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STATES, INSTITUTIONS, MOBILITY THE EU AND THE THIRD COUNTRY NATIONALS Presentation by Boldizsr Nagy at the CEU summer school course: The National and the Transnational 5 July 2018 THE SCHEME OF THE TALK Setting the scene: statistics An Area of Freedom, Security and Justice - conceptual frame Schengen Migration and the EU acquis an overview Visas, borders, Schengen rules within the EU Intra-EU mogration (mobility), citizenship Third country nationals in the EU - regular migration

- no right to enter/stay (illegal migration) - asylum seekers, refugees Solidarity within the EU Solidarity (or not) with third states Presentation by Boldizsr Nagy HOW MANY? BASIC STATISTICS BASIC STATISTICS EU, total population on 1 January 2017: 511 million of which the UK: 65 million Foreignborn

Foreign citizen Presentation by Boldizsr Nagy In/of another EU member state In /of a third country Total 20,4 36,9 57,3 16,9

21,6 38,5 NON-EU AND EU CITIZENS IN EU 28 Presentation by Boldizsr Nagy Source: Eurostat: Population on 1 January by age, sex and broad group of citizenship (migr_pop2ctz) (20180702) FOREIGN BORN POPULATION IN THE EU 28 B = break in time series P = provisional

Source: Eurostat:Population on 1 January by age, sex and broad group of country of birth [migr_pop4ctb] Last update: 28-062018 (20180702) Presentation by Boldizsr Nagy FOREIGN BORN POPULATION IN THE EU Presentation by Boldizsr Nagy 2014 2013 2012 2011 2010 2009 2008

LONGER THAN 3 MONTHS FIRST RESIDENCE PERMITS ISSUED TO THIRD COUNTRY NATIONALS Presentation by Boldizsr Nagy Source: Eurostat, http://ec.europa.eu/eurostat/web/asylum-and-managed-migrati on/data/main-tables FROM JUSTICE AND HOME AFFAIRS TO AN AREA OF FREEDOM, SECURITY AND JUSTICE

THE AREA OF FREEDOM, SECURITY AND JUSTICE THE METAMORPHOSIS OF CONCEPTS 1958 - 1993 = Up to Maastricht: intergovernmental cooperation Schengen Agreement (1985) and Convention implementing the Sch. A. (1990) The Dublin Convention on determining the state responsible for the asylum procedure (1990) 1993 1999 = Between Maastricht (1 November 1993) and Amsterdam (1 May 1999) = Justice and home affairs = III pillar = 9 matters of common interest as in Article K (Title IV) of the TEU (Maastricht treaty) 1999 - 2009 = From entry into force of the A.T. till entry into force of the Lisbon Treaty (1 December 2009) = Justice and home affairs = Area of freedom, security and justice = I pillar = Title IV. of TEC (Visas, asylum, immigration and other policies

related to free movement of persons + civil law cooperation) + III pillar =Title VI. of TEU (Provisions on police and judicial cooperation in criminal matters) 2009 December 1 - = Area of freedom, security and justice reunited in Title V of the Treaty on the Functioning of the European Union = Border checks, asylum, immigration; civil law cooperation; criminal law cooperation; police cooperation = no pillar structure but CFSP is outside of the normal EU regime THE AREA OF FREEDOM, SECURITY AND JUSTICE Freedom = freedom of movement + immigration and asylum+ non-discrimination+ data protection Security = fight against organized crime (including terrorism) and drugs + police cooperation (Europol, Eurojust, Frontex) Justice (Recht) = cooperation among civil and criminal courts, approximation of procedures, mutual recognition of

decisions, simplification of transborder actions (litigation in another member state) THE RATIONALE BEHIND DEVELOPING AN EU ACQUIS: SCHENGEN SCHENGEN I. The creation of the Agreement (1985) and the Convention, implementing it (1990) C O N V E N T I O N IMPLEMENTING THE SCHENGEN AGREEMENT OF 14 JUNE 1985 BETWEEN THE GOVERNMENTS OF THE STATES OF THE BENELUX ECONOMIC UNION, THE FEDERAL REPUBLIC OF GERMANY AND THE FRENCH REPUBLIC, ON THE GRADUAL ABOLITION OF CHECKS AT THEIR COMMON BORDERS 19 JUNE 1990 (OJ (2000) L 239/19) II. The essence (see next slides) SCHENGEN Purpose: Abolition of controls at the internal borders

Implementation of appropriate flanking measures protecting the external borders with the same level of security including checks and surveillance intensive co-operation in customs, police and criminal justice matters establishing a system to determine which state is responsible for the examination of asylum applications m o r f e l p o e of p w o l f

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n d o n a and ( y r a g n u H the EU to SCHENGEN Territorial and personal scope Territorial - see map on next slide Personal: nationals of member states or aliens Internal borders shall mean the common land borders of

the Contracting Parties, their airports for internal flights and their sea ports for regular ferry connections exclusively from or to other ports within the territories of the Contracting Parties and not calling at any ports outside those territories; Schengen: area with no internal borders 1985: Signature of the Schengen agreement between FR, BE, NL, DE & LUX 1990 Schengen Implementing Convention 1995: abolition of the checks at the internal borders + one single external border among the 13 EU MS (except for UK IRL) 1997: incorporation of the Schengen cooperation into the EU legal framework 2001 Norway and Iceland 2007 Estonia, Hungary, Latvia,

Lithuania, Malta, Poland, Slovenia, Slovakia and the Czech Republic 2008: Switzerland 2011: Liechtenstein Prospective Members CY, BG, RO,HR Special status UK, IRL and DK protocols under the Treaty of Lisbon MIGRATION AN OVERVIEW OF THE SITES, LEVELS AND TYPES OF EU RESPONSES PHASES/SITES OF MIGRATION Transit state Border Methods and helpers of migration

Country of origin Elements of the acquis as tools of enforcing the EU strategy Destination country (EU MS) Border Immigration rules and emigration (their impact on the country of origins society); Methods

and helpers of migration DIMENSIONS OF THE ANALYSIS MAIN ELEMENTS OF THE MIGRATION ACQUIS Destination country Transit state Country of origin (EU MS) External border EU mobility and immigration policy Surveillance conditions of - workers, crossing; - service providers abolition of - EU citizens internal borders - researchers, students,

European trainees, volunteers Border and - blue card highly Coast Guard skilled Eurosur - family unification - intra corporate transferees - seasonal workers Human smuggling, Fight against trafficking Carrier sanctions Tackling the root causes of asylum seeking

Interception in international waters Safe country of origin Document protection (from falsification) Transit visa Visa; Alerts (Schengen) Safe third country Return agreements Integration Fight agains racism,

xenophobia and discrimination Asylum acquis Burden and responsibility sharing Cooperation in removal/return DIMENSIONS OF THE ANALYSIS OVERVIEW OF THE JUNCTURES) Type of migrant The position of the migrant from the EUs point of view Regular S. Peers category: Refugee

Preferred Reservations National of the EU MS or of the EEA MS or of Switzerland New MS, Europe Agreements, Associated states (Turkey) Market citizen Worker Resettlement

Quota refugees protected entry Irregular Asylum seeker ariving directly from the territory of persecution Pawn in the game ACP and Maghreb countries; nationals of states with return agrements; Eastern Europe

Visa rejected Alien Asylum seeker arriving through third countries Regularisation Migrant without the right to stay Unwanted Victims of trafficking Intercepted outside the EU;

Arriving from safe country of origin; Rejected claimant Those to be removed or already removed VISAS, BORDERS, BORDER GUARDS, SCHENGEN ENTRY, RESTORATION OF INTERNAL BORDER CONTROLS EXTERNAL BORDERS The virtualisation and delocalisation of the border - Visa policy - Liaison persons in third countries, capacity building, info sharing, direct assistance (Libya, e.g.!)

- Carrier sanctions - Interception on high seas - Border management - control at entry points, - surveillance between them - fences! - In-country controls for immigration purposes The dialectic of the restoration of internal border controls under the Schengen Border Core internal becomes external Presentation by Boldizsr Nagy VISA POLICY COUNCIL REGULATION (EC) No 539/2001 visa list (consolidated in 2017) Determining thrid country nationals who need a visa to cross the external border. Immoral - Visas are collective stigmas / prevents asylum seeekrs from arriving Ineffective No serious threat may be discovered with the help of a mere questionnaire. (Now, ohoto and fingerprint may be more helpful)

Obstacle hinders the economy and cheap travel by making voyage cumbersome and expensive But: one Schengen visa valid in 26 countries Border control could be used to screen out the unwanted. Presentation by Boldizsr Nagy BORDER MANAGEMENT - SCHENGEN BORDERS CODE Schengen Borders Code (Regulation (EU) 2016/399) In essence: Codifies Schengen: abolition of internal border controls (and rules on temporary reinstallation as amended in 2017 (Articles 25 35) Determines conditions for entry of persons Regulates checks at border crossings, surveillance between border crosing points

(In harmony with the Visa list regulation, the Visa code and SIS, Interpol, national data bases) Presentation by Boldizsr Nagy BORDER MAMNEGMENT - EBCG European Border and Coast Guard regulation (Earlier Frontex). Regulation 2016/1624/EU) Implements the Schengen Border Code EBCD = EBCD Agency (EU) + National authorities Risk analysis -Joint operations - Rapid response - Research Training- Joint returns - Information-sharing Specific intervention (Arts 13, 19): management board prescribes compulsory measures if MS does not act: Council decides measures, including deploying border guard teams. MS must cooperate if not restoration of boder control restored against it at the internal border according to the Schengen Border Code Presentation by Boldizsr Nagy The cost of non-Schengen Taking care of

direct economic 1 million cost of non-Schengen i.e. the situation where persons with the border controls have been reintroduced for a 500 euros / longer period of time delays at the borders would have a substantial head / month impact on cross-border transport (notably through road), tourism, entails 6 public administrations and cross-border workers and travellers. For billion Euros those categories, the direct costs are estimated to cost, which is range between 5 and 18 billion per year (or all spent in 0.06%-0.13% of GDP), depending on the time spent due to the national delays. The medium-term indirect costs of non-Schengen may economy be considerably higher than those direct estimates, as the

According to the Commission analysis of impacts on intra-community trade, investment and mobility would be unprecedented if rolling-back Schengen puts at risk the Source: COM (2017) 571 Final Proposal for a REGULATION OF THE PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) economic integration. EUROPEAN 2016/399 as regards the rules applicable to the temporary reintroduction of border Presentation by Boldizsr Nagy control at internal borders, p. 5, fn 5 NATIONAL? Are there tasks, which by definition must be performed by the state concerning borders? Is statehood and sovereignty separable? Is statehood/sovereignty undermined if the rules on entry rights, border checks and surviellance are adopted at EU level? Where is the final control in the scheme created by the Visa regime and the border regime adopted by the EU?

Presentation by Boldizsr Nagy FREEDOMS WITHIN THE EU THE PREFERRED GROUP MIGRATION WITHIN THE EU (MOBILITY) In the beginning: workers and service providers Citizenship: introduced in the Maastricht treaty, amending the Rome Treaty (TFEU) Not an unlimited right! (Directive 2004/38/EC) Only: workers, self employed, persons with sufficient means, students Union citizenship is for all Europeans who are not poor or sick Chalmers- Davies Monti, 2104, 478 After 5 years: permanent residence Presentation by Boldizsr Nagy THIRD COUNTRY NATIONALS, REGULAR (IM)MIGRATION THIRD COUNTRY NATIONALS REGULAR MIGRATION INTO THE

EU Article 79 TFEU 1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings. - Rules on entry and residence conditions, on visas and residence permits - Defining the rights of legally residing t.c.n. including the right to move to another MS - Measures on illegal immigration and unauthorised residence, including removal and repatriation - Combating human trafficking Incentives for integration may be adopted, but no harmonisation of rules Only the MS have right to determine volumes of workers and selfemployed to be admitted TEH PENDULUM: WANTED UNWANTED MANAGED

Until late 1960s workers welcome 1970-s (crises) late 1990s exlcuded Priority for own and EU citizens. Work permit for t.c.n: the exception Since early 2000 selective welcome managed migration global competition for skills Presentation by Boldizsr Nagy AVENUES OF REGULAR MIGRATION INTO THE EU Value based Utilitarian humanitarian Family unification

mercantilist Research, studies, training, voluntary service, pupil exchange le u r U E l f ra o e n n nd ge gratio

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o l e n t p e m p e m self nal co tio Nagy Presentation by aBoldizsr Highly skilled and competitive (Blue card)

Seasonal workers Intra company transferees FAMILY COUNCIL DIRECTIVE 2003/86/EC of 22 September 2003 on the right to family reunification Regular migrants family (entitled to unification): spouse the minor, unmarried (common) child of the sponsor (migrant) and of his/her spouse, including children adopted minor, unmarried child of either of them, if they have custody and the child is dependent on them ept c n Optional (states may allow) e co

h t is t n e parents, if dependent on the migrant ext rally simple t a h ltu it To w mily cu Or is adult unmaries child, if unable f fa ined? olitical o to provide for herself/himself rm tp dete ctionis ?

e Partners if in lon-term stable and/or redu enienc v con registered partnership Researchers: same definition, less conditions Refugees: optionally broader, and less conditions for the first 3 months Presentation by Boldizsr Nagy SUMMARISING THE BASIC RIGHTS Source: Georgia Mavrodi COMMON EU POLICIES ON AUTHORISED IMMIGRATION PAST, PRESENT AND FUTURE LSE IDEAS Strategic Update 15.2 http://cadmus.eui.eu/bitstream/handle/18 14/36115/Common-EU-Policies-on-Autho rised-Immigration%20%281%29.pdf?seq uence=2

Presentation by Boldizsr Nagy THIRD COUNTRY NATIONALS, WITHOUT THE RIGHT TO STAY ILLEGAL MIGRATION THE OVERALL APPROACH TO ENTRY AND STAY WITHOUT PERMIT Political discourse EU law in force The engine behind entry/stay without permission is either the unbearable situation in the country of origin (economy, climate, persecution) or the willingess of the employer to exploit the irregular worker, or both EU law: dual face Visa, border regime, detention before removal: following political preferences Employers sanctions, preferring voluntary departure, protectiong

victims of trafficking - the migrant is victim applying the legally protected values of a democratic society respecting the dignity of all Presentation by Boldizsr Nagy THE RETURN DIRECTIVE DIRECTIVE 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals Personal scope

Obligatory: third-country nationals staying illegally on the territory of a Member State Optional: - those refused at the border or intercepted on land, sea or air - subject to return as a criminal law sanction Limits: MS must respect rights of persons entitled to free movement under community law and the principle of non-refoulement + due account of best interest of the child, family life, state of health of the person Member States may retain more favourable provisions RETURN DIRECTIVE, 2008 Member states must issue the return decision to any illegal stayer (exceptions exist, like right to reside in other MS or humanitarian reasons)

Preferred return: voluntary return within 7-30 days Exceptions: risk of absconding, manifestly unfounded or fraudulent application for stay permit or if the person concerned poses a risk to public policy, public security or national security, States must take all necessary measures to enforce the return decision if the third country national does not depart voluntarily or if the exception to voluntary departure is applicable

Compulsory entry ban (max five years) if no voluntary return within time Proportionate coercive measure against resisting persons Detention: max 18 months (if danger of absconding or hampering preparation of return or process of removal ) Strong critique (ECRE, UNHCR, NGO-s) EMPLOYERS SANCTION Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals illegally staying third-country national = who does not fulfil, or no longer fulfils, the conditions for stay or residence in that Member State Obligations of the employer: - see the valid residence permit of the tcn;

- keep a copy or record of it - notify the competent authority of start of employment If done, can not be sanctioned Effective, proportionate and dissuasive sanctions must be imposed on the employer: Financial sanctions which shall increase in amount according to the number of illegally employed Payments of the costs of return of illegally employed third-country nationals Paying the difference between the remuneration of the illegally employed and the legally employed to the illegally employed An amount equal to any taxes and social security contributions that the employer would have paid EMPLOYERS SANCTIONS Further sanctions Exclusion from public aid or subsidy For a maximum Exclusion from participation in

of 5 years a public contract Recovery of recent (max 12 months) public benefits, aid, or subsidies Temporary or permanent closure of the establishments that have been used to commit the infringement Temporary or permanent withdrawal of a licence to conduct the business activity in question Criminal sanctions in severe cases The infringement continues or is persistently repeated; Simultaneous employment of a significant number of illegally staying third-country nationals; The infringement is accompanied by particularly exploitative working conditions; The employed person is victim of trafficking The employed is a minor Transposition date: 20 July 2011. VICTIMS OF TRAFFICIKING Smuggling Trafficking DIRECTIVE 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims The definition of trafficking:

The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation Trafficked persons are victims, entitled to different source of protection (impunity, special care, victims protection) According to Council Directive 2004/81/EC residence permit and assistance to those who cooperate with the authorities Presentation by Boldizsr Nagy INTERNATIONAL PROTECTION (AYLUM SEEEKERS, REFUGEES, BENEFICIARIES OF SUBSIDIARY PROTECTION, ASYLUM, SOLIDARITY WITHIN THE EU, COOPERATION WITH THIRD STATES) Global figures, end of 2017, UNHCR data 52% of the refugees are minors

4,4 million internationally displaced in 2017 667,400 refugees returned home in 2017 102,800 refugees were admitted to resettlement Presentation by Boldizsar Nagy Source: UNHCR: Global Trends. Forced displacement in 2017. Geneva, 2018, various pages http://www.unhcr.org/5b27be547.pdf (20180703) Syria! May, 2018 5,645,91 4 Registered Syrian refugees (abroad) As of 10 May 2018 Egypt: 128,507

Iraq: 248,382 Presentation by Boldizsar Nagy Jordan: Lebanon: Turkey: 661,859 986,942 3,586,679 Source: http://data.unhcr.org/syrianrefugees/country.php?id=224 (20180514) authors assemblage Individual applications in the EU+ Presentation by Boldizsar Nagy Source: EASO, Latest Asylum Trends, 2017, August, p. 1. and 2018 March https://www.easo.europa.eu/latest-asylum-trends (20180514)

Countries of origin 2016-2017 in the EU Presentation by Boldizsar Nagy Source: Eurostat Asylum Quarterly Reports , 19 March 2018 /index.php/Asylum_quarterly_report (20180514) DEFINITIONS Presentation by Boldizsar Nagy European Union: subregional law Convention refugee Political refugee Beneficiary of subsidiary protection Victims of civil war or threatened with inhuman or degrading treatment or punishment or death penalty Beneficiary of temporary protection Mass influx from conflict, endemic violence or systemic violations of

human rights Presentation by Boldizsar Nagy Definitions Geneva Convention relating to the status of refugees 1951 Article 1. Definition of the term refugee A. For the purposes of the present Convention, the term refugee shall apply to any person who: (1) Has been considered a refugee ...[according to the interwar arrangements and the IRO constitution] (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 fear, is unwilling to return to it. Definitions Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 Article 1 Definition of the term "Refugee" 1. [ Geneva definition] 2. The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously 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. Definition Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama Adopted by the Colloquium on the International Protection of Refugees in Central America,

Mexico and Panama, held at Cartagena, Colombia from 19-22 November 1984. The Colloquium adopted the following conclusions: ..... 3. To reiterate that, in view of the experience gained from the massive flows of refugees in the Central American area, it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the OAU Convention (article 1, paragraph 2) and the doctrine employed in the reports of the Inter-American Commission on Human Rights. Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. Definition EU Temporary Protection Directive (Council Directive 2001/55/EC OJ L 212/14) Article 2

For the purposes of this Directive: (a) temporary protection means a procedure of exceptional character to provide, 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) ... (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 situation 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 Definitions EU 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 L 304/12 2004 09 30,) EU Qualification Directive 2004/2011 Art 2 2004:(e) 2011: (f) DIRECTIVE 2011/95/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of

international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted person eligible for subsidiary protection [means someone], 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 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, .....is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country; Art 15 (in both) 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 indiscriminate violence in situations of international or internal armed conflict Asylum acquis

Adopted and proposed measures 1. Regulation on Eurodac (2000) recast: 2013. Pproposal for regulation 2016 (recast 2) 2. Directive on temporary protection (2001) 3. Reception conditions directive (2003) recast: 2013 Pproposal for directive (recast 2): 2016 4. Dublin Regulation and its implementing rules (2003 DublinII) recast: 2013 (Dublin III.) Proposal for regulation (recast 2): 2016 5. Qualification (Refugee definition) directive (2004) recast: 2011. Proposal for regulation: 2016 6. Asylum procedures directive (2005) recast: 2013. Proposal for regulation: 2016 7. Establishment of an European Asylum Support Office (2010) Proposal for regulation on European Asylum Agency: 2016 8. Decision on the new Asylum Migration and Integration Fund 2014 9. Solidarity measures, 2015-2018: resettlement and relocation (See also 2016 Dublin proposal) Presentation by Boldizsar Nagy The asylum process model as in 2018 to Dublin III regulation Presentation by Boldizsar Nagy

Source: (European Parliament:) What system of burden-sharing between Member States for the reception of asylum seekers? A study written by Dr Christina Boswell, Dr Eiko Thielemann and Richard Williams, PE 419.620,, p-34 THREE LEVELS OF REGULATION International law (1951 Geneva Convention, 1950 European Convention on Human Rights, etc. ) European Union Law (in EU member states) National law implementing both _______________________________________ Control (enforcement): UNHCR European Court of Human Rights (Strasbourg) Court of Justice of the European Union (Luxembourg) Domestic courts KEY QUESTIONS 1. 2.

3. 4. 5. 6. 7. 8. 9. Who should decide if the person is a refugee? = which is the responsible state for the asylum procedure = Dublin Can the asylum seeker be returned to a non EU member state (instead of applying Dublin) = safe third country What to do if the refugee found protection in a non-EU country (e.g. Turkey, Lebanon, Jordan), but after some time moves on = first country of asylum, secondary movement Does the refugee have a choice as to the country of asylum? (see also answers to 2 and 3) Can states close their borders, claiming too many came, the country is full = nonrefoulement Why is the temporary protection directive not applied? Are there persons, who can be excluded (terrorists)? = exclusion grounds and

procedure What solidarity is conceivable among EU member states? = relocation, hotspots, AMIF What solidarity with those state who host or are transit countries for most refugees? (Statement with Turkey, Resettlement, EU Trust Fund for Syria, Emergency Trust Fund for Africa) Presentation by Boldizsr Nagy 1. WHO SHOULD DECIDE WHETHER THE PERSON IS A REFUGEE? WHICH IS THE RESPONSIBLE STATE FOR THE ASYLUM PROCEDURE? = THE DUBLIN SYSTEM PURPOSE AND PHILOSOPHY OF DUBLIN Every asylum seeker should gain access to the procedure. There must be a MS to determine the case Only one procedure should be conducted within the Union. A decision by any MS be taken as if in

the name of others = no parallel or subsequent application should take place THE PHILOSOPHY OF DUBLIN: UNDER WHAT CONDITIONS IS TAKING CHARGE BY ANOTHER STATE WITHOUT INVESTIGATION OF THE MERITS IN THE FIRST STATE FAIR Fairness preconditions If the substantive law (the refugee definition) is identical If procedural rules guarantee equal level of protection at least in terms of - legal remedies (appeals) - access to legal representation - reception conditions (support) during the procedure (detention, e.g.!) REGULATION 604/2013/EU (DUBLIN III) CRITERIA 8 15. (SIMPLIFIED) Coupling principles = criteria identifying the responsible state (simplified list)

1. Family (narrowly defined) 2. Visa or residence permit 3. External border crossed in irregular fashion 4. Place of submission BURDEN SHIFTING NOT BURDEN SHARING ! Presentation by Boldizsr Nagy DUBLIN Taking charge: no application in the responsible state Taking back: departure after application Eurodac not decisive, but shorter deadlines (2 instead of 3 months to request take charge or back) No response = acceptance of responsibility Presentation by Boldizsr Nagy

THE LESSON TAUGHT BY GREECES NON-PERFORMANCE ARTICLE 3 (2) Where it is impossible to transfer an applicant to the responsible Member State because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in that Member State resulting in risk of inhuman or degrading treatment the determining Member State may search for another responsible state or must proceed itself. ______________________________________________________________________________ Particular pressure on a member state or systemic failure: Commission to call for a preventive action plan Serious risk of crisis compulsory crisis management action plan upon invitation of the Commission Last resort: instead of Dublin resort to Art 78 (3 )of TFEU: In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament. Two decisions on relocation of September 2015 moving from Italy and Greece 40 + 120 thousand persons

2. CAN THE ASLYUM SEEKER BE RETURNED TO A NON EU MEMBER STATE (INSTEAD OF APPLYING DUBLIN) = SAFE THIRD COUNTRY THE NOTION OF THE SAFE THIRD COUNTRY ( 38 PD) Life and liberty are not threatened on account of the 5 Geneva Convention grounds (race, religion, political views, nationality, belonging to a particular social group) and there is no risk of torture, inhuman or degrading treatment or punishment, or threat because of indiscriminate violence in armed conflict; and the principle of non-refoulement is respected; and the prohibition of removal in breach of the right to freedom from torture and cruel, inhuman or degrading treatment and punishment as laid down in international law is respected; and the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention. Presentation by Boldizsr Nagy THE NOTION OF THE SAFE THIRD COUNTRY

meaningful link between applicant and the safe third country. investigation if a particular country is safe for the particular asylum seeker a right of the asylum seeker to challenge the safety at least when torture and inhuman or degrading treatment or punishment is threatening the asylum seeker _________________________________________________ If inadmissible because there is a safe third country: - inform the asylum seeker accordingly, - provide the asylum seeker with document informing the safe third country that the application has not been examined in substance Presentation by Boldizsr Nagy 3. WHAT TO DO IF THE REFUGEE FOUND PROTECTION IN A NON-EU COUNTRY (E.G. TURKEY, LEBANON, JORDAN), BUT AFTER SOME TIME MOVES ON = FIRST COUNTRY OF ASYLUM, SECONDARY MOVEMENT

FIRST COUNTRY OF ASYLUM The application is inadmissible (no examination of the merits) if there is a first country of asylum ( 35 PD). Definition If the asylum seeker has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection, or he/she enjoys otherwise sufficient protection in that country, including benefiting from the principle of non-refoulement, provided that he/she will be re-admitted to that country. _________________________ Applicant has a right to challenge inadmissibility on the basis of country of first asylum. _________________________ Turkey, Lebanon, Jordan? Presentation by Boldizsr Nagy 4. DOES THE REFUGEE HAVE A CHOICE AS TO THE COUNTRY OF ASYLUM? (SEE ALSO ANSWERS TO QUESTIONS 2

AND 3) THE CHOICE OF THE REFUGEE Family, friends, acquaintances (own diaspora) Language Past time spent Labour market, right to establish a venture (self-employment) Reception conditions Integration assistance Vicinity / distance to country of persecution (fast return / distance from danger, less competition with other refugees) ___________________________________________________

The more the refugee chooses the less social assistance (s)he will need. Presentation by Boldizsr Nagy 5. CAN STATES CLOSE THEIR BORDERS, CLAIMING TOO MANY CAME, THE COUNTRY IS FULL = NON-REFOULEMENT NON - REFOULEMENT Narrow meaning: Geneva Convention Article 33 No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Exception (33 (2)): national security danger or final sentence for serious crime in country of asylum (amounting to danger to society) Broad meaning: Art 3 of the European Convention of Human Rights: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. - ground irrelevant

- applies to any person, not just to refugees - prohibition is absolute. But, what if extremely large number of refugees come (mass influx- Lebanon, Jordan, Turkey) - prevailing view: still applies Presentation by Boldizsr Nagy 6. WHY IS THE TEMPORARY PROTECTION DIRECTIVE NOT APPLIED? 2001/55 EC Directive on 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 2001 July 20, OJ L 212/12 TEMPORARY PROTECTION DIRECTIVE Beneficiaries = displaced persons who have had to leave their country or region of origin, or have been evacuated,

and are unable to return in safe and durable conditions 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; TEMPORARY PROTECTION DIRECTIVE Mass influx means arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area The Council decides by qualified majority the start and end of T.P. Duration 1 year + max two times 6 months = total max: 2 years Council may end it earlier, but must not exceed two years _______________________________________ Not applied until January 2016 Why?

The Member States ought to assist the obtaining of the necessary visas, including transit visas. Formalities ought to be reduced to a minimum. Visas should be free of charge or their cost reduced to a minimum ( 8 /3/ TPD) The Temporary Protection Directive includes a solidarity mechanism (even if voluntary) on the relocation of refugees Right to work, self-employment and to family unification are recognised 7. ARE THERE PERSONS, WHO CAN BE EXCLUDED (TERRORISTS)? = EXCLUSION GROUNDS AND PROCEDURE EXCLUSION OF TERRORISTS Terrorists are unlikely to come as refugees, as they have to be photographed, give 10 fingerprints and give detailed account about their life Before the 2015 November Paris attacks some returned to Europe with the mixed flow

Terrorists can be excluded from protection (and returned to their country of origin, unless Art. 3 of the ECHR would be violated) Exclusion grounds: crimes against peace, war crimes, crimes against humanity, serious non-political crimes, acts contrary to the principles and purposes of the UN. See QD Preamble, para 31 Acts contrary to the purposes and principles of the United Nations are embodied in the United Nations resolutions relating to measures combating terrorism, which declare that acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations Presentation by Boldizsr Nagy 8. WHAT SOLIDARITY IS CONCEIVABLE AMONG EU MEMBER STATES? = AMIF,EASO, RELOCATION, HOTSPOTS, the 2018 June European Council proposal Presentation by Boldizsar Nagy EASO, AMIF European Asylum Support Office since 2010

(Regulation (EU) No 439/2010) Training Country of origin information Capacity building and direct assistance to MS Assistance to the Commission controlling implementation To be transfored into a European Asylum Agency moving from coordianation and assistance to authority The Asylum and Migration and Integration Fund ( (Regulation (EU) No 516/2014) 2014-2020 (seven years) Total: 3 137 million Euros (in current prices) Member states may use 2 752 million Euros. Of that 360 million cover specific actions (e..g. joint processing centres, joint returns) + Union Resettlement Programme from third countries + transfer of beneficiaries of international protection from one Member State to another. Presentation by Boldizsar Nagy Responsibility and burden sharing - Concepts Responsibility sharing - distributing affected persons Burden sharing contributing to the material reception conditions, with finances, equipment, services

Sharing of Voluntarily Norms Resources People (Money) Compulsorily (Harmonising laws) Quota relocation, resettlement Presentation by Boldizsar Nagy

Possible criteria of responsibility sharing/solidarity Applied by Criterion Total GDP GDP/person Tax income Population (size) Territory Population density UNoployment Number of earlier applicants Physical proximity to country of origin (Neighbour, same region) Cultural proximity Presentation by Boldizsar Nagy

Commission COM (2015) 451 final Emergency relocation (120 000) COM (COM(2016) 270 final Dublin, Corrective allocation mechanism EU Council Germany Relocation decision Knigsteini key Yes/Yes Yes No

No/No (Yes) No No/No No Yes Yes/Yes Yes Yes No/No

No No No/No No No Yes/No Yes No Yes/No Yes No

No/No No No No/No No No Possible criteria of responsibility sharing/solidarity Applied by Schmuck 1997 Hathaway & Neve, 1997

Schneider; Engler; Angevendt 2013 Yes (wealth) No (Yes external supporter) (five years average within EU average) (Yes) No (Yes external supporter) No Tax income

No No No Population (size) No No Yes Territory No No

Yes (Compared to EU total) Population density No No No UNoployment No No Yes Number of earlier applicants

No No No Physical proximity to country of origin Yes Yes No Cultural proximity No Yes

No Criterion Total GDP GDP/fperson Yes (neighbour, same region) Presentation by Boldizsar Nagy Actual relocation decisions Relocation: distributing among Member States those asylum seekers who are already within the EU and have a good chance of being recognised i.e. members of groups with 75% recognition rate in the previous quarter (Syrians, Iraqis and Eritreans) 2 decisions: COUNCIL DECISION (EU) 2015/1523 of 14 September 2015 40 000 persons 24,000 from Italy, 16,000 from

Greece COUNCIL DECISION (EU) 2015/1601 of 22 September 2015 120 000 persons First year: 15,600 from Italy and 50,400 from Greece Second year: 54,000 either form the same two or from other Member States. No relocation to Denmark, Ireland, UK, Greece and Italy 23 MS take up the 40 plus 120 thousand Difficult cases (not in clear need) remain in the competence of the frontline states Relocating MS get 6000 Euros/head Presentation by Boldizsar Nagy How many the key behind the compulsory relocation decision a) Population - 40% weighting b) Total GDP - 40% weighting c) Average number of asylum applications over the 5 preceding years per million inhabitants with a cap of 30% of the population and GDP - 10% weighting (reducing the

share) d) Unemployment rate with a cap of 30% of the population and GDP - 10% weighting (reducing the share) Presentation by Boldizsar Nagy Relocation outcome Member States' Support to Emergency Relocation Mechanism (As of 31 May 2018) From Greece: From Italy: Total: 21,999 12,690 34,689 Source:European Commission. ttps://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/ policies/european-agenda-migration/press-material/docs/state_of_play_-_relocation_en.pdf

(20180606) Presentation by Boldizsar Nagy Hotspots Hotspots = in Italy and Greece: complex sites where experts from different EU MS work together in receiving and screening the applications and organising the return of those not in need of international protection. 5 in Italy, 5 in Greece. Overcrowded (Greece, 15 thousand for 7 thousand capacity Closed, inhuman Presentation by Boldizsar Nagy European Council Conclusions 25 June 2018 To save lifes and break smuggling circles new approach based on shared or complementary actions among the Member States to the disembarkation of

those who are saved in Search And Rescue operations not extending to those coming on land, in air, or make it to the shore/territorial waters without being rescued In that context, the European Council calls on the Council and the Commission to swiftly explore the concept of regional disembarkation platforms, in close cooperation with relevant third countries as well as UNHCR and IOM. Such platforms should operate distinguishing individual situations, in full respect of international law and without creating a pull factor. To explore -?? Platform new legal concept. Both in the EU and in Libya and elsewhere . Distinguishing situations may only mean the separation of those who do not apply for refugee status or have been denied earlier. Are they closed installations (probably yes). On EU territory, those who are saved, according to international law, should be taken charge of, on the basis of a shared effort, Only those saved. Shared effort only within EU. Who shares, on what basis? through the transfer in controlled centres set up in Member States, only on a voluntary basis, Controlled centres closed or semi closed? Prison like? Which states will volunteer? Any standard to the centre, and the treatment within? (Certainly: Reception Conditions Directive)

Presentation by Boldizsar Nagy European Council Conclusions 25 June 2018 where rapid and secure processing would allow, with full EU support, to distinguish between irregular migrants, who will be returned, and those in need of international protection, Whole refugee status determination procedure in the centre. Court appeal? Years? for whom the principle of solidarity would apply. Principle of solidarity applied to refugees and nbeneficiaries of subsidiary protection. Quota? Felxible solidarity? Involving all the MSs? All the measures in the context of these controlled centres, including relocation and resettlement, will be on a voluntary basis, without prejudice to the Dublin reform. Resettlement bringing in from third countries. Relocation = voluntary. Who will offer, and how many places. Without prjudice to Dublin that is compulsory and may entail a complulsory corrective mechanism Presentation by Boldizsar Nagy

9. What solidarity with those state who host or are transit countries for most refugees? Or: externalisation?! (Statement with Turkey, Resettlement, EU Trust Fund for Syria, Emergency Trust Fund for Africa) Presentation by Boldizsar Nagy Traditional multilateral and Bilateral cooperation forms in migration management and control Cotonou Agreement (2000): 79 African, Caribbean and Pacific states and the EU. (Expiry: 2020) Khartoum process = EU-Horn of Africa Migration Route Initiative started in 2014, aimed at fighting irregular migration, human smuggling and trafficking Rabat process = EU Central and Western Africa + Tunisia and Algeria (observer) Established in 2006 broad dialogue on migration and development https://processus-de-rabat.org/en/ Afghanistan EU Afghanistan declaration Joint Way Forward soft law (non legally binding) document, Kabul, 2 October 2016 Libya

Italian Libyan Memorandum of understanding of 2 February 2017 15 Return Agreements between the EU and other states (and territories Eastern Partnership mobility agreements Presentation by Boldizsar Nagy RESETTLEMENT FROM THIRD STATES The ad hoc decision of 20 July 2015 of the Representatives of the Governments of the Member States meeting within the Council (EU Doc 11130 / 1 5) = Conclusions of the on resettling through multilateral and national schemes 20 000 persons in clear need of international protection EU Turkey Statement of 18 March 2016 1 : 1 Scheme for a Syrian taken back from greece another Syrian refugee from Turkey to be resettled to the EU

Union Resettlement Framework Commission Proposal of 13 July 2016 (COM (2016) 468 final Council in Annual Union resettlement Plan- sets Annual maximum total number Number of persons to be taken by each MS (based on their offers) Geographic priorities Commission - in Targeted Union resettlement schemes sets The actual number to be resettled by each state Details of regions, specificities of cooperation MS choose the actual persons, who have to consent to the resettlement

Commission Recommendation of 27.9.2017 on enhancing legal pathways for persons in need of international protection resettlement of 50 000 persons, mainly from Africa based on voluntary pledges Presentation by Boldizsar Nagy Actual resettlement and the plans Presentation by Boldizsar Nagy Source: RESETTLEMENT AND LEGAL MIGRATION THE COMMISSIONS CONTRIBUTION TO THE LEADERS AGENDA Financial assistance Emergency Trust Fund for stability and addressing the root causes of irregular migration and displaced persons in Africa. Goals: foster stability in the regions; contribute to better migration

management. by addressing the root causes of destabilisation, forced displacement and irregular migration, by promoting economic and equal opportunities, security and development. 2 556 million Euros pledged Source https://ec.europa.eu/trustfundforafrica/content/homepage_en (20180606) Presentation by Boldizsar Nagy EU Regional Trust Fund in Response to the Syrian Crisis Countries covered: Egypt, Iraq, Jordan, Lebanon, Turkey, but also some Western Balkan states Improving education, livelihoods and health 1.213 million have already been

allocated to concrete assistance programmes for refugees and host communities in the region. These programmes support basic education and child protection, training and With contributions and pledges from 22 EU Member States and Turkey, amounting to 150 million, and contributions from various EU instruments, [1,25 billion] the Fund has reached a total volume of almost 1,4 billion to date. higher education, better access to healthcare, improved water and waste-water infrastructure, as well as support to resilience, economic opportunities and social inclusion For detals check:

https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/cou ntries/syria/madad_en Presentation by Boldizsar Nagy The EU-Turkey statement the deal of 18 March 2016 [A]ny application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive, in cooperation with UNHCR All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey. This will take place in full accordance with EU and international law, thus excluding any kind of collective expulsion. [T]emporary and extraordinary measure Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey he t d

e d en p s u s at y h e t k f r o u T tion a t

n e implem March 2017 n point i Presentation by Boldizsar Nagy The EU-Turkey statement the deal of 18 March 2016 For every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU taking into account the UN Vulnerability Criteria Visa liberalisation among Schengen states for Turkey by the end of June 2016 Opening Chapter 33 in the accession negotiations 3 + 3 billion Euros for the Facility for Refugees in Turkey Presentation by Boldizsar Nagy

The new partnership Framework COM(2016) 385 final 7 june 2016 The short term objectives: save lives at sea; increase the rate of returns to countries of origin avoid embarking on dangerous journeys to reach Europe. Long term objectives Address the root causes of irregular migration and forced displacement Provide reinforced EU support to third countries for capacity building and by advancing their political, social and economic situation. Presentation by Boldizsar Nagy Council Conclusions 25 June 2018 Migratory pressure: a challenge not only for a single Member State, but for Europe as a whole Goal stem illegal migration on all existing and emerging routes Central Mediterranean (Libya): EU standing by Italy and other frontline states. Support for Libyan and Sahel actors, and for

humane reception conditions, voluntary humanitarian returns, cooperation with other countries of origin and transit, as well as voluntary resettlement (NGO) vessels must not obstruct operations of the Libyan Coastguard and must respect laws. Eastern Mediterranean Route reinforced cooperatioin with Turkey in exchange expectation for swift returns and prevention of new sea routes Presentation by Boldizsar Nagy Council Conclusions 25 June 2018 Western Balkans region: support to prevent illegal migration, increase the capacities for border protection and improve return and readmission procedures. Western Mediterranean: Financial support to Spain and Morocco to prevent illegal migration Turkey gets the second 3 billion Euros, the Trust Fund for Africa 500 million, and MS are called on to voluntary contribute. Africa is our neighbour: new level of cooperation. More development funding and private investment, increased exchanges and contacts amongst the

peoples of both continents on all levels of civil society. Efforts to be made to increase returns Presentation by Boldizsar Nagy THANKS! BOLDIZSR NAGY E-mail: [email protected] www.nagyboldizsar.hu CEU IRES Budapest, 1051 Ndor u. 9. Presentation by Boldizsr Nagy

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