The EU Dimension

1. The EU Dimension Migrant Workers and Human Rights Conference Cathryn Costello, BCL LLM BL Senior Research Fellow in EC & Public Law, Worcester College, Oxford

2. Overview • Citizenship of the European Union • EU and Family Reunification • Emerging EU Immigration ‘Policy’ • EU Denizenship – the Long Term Residents Directive • Ireland and the European Union

3. I. Citizenship of the Union • EU Member State nationality (accession / birth / naturalisation) • ‘Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality. However, it is not permissible for the legislation of a Member State to restrict the effects of the grant of nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.’ (Micheletti (1992)) • Treaty of Amsterdam – EU Citizenship • ‘complement’ ‘not replace national citizenship’ • Treaty of Nice – New Member States treated differently

4. I. Citizenship of the Union • Free movement for the economically active • Free movement for the ‘rich’ non-economically active • Equal treatment with nationals with some limits • Case C-184/99 Grzelzcyk – student grant • Case C-138/02 Collins – habitual residence requirement prohibited for work seeker allowance

5. I. Citizenship of the Union • Right not dependent on authorisation Case 48/75 Royer [1976] ECR 497 • Very Limited Derogations and Discretion • Family Unification as of Right

6. II. Family Reunification • ECHR on Family Reunification – Article 8 • EU Citizens’ Families • TCNs’ Families

7. II. Family Unification Article 8 ECHR • Everyone has the right to respect for his private and family life, his home and his correspondence. • There shall be no interference … except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

8. II. Family Unification Article 8 ECHR - The Scope of ‘Family Life’ • Practical Ties • Non-marital Families (Johnston v Ireland) • Transsexual Families (Goodwin v UK) • Gay Families? (Karner v Austria 14 + 8)

9. II. Family Unification Article 8 ECHR - Interference • Entry / Removal • Abdulaziz cf Ciliz • Nowhere else to go • Abdulaziz • Sorabjee • Gul • Ahmut • NEW APPROACH – Sen v Netherlands

10. II. Family Unification EC Law on Families: • TCN Family Members of EU Citizens • Family Reunification Directive

11. II. Family Unification 1. TCN Family Members of EU Citizens • Definition (for EU Migrant Workers’ Families) • Spouse (Netherlands v Reed) • Descendants under 21 / dependant • Ascendants dependent • New Citizenship Directive • Caselaw

12. II. Family Unification TRANSBORDER ELEMENT FOR EU CITIZENSHIP • Morson & Jhanjan • Surinder Singh (the Dublin Hop!) • Carpenter • Chen URGENT: How do families with IBC bring themselves within the scope of Community law?

13. II. Family Unification • EC Citizenship mobility + ECHR family protection is a potent mix • To avail of protection – crossborder element • What to do about families of IBC citizens in Ireland? • Move • Irish equality • EC equality (Netherlands v Reed, Kaba I and II)

14. II. Family Unification 2. Family Reunification Directive • 30 April 2006 • Non-married partners • Right to remain for families

15. II. Family Unification • Article 4 definition • Below age of majority set by MS • Exception: ‘Conditions of integration’ • Before 15 • Article 8 • Sponsor – 2 years before permitted • 22 December 2003 – EP Legal Challenge

16. II. Family Unification • Opinion of AG Kokott in Case C-540/03 European Parliament v Council: • Time Limit provisions violate fundamental rights; Others must be interpreted in light of fundamental rights; • No severance of offending provisions; hence inadmissible.

17. III. Emerging EU Immigration ‘Policy’ ENTRY CONTROL SYSTEM: • Visas – Prior Certification of Entry • Carriers’ Sanctions – Remote Control • Schengen Information System – Negative Mutual Recognition • Common operations and an Agency for guarding / managing borders

18. III. Emerging EU Immigration ‘Policy’ • The EU Borders Agency performs inter alia the following tasks: • coordinates and develops the operational cooperation between Member States in the field of control and surveillance of the external borders; - supports cooperation between experts in emergency situations; and- coordinates operational cooperation between Member States in the field of removal of third-country nationals illegally residing in the Member States.

19. III. Emerging EU Immigration ‘Policy’ • When is migration illegal? • ‘Illegal immigration represents one of the basic criteria for the determination of those third countries whose nationals are subject to visa requirements, besides other criteria such as public policy, security, EU’s external relations, regional coherence and reciprocity.’ • Commission Communication to the Council and Parliament on a common policy on illegal immigration COM (2001) 672 final, at p. 4.

20. III. Emerging EU Immigration ‘Policy’ • Listing and delisting –Case C-51/03 Georgescu 31 March 2004 • Residence Permit for Victims of Trafficking (Ireland and UK do not participate)

21. III. Emerging EU Immigration ‘Policy’ • No general rules on entry and residence Proposal for a Directive on the Conditions of Entry and Residence of Third Country Nationals for the Purpose of Paid Employment or Self-Employment withdrawn • Lots of ‘negative mutual recognition’ Dublin II, Mutual Recognition of Expulsion Decisions, Schengen Information System • LCD ‘Harmonisation’: Family Reunification • One example of positive mutual recognition Directive on Long Term Residents

22. III. Emerging EU Immigration ‘Policy’ • Lots of litigation • Infringement proceedings: Commission v France (MU Expulsion – French Initiative) • Annulment Proceedings: EP v Council (Family Reunification) UK v Council (Border Guard) • Few preliminary references: both to date inadmissible (only final courts may refer)

23. III. Emerging EU Immigration ‘Policy’ ENTRY AND RESIDENCE • Leaves entry decision largely to the Member State • Negative mutual recognition amplifies illegality • Operational cooperation RIGHTS OF MIGRANTS ON ENTRY • Long-Term Residents Only (or naturalize!) • Race Directive (immigration exception)

24. IV. EU Denizenship and the Long Term Residents Directive • Long term – 5 years • Some equal treatment • Right to move to other Member States (positive mutual recognition) • Ireland and the UK remain out

25. V. Ireland and the European Union • Selective Participation • Policy Frame • Institutional Context

26. V. Ireland and the European Union • Ireland, the UK and Denmark have opted-out of the Schengen Integration Protocol and Title IV EC. • To opt-in to Title IV EC measures, Ireland (or UK) may opt in within three months of its presentation to the Council, or take part after its adoption. • To opt-in to Schengen measures, this must be approved by the Council unanimously.

27. V. Ireland and the European Union • In the Declaration on Article 3 of the Protocol on the position of the United Kingdom and Ireland, Ireland undertook to exercise its right to opt-in to Title IV measures ‘to the maximum extent compatible with the maintenance of its Common Travel Area with the United Kingdom.’ • Protocol on the application of certain aspects of Article 7a of the EC Treaty to the UK and to Ireland (Common Travel Area) • The dividing line between Schengen-building measures and Title IV measures has taken on heightened salience in light of UK v Council (Border Guard). Ireland intends to intervene in support of the UK position.

28. V. Ireland and the European Union • Policy Frame • Community preference • Preferring EU migrant workers to TCNs is explicit Irish policy • Non-ratification of the UN Migrant Workers Convention ‘would have implications for our relations with our EU partners..’ (DJELR Discussion Document, p 64)

29. V. Ireland and the European Union • Institutional Context • Migration as an internal security issue • Intensive transnationalism • Operation cooperation

30. Conclusions 1. EU Citizenship is the most valuable status available to migrants. • Naturalization of migrant workers means they acquire this status • Concern: Permanent resident status should not come to be seen as an alternative to naturalization (from the State’s perspective)

31. Conclusion 2. The emerging EU immigration policy enhances Member State discretion around admissions. Ireland benefits from the buffer of the EU entry-control system, but does not participate in the two rights-based instruments, the Long-Term Residents Directive and the Trafficking Victims Directive.

32. Conclusions 3. European Human Rights Law ECHR provides valuable, but limited protection (Article 8 ECHR cf Article 8 + EU Citizenship; Article 6 ECHR inapplicable to immigration and asylum (Moouia / Mamatkulov cf. EC position)

33. Thanking You!