparing
or implementing a readmission agreement initialled, signed or concluded with
the European Community”.129
Fifthly, preventing irregular migration in the context of protecting the basic
human rights of individual migrants involved in the process and the adoption
126 Presidency Conclusions: Thessaloniki European Council, 19-20 June 2003, Bulletin
EU 6-2003, points I.2-I.56, Conclusion 19. The Council, ibid., Conclusion 20, notes
that in developing this evaluation, it will inter alia make use of the information to
be provided by the network of immigration liaison officers for any of the topics that
fall under their competencies. The EU has now formally established such a network,
which is primarily concerned with cooperation with third countries in preventing
irregular migration. See Council Regulation 2004/377/EC of 19 February 2004 on
the creation of an immigration liaison officers network, OJ 2004 L 64/1.
127 Presidency Conclusions: Thessaloniki European Council, n. 127 above, Conclusion
20.
128 Commission Scoreboard, n. 29 above, at 18.
129 European Parliament and Council Regulation 491/2004/EC of 10 March 2004
establishing a programme for financial and technical assistance to third countries
in the areas of migration and asylum (AENEAS), OJ 2004 L 80/1, Art. 1(1). The
programme aims to promote cooperation between the EU and third countries by
contributing in the third countries concerned, and in partnership with those coun-
tries, to the following objectives: development of their legislation in the field of legal
immigration; development of legal migration and raising public awareness of the
advantages of such migration and the consequences of irregular migration; devel-
opment of their legislation and national practices regarding international protec-
tion; establishment of an effective and preventive policy against irregular migration;
readmission of irregular entrants and unsuccessful asylum-seekers.
933
Ryszard Cholewinski
of positive immigration measures must also mean the opening up of more legal
channels for migration. Indeed, many EU Member States are now supporting
and facilitating the admission of third-country nationals for employment to fill
shortages in the labour market in specific sectors that require both highly skilled
and low-skilled workers.130 In July 2001, the Commission proposed a Council
Directive on the conditions of entry and residence of third-country nationals
for the purpose of paid employment and self-employed activities. The Preamble
to the draft Directive considers the regulation of migration for employment as
“a cornerstone of immigration policy” and contends that “the development
of a coherent Community immigration policy could not succeed without spe-
cifically addressing this issue at Community level”.131 This move towards more
common policies on the admission of migrants for lawful employment has a
pan-European dimension. In two recommendations adopted in January and
June 2000, the Parliamentary Assembly of the Council of Europe also supports
the need to create greater opportunities for lawful immigration.132 It is impor-
tant, however, that such policies are not aimed only at highly skilled workers but
low-skilled workers, who are also in demand in Member States. Otherwise, the
continued availability of low-skilled positions will continue to attract irregular
migrants. Moreover, these policies should not solely be “guestworker” or tem-
porary migration policies, which have not been successful in the past in ensur-
ing the return of migrants, but should recognise openly that admission for the
purpose of employment may well lead to de facto permanent residence and thus
measures ought to be put into place to accommodate such an eventuality. The
Commission has yet to arrive at a coherent position on the relationship between
regular and irregular migration and to what extent facilitating the lawful admis-
sion of third-country nationals to the EU labour market can reduce irregular
labour migration movements. In its Communication on a common policy on
illegal immigration, the Commission fails to satisfactorily address the tension
between the need it recognises to ensure that migrants do not “profit” from their
irregular status and the availability of irregular migrant labour for employment
opportunities in Member States:
130 Study on the links between legal and illegal migration, n. 107 above, at 4.
131 COM (2001) 386, 11 July 2001 at 21 (Draft Directive, Recital 3).
132 See respectively Parliamentary Assembly Recommendation 1449 (2000) of 28
January 2000 on Clandestine migration from the south of the Mediterranean into
Europe, para. 14(iii)(a), and Recommendation 1467 (2000) of 29 June 2000 on Clan-
destine immigration and the fight against traffickers, para. 9: “The Assembly under-
lines that greater opportunities for lawful immigration have to be created in order
to reduce the pressure for illegal immigration, and to find adequate alternatives to
clandestine migration. The possibilities of offering fixed-term or seasonal schemes
for work purposes have to be reconsidered in the light of the growing demand in
Europe for migrant labour”.
934
Immigration should take place within a clear legal procedural framework in

order to manage migratory flows effectively and to avoid any competitive dis-
tortion: Illegal entry or residence should not lead to the desired stable form of
residence. There is a growing need not only for high skilled workers but also
for low skilled workers in the legal labour market. Anyway illegal residents
cannot be considered as a pool to meet labour shortages, although it has to
be recognised that the possibility to have access to undeclared work might be
perceived as the most important “pull factor” for potential migrants. Never-
theless opening or re-opening legal channels for migration cannot be seen as a
panacea against illegal immigration.133
Although the Commission takes a more balanced view in its subsequent Com-
munication on immigration, integration and employment, where it recognises
that opening up channels for legal migration can reduce the incentive to migrate
without authorisation,134 it returns to a more ambivalent and restrictive position
in its June 2004 study on the links between legal and illegal migration.135
Despite the recognition at both the national and EU levels that low skilled
labour is also required, recent national employment policies in Member States136
and the Commission’s proposed Directive,137 even though it does not distinguish
133 Communication on a common policy on illegal immigration, n. 3 above, at 6. Original

emphasis.
134 Communication on immigration, integration and employment, n. 106 above, at 15:
“[G]overnments increasingly recognise that a more pro-active and forward-
looking approach to immigration is needed to facilitate integration into
employment and that, unless a more open approach is taken to legal immi-
gration, the EU may be faced with increasing pressures, running the risk of
increased illegal immigration”.
135 Study on the links between legal and illegal migration, n. 107 above, at 18-20, where
the Commission agrees that there is a link between legal and irregular migration,
but argues that this is a complex and indirect relationship. Moreover, its conclusion
in respect of irregular migration supports continuing restrictive measures to address
the phenomenon underlining that “the common fight against illegal migration and
the development of a Community return policy are priorities amongst the develop-
ment of other policy instruments necessary to alleviate migratory pressure” (ibid. at
19).
136 See Cholewinski, The Legal Status of Migrants Admitted for Employment: A Com-
parative Study of Law and Practice in Selected European States, Doc. MG-ST
(2002) 2 (Strasbourg: Council of Europe, 17 October 2002). See also Apap, “Shap-
ing Europe’s Migration Policy. New Regimes for the Employment of Third Country
Nationals: A Comparison of Strategies in Germany, Sweden, the Netherlands and
the UK” (2002) 4 EJML 309.
137 See Draft Directive on the employment of third-country nationals, n. 132 above, Pre-
amble, Recital 6: “In an increasingly global labour market and faced with the short-
935
Ryszard Cholewinski
formally between highly skilled and low-skilled migrant workers, are primarily
aimed at responding to labour market shortages in skilled labour. Without the
establishment of clear common admission rules and less bureaucratic practices,
which would provide less skilled migrants in third countries a real prospect of
access to the labour market in Member States, the dilemma identified above is
unlikely to be resolved in favour of reduced irregular migration for employment.
Unfortunately, the Commission’s proposed Directive did not receive agreement
in the Council,138 where Member State governments appear to lack the politi-
cal will to subject their discretion concerning the employment of third-country
nationals to EU regulation. The Commission has tried to reopen discussions
on the issue with a Green Paper which aims to consult widely on the admission
of third-country nationals for employment to see how this important “missing
link” in EU migration policy can be addressed.139
Finally, it is necessary to learn more about the phenomenon of irregular
migration, and to ensure that any such information is made publicly available,
before effective action can be taken to prevent it. While correctly recognising
irregular migration as “multifaceted in terms of the individuals concerned and
the patterns of their illegal entry and residence”, which includes both clandes-
tine entrants and those who “overstay” the period of validity in their visa or
residence permit, the Commission, in its Communication on a common policy
on illegal immigration, and the Council, in its Comprehensive Plan, do not dis-
tinguish between the significance of these two categories.140 In this regard, it is
important to underline the particular characteristics of the latter category of
irregular migrants, which are often forgotten or ignored in the preoccupation
with the former:
Irregular immigrants that enter the state without governmental permission

(such as those smuggled in or those who cross unofficially at the border) and
those who enter with fraudulent or falsified documentation, receive the most
public and media attention. However, many irregular migrants are irregular
residents, not irregular entrants – people who have entered the state legiti-
mately but whose permission to stay has expired or been invalidated. These
people have often drifted into this irregular situation, have lived law-abiding
lives in their countries of residence, established deep community ties, and have
age of skilled labour in certain sectors of the labour market the Community should
reinforce its competitiveness to recruit and attract third-country workers, when
needed. …”. Emphasis added.
138 Study on the links between legal and illegal migration, n. 107 above, at 16.
139 COM (2004) 811, 11 Jan. 2005.
140 See respectively Communication on a common policy on illegal immigration, n. 3
above, at 7 and Council Plan to Combat Illegal Immigration, n. 6 above, points 7 and
8.
936
resided in the host state for many years. To distinguish between various groups
of irregular migrants in this way brings into question the view that immigrants
with irregular status are those whose residence has never been consented to
by the host government. In the latter case, for example, consent to enter and
reside has, at some point, been given to the immigrants, but it has later been
taken away, or the terms on which it has been given have been violated.141
The Commission and Council assume that the phenomenon of irregular migra-
tion is significant without attempting to assess more accurately the extent of the
problem in quantitative terms:142 “Due [Owing] to the nature of undocumented
residence it is not possible to assess the exact proportions between the different
categories of illegal residents. It seems clear, however, that each one represents
a significant part of the whole phenomenon of illegal immigration …”.143 Else-
where, the Commission and Council observe more explicitly:
It is a widely shared assessment that the level of illegal immigration is significant

and cannot be neglected due to its social, economic and political implications
in the countries of destination. However, by definition it is impossible to have
a clear picture of the scale of the phenomenon of illegal immigration in the
Member States of the European Union.144
Moreover, the status of those irregular migrants effectively tolerated by the

authorities is hardly clear in the developing EU policy on irregular migration.
Formally, these migrants are considered to be in an irregular situation given
that identifying who is an unlawful resident is a matter for the Member State to
determine, although clearly their tolerated status in the territory casts serious
doubts on the legitimacy of this approach.
It would appear, however, that more efforts are going to be undertaken in
the near future to provide an EU-wide analysis of available information on irreg-
141 Gibney, n. 1 above, at 21.

142 In its Communication on a Community immigration policy, n. 104 above, at 13,
however, the Commission refers to Europol estimates of 500,000 people annually
entering the EU without authorisation. But this figure is not reiterated in the Com-
mission’s study on the links between legal and illegal migration, n. 107 above, at 11,
where it notes more tentatively that “estimates of annual inflows of illegal migration
into the EU are thought to reach over six figures” and then adds that “more precise
figures cannot be considered reliable”.
143 See respectively Communication on a common policy on illegal immigration, n. 3
above, at 7 and Council Plan to Combat Illegal Immigration, n. 6 above, point 9. The
wording in parenthesis is the slightly different wording found in the Council’s Plan.
144 Communication on a common policy on illegal immigration, ibid., at 14 and Council
Plan to Combat Illegal Immigration, ibid. point 41. Emphasis added.
937
Ryszard Cholewinski
ular migration and also to make it more widely available. In its Plan to Combat
Illegal Immigration, the Council urges the adoption of the necessary measures
to provide Member States with reliable statistical data on legal and irregular
immigration in the context of implementing its Conclusions in May 2001 calling
for the preparation of a public annual report consisting of a statistical overview
and an analysis of the trends in asylum and migration flows, which would also
include a section analysing data on irregular immigration.145 Moreover, towards
the end of 2001, the Commission reviewed the publication rules applicable to the
statistics exchanged by Member States through the Centre for Information, Dis-
cussion and Exchange on the Crossing of Borders and Immigration (CIREFI),
which was originally established by European Immigration Ministers outside
of Community and EU structures and reorganised under former third pillar
cooperation in the fields of JHA.146 While agreeing to take account of the sen-
sitivity concerns of national authorities, the Commission proposed the publica-
tion of CIREFI statistics on the following categories of persons: refused aliens,
apprehended aliens illegally present, apprehended facilitators, apprehended
facilitated aliens, and removed aliens.147 Although a number of Member State
governments supported this initiative, a few continued to demonstrate resis-
tance to the publication of this information, chiefly on the basis that it could be
used to favour those who facilitate irregular migration, and one major Member
State was substantially opposed.148 Consequently, it was agreed that only annual
145 See ibid. points 42-43 and Council Conclusions regarding common analysis and the
improved exchange of statistics on asylum and migration, 28 May 2001, Council
doc. 7973/01 ASIM 10.
146 See respectively Decision of 30 Nov. 1992 setting up a Centre for Information, Dis-
cussion and Exchange on the Crossing of Frontiers and Immigration (CIREFI)
(published in Guild and Niessen, (eds), The Developing Immigration and Asylum
Policies of the European Union (Kluwer, 1996) at 205-209) and JHA Council Con-
clusions of 30 Nov. 1994 on the organisation and development of CIREFI, OJ 1996
C 274/50.
147 Publication rules for CIREFI statistics (Council doc. 12079/01, 20 Sept. 2001) at 3.
148 See Compilation of comments on the Commission proposal for new publication rules
for CIREFI statistics (Council docs. 13369/01, 6 Nov. 2001 and 13369/01 ADD 1,
10 Dec. 2001). The following Member States generally supported the Commission’s
initiative: Belgium, Denmark, Finland, Germany, Luxembourg, Netherlands, Por-
tugal and the United Kingdom. Two EEA countries, Iceland and Norway, also
favoured publication of the statistics on irregular migration. Two Member States,
however, qualified their support by urging that the statistics are only published a
considerable time after the period to which they refer in order to minimise the risk
that they might be used to the advantage of organised illegal immigration networks.
This reason is also primarily why the French delegation opposed wider circula-
tion of the statistics. It contended that “publication of all [CIREFI] data collected
through Eurostat should be restricted to national public services working in the field
938
Community statistics are published in the case of “illegal entry and enforcement
measures”.149 Despite these developments, however, European-wide statistical
data on irregular immigration is an inherently suspect commodity. Indeed, as
one expert observes in respect of smuggled and trafficked migrants, estimates
of their numbers reveal two main features: “First, there is a preference for nice
round numbers. Second, estimates are frequently rehearsed and recycled and
take on a momentum of their own”.150 The position might improve a little if
the Council and EP adopt the Commission’s recent proposal for a Regulation
on immigration and asylum statistics, which would require Member States to
provide information on persons refused entry and irregularly present, and on
persons who return to their countries of origin, broken down by age, sex and cit-
izenship.151 Consequently, there would appear to be insufficient hard data pres-
ently available, and which can be verified independently in the public domain,
to support the whole range of restrictive policies relating to irregular migration
both adopted and contemplated. However, the same argument cannot apply to
the adoption of some of the more positive measures identified in this Section,
which flow from principled reasoning based on the protection of fundamental
human rights rather than in response to ill-assessed perceptions of the problem
of irregular migration.
of immigration and the government authorities to which they answer, as well as to

the Commission, the Council working parties concerned and Europol, with access
being allowed on a “need to know” basis … The purpose of Eurostat reports on ille-
gal immigration is not to inform the public but to provide information for government
use …”. Emphasis added.
149 Commission, Communication to the Council and the European Parliament to present
an Action Plan for the collection and analysis of Community statistics in the field of
migration (COM (2003) 179, 15 Apr. 2003) at 8. The revised publication rules, ibid.,
state that monthly and quarterly statistics would not be available to “non-official
users” until they are at least 12 months old “in recognition of the concerns expressed
by some national authorities about the potential for mis-use of these statistics”.
The Commission was supposed to present a proposal for framework legislation in
this field in the form of a Regulation on the collection of Community statistics on
migration, citizenship and asylum, although this proposal has not yet been issued.
See ibid. at 21 and Study on the links between legal and illegal migration, n. 107 above,
at 15.
150 Salt, “European International Migration: Evaluation of the Current Situation” in
Council of Europe, Conference on “Irregular Migration and Dignity of Migrants:
Co-operation in the Mediterranean Region”: Proceedings, Athens, 3-4 October 2001,
Doc. MG-FL (2002) 7, 24 at 27.
151 COM(2005)376, 15 Sep. 2005; Arts. 5 and 7 of the proposal. Art. 8 provides for the
power for the Commission to require further disaggregation, regarding the place of
and reason for the apprehension or the refusal, and the reason for return of per-
sons.
939
Ryszard Cholewinski
5 Conclusion
EU law and policy on irregular migration is taking shape. However, it is not
developing as rapidly as the soft law that was adopted under the former third
pillar of the Maastricht Treaty. Clearly, Member States would appear to be
taking more care in agreeing to any measures that will constitute binding Com-
munity law. Although the Laeken European Council in December 2001 reflected
that progress in developing a common asylum and migration policy had been
“slower and less substantial than expected”,152 the slowing down of the law-
making process has enabled some of the measures on irregular migration to
be improved from the standpoint of human rights, albeit imperfectly. This has
occurred, for example, with the French Government’s initiatives on irregular
migration, originally proposed in August 2000.153 On the other hand, however,
a clear preference is developing for the adoption of soft law type measures in
this area as reflected in the adoption of the Council’s Comprehensive Plan to
Combat Illegal Immigration and the Action Programme on return.
Given the vulnerable position of irregular migrants in relation not only to
private actors, such as traffickers and employers, but also state authorities, human
rights deserve far more prominence in the development of EU legal norms and
policy affecting this vulnerable group. Whereas the Commission recognised in its
1994 Communication on immigration and asylum policies that a common EU
edifice to address the problem of irregular migration could not be constructed
without a human rights foundation, it effectively removed this important cor-
nerstone a mere seven years later in its Communication on a common policy
on illegal immigration, which has also served as a basis for the Council Plan
to Combat Illegal Immigration currently being implemented. The Communica-
tion’s only tangible reference to human rights relates to the situation of irregular
migrants as refugees, although even here it expresses a preference for refugees to
be first screened outside of the EU. That irregular migrants possess fundamental
152 Presidency Conclusions: Laeken European Council, n. 6 above, Conclusion 38. See
also the Note from the Belgian Presidency to the European Council on the evalua-
tion of the Conclusions of the Tampere European Council, n. 123 above, at 4:
“Despite the political determination to make progress in [the areas of immi-
gration, asylum, and controls at external borders] current discussions within
the Council are not progressing as rapidly as might have been hoped, as a
result of the intrinsic technical difficulty of the subjects addressed …, of real
differences on the scope of the instruments to be adopted … and of Member
States’ reluctance to go beyond the confines of their national laws”.
153 E.g. compare the final text of Council Directive 2002/90/EC defining the facilita-
tion of unauthorised entry, transit and residence, n. 24 above, which now enables
Member States to exempt from sanctions those who intentionally assist irregu-
lar migrants for humanitarian reasons to enter or transit across the territory of
a Member State (Art. 1(2)), with the original French proposal (OJ 2000 C 253/2),
which only contained an exemption for close family members (Art. 4).
940
rights beyond those accruing to refugees, expressed first and foremost in general
international human rights treaty law to which all Member States are commit-
ted, is met with a wall of silence. The specialist international instruments, which
explicitly grant rights to irregular migrants, have also been ignored. Moreover,
the EU Charter of Fundamental Rights, the document which is supposed to
provide a new human rights architecture for the EU and in which many rights
are not confined to EU citizens or those third-country nationals with regular
status, plays no role whatsoever in the Commission’s Communication or in the
Council’s Comprehensive Plan. These are unacceptable omissions that do not
bode well for the future development of a fair and humane EU common law
and policy on irregular migration. Unfortunately, the framework for the adop-
tion of measures relating to irregular migration in the EU Constitutional Treaty
places undue emphasis on repressive activity, namely removal and repatriation
of persons residing without authorisation, combating trafficking in persons and
the conclusion of readmission agreements with third countries.154 On the other
hand, the Treaty also affords legally binding status to the Charter of Funda-
mental Rights and gives a clear legal basis for the EU to seek accession to the
ECHR.155 Consequently, on its entry into force,156 the Constitutional Treaty
would at least provide the EU with a much stronger human rights foundation
than has been the case to date. It is imperative, however, that the human rights
deficit is promptly restored at the heart of the developing EU law and policy on
irregular migration since otherwise, as the Commission itself recognised in 1994,
the repressive policies that have already been adopted and those that have been
proposed will lack credibility.
154 Draft Treaty Establishing a Constitution for Europe, OJ 2004 C 310/1, Articles III-
267(2)(c), (d) and (3) respectively. The provision introducing the common immigra-
tion policy reads: “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” (Article III-267(1)). Emphasis added.
155 See respectively Art. I-9(1) of Part II of the Constitutional Treaty, ibid. and Art.
I-9(2).
156 If it is approved in time by Member States’ parliaments and in national referenda,
the Treaty is projected to enter into force on 1 Nov. 2006; as of 1 Jan. 2006, this
seemed highly unlikely.
941
Annexes
Annex I Proposed and Adopted Title IV Measures
(as of 1 Jan. 2006)
1. Title IV EC Visas, Borders, Immigration and Asylum

a) Agreed Measures
b) Proposed Measures
c) International Treaties
d) Communications, discussion papers, strategy papers
e) Case law
2. Schengen
a) Adopted Measures
b) International Treaties
c) Case law
3. Title VI EU Police and Criminal Law
a) Adopted Measures
b) Proposed Measures
1. Title IV EC Visas, Borders, Immigration and Asylum

a) Adopted measures
Asylum
1. Decision 2000/596/EC on European refugee fund (OJ 2000 L 252/12)
– Proposal: by Commission (COM (1999) 686, 14 Dec. 1999; OJ 2000 C
116 E/72); amended following EP vote (COM (2000) 533, 15 Sep. 2000;
OJ 2001 C 29 E/223)
– Legal base: Article 63(2)(b) EC
– Background: replaced 1999 Joint Action on refugee funding upon
expiry
– Flexibility: UK and Ireland opted in; Denmark has automatic opt-
out
– EP: plenary vote on Frahm report (A5-0091/00), Apr. 2000 (OJ 2001 C
40/48)
– Economic and Social Committee: vote 27 Apr. 2000 (OJ 2000 C
168/20)
Annex I
– Committee of the Regions: vote 14 June 2000 (OJ 2000 C 317/4)

– Council: discussed at May 2000 JHA Council; adopted by JHA Coun-
cil, 28 Sep. 2000
2. Regulation 2725/2000 on Eurodac (OJ 2000 L 316/1)

– Proposal: by Commission (COM (1999) 260, 26 May 1999; OJ 2000
C 337 E/37); revised proposal following EP vote (COM (2000) 100, 15
Mar. 2000; OJ 2001 C 29 E/1)
– Legal base: Article 63(1)(a) EC
– Background: replaced Convention and Protocol agreed and “frozen” in
Dec. 1998 and Mar. 1999
– Flexibility: UK and Ireland opted in; Denmark requested separate
agreement with EC
– EP: plenary vote on Pirker report (A5-0059/99), 11 Nov. 1999 (OJ 2000
C 189/227)
– EP reconsultation: vote on Pirker report (A5-0219/00), 21 Sep. 2000
(OJ 2001 C 146/87)
– Council: approved at 2 Dec. 1999 JHA Council except for territorial
scope; adopted by written procedure, 11 Dec. 2000 (see Health Council
press release, 14 Dec. 2000)
– Implementing measure: discussed at JHA Council, 6/7 Dec. 2001;
adopted by JHA Council, 28 Feb. 2002 (Reg. 407/2002, OJ 2002 L
62/1)
– Entry into force: 15 Dec. 2000 (see Art. 27(1))
– Application date: 15 Jan .2003 (OJ 2003 C 5/2)
3. Directive 2001/55 on temporary protection (OJ 2001 L 212/12)

– Proposal: from Commission (COM (2000) 303, 24 May 2000; OJ 2000
C 311 E/251)
– Legal base: Article 63(2) EC
– Background: replaces prior proposal for Joint Action from 1997 (COM
(97) 93, 5 Mar. 1997), amended in 1998 (COM (98) 372, 24 June 1998;
OJ 1998 C 268), but never adopted
– Flexibility: UK opted in; Ireland initially opted out; Denmark has
automatic opt-out; Ireland opted in later (Commission Decision
2003/690, OJ 2003 L 251/23)
– EP: plenary vote on Wiebenga report (A5-0077/2001), 13 Mar. 2001
(OJ 2001 C 343)
– Economic and Social Committee: vote at March 2001 session (OJ 2001
C 155/21)
– Committee of the Regions: vote at June 2001 session (OJ 2001 C
357/6)
946
List of Proposals and Adopted Measures
– Council: presented at May 2000 JHA Council; discussed at JHA Coun-

cil, 15/16 Mar. 2001; political agreement at JHA Council, 28/29 May
2001; adopted by Budget Council, 20 July 2001
– Implementation date: 31 Dec. 2002 (Art. 32(1)); 31 Dec. 2003 in Ireland
(Art. 2 of Decision)
4. Directive 2003/9 on reception conditions for asylum-seekers (OJ 2003 L

31/18)
– Proposal: from Commission (COM (2001) 181, 3 Apr. 2001; OJ 2001 C
213 E/286)
– Background: issue previously discussed at 28 Sep. 2000 JHA Council;
Council adopted conclusions on this issue at 30 Nov/1 Dec 2000 JHA
Council
– Flexibility: UK opted in; Ireland opted out; Denmark has automatic
opt-out
– EP: plenary vote on Hernandez Mollar report (A5-0112/2002), 25 Apr.
2002 (OJ 2003 C 131 E/119)
– Council: “common understanding” reached, 25/26 Apr. 2002 JHA
Council; discussed at JHA Council, 14/15 Oct. 2002, 28/29 Nov. 2002;
adopted by External Relations Council, 27 Jan. 2003
– Implementation date: 6 Feb. 2005 (Art. 26(1))
5. Regulation 343/2003 on responsibility for asylum-seekers (OJ 2003 L 50/1)

– Proposal: by Commission (COM (2001) 447, 26 July 2001; OJ 2001 C
304 E/192)
– Background: will replace Dublin Convention (OJ 1997 C 254/1)
out
– EP: plenary vote on Marinho report (A5-0081/2002), 9 Apr. 2002 (OJ
2003 C 127 E/151)
– Council: discussed at 13 June 2002 JHA Council; June 2002 Seville
European Council set deadline to agree by Dec. 2002; discussed at
JHA Council, 14/15 Oct. 2002, 28/29 Nov. 2002; agreement following
“silent procedure” on 6 Dec. 2002; formally adopted by Ecofin Coun-
cil, 18 Feb. 2003
– Application date: 1 Sep. 2003 (Art. 29)
– Implementing measure: Commission Reg. 1560/2003, adopted 3 Sep.
2003 (OJ 2003 L 222/3)
6. Directive 2004/83 on definition of refugee status, content of refugee status,

and subsidiary protection (OJ 2004 L 304/12)
947
Annex I
– Proposal: by Commission (COM (2001) 510, 12 Sep. 2001; OJ 2002 C

51 E/325)
– Legal base: Article 63(1)(c), 63(2)(a) and 63(3)(a) EC
out
– EP: plenary vote on Lambert report (A5-0333/2002) 21 Oct. 2002 (OJ
2003 C 300 E/134)
– Council: first presented at working group on 22 Mar. 2002; June 2002
Seville European Council set deadline to agree by June 2003; discussed
at JHA Council, 14/15 Oct. 2002, 28/29 Nov. 2002, 27/28 Feb. 2003, 8
May 2003, 5/6 June 2003, 28/29 Nov. 2003, 19 Feb. 2004; agreement
reached at JHA Council, 30 Mar. 2004; adopted as ‘A’ point by JHA
Council, 29 April 2004
– Implementation date: 10 Oct. 2006 (Art. 38(1))
7. Decision on extension of European Refugee Fund (OJ 2004 L 381/52)

– Proposal: by Commission (COM (2004) 102, 12 Feb. 2004)
out
– EP: plenary vote 20 April 2004 on Deprez report (A5-0267/2004)
– Council: JHA Council, 8 June 2004 reached political agreement;
adopted as “A” point, 2 Dec. 2004 JHA Council
8. Directive 2005/85 on asylum procedures (OJ 2005 L 326/13)

– Proposal: by Commission (COM (2000) 578, 20 Sep. 2000; OJ 2001 C
62 E/231); amended proposal (COM (2002) 326, 18 June 2002; OJ 2002
C 291 E/143)
– Legal base: Article 63(1)(d) EC
out
– EP: plenary vote on Watson report (A5-0291/01), 20 Sep. 2001 (OJ
2002 C 77 E/94); EP reconsulted (plenary vote Sep. 2005)
– Council: welcomed in principle at 28 Sep. 2000 JHA Council; discussed
at 27/28 Sep. 2001 JHA Council; conclusions on directive agreed by
JHA Council, 6/7 Dec. 2001; 15/16 Dec. 2001 Laeken European Coun-
cil requested new proposal by Apr. 2002; “open debate” at JHA Coun-
cil, 14/15 Oct. 2002; partly agreed at JHA Council, 5-6 June 2003;
discussion at 2-3 Oct. 2003 JHA Council on issue of “safe countries of
origin”; discussion at 6 Nov. 2003 JHA Council on “safe third coun-
tries”, border procedures; discussed at 28/29 Nov. 2003, 19 Feb. 2004,
30 Mar. 2004 JHA Councils; “general approach” agreed at JHA Coun-
948
cil, 29/30 April 2004, revised at JHA Council, 19 Nov. 2004; adopted
by JHA Council, 1-2 Dec. 2005
– Application date: 1 Dec. 2007; 1 Dec. 2008 as regards legal aid (Art.
43)
Visas and border controls: Pre-Amsterdam Legislation

1. Regulation 1683/95 on a uniform visa format (OJ 1995 L 163/1)
– Proposal: by Commission (COM (94) 287, 13 Jul. 1994; OJ 1994 C
238)
– Legal Base: Article 100c EC (now deleted)
– EP: plenary vote on Lehne report (A3-0117/1994), 16 Jan. 1995 (OJ
1995 C 43/9)
– Council: adopted by General Affairs Council, May 1995
– Status: amended by Reg. 334/2002 (see below)
2. Regulation 2317/95 on the list of third countries whose nationals require

visas to cross the external borders of the EC (OJ 1995 L 234/1)
11)
– EP: plenary vote on Froment-Meurice report (A3-0193/1994), 21 Apr.
1994 (OJ 1994 C 128/258)
– Council: adopted by JHA Council, Sep. 1995
– Status: annulled by Court of Justice (Case C-392/95 EP v Council
[1997] ECR I-3213)
3. Regulation 574/1999 on the list of third countries whose nationals require

visas to cross the external borders of the EC (OJ 1999 L 72/2)
11)
– Background: replaced Reg. 2317/95 (OJ 1995 L 234/1)
– EP: plenary vote on Lehne report (A3-0043/1999), 10 Feb. 1999 (OJ
1999 C 150/155)
– Council: adopted by JHA Council, Mar. 1999
– Implementation reports: OJ 1996 C 379; OJ 1997 C 180; OJ 1998 C 101;
OJ 1999 C 133; OJ 2000 C 272
– Status: replaced by Reg. 539/2001 (see below)
Visas and border controls: Post-Amsterdam Legislation (all build on Schengen

acquis)
1. Regulation 539/2001 on third countries whose nationals are or are not sub-
ject to a visa requirement (“visa list”) (OJ 2001 L 81/1)
949
Annex I
– Proposal: by Commission (COM (2000) 27, 26 Jan. 2000; OJ 2000 C

177 E/66); revised after EP vote (COM (2000) 577, 21 Sep 2000; OJ
2000 C 376 E/1)
– Legal base: Article 62(2)(b)(i) EC
– Background: replaced Regulation 574/1999 (see above) and part of
Schengen acquis
– Flexibility: UK and Ireland opted out; Denmark is covered as EC law
matter
– EP: plenary vote on Lehne report (A5-0179/2000), 3 July 2000 (OJ
2001 C 121/144)
– EP reconsultation: plenary vote on Lehne report (A5-0056/2001), 1
Mar. 2001 (OJ 2001 C 277/167)
– Council: discussion at JHA Council, 28 Sep. 2000; political agreement
at JHA Council, 30 Nov./1 Dec. 2000; adopted by JHA Council, 15/16
Mar. 2001
– Entry into force: 10 Apr. 2001 (Art. 8(1)); visa abolition for Romania
deferred to later date (see Art. 8(2)); Commission report on this issue
in June 2001 (COM (2001) 361, 29 Jun. 2001); 27-28 Sep. 2001 JHA
Council noted Commission’s intention to propose visa abolition for
Romania for Council to agree at meeting of 6-7 Dec. 2001; abolition
agreed at that Council (see Reg. 2414/2001 below)
– Implementation: Commission reports in OJ 2001 C 363/21, OJ 2003 C
68/2
– Status: amended by Regs. 2414/2001, 453/2003 and 851/2005 (see
below)
2. Regulation 789/2001 on updating CCI (OJ 2001 L 116/2)

– Proposal: by Finland (OJ 2000 C 164/7)
– Legal base: Articles 62(2) and (3) EC
– Background: replaces Schengen system for updating the CCI and asso-
ciated documents
– Flexibility: UK and Ireland position unclear; Denmark decided to
implement in national law (Council doc. 14241/01)
– EP: plenary vote to reject following Deprez report (A5-0066/2001), 13
Mar. 2001 (OJ 2001 C 343)
– Council: discussed at JHA Council, 15/16 Mar. 2001; adopted by Agri-
culture Council, 24 Apr. 2001
– Entry into force: 24 Apr. 2001 (Art. 4)
– Status: validity upheld by Court of Justice (judgment of Jan. 2005 in
Case C-257/01 Commission v Council)
3. Regulation 790/2001 on the procedure for updating the Common Manual

(OJ 2001 L 116/5)
950
– Proposal: by Portugal (OJ 2001 C 73/8)

– Legal base: Articles 62(2)(a) and (b) and 67(1) EC
– Flexibility: UK and Ireland position unclear; Denmark decided to
implement in national law (Council doc. 14241/01)
– EP: plenary vote against, 13 Mar. 2001 (OJ 2001 C 343; see Deprez
report (A5-0066/2001))
– Council: discussed at JHA Council, 15/16 Mar. 2001; adopted by Agric.
Council, 24 Apr. 2001
– Status: validity upheld by Court of Justice (judgment of Jan. 2005 in
Case C-257/01 Commission v Council)
4. Regulation 1091/2001 on freedom to travel for holders of long-term visas

(OJ 2001 L 150/4)
– Proposal: by France (OJ 2000 C 200/4)
– Legal base: Articles 62(2)(b)(ii) and 63(3)(a) EC
– Flexibility: UK and Ireland opted out; Denmark decided to implement
in national law (Council doc. 9963/02)
– EP: plenary vote on Deprez report (A5-0388/00), 18 Jan. 2001 (OJ
2001 C 262/264)
– Council: adopted by JHA Council, 28/29 May 2001
– Application date: 7 June 2001 (Art 3)
5. Regulation 2414/2001 amending Regulation 539/2001 regarding Romania

(OJ 2001 L 327/1)
– Proposal: by Commission (COM (2001) 570, 8 Oct. 2001; OJ 2002 C 25
E/495)
– Legal base: Art. 62(2)(b)(i)
– Background: deletes Romania from visa “blacklist”
– Flexibility: UK and Ireland opted out; Denmark is covered as EC law
matter
– EP: plenary vote in favour (simplified procedure), 29 Nov. 2001 (OJ
2002 C 153 E/233)
– Council: adopted by JHA Council, 6-7 Dec. 2001
– Application date: 1 Jan. 2002 (Art. 2)
6. Regulation 333/2002 establishing a uniform form for stickers attached to

visas for persons who have travel documents from an entity which is not
recognised (OJ 2002 L 53/4)
– Proposal: from Commission (COM (2001) 157, 23 Mar. 2001; OJ 2001
C 180 E/301)
– Legal base: Article 62(2)(b)(iii) EC
951
Annex I
– Background: replaced Joint Action proposed by Austrian Presidency in

1998 but not agreed and Finnish Presidency proposal for Regulation
of Sep. 1999 (Council doc. 10895/99, 9 Sep. 1999) not agreed (Finnish
proposal also covered persons with no documents)
– Flexibility: UK opted in; Ireland opted out; Denmark is covered as EC
law matter
– EP: plenary vote on Sousa Pinto report (A5-0445/2001), 12 Dec. 2001
(OJ 2002 C 177 E/127)
– Council: adopted by General Affairs Council, 18 Feb. 2002
– Entry into force: 23 Feb. 2002 (Art. 9)
7. Regulation 334/2002 amending Reg. 1683/95 on a common format for visas

(OJ 2002 L 53/7)
C 180 E/310; amended version in COM (2001) 577, 9 Oct. 2001; OJ
2002 C 51 E/219)
– Legal base: Article 62(2)(b)(iii) EC
– Background: updates the committee system assisting the Commission
implementing the Regulation, and extends its powers
– Flexibility: UK opted in; Ireland opted out; Denmark is covered as EC
law
(OJ 2002 C 177 E/123)
– Council: adopted by General Affairs Council, 18 Feb. 2002
– Entry into force: 15 Mar. 2002 (Art. 4)
8. Regulation 415/2003 on issue of visas at the border and to seamen (OJ 2003
L 64/1)
– Proposal: from Spain (OJ 2002 C 139/6)
– Flexibility: UK & Ireland opt out; Denmark decided to implement in
national law (Council doc. 14588/03)
– EP: plenary vote on Karamanou report (A5-0006/2003), 11 Feb. 2003
(OJ 2004 C 43 E/36)
– Council: agreed by JHA Council/Mixed Committee 19 Dec. 2002;
adopted by JHA Council 27 Feb. 2003
– Entry into force: 1 May 2003 (Art. 6)
9. Regulation 453/2003 amending visa list (OJ 2003 L 69/10)

– Proposal: from Commission (COM (2002) 679, 28 Nov. 2002)
– Background: adds Ecuador to visa “blacklist” and makes technical
changes to Reg. 539/2001
– Flexibility: UK & Ireland opt out; Denmark covered as EC law
matter
952
– EP: plenary vote on Hernandez Mollar report (A5-0005/2003), 11 Feb.

2003 (OJ 2004 C 43 E/59)
– Council: agreement at JHA Council/Mixed Committee, 19 Dec. 2002;
adopted by Employment, Consumers and Health Council, 6 Mar.
2003
– Entry into force: 3 Apr. 2003 (Art. 3(1)); visa requirement applied from
1 June 2003 (Art. 3(2))
10. Regulation 693/2003 on facilitated travel documents (OJ 2003 L 99/8)

– Proposal: from Commission (COM (2003) 60, 5 Feb. 2003)
– Legal base: Art. 62(2) EC
– Background: permits easier entry to and from Kaliningrad across Lith-
uania
– Flexibility: UK & Ireland opt out; Denmark decided to implement in
– EP: plenary vote on Oostlander report (A5-0075/2003), 9 Apr. 2003
(OJ 2004 C 64 E/194)
– Council: adopted by General Affairs and External Relations Council,
14 Apr. 2003
11. Regulation 694/2003 on the format for facilitated travel documents (OJ
2003 L 99/15)
– Legal base: Art. 62(2) EC
– Background: sets out format for documents permitting easier entry to
and from Kaliningrad across Lithuania
– Flexibility: UK & Ireland opted out; Denmark implemented in national
law (Council doc. 14588/03)
(OJ 2004 C 64 E/196)
– Council: adopted by General Affairs and External Relations Council,
14 Apr. 2003
953
Annex I
12. Regulation 1295/2003 on special visa rules for Olympic family (OJ 2003 L
183/1)
– Proposal: from Commission (COM (2003) 172, 8 Apr. 2003)
– Legal base: Arts. 62(2)(a) and Arts. 62(2)(b)(ii) EC
– EP: plenary vote on Matikanen-Kallstrom report (A5-0211/2003), 18
June 2003
– Council: JHA Council/Mixed Committee agreed general approach, 5-6
June 2003; adopted by Ecofin Council, 15 July 2003
– Entry into force: 11 Aug. 2003 (Art. 11)
13. Decision on signs at border crossing points (OJ 2004 L 261/119)

– Proposal: from Greece (OJ 2003 C 125/6; Council doc. 8830/03, 13
May 2003)
– Legal base: Art. 62(2)(a) EC
– Background: updates rules in Schengen acquis on signs at border cross-
ing points
– EP: Deprez report adopted 4 Nov. 2003 (A5-0366/2003); plenary vote
in favour, 20 Nov. 2003
– Council: adopted as ‘A’ point by JHA Council, 29 April 2004
– Application date: 1 June 2004 for new signs, 1 June 2009 for replace-
ments (Art. 6)
14. Decision establishing Visa Information System (OJ 2004 L 213/5)

– Legal base: Article 66 EC
in international law (Council doc. 12195/04)
– EP: Coelho report (A5-0262/2004) urged rejection; supported by ple-
nary vote, 20 April 2004
– Council: adopted by JHA Council, 8 June 2004
– Application date: 5 July 2004 (Art. 7)
15. Regulation 2007/2004 establishing agency for border management (OJ 2004
L 349/1)
– Legal base: Articles 62(2)(a) and 66 EC
– Flexibility: UK attempted to opt in; Ireland opted out; Denmark could
apply as a matter of international law
954
– EP: plenary vote 9 March 2004, following von Botticher report (A5-
0093/2004)
– Council: conclusions agreed by 28/29 Nov. 2003 JHA Council/Mixed
Committee; 30 March 2004 JHA Council/Mixed Committee reached
“political agreement”; adoption as “A” point by JHA Council, 25/26
Oct. 2004
– Application date: 1 May 2005 (Art. 34)
16. Regulation 2133/2004 on stamping of travel documents at external borders

(OJ 2004 L 369/5)
– Flexibility: UK and Ireland opted out; Denmark could apply as a
matter of international law
– EP: plenary vote following Angellili report (A5-0229/2004), 21 April
2004 (OJ 2005 C 104 E/
– Council: adopted as “A” point by General Affairs Council, 13 Dec.
2004
– Entry into force: 16 Dec. 2004 (Art. 6)
– Application date: 1 Dec. 2005 (Art. 6)
17. Regulation 2252/2004 on biometric features in EU passports (OJ 2004 L

385/1)
– Flexibility: UK attempted to opt in; Ireland opted out; Denmark can
opt in as matter of international law
– EP: plenary vote Dec. 2004
– Council: JHA Council/Mixed Committee, 8 June 2004 gave “political
guidance” on the proposal; JHA Council/Mixed Committee, 25/26
Oct. 2004, supported mandatory fingerprinting for passports; adopted
as “A” point by General Affairs Council, 13 Dec. 2004
– Entry into force: 18 Jan. 2005 (Art. 6)
18. Regulation 851/2005 amending Regulation 539/2001 concerning the reci-

procity mechanism (OJ 2005 L 141/3)
– Proposal: from Commission (COM (2004) 437, July 2004)
– Flexibility: UK and Ireland opt out; Denmark covered as EC law; new
Member States covered immediately
– EP: plenary vote following Lax report (A6-0065/2005), 27 April 2005
– Council: JHA Council, 24 Feb. 2005 agreed ‘general approach’ on text;
adopted as “A” point, 2-3 June 2005 JHA Council
955
Annex I
– Entry into force: 24 June 2005 (Art. 3)
19. Recommendation on facilitation of issue of short-term visas to researchers

(OJ 2005 L 289/23)
– Proposal: by Commission (COM (2004) 178, 16 Mar. 2004)
– Flexibility: UK and Ireland opted out; Denmark cannot opt in
– EP: plenary vote 12 April 2005
– Council: Commission presented proposals at 30 March 2004 JHA
Council; Environment Council, 28 June 2004, agreed on recommenda-
tion; first-reading agreement with EP; adopted by Agriculture Coun-
cil, 18 July 2005
20. Regulation 2046/2005 on special rules for Turin Winter Olympics (OJ 2005
L 334/1)
– Proposal: by Commission (COM (2005) 412, 7 Sept. 2005)
– Legal base: Article 62(2)(a) and 62(b)(ii); qualified majority vote and
co-decision with the EP
– Flexibility: UK and Ireland opted out; Denmark could apply as inter-
national law
– EP: plenary vote on Zappala report (A6-0275/2005), 15 Nov. 2005
– Council: adopted by JHA Council, 1-2 Dec. 2005
– Application date: 9 Jan. 2006 (Art. 11)
Visas and border controls: Implementing measures (legal base: Regs. 789 and
790/2001 so no involvement of EP; all build on Schengen acquis)
1. Decision amending confidential provisions of CCI (not published in OJ)
– Proposal: by Sweden (not published): noted in agenda of visa working
party meeting, 8/9 Mar. 2001
– Background: content unknown; updates Annex 10 of the Common
Consular Instructions and Annex 8 of the Schengen Consultation
Network (Technical specifications): confidential Annexes which con-
cern instructions on writing entries in the section of a visa to be elec-
tronically scanned
– Flexibility: UK and Ireland opted out; Denmark applied as national
law measure (Council doc. 14241/01)
– Council: adopted by Agriculture Council (not listed in press release),
24 Apr. 2001
2. Decision 2001/329/EC amending CCI and Common Consular Manual (OJ

2001 L 116/32)
– Proposal: by Sweden (Council doc. 6789/01, 5 Mar. 2001)
– Background: updates rules to take account of Nordic states joining
Schengen; amends part VI and annexes 3, 6 and 13 of the CCI and
956
Annexes 5(a) 6(a) and 8 to the Common Manual: these concern airport
transit visas, honorary consuls, methods of filling in a visa sticker
– Council: adopted by Agriculture Council, 24 Apr. 2001
3. Decision 2001/420 amending CCI, Parts V and VI and Annex 13, and
Common Manual, Annex 6a (OJ 2001 L 150/47)
– Background: gives effect to Regulation 1091/2001 on long-stay visas
(see above)
– Council: adopted by JHA Council, 28-29 May 2001
– Application date: 15 June 2001 (Art. 4)
4. Decision 2002/44 amending Part VII, Annex 12 of the CCI and Annex 14a
of the Common Manual (OJ 2002 L 20/5)
– Proposal: Initiative of Belgium (Council doc. 10463/01, 25 June 2001)
– Background: specifies that fees are charged for considering visa appli-
cations, not for the visa itself, and exempts family members of EC
nationals from fees
– Flexibility: UK & Ireland opted out; Denmark applied as national law
measure (Council doc. 9963/02)
– Council: supported by Mixed Committee, 6/7 Dec. 2001; adopted by
Internal Market Council, 20 Dec. 2001
– Application date: 1 July 2004 (Art. 3(1))
5. Decision 2002/357 deleting provisions of the Common Manual (OJ 2002 L

123/47)
– Proposal: from Sweden and Belgium (Council doc 9733/01, 18 June
2001)
– Background: deletes two annexes to Common Manual in “pruning”
exercise
– Flexibility: UK and Ireland opted out; Denmark implemented in
– Council: adopted by JHA Council, 25/26 Apr. 2002
– Entry into force: 1 June 2002 (see Art. 2)
6. Decision 2002/354 amending Part III CCI and creating a new Annex 16
CCI (OJ 2002 L 123/50)
– Proposal: from Belgium (Council doc. 15320/01, 18 Dec. 2001)
– Background: establishes a standard form for a Schengen visa applica-
tion
957
Annex I
– Flexibility: UK and Ireland opted out; Denmark could opt in as matter

of international law
– Council: adopted as “A” point by JHA Council, 25/26 Apr. 2002
7. Decision amending Parts III and VIII of CCI (OJ 2002 L 187/44)
– Proposal: from Belgium (Council doc. 12708/01, 12 Oct. 2001)
– Background: sets out common rules on submission of visa applications
by travel agents
– Council: adopted by Ecofin Council, 12 July 2002
– Entry into force: 16 July 2002 (Art. 3)
8. Decision amending Part VI to the CCI (OJ 2002 L 187/48)

– Proposal: see Council doc. 7760/02
– Background: revises the CCI to take account of Reg. 334/2002 on the
visa format
9. Decision amending Part II Borders Manual (OJ 2002 L 187/50)

– Proposal: Council doc. 8322/02, 25 Apr. 2002
– Background: makes minor changes to Part II of Common Manual
10. Decision on fees for considering visa applications (OJ 2003 L 152/82)
– Proposal: from Greece (Council doc. 7655/03, 20 Mar. 2003)
– Background: replaces existing Annex 12 to CCI and Annex 14a to
Common Manual; sets standard rate of 35 euro for consideration of
all short-stay visa applications and also takes account of Decision
2002/44 establishing fees for considering visa applications (see above)
– Flexibility: UK & Ireland opted out; Denmark decided to implement
– Council: adopted by Environment Council, 13 June 2003
– Application date: 1 July 2005 at the latest (Art. 2)
958
11. Decision on visa requirements for holders of Pakistani diplomatic pass-

ports (OJ 2003 L 198/13)
– Proposal: from Greece
– Background: amends CCI and Common Manual
– Council: adopted 28 July 2003
12. Decision re airport transit visas for Eritreans (OJ 2003 L 198/15)
– Proposal: from Italy
– Background: amends CCI and Common Manual
– Council: adopted 28 July 2003
13. Decision amending CCI to require travel insurance (OJ 2004 L 5/79)
– Proposal: from Greece (Council doc. 9748/03, 2 June 2003)
– Background: requires visa applicants to have travel insurance in most
cases
of international law; delayed application to new Member States
– Council: adopted as “A” point by Environment Council, 22 Dec. 2003
– Implementation date: 1 June 2004 (Art. 3)
14. Decision amending CCI re: representation by Member States (OJ 2004 L
5/76)
– Proposal: from France (Council doc. 10072/03, 3 June 2003)
– Background: allows greater possibility for one Member State to issue
Schengen visas on behalf of another; delayed application to new
Member States
– Flexibility: UK and Ireland have opted out; Denmark could opt in as
– Implementation date: 9 Jan. 2004 (Art. 3)
15. Decision amending CCI re: interviews at consulates (OJ 2004 L 5/74)
– Proposal: from Italy (Council doc. 16043/03, 12 Dec. 2003)
of international law; delayed application to new Member States
959
Annex I
16. Decision amending Common Manual re: treatment of minors (OJ 2004 L
157/136)
in international law (Council doc. 12195/04)
– Council: adopted as “A” point by JHA Council, 29 April 2004
– Entry into force: 1 May 2004 (Art. 2)
17. Decision amending border manual to establish standard form for refusal
(OJ 2004 L 261/36)
– Council: adopted as “A” point by JHA Council, 29 April 2004
Irregular migration (all build on Schengen acquis)

1. Directive 2001/40 on mutual recognition of expulsion decisions (OJ 2001 L
149/34)
– Flexibility: UK opted in; Ireland opted in later (see Schengen section
below); Denmark applied in national law (Council doc. 9963/02, 20
June 2002)
– EP plenary: rejection based on Nassauer report (A5-0065/2001), 13
Mar. 2001 (OJ 2001 C 343)
– Council: discussed at Mixed Committee/JHA Council, 30 Nov/1 Dec
2000; adopted by JHA Council, 28-29 May 2001
– Implementation deadline: 2 Dec. 2002 (Art 8(1))
2. Directive 2001/51 on carrier sanctions (OJ 2001 L 187/45)

– Flexibility: UK opted in; Ireland opted in later (see Schengen section
below); Denmark decided to apply in international law (Council doc.
14261/01, 23 Nov. 2001)
– EP plenary: Kirkhope report proposed amendments (A5-0069/2001);
plenary voted to reject, 13 Mar. 2001 (OJ 2001 C 343)
– Council: discussed at JHA Council, 30 Nov./1 Dec. 2000; politi-
cal agreement at JHA Council Mixed Committee, 28/29 May 2001;
adopted by Transport/Telecoms Council, 27/28 June 2001
– Implementation deadline: 11 Feb. 2003 (Art. 7(1))
960
3. Regulation 2424/2001 on funding SIS II within the first pillar (OJ 2001 L
328/4)
– Proposal: by Sweden and Belgium (OJ 2001 C 183/12)
– Background: regulates funding of SIS II from Community budget
– Flexibility: UK opted in (Council doc. 11701/01); Ireland opted in later
(see Schengen section below); Denmark had six months to implement
as international law
– EP: plenary vote after von Botticher report (A5-0333/2001), 23 Oct.
2001 (OJ 2002 C 112 E/137)
– Council: adopted by JHA Council, 6/7 Dec. 2001
– Entry into force: 14 Dec. 2001 (Art. 7); expires 31 Dec. 2006
4. Directive 2002/90 defining the facilitation of unauthorised entry, movement

and residence (OJ 2002 L 328/17)
– Proposal: from France (OJ 2000 C 253/1)
– Background: connected to Framework Decision on same topic (see
below)
– Flexibility: UK opted in; Ireland opted in following its partial partici-
pation in Schengen (Council doc. 7555/02); Denmark has six months
to apply in international law
– EP: committee report proposed amendments (Ceyhun report (A5-
0315/2000)) plenary voted to reject the proposal, 15 Feb. 2001 (OJ
2001 C 276/144)
– Council: discussed at JHA Council, 30 Nov./1 Dec. 2000 and 15/16
Mar. 2001; political agreement at 28/29 May 2001 JHA Council Mixed
Committee; adopted by JHA Council, 28/29 Nov. 2002
– Implementation deadline: 5 Dec. 2004 (Art. 4(1))
5. Directive 2003/110 on assistance for expulsions via air transit (OJ 2003 L
321/26)
– Proposal: from Germany (OJ 2003 C 4/4)
– Schengen: builds on Schengen acquis; Executive Committee decision
rescinded (Art. 11)
– EP: plenary vote for amendments following Kirkhope report (A5-
0291/2003), 23 Sep. 2003
– Council: JHA Council/Mixed Committee, 5-6 June 2003, reached ‘gen-
eral approach’; adopted as “A” point by Ecofin Council, 25 Nov. 2003
961
Annex I
6. Regulation 377/2004 on immigration liaison officers’ network (OJ 2004 L

64/1)
– Proposal: from Greece (OJ 2003 C 140/12)
– Legal base: Arts. 63(3)(b) and 66 EC
– Schengen: builds on Schengen acquis
– Flexibility: UK and Ireland opted in; Denmark implemented in
– EP: Roure report adopted by committee (A5-0344/2003); vote in
favour of report at plenary session, 6 Nov. 2003
– Council: agreed on “general approach” at JHA Council, 2/3 Oct. 2003;
formally adopted by JHA Council as “A” point, 19 Feb. 2004
7. Regulation 378/2004 on amending Sirene manual (OJ 2004 L 64/5)

– Proposal: by Greece (Council doc. 7179/03, 24 Mar. 2003; OJ 2003 C
82/21)
– Flexibility: UK and Ireland opted in; Denmark has six months to
implement in international law
– EP: plenary vote 23 Sep. 2003 (OJ 2004 C 77 E/54) following Coelho
report (A5-0288/2003)
– Council: adopted as “A” point by JHA Council, 19 Feb. 2004
– Entry into force: 3 Mar. 2004 (Art. 4)
8. Decision on financing expulsion measures (OJ 2004 L 60/55)

– Flexibility: UK opted in; Ireland opted out; Denmark implemented in
– EP: rejected by plenary, 3 June 2003, following Oreja report (OJ 2004
C 68 E/81)
– Council: agreed by JHA Council/Mixed Committee, 6 Nov. 2003;
adopted as “A” point, 23 Feb. 2004 General Affairs Council
– Entry into force: 28 Feb. 2004 (Art. 5)
9. Regulation 871/2004 on future functionalities for SIS (OJ 2004 L 162/29)

– Flexibility: UK and Ireland opted out; Denmark has six months to
implement in national law
– EP: plenary vote 17 Dec. 2002 (OJ 2004 C 31 E/122), following Coelho
report (A5-0436/2002)
962
– Council: discussed at JHA Council/Mixed Committee, 19 Dec. 2002;

March 2004 European Council called for adoption by June 2004;
adopted as “A” point by JHA Council, 29 April 2004
– Entry into force: 20 May 2004 (Art. 2(1)); will not apply in practice
until date(s) set by Council unanimously (Art. 2(2))
10. Directive 2004/82 on transmitting passenger information by carriers (OJ

2004 L 261/24)
– Legal base: Articles 62(2) and 63(3) EC
– EP: plenary did not vote; returned report to committee, 31 March 2004
and 20 April 2004
– Council: 30 March 2004 JHA Council/Mixed Committee agreed on a
“common approach”; adopted as “A” point by JHA Council, 29 April
2004
– Implementation deadline: 5 Sept. 2006 (Art. 7)
11. Decision on joint expulsion flights (OJ 2004 L 261/28)

– Proposal: from Italy (Council doc. 10910/03, 3 July 2003; OJ 2003 C
223/3)
– EP plenary: refusal to vote; returned to committee, 31 March 2004
– Council: agreed by JHA Council/Mixed Committee, 6 Nov. 2003;
adopted as “A” point by JHA Council, 29 April 2004
– Application date: 7 Aug. 2004 (Art. 8)
12. Directive 2004/81 on residence permits for victims of trafficking (OJ 2004 L
261/19)
– Proposal: from Commission (COM (2002) 71; OJ 2002 C 126 E/393)
– Flexibility: UK and Ireland opted out; Denmark has automatic opt-
out
– EP plenary: plenary vote on Sorensen report (A5-0397/2002), 5 Dec.
2002 (OJ 2004 C 27 E/140); plenary vote on second Sorensen report
(A5-0099/2004) following reconsultation, 9 March 2004
– Council: agreed by JHA Council, 6 Nov. 2003; adopted by JHA Coun-
cil, 29 Apr. 2004
963
Annex I
– Implementation Deadline: 6 Aug. 2006 (Art. 17)
13. Decision on an information and coordination network for Member States’

migration management services (OJ 2005 L 83/48)
– Flexibility: position of UK, Ireland and Denmark not yet known
– EP: plenary vote 20 April 2004, following Klamt report (A5-
0145/2004)
– Council: adopted as “A” point by General Affairs Council, 16 March
2005
– Entry into force: 21 April 2005 (Art. 8)
Legal Migration
1. Regulation 1030/2002 on uniform residence permit (OJ 2002 L 157/1)
C 180 E/304)
– Background: replaced 1997 Joint Action on this subject (1997/11/JHA,
OJ 1997 L 7/1)
– Flexibility: UK opted in; Ireland opted out; Denmark decided to
implement in international law (Council doc. 14807/03)
(OJ 2002 C 177 E/129)
– Council: adopted by JHA Council, 13 June 2002
– Entry into force: 15 June 2002 (Art. 10)
– Application date: one year after adoption of implementing rules (Art.
9)
2. Decision 2002/463 on “ARGO” programme for facilitating adoption and

implementation of EC migration, asylum and borders legislation (OJ 2002
L 161/11)
– Proposal: from Commission (COM (2001) 567, 16 Oct. 2001; OJ 2002
C 25 E/526)
– Flexibility: UK opted in; Ireland opted out; Denmark automatically
excluded
(OJ 2003 C 127 E/143)
– Council: agreement at JHA Council, 25/26 Apr. 2002; adopted by JHA
Council, 13 June 2002
964
3. Regulation 859/2003 on social security rules for third-country nationals (OJ

2003 L 124/1)
– Proposal: from Commission (COM (2002) 59; OJ 2002 C 126 E/388)
– Background: replaces prior proposal (COM (1997) 561)
out
– EP: plenary vote on Oomen-Ruijten report (A5-0369/2002), 21 Nov.
2002 (OJ 2004 C 25 E/413)
– Council: “general approach” agreed by Employment Council, 3 June
2002; agreement at Employment, etc. Council, 3 Dec. 2002; adopted
by Transport, etc. Council, 14 May 2003
– Entry into force: 1 June 2003 (Art.3)
4. Directive 2003/86 on family reunion (OJ 2003 L 251/12)

– Proposal: from Commission (COM (1999) 638, 1 Dec. 1999; OJ 2000 C
116 E/66); amended following EP vote (COM (2000) 624, 10 Oct 2000;
OJ 2001 C 62 E/99); amended again in May 2002 (COM (2002) 225, 3
May 2002; OJ 2002 C 203 E/136)
out
– EP: plenary vote with liberal amendments following Watson report
(A5-0201/00), 6 Sep. 2000 (OJ 2001 C 135/174); vote on revised text 9
Apr. 2003 (OJ 2004 C 64 E/373) following Cerdeira Morterero report
(A5-0086/2003)
– Council: discussed at 2 Dec. 1999, May 2000, 28/29 May 2001 and
27/28 Sep. 2001 JHA Councils; European Council, 15/16 Dec. 2001
requested revised proposal by end April 2002; political agreement at
JHA Council 27/28 Feb. 2003; adopted by Competitiveness Council,
22 Sep. 2003
– Implementation deadline: 3 Oct. 2005 (Art. 20)
5. Directive 2003/109 on the status of long-term resident third-country nation-

als (OJ 2004 L 16/44)
– Proposal: by Commission (COM (2001) 127, 13 Mar. 2001; OJ 2001 C
240 E/79)
– Legal base: Articles 63(3)(a) and 63(4) EC
out
– EP: plenary vote on 5 Feb. 2002 (OJ 2002 C 284 E/94) following Lud-
ford report (A5-0436/2001)
965
Annex I
– Council: discussed at JHA Council, 14/15 Oct. 2002, 8 May 2003; polit-
ical agreement at JHA Council, 5-6 June 2003; adopted as “A” point by
Ecofin Council, 25 Nov. 2003
6. Directive 2004/114 on entry and residence of students and volunteers (OJ

2004 L 375/12)
– Proposal: from Commission (COM (2002) 548, 7 Oct. 2002; OJ 2003 C
45 E/18)
– Legal base: Articles 63(3)(a) and 63(4) EC
– EP: plenary vote on Roure report (A5-0173/2003), 3 June 2003 (OJ
2004 C 68 E/107)
– Council: initial open debate at JHA Council, 14/15 Oct. 2002; political
agreement at JHA Council, 30 March 2004; adopted as “A” point by
General Affairs Council, 13 Dec. 2004
7. Decision amending ARGO Decision (OJ 2004 L 371/48)

– Proposal: from Commission (COM (2004) 384, 19 May 2004)
– Flexibility: UK opted into 2002 Decision; Ireland did not; Denmark is
automatically excluded; UK opted in to 2004 Decision
– EP: plenary vote 17 Nov. 2004 (OJ 2005 C 201 E/64), following Roure
report (A6-0019/2004)
– Council: adopted as “A” point by General Affairs Council, 13 Dec.
2004
8. Directive on admission of researchers (OJ 2005 L 289/15)

– Proposal: from Commission (COM (2004) 178, 16 Mar. 2004)
– Flexibility: UK opted out; Ireland opted in; Denmark cannot opt in
Council; “general approach” on Directive agreed by JHA Council, 19
Nov. 2004; adopted by JHA Council, 12 Oct. 2005
– Implementation date: 10 Oct. 2007 (Art. 17(1))
9. Recommendation on admission of researchers (OJ 2005 L 289/26)

– Proposal: from Commission (COM (2004) 178, 16 Mar. 2004)
– Flexibility: UK opted out; Ireland opted in; Denmark cannot opt in
966

Council; JHA Council, 8 June 2004, reached political agreement on
Recommendation; adopted by JHA Council, 12 Oct. 2005
b) Proposed measures (all proposed by Commission)

Asylum
1. Decision revising European Refugee Fund (COM (2005) 123, 6 April
2005)
– Flexibility: UK and Ireland unknown; Denmark would be excluded
– EP: no plenary vote yet
– Council: working group discussions began May 2005
Visas and borders: Legislation (all build on Schengen acquis)

1. Regulation on a regime for local border traffic (COM (2005) 56, 23 Feb.
2005)
– Background: replaces two prior proposals (COM (2003) 502, 14 Aug.
2003)
– Legal base: Article 62(2)(a) and 2(b)(ii) and (iv) EC
– Flexibility: UK and Ireland would opt out; Denmark could apply as a
– EP: plenary vote on 2003 proposal following Cerdeira Morterero
report (A5-0142/2004), 20 April 2004; no plenary vote on 2005 pro-
posal yet (co-decision procedure applies)
– Council: under discussion in working group
2. Regulation amending Reg. 1683/95 on visa format (COM (2003) 558, 24

Sep. 2003)
– Flexibility: position of UK and Ireland not yet known; Denmark could
apply as a matter of international law
– Council: “general approach” agreed by 28/29 Nov. 2003 JHA Council/
Mixed Committee
3. Regulation on a Code for crossing of borders by persons (COM (2004) 391,

May 2004)
– Legal base: Article 62(1) and 62(2)(a) EC
– Flexibility: UK and Ireland would opt out; Denmark could opt in as
matter of international law; internal borders provisions of the pro-
posal would not apply to new Member States until all Schengen rules
were extended to them
– EP: plenary vote 23 June 2005 following deal with Council (co-deci-
sion procedure applies)
967
Annex I
– Council: deal with EP by June 2005; no formal adoption yet
4. Regulation establishing Visa Information System (COM (2004) 835, 28

Dec. 2004)
– Legal base: Articles 62(2)(b)(ii) and 66 EC
– Flexibility: UK and Ireland will opt out; Denmark could apply as
international law
– EP: no plenary vote yet (co-decision procedure applies)
– Council: working group discussing proposal
5. Decision establishing European Borders Fund (COM (2005) 123, 6 April

2005)
– Flexibility: UK and Ireland unknown; Denmark would have six
months to apply in national law; new Member States would be covered
immediately
– Council: discussion in working party started July 2005
6. Regulation amending Borders Agency Regulation (COM (2005) 190, 13

May 2005)
– Legal base: Articles 62(2)(a) and 66
– Flexibility: UK and Ireland position not known; Denmark could apply
as international law
– Background: technical amendment regarding reappointment of senior
management
– Council: presumably under discussion
7. Regulation on SIS II (COM (2005) 236, 31 May 2005)

– Legal base: Articles 62(2)(a) and 66 EC
international law
– Council: presentation by Commission to JHA Council/mixed commit-
tee, 2-3 June 2005; working party discussion started July 2005
8. Regulation on new Member States’ recognition of travel documents (COM

(2005) 381, 22 Aug. 2005)
– Legal base: Article 62(2); qualified majority vote and co-decision with
the EP
international law
968

– Council: under discussion
8. Regulation on recognition of travel documents from Switzerland and

Liechtenstein (COM (2005) 381, 22 Aug. 2005)
– Legal base: Article 62(2)(a); qualified majority vote and co-decision
with the EP
international law
– Council: under discussion
Legal Migration
1. Regulation amending Reg. 1030/2002 on residence permit format (COM
(2003) 558, 24 Sep. 2003)
– Flexibility: position of UK and Ireland not yet known; Denmark could
opt in as matter of international law
– Council: JHA Council 28/29 Nov. 2003 agreed “general approach”
2. Decision establishing European integration Fund (COM (2005) 123, 6 April

2005)
– Flexibility: UK and Ireland unknown; Denmark automatically
excluded; new Member States would be covered immediately
– Council: working group discussions began June 2005
3. Decision on information exchange on immigration and asylum (COM

(2004) 480, 10 Oct. 2005)
– Flexibility: position of UK and Ireland unknown; Denmark cannot
opt in
– EP: no action yet
– Council: no action yet
Irregular migration
1. Decision establishing European Return Fund (COM (2005) 123, 6 April
2005)
– Flexibility: UK and Ireland unknown; Denmark would be excluded;
new Member States would be covered immediately
969
Annex I

– Council: working group discussions began May 2005
2. Directive on common rules for expulsion (COM (2005) 391, 1 Sept. 2005)
– Schengen: builds on Schengen acquis in part
– Flexibility: UK and Ireland unknown; Denmark could apply as inter-
national law; for new Member States, Art. 3(2) of act of accession
applies
– EP: no action yet
– Council: under discussion in working group
c) International treaties
Treaties in force
1. Treaty between EC and Norway and Iceland on asylum responsibility
(extends rules in Dublin Convention and Eurodac Regulation to Norway
and Iceland) (Decision 2001/258 OJ 2001 L 93/38)
– Proposal to sign treaty: by Commission (COM (2000) 883, 22 Dec.
2000)
– Proposal to conclude treaty: by Commission (COM (2001) 55, 29 Jan.
2001; OJ 2001 C 154 E/244)
– Legal base: Article 63(1) EC, with Article 300
– Background: negotiating mandate approved, May 2000 JHA Council
– Flexibility: UK and Ireland opted in; Denmark can apply to join by
means of Protocol
– EP: plenary vote in favour, 14 Feb. 2001 (OJ 2001 C 276/118)
– Council: draft discussed at JHA Council, 30 Nov./1 Dec. 2000; 19 Jan.
2001 Ecofin Council agreed to sign treaty; 15/16 Mar. 2001 JHA Coun-
cil concluded treaty
– Entry into force: 1 Apr. 2001 (OJ 2001 L 112/16)
2. EC/Hong Kong readmission agreement (OJ 2004 L 17/23)

– Proposal to sign/conclude treaty: SEC (2002) 412, 18 Apr. 2002, Coun-
cil doc. 8518/02, 2 May 2002
– Council: agreed to give mandate to Commission to negotiate with Hong
Kong and Macao “as soon as possible” after agreement on Regulation
539/2001, removing Hong Kong from the visa list (see JHA Council
Conclusions, 30 Nov./1 Dec. 2000); Agriculture/Fisheries Council 23
Sep. 2002 agreed Decision to sign treaty; treaty signed 27 Nov. 2002;
decision to conclude treaty adopted as “A” point, 17 Dec. 2003 Agri-
culture Council
out
970
– EP plenary: plenary vote in favour of conclusion, 19 Dec. 2002 (OJ

2004 C 31 E/252), following Watson report (A5-0381/2002)
– Entry into force: 1 March 2004 (OJ 2004 L 64/38)
3. Treaty with China on “Approved Destination Status” (OJ 2004 L 83/12)

– proposals to sign and conclude treaty: COM (2003) 790, 15 Dec. 2003
– Council: mandate to negotiate approved by written procedure, 16 Sept.
2002 (see press release, 23/24 Sep. 2002 Agriculture/Fisheries Coun-
cil); agreed signature as “A” point, Ecofin Council, 20 Jan. 2004; treaty
signed, 12 Feb. 2004; decision to conclude treaty adopted as “A” point,
Telecoms Council, 8 March 2004
– EP: plenary voted in favour, 26 Feb. 2004 (OJ 2004 C 98 E/18), follow-
ing Sousa Pinto report (A5-0101/2004)
– Entry into force: 1 May 2004
4. EC/Macao readmission agreement (OJ 2004 L 143/97)

– Proposal to sign and conclude: COM (2003) 151, 31 Mar. 2003
– Council: for mandate to negotiate, see Hong Kong above; signed by
Council, 13 Oct. 2003; decision to conclude adopted by Agriculture
Council as “A” point, 21 April 2004
– EP: plenary voted in favour, 26 Feb. 2004 (OJ 2004 C 98 E/18), follow-
ing Sousa Pinto report (A5-0096/2004)
– Entry into force: 1 June 2004 (OJ 2004 L 258/17)
5. EC/Sri Lanka readmission agreement (OJ 2005 L 124/43)

– Proposal to sign and conclude: SEC (2003) 255, 21 Mar. 2003; Council
doc. 7831/1/03, 9 Apr. 2003)
– Council: Ecofin Council, 25 Nov. 2003 decided to sign agreement;
agreement signed in June 2004; Employment Council, 3 Mar. 2005,
decided to conclude agreement
– EP: plenary vote in favour, 14 Dec. 2004 (OJ 2005 C 226 E/48)
– Entry into force: 1 May 2005 (OJ 2005 L 138/17)
Signed treaties
1. UN crime convention Protocols on smuggling of persons, trafficking in
persons (OJ 2001 L 30/44)
– Proposal to sign Protocols: by Commission (COM (2000) 760, 4 Dec
2000)
– Background: mandate to negotiate granted by General Affairs Coun-
cil, 14/15 Feb. 2000
– Council: decision to sign adopted by written procedure, 8 Dec. 2000
(Health Council press release, 14 Dec. 2000)
971
Annex I
2. Treaties with Switzerland on association with Schengen and responsibility

for asylum-seekers
– Proposals to sign and conclude treaties: COM (2004) 593, Sep. 2004
– Council: mandates requested by Commission, 10 April 2002; approved
by 17 June 2002 General Affairs Council; discussed at 8 May 2003
JHA Council; discussed at JHA Council, 5-6 June 2003; signature fol-
lowing JHA Council, 26 Oct. 2004
– EP: plenary vote 13 Oct. 2005
3. EC/Albania readmission agreement (OJ 2005 L 124/22)

– Proposal to sign and conclude treaty: COM (2004) 92, 12 Feb. 2004
– Council: Employment Council, 3 Mar. 2005, decided to sign agreement;
General Affairs Council, 7 Nov. 2005, decided to sign agreement
– EP: plenary vote 6 Sep. 2005
4. Treaty with Denmark regarding asylum responsibility

– Proposal to sign and conclude treaty: COM (2004) 594, Sep. 2004
– Council: mandate to negotiate approved as “A” point, 8 May 2003 JHA
Council; Competitiveness Council, 7 Mar. 2005, decided to sign agree-
ment
– EP: plenary vote 13 Dec. 2005
5. Protocol to EC/Norway/Iceland agreement on asylum responsibility

– proposal to sign and conclude treaty: COM (2005) 131, 8 April 2005
– EP: plenary vote 13 Dec. 2005
– Council: decision to sign adopted as “A” point by General Affairs
Council, 13 June 2005
d) Institutional Issues
Decision to amend decision-making rules in Title IV of Part Three of the EC
Treaty (OJ 2004 L 396/45)
– Proposal: Dutch Presidency (Council doc. 14497/04, 12 Nov. 2004)
– Background: Hague Programme of 5 Nov. 2004 called for move to QMV
and co-decision in all areas except legal migration
– Flexibility: UK and Ireland opted in
– EP: adoption of Bourlanges report by committee, 13 Dec. 2004 (A6-
0076/2004); vote in favour by plenary, 16 Dec. 2004 (OJ 2005 C 226 E/341)
– Council: progress report at JHA Council, 2 Dec. 2004; adopted as “A” point
by Agriculture/Fisheries Council, 21-22 Dec. 2004
– Application date: 1 Jan. 2005
972
e) Communications, Discussion Papers and Strategy Papers

1. Working document, common standards on asylum procedures (SEC (1999)
271, 3 Mar. 1999)
2. Communication on a common asylum procedure (COM (2000) 755, 22

Nov. 2000)
3. Communication on immigration policy (COM (2000) 757, 22 Nov. 2000)
4. Communication on open coordination & immigration policy (COM (2001)

387, 11 July 2001)
5. Communication on clandestine immigration (COM (2001) 672, 15 Nov.

2001)
6. Communication on Common European Asylum Policy (COM (2001) 710,

28 Nov. 2001)
7. Communication on security measures and protection issues (COM (2001)

743, 5 Dec. 2001)
8. Communication on development of SIS II (COM 2001 720, 18 Dec. 2001)
9. Green Paper on return policy for illegal immigrants (COM (2002) 175, 10
Apr. 2002)
10. Communication on border controls (COM (2002) 233, 7 May 2002)
11. Communication on return policy for illegal immigrants (COM (2002) 564,
14 Oct .2002)
12. Communication on migration and development and on financial resources

for return policy, border management, assistance to non-EU countries
(COM (2002) 703, 3 Dec. 2002)
13. Communication on Common European Asylum Policy (COM (2003) 152,

26 Mar. 2003)
14. Communication on migration statistics (COM (2003) 179, 15 Apr. 2003)
15. Communication on immigration, integration & employment (COM (2003)

336, 3 June 2003)
973
Annex I
16. Communication on asylum systems (COM (2003) 315, 3 June 2003)
17. Communication on borders, illegal immigration and return plans (COM

(2003) 323, 3 June 2003)
21. Communication on future development of the SIS II and the VIS (COM
(2003) 771, 11 Dec. 2003)
22. Communication on managed entry of asylum-seekers and external protec-

tion (COM (2004) 410, 4 June 2004)
23. Communication on link between legal and illegal migration: June 2004
(COM (2004) 412, 4 June 2004)
24. Communication on single asylum procedure (COM (2004) 503, 15 July

2004)
25. Annual report on migration (COM (2004) 508, 16 July 2004)
26. Green Paper on economic migration (COM (2004) 811, 11 Jan. 2005)
27. Report on cooperation with non-EU countries on irregular immigration, et

al (COM (2005) 352, 28 July 2005)
28. Communication on integration (COM (2005) 389, 1 Sep. 2005)
29. Communication on migration and development (COM (2005) 390, 1 Sep.

2005)
30. Communication on regional protection programmes (COM (2005) 388, 1

Sep. 2005)
31. Communication on external aspects of JHA (COM (2005) 491, 12 Oct.

2005)
32. Communication on links between databases (COM (2005) 597, 24 Nov.

2005)
33. Green paper on future of migration network (COM (2005) 606, 28 Nov.
2005)
34. Communication on external migration management (COM (2005) 621, 30

Nov. 2005)
974
35. Communication on policy plan for legal migration (COM (2005) 669, 22
Dec. 2005)
SEC documents
1. Staff working paper on visa policy following the Treaty of Amsterdam and
integration of the Schengen acquis (SEC (1999) 1213, 16 July 1999)
2. Staff working paper on revisiting the Dublin Convention (SEC (2000)

522)
3. Evaluation of the Dublin Convention (SEC (2001) 756, 13 June 2001)
4. Working paper on development of SIS II (SEC (2003) 206, 18 Feb. 2003)
5. Working paper on recasting the Common Border Manual (SEC (2003) 736,
20 June 2003)
f) Case Law
Annulment actions:
– Case C-392/95 Parliament v Council [1997] ECR I-3213 (visa list Regulation
annulled for failure to reconsult EP)
– Case C-170/96 Commission v Council [1998] ECR I-2763 (airport transit
visas Joint Action upheld on grounds that it was correctly adopted as third
pillar measure)
– Case C-257/01, Commission v Council, to annul Council Regs. 789/2001 and
790/2001; Opinion released April 2004; judgment in favour of Council, 18
Jan. 2005, [2005] ECR I-345
– pending: Case C-540/03, European Parliament v Council, to annul three pro-
visions of Directive 2003/86 on family reunion; hearing 28 June 2005; opin-
ion 8 Sept. 2005
C-77/05 UK v Council, challenge to validity of exclusion of UK from borders
agency Regulation
C-137/05 UK v Council, challenge to validity of exclusion of UK from passports
Regulation
References from national courts for a preliminary ruling:

– Case C-459/99 MRAX, reference from Belgian court asking question con-
cerning Regulation 2317/95 along with questions on other EC acts: 25 July
2002 judgment ([2002] ECR I-6591)
– inadmissible: Case C-51/03, Georgescu, on interpretation of Reg. 539/2001
as regards Romanians (OJ 2003 C 112/8); order of 31 March 2004
– inadmissible: Case C-45/03, Dem’Yanenko, on expulsion and rules on Schen-
gen visas and freedom to travel; order of 18 March 2004
975
Annex I
– Case C-241/05, Bot, on interpretation of Schengen freedom to travel rules

– Infringement actions for failure to implement Directives:
Decided:
C-454/04 Commission v Luxembourg: Directive 2001/55 (OJ 2004 C 314): 2
June 2005
C-449/04 Commission v Luxembourg: Directive 2001/51 (OJ 2004 C 314): 21
July 2005
C-448/04 Commission v Luxembourg: Directive 2001/40 (OJ 2004 C 314): 8 Sept
2005
C-462/04 Commission v Italy: Directive 2001/40 (OJ 2005 C 6/30): 8 Sept. 2005
C-476/04 Commission v Greece: Directive 2001/55: 17 Nov. 2005
Pending:
C-451/04 Commission v France: Directive 2001/55 (OJ 2004 C 314)
C-455/04 Commission v UK: Directive 2001/55 (OJ 2005 C 6/30)
Withdrawn:
C-450/04 Commission v France: Directive 2001/40 (OJ 2004 C 314)
C-460/04 Commission v Netherlands: Directive 2001/51 (OJ 2004 C 314)
C-461/04 Commission v Netherlands: Directive 2001/55 (OJ 2004 C 314)
C-474/04 Commission v Greece: Directive 2001/40 (OJ 2004 C 314)
C-515/04 Commission v Belgium: Directive 2001/55 (OJ 2005 C 31)
C-516/04 Commission v Belgium: Directive 2001/51 (OJ 2005 C 31)
Contractual case:
T-447/04 CapGemini v Commission (regarding tender for SIS II/VIS)
– interim measures order of the Court of First Instance, 31 Jan. 2005; with-
drawn, Feb. 2005
g) Lapsed Proposals
1. Austrian initiative for a Regulation on safe third countries (OJ 2003 C
17/6)
– Legal base: Article 63(1)(d) EC
– Flexibility: UK opt in; position of Ireland not known; Denmark has
automatic opt-out
– EP: plenary rejection, 23 Sep. 2003, following Schmidt report (A5-
0210/2003)
– Council: 28/29 Nov. 2002 JHA Council wished to focus on asylum pro-
cedures proposal
2. Finnish initiative for Regulation on airport transit visas (Council doc.

10867/99, 9 Sep. 1999)
976

– Background: replaces proposal for Joint Action proposed by Austrian
Presidency in 1998 but not agreed; would replace existing 1996 Joint
Action (OJ 1996 L 63)
– Flexibility: position of UK, Ireland and Denmark not known
– EP: no plenary vote
– Council: discussions in working group apparently ended late 1999/early
2000
3. Portuguese initiative for Regulation on freedom to travel for non-visa

nationals after three months (OJ 2000 C 164/6)
– EP plenary: rejection 13 Mar. 2001 (OJ 2001 C 343), following Frahm
report (A5-0075/2001)
– Council: discussion in working group suspended, autumn 2002
4. Finnish initiative for Regulation on readmission of third-country nationals

as between Member States (“internal readmission”) (OJ 1999 C 353/6)
– EP: plenary vote on Karamanou report (A5-0110/00) recommended
rejection, 19 May 2000 (OJ 2001 C 59/306)
– Council: presented at 2 Dec. 1999 EU/Norway/Iceland Mixed Com-
mittee; discussions suspended pending conclusion of readmission
agreements with third states
5. German initiative for Decision on illegal immigration networks (Council

doc. 13165/1/00)
– EP: no plenary vote
– Council: discussion suspended
h) Withdrawn proposals
1. Directive on freedom to travel for three months or for extension for longer
period (COM (2001) 388, 10 Jul. 2001; OJ 2001 C 270E/244)
– Legal base: Articles 62(3) and 63(3) EC
– Background: would replace Articles 19-23 and 25 of Schengen Con-
vention and Regulation 1091/2001 (see above), as well as Portuguese
proposal for extended stays (see above)
977
Annex I
– EP: plenary vote on Kessler report (A5-0455/2001), 5 Feb. 2002 (OJ

2002 C 284 E/103)
– Council: discussions suspended in working group, autumn 2002
– Status: Commission announced intention to withdraw proposal, Sep.
2005 (COM (2005) 462, 27 Sep. 2005)
2. Directive on migration for employment or self-employment (COM (2001)

386, 11 July 2001; OJ 2001 C 332 E/248)
– Flexibility: UK apparently opted out; Ireland opted in; Denmark auto-
matic opt-out
– EP: plenary vote on Terron i Cusi report (A5-0010/2003), 12 Feb. 2003
(OJ 2004 C 43 E/230)
– Council: working group discussion in spring 2002, autumn 2003; dis-
cussions effectively suspended
– Status: Commission announced intention to withdraw proposal, Sep.
2005 (COM (2005) 462, 27 Sep. 2005); will reconsider new proposal in
light of impact assessment
2. Schengen
a) Adopted Measures
Schengen acquis as defined by Council (except for secret parts of acquis): OJ
2000 L 239
Revised text of CCI: OJ 2002 C 313/1; OJ 2003 C 310
Common Manual on border controls: OJ 2002 C 313/97
Basic decisions:
1. Decision 1999/435 on definition of acquis: OJ 1999 L 176/1
– corrected by Decision 2000/645: OJ 2000 L 272/24
2. Decision on allocation of acquis: OJ 1999 L 176/17
Accession:
1. Decision on full extension to Greece (OJ 1999 L 327/58; Declaration, OJ
1999 C 369/1)
2. Decision on partial UK application: Decision 2000/365/EC, OJ 2000 L

131/43
Background: Decision extends to the UK all of the acquis’ criminal and
policing rules, except for hot pursuit by police, with related SIS access, plus
Arts. 26 (carriers’ liability) and 27 (illegal immigration); applied (except for
SIS provisions) from 1 Jan. 2005 (OJ 2004 L 395/70)
978
3. Decision 2000/777/EC on full application to Denmark, Sweden, Finland,

Iceland and Norway (OJ 2000 L 309/24; see declaration in OJ 2000 L
309/28)
Background: took effect 25 Mar. 2001; SIS already applied from 1 Dec.
2000 (except for data on persons to be refused entry)
Council: agreed by JHA Council and Mixed Committee, 30 Nov./1 Dec.
2000; Council was obliged to review the Decision in Mar. 2001 (see Article
3 of Decision) but decided to continue with the extension (General Affairs
Council, 26 Feb 2001)
4. Decision 2002/192/EC on partial application by Ireland (OJ 2002 L 64/20)

Background: request submitted June 16 2000; extends to Ireland all of the
acquis accepted by the UK (see above), with the exception of cross-border
police surveillance
– Council: adopted by JHA Council, 28 Feb. 2002
Administrative Decisions:
1. Decision on Schengen secretariat (OJ 1999 L 119)
2. Decisions on contracts re: SIS (OJ 1999 L 123; OJ 1999 L 337/41)
3. Decision 2000/265/EC on a financial regulation for contracts relating to

SISNET, concerning SIS infrastructure (OJ 2000 L 85/12); amended by
Decision 2000/664/EC (OJ 2000 L 278/24), adopted at 23/24 Oct. 2000
Agriculture Council
4. Decision 1999/438 on Joint Supervisory Body (OJ 1999 L 176/34)

– replaced 1 Sep. 2001 (Art. 6 of Decision 2000/641 on data protection
secretariat, OJ 2000 L 271/1)
5. Decision 2000/751/EC declassifying part of Common Manual (OJ 2000 L

303/29)
– adopted by JHA Council on 30 Nov./1 Dec. 2000
6. Decision 2002/352 declassifying further part of Common Manual on

Border Controls, adopted by JHA Council, 25/26 Apr. 2002 (OJ 2002 L
123/49)
b) International Treaties
1. Decision on first treaty with Norway/Iceland (OJ 1999 L 176/35)
Entry into force: 26 June 2000 (OJ 2000 L 149/36); Entry into effect: 25 Mar.
2001
979
Annex I
2. Decision on second treaty with Norway/Iceland, re: UK/Ireland (OJ 2000

L 15/1)
Entry into force: 26 June 2000 (OJ 2000 L 149/36)
3. Decision implementing first treaty with Norway/Iceland (OJ 1999 L

176/31)
4. Decision 1/99 of Mixed Committee, adopting rules of procedure (OJ 1999

C 211/9)
c) Case Law
Direct actions (all concern Schengen Secretariat Decision)
– Case T-107/99 Garcia de Retortillo v Council: application for interim mea-
sures dismissed ([1999] ECR II-1939); withdrawn November 1999
– Case T-164/99 Leroy v Council: judgment on 27 June 2001 ([2001] ECR II-
1819)
– Case T-166/99 Andres de Dios v Council: judgment on 27 June 2001 ([2001]
ECR II-1857)
– Case T-37/00 Chevalier-Delanoue v Council: judgment on 27 June 2001
([2001] ECR II-1819)
– Case T-38/00 Joaquim Matos v Council: judgment on 27 June 2001 ([2001]
ECR II-1819)
References from national courts

– Case C-187/01, Staatsanwaltschaft Aachen v Hüseyin Gözütok (reference
from German courts re: Article 54 Schengen, on non bis in idem (double
jeopardy)): judgment 11 Feb. 2003
– Case C-385/01, Criminal proceedings agasinst Klaus Hans Fritz Brugge
(reference from Belgian court of first instance re: Article 54 Schengen Con-
vention): judgment 11 Feb. 2003
– Case C-469/03, Criminal Proceedings against Mario Filameno Miraglia
(reference from Tribunale di Bologna on Article 54 Schengen Convention):
judgment 10 March 2005
– Case C-503/03, Commission v Spain, on Article 96 of Schengen Conven-
tion: Opinion 10 March 2005; pending; judgment due 31 Jan. 2006
– Case C-436/04, Leopold Henri van Esbroek v Openbaar Ministrie (refer-
ence from Belgian Court of Cassation on Article 54 of Schengen Conven-
tion and on treaty on Schengen association with Norway and Iceland):
pending, opinion of 20 Oct. 2005
– Case C-467/04, G. Francesco Gaspardini and others v order of 21 Nov.
2003 (reference from Provincial Court, Malaga) on Article 54 of Schengen
Convention and Article 24 EC Treaty: pending
980
– Case C-150/05, Jean Leon Van Straaten v Netherlands State and Italian
Republic, (reference from Rechtbank ‘s-Hertogenbosch (Netherlands) on
Article 54 of Schengen Convention: pending
– Case C-272/05, Bowens (reference from Hof van Beroep, Antwerp), on
Article 54 of Schengen Convention, on non bis in idem (double jeopardy)
– Case C-288/05, Kretzinger (reference from Bundesgeritschof), on Article 54
of Schengen Convention, on non bis in idem (double jeopardy)
3. Title VI EU Police and Criminal Law

a) Adopted Measures
1. Decision on exchange of information on counterfeit travel documents (OJ
2000 L 81/1)
– Proposal: by Germany (OJ 1999 L 176/1)
– Legal base: Article 34 EU; Commission and EP argued for “first pillar”
legal base
– Background: replaces Joint Action proposed early 1999 but not adopted
before 1 May 1999
– EP plenary: approved with amendments, Nov. 1999 (OJ 2000 C
189/265), following Newton-Dunn report (A5-0050/1999)
– Application date: 1 July 2000
2. Framework Decision on trafficking in humans (OJ 2002 L 203/1)

– Proposal: from Commission (COM (2000) 854, 21 Dec. 2000; OJ 2001
C 62 E/324)
– Background: replaces part of 1997 Joint Action on subject (Art. 9)
– EP: plenary vote in favour, 12 June 2001 (OJ 2002 C 53 E/121), follow-
ing Klamt report (A5-0183/2001)
– Council: all points agreed except sentencing at 28/29 May 2001 JHA
Council; political agreement at JHA Council, 27/28 Sep. 2001; June
2002 Seville European Council set deadline to adopt officially at next
JHA Council; adopted by Ecofin Council, 19 July 2002
– Implementation deadline: 1 Aug. 2004 (Art. 10(1))
3. Framework Decision on strengthening the penal framework to prevent the

facilitation of illegal entry and residence (OJ 2002 L 328/1)
– Proposal: from France (OJ 2000 C 253/6)
– Background: connected to Directive on same subject (see above)
– EP: plenary voted to reject the proposal, 15 Feb. 2001 (OJ 2001 C
276/244), following Ceyhun report (A5-0315/2000)
– Council: discussed at 30 Nov/1 Dec 2000 JHA Council and at EU/
Norway/Iceland Mixed Committee, 15/16 Mar. 2001; political agree-
ment at 28/29 May 2001 JHA Council Mixed Committee; June 2002
981
Annex I
Seville European Council set deadline to adopt officially at next JHA

Council; adopted by JHA Council, 28/29 Nov. 2002
982
Annex 2 EC Treaty Provisions on Immigration and
Asylum
(as amended by Treaty of Nice)
VISAS, ASYLUM, IMMIGRATION AND OTHER POLICIES RELATED

TO FREE MOVEMENT OF PERSONS
Article 61
In order to establish progressively an area of freedom, security and justice, the

Council shall adopt:
(a) within a period of five years after the entry into force of the Treaty of
Amsterdam, measures aimed at ensuring the free movement of persons
in accordance with Article 14, in conjunction with directly related flank-
ing measures with respect to external border controls, asylum and immi-
gration, in accordance with the provisions of Article 62(2) and (3) and
Article 63(1)(a) and (2)(a), and measures to prevent and combat crime in
accordance with the provisions of Article 31(e) of the Treaty on European
Union;
(b) other measures in the fields of asylum, immigration and safeguarding the
rights of nationals of third countries, in accordance with the provisions of
Article 63;
(c) measures in the field of judicial cooperation in civil matters as provided for
in Article 65;
(d) appropriate measures to encourage and strengthen administrative coopera-
tion, as provided for in Article 66;
(e) measures in the field of police and judicial cooperation in criminal matters
aimed at a high level of security by preventing and combating crime within
the Union in accordance with the provisions of the Treaty on European
Union.
Annex II
Article 62
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:
(1) measures with a view to ensuring, in compliance with Article 14, the absence
of any controls on persons, be they citizens of the Union or nationals of
third countries, when crossing internal borders;
(2) measures on the crossing of the external borders of the Member States
which shall establish:
(a) standards and procedures to be followed by Member States in carrying
out checks on persons at such borders;
(b) rules on visas for intended stays of no more than three months, includ-
ing:
(i) the list of third countries whose nationals must be in possession of
visas when crossing the external borders and those whose nation-
als are exempt from that requirement;
(ii) the procedures and conditions for issuing visas by Member
States;
(iii) a uniform format for visas;
(iv) rules on a uniform visa;
(3) measures setting out the conditions under which nationals of third coun-
tries shall have the freedom to travel within the territory of the Member
States during a period of no more than three months.
Article 63
shall, within a period of five years after the entry into force of the Treaty of
Amsterdam, adopt:
(1) measures on asylum, in accordance with the Geneva Convention of 28 July
1951 and the Protocol of 31 January 1967 relating to the status of refugees
and other relevant treaties, within the following areas:
(a) criteria and mechanisms for determining which Member State is
responsible for considering an application for asylum submitted by a
national of a third country in one of the Member States,
(b) minimum standards on the reception of asylum seekers in Member
States,
(c) minimum standards with respect to the qualification of nationals of
third countries as refugees,
984
Title IV EC Treaty, as Revised by Treaty of Nice
(d) minimum standards on procedures in Member States for granting or

withdrawing refugee status;
(2) measures on refugees and displaced persons within the following areas:
(a) minimum standards for giving temporary protection to displaced per-
sons from third countries who cannot return to their country of origin
and for persons who otherwise need international protection,
(b) promoting a balance of effort between Member States in receiving and
bearing the consequences of receiving refugees and displaced persons;
(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 ille-
gal 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 pre-
vent any Member State from maintaining or introducing in the areas con-
cerned 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.
Article 64
1. This Title shall not affect the exercise of the responsibilities incumbent
upon Member States with regard to the maintenance of law and order and
the safeguarding of internal security.
2. In the event of one or more Member States being confronted with an

emergency situation characterised by a sudden inflow of nationals of third
countries and without prejudice to paragraph 1, the Council may, acting
by qualified majority on a proposal from the Commission, adopt provi-
sional measures of a duration not exceeding six months for the benefit of
the Member States concerned.
985
Annex II
Article 65
Measures in the field of judicial cooperation in civil matters having cross-border

implications, to be taken in accordance with Article 67 and insofar as necessary
for the proper functioning of the internal market, shall include:
(a) improving and simplifying:
– the system for cross-border service of judicial and extrajudicial docu-
ments;
– cooperation in the taking of evidence;
– the recognition and enforcement of decisions in civil and commercial
cases, including decisions in extrajudicial cases;
(b) promoting the compatibility of the rules applicable in the Member States
concerning the conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil proceedings, if neces-
sary by promoting the compatibility of the rules on civil procedure appli-
cable in the Member States.
Article 66
shall take measures to ensure cooperation between the relevant departments of
the administrations of the Member States in the areas covered by this Title, as
well as between those departments and the Commission.
Article 67
1. During a transitional period of five years following the entry into force of
the Treaty of Amsterdam, the Council shall act unanimously on a proposal
from the Commission or on the initiative of a Member State and after con-
sulting the European Parliament.
2. After this period of five years:

– the Council shall act on proposals from the Commission; the Commis-
sion shall examine any request made by a Member State that it submit
a proposal to the Council;
– the Council, acting unanimously after consulting the European Parlia-
ment, shall take a decision with a view to providing for all or parts of
the areas covered by this Title to be governed by the procedure referred
to in Article 251 and adapting the provisions relating to the powers of
the Court of Justice.
3. By derogation from paragraphs 1 and 2, measures referred to in Article

62(2)(b) (i) and (iii) shall, from the entry into force of the Treaty of Amster-
986
Title IV EC Treaty, as Revised by Treaty of Nice
dam, be adopted by the Council acting by a qualified majority on a proposal

from the Commission and after consulting the European Parliament.
4. By derogation from paragraph 2, measures referred to in Article 62(2)(b)

(ii) and (iv) shall, after a period of five years following the entry into force
of the Treaty of Amsterdam, be adopted by the Council acting in accor-
dance with the procedure referred to in Article 251.
5. By derogation from paragraph 1, the Council shall adopt, in accordance

with the procedure referred to in Article 251:
– the measures provided for to in Article 63(1) and 2(a) provided that
the Council has previously adopted, in accordance with paragraph 1
of this Article, Community legislation defining the common rules and
basic principles governing these issues.
– the measures provided for to in Article 65 with the exception of aspects
relating to family law.
Article 68
1. Article 234 shall apply to this Title under the following circumstances and
conditions: where a question on the interpretation of this Title or on the
validity or interpretation of acts of the institutions of the Community
based on this Title is raised in a case pending before a court or a tribunal of
a Member State against whose decisions there is no judicial remedy under
national law, that court or tribunal shall, if it considers that a decision on
the question is necessary to enable it to give judgment, request the Court of
Justice to give a ruling thereon.
2. In any event, the Court of Justice shall not have jurisdiction to rule on any
measure or decision taken pursuant to Article 62(1) relating to the mainte-
nance of law and order and the safeguarding of internal security.
3. The Council, the Commission or a Member State may request the Court
of Justice to give a ruling on a question of interpretation of this Title or of
acts of the institutions of the Community based on this Title. The ruling
given by the Court of Justice in response to such a request shall not apply to
judgments of courts or tribunals of the Member States which have become
res judicata.
Article 69
The application of this Title shall be subject to the provisions of the Protocol
on the position of the United Kingdom and Ireland and to the Protocol on the
987
Annex II
position of Denmark and without prejudice to the Protocol on the application

of certain aspects of Article 14 of the Treaty establishing the European Com-
munity to the United Kingdom and to Ireland.
988
Annex 3 December 1998, Vienna European Council
Action Plan of the Council and the Commission
on how best to implement the provisions of
the Treaty of Amsterdam on an area of freedom,
security and justice
(excerpts)
II.B. Policies Related to Free Movement of Persons

I. Measures in the Field of Asylum, External Borders and Immigration
32. The objective is to introduce the area of freedom within the next five years.
As a result, to ensure increased security for all European citizens, achieving this
objective requires accompanying measures to be drawn up, particularly in the
areas of external border controls and the combating of illegal immigration while
full account is taken of the principles set out in Article 6 of the TEU and Arti-
cles 12 and 13 of the TEC. The HCR will be consulted on asylum issues when
necessary.
33. The measures to be drawn up must take due account of the fact that the
areas of asylum and immigration are separate and require separate approaches
and solutions.
34. An overall migration strategy should be established in which a system of

European solidarity should figure prominently. The experiences gained and
progress achieved through cooperation in the Schengen framework should prove
particularly pertinent as regards short term residence (up to three months), the
fight against illegal immigration as well as the controls at external borders. An
overall priority should be to improve the exchange of statistics and information
on asylum and immigration. This exchange should include statistics on asylum
and immigration, information on the status of third country nationals and
national legislation and policy on the basis of the Commission’s Action Plan.
35. In order to complete the area of free movement, it is crucial for there to be
a swift and comprehensive extension of the principles of the free movement of
persons in accordance with the Protocol integrating the Schengen acquis into
the framework of the EU.
Annex III
Measures to be taken within two years.
36. The following measures should be taken within two years after the entry
into force of the Treaty :
a) Measures in the fields of asylum and immigration

Assessment of countries of origin in order to formulate a country specific
integrated approach.
b) Measures in the field of asylum

i) Effectiveness of the Dublin Convention: continued examination of the
criteria and conditions for improving the implementation of the Con-
vention and of the possible transformation of the legal basis to the
system of Amsterdam (Article 63(1)(a) TEC).
A study should be undertaken to see to what extent the mechanism should
be supplemented inter alia by provisions enabling the responsibility for
dealing with the members of the same family to be conferred upon one
Member State where the application of the responsibility criteria would
involve a number of States and by provisions whereby the question of pro-
tection when a refugee changes his country of residence can be resolved
satisfactorily.
ii) The implementation of Eurodac
iii) Adoption of minimum standards on procedures in Member States for
granting or withdrawing refugee status (Article 63(1) (d) TEC) with a
view, inter alia, to reducing the duration of asylum procedures. In this
context, a special attention shall be paid to the situation of children.
iv) Limit “secondary movements” by asylum seekers between Member
States.
v) Defining minimum standards on the reception of asylum seekers with
a particular attention to the situation of children (Article 63(1) (b)
TEC).
vi) Undertake a study with a view to establishing the merits of a single
European asylum procedure.
c) Measures in the field of immigration

i) Instrument on the lawful status of legal immigrants.
ii) Establish a coherent EU policy on readmission and return.
iii) Combat illegal immigration (Article 63(3)(b) TEC) through, inter alia,
information campaigns in transit countries and in the countries of
origin.
In line with the priority to be given to controlling migration flows, practi-
cal proposals for combating illegal immigration more effectively need to
be brought forward swiftly.
990
Vienna Action Plan (excerpts)
d) Measures in the fields of external borders and free movement of persons

i) Procedure and conditions for issuing visas by Member States (resources,
guarantees of repatriation or accident and health cover) as well as the
drawing up of a list of countries whose nationals are subject to an air-
port transit visa requirement (abolition of the current grey list).
ii) Define the rules on a uniform visa (Article 62 (iv) TEC)
iii) Draw up a Regulation on countries:
– whose nationals are exempt from any visa requirement in the
Member States of the European Union;
– whose nationals are subject to a visa requirement in the Member
States of the European Union (Article 62(2)(b)(i) TEC).
iv) Further harmonising Member States’ laws on carriers’ liability.
Measures to be taken as quickly as possible in accordance with the provisions of

the Treaty of Amsterdam:
37a) Minimum standards for giving temporary protection to displaced persons

from third countries who cannot return to their country of origin (Article
63(2)(a) TEC).
b) Promoting a balance of effort between Member States in receiving and
bearing the consequences of receiving displaced persons (Article 63(2)(b)
TEC).
Measures to be taken within five years.
38. The following measures should be taken within five years after the entry
into force of the Treaty :
a) Measures in the fields of asylum and immigration

Identification and implementation of the measures listed in the European
migration strategy
b) Measures in the field of asylum

i) Adoption of minimum standards with respect to the qualification of
nationals of third countries as refugees
ii) Defining minimum standards for subsidiary protection to persons in
need of international protection (Article 63(2) (a) second part).
c) Measures in the field of immigration

i) Improvement of the possibilities for the removal of persons who have
been refused the right to stay through improved EU co-ordination
implementation of readmission clauses and development of European
official (Embassy) reports on the situation in countries in origin.
991
Annex III
ii) Preparation of rules on the 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 purposes of family
reunion (Article 63(3)(a) TEC).
The question of giving third-country nationals holding residence permits
the freedom to settle in any Member State of the Union will shortly be
discussed by the relevant working party.
iii) Determination of the rights and conditions under which nationals of
third countries who are legally resident in a Member State may reside
in other Member States (Article 63(4) TEC).
Within the competent Council bodies discussions could be held, taking
account of the consequences for social equilibrium and the labour
market, on the conditions under which, like Community nationals and
their families, third country nationals could be allowed to settle and
work in any Member State of the Union.
In these two last fields, although the Amsterdam Treaty does not
request action to be accomplished in a five year period, efforts should
be made towards an improvement of the situation in due time.
d) Measures in the fields of external borders and free movement of persons:

i) Extension of the Schengen representation mechanisms with regard to
visas:
A discussion could be initiated on the possibility of establishing an
arrangement between the Member States, which will improve the pos-
sibility of preventing visa applicants from abusing the foreign repre-
sentations of one or more Member States in order to gain access to
another Member State, which at the time of application was the actual
intended country of destinations.
ii) Attention will be given to new technical developments in order to
ensure – as appropriate – an even better security of the uniform format
for visas (sticker).
992
Annex 4 Excerpt from Conclusions, Tampere
European Council
A. A COMMON EU ASYLUM AND MIGRATION POLICY

The separate but closely related issues of asylum and migration call for the
development of a common EU policy to include the following elements.
Partnership with Countries of Origin

The European Union needs a comprehensive approach to migration address-
ing political, human rights and development issues in countries and regions of
origin and transit. This requires combating poverty, improving living conditions
and job opportunities, preventing conflicts and consolidating democratic states
and ensuring respect for human rights, in particular rights of minorities, women
and children. To that end, the Union as well as Member States are invited to
contribute, within their respective competence under the Treaties, to a greater
coherence of internal and external policies of the Union. Partnership with third
countries concerned will also be a key element for the success of such a policy,
with a view to promoting co-development.
In this context, the European Council welcomes the report of the High Level
Working Group on Asylum and Migration set up by the Council, and agrees
on the continuation of its mandate and on the drawing up of further Action
Plans. It considers as a useful contribution the first action plans drawn up by
that Working Group, and approved by the Council, and invites the Council and
the Commission to report back on their implementation to the European Coun-
cil in December 2000.
A Common European Asylum System

The European Council reaffirms the importance the Union and Member States
attach to absolute respect of the right to seek asylum. It has agreed to work
towards establishing a Common European Asylum System, based on the full
and inclusive application of the Geneva Convention, thus ensuring that nobody
is sent back to persecution, i.e. maintaining the principle of non-refoulement.
Annex IV
This System should include, in the short term, a clear and workable determi-
nation of the State responsible for the examination of an asylum application,
common standards for a fair and efficient asylum procedure, common minimum
conditions of reception of asylum seekers, and the approximation of rules on
the recognition and content of the refugee status. It should also be completed
with measures on subsidiary forms of protection offering an appropriate status
to any person in need of such protection. To that end, the Council is urged to
adopt, on the basis of Commission proposals, the necessary decisions according
to the timetable set in the Treaty of Amsterdam and the Vienna Action Plan.
The European Council stresses the importance of consulting UNHCR and
other international organisations.
In the longer term, Community rules should lead to a common asylum proce-
dure and a uniform status for those who are granted asylum valid throughout
the Union. The Commission is asked to prepare within one year a communica-
tion on this matter.
The European Council urges the Council to step up its efforts to reach agree-
ment on the issue of temporary protection for displaced persons on the basis of
solidarity between Member States. The European Council believes that consid-
eration should be given to making some form of financial reserve available in
situations of mass influx of refugees for temporary protection. The Commission
is invited to explore the possibilities for this.
The European Council urges the Council to finalise promptly its work on the
system for the identification of asylum seekers (Eurodac).
Fair Treatment of Third Country Nationals

The European Union must ensure fair treatment of third country nationals who
reside legally on the territory of its Member States. A more vigorous integration
policy should aim at granting them rights and obligations comparable to those
of EU citizens. It should also enhance non-discrimination in economic, social
and cultural life and develop measures against racism and xenophobia.
Building on the Commission Communication on an Action Plan against Racism,

the European Council calls for the fight against racism and xenophobia to be
stepped up. The Member States will draw on best practices and experiences. Co-
operation with the European Monitoring Centre on Racism and Xenophobia
and the Council of Europe will be further strengthened. Moreover, the Commis-
sion is invited to come forward as soon as possible with proposals implement-
ing Article 13 of the EC Treaty on the fight against racism and xenophobia. To
fight against discrimination more generally the Member States are encouraged
to draw up national programmes.
994
Tampere Summit Conclusions (excerpts)
The European Council acknowledges the need for approximation of national

legislations on the conditions for admission and residence of third country
nationals, based on a shared assessment of the economic and demographic devel-
opments within the Union, as well as the situation in the countries of origin. It
requests to this end rapid decisions by the Council, on the basis of proposals by
the Commission. These decisions should take into account not only the recep-
tion capacity of each Member State, but also their historical and cultural links
with the countries of origin.
The legal status of third country nationals should be approximated to that of

Member States’ nationals. A person, who has resided legally in a Member State
for a period of time to be determined and who holds a long-term residence
permit, should be granted in that Member State a set of uniform rights which
are as near as possible to those enjoyed by EU citizens; e.g. the right to reside,
receive education, and work as an employee or self-employed person, as well
as the principle of non-discrimination vis-à-vis the citizens of the State of resi-
dence. The European Council endorses the objective that long-term legally resi-
dent third country nationals be offered the opportunity to obtain the nationality
of the Member State in which they are resident.
Management of Migration Flows

The European Council stresses the need for more efficient management of migra-
tion flows at all their stages. It calls for the development, in close co-operation
with countries of origin and transit, of information campaigns on the actual
possibilities for legal immigration, and for the prevention of all forms of traf-
ficking in human beings. A common active policy on visas and false documents
should be further developed, including closer co-operation between EU consul-
ates in third countries and, where necessary, the establishment of common EU
visa issuing offices.
The European Council is determined to tackle at its source illegal immigration,

especially by combating those who engage in trafficking in human beings and
economic exploitation of migrants. It urges the adoption of legislation foresee-
ing severe sanctions against this serious crime. The Council is invited to adopt
by the end of 2000, on the basis of a proposal by the Commission, legislation
to this end. Member States, together with Europol, should direct their efforts
to detecting and dismantling the criminal networks involved. The rights of the
victims of such activities shall be secured with special emphasis on the problems
of women and children.
The European Council calls for closer co-operation and mutual technical assis-
tance between the Member States’ border control services, such as exchange pro-
995
Annex IV
grammes and technology transfer, especially on maritime borders, and for the
rapid inclusion of the applicant States in this co-operation. In this context, the
Council welcomes the memorandum of understanding between Italy and Greece
to enhance co-operation between the two countries in the Adriatic and Ionian
seas in combating organised crime, smuggling and trafficking of persons.
As a consequence of the integration of the Schengen acquis into the Union, the
candidate countries must accept in full that acquis and further measures build-
ing upon it. The European Council stresses the importance of the effective con-
trol of the Union’s future external borders by specialised trained professionals.
The European Council calls for assistance to countries of origin and transit to
be developed in order to promote voluntary return as well as to help the authori-
ties of those countries to strengthen their ability to combat effectively trafficking
in human beings and to cope with their readmission obligations towards the
Union and the Member States.
The Amsterdam Treaty conferred powers on the Community in the field of

readmission. The European Council invites the Council to conclude readmis-
sion agreements or to include standard clauses in other agreements between the
European Community and relevant third countries or groups of countries. Con-
sideration should also be given to rules on internal readmission.
996
Annex 5 Excerpts from Conclusions, Laeken, Seville
and Thessaloniki European Councils
Laeken European Council, December 2001
A True Common Asylum and Immigration Policy
38. Despite some achievements such as the European Refugee Fund, the Euro-
dac Regulation and the Directive on temporary protection, progress has been
slower and less substantial than expected. A new approach is therefore needed.
39. The European Council undertakes to adopt, on the basis of the Tampere
conclusions and as soon as possible, a common policy on asylum and immigra-
tion, which will maintain the necessary balance between protection of refugees,
in accordance with the principles of the 1951 Geneva Convention, the legiti-
mate aspiration to a better life and the reception capacities of the Union and its
Member States.
40. A true common asylum and immigration policy implies the establishment
of the following instruments:
– the integration of the policy on migratory flows into the European Union’s
foreign policy. In particular, European readmission agreements must be
concluded with the countries concerned on the basis of a new list of priori-
ties and a clear action plan. The European Council calls for an action plan
to be developed on the basis of the Commission communication on illegal
immigration and the smuggling of human beings;
– the development of a European system for exchanging information on
asylum, migration and countries of origin; the implementation of Eurodac
and a Regulation for the more efficient application of the Dublin Conven-
tion, with rapid and efficient procedures;
– the establishment of common standards on procedures for asylum, recep-
tion and family reunification, including accelerated procedures where jus-
tified. These standards should take account of the need to offer help to
asylum applicants;
Annex V
– the establishment of specific programmes to combat discrimination and

racism.
41. The European Council asks the Council to submit, by 30 April 2002 at the
latest, amended proposals concerning asylum procedures, family reunification
and the “Dublin II” Regulation. In addition, the Council is asked to expedite
its proceedings on other drafts concerning reception standards, the definition of
the term “refugee” and forms of subsidiary protection.
More Effective Control of External Borders

42. Better management of the Union’s external border controls will help in the
fight against terrorism, illegal immigration networks and the traffic in human
beings. The European Council asks the Council and the Commission to work
out arrangements for cooperation between services responsible for external
border control and to examine the conditions in which a mechanism or common
services to control external borders could be created. It asks the Council and the
Member States to take steps to set up a common visa identification system and
to examine the possibility of setting up common consular offices.
June 2002 Seville European Council
26. The European Council is determined to speed up the implementation of

all aspects of the programme adopted in Tampere for the creation of an area
of freedom, security and justice in the European Union. The European Council
points here to the need to develop a European Union common policy on the
separate, but closely related, issues of asylum and immigration.
27. It is crucial for the European Union and its Member States that migration
flows should be managed in accordance with the law, in cooperation with the
countries of origin and transit of such flows. The European Council therefore
welcomes the results achieved over the last six months, in particular the com-
prehensive plan to combat illegal immigration, the plan for the management
of external borders and the Directive laying down minimum standards for the
reception of asylum seekers in Member States, and calls on forthcoming Presi-
dencies to continue to give migration issues a special place in their work sched-
ules.
28. Measures taken in the short and medium term for the joint management of
migration flows must strike a fair balance between, on the one hand, an integra-
tion policy for lawfully resident immigrants and an asylum policy complying
with international conventions, principally the 1951 Geneva Convention, and,
on the other, resolute action to combat illegal immigration and trafficking in
human beings.
998
Laeken, Seville and Thessaloniki Summit Conclusions on Immigration/Asylum
29. The Union’s action in this area should be based on the following princi-
ples:
– the legitimate aspiration to a better life has to be reconcilable with the recep-
tion capacity of the Union and its Member States and immigration must
pass through the legal channels provided for it; the integration of immi-
grants lawfully present in the Union entails both rights and obligations in
relation to the fundamental rights recognised within the Union; combating
racism and xenophobia is of essential importance here;
– in accordance with the 1951 Geneva Convention, it is important to afford
refugees swift, effective protection, while making arrangements to prevent
abuse of the system and ensuring that those whose asylum applications
have been rejected are returned to their countries of origin more quickly.
Measures to Combat Illegal Immigration

30. In the comprehensive plan to combat illegal immigration, the European
Union has equipped itself with an effective means of bringing about proper
management of migration flows and combating illegal immigration. The Euro-
pean Council calls on the Council and the Commission, within their respective
spheres of responsibility, to attach top priority to the following measures con-
tained in the plan:
– review, before the end of the year, of the list of third countries whose nation-
als require visas or are exempt from that requirement;
– introduction, as soon as possible, of a common identification system for
visa data, in the light of a feasibility study to be submitted in March 2003
and on the basis of guidelines from the Council; a preliminary report will
be presented before the end of 2002;
– speeding up of the conclusion of readmission agreements currently being
negotiated and approval of new briefs for the negotiation of readmission
agreements with countries already identified by the Council;
– as regards expulsion and repatriation policies, adoption by the end of the
year, of the components of a repatriation programme based on the Com-
mission Green Paper; those components should include the best possible
facilities for early return to Afghanistan;
– formal adoption, at the next Justice and Home Affairs Council meeting,
of the Framework Decision on combating trafficking in human beings, the
Framework Decision on the strengthening of the penal framework to pre-
vent the facilitation of unauthorised entry, transit and residence and the
Directive defining the facilitation of irregular entry, transit and residence.
Gradual Introduction of Coordinated, Integrated Management of External

Borders
31. The European Council welcomes the various recent initiatives in this area
and in particular the Commission communication entitled “Towards integrated
999
Annex V
management of the external borders of the Member States of the European

Union”, the feasibility study carried out under Italy’s leadership concerning the
establishment of a European border police force, taking account of the inten-
tion expressed by the Commission to continue examining the advisability and
feasibility of such a police force, and the study concerning police and border
security, carried out by three Member States under the OISIN cooperation pro-
gramme.
32. The European Council applauds the recent approval of the plan for the
management of the external borders of the Member States, based on those three
initiatives, which should, among other aims, help bring greater control of migra-
tion flows. It urges the introduction without delay, within the framework of the
Council, of the common unit for external border practitioners, composed of
Member States’ heads of border control, to coordinate the
measures contained in the plan.
It also requests the Council, the Commission and the Member States, each
within its respective sphere of responsibility, to implement the following:
– before the end of 2002:
– joint operations at external borders;
– immediate initiation of pilot projects open to all interested Member
States;
– creation of a network of Member States’ immigration liaison officers;
– before June 2003:
– preparation of a common risk analysis model, in order to achieve common
integrated risk assessment;
– establishment of a common core curriculum for border guard training and
consolidation of European provisions concerning borders;
– a study by the Commission concerning burden-sharing between Member
States and the Union for the management of external borders.
Integration of Immigration Policy into the Union’s Relations with Third Countries
33. The European Council considers that combating illegal immigration
requires a greater effort by the European Union and a targeted approach to
the problem, with the use of all appropriate instruments in the context of the
European Union’s external relations. To that end, in accordance with the Tam-
pere European Council conclusions, an integrated, comprehensive and balanced
approach to tackle the root causes of illegal immigration must remain the Euro-
pean Union’s constant long-term objective. With this in mind, the European
Council points out that closer economic cooperation, trade expansion, develop-
ment assistance and conflict prevention are all means of promoting economic
prosperity in the countries concerned and thereby reducing the underlying
causes of migration flows. The European Council urges that any future coop-
1000
eration, association or equivalent agreement which the European Union or the

European Community concludes with any country should include a clause on
joint management of migration flows and on compulsory readmission in the
event of illegal immigration.
34. The European Council highlights the importance of ensuring the coopera-
tion of countries of origin and transit in joint management and in border control
as well as on readmission. Such readmission by third countries should include
that of their own nationals unlawfully present in a Member State and, under
the same conditions, that of other countries’ nationals who can be shown to
have passed through the country in question. Cooperation should bring results
in the short and medium term. The Union is prepared to provide the necessary
technical and financial assistance for the purpose, in which case the European
Community will have to be allocated the appropriate resources, within the limits
of the financial perspective.
35. The European Council considers it necessary to carry out a systematic

assessment of relations with third countries which do not cooperate in combat-
ing illegal immigration. That assessment will be taken into account in relations
between the European Union and its Member States and the countries con-
cerned, in all relevant areas. Inadequate cooperation by a country could hamper
the establishment of closer relations between that country and the Union.
36. After full use has been made of existing Community mechanisms without
success, the Council may unanimously find that a third country has shown an
unjustified lack of cooperation in joint management of migration flows. In that
event the Council may, in accordance with the rules laid down in the treaties,
adopt measures or positions under the Common Foreign and Security Policy
and other European Union policies, while honouring the Union’s contractual
commitments and not jeopardising development cooperation objectives.
Speeding up of Current Legislative Work on the Framing of a Common Policy

on Asylum and Immigration
37. In parallel with closer cooperation in combating illegal immigration, there
is a need to press ahead with examination of proposals under discussion. The
European Council urges the Council to adopt:
– by December 2002, the Dublin II Regulation;
– by June 2003, the minimum standards for qualification and status as refu-
gees and the provisions on family reunification and the status of long-term
permanent residents;
– by the end of 2003, the common standards for asylum procedures.
1001
Annex V
38. The Commission will submit a report to the Council in late October 2002
on the effectiveness of financial resources available at Community level for repa-
triation of immigrants and rejected asylum seekers, for management of external
borders and for asylum and migration projects in third countries.
39. The European Council asks the Council, in cooperation with the Commis-
sion, to submit for the European Council meeting in June 2003 a report on the
practical implementation of the guidelines set out in this section.
1002
June 2003 Thessaloniki European Council
IMMIGRATION, FRONTIERS AND ASYLUM

8. The European Council of Seville emphasised the need to speed up the
implementation of all aspects of the programme approved at Tampere, espe-
cially on matters relating to the development of a common European policy on
asylum and migration.
9. Given the top political priority ascribed to migration, there is a marked

need for a more structured EU policy, which will cover the whole spectrum of
relations with third countries including the prompt conclusion of readmission
agreements with key third countries of origin as well as the promotion of further
cooperation with them to be viewed as a two-way process in order to combat
illegal migration and to explore legal migration channels under specific terms of
reference. In this context, the issue of smooth integration of legal migrants into
EU societies should also be further examined and enhanced. Furthermore, the
existing financial means at our disposal for the coming years 2004-2006 should
be carefully reviewed, and taking into account the overall framework and the
need for budgetary discipline, the post-2006 financial perspectives should reflect
this political priority of the Community.
10. The European Council has reached the following conclusions with refer-
ence to:
The Development of a Common Policy on Illegal Immigration, External Borders,

the Return of Illegal Migrants and Cooperation with Third Countries
Visas
11. Referring to the Council conclusions of 5 June 2003 on the development of
the Visa Information System (VIS), the European Council deems necessary that,
following the feasibility study by the Commission on the VIS, orientations should
be determined as soon as possible, in order to satisfy the preferred options, with
regard to the planning for the development of the system, the appropriate legal
basis which will permit its establishment and the engagement of the necessary
financial means, while respecting the financial perspectives. In this framework
a coherent approach is needed in the EU on biometric identifiers or biometric
data, which would result in harmonised solutions for documents for third coun-
try nationals, EU citizens’ passports and information systems (VIS and SIS II).
The European Council invites the Commission to prepare the appropriate pro-
posals, starting with visas, while fully respecting the envisaged timetable for the
introduction of the Schengen Information System II.
1003
Annex V
Management of External Borders

12. Taking into consideration the common interest of all EU Member States in
establishing more effective management of the external borders of EU Member
States and noting the results achieved from the implementation of the various
operational programmes, pilot projects, risk analyses, training of border person-
nel etc., as well as the conclusions to be drawn from the study undertaken by the
Commission, at the request of the Council, relating to the complex and sensitive
question of sea border controls, the European Council stresses the importance
of assuring the continuity and coherence of Community action in this field by
setting out priorities and determining a more structured framework and meth-
ods.
13. The European Council recognises the progress made in fully activating the
operational branch of SCIFA required by the Seville conclusions, and more par-
ticularly, the tasking of the Common Unit of External Border Practitioners with
the operational implementation and coordination of the measures contained in
the Plan for the management of the external borders, which includes coordina-
tion and monitoring of “Centres” and operational activities, as well as prepara-
tion of strategic decisions, for the more effective and integrated management of
the external borders of EU Member States. As mentioned in the conclusions
adopted by the Council on 5 June 2003 to that effect, the General Secretariat
of the Council will ensure the preparation and follow-up of the meetings of the
Common Unit and could be assisted in this task, in the initial phase, by experts
seconded by the Member States.
14. The European Council invites the Commission to examine in due course,
drawing on experience by the Common Unit activities, the necessity of creating
new institutional mechanisms, including the possible creation of a Community
operational structure, in order to enhance operational cooperation for the man-
agement of external borders.
15. The European Council emphasises the need for acceleration of works on
adopting the appropriate legal instrument formally establishing the Immigra-
tion Liaison Officers (ILOs) network in third countries, at the earliest possible
date and before the end of 2003.
16. The European Council invites the Commission to present, as soon as pos-
sible, proposals on the recast of the Common Manual, including the stamping
of travel documents of third-country nationals.
Return of illegal migrants
17. The implementation of a common policy on return of illegally residing per-

sons is the responsibility of Member States. However, greater efficiency can be
1004
achieved by reinforcing existing cooperation and setting up mechanisms to this

end, including a financial component.
18. In this context, the European Council invites the Commission to examine
all aspects relating to the establishment of a separate Community instrument in
order to support, in particular, the priorities as set out in the Return Action Pro-
gramme approved by the Council, and to report back to it by the end of 2003.
Partnership with third countries
19. In the context of integrating migration issues in our Union’s relations

with third countries, the European Council reaffirms that the EU dialogue and
actions with third countries in the field of migration should be part of an overall
integrated, comprehensive and balanced approach, which should be differenti-
ated, taking account of the existing situation in the different regions and in each
individual partner country. In this respect, the European Council recognises the
importance of developing an evaluation mechanism to monitor relations with
third countries which do not cooperate with the EU in combating illegal immi-
gration, and considers the following topics to be of primary importance:
– participation in the international instruments relevant to this matter (e.g.:
Conventions on Human Rights, the Geneva Convention of 28 July 1951
relating to the status of refugees as amended by the New York Protocol of
31 January 1967, etc.),
– cooperation of third countries in readmission/return of their nationals and
of third-country nationals,
– efforts in border control and interception of illegal immigrants,
– combating of trafficking in human beings, including taking legislative and
other measures,
– cooperation on visa policy and possible adaptation of their visa systems,
– creation of asylum systems, with specific reference to access to effective pro-
tection, and
– efforts in redocumentation of their nationals.
20. In developing the above evaluation, the Council will make use of the infor-
mation to be provided by the ILOs network for any of the above topics that fall
under their competencies, and through intensified and more efficient consular
cooperation between Member States in third countries.
21. The European Council invites the Commission to report annually on the
results of the above monitoring of cooperation of third countries, and to make
proposals or recommendations as it deems appropriate.
Community financial resources and burden-sharing mechanism
1005
Annex V
22. Following the development of mutual confidence between Member States

for the promotion of the area of liberty, security and justice, which is a priority
objective of the Union, the European Council emphasises that the principle of
solidarity must be consolidated and must be made more concrete, notably in
terms of reinforced operational cooperation. The European Council estimates
that, taking into account the overall framework and the need for budgetary dis-
cipline, the post-2006 financial perspectives should reflect this political priority
of the Community.
23. In the meantime, the European Council invites the Commission to examine,
while respecting the principles determining the use of the budget, the possibil-
ity of appropriating funds under heading 3 of the financial perspective taking
into account the need to safeguard appropriate margins under the ceiling of
this heading, in order to address, during the period 2004-2006, the most press-
ing structural needs in this area and to cover a wider definition of solidarity
that would, noting the Commission Communication, include inter alia Com-
munity support in the management of external borders, the implementation of
the Return Action Programme and the development of the Visa Information
System (VIS). In this respect, the European Council notes the Commission’s
relevant analysis and that its estimated needs amount to EUR 140 million.
Asylum
24. The European Council has reiterated its determination to establish a

Common European Asylum System, as called for at its October 1999 meeting
in Tampere and clarified in June 2002 in Seville. In this context, it is vital that
the Council ensures the adoption, before the end of 2003, of the outstanding
basic legislation, that is the proposal for a Council Directive on minimum stan-
dards for the qualification and status of third country nationals and stateless
persons as refugees or as persons who otherwise need international protection
and the proposal for a Council Directive on minimum standards on procedures
in Member States for granting and withdrawing refugee status.
25. The European Council reaffirms the importance of establishing a more

efficient asylum system within the EU to identify quickly all persons in need
of protection, in the context of broader migration movements, and developing
appropriate EU programmes.
26. The European Council takes note of the Communication from the Com-
mission, which is focussing on more accessible, equitable and managed asylum
systems, and invites the Commission to explore all parameters in order to ensure
more orderly and managed entry in the EU of persons in need of international
protection, and to examine ways and means to enhance the protection capac-
ity of regions of origin with a view to presenting to the Council, before June
1006
2004 a comprehensive report suggesting measures to be taken, including legal

implications. As part of this process the European Council notes that a number
of Member States plan to explore ways of providing better protection for the
refugees in their region of origin, in conjunction with the UNHCR. This work
shall be carried out in full partnership with the countries concerned on the basis
of recommendations from the UNHCR.
27. The European Council invites the Council and the Commission to examine,
before the end of 2003, the possibilities to further reinforce the asylum proce-
dures in order to make them more efficient with a view to accelerating, as much
as possible, the processing of non-international protection-related applications.
The development of a policy at European Union level on the integration of third
country nationals legally residing in the territory of the European Union
28. The European Council deems necessary the elaboration of a comprehensive

and multidimensional policy on the integration of legally residing third country
nationals who, according to and in order to implement the conclusions of the
European Council of Tampere, should be granted rights and obligations compa-
rable to those of EU citizens. Considering that successful integration contrib-
utes to social cohesion and economic welfare, such a policy should cover factors
such as employment, economic participation, education and language training,
health and social services, housing and urban issues, as well as culture and par-
ticipation in social life. In this respect the European Council welcomes the fact
that agreement has been reached on the Directives on family reunification and
long-term resident status, which are essential instruments for the integration of
third country nationals.
29. An EU Integration Policy should contribute as effectively as possible to the

new demographic and economic challenges which the EU is now facing, taking
into account the particularities of the various target groups of third-country
nationals, such as women, children and aged persons, refugees and persons
enjoying international protection, regarding especially the length, permanence
and stability of their residence.
30. In order to respond to these challenges, the European Council stresses the
need for exploring legal means for third-country nationals to migrate to the
Union, taking into account the reception capacity of the Member States, within
the framework of an enhanced cooperation with the countries of origin which
will prove beneficial for both sides.
31. Integration policies should be understood as a continuous, two-way process

based on mutual rights and corresponding obligations of legally residing third-
country nationals and the host societies. While primary responsibility for their
1007
Annex V
elaboration and implementation remains with the Member States, such policies
should be developed within a coherent European Union framework, taking into
account the legal, political, economic, social and cultural diversity of Member
States. In order to intensify the development of such a framework, the defini-
tion of common basic principles should be envisaged.
32. Taking into account that integration of legally residing third country nation-
als is a complex process which requires the exchange of experiences, the Euro-
pean Council stresses the importance of developing cooperation and exchange
of information within the framework of the newly established group of national
contact points on integration with a view in particular to strengthening coordi-
nation of relevant policies at national and European Union level.
33. In that respect the European Council invites the Commission to present an
Annual Report on Migration and Integration in Europe, in order to map EU-
wide migration data, immigration and integration policies and practices. This
Report, which should contain an accurate and objective analysis of the above
issues, will help develop and promote policy initiatives for more effective man-
agement of migration in Europe.
34. Moreover, taking into account the importance of monitoring and analysing
the multidimensional migration phenomenon, the European Council welcomes
the establishment of a European Migration Network and will examine the pos-
sibility of setting up a permanent structure in the future.
35. The success of such an integration policy relies upon the efficient involve-
ment of all the possible actors. European Union competent bodies, national and
local authorities, trade unions, employers unions, nongovernmental organisa-
tions, organisations of migrants, and organisations which pursue cultural, social
and sport purposes should be encouraged to participate in the common effort at
both Union and national level. In this context, we welcome the first summit of
European Diasporas which is taking place in Thessaloniki at the same time as
our European Council.
1008
Annex 6 Excerpts: The Hague Programme
(OJ 2005 C 53)
I. INTRODUCTION
The European Council reaffirms the priority it attaches to the development of
an area of freedom, security and justice, responding to a central concern of the
peoples of the States brought together in the Union.
Over the past years the European Union has increased its role in securing police,
customs and judicial cooperation and in developing a coordinated policy with
regard to asylum, immigration and external border controls. This development
will continue with the firmer establishment of a common area of freedom, secu-
rity and justice by the Treaty establishing a Constitution for Europe, signed in
Rome on 29 October 2004. This Treaty and the preceding Treaties of Maas-
tricht, Amsterdam and Nice have progressively brought about a common legal
framework in the field of justice and home affairs, and the integration of this
policy area with other policy areas of the Union.
Since the Tampere European Council in 1999, the Union’s policy in the area
of justice and home affairs has been developed in the framework of a general
programme. Even if not all the original aims were achieved, comprehensive
and coordinated progress has been made. The European Council welcomes the
results that have been achieved in the first five-year period: the foundations for
a common asylum and immigration policy have been laid, the harmonisation of
border controls has been prepared, police cooperation has been improved, and
the groundwork for judicial cooperation on the basis of the principle of mutual
recognition of judicial decisions and judgments has been well advanced.
The security of the European Union and its Member States has acquired a new
urgency, especially in the light of the terrorist attacks in the United States on
11 September 2001 and in Madrid on 11 March 2004. The citizens of Europe
rightly expect the European Union, while guaranteeing respect for fundamental
freedoms and rights, to take a more effective, joint approach to cross-border
Annex VI
problems such as illegal migration, trafficking in and smuggling of human

beings, terrorism and organised crime, as well as the prevention thereof. Notably
in the field of security, the coordination and coherence between the internal and
the external dimension has been growing in importance and needs to continue
to be vigorously pursued.
Five years after the European Council’s meeting in Tampere, it is time for a new
agenda to enable the Union to build on the achievements and to meet effectively
the new challenges it will face. To this end, the European Council has adopted
this new multi-annual programme to be known as the Hague Programme. It
reflects the ambitions as expressed in the Treaty establishing a Constitution for
Europe and contributes to preparing the Union for its entry into force. It takes
account of the evaluation by the Commission as welcomed by the European
Council in June 2004 as well as the Recommendation adopted by the European
Parliament on 14 October 2004, in particular in respect of the passage to quali-
fied majority voting and co-decision as foreseen by Article 67(2) TEC.
The objective of the Hague programme is to improve the common capability of

the Union and its Member States to guarantee fundamental rights, minimum
procedural safeguards and access to justice, to provide protection in accordance
with the Geneva Convention on Refugees and other international treaties to
persons in need, to regulate migration flows and to control the external bor-
ders of the Union, to fight organised cross-border crime and repress the threat
of terrorism, to realise the potential of Europol and Eurojust, to carry further
the mutual recognition of judicial decisions and certificates both in civil and in
criminal matters, and to eliminate legal and judicial obstacles in litigation in civil
and family matters with cross-border implications. This is an objective that has
to be achieved in the interests of our citizens by the development of a Common
Asylum System and by improving access to the courts, practical police and judi-
cial cooperation, the approximation of laws and the development of common
policies.
A key element in the near future will be the prevention and suppression of ter-
rorism. A common approach in this area should be based on the principle that
when preserving national security, the Member States should take full account
of the security of the Union as a whole. In addition, the European Council will
be asked to endorse in December 2004 the new European Strategy on Drugs
2005-2012 that will be added to this programme.
The European Council considers that the common project of strengthening

the area of freedom, security and justice is vital to securing safe communities,
mutual trust and the rule of law throughout the Union. Freedom, justice, con-
trol at the external borders, internal security and the prevention of terrorism
1010
Excerpts from Hague Programme, November 2004
should henceforth be considered indivisible within the Union as a whole. An

optimal level of protection of the area of freedom, security and justice requires
multi-disciplinary and concerted action both at EU level and at national level
between the competent law enforcement authorities, especially police, customs
and border guards.
In the light of this Programme, the European Council invites the Commission to
present to the Council an Action Plan in 2005 in which the aims and priorities of
this programme will be translated into concrete actions. The plan shall contain a
timetable for the adoption and implementation of all the actions. The European
Council calls on the Council to ensure that the timetable for each of the various
measures is observed. The Commission is invited to present to the Council a
yearly report on the implementation of the Hague programme (“scoreboard”).
II. GENERAL ORIENTATIONS

1. General Principles
The programme set out below seeks to respond to the challenge and the expecta-
tions of our citizens. It is based on a pragmatic approach and builds on ongoing
work arising from the Tampere programme, current action plans and an evalu-
ation of first generation measures. It is also grounded in the general principles
of subsidiarity, proportionality, solidarity and respect for the different legal sys-
tems and traditions of the Member States.
The Treaty establishing a Constitution of Europe (hereinafter “the Constitu-

tional Treaty”) served as a guideline for the level of ambition, but the existing
Treaties provide the legal basis for Council action until such time as the Con-
stitutional Treaty takes effect. Accordingly, the various policy areas have been
examined to determine whether preparatory work or studies could already com-
mence, so that measures provided for in the Constitutional Treaty can be taken
as soon as it enters into force.
Fundamental rights, as guaranteed by the European Convention on Human

Rights and the Charter of Fundamental Rights in Part II of the Constitutional
Treaty, including the explanatory notes, as well as the Geneva Convention on
Refugees, must be fully respected. At the same time, the programme aims at real
and substantial progress towards enhancing mutual confidence and promoting
common policies to the benefit of all our citizens.
2. Protection of Fundamental Rights

Incorporating the Charter into the Constitutional Treaty and accession to the
European Convention for the protection of human rights and fundamental free-
doms will place the Union, including its institutions, under a legal obligation to
ensure that in all its areas of activity, fundamental rights are not only respected
but also actively promoted.
1011
Annex VI
In this context, the European Council, recalling its firm commitment to oppose
any form of racism, antisemitism and xenophobia as expressed in December
2003, welcomes the Commission’s communication on the extension of the man-
date of the European Monitoring Centre on Racism and Xenophobia towards
a Human Rights Agency.
3. Implementation and Evaluation

The evaluation by the Commission of the Tampere programme [3] showed a
clear need for adequate and timely implementation and evaluation of all types
of measures in the area of freedom, security and justice.
It is vital for the Council to develop in 2005 practical methods to facilitate

timely implementation in all policy areas: measures requiring national authori-
ties’ resources should be accompanied by proper plans to ensure more effective
implementation, and the length of the implementation period should be more
closely related to the complexity of the measure concerned. Regular progress
reports by the Commission to the Council during the implementation period
should provide an incentive for action in Member States.
Evaluation of the implementation as well as of the effects of all measures is, in

the European Council’s opinion, essential to the effectiveness of Union action.
The evaluations undertaken as from 1 July 2005 must be systematic, objective,
impartial and efficient, while avoiding too heavy an administrative burden on
national authorities and the Commission. Their goal should be to address the
functioning of the measure and to suggest solutions for problems encountered in
its implementation and/or application. The Commission should prepare a yearly
evaluation report of measures to be submitted to the Council and to inform the
European Parliament and the national parliaments.
The European Commission is invited to prepare proposals, to be tabled as soon

as the Constitutional Treaty has entered into force, relating to the role of the
European Parliament and national parliaments in the evaluation of Eurojust’s
activities and the scrutiny of Europol’s activities.
4. Review
Since the programme will run for a period during which the Constitutional
Treaty will enter into force, a review of its implementation is considered to be
useful. To that end, the Commission is invited to report by the entry into force
of the Constitutional Treaty (1 November 2006) to the European Council on the
progress made and to propose the necessary additions to the programme, taking
into account the changing legal basis as a consequence of its entry into force.
1012
III. SPECIFIC ORIENTATIONS

1. Strengthening Freedom
1.1. Citizenship of the Union
The right of all EU citizens to move and reside freely in the territory of the
Member States is the central right of citizenship of the Union. Practical signifi-
cance of citizenship of the Union will be enhanced by full implementation of
Directive 2004/38, which codifies Community law in this field and brings clar-
ity and simplicity. The Commission is asked to submit in 2008 a report to the
Council and the European Parliament, accompanied by proposals, if appropri-
ate, for allowing EU citizens to move within the European Union on similar
terms to nationals of a Member State moving around or changing their place
of residence in their own country, in conformity with established principles of
Community law.
The European Council encourages the Union’s institutions, within the frame-
work of their competences, to maintain an open, transparent and regular dia-
logue with representative associations and civil society and to promote and
facilitate citizens’ participation in public life. In particular, the European Coun-
cil invites the Council and the Commission to give special attention to the fight
against anti-semitism, racism and xenophobia.
1.2. Asylum, Migration and Border Policy

International migration will continue. A comprehensive approach, involving
all stages of migration, with respect to the root causes of migration, entry and
admission policies and integration and return policies is needed.
To ensure such an approach, the European Council urges the Council, the
Member States and the Commission to pursue coordinated, strong and effective
working relations between those responsible for migration and asylum policies
and those responsible for other policy fields relevant to these areas.
The ongoing development of European asylum and migration policy should be

based on a common analysis of migratory phenomena in all their aspects. Rein-
forcing the collection, provision, exchange and efficient use of up-to-date infor-
mation and data on all relevant migratory developments is of key importance.
The second phase of development of a common policy in the field of asylum,

migration and borders started on 1 May 2004. It should be based on solidarity
and fair sharing of responsibility including its financial implications and closer
practical cooperation between Member States: technical assistance, training,
and exchange of information, monitoring of the adequate and timely imple-
mentation and application of instruments as well as further harmonisation of
legislation.
1013
Annex VI
The European Council, taking into account the assessment by the Commission
and the strong views expressed by the European Parliament in its Recommenda-
tion, asks the Council to adopt a decision based on Article 67(2) TEC immedi-
ately after formal consultation of the European Parliament and no later than 1
April 2005 to apply the procedure provided for in Article 251 TEC to all Title
IV measures to strengthen freedom, subject to the Nice Treaty, except for legal
migration.
1.3. A Common European Asylum System

The aims of the Common European Asylum System in its second phase will be
the establishment of a common asylum procedure and a uniform status for those
who are granted asylum or subsidiary protection. It will be based on the full and
inclusive application of the Geneva Convention on Refugees and other relevant
Treaties, and be built on a thorough and complete evaluation of the legal instru-
ments that have been adopted in the first phase.
The European Council urges the Member States to implement fully the first
phase without delay. In this regard the Council should adopt unanimously, in
conformity with article 67(5) TEC, the Asylum Procedures Directive as soon as
possible. The Commission is invited to conclude the evaluation of first-phase
legal instruments in 2007 and to submit the second-phase instruments and mea-
sures to the Council and the European Parliament with a view to their adoption
before the end of 2010. In this framework, the European Council invites the
Commission to present a study on the appropriateness, the possibilities and the
difficulties, as well as the legal and practical implications of joint processing
of asylum applications within the Union. Furthermore a separate study, to be
conducted in close consultation with the UNHCR, should look into the merits,
appropriateness and feasibility of joint processing of asylum applications out-
side EU territory, in complementarity with the Common European Asylum
System and in compliance with the relevant international standards.
The European Council invites the Council and the Commission to establish
in 2005 appropriate structures involving the national asylum services of the
Member States with a view to facilitating practical and collaborative coopera-
tion. Thus Member States will be assisted, inter alia, in achieving a single pro-
cedure for the assessment of applications for international protection, and in
jointly compiling, assessing and applying information on countries of origin, as
well as in addressing particular pressures on the asylum systems and reception
capacities resulting, inter alia, from their geographical location. After a common
asylum procedure has been established, these structures should be transformed,
on the basis of an evaluation, into a European support office for all forms of
1014
cooperation between Member States relating to the Common European Asylum

System.
The European Council welcomes the establishment of the new European Refugee
Fund for the period 2005-2010 and stresses the urgent need for Member States
to maintain adequate asylum systems and reception facilities in the run-up to
the establishment of a common asylum procedure. It invites the Commission to
earmark existing Community funds to assist Member States in the processing of
asylum applications and in the reception of categories of third-country nation-
als. It invites the Council to designate these categories on the basis of a proposal
to be submitted by the Commission in 2005.
1.4. Legal Migration and the Fight against Illegal Employment

Legal migration will play an important role in enhancing the knowledge-based
economy in Europe, in advancing economic development, and thus contributing
to the implementation of the Lisbon strategy. It could also play a role in partner-
ships with third countries.
The European Council emphasizes that the determination of volumes of admis-

sion of labour migrants is a competence of the Member States. The European
Council, taking into account the outcome of discussions on the Green Paper on
labour migration, best practices in Member States and its relevance for imple-
mentation of the Lisbon strategy, invites the Commission to present a policy
plan on legal migration including admission procedures capable of responding
promptly to fluctuating demands for migrant labour in the labour market before
the end of 2005.
As the informal economy and illegal employment can act as a pull factor for
illegal immigration and can lead to exploitation, the European Council calls on
Member States to reach the targets for reducing the informal economy set out in
the European employment strategy.
1.5. Integration of Third-country Nationals

Stability and cohesion within our societies benefit from the successful integra-
tion of legally resident third-country nationals and their descendants. To achieve
this objective, it is essential to develop effective policies, and to prevent the isola-
tion of certain groups. A comprehensive approach involving stakeholders at the
local, regional, national, and EU level is therefore essential.
While recognising the progress that has already been made in respect of the fair
treatment of legally resident third-country nationals in the EU, the European
Council calls for the creation of equal opportunities to participate fully in soci-
ety. Obstacles to integration need to be actively eliminated.
1015
Annex VI
The European Council underlines the need for greater coordination of national
integration policies and EU initiatives in this field. In this respect, the common
basic principles underlying a coherent European framework on integration
should be established.
These principles, connecting all policy areas related to integration, should

include at least the following aspects.
Integration:
– is a continuous, two-way process involving both legally resident third-coun-
try nationals and the host society,
– includes, but goes beyond, anti-discrimination policy,
– implies respect for the basic values of the European Union and fundamen-
tal human rights,
– requires basic skills for participation in society,
– relies on frequent interaction and intercultural dialogue between all mem-
bers of society within common forums and activities in order to improve
mutual understanding,
– extends to a variety of policy areas, including employment and education.
A framework, based on these common basic principles, will form the foundation
for future initiatives in the EU, relying on clear goals and means of evaluation.
The European Council invites Member States, the Council and the Commission
to promote the structural exchange of experience and information on integra-
tion, supported by the development of a widely accessible website on the Inter-
net.
1.6. The External Dimension of Asylum and Migration

1.6.1. Partnership with Third Countries
Asylum and migration are by their very nature international issues. EU policy
should aim at assisting third countries, in full partnership, using existing Com-
munity funds where appropriate, in their efforts to improve their capacity for
migration management and refugee protection, prevent and combat illegal
immigration, inform on legal channels for migration, resolve refugee situations
by providing better access to durable solutions, build border-control capacity,
enhance document security and tackle the problem of return.
The European Council recognises that insufficiently managed migration flows

can result in humanitarian disasters. It wishes to express its utmost concern
about the human tragedies that take place in the Mediterranean as a result of
attempts to enter the EU illegally. It calls upon all States to intensify their coop-
eration in preventing further loss of life.
1016
The European Council calls upon the Council and the Commission to continue
the process of fully integrating migration into the EU’s existing and future rela-
tions with third countries. It invites the Commission to complete the integration
of migration into the Country and Regional Strategy Papers for all relevant
third countries by the spring of 2005.
The European Council acknowledges the need for the EU to contribute in a

spirit of shared responsibility to a more accessible, equitable and effective inter-
national protection system in partnership with third countries, and to provide
access to protection and durable solutions at the earliest possible stage. Countries
in regions of origin and transit will be encouraged in their efforts to strengthen
the capacity for the protection of refugees. In this regard the European Council
calls upon all third countries to accede and adhere to the Geneva Convention
on Refugees.
1.6.2. Partnership with Countries and Regions of Origin

The European Council welcomes the Commission Communication on improv-
ing access to durable solutions [6] and invites the Commission to develop
EU-Regional Protection Programmes in partnership with the third countries
concerned and in close consultation and cooperation with UNHCR. These pro-
grammes will build on experience gained in pilot protection programmes to be
launched before the end of 2005. These programmes will incorporate a variety
of relevant instruments, primarily focused on capacity building, and include a
joint resettlement programme for Member States willing to participate in such
a programme.
Policies which link migration, development cooperation and humanitarian

assistance should be coherent and be developed in partnership and dialogue
with countries and regions of origin. The European Council welcomes the prog-
ress already made, invites the Council to develop these policies, with particular
emphasis on root causes, push factors and poverty alleviation, and urges the
Commission to present concrete and carefully worked out proposals by the
spring of 2005.
1.6.3. Partnership with Countries and Regions of Transit

As regards countries of transit, the European Council emphasises the need for
intensified cooperation and capacity building, both on the southern and the
eastern borders of the EU, to enable these countries better to manage migration
and to provide adequate protection for refugees. Support for capacity-building
in national asylum systems, border control and wider cooperation on migration
issues will be provided to those countries that demonstrate a genuine commit-
ment to fulfil their obligations under the Geneva Convention on Refugees.
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Annex VI
The proposal for a Regulation establishing a European Neighbourhood and

Partnership Instrument [7] provides the strategic framework for intensifying
cooperation and dialogue on asylum and migration with neighbouring countries
amongst others around the Mediterranean basin, and for initiating new mea-
sures. In this connection, the European Council requests a report on progress
and achievements before the end of 2005.
1.6.4. Return and Re-admission Policy

Migrants who do not or no longer have the right to stay legally in the EU must
return on a voluntary or, if necessary, compulsory basis. The European Council
calls for the establishment of an effective removal and repatriation policy based
on common standards for persons to be returned in a humane manner and with
full respect for their human rights and dignity.
The European Council considers it essential that the Council begins discussions
in early 2005 on minimum standards for return procedures including minimum
standards to support effective national removal efforts. The proposal should
also take into account special concerns with regard to safeguarding public order
and security. A coherent approach between return policy and all other aspects
of the external relations of the Community with third countries is necessary as
is special emphasis on the problem of nationals of such third countries who are
not in the possession of passports or other identity documents.
The European Council calls for:

– closer cooperation and mutual technical assistance,
– launching of the preparatory phase of a European return fund,
– common integrated country and region specific return programmes,
– the establishment of a European Return Fund by 2007 taking into account
the evaluation of the preparatory phase,
– the timely conclusion of Community readmission agreements,
– the prompt appointment by the Commission of a Special Representative
for a common readmission policy.
1.7. Management of Migration Flows

1.7.1. Border Checks and the Fight against Illegal Immigration
The European Council stresses the importance of swift abolition of internal
border controls, the further gradual establishment of the integrated management
system for external borders and the strengthening of controls at and surveillance
of the external borders of the Union. In this respect the need for solidarity and
fair sharing of responsibility including its financial implications between the
Member States is underlined.
1018
The European Council urges the Council, the Commission and Member States
to take all necessary measures to allow the abolition of controls at internal
borders as soon as possible, provided all requirements to apply the Schengen
acquis have been fulfilled and after the Schengen Information System (SIS II)
has become operational in 2007. In order to reach this goal, the evaluation of
the implementation of the non SIS II related acquis should start in the first half
of 2006.
The European Council welcomes the establishment of the European Agency for
the Management of Operational Cooperation at the External Borders, on 1 May
2005. It requests the Commission to submit an evaluation of the Agency to the
Council before the end of 2007. The evaluation should contain a review of the
tasks of the Agency and an assessment of whether the Agency should concern
itself with other aspects of border management, including enhanced coopera-
tion with customs services and other competent authorities for goods-related
security matters.
The control and surveillance of external borders fall within the sphere of
national border authorities. However, in order to support Member States with
specific requirements for control and surveillance of long or difficult stretches
of external borders, and where Member States are confronted with special and
unforeseen circumstances due to exceptional migratory pressures on these bor-
ders, the European Council:
– invites the Council to establish teams of national experts that can provide
rapid technical and operational assistance to Member States requesting
it, following proper risk analysis by the Border Management Agency and
acting within its framework, on the basis of a proposal by the Commission
on the appropriate powers and funding for such teams, to be submitted in
2005,
– invites the Council and the Commission to establish a Community border
management fund by the end of 2006 at the latest,
– invites the Commission to submit, as soon as the abolition of controls at
internal borders has been completed, a proposal to supplement the existing
Schengen evaluation mechanism with a supervisory mechanism, ensuring
full involvement of Member States experts, and including unannounced
inspections.
The review of the tasks of the Agency envisaged above and in particular the
evaluation of the functioning of the teams of national experts should include
the feasibility of the creation of a European system of border guards.
The European Council invites Member States to improve their joint analyses
of migratory routes and smuggling and trafficking practices and of criminal
1019
Annex VI
networks active in this area, inter alia within the framework of the Border Man-
agement Agency and in close cooperation with Europol and Eurojust. It also
calls on the Council and the Commission to ensure the firm establishment of
immigration liaison networks in relevant third countries. In this connection,
the European Council welcomes initiatives by Member States for cooperation
at sea, on a voluntary basis, notably for rescue operations, in accordance with
national and international law, possibly including future cooperation with third
countries.
With a view to the development of common standards, best practices and mech-
anisms to prevent and combat trafficking in human beings, the European Coun-
cil invites the Council and the Commission to develop a plan in 2005.
1.7.2. Biometrics and Information Systems

The management of migration flows, including the fight against illegal immigra-
tion should be strengthened by establishing a continuum of security measures
that effectively links visa application procedures and entry and exit procedures
at external border crossings. Such measures are also of importance for the pre-
vention and control of crime, in particular terrorism. In order to achieve this, a
coherent approach and harmonised solutions in the EU on biometric identifiers
and data are necessary.
The European Council requests the Council to examine how to maximise the
effectiveness and interoperability of EU information systems in tackling illegal
immigration and improving border controls as well as the management of these
systems on the basis of a communication by the Commission on the interoper-
ability between the Schengen Information System (SIS II), the Visa Information
System (VIS) and EURODAC to be released in 2005, taking into account the
need to strike the right balance between law enforcement purposes and safe-
guarding the fundamental rights of individuals.
The European Council invites the Council, the Commission and Member States
to continue their efforts to integrate biometric identifiers in travel documents,
visa, residence permits, EU citizens’ passports and information systems without
delay and to prepare for the development of minimum standards for national
identity cards, taking into account ICAO standards.
1.7.3. Visa Policy

The European Council underlines the need for further development of the
common visa policy as part of a multi-layered system aimed at facilitating
legitimate travel and tackling illegal immigration through further harmonisa-
tion of national legislation and handling practices at local consular missions.
Common visa offices should be established in the long term, taking into account
discussions on the establishment of an European External Action Service. The
1020
European Council welcomes initiatives by individual Member States which, on a

voluntary basis, cooperate at pooling of staff and means for visa issuance.
The European Council:

– invites the Commission, as a first step, to propose the necessary amend-
ments to further enhance visa policies and to submit in 2005 a proposal
on the establishment of common application centres focusing inter alia
on possible synergies linked with the development of the VIS, to review
the Common Consular Instructions and table the appropriate proposal by
early 2006 at the latest,
– stresses the importance of swift implementation of the VIS starting with
the incorporation of among others alphanumeric data and photographs by
the end of 2006 and biometrics by the end of 2007 at the latest,
– invites the Commission to submit without delay the necessary proposal
in order to comply with the agreed time frame for implementation of the
VIS,
– calls on the Commission to continue its efforts to ensure that the citizens of
all Member States can travel without a short-stay visa to all third countries
whose nationals can travel to the EU without a visa as soon as possible,
– invites the Council and the Commission to examine, with a view to devel-
oping a common approach, whether in the context of the EC readmission
policy it would be opportune to facilitate, on a case by case basis, the issu-
ance of short-stay visas to third-country nationals, where possible and on
a basis of reciprocity, as part of a real partnership in external relations,
including migration-related issues.
1021
Annex 7 EU Constitutional Treaty (excerpt)
(OJ 2004 C 310)
Article III-265
(1) The Union shall develop a policy with a view to:

(a) ensuring the absence of any controls on persons, whatever their nation-
ality, when crossing internal borders;
(b) carrying out checks on persons and efficient monitoring of the cross-
ing of external borders;
(b) the gradual introduction of an integrated management system for
external borders.
(2) For the purposes of paragraph 1, European laws or framework laws shall
establish measures concerning:
(a) the common policy on visas and other short-stay residence permits;
(b) the checks to which persons crossing external borders are subject;
(c) the conditions under which nationals of third countries shall have the
freedom to travel within the Union for a short period;
(d) any measure necessary for the gradual establishment of an integrated
management system for external borders;
(e) the absence of any controls on persons, whatever their nationality,
when crossing internal borders.
(3) This Article shall not affect the competence of Member States con-
cerning the geographical demarcation of their borders, in accordance
with international law.
Article III-266
(1) The Union shall develop a common policy on asylum, subsidiary protec-
tion and temporary protection with a view to offering appropriate status to
any third-country national requiring international protection and ensuring
Annex VII
compliance with the principle of non-refoulement. This policy must be in

accordance with the Geneva Convention of 28 July 1951 and the Protocol
of 31 January 1967 relating to the status of refugees, and other relevant
treaties.
lay down measures for a common European asylum system comprising:
(a) a uniform status of asylum for nationals of third countries, valid
throughout the Union;
(b) a uniform status of subsidiary protection for nationals of third coun-
tries, who, without obtaining European asylum, are in need of interna-
tional protection;
(c) a common system of temporary protection for displaced persons in the
event of a massive inflow;
(d) common procedures for the granting or withdrawing of uniform
asylum or subsidiary protection status;
(e) criteria and mechanisms for determining which Member State is
responsible for considering an application for asylum or subsidiary
protection;
(f) standards concerning the conditions for the reception of applicants for
asylum or subsidiary protection;
(g) partnership and cooperation with third countries for the purpose of
managing inflows of people applying for asylum or subsidiary or tem-
porary protection.
(3) In the event of one or more Member States being confronted with an
emergency situation characterised by a sudden inflow of nationals of third
countries, the Council, on a proposal from the Commission, may adopt
European regulations or decisions comprising provisional measures for the
benefit of the Member State(s) concerned. It shall act after consulting the
European Parliament.
Article III-267
(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 preven-
tion of, and enhanced measures to combat, illegal immigration and traffick-
ing in human beings.
establish measures in the following areas:
1024
Immigration and Asylum Provisions, EU Constitutional Treaty
(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 illegal residence, including removal and repa-
triation 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 readmis-
sion to their countries of origin or provenance of third-country nationals
who do not or who no longer fulfill the conditions for entry, presence or
residence in the territory of one of the Member States.
(4) European laws or framework laws may establish measures to provide incen-
tives 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.
Article III-268
The policies of the Union set out in this Section and their implementation shall
be governed by the principle of solidarity and fair sharing of responsibility,
including its financial implications, between the Member States. Whenever nec-
essary, the acts of the Union adopted pursuant to this Section shall contain
appropriate measures to give effect to this principle.
1025
Immigration and Asylum Law and Policy in Europe
1. E. Guild and P. Minderhoud (eds.): Security of Residence and Expulsion.

2000
ISBN 90-411-1458-0
2. E. Guild: Immigration Law in the European Community. 2001
ISBN 90-411-1593-5
3. B. Melis: Negotiating Europe’s Immigration Frontiers. 2001
ISBN 90-411-1614-1
4. R. Byrne, G. Noll and J. Vedsted-Hansen (eds.): New Asylum Countries?
Migration Control and Refugee Protection in an Enlarged European
Union. 2002
ISBN 90-411-1753-9
5. K. Groenendijk, E. Guild and P. Minderhoud (eds.): In Search of Europe’s
Borders. 2003
ISBN 90-411-1977-9
6. J. Niessen and I. Chopin (eds.): The Development of Legal Instruments to
Combat Racism in a Diverse Europe. 2004
ISBN 90-04-13686-X
7. B. Bogusz, R. Cholewinski, A. Cygan and E. Szyszczak (eds.): Irregular
Migration and Human Rights: Theoretical, European and International Per-
spectives. 2004
ISBN 90-04-14011-5
8. H. Battjes: European Asylum Law and International Law. 2006
ISBN 90-04-15087-7
9. Elspeth Guild and Paul Minderhoud (eds.): Immigration and Criminal Law
in the European Union: The Legal Measures and Social Consequences of
Criminal Law in Member States on Trafficking and Smuggling in Human
Beings. 2006
ISBN 90-14-15064-1
10. Georgia Papagianni: Institutional and Policy Dynamics of EU Migration
Law. 2006
ISBN 90-04-15279-2
11. Elspeth Guild and Anneliese Baldaccini (eds.): Terrorism and the
Foreigner: A Decade of Tension around the Rule of Law in Europe. 2006
ISBN 90-04-015187-7
12. Steve Peers and Nicola Rogers (eds.): EU Immigration and Asylum Law:
Text and Commentary. 2006
ISBN 90-04-15374-8
Martinus Nijhoff Publishers – Leiden • Boston

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EU Immigration and Asylum Law

IMMIGRATION AND ASYLUM LAW AND POLICY IN EUROPE

Steve Peers and Nicola Rogers

Martinus Nijhoff Publishers

Printed on acid-free paper.

Printed and bound in The Netherlands.

Preface Nicola Rogers and Steve Peers xvii

Section I Framework of EC Immigration and Asylum Law 1

Section II Visas and Border Controls 167

Section III Asylum 219

Section IV Legal Migration and Integration 571

Section V Irregular Migration 785

Preface Nicola Rogers and Steve Peers xvii

Section I Framework of EC Immigration and Asylum Law 1

Chapter 3 The EU Institutions and Title IV 47

Chapter 5 Human Rights in the EU Legal Order: Practical

Section II Visas and Border Controls 167

1.1 Regulation 539/2001 185

Section III Asylum 219

Chapter 13 Refugee Deﬁnition and Subsidiary Protection 323

5 Increased Emphasis on Fundamental Principles and

7.1 Access 562

Section IV Legal Migration and Integration 571

2 Background and Legislative History 670

Section V Irregular Migration 785

Chapter 26 Carrier Sanctions 799

3.1 Criminalisation of Irregular Migration 907

Nicola Rogers and Steve Peers

1 See discussion of later developments in Ch. 10.

5 See the Decisions in OJ 1999 L 176.

the framework of the “Hague Programme” conclusions of the European Coun-

to setting only “minimum standards”. Nevertheless, back in Tampere, EU lead-

Council formally adopted a Regulation establishing “Eurodac”, a system allow-

4.3 Legal Migration

4.4 Irregular Migration

4 EJML (2002) 85 at 112-113; Peers, “Key Legislative Developments on Migration

carrier sanctions, and criminalisation of facilitation of irregular entry and resi-

4.5 Administrative Cooperation

54 On implementation of the plans, see the Commission’s Communications (COM

4.6 External Relations

sion has subsequently released a communication on migration and development

5 The Nature of Community Law

Subject to the conditions and modalities applicable in each Member State:

78 Case C-151/02 [2003] ECR I-8389.

In the circumstances, particularly given the status of annual leave as a basic

Legislation of a Member State, such as that at issue in the main proceedings,

Contesting the interpretation of Directive 93/104 given in paragraphs 52 and

83 Paras. 48, 51, and 53 – 56 of the judgment.

Moreover, even if other national rules contained a condition comparable to that

So it appears that references to national law in Directives and in international

the EU institutions in Title IV is clear from a detailed analysis of Member States’

2 Treaty on European Union (Maastricht Treaty)

role in adoption the Community measures remained to be determined. It would

4 Art. J of the text.

prospect of adopting EC law measures on the relevant subjects. However, the

tion Group” of Member States’ representatives, who spent considerable time

15 SN 509/1/95, 1 Sep. 1995, p. 24.

23 CONF/2500/96, 5 Dec. 1996.

up the suggestion that more communautaire procedures apply immediately to

28 SN 600/97, 30 May 1997.

4 The Treaty of Nice

34 COM (2000) 34, 26 Jan. 2000.

42 Doc. CONFER/4740/00, 10 May 2000.