01 Handbook EU Law RASIM

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European Court of Human Rights (ECtHR)
Foreword
joint project
European Union Agency for Fundamental Rights
non-discrimination
Lisbon Treaty
"Registrar of the European Court of
Human Rights
"
Director of the European Union Agency for Fundamental Rights
The Council of Europe
The Charter of Fundamental Rights of the EU
European Convention on Human Rights
Schengen visa regime
unauthorised entry
Push backs at sea
Remedies
STATUS
Asylum seekers
Recognised refugees
subsidiary protection
trafficking
exploitative labour conditions
interim measures
irregular situation
Long-term residents
Third-country nationals
EEA
Stateless persons
documentation
SUBSTANTIVE ISSUES
non-refoulement
Internal relocation
Safety elsewhere
"protection
from removal
"
PROCEDURAL SAFEGUARDS
"ASYLUM
AND RETURN CASES
"
Asylum procedures
examination procedure
effective remedy
automatic suspensive effect
Accelerated asylum procedures
Dublin procedures
Family regularisation
Relationship breakdow
Criminal convictions
restriction on the freedom of movement
extradition
Prescribed by law
Necessity and proportionality
Arbitrariness
Good faith
Due diligence
Realistic prospect of removal
length of detention
individuals with specific needs
Procedural safeguards
Right to be given reasons
Right to review of detention
Detention conditions or regimes
unlawful detention
FORCED RETURNS
restraint measures
Investigations
Posted workers
Family Reunification Directive
association or cooperation agreements
PERSONS WITH SPECIFIC NEEDS
Unaccompanied minors
Age assessment
FURTHER READING
CASE LAW OF THE EUROPEAN COURTS
EU INSTRUMENTS
SELECTED COUNCIL OF EUROPE INSTRUMENTS
SELECTED UN CONVENTIONS
United Nations Convention Against Torture (CAT)
Court of Justice of the European Union (prior to December 2009, European Court
of Justice) (CJEU)
United Nations Convention on the Rights of the Child (CRC)
United Nations Convention on the Rights of Persons with Disabilities (CRPD)
"European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT)
"
European Asylum Support Office (EASO)
European Court of Justice (since December 2009, Court of Justice of the European
Union) (ECJ)
European Committee of Social Rights (ECSR)
European Economic Area(EEA)
European Economic Area
European Economic Community (EEC)
European Free Trade Association (EFTA)
European Social Charter(ESC)
European Union Agency for Fundamental Rights(FRA)
European Agency for the Management of Operational Cooperation at the External Bo
rders of the Member States of the European Union(FRONTEX)
International Covenant on Civil and Political Rights(ICCPR )
International Covenant on Economic, Social and Cultural Rights(ICESCR)
Parliamentary Assembly of the Council of Europe(PACE)
Rapid Border Intervention Teams(RABIT)
Search and Rescue(SAR)
Schengen Information System(SIS)
Safety of Life at Sea(SOLAS)
Treaty on European Union(TEU)
Treaty on the Functioning of the European Union(TFEU)
United Nations High Commissioner for Refugees(UNHCR)
United Nations Interim Administration Mission in Kosovo(UNMIK)
United Nations Relief and Works Agency for Palestine Refugees in the Near East(U
NRWA)
border management
need for special protection
comprehensive rights
legal practitioners
immigration law
non-governmental organisations (NGOs)
bodies
instruments of the Council of Europe
legal provisions
Practitioners
judgments and decisions
are party to
ratify or accede to Protocols
State Party
Annex
applicability
sign up to articles
acceptance of provisions
international human rights law
refugee law
Status of Refugees
international instruments
access to the territory and to procedures
EU free movement provisions
Intra-corporate transferees
Beneficiaries of subsidiary protection
Beneficiaries of temporary protection
legal orders
rule of law
lawful resident
inter-state cases
within jurisdiction
domestic law
remedy for complaints
The principle of subsidiarity
give effect to
rule on (a matter)
reporting procedure
collective complaints procedure
lodge complaints
Treaty on the Functioning of the European Union (TFEU)
primary EU law
secondary EU law
the European Communities
social security entitlements
social assistance rights
intergovernmental organisation
economic integration
Agreement on the European Economic Area
European Economic Community (EEC)-Turkey Association Agreement (the Ankara Agre
ement)
additional protocol
standstill clause
The Treaty of Maastricht
the Schengen Agreement
abolition of internal border controls
Schengen Borders Code
the Treaty of Rome
treaty amendments
the Treaty of Amsterdam
the Treaty of Lisbon
the EU asylum acquis
body of agreements
intergovernmental
EU act
failure to act
infringements of law
sincere cooperation
provide redress
preliminary reference procedure
custody
Statute of the Court of Justice
Rules of Procedure
fair trial principles
The principle of judicial review
Complaints against acts or omissions
subsidiarity
preliminary ruling
Visa List Regulation
Carriers Sanctions Directive
Facilitation Directive
Return Directive
Transit zone
removal, expulsion or extradition
at risk of persecution
refoulement or unlawful discrimination
Visa List Regulation
short-term visa applicants
external border crossing points
residence permit
irregular residence
Carriers Sanctions Directive
undocumented migrants
Facilitation Directive
unauthorised entry, transit and residence
effective, proportionate and dissuasive
entry ban
banned third-country national
the French Council of State (Conseil d Etat)
quash the decision
SIS alert
PACE Committee on Legal Affairs and Human Rights
Federal Taliban Ordinance
Common European Asylum System
the 1951 Geneva Convention
the Dublin Regulation
territorial waters
transit zones
the Asylum Procedures Directive
lodge an application
refugees in orbit
degrading treatment
Push backs
Border surveillance operations
Activities on the high seas
the UN Convention on the Law of the Sea
place of safety
disembark persons rescued or intercepted at sea
the comitology procedure
external maritime border surveillance
Guidelines for search and rescue situations and or disembarkation in the context
of sea border operations coordinated by the Agency
procedural safeguards
effective judicial protection
Reception Conditions Directive
Qualification Directive
Residence Permits for Victims of Anti-Trafficking Directive
Employer Sanctions Directive
Convention on Action against Trafficking in Human Beings
unlawful deprivation of residence permits
Long-Term Residents Directive
loss of citizenship of the Union
Convention on Establishment
Stateless persons
lack of status
accord the status
lawfully detained
Recognised refugees
in need of subsidiary protection
temporary residence permit
foreign jurisdiction
clandestine entry
absconding from a mandatory address
left in limbo
fall within the ambit of the directive
return decision
erasure
statelessness
loss of their residence rights
judgments by the CJEU
the Association Council
indiscriminate violence
"return to a state
of destitution
"
Joined Cases
Internal relocation
the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatmen
t or Punishment (UNCAT)
acts of physical or mental violence
recast version
sentenced to death in absentia
member of a group subject to systematic ill-treatment
a targeted group
personal risk factors
foreseeable and real risk of ill-treatment
non-exhaustive criteria
political dissidents
Assessment of risk
individualised assessment
Sufficiency of state protection
cessation of refugee status
diplomatic assurances
Internal relocation
safe third country
allocation of responsibility
rebuttable presumption
preliminary ruling
sovereignty clause
discretionary power
systemic deficiencies
cessation clauses
actor of protection
Collective expulsion
well-established international law
assess proportionality
confer the right
Handbook
HANDBOOK
law
borders
relating
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on immigration
European
to asylum,
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Handbook
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2014
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3In
Foreword
March 2011, as a result of their first joint project, the European Union Agen
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Contents .......................................................................
FOREWORD
................................................................................
ACRONYMS .......................................................................
.....................................................................3
................................................................................
HOW TO USE THIS HANDBOOK .......................................................
....................................................................9
................................................................................
INTRODUCTION ...................................................................
..........................11
................................................................................
The Council of Europe ..........................................................
..........................................................15
................................................................................
The European Union .............................................................
......................................15
................................................................................
The Charter of Fundamental Rights of the EU ....................................
.......................................17
European Union accession to the European Convention on Human Rights ............
.........................................................................20
Key points .....................................................................
...............22
................................................................................
1. ACCESS TO THE TERRITORY AND TO PROCEDURES ...................................
...........................................................23
Introduction ...................................................................
..........................................................25
................................................................................
1.1. The Schengen visa regime ..................................................
.........................................................26
................................................................................
1.2. Preventing unauthorised entry .............................................
........27
................................................................................
1.3. Entry bans and Schengen alerts ............................................
.30
...............................................................................3
01.4. Border checks .............................................................
................................................................................
1.5. Transit zones .............................................................
.................................34
................................................................................
1.6. Asylum seekers ............................................................
.....................................34
................................................................................
1.7. Push backs at sea .........................................................
.............................35
................................................................................
1.8. Remedies ..................................................................
...........................37
................................................................................
Key points .....................................................................
........................................39
................................................................................
2. STATUS AND ASSOCIATED DOCUMENTATION .........................................
...........................................................40
Introduction ...................................................................
...................................................................41
................................................................................
2.1. Asylum seekers ............................................................
.........................................................42
................................................................................
2.2. Recognised
.............................43
refugees
..........................................................
and those recognised as being in need of
................................................................................
2.3. Victims of trafficking and of particularly exploitative labour conditions .
.................45
2.4. Persons affected by Rule 39 interim measures ..............................
.............46
2.5. Migrants in an irregular situation ........................................
..................................................47
................................................................................
2.6. Long-term residents .......................................................
..48
................................................................................
2.7. Turkish citizens ..........................................................
.....................51
................................................................................
2.8. Third-country
..................................52
Swiss nationals ................................................................
nationals who are family members of EEA or
................................................................................
2.9. Stateless persons and the loss of citizenship or documentation ............
...........................55
Key points .....................................................................
......................55
................................................................................
...........................................................58
6Introduction
3. ASYLUM DETERMINATION
...................................................................
AND BARRIERS TO REMOVAL: SUBSTANTIVE ISSUES .......61
................................................................................
3.1. The right to asylum and the principle of non-refoulement ..................
.........................................................63
3.1.1. The nature of the risk under EU law .....................................
...............................64
3.1.2. The nature of the risk under the ECHR ...................................
..............................................................................67
3.1.3. Assessment of risk ......................................................
..........................................................................69
................................................................................
3.1.4. Sufficiency of protection ...............................................
.........................74
................................................................................
3.1.5. Internal relocation .....................................................
.................77
................................................................................
3.1.6. Safety elsewhere ........................................................
............................80
................................................................................
3.1.7. Exclusion from international protection .................................
..........................81
3.1.8. Cessation of international protection ...................................
..........................................................................83
3.2. Collective expulsion ......................................................
..............................................................................84
................................................................................
3.3. Barriers to expulsion based on other human rights grounds .................
........................86
3.4. removal
...........................88
from Third-country
...................................................................
nationals who enjoy a higher degree of protection
................................................................................
3.4.1. Long-term residents .....................................................
.............................89
................................................................................
3.4.2. Third-country national family members of EEA and Swiss nationals ........
......................90
3.4.3. Turkish nationals .......................................................
........................90
................................................................................
Key points .....................................................................
.............................91
................................................................................
4. PROCEDURAL
...........................................................93
AND RETURN CASES
SAFEGUARDS
...............................................................
AND LEGAL SUPPORT IN ASYLUM
................................................................................
Introduction ...................................................................
....................................95
................................................................................
4.1. Asylum procedures .........................................................
.........................................................96
................................................................................
4.1.1. Interview, examination procedure and initial decision making ............
......................97
4.1.2. Right to an effective remedy ............................................
....................................97
................................................................................
4.1.3. Appeals with automatic suspensive effect ................................
........99
4.1.4. Accelerated asylum procedures ...........................................
.............................................................102
..............................................................................10
54.2. Dublin procedures .........................................................
................................................................................
4.3. Procedures relating to reception conditions of asylum seekers .............
......................106
4.4. Return procedures .........................................................
...................109
................................................................................
4.5. Legal assistance in asylum and return procedures ..........................
.....................109
4.5.1. Legal assistance in asylum procedures ...................................
..........................................111
4.5.2. Legal assistance in return decisions ....................................
....................................................................113
4.5.3. Legal assistance to challenge asylum support decisions ..................
............................................................................114
Key points .....................................................................
.........................................114
................................................................................
5. PRIVATE AND FAMILY LIFE AND THE RIGHT TO MARRY ..............................
.......................................................115
Introduction ...................................................................
.............................................117
................................................................................
5.1. The right to marry and to found a family ..................................
.....................................................119
.............................................................120
5.2. Family regularisation .....................................................
................................................................................
5.3. Family reunification ......................................................
..................123
................................................................................
5.4. Maintaining the family protection from expulsion ..........................
....................130
5.4.1. Relationship breakdown ..................................................
.......................................135
................................................................................
5.4.2. Criminal convictions ....................................................
..........136
................................................................................
Key points .....................................................................
....................137
................................................................................
6. DETENTION AND RESTRICTIONS TO FREEDOM OF MOVEMENT ...........................
.......................................................140
Introduction ...................................................................
..........................141
................................................................................
6.1. Deprivation of liberty or restriction on the freedom of movement? .........
.....................................................143
6.2. Alternatives to detention .................................................
..........144
................................................................................
6.3. Exhaustive list of exceptions to the right to liberty .....................
..........146
6.3.1. Detention to prevent an unauthorised entry into the country .............
...............................................148
6.3.2. Detention pending deportation or extradition ............................
................................150
6.4. Prescribed by law .........................................................
.........................................................152
................................................................................
6.5. Necessity and proportionality .............................................
.......................154
................................................................................
6.6. Arbitrariness .............................................................
.156
................................................................................
6.6.1. Good faith ..............................................................
..................................157
................................................................................
6.6.2. Due diligence ...........................................................
...................................158
................................................................................
6.6.3. Realistic prospect of removal ...........................................
..............................158
................................................................................
6.6.4. Maximum length of detention .............................................
.....159
...............................................................................1
60
6.7. Detention of individuals with specific needs ..............................
6.8. Procedural safeguards .....................................................
.......................................................162
................................................................................
6.8.1. Right to be given reasons ...............................................
..............163
................................................................................
6.8.2. Right to review of detention ............................................
..........164
................................................................................
6.9. Detention conditions or regimes ...........................................
......165
6.10. Compensation for unlawful detention ......................................
...........................................................................166
Key points .....................................................................
.................................................................168
................................................................................
7. FORCED RETURNS AND MANNER OF REMOVAL ........................................
.......................................................169
Introduction ...................................................................
.......................................................171
................................................................................
7.1. Carrying out removal: safe, dignified and humane ..........................
.....................................................172
7.2. Confidentiality ...........................................................
.........................................173
................................................................................
7.3. Serious harm caused by restraint measures .................................
...............................174
7.4. Investigations ............................................................
....................................................175
................................................................................
Key points .....................................................................
...............................177
................................................................................
8. ECONOMIC AND SOCIAL RIGHTS ..................................................
.......................................................178
................................................................................
Introduction ...................................................................
...........179
................................................................................
.....................................................181
8.1. Main sources of law .......................................................
................................................................................
8.2. Economic rights ...........................................................
..................182
................................................................................
...........................184
8.2.1. Family members of EEA and Swiss nationals ...............................
8.2.2. Posted workers ..........................................................
........................................................186
................................................................................
8.2.3. Blue Card holders, researchers and students .............................
.........................187
8.2.4. Turkish citizens ........................................................
...........................................................188
................................................................................
8.2.5. Long-term residents and beneficiaries of the Family Reunification Directi
.............................189
ve ......190
8.2.6. Nationals of other countries with association or cooperation agreements .
8.2.7. Asylum seekers and refugees .............................................
...........191
................................................................................
8.2.8. Migrants in an irregular situation ......................................
194
................................................................................
8.3. Education .................................................................
.194
................................................................................
8.4. Housing ...................................................................
......................................195
................................................................................
8.5. Healthcare ................................................................
.........................................198
................................................................................
8.6. Social security and social assistance .....................................
....................................203
Key points .....................................................................
.......................................................................206
................................................................................
9. PERSONS WITH SPECIFIC NEEDS .................................................
.......................................................211
................................................................................
Introduction ...................................................................
.............215
................................................................................
9.1. Unaccompanied minors ......................................................
.....................................................216
................................................................................
9.1.1. Reception and treatment .................................................
.........217
................................................................................
9.1.2. Age assessment ..........................................................
.........218
................................................................................
9.2. Victims of human trafficking ..............................................
.......................220
................................................................................
9.3. Persons with disabilities .................................................
...221
................................................................................
9.4. Victims of torture and other serious forms of violence ....................
.............223
Key points .....................................................................
....................................224
................................................................................
FURTHER READING ................................................................
.......................................................226
................................................................................
ONLINE SOURCES .................................................................
..............................................227
................................................................................
LIST OF CASES ..................................................................
..................................................233
................................................................................
HOW TO FIND CASE LAW OF THE EUROPEAN COURTS ....................................
...........................................................235
EU INSTRUMENTS AND SELECTED AGREEMENTS .........................................
......................................................249
ANNEX
................................................................255
IN THIS1:HANDBOOK
APPLICABILITY
...............................................................
OF EU REGULATIONS AND DIRECTIVES CITED
................................................................................
ANNEX 2: APPLICABILITY OF SELECTED COUNCIL OF EUROPE INSTRUMENTS ...............
...............262
ANNEX 3: ACCEPTANCE OF ESC PROVISIONS ..........................................
..........266
ANNEX 4: ACCEPTANCE OF SELECTED UN CONVENTIONS .................................
...........................................................................268
ANNEX 5: COUNTRY CODES .........................................................
................................................271
................................................................................
............................273
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The handbook
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not cover international human rights law or refugee law, excep
tto the extent that this has been expressly incorporated into ECHR or EU law. Thi
s iscase with the 1951 Geneva Convention relating to the Status of Refugees (195
the
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immigration
Introduction
This introduction will briefly explain the roles of the two European legal order
s regulating
migration.
relate to the
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Council
law developed
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and Council
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of individuals, non-governmental organisations or legal persons alleging violati
ps
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at December
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An applicant
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states, except for some specific provisions. The ECtHR can also examine inter-st
mber
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member foreigners
states againstor limiting
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rights to nationals or lawful residents (for example, Articles 2, 3 and 4 of Pro
tain
tocol
to the4ECHR and Article 1 of Protocol 7). Migration issues have generated a vast
16
Handbook
body of case
on European
law fromlaw therelating
ECtHR, atoselection
asylum, of
borders
whichand
is presented
immigrationas examples i
nthis handbook.
Article
within their
1 of jurisdiction.
theThey
ECHRmainly
requires
relate
Thisstates
includes
to Articles
to secure
foreigners;
3, 5,the8 in
andcertain
Convention
13 of the
rights
specific
ECHR.tocases,
everyone
t
concept of jurisdiction can extend beyond the territory of a state. A State Part
he
y toECHR is responsible under Article 1 of the ECHR for all acts and omissions o
the
f its regardless of whether the act or omission in question was a consequence o
organs
fdomestic law or of the necessity to comply with international legal obligations.
1Article 13 of the ECHR requires states to provide a national remedy for complain
made under the Convention. The principle of subsidiarity places the primary resp
ts
on states
onsibility
recourse
States have
totoan
the
ensure
international
ECtHRtheir
as acompliance
last
obligation
resort.
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in theirof national
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statesrequires
have nowtheir
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judges and
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act provisions
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the Convention.
ESC, adopted in 1961 and revised in 1996
,complement the ECHR provisions in relation to social rights. As at December 2013
,43 outnotofprovide
does the 47 for
Council
a court,
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but does
member
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the European
had ratified
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(ECSR), which
hts
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under
and
iswhich
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states
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framework
experts
reports
ofwho
twowith
rule
procedures:
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intervals; ofand
collective
the complaints procedure,3 which allows organisations to lodge complaints
.The ECSR adopts conclusions in respect of national reports and adopts decisions
respect of collective complaints. Some of its conclusions and decisions are ment
in
inECtHR,
1ionedthis handbook.
Matthews v. the United Kingdom [GC], No. 24833/94, ECHR 1999-I, para. 3
2; ECtHR,
Hava YollarBosphorus
Turizm ve Ticaret Anonim .irketi v. Ireland [GC], No. 45036/98, ECHR
22005-VI,
Thirty-two
para.states
153. are bound by the 1996 revised ESC and 11 by the 1961 Charter
. The ESC offers
possibility to State
the Parties to sign up to specific provisions only. Annex 3 pro
vides
3applicability
The complaints
an overview
of procedure
ESC
of provisions.
the is optional (as opposed to the reporting procedure) a
nd, as at 2013, had been accepted by 15 states that are party to the ESC.
September
EU law.
17
Introduction
The EU
European
comprises
The treaties,
Union28 Member
namelyStates.
the Treaty
EU lawonisEuropean
composedUnionof treaties
(TEU) andandthesecondary
Treaty o
nthe Functioning of the European Union (TFEU), have been approved by all EU Membe
rStates
and
given
EU
The law.
decisions
EU such
has
and evolved
authority
areofalsothefrom
referred
EU three
underhavethebeen
tointernational
treaties;
asadopted
primarythey
byorganisations
EUthe
are
law.
EUoften
institutions
Thereferred
regulations,
established
thatasin
to directives
have
secondary
thebeen
195
that dealt with energy, security and free trade; collectively, they were known a
0s
s the
European
stimulation Communities.
of economicThedevelopment
core purpose through
of thetheEuropean
free movement
Communities
of goods,
was thecapital,
EU.people
Theand
first
services.
regulation
The onfreethemovement
free movement
of persons of workers
is thusina 19684
core element
recognised
of the
tha
tworkers must not only be free to move, but also able to take their family member
s ofcomplex
of whateverlegislation
nationality on the
with movement
them. ofThesocial
EU hassecurity
developedentitlements,
an accompanyingon socia
body
lassistance rights and on healthcare as well as provisions relating to the mutual
ofrecognition
primarily
Nationals
that qualifications.
are part
alsonon-EU
of ofapplies
theMuch
Member
European
toofvarious
thisEconomic
States lawcategories
which
namely
Areawas of(EEA),
ofIceland,
developed
non-EU
whichLiechtenstein
nationals.
for
entered
EU nationals
intoand force
Norway
in 1
have the same free movement rights as EU nationals.5 Similarly, based on a speci
994,
agreement concluded with the EU on 21 June 1999,6 Swiss nationals enjoy a right
al
move and settle in the EU. The EU and EEA states, together with Switzerland, are
to
members
all of the European Free Trade Association (EFTA), which is an intergovernme
organisation
ntal
EFTA has its ownset institutions,
up for the promotionincludingof afree court.tradeTheandEFTA
economic
Court is
integration.
competent to
interpret the EEA Agreement with regard to Iceland, Liechtenstein and Norway. It
54modelled
isAgreement
CouncilonRegulation
thethe
on CJEUEuropean
and tends
(EEC) No.
Economic
to follow
1612/68,Area,
15its2October
case1992,
May law.
1968.Part III, Free Movement o
f Agreement
6andPersons,
Capital,Services
between
OJ 1994the L1.European Community and its Member States, on the one par
t, and the Swisson the other, on the free movement of persons, signed in Luxembou
Confederation,
rg on 21into
entered Juneforce
1999,on 1 June 2002, OJ 2002 L 114/6.
Turkish citizens
Handbook on Europeanmay also
law relating
have a privileged
to asylum,position
borders under
and immigration
EU law. They do not h
the1970
ave
European
Agreement)
in right(Additional
Economic
towasfreedom
concluded
Community
of movement
Protocol
with(EEC)-Turkey
Turkey
to intoAnkara
the and
or an
within
Association
additional
Agreement).7
the EU.Agreement
protocol
However,
As a result,
(the
was
in adopted
1963those
Ankarathe Turkish
citizens who are permitted to enter the EU to work or establish themselves enjoy
certain privileges, have the right to remain and are protected from expulsion. T
also benefit from a standstill clause in Article 41 of the Additional Protocol t
hey
o thethose
Ankara
than Agreement,
which werewhichinprevents
place atthemthe time
from at
being
which
subjected
the clause
to more
camerestrictions
into effect
the host Member
for
countries (see Chapter
State. 8,TheSection
EU has 8.2.6),
also concluded
but noneagreements
of those are
withasseveral
wide-ranging
other
the Treaty
as
The Ankara ofAgreement.
Maastricht entered into force in 1993 and created citizenship of t
Union, although predicated on possessing the citizenship of one of the EU Member
he
citizens
In
States.
1985,This
and Schengen
the conceptfamily
their has
Agreement
been
members
widely
wasofsigned,
usednationality.
any towhich
buttressled to
freedom
the abolition
of movement of intern
for
border controls of participating EU Member States. By 1995, a complex system for
al
applying external controls was put in place, regulating access to the Schengen a
In 1997, the Schengen system regulated thus far at an international level became
rea.
part of the EU legal order. It continues to evolve and develop in the context of
Schengen
the Borders Code, which consolidates EU rules relating to border management
.In 2004,
management
Since
the competence
thethe
Treaty
ofEUthe
ofagency
ofthe
external
Rome
European
Frontex
inborders
1957,
wassuccessive
Communities
created
of the Union.
totreaty
(EC),
assist
nowamendments
EU Member
the EU, inhave
States
issues
enlarged
inaffecting
the
of
migration;
borders,theimmigration
Treaty ofand Amsterdam
asylum,gave
including
the EUvisas
new competence
and returns.
across
Thisthe
process
fieldcu
with
lminated
7of EEC-Turkey
integration
the Treaty Association
ofofthird-country
LisbonAgreement
which nationals.
afforded
(1963),theOJEUNo.new217competence
of 29 December
in the1964
field(Ankar
a Agreement),
which was supplemented by an Additional Protocol signed in November 1970, OJ 197
2 L 293.
Over thealmost
Against
acquis,
governs
however, athis
are
past
bodybound
background,
decade,
of intergovernmental
all asylum-related
by allthere
the elements
EU hashasadopted
matters
been
of
agreements,
theanlegislation
inongoing
asylum
theregulations
EU.evolution
acquis
Not(see
concerning
alland
of immigration
EU
Annex
the1).
directives
Member
EU States,
asylum
that
to t
EU for certain categories of persons as well as rules on third-country nationals
he
lawfully
Under
European
residing
theCourt
within
EU treaties,
oftheJustice
Union
the(ECJ)
(see
EU established
Annex
until1).the entry
its owninto
court,
forcewhich
of the
wasTreaty
known of
as Lisb
the
on in
December 2009; since then, it has been renamed the Court of Justice of the Europ
Union the
ean
hand, (CJEU).8
CourtThehasCJEU
the right
is entrusted
to decide withover
a number
the validity
of competences.
of EU actsOnand
theover
one fa
to act by the EU institutions under EU and relevant international law, as well a
ilures
s to retains
decide
CJEU over infringements
an exclusive competence
of EU law byinEUensuring
Member the
States.
correct
On the
andother
uniform
hand,
applica
the
and interpretation of EU law in all EU Member States. Pursuant to Article 263 (4
tion
)of the TFEU,
However, individual
access complaints
to the CJEUhaving
by individuals
as an objectis relatively
the interpretation
narrow.9 or the val
of EU law can always be brought before national courts. The judicial authorities
idity
of EU Member States, based on the duty of sincere cooperation and the principles
that rule effectiveness of EU law at national level, are entrusted with the resp
to ensure that EU law is correctly applied and enforced in the national legal sy
onsibility
In addition, following the ECJ ruling in the Francovich case,10 EU Member States
stem.
are required, under certain conditions, to provide redress, including compensati
in appropriate
on
States failurecases
to comply
for those
with EUwholaw.
haveInsuffered
case ofasdoubt
a consequence
on the interpretation
of a Member or t
8 This handbook refers to the ECJ for decisions and judgments issued prior to De
he
cember
9CJEU
This,
for2009
for
cases
andruled
example,
to thewas
on since
the case
December
in ECJ,
2009.Joined Cases C-402/05 P and C-415/05 P
Al[2008]
Barakaat
I-6351,
International
Kadi and Foundation v. Council of the European Union and Commis
sionECJ,
Communities,
10 of Joined
the European
3 Cases
SeptemberC-6/90
2008.
and C-9/90 [1991] ECR I-05357, Francovich and Bonifa
ci and Others
Republic, 19 November
v. Italian 1991; ECJ, Case C-479/93 [1995] ECR I-03843, Francovich v.
9Italian
NovemberRepublic,
1995.
validity of
Handbook on an
European
EU provision,
law relating
national
to asylum,
courts can
borders
andandmust
immigration
in certain cases11 see
kguidance from the CJEU using the preliminary reference procedure under Article 2
of the TFEU. In the area of freedom, security and justice, the urgent preliminar
67
y ruling
procedure
any
The national
Charter
original
(PPU)
oftreaties
court
Fundamental
wasorcreated
tribunal
of theRights
toEuropean
ensure
with
ofregard
the
a quick
Communities
EUto aruling
person
didinnot
incases
custody.12
contain
pending
any reference
before
human rights or their protection. However, as cases came before the ECJ alleging
to
human rights breaches occurring in areas within the scope of EU law, the ECJ dev
a new general
eloped
rights
these approach
in the principles
so-called
to grant general
protection
would reflect
principles
to individuals
the content
of European
byofincluding
humanlaw.rights
According
fundamental
protection
to thefoECJ,
in national constitutions and human rights treaties, in particular the ECHR. The
und
stated
InECJrecognising
that it that
wouldits
ensure
policies
compliance
could have
of EUanlawimpact
with on
thesehuman
principles.13
rights and in an
to make citizens feel closer to the EU, the EU proclaimed the Charter of Fundament
effort
Rights of the European Union in 2000. The Charter contains a list of human right
al
sinspired by the rights enshrined in EU Member State constitutions, the ECHR, the
and
ESCinternational human rights treaties, such as the United Nations (UN) Convent
on the Rights of the Child (CRC). The EU Charter of Fundamental Rights as procla
ion
in 2000 was merely a declaration, meaning it was not legally binding. The European
imed
stated
Commission,
that it
thewould
primary
ensure
bodycompliance
for proposing
of legislative
new EU legislation,
proposalssoonwiththereafter
the Charter
.11 According to Art. 267 (3), such obligation always arises for courts against w
hose decisions
judicial remedythere
underisnational
no law and concern also other courts whenever a prel
iminary reference
concerns the validity of an EU provision and there are grounds to consider that
the challenge
founded (see, for
is example, ECJ, Foto-Frost v. Hauptzollamt L beck-Ost, C-314/85 [1
987]See
22
12 October
ECRStatute
4199,
1987).
of the Court of Justice, Protocol No. 3, Art. 23 a and Rules of P
rocedure Art.
Justice, of the107-114.
Court ofFor a better overview of cases that might be subjected to
Recommendations
a PPU, see CJEU,to national courts and tribunals in relation to the initiation o
f preliminary(2012/C
proceedings ruling338/01), 6 November 2012, para. 40: for example, consider sub
mitting for
request a the urgent preliminary ruling procedure to be applied in the case, r
eferred toofinArticle
paragraph the fourth
267 TFEU, of a person in custody or deprived of his liberty
, where
the question
the answer
raisedtois decisive as to the assessment of that persons legal situat
ion, or in parental
concerning proceedingsauthority or custody of children, where the identity of the
court European
under having jurisdiction
Union law depends on the answer to the question referred for a pr
eliminary
13 ECJ, Case
ruling.
C-44/79 [1979] ECR 3727, Liselotte Hauer v. Land Rheinland-Pfalz, 1
3 December
para. 15. 1979,
statustheofTreaty
When the EUofCharter
Lisbonofentered
Fundamental
into force
Rights,
on making
1 December
it legally
2009, itbinding.
alteredAsthea
EU institutions (as well as EU Member States) are bound to comply with the Chart
result,
when
Aer Protocol
implementing
has beenEUadopted
law (Article
interpreting 51 ofthe
theCharter
Charter).
in relation to Poland and t
UK. In a 2011 migration case before the CJEU, the Court held that the main purpo
he
of such Protocol was to limit the application of the Charter in the field of soc
se
ial Court
The rights.furthermore held that the Protocol does not affect the implementation
EU asylum18law.14
of
Article of the EU Charter of Fundamental Rights contains for the first time a
tEuropean, level a right to asylum. According to Article 18, it is a qualified ri
[t]he
ght:
Geneva
the
includes
well-founded
Treaty
right
Convention
a prohibition
onfear
totheasylum
[...]
Functioning
of being
shall
to
andreturn
persecuted
inbeofaccordance
guaranteed
atheperson
European
or runs
with
to
with
aaUnion
the
situation
dueTreaty
real respect
[].
riskwhere
onfor
Article
of European
torture
hetheor
19rules
ofUnion
she
or the
inhuman
has
ofCharter
and
athe
degrading other
and
Moreover, treatmentCharter
or punishment
provisions(principle
on the protection
of non-refoulement).
granted to individuals appe
to be relevant in the context of migration. Article 47 of the Charter provides f
ar
or an
autonomous right to an effective remedy and lays down fair trial principles. The
principle of judicial review enshrined in Article 47 requires a review by a trib
This provides broader protection than Article 13 of the ECHR which guarantees th
unal.
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14
rights
CJEU,than
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21 December
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Handbook
European
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Human
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are
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CHR,
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ation
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possible
EU
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before
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theaECtHR.15
the EU by mandating
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in its own right and Protocol 14 to the ECHR amends the ECHR to allow this acces
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sion
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the future. The EUs accession to the ECHR is, however, likely to improve access t
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rights. The negotiations for the EUs accession to the ECHR are ongoing and may ta
uman
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15 For more
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ECtHR, ve
Turizm Bosphorus
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EUMigration
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all 28 EU Member States. The ECHR protects all individuals within the jurisdicti
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onArticle
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25
and
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Regulation
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16 Regulation (EC) No. 2007/2004, 26 October 2004, OJ 2004 L 349/1; Regulation (
EU)Regulation
25
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and their family members have the right to enter the territory of EU Member Stat
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vernments
States of the
of the
Benelux Economic Union, the Federal Republic of Germany and the Fr
ench Republic
gradual abolition
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of checks at their common borders, OJ 2000 L 249/19.
(EC) No. 1030/2002
Handbook on Europeanlayslawdown
relating
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to asylum,
formatborders
for residence
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permits.23 Aliens no
tsubject to a visa requirement may move freely within the Schengen territory for
amaximum period of three months during the six months following the date of first
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which has an equivalent effect to border checks.24 Surveillance, including throu
ders,
electronic means, of internal Schengen borders is allowed when based on evidence
gh
of irregular residence, but it is subject to certain limitations, such as intens
and frequency.25
ity
1.2.
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EU law, measures
unauthorised
have been
entrytaken to prevent unauthorised access to EU terr
itory.
those
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who transport
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individuals
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expelled. The ban is typically valid for a certain period of time and ensures th
en
at Council
who
admitted
23 individuals
are considered
toRegulation
enter the dangerous
territory.
(EC) No.or1030/2002,
non-desirable
laying
aredown
not agiven
uniform
a visa
format
or otherwise
for resid
ence permits
country nationals,
for third-
13 June 2002, OJ 2002 L 157, as amended by Regulation (EC) No
. 380/2008/EC,
OJ
24 2008 LJoined
CJEU, 115/1.Cases C-188/10 and C-189/10, [2010] ECR I-05667, Aziz Melki and
Selim
para.
25 CJEU,
Abdeli
74. Case[GC],
C-278/12 PPU, Atiqullah Adil v. Minister voor Immigratie, Integrat
ie en Asiel, 19 July 2012.
Under EU law, entry bans are entered into a database called the Schengen Informa
System (SIS),
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mation
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replaced
started
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April 2013.26
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System
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bases are the SIS II Regulation 27 and the SIS II Decision,28 is a more advanced
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and
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listing
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to For
ed
26 be illegal.30
matters falling within the scope of Title IV of the Treaty establishing t
he European
see: CouncilCommunity
Decision 2013/158/EU of 7 March 2013 fixing the date of application
(EC)
of Regulation
No. 1987/2006 of the European Parliament and of the Council on the establis
hment,
and useoperation
of the second generation Schengen Information System (SIS II), OJ 2013 L
87, p. 10;
falling within
for the
matters
scope of Title VI of the Treaty on European Union see: Counci
l Decision
of 7 March fixing
2013/157/EU
the date of application of Decision 2007/533/JHA on the establ
ishment,
use of theoperation
second generation
and Schengen Information System (SIS II), OJ 2013 L87,
p. Regulation
27 8. (EC) No. 1987/2006 of the European Parliament and of the Council,
20 France,
OJ
28
29 December
2006
CouncilL 381/4.
Decision
Council
2006, of2007/533/JHA,
State (Conseil
12 d
Junetat),
2007,M.OJet2007
Mme LForabosco,
205/63. No. 190384, 9 Jun
e 1999.
30 France, Council of State (Conseil d tat), M. Hicham B, No. 344411, 24 November 2
010.
For thoseonindividuals
Handbook European law subject
relating
to antoentry
asylum,
banborders
made inandtheimmigration
context of a return or
under the Return Directive (Directive 2008/115/EC),31 the ban should normally no
der
textend beyond five years.32 It will normally be accompanied by an SIS alert and
will beandenied
they
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to have
the whole
to withdraw
Schengenitarea.
beforeTheanyEUother
MemberEUState
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which was specific to the state that issued it, questions arise as to the propor
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other
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.The only
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example,tohave
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state the
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deems an individual
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of the parliament
ns
meeting of the PACEinCommittee
France. This
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was discussed
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positions.33
placing someone on the SIS database is an action taken by an ind
Member
ividual
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State alleging
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in question
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ct
31 CJEU,
to
32 DirectiveCase2008/115/EC,
C-297/12, Criminal
OJ 2008proceedings
L 348, Art.against
3 (6) and
Gjoko
Art.Filev
1. and Adnan Osman
i, Council
33 19 Septemberof Europe,
2013. Committee on Legal Affairs and Human Rights (2012), The in
admissibilityonoffreedom of movement as punishment for political positions, 1 Jun
restrictions
e 2012
No. 1894and(provisional
Resolution version), adopted on 29 June 2012.
respect for private and family life) was declared inadmissible. In its first Cha
decision
mber
Court
provide considered
safeguards
concerning thatagainst
registration
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arbitrariness
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is database
appreciation
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and in
itsdetermining
effects,
entry intothenational
how to
The
territory
ECtHR has thanalso
in relation
had to consider
to expulsion.34
the effects of a travel ban imposed as a resu
of placing an individual on an UN-administered list of terrorist suspects as wel
lt
l asSecurity
designed
Example:
living
on
UN
applicant
removed
had
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ry ECtHR,
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and Others
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22008
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tolawa certain status or to certain documentation the failure to accord the status
issue
or the documentation will constitute an infringement of EU law.
The ECHR does not expressly require a state to grant a migrant a certain status
issue him or her specific documentation. In some circumstances, the right to res
or
for family and private life (Article 8) may require the states to recognise stat
pect
authorise residence or issue documentation to a migrant. Article 8, however, can
us,
be construed as guaranteeing as such the right to a particular type of residence
not
Where
permit.
the domestic legislation provides for several different types of residence
permits, the ECtHR will normally be called upon to analyse the legal and practic
implications
al
2.1.
Asylum Asylum
seekers
seekers
ofseek
issuing
international
a particularprotection
permit.49on the basis that they cannot retur
n orreturned to their country of origin because they have a well-founded fear of
be
or areChapter
persecution
(see
Under EUatlaw,
risk3).
asylum
of beingseekers
ill-treated
are defined
or being
as applicants
subjected toforother
international
serious harmprotecti
Theirasylum
on.
the situation
acquisisand
regulated
the states
by thein which
EU asylum
theyacquis.
apply are
Alllisted
the relevant
in Annextexts
1. Obta
of
accessthose
ining
with
final decision.
to the
asylum
asylum
EUseekers
lawprocedure
prohibits
whoseisclaims
removal
discussed
areofpending
in asylum
an Chapter
andseeker
1. This
who areuntil
section
waiting
a decision
dealsa on
for
the asylum application is taken. Article 9 (1) of the Asylum Procedures Directiv
e(2013/32/EU), provides that the asylum seekers presence in the territory of an EU
Member State is lawful. It states that asylum seekers are allowed to remain in th
eMember State for the purpose of the procedure until a decision by the responsible
The
applications.
authority
right to
hasdocumentation
been made, although
for asylum
someseekers
exceptions
underexist,
EU lawnotably
is setforoutsubsequent
in the Rec
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eption
the directive).
Directive
Article
(2013/33/EU;
6 of this directive
see Annex states
1 for EUthat
Member
all those
Stateswhobound
lodge
by an a
forasylum
pplication
as asylumseekers
must beorgiven,
that they
withinarethree
allowed
days,toastay
document
whilecertifying
the asylumtheir
application
status
being examined. According to Article 6 (2) states can refrain from doing so when
is
applicant
49theECtHR, Liu
is inv.detention
Russia, No.
or 42086/05,
at the border.
6 December 2007, para. 50.
statusthe
Handbook
Under during
onECHR,
European
thenoprocessing
corresponding
law relatingof their
provision
to asylum,
claimsexists
borders
for protection.
governing
and immigration
the
It will
asylumtherefore
seekersb
e necessary
to
in
Article
consider
the territory
5 (1)whether
(f)while
ofunder
thetheir
ECHR
domestic
claims
permitslaw
aredetention
asylum
processed.
seekers
of asylum
are seekers
allowed to prevent
remain the
mfrom effecting an unauthorised entry into the territory of a state. According to t
ECtHR,
he
national
remained
authorities.
Article
in
Example:
had suitable
exceeded
an5In
authorities.
The
unauthorised
entry
(1)conditions
Suso
ECtHR
In
their
where
remains
that
Musa
held
legal
ancase,
until
v.asylum
while
unauthorised
in
Malta,51
obligations
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the
ithis
seeker
hadasylum
Court
v.however,
been
the
found
had
anduntil
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formally
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been
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that
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Kingdom50
Court
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been
was
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had
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the
no
for
entry
authorised
violation
national
seven
a State
authoris
days
ofby the
the entry2 of
ing
independently
preventing
detention
Article oranProtocol
under
stay
orArticle
unauthorised
pursuant
of immigrants
No.5 4(1)
toentry
toEU(f).
the
pending
law,
might
ECHR
anyraise
anensuing
refers
asylum
antoissue
detention
application,
the as tomovement
free for
thethe
either
lawfulness
purpose
rights of th
who acknowledged
ose
certain
the
Example:
had are procedural
territory
lawfully
Beforeofthea state.
that
within
safeguards
UNtheHuman
Aa person
asylum
state,
Rights
against
seekers
whereas
can,
Committee52
expulsion
however,
were
Article
lawfully
for
the
lose
1German
those
ofhis
resident
Protocol
who
or
government
her
arefor
No.
lawful
lawfully
the
7 provides
status.
durationwithin
for
accepted
state
50
of ECtHR,
their
hadthe
asylum
attached
Saadi
governments
procedure.
v. to his
the United
argument
temporary
However,
Kingdomthat
in[GC],
residence
Omwenyeke
in violating
No. 13229/03,
that
v. Germany,53
the the
is, conditions
29 January
obligation
the Court
that
2008,
tothepara.
stay
5165.ECtHR,
52
53 CCPR/C/DEU/2002/5,
Suso Musa v.4Germany
Omwenyeke Malta,
December No.
(dec.),
2002.
42337/12,
No. 44294/04,
23 July 2013.
20 November 2007.
within the territory of a certain city the applicant had lost his lawful status
thus Recognised
and
2.2.
recognised
subsidiary
Under fell
EU law,
outside
as the
protection
being
refugees
theinCharter
EU scope
need
andoffor
those
Article
Fundamental
2 of Protocol
Rights guarantees
No. 4 to the
theECHR.
right to asyl
(Article 18), thus going beyond the right to seek asylum. Those who qualify for
um
have(subsidiary
asylum
18 the right protection
to have thisstatus
statusforrecognised.
those who need
Articles
international
13 (refugeeprotection,
status) andbu
t doqualify for refugee status) of the Qualification Directive (2011/95/EU) give
not
explicit
an right to be granted the status of refugee or subsidiary protection. Per
granted international protection can lose their status if there is genuine impro
sons
of the situation
vement
Article 24 of theinsametheir
directive
countryregulates
of originthe(seeright
Chapter
to documentation.
3.1.8). Those rec
as being
ognised
three years
in for
needrefugees,
of international
and one year
protection
for subsidiary
are entitled
protection.
to residence
Article
permits:
25 ent
refugees and, in certain cases, beneficiaries of subsidiary protection to travel
itles
Under
documents.
the ECHR, there is no right to asylum such as that found in Article 18 of
the EU of Fundamental Rights. Also, the ECtHR cannot examine whether the refusa
Charter
lor withdrawalofoftherefugee
recognition right tostatus
asylum
under
under
thethe
1951Qualification
Geneva Convention54
Directive55
or the
is contra
non-
ry toECHR.himTheorECtHR
the
subject her tocan,a real
however,
risk of
examine
treatment
whethercontrary
the removal
to Article
of an3alien
of thewould
ECHR
other
54
55orECtHR,
certain
ECHRSufi
Ahmed
provisions
and
v. Elmi
Austria,
(see
v. the
Chapter
No.United
25964/94,
3).56
Kingdom,
17 December
Nos. 8319/07
1996, and
para.11449/07,
38. 28 Jun
e 2011,
(relating
56 ECtHR,para.
to Art.
NA. 226The
v. 15 United
of the Kingdom,
Qualification
No. 25904/07,
Directive).17 July 2008, paras. 106-107.
formsVictims
Handbook
2.3.
exploitative
Under EU illegal
of on European
law, ofthetrafficking
labouremployment
Employer
conditions
law relating
Sanctions
andmigrants
of oftoparticularly
asylum,
Directive
in anborders
irregular
(2009/52/EC)
andsituation.
immigration
criminalises
In thesome
case o
fworkers who are minors or of workers who are subject to particularly exploitativ
eworking conditions, they may be issued a temporary residence permit to facilitat
ethe lodging
Council Directive
of complaints
2004/81/ECagainst
on thetheir
residence
employers
permit
(Article
issued13).
to third-country nat
who are victims of trafficking or who have been the subject of an action to faci
ionals
irregular immigration allows for a reflection period during which the victim can
litate
be expelled.
not
victims of trafficking
It also requires
who cooperate
EU Member
withStates
the authorities
to issue a (Articles
residence 6permit
and 8,tores
The dealing
pectively).
not permit hasdirectly
to be with
validresidence
for at leastpermits
six for
months
victims,
and istherenewable.
2011 Anti-Trafficki
Although
Directiveduring
ng
before, (2011/36/EU)
and afterrequires
the conclusion
assistanceof criminal
and supportproceedings
measures (Article
to be provided
11). Ho
where proceedings against the traffickers are not envisaged or the victim has no
wever,
tcooperated with any investigation, there is no clear requirement for an EU Membe
rState the
Under to grant
ECHR,athe residence
prohibition
permit.against slavery and forced labour in Article 4 o
f themay, in certain circumstances, require states to investigate suspected traf
ECHR
and to of
ficking
Example:
victim take
The
trafficking
measures
ECtHR Rantsev
toinprotect
Cyprus.
v. Cyprus
victims
The Court
andorRussia
potential
held case57Cyprus
that victims.
concerned
had failed
a Russian
to comply
with its positive obligations under Article 4 of the ECHR on two counts: first,
had failed
it
combat trafficking
to put inand,
placesecondly,
an appropriate
the policelegal
hadand
failed
administrative
to take suitable
framework
operati
to
measures
onal
the Russian
to authorities
protect the had victim
failed
fromtotrafficking.
conduct an effective
The ECtHR investigation
also found thatinto th
evictims
failure
departure
57 ECtHR,had
recruitment
from
Rantsev
moreRussia
serious
v. Cyprus
byandtraffickers
consequences
herandsubsequent
Russia,
which
inNo.
the
death
had25965/04,
light
occurred
in Cyprus.
of 7the
onJanuary
Russian2010,
circumstances
territory.
para.
of her
284.
This
Under ECHR law, in states that are party to the Council of Europe Convention aga
Trafficking, the authorities must allow the suspected victim a recovery and refl
inst
period duringhave
ection
authorities which
reasonable
they cannot grounds
be removed
for believing
(Articlethat 14).aIfperson
the competent
has been a victim
been
(Article
of trafficking,
determined
10 (2)).whether
the
Theperson
competent
he ormaysheauthority
nothasbebeen
removed
can
a victim
issue
from renewable
theacountry
of trafficking
residence
untiloffence
itpermits
has
victims if it believes the victims stay is necessary owing to their personal situ
to
or for the purposes of the criminal investigation (Article 14 (1)). The provisio
ation
ns are to ensure that the victims of trafficking are not at risk of being retu
intended
to their countries without being given the appropriate help (see also Chapter 9
rned
vulnerable
on
2.4.
interim
When Persons
the measures
ECtHR
groups
affected
receives
and,byfor
anRule
the39list of ratifications,
application, it may decide that Annexa2).
state should take c
provisional measures while it continues its examination of the case.58 These are
ertain
usually referred to as Rule 39 measures.59 These measures often consist of reque
a state to refrain from returning individuals to countries where it is alleged t
sting
they would face death or torture or other ill-treatment. In many cases, this con
hat
asylum seekers
cerns
exhausted all appeal
whose rights
claims under
have received
domesticalaw.finalInrejection
some states,
and it
whomayhavebe unclea
rwhich status an individual has when the ECtHR has applied a Rule 39 interim meas
to prevent
ure
this questiontheofindividuals
status, theremovalexpelling while
state
it is
examines
under an theobligation
case.60 Regardless
to complyofwi
thresult
Rule
Example:
state
ameasure
proper
58
59 any39extradited
ECtHR,
For examination
detailed
measure
indicated
InRules
of the instructions
theirindicated
Mamatkulov
of
the
bythe
extradition,
ofthe
applicants
the
Court,
ECtHR.
byandon
applicants
the
asthe
Askarov
toin
The
how
ECtHR.
Uzbekistan
Court
facts
force
to complaints
v.had
lodge
Turkey
of
on the
a1been
notwithstanding
September
request
case,61
case
in
prevented
accordance
clearly
under
thefrom
2012,respondent
Rule
aRule
showed
with
Rule
conducting
39,39.
its
39seesettled
that,interim
UNHCR
asa
60 ECtHR, Mamatkulov
(2012).
61 Azimov v. Russia,
and Askarov
No. 67474/11,
v. Turkey18[GC], AprilNo.2013.
46827/99 and 46951/99, 4 Fe
bruary 2005.
mightagainst
Handbook
practice
them
Convention,
hinder
on member
in European
similar
potential
the effective
states
cases.
lawviolations
relating
undertook
This ultimately
exercise toof
of tothe
asylum,
refrain
an ECHR.
individual
prevented
borders
By virtue
from any
andact
the
applicants
immigration
Court
of Article
or from
omission
right
protecting
34 ofthat
the
applicat
A failure
ion.
be
complaint
regardedand
byasaaspreventing
member
hindering
statethe
the
toCourt
complyfrom
effective withexercise
effectively
interimofmeasures
examining
his or her
wastheto applicants
right, thus viol
Article 34InofSavriddin
ating
Example: the Convention.
Dzhurayev v. Russia,62 the applicant was forcibly transfer
to Tajikistan
red
though
respondent
put at risk
an ECtHR-indicated
state
ofinill-treatment
a specialinterim
disregarded operation
theTajikistan
in interim
measure
involving
measure,
remained
and the
Russian
the
in applicant
Court
force.
state
had been
agents
Because
hadprevented
the
been
even from
securing for him the practical and effective benefit of his rights under Article
of3 theviolated.
been
measures ECHR.
to protect
Article
The Court
the
34 applicant
ofordered
the Convention,
the
against
respondent
the
as existing
well
state
as to
Article
risks
taketotangible
3,his
hadlife
therefore
remedial
and hea
in a foreign jurisdiction. In addition, given repeated incidents of this kind, t
lth
Court by
he
delay ordered
takingthedecisive
respondentgeneral
Statemeasures
to resolve in order
this to
recurrent
ensure the
problem
effective
withoutprote
of potential
ction
2.5.
The
authorisation
presence
Migrantsof
victims
inthose
or an irregular
legalinwho
justification
line
havewith
situation
either
interim
isentered
considered
measures
or remained
issued in
irregular by or
athestate
unlawful.
Court.
withoutIrregu
or unlawful
lar
absconding
lawful residence
from
presence
apermit
mandatory
canbecause
arise
address,
inofmany
a change
toways,
beingofranging
ineligible
personalfromcircumstance.
toclandestine
renew an otherwise
entryoforla
Lack
status often affects the possibility of benefiting from other procedural and sub
wful
rightsEU(see
stantive
Under law,Section
according
8.6 toon the
accessReturn
to social
Directive
security
(2008/115/EC;
and socialseeassistance).
Annex 1 for EU
Member States bound by the directive), illegally-staying third-country nationals
62 ECtHR, Savriddin Dzhurayev v. Russia, No. 71386/10, 25 April 2013.
can no longer be left in limbo. EU Member States participating in the directive
either
must
All persons
regularise
withouttheir
legalstay
authorisation
or issue a to return
staydecision.
fall within the ambit of the dir
ective. 6 (4),
Article obliges
however,
EU Member
alsoStates
sets out to the
issuecircumstances
them with a excusing
return decision.
states from thi
s obligation.
Along
stay can
withbehumanitarian
pressing reasonsor other
of family
reasons, or private
another life
reasonguaranteed
to regulariseunderthe
Article
7 ofEU Charter of Fundamental Rights and Article 8 of the ECHR (see Chapter 5 on
the
Example:
d
family
competent
tat)life).
held
Inauthorities
M.that
Ghevondyan,63
Article
of the
6 of4Member
June
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2012,
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Allowing in viewtoofremain
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tion
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The provision
(Article 6does (5))notbutaddress
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the status as of
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is inpeople.
the caseRecita
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l 12the Return Directive reveals an awareness of the common situation that some o
to
fthose who stay without authorisation cannot be removed. It also notes that state
sshould provide written confirmation of their situation, but this is not reflecte
d in the parts of the directive. The situation is most acute for those who have
operative
be
(see
63
64
toFrance,
released
OnChapter
the situation
Council
from
6 ondetention
detention)
ofofState
non-removed
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persons,
still
d maximum
tat),
dosee
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permitted
FRA
Ghevondyan,
have
(2011b),
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detention
Chapter
4 Junetohas
2012.
stay.64
2.elapsed
without
Handbook
Example:
not
that
detention
beapplicable
removed,
status
onperiod
In European
Kadzoev,65
orEU
was
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law
released
be
lawexceeded.
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could
relating
and
fromleft
underOnce
tonodestitute,
Chechen
detention
asylum,
circumstances
released,
asylum
after
borders
the
asseeker
aBulgarian
CJEU
authorise
applicant
andinruling
immigration
Bulgaria,
law
themaintained
found
did
maximum
himself
who provide
not could
Under
for himthetoECHR,
have there
any status
is noeven
Convention
though right
he could to be
notgranted
be removed.
specific status or re
documentation in a host country; however a refusal may, in certain circumstances
lated
,violate
Example:
had
authorities.
ECtHR
accepted
provision
left anostressed
child
room
the
Inofwith
thatECHR
Kiyutin
His
domestic
for
the
thean
aifdisease
permit
Russian,
particular
itlaw
v.
individualised
was
Russia,66
wasrequiring
could
based
requested
refused
vulnerability
amount
onassessment
an discriminatory
Uzbek
since
deportation
atoresidence
national,
ahe ofhad
form
based
persons
ofof
tested
permit
grounds.
HIV-positive
whothe
disability.
on infected
had
positive
from
facts
been
thenon-nationals
with
The
married
for
of
Russian
ablanket
HIV.
HIV
particular
and
The
case and was found not to be objectively justified. The Court thus found that th
eapplicant had been a victim of discrimination on account of his health status an
dconcluded
Article
Under the8.ESC,
it tothe
be personal
a breach scope
of Article
is, in14principle,
of the ECHRlimitedtaken to
in nationals
conjunctionofwith othe
r state that are lawfully resident or working regularly within the territory. Th
parties
e ECSR
has held however that, due to their fundamental nature and their link to human d
certain rights apply to all persons in the territory, including irregular migran
ignity,
These rights comprise the right to medical assistance,67 the right to shelter68
ts.
andECSR,
right
65
66
67 ECJ,
ECtHR,
thetoC-357/09
education.69
International
Kiyutin[2009]
v. Russia,
Federation
ECR I-11189,
No. 2700/10,
of Human
Kadzoev10Rights
(Huchbarov),
March Leagues
2011. v.30 France,
NovemberComplaint
2009. N
8o.September
68 14/2003,
ECSR, Defence
merits,
2004. for Children International v. the Netherlands, Complaint No. 47
/2008,
20
69 October
ECSR, merits,
Conclusions
2009. 2011, General Introduction, January 2012, para. 10, Stateme
nt of17(2).
Art. interpretation on
Directive
2.6.
Under Long-term
EU law,
2011/51/EU;
the
residents
Long-Term
see Annex
Residents
1) forDirective
states bound(2003/109/EC
by the directive
as amendedprovides
by fo
rentitlement
who have resided
to enhanced
in an EUlong-term
Member Stateresidence
legallystatus
and continuously
for third-country
for fivenationals
years.7
0This entitlement is subject to conditions relating to stable and regular resourc
and sickness insurance. There is no case law on the interpretation of these requ
es
but in relation
irements,
(2003/86/EC; seetoChapter
similar5 on
requirements
families) the in the
CJEUFamily
leanedReunification
towards a strict
Directive
interpr
of those
etation
must
Under
directive.71
not
Article
conditions.
be used
11 of
in the
aItmanner
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Long-Term
whichResidents
that the
would undermine
margin the
Directive,
of EUthe
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Member
grantState
of long-term
themanoeuvrere
status leads
sident
Chapter
According 8 to
on the
to treatment
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CJEU,and
EU Member
equal toStates
social rights).
nationals
cannotinimpose
severalexcessive
importantandareas
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(see
feeslong-term
nate
are for the grant
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of residence
and to members
permitsoftotheirthird-country
families.nationals
Such feeswho would jeopar
the achievement
dise
Example:
effectiveness.
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Directive
from
status,
188(ii)
Into
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European
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third-country
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the
asCommission
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to
it fulfil
imposed
third-country
nationals
v.its
pursued
excessive
thewho
obligation
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nationals
by and
have
theacquired
directive,
under
disproportionate
seeking
the
long-term
CJEU
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long-term
depriving
held
feesresident
resident
that
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it(varying
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status
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and
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70
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86/10,
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thers
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r Arbeit,
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republik
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79 February
CJEU, Deutschland,
C-186/10,
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HomeJuly
21 Department,
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20Mehmet
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In relation
Handbook
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by such2008, p
Member
ara. 21;[1997]
171/95 ECJ, ECR C- I-00329, Recep Tetik v. Land Berlin, 23 January 1997, para. 48
; Council
1955 Convention
of Europeon Establishment, Art. 2: [] each Contracting Party [which include
s Turkey
other EU countries]
and many shall, to the extent permitted by its economic and social co
nditions, or
prolonged facilitate
permanenttheresidence in its territory of nationals of the other Part
82
81 ECJ,
ies.
CJEU,C-337/07
C-451/11, [2008]
Natthaya
ECR I-10323,
D lger v.Altun
Wetteraukreis,
v. Stadt B19blingen,
July 2012.
18 December 2008, p
ara.CJEU,
83 50. Joined Cases C-7/10 and C-9/10, Staatssecretaris van Justitie v. Tayfun
29Kahveci
March 2012.
and Osman Inan,
UnderThird-country
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or join the EEA, Swiss or EU citizen.84 This can only be refused for reasons of
policy,
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public
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status. Under Article 10 (1) of the Free Movement Directive (2004/38/EC), the re
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Movement
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5 ECtHR,
and 6),Directive
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and the o(Directive
Free
Mendizabal2004/38/EC,
v. France,OJ No.2004
51431/99,
L 158/77).
17 January 2006.
citizenship,
Handbook
Under EU law,
on European
which
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thus
lawalso
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of
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concept
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Loss have
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States.86
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Example:
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C-369/90 [1009] I-4239, Micheletti and others v. Delegaci n del G
obierno en C-369/90, 7 July 1992; ECJ, C-192/99 [2001] ECR I-01237, The Queen v.
Cantabria,
the
87Secretary
CJEU,
Home C-135/08
Department,
of State[2010]
for
ex parte:
ECR I-01449,
Manjit Rottmann
Kaur, 20 v.February
Freistaat2001.Bayern, 2 March 2010
, paras.
88 European
41-45.
Commission of Human Rights, Family K. and W. v. the Netherlands (dec
1.),July
No.1985.
11278/84,
Article 8 of the Convention because of the impact that such a denial may have on
Example:
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andsocial
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thatSliv
enko48321/99,
No. v. Latvia9[GC],
October 2003; ECtHR, Kuduzovi. v. Slovenia (dec.), No. 60723/00,
9017ECtHR,
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2005. v. Malta, No. 53124/09, 11 October 2011.
Documentation
Handbook
Key pointson European
oftenlawallows
relating
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to asylum,to access
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documents
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with the police under both EU and ECHR law. EU law and the ECHR may require stat
peration
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hdocumentation
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nationals
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status after lega
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lly Turkishincitizens
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stringent
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as the
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Additional Protocol
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r Neither
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may engage
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To accesscase
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3Issues
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(2004/38/EC),
CJEU,
Turkish
duties)
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ECJ,
nationals
Third-country
higher
protection
This
Introduction
Issueschapter
Movement
C-349/06,
C-348/09,
C-300/11,
degree
covered
ofwith
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94 CJEU, Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 [2010] ECR I-014
93, Others
and Salahadinv. Bundesrepublik
Abdulla Deutschland, 2 March 2010, para. 52; CJEU, C-31/09
[2010] Bolbol
Nawras ECR I-05539,
v. Bev ndorl si s llampolg rs gi Hivata, 17 June 2010, para. 37; CJEU, Join
dCases C-57/09 and C-101/09 [2010] ECR I-10979, Bundesrepublik Deutschland v. B.
andDirective
95 D., para.2011/95/EU,
77. OJ 2011 L 337/9.
Article 19on(2)
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96 See explanations relating to the EU Charter of Fundamental Rights (2007/C 303
/02);
v. Austria,
ECtHR,No.Ahmed
25964/94, 17 December 1996; ECtHR, Soering v. the United Kingdom
7, July
97 No.
ECtHR,
14038/88,
1989.
Salah Sheekh v. the Netherlands, No. 1948/04, 11 January 2007, para. 1
35; United
the ECtHR, Kingdom,
Soering v.No. 14038/88, 7 July 1989; ECtHR, Vilvarajah and Others v. t
he ECtHR,
Nos.
98 United
13163/87,
Kingdom,
Saadi 13164/87,
v. Italy [GC],
13165/87,
No. 37201/06,
13447/87 and 28 February
13448/87,2008;
30 October
ECtHR,1991.
Mannai v.
Italy,
27 MarchNo.2012.
9961/10,
there were substantial grounds for believing that there was a real risk that the
applicant would be subjected to treatment contrary to Article 3 of the ECHR if h
ewere to beIndeported
Example: Abdulle v.to Minister
Tunisia. of Justice,99 the Maltese Civil Court held that
deportation
Maltas
and tortured,ofviolated
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identity for the purposes of determining membership of a particular social group
gender
.99 Malta, Abdul Hakim Hassan Abdulle Et v. Ministry tal-Gustizzja u Intern Et, Q
orti Civili PrimAwla
(Gurisdizzjoni Kostituzzjonali), No. 56/2007, 29 November 2011.
Persecution
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r100 CJEU, Joined Cases C-71/11 and C-99/11 [2012], Bundesrepublik Deutschland v.
5YSeptember
101 and
CJEU,
Z, Joined
2012,Cases
paras.C-199/12,
72, 80. C-200/12 and C-201/12, Minister voor Immigratie
Minister
en Asielvoorv. X,Immigratie
Y and Z v.en Asiel, 7 November 2013.
degrading treatment or punishment (Article 15 (b)) and serious and individual th
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bacar
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103
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inhuman orondegrading
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106 ECtHR, H. and B. v. the United Kingdom, Nos. 70073/10 and 44539/11, 9 April
10.
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91. Sheekh v. the Netherlands, No. 1948/04, 11 January 2007.
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334040,
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past persecution,
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R.C. v. 9and
41827/07, March
Matsiukhin
2010, para.
v. Sweden
50. (dec.), No. 31260/04, 21 June 20
05; ECtHR,v.Singh
Akaziebie
123 Collins
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23944/05,No.8 33210/11,
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Handbook European
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ual
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dless
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ute,
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124
ill-treated.
125
126 ECtHR, R.C.
I.substantial
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and
Sweden,
Sweden,
OthersNo.
reasons
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ificate);
v. Sweden,ECtHR,
No. 23505/09,
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ted ECtHR,
Nos.
127
128 Kingdom,
8319/07Sufi
R.C.
andand
v.11449/07,
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Elmi v.No.
28theJune
41827/07,
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2011.Kingdom,
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2010.8319/07 and 11449/07, 28 Ju
ne 2011,
129
234.
130 ECtHR,paras.
Saadiv.
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v.the
Italy
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28 February
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ed
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131 ECtHR,Reasonable
Sufi and Elmi
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prevent
Unitedpersecution
Kingdom, Nos.are 8319/07
required,andwhich
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ne 2011.
132 ECtHR, Muminov v. Russia, No. 42502/06, 11 December 2008.
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The
receiving
manifestly
ECtHR state
has
ill-founded.
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obviateupon
thetorisk
examine
of ill-treatment
whether diplomatic
a personassurances
would otherwise
by the b
eexposed to on return. In cases where the receiving state has provided assurances
,135 ECtHR,
136 CJEU, C-364/11,
Hida v. Denmark
Abed El(dec.),
Karem ElNo.Kott
38025/02,
and Others,
19 February
19 December
2004.2012.
those assurances,
Handbook on Europeanin themselves,
law relatingare to not
asylum,
sufficient
borderstoandensuring
immigration
adequate protect
against the risk of ill-treatment. There is an obligation to examine whether pra
ion
application
ctical
will be protected
of assurances
against the
provides
risk ofa sufficient
ill-treatment.
guarantee
The weight
that the
given
individual
to assuran
by the receiving state in each case depends on the circumstances prevailing at t
ces
material
he
The preliminary
time. question for the ECtHR is whether the general human rights situa
in the receiving state excludes accepting any assurances. It will only be in rar
tion
ecases that the general situation in a country will mean that no weight at all is
togiven
assurances. More usually the Court will first assess the quality of assurance
s given
and, secondly, whether, in light of the receiving states practices, they are reli
able. so,
doing In the Court will also consider various factors outlined in recent case l
3.1.5.both
aw.137
Under Internal
EU andrelocation
ECHR law, states may conclude that an individual at risk in hi
s orhome area may be safe in another part of his or her home country and therefo
her
not inEUneed
re
Under law,ofthe
international
possibilityprotection.
of an internal protection has been codified in Art
iclethe8the
of
Under Qualification
ECHR, a proposed
Directive.
internal relocation by the state must undergo a detai
assessment from the point of return to the destination site. This includes consi
led
if the point of return is safe, if the route contains roadblocks or if certain a
dering
reas for
safe are the individual to pass to reach the destination site. An assessment of
circumstances
individual
Example: In Sufi
is and
alsoElmi
required.
v. the United Kingdom,138 the ECtHR held that Article
3of the
the
avoidpossibility
exposure
ECHR, intoof
principle,
ainternal
real risk
did
relocation,
ofnotill-treatment
preclude
provided
thewhen
member
thattravelling
the
states
returnee
from
to, gaining
relyingsafely
could on
admit
to and
tance
137 ECtHR,
settling
Othmanin(Abu
the Qatada)
area in v. question.
the United
In that
Kingdom,
case,No.
the8139/09,
Court considered
17 January 20
12, para.
ECtHR, Ismoilov
189; and Others v. Russia, No. 2947/06, 24 April 2008, para. 127; ECt
HR, 37201/06,
No. Saadi v. Italy
28 February
[GC], 2008; ECtHR, Ryabikin v. Russia, No. 8320/04, 19 June
138 ECtHR, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 Ju
2008.
ne 2011.
wouldthere
that not necessarily
may be partsbeofatsouthern
a real riskand ofcentral
ill-treatment
Somalia where
solelya on
returnee
account of th
esituation of general violence. If the returnees had to travel to or through an a
under the control of al-Shabaab, they would likely be exposed to a risk of treat
rea
contrary
ment
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Shabaabs
reasons
breach
3.1.6.
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reasons,
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ofthe
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experience
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applicants
return
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for the
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exposed
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thatto
applicant
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protection
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her provided such country is considered safe and that certain safeguard
s are
respected. This section explains when this is possible, whereas the applicable p
safeguards
rocedural
Section
Two
safe situations
if it9.1.fulfils
are presume
described
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in requirements
of Section
in another
4.2 andcountry.
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unaccompanied
Athe
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ve
safe third country, have the possibility to seek protection and, if found to be
in international
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important
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country.
states
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a returnee
Regulation
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not face
n(EU) No. 604/2013),
Liechtenstein, Norwaynamely
and Switzerland
the 28 EU Member
(see Section
States 4.2).140
as well asTheIceland,
Dublin Regulatio
ninvolves an allocation of responsibility to Member States for examining applicat
for international protection; there is a hierarchy of criteria to allocate respo
ions
for examining applications lodged by individuals in one EU Member State and then
nsibility
travelled to another. There is a rebuttable presumption that all states that app
ly the
Dublin
and
139
140 theRegulation
See
Regulation
ECHR.ECtHR,
also (EU)areNo.
M.Y.H.
safe
604/2013,
andSweden,
v. comply
26 June
with2013,
No. 50859/10,
the EUOJCharter
2013
27 June
L 180/31.
of2013.
Fundamental Rights
Among theonvarious
Handbook European criteria
law relating
listed in to the
asylum,
Dublinborders
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and immigration
the state responsibl
e for
allowing the applicant to enter the common area is typically determined to be th
estate responsible for reviewing the application (Chapter III of the Dublin Regul
To determine
ation).
taken upon arrival
throughandwhich entered
stateinto
a person
the Eurodac
entered,database
his or(see her Eurodac
fingerprints
Regulation
are
,(EU) No. 603/2013), which all states applying the Dublin Regulation can access.
example, if an asylum seeker arrives in country A and lodges an application for
For
and has his fingerprints taken but then travels to country B, the fingerprints i
asylum
ncountry B will be matched with those taken in country A; country B would then ha
to apply the Dublin criteria to determine whether it or country A has responsibi
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for the
lity
States
have systemic
must
examination
ensure
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of theindividuals
application
in their asylum
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returned
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certain
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leading to serious violations of the EU Charter of Fundamental Rights, this may
es
to states having to examine an application, even if it is not their responsibili
lead
ty under
so
Example:
to do In theN.S.
Dublin andRegulation.
M.E. joined cases,141 the CJEU gave a preliminary ruling on
application
whether underunder certainthe sovereignty
circumstancesclausea state
included
may beinobliged
Articleto3examine
(2) of the
an Dublin
another
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the
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athe
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breach
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EUshows
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with
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according
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and
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when
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clarified
rights
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cannot
conditions
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criteria,
that
be
principles
their
transfer
of
unaware
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discretionary
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regulation
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torture).
recognised
amount
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asylum
systemic
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when
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must
seeker
bylies
deficiencies
the
also
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EUobli
gesidentifying
if
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takes
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141 another
Member
application
CJEU,
an unreasonable
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toState
accordance
examine
amount
Member
C-411/10
is responsible
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M.E.
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ality
21 December
and Law2011.
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credible thehuman
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rights
the ECtHR
The
reporting
removing
will consider,
instate
orderhas among
to aassess
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various
the verify
foreseeable
elements
the risk,
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before
particula
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rly
ought
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living
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procedure
found
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seekers
3.1.7.
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liable
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toGreece
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Belgium
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12
the
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knew,
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risks.
3reporting,
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refoulement.
for
17 country
or
Convention,
inaought
of Greece,142
Greece
Dublin
to
the
protection
there
degrading
show
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totransfer
had
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have
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have
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those
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rthe exclusion clauses are not considered refugees or persons entitled to subsidi
Example: In B and D,143 the CJEU provided guidance on how to apply the exclusion
protection.
ary
142
143
clauses.
ECtHR,The
CJEU, Joined
M.S.S.
factCases
thatBelgium
v. the person
C-57/09 andandGreece
concerned
C-101/09,[GC],inBundesrepublik
No.
this30696/09,
case wasDeutschland
21a January
member 2011.v. B and
D, 9 November 2010.
organisation
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of an organisation
on European
did notandautomatically
lawactively
relatingsupported
toconstitute
asylum,
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serious
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immigration
waged
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sacts as a serious non-political crime or acts contrary to the purposes and principl
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acts
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whether
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crimes.
12 tothe
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ent
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of
e 3 ECHR.
the of Consequently, the applicants conduct, however undesirable or dangerous,
Example:
prohibition
cannot beIntaken
Saadi
of torture
into
v. Italy,144
account.
under Article
the Court
3. The
reconfirmed
applicantthe wasabsolute
prosecutednature
in Italy
of thefo
rparticipation
The ECtHR foundinthat international
he would run terrorism
a real risk
and ordered
of beingtosubjected
be deportedto treatment
to Tunisia.in
breach of Article 3 if returned to Tunisia. His conduct and the severity of char
againstEUCessation
ges
3.1.8.
Under him
law,were
whenof
irrelevant
the
international
risk situation
to theprotection
assessment
in a country
of Article
has improved,
3. Articles 11 and
of16the Qualification Directive allow for international protection to come to an
mirroring
end,
144 ECtHR,theSaadicessation
v. Italyclauses
[GC], No.
under37201/06,
Article 28 1 CFebruary
of the 19512008,Geneva
para.Convention.
138; ECtHR
, Ismoilov
Russia, No.and2947/06,
Others24v.April 2008, para. 127; ECtHR, Ryabikin v. Russia, No. 83
20/04, 19 June 2008.
of refugeeThestatus
Example: case of certain
SalahadinIraqi
Abdulla
nationals
and Others145
to whom Germany
concernedhadthegranted
cessationrefugee
in
of
status.
theirThe
Article country
11basis
of the
ofoforigin
the cessation
Qualification
had improved.
of refugee
Directive,
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status
refugee
heldwas
status
that,
thatceases
for
thethe
conditions
topurposes
exist whe
ntherestatus
the
was
persecuted.
refugees
protection
they,
prosecution
must
refugee
The
subject
third
granted,
also
among
hasto
status.
country
individual
be
been
have
of
very
For
other
and
norefugees
accessible
aserious
longer
assessing
taken
punishment
significant
concerned
things,
situation
reasonable
exists
and
tooperate
harm
abeneficiaries
ofchange
the
and
and
in
and
acts
while
national
the
non-temporary
steps
the
anofpast
constituting
basis
verifying
effective
person
circumstances,
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will
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fear,
has
not
change
whether
legal
persecution.
nocease
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if
for
other
states
system
he
ofprotection
persecution
which
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in reason
actor
she
case
must
for
theceases
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ofrefugee
to
consider
or
and
protection
who
change
fear
actors
detection,
that
to
have
inhave
status
being
the
circum
of
been
if they
stances,
the protection
can invokeof their
compelling
countryreasons
of origin
for (Qualification
refusing to avail Directive,
themselves Articles
of 11
and 16).
Under the ECHR, there are no specific cessation clauses. Instead, the ECtHR will
states
examine past
the foreseeable
conditions mayconsequences
be relevant of for
an intended
sheddingremoval.
light onThe itsreceiving
current situatio
but it is the present conditions that are relevant when assessing the risk.146 T
n,
o assess
the situation, the ECtHR relies on relevant government reports, information prov
by theface
ided
Human
Example:
would
various
hostilities.
Rights
UNHCR
times
TheonThe
and
Watch
ECtHR
their
throughout
various
ECtHR
orreturn
has Amnesty
made
considered
international
thetovarious
long
International.
Sri Lanka.
conflict
the assessments
evolving
non-governmental
Such
andassessments
also
overall
of thefollowing
risk
conditions
organisations,
have
young
the
beenin
Tamil
cessation
made
thesuch
men
at of
country
as
145 CJEU, Joined Cases C-175/08, C-176/08, C-178/08, C-179/08 [2010] I-01493, Sa
lahadin
Others
146 ECtHR,
v.Abdulla
Bundesrepublik
Tomicandv. the United
Deutschland,
Kindgom2(dec.),
March 2010.
No. 17837/03, 14 October 2003; EC
tHR, HidaNo.v.38025/02,
(dec.), Denmark 19 February 2004.
Underexamined
Handbook
and
individuals
3.2. Collective
bothonEUat
European
the
and
the
expulsion
country-related
ECHR
proposed
lawlaw,
relating
time of
collective
risk
toremoval.147
asylum,
factors
expulsions
borders
thatare
could
and
prohibited.
immigration
affect theA collective
particular e
describes
xpulsion
as a group,anyandmeasure
where this
that decision
compels individuals
has not beentobased
leaveona aterritory
reasonableor and
country
objec
examination
tive
Under EU law,ofcollective
each individuals
expulsions particular
are at odds
case.148
with Article 78 of the TFEU, whi
requires
ch
are
Under
Example:
of
Court
Roma
prohibited
theasylum
was the
In
ECHR,
not.onka
asylum
satisfied
byArticle
seekers
Article
v. acquis
Belgium,149
violated
4 of
that
19toindividual
ofbeArticle
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in EU
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Charter
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treaties,
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the
circumstances
sonal
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of each
deportation,
member of the political
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authorities
In particular,
announcedprior
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implement would All
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andHirsi
In time,
theinasylum
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and ofOthers
terms.
the had
expulsion
Moreover,
v. not been
Italy,150
orders
there
completed.
thewas
and
Italian
reasons
also a lack
authorities
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access
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to
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ting
Protocol No. 4.ofThea boat
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seekers of
breached
expulsion
Article
also4applied
of to
147
measures
ECtHR,taken
Vilvarajah
on the and
highOthers
seas. v.ThetheECtHR
United
looked
Kingdom,
at theNos.
international
13163/87, 13164/87,
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and
13165/87,
13448/87,13447/87
30 October 1991; ECtHR, NA. v. the United Kingdom, No. 25904/07, 1
7 July
148 For2008.
more information, see ECtHR, Collective Expulsions, Factsheet, June 2012,
available
coe.int
149 ECtHR,
under
at:
.onka
www.echr.
Press/Factsheets/Expulsion.
v. Belgium, No. 51564/99, 5 February 2002; see also ECtHR, M.A.
No.
v. 41872/10,
Cyprus, 23 July 2013, where the ECtHR did not find a violation of Article
4 ofECtHR,
150 ProtocolHirsi
No.Jamaa
4. and Others v. Italy [GC], No. 27765/09, 23 February 2012.
and flagand
visions ships,
EU lawincluding
concerningin international
sea interventionswatersandwhere
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dutiesstate
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sdiction
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about
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collective
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avelling
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also contrary to the ESC and its Article 19 (8) on saf
against expulsion.
eguards
Example: In its decision in European Roma and Travellers Forum v. France,152 the
ECSR held that the administrative decisions, during the period under considerati
ordering
on,
where
were
Roma,
community,
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decisions
the the Roma
found with
151
152
Article
ECtHR,
ECSR,19European
(8) of the
Sultani v. France,
Roma ESC.
and Travellers
No. 45223/05,
Forum20v.September
France, Complaint
2007. No. 64/2011, m
erits, 24 January 2012.
Both EU
Handbook
3.3.
human Barriers
rights
law
on and
European
grounds
tothe
expulsion
ECHR
law recognise
relating
based ontothat
other
asylum,
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may be barriers
and immigration
to removal based o
nhuman rights grounds which are not absolute, but where a balance has to be struc
kbetween the public interests and the interests of the individual concerned. The
common would be the right to private or family life, which may include considera
most
for a persons health (including physical and moral integrity), the best interests
tions
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of children,
EU law,the return
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unitytoorbespecific
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and thetheprinciple
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Under ECHR, states
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have the right,(Articleas a matter
5 of of
thewell-established
Return Directive). internati
law and subject to their treaty obligations, including the ECHR, to control the
onal
residence and expulsion of aliens. There is extensive case law on the circumstan
entry,
in which qualified rights may act as a barrier to removal. Qualified rights are
ces
rights with built-in qualifications, such as Articles 8-11 of the ECHR. The righ
those
t to
respect for private and family life in Article 8 of the ECHR is often invoked as
against
a shieldexpulsion in cases not involving the risk of inhuman or degrading treatm
contrary to Article 3. Section 5.2 will discuss the respect afforded to these Ar
ent
ticle 8oftoArticle
Barriers
rights.
breach removal5 or
may6also
of thebe ECHR
considered
in theinreceiving
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if a pers
on risks
being subjected to arbitrary detention without being brought to trial; he or she
being
risksimprisoned for a substantial period after being convicted at a flagrantly
trial; or he or she risks a flagrant denial of justice when awaiting trial. The
unfair
burden
applicants
Example:
whether
risk
153 ECtHR,
ofofathe
Inflagrant
proof
Othman
Mamatkulov
applicants
is(Abu
high.153
denial
and
Qatada)
extradition
ofAskarov
justice
v. thev.toinUnited
Turkey,154
Uzbekistan
breachKingdom,
ofthe
resulted
Article
ECtHR
No. 8139/09,
6in
considered
oftheir
the 17
ECHR.
facing
January
a real
20
12, ECtHR,
154 para. 233.Mamatkulov and Askarov v. Turkey [GC], Nos. 46827/99 and 46951/99, 4
February 2005.
concluded
under
on
likely
Example:
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basis
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United
torture
the United
Kingdom,155
could
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Kingdom
not persons
theHouse
be deported
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ECtHRof
would
found,
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Jordan
righ
such as Article 8 of the ECHR that strikes at the essence of the right in questi
ts
there the
on,
Under is noESC,needArticle
to assess19 (8)
proportionality.156
prohibits the expulsion of migrant workers lawfull
yresiding within the territory of a state party, except where they endanger natio
security
nal
The ECSR has
or offend
notablyagainst
held that
public
if ainterest
state has
or conferred
morality. the right of residence o
n aresidence
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affect
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of the migrant
rights
workers
of residence
own right
f
as long nationals
or
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members
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in aofstate
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either legally or with the authorities tacit acceptance of their irregular status
ime,
ofinhigher
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a3.4.
from
Under
the
view
Third-country
removal
foreign
EU
host
degree
law, countrys
nationals
there
of protection
nationals
areneeds,
from who
certain
should
deportation.157
categories
enjoy
be covered
of third-country
by the rules nationals,
that alreadyother
protect
tha
nthose in need of international protection, who enjoy a higher degree of protecti
fromECtHR,
on
nationals
right
155 removal.
to freedom
who
Othman
These
are of(Abu
family
include
movement;
Qatada)
members
long-term
and
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Turkish
EU/EEA
residence
United
nationals.
nationals
Kingdom,
statuswho
No.
holders;
have
8139/09,
exercised
third-country
17 January
their 20
156 The United Kingdom, EM (Lebanon) v. Secretary of State For The Home Departme
12.
nt [2008]
157 ECSR, Conclusions
UKHL 64. 2011, General Introduction, January 2012, statement of int
erpretation on Art. 19 (8).
expel aLong-term
Handbook
3.4.1.
Long-term long-term
onresidents
European
residents
resident
enjoy
law relating
enhanced
must betobased
protection
asylum,
on conduct
borders
againstthat
and
expulsion.
immigration
constitutes
A decision
an actual
to a
sufficiently
nd
3.4.2.
and
Individuals
Swiss
Third-country
nationals
ofserious
any nationality
threat tofamily
national public
who aremembers
policy
familyof
ormembers
publicofsecurity.158
EEA EEA nationals, includin
gEU citizens but only in so far as they have exercised free movement rights, have
right
a to residence which derives from EU free movement provisions. Under the Fre
eMovement Directive
relations enjoy a higher
(2004/38/EC),
protection
third-country
from expulsionnationals
compared
whowith
haveother
such categorie
family
sof third-country nationals. According to Article 28 of the directive, they can o
nly be on grounds of public policy or public security.159 In the case of perma
expelled
residents, the grounds for expulsion must reach the level of serious grounds of p
nent
policy or public security. As stated in Article 27 (2) of the directive, these me
ublic
must comply
asures
personal conduct
with of
thethe
principle
individual
of proportionality,
concerned and thebeindividual
based exclusively
must alsoonrepres
the
a genuine, present and sufficiently serious threat affecting one of the fundament
ent
interests of society.160 States must notify their decisions to the person concern
al
including
ed,
Example:
dealt
158
159 Council
In with
theInthe
the
absence
ZZgrounds
Directive
v. Secretary
meaning
of cases
onofwhich
2003/109/EC,
Article
of State
concerning
they30OJare
for
(2)
2003
third-country
based
theLthe
of Home
016/44,
(Article
Free
Department,161
Movement
Art.
nationals,
30).12. Directive
see
thethe
CJEUfollowin
which
g cases concerning
citizens, in which the
EU Court has interpreted the notion of imperative grounds of
publicArt.
under security
28 (3): CJEU, C-348/09, P. I. v. Oberb rgermeisterin der Stadt Remschei
d, 22 May
paras. 2035;
2012,CJEU, C-145/09 [2010] ECR I-11979, Land Baden-W rttemberg v. Panagioti
s Tsakouridis,
23
160 November
For case2010,law onparas.
Art. 27
3956.
of Directive 2004/38/EC, with regard to the notion o
f public
CJEU, C-434/10,
policy,
Petar
seeAladzhov v. Zamestnik director na Stolichna direktsia na v
atreshnite raboti
Ministerstvo na vatreshnite
kam raboti, 17 November 2011; CJEU, C-430/10, Hristo Gay
darov
na Glavna
v. Director
direktsia Ohranitelna politsia pri Ministerstvo na vatreshnite raboti, 1
7 November
With regard2011.
to the notion of a genuine present and sufficiently serious threat af
fecting one interests
fundamental of the of society, see ECJ, Joined Cases C-482/01 and C-493/01, [2
004] ECR Orfanopoulos
Georgios I-05257, and Others and Raffaele Oliveri v. Land Baden-W rttemberg, 2
9 April
paras.
161 CJEU,
65-71.
2004,
ZZ v. Secretary of State for the Home Department, Case C-300/11, 4 Jun
e 2013.
which a decision
requires the authorities
to refusetothe
inform
righttheofpersons
residenceconcerned
is based,of unless
the grounds
this is
on contr
to the interests
ary
refrain from disclosing
of statecertain
security.
information
In determining
on grounds
whether
of state
the authorities
security, thecanCJ
noted that there is a need to balance state security with the requirements of th
EU
eright to effective judicial protection stemming from Article 47 of the Charter o
fFundamental Rights. It concluded, that the national court reviewing the authorit
choice
ies
is based,
notmust
to disclose,
have jurisdiction
preciselytoandensure
in full,
thatthe
thegrounds
lack ofondisclosure
which a refusal
is limite
d tothe
what
of
which
For Swiss
istakes
essence
strictly
nationals,
dueofaccount
necessary.
thethe
grounds
oflegal
the
Inonbasis
anywhich
necessary
event,
fortheprotection
confidentially
the
decision
personfrom
was
concerned
based
of
expulsion
theinevidence.
must
a is
manner
befound
informed
in A
rticle
of
States
Annexand
5 I the
to the
Swiss
Agreement
Confederation
betweenonthetheEuropean
free movement
Communityof persons.
and its Member
According to
that provision, the rights granted under the agreement may only be restricted on
There
groundsisofprotection
public order,
for family
publicmembers
securityinorthepublic
eventhealth.162
of death, divorce or departu
of the EEA national who exercised free movement rights (Articles 12 and 13 of th
re
eFree Movement Directive). In specific situations, third-country nationals may al
so be
protected against expulsion by virtue of Article 20 of the TFEU (see Section 5.2
3.4.3.EUTurkish
).163
Under law, Article
nationals
14 (1) of Association Council Decision 1/80 provides that
nationalsofexercising
Turkish
grounds public policy,
rightspublic
undersecurity
the Ankara or public
Agreement
health.
can only
The Court
be expelled
has emphas
on
that the same criteria as those used for EEA nationals should apply when conside
ised
a proposed expulsion of Turkish citizens who have established and secured reside
ring
in one
nce
162 Agreement
of the between
EU MembertheStates.
European
EU Community
law precludes and its
the Member
expulsion
States,
of a on
Turkish
the one p
art, and the Swiss
Confederation, on the other, on the free movement of persons, signed in Luxembou
rg onFor21information
entered
163 into
Juneforce
1999,onon1aJune
case2002,
with protection
OJ 2002 L 114/6.
granted, see CJEU, C-34/09, [2011]
Zambrano
ECR I-01177,
v. Office
Ruiz national de lemploi (ONEm), 8 March 2011. For information on a
protection
case wherewas not granted, see CJEU, C-256/11, Murat Dereci and Others v. Bunde
Inneres, 15 November
sministerium f r 2011 and CJEU, C-87/12, Ymeraga and Others v. Ministre du T
ravail,
de lImmigration,
de lEmploi8 May
et 2013; see also CJEU, C-40/11, Iida v. Stadt Ulm, 8 Novembe
r 2012.
national when
Handbook on European
that expulsion
law relatingis exclusively
to asylum,based
borders
on general
and immigration
preventive grounds,
such as deterring other foreign nationals, or when it automatically follows a cr
conviction; according to well-established case law, derogations from the fundame
iminal
principle ofstrictly
ntal
interpreted freedom soof that
movement
theirforscope
persons,
cannotincluding
be unilaterally
public policy,
determinedmustbybeth
e EU States.164
Member
Example: In Nazli,165 the ECJ found that a Turkish national could not be expelle
das a an
predicated
drew measure
analogy
onofthewith
general
samethecriteria
deterrence
principlesas the
tolaid
other
expulsion
downaliens,
in the
of EEA
but
fieldtheofexpulsion
nationals.
freedomTheof
must
Court
movemen
be
tfor workers
threat to public
who areorder
nationals
constitutedof a by
Member
the use
State.
of drugs,
Withouttheminimising
Court concluded,
the fro
mthose principles, that the expulsion, following a criminal conviction, of a Turk
national
ish
can only be
whojustified
enjoys a where
right thegranted
personal
by theconduct
decisionof the
of theperson
Association
concernedCouncil
is liab
to the
le
prejudicial
Example:
on giverights
reasons
In Polat,166
toconferred
the
to public
consider
thetoCourt
interest
Turkish
thatspecified
henationals,
inorthe
shethat
host
willtaken
Member
measures
commit
onState.
other
grounds
authorising
serious
of public
limitations
offences
policy,
public security or public health under Article 14 of the Association Council, ar
e tobased exclusively on the personal conduct of the individual concerned. Severa
be
lcriminal
taking
constitutes
of
164 society,
ECJ,such
Case
convictions
ameasures
genuine[1985]
circumstance
36/75 inandthesufficiently
only inECR
that
host
soI-01219,
far
is
Member
for
as the
serious
State
Roland
behaviour
national
may
threat
Rutili
constitute
court
ofv.
tothe
atofundamental
Ministre
person
grounds
ascertain.
deconcerned
forinterest
lint rieur, 28
ECJ,
October
Joined
1985,Cases
para.
C-482/01
27; and C-493/01 [2003] ECR I-05257, Georgios Orfanopoulo
165
s and
Raffaele
ECJ,
Others
C-340/97
Oliveri
and v.[2000]
Land ECR
Baden-W
I-00957,
rttemberg,
mer Nazli,
11 September
Caglar 2003,
Nazli para.
and Melike
67. Nazli v.
10Stadt
166 February
ECJ,N rnberg,
C-349/06
2000. [2007] ECR I-08167, Murat Polat v. Stadt R sselsheim, 4 October
2007.
There
Key pointsare absolute, near absolute and non-absolute barriers to removal (Introduc
toProhibition
tion this chapter).of ill-treatment under Article 3 of the ECHR is absolute. Persons wh
ao real face risk of treatment contrary to Article 3 in their country of destination m
ustreturned,
be not irrespective of their behaviour or the gravity of charges against t
The authorities must assess this risk independently of whether the individual ma
hem.
ybe excluded from protection under the Qualification Directive or the 1951 Geneva
Convention
return The non-refoulement
of people
(see Sections
to situations
principle
3.1.2 where
and
under
3.1.7).
their
the 1951
lifeGeneva
or freedom
Convention
would be
prohibits
threatened
the o
naccount of their race, religion, nationality, membership of a particular social
group
political
or Under
under
orEUthe
opinion
law,
Return
any(see
action
Directive,
Section
takenincluding
3.1).
by EU Member
underStates
the Dublin
underRegulation,
the EU asylummustacquis
be in
Section
conformity
In assessing
3.1).
withwhether
the rightthere
to is
asylum
a real
andrisk,
the principle
the ECtHRoffocuses
non-refoulement
on the foreseeable
(see
of the
consequences
the personal
removalcircumstances
of the personoftothetheindividual
country ofasproposed
well as the
return,
general
looking
conditions
at i
n Under
country
the the (seeECHR,
Sections
the asylum
3.1.3 and
seeker
3.3).needs, in principle, to corroborate his or her
claim, and it is frequently necessary to give them the benefit of the doubt when
assessing the credibility of their statements. However, where substantiation is
or when information
lacking
veracity of the asylum is seekers
presentedsubmissions,
which gives the
strong
individual
reason tomust
question
providethea satisfa
explanation
ctory
An individualfor may
thisrisk
(seetreatment
Section 3.1.3).
prohibited by EU law or the ECHR in the receivi
state, even if this does not always emanate from the receiving state itself but
ng
from non-state actors, an illness or humanitarian conditions in that country (se
rather
eSection
An individual,
3.1.2). who would risk treatment prohibited by EU law or the ECHR if retu
to his home area in the receiving country, may be safe in another part of the co
rned
(internal protection) (see Section 3.1.5). Alternatively, the receiving state ma
untry
y be to protect him against such a risk (sufficiency of protection). In these ca
able
ses, the state may conclude that he or she is not in need of international prot
expelling
(see
ection
BothSection
Under EUEUlaw
law,
3.1.4).
andqualifying
the ECHR third-country
prohibit collective
national
expulsions
family members
(see Section
of EEA3.2).
nationals
only be expelled on grounds of public policy, or public security. These derogati
can
are to be interpreted strictly and their assessment must be based exclusively on
ons
personal
the conduct of the individual involved (see Section 3.4.2).
To accesscase
Handbook
Further onfurther
European
law and
casereading:
lawlaw,
relating
pleasetoconsult
asylum,theborders
guidelines
and immigration
on page 249 of this ha
ndbook.
4Issues
and
CoE
(2013/32/EU)
EU
Article
remedy
Right
ECHR,
effective
v.
needs
the
Suspensive
2007
domestic
claims
Italy,
effect
against
operating
Asylum
(2013/32/EU),
Accelerated
procedures
(procedural
accelerated
604/2013
CJEU,
Dublin
Greece,
Dublin
degrading
ECtHR,
2012
ECHR
Procedural
Charter
Turkey,
legal
return
claim)
(suspensive
claims)
Article
to
C-411/10,
C-245/11,
procedures
and
Abdolkhani
in
Hirsi
2012
of
Procedures
I.M.
Regulation,
proceduresECtHR,
De
covered
47remedy
military
2011
procedure
anSouza
deal
support
remedy
remedy)
transit
adomestic
treatment)
cases
of
(right
to
2009
effectECtHR,
safeguards
(absence
push
v.
safeguards
asylum
Jamaa
(transfer
aFundamental
13
with
Article
France,
fair
(domestic
for
N.S.,
K.,
Ribeiro
(right
personnel
effect
inraising
to
and
zone)
back
Directive
the
and
remedies
procedures)
Regulation
asylum
2012
asylum
an
trial)
ofKarimnia
46
31
2011
substance
Others
at
2012
for
under
effective
to
Gebremedhin
of
suspensive
M.S.S.
v.
in
(5)
(8)
Rights,
remedy
sea)
anthe
risk
France
Article
(EU)
v.v.
(9)
ofofBelgium
8v. France,
and
Introduction
Handbook
CoE
ECHR,
(procedural
expulsion
Bulgaria,
safeguards
EU
proceedings)
remedy
effective
ECtHR,
Greece,
Asylum
scheme)
(2013/32/EU),
asylum
on
context
procedures,
Return
Article
Legal
return
Committee
4Twenty
This
Issues
May
Charter
human
chapter
Protocol
assistance
2005
procedureECHR,
C.G.
and
M.S.S.
Procedures
procedures
Directive
decisions
guidelines
covered
47rights
2011
of
13onof
2008
remedy)
in1and
of
(right
to
accelerated
(remedies)
European
safeguards
aliens)
(ineffective
Ministers,
looks
deportation
aFundamental
v.
Articles
July
7,protection
(lack
Others
fair
(2008/115/EC)
ECHR,
Belgium
(2008/115/EC),
in
Article
to
Directive
on2009
at law
of
an
trial)
forced
Article
the
relating
v.
Article
20
asylum
procedural
effective
Guidelines
relating
and
1inreturn,
Rights,
legal
procedure
22the
1313aid
to(right
tofor
(right
asylum,
totoananborders
examining applications
and immigration
for international
(asylum
touches
protection
procedures),
on proceduralasrequirements
well as procedures
imposed onforthose
expulsion
responsible
or return.
for making
It firstasylu
mor return
such
effective
decisions,
(see
decisions.
also
listing
Section
It the
then1.8
main
examines
onelements
remedies
the that
right
in the
are
to context
an effective
required offorborder
aremedy
remedy
management)
against
to be
.Finally, the chapter addresses issues concerning legal assistance. Chapter 7 wil
l focus
on
ECtHR
of thecase
claims,
way which
removal
law requires
raise
is performed.
substantive
states to exercise
grounds for
independent
fearing aandreal
rigorous
risk ofscrutiny
torture, i
or degradingDirective.
nhuman
elaborated
Procedures intreatment
the Courts or case
punishment
law haveuponbeen
return.
included
Someinofthe
therecast
requirements
Asylum
Throughout this chapter, the right to an effective remedy as included in Article
the
13 ECHR
of will be compared with the broader scope of the right to an effective re
as found
medy
4.1.
Under
asylumAsylum
both
procedures,
inEUprocedures
Article
law and
including
47the
of ECHR,
theremedies
EUasylum
Charter
capable
seekers
of Fundamental
ofmust
suspending
haveRights.
access
a removal
to effective
during the
on
The
appeals
common
EU Asylum
directive
process.
procedures
Procedures
applies for
to asylum
Directive
granting claims
and
(2013/32/EU)
withdrawing
made in thesets
international
territory
out veryofdetailed
protection.
EU Member
rules
States
bound by the directive, including at borders, in territorial waters and in trans
it zones
(Article
4.1.1.
decision
Under
procedures
EUInterview,
3).(Article
making
law, asylum
examination
6seekers
of the Asylum
and
procedure
their
Procedures
dependants
and initial
Directive;
need to see
havealso
accessSection
to asylum
2.2).
are
Theyallowed to remain in an EU Member State until a decision is made on their ap
(Articleapplications
plication
repeat 9). Exceptions
(Articles
to the9right
(2) and
to 41)
remain
andcan
in extradition
be made in case
cases.of Extraditio
certain
n under
the
its
Applicants
Council
own procedural
need
Framework
to be
safeguards.167
Decision
given a personal
2002/584/JHA
interview
on the(Articles
European14arrest
and 15warrant
of thehasAsyl
Procedures Directive).168 The interview must take place in a confidential settin
um
normallyout
g,
carried
surroundingwithout
by aapplication,
the the presence
person who isincluding
ofcompetent
the applicants
thetoapplicants
take into
familyaccount
cultural
members.
theorigin,
Itcircumstances
mustgender,
be se
orientation, gender identity or vulnerability. A corresponding written report ha
xual
s todrafted and made accessible to the applicant (Article 17). Member States must
be
167 ECJ, C-388/08 [2008] ECR I-08993, Criminal proceedings against Artur Leymann
1and
168December
See
Aleksei
also2008.
Pustovarov,
CJEU, C-277/11 [2012], M. M. v. Minister for Justice, Equality and
Law Reform,
Attorney General,
Ireland22and
November 2012.
responsible
Handbook
give the applicant
on authority
Europeananlawopportunity
takes
relating
a decision
to make
asylum,
on the
comments
borders
application
toand
theimmigration
report before
(Article 17 (3)).
the Acco
to Article 15 (3) (e) of the recast directive, interviews with children must be
rding
in a child
conducted
including
child mustthe
appropriate
be aright
primary
to amanner.
consideration
representative
Unaccompanied
(Article
(Article
minors
2525).
(6);
have
The
seespecific
best
alsointerests
Chapter
guarantees,
9).
of For
the
information
more
The
of
evidence
the
examination
Asylum
of an
onProcedures
legal
application
of anassistance,
application
Directive,
under the
see
must
asQualification
Section
complyas4.5.
well with
the Directive
the procedural
requirements(Article
forrequirements
assessing
4). It mus
t be
carried out individually, objectively and impartially using up-to-date informati
(Article 10 of the Asylum Procedures Directive and Article 4 of the Qualificatio
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should not automatically be rejected by the quasi-judicial or administrative bod
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ylum
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reasonable
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laid down in Chapter II of the directive must be respected during the examinatio
guarantees
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to delays
be followed.
in deciding a
claims.169 In assessing the effectiveness of examining first instance asylum cla
sylum
the Court has also considered other factors, such as the availability of interpr
ims,
access to legal aid and the existence of a reliable system of communication betw
eters,
the authorities and the asylum seekers.170 In terms of risk examination, Article
een
requires
where
13 there independent
exist substantial
and rigorous
grounds
scrutiny
for fearing
by a national
a real risk
authority
of being
of any
treated
claimi
n a
manner contrary to Article 3 (or Article 2) in the event of an applicants expulsi
4.1.2. Rightmust
on.171
Individuals to anhave
effective
access to
remedy
a practical and effective remedy against a refus
of asylum, a residence permit or for any other complaint alleging a breach of th
al
human rights. In this context, both EU law and the ECHR recognise that procedura
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lsafeguards need to be complied with in order for individual cases to be examined
effectively and speedily. To such end, detailed procedural requirements have bee
ndeveloped
Under EU law,
bothArticle
under EU47lawof the
and EU
by Charter
the ECtHR.
of Fundamental Rights provides a right
to an effective remedy and to a fair trial. The first paragraph of Article 47 of
169 ECtHR, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011; ECt
the
HR, For
Karimnia
170 Abdolkhani
more
v. Turkey,
information,
and No. 30471/08,
see ECtHR,22 M.S.S.
September
v. Belgium
2009. and Greece [GC], No. 3069
6/09,Ibid.,
para.
171 21 January
301. para. 293.
2011,
Charter isonbased
Handbook European
on Article
law relating
13 of the
to asylum,
ECHR, which
bordersensures
and immigration
the right to an effecti
remedy before a national authority. The EU Charter of Fundamental Rights, however
ve
,requires
only
The second
requires
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paragraph
athereview
review
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Article
be donea 47
national
byofa the
tribunal,
authority.172
EU Charter
whereas
of Fundamental
Article 13 ofRights
the ECHR
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on Article 6 of the ECHR, which guarantees the right to a fair hearing but only
sed
in the
determination of civil rights or obligations, or any criminal charge. This has p
the application of Article 6 of the ECHR to immigration and asylum cases since t
recluded
do not involve the determination of a civil right or obligation.173 Article 47 o
hey
f the EU46
Charter
Article of of
Fundamental
the AsylumRights
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provides for the right to an effec
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ore a but this provision has been held to be inapplicable to asylum and immigra
court,
cases (see Section 4.5). It is Article 13 that is applicable to such cases and p
tion
the right to an effective remedy before a national authority. Other convention r
rovides
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ights,
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in
rights is often relied on to provide important safeguards in asylum or immigrati
ention
cases.174 For remedies against unlawful or arbitrary deprivation of liberty, see
on
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Chapter
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303/0
2), ECtHR,
173
174 OJ 2007C.G.
Maaouia
C 303/17.
andv.Others
Francev.(dec.),
Bulgaria, No.No.
39652/98,
1365/07,1224January
April 2008,
1999. para. 49.
consider,
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under
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other
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elements,
and,
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asylum
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and Karimnia
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par
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176 ECtHR,
[GC],
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Abdolkhani
No.Kud.a
30210/96,
v.and Karimnia
26 October v. Turkey,
2000, para. No. 30471/08,
157. 22 September 2009, p
aras.Austria,
177 111-117.Austrian Constitutional Court ( sterreichische Verfassungsgerichtshof
), Decision
G79/98, G82/98,
G31/98,
G108/98 of 24 June 1998; Czech Republic, Czech Constitutional Co
Cesk
urt (stavn
republiky),
soud Decision No. 9/2010, Coll. which came into effect in January 201
0.
178 CJEU, C-69/10, Samba Diouf v. Ministre du Travail, de lEmploi et de lImmigrati
on, 28 July 2011, para. 67.
Other state
Handbook on action,
Europeanwhich
law relating
may hinder to the
asylum,
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4.1.3.EUAppeals
.180
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of47the EU Charter of Fundamental Rights. The directive requires EU Member States
to allow applicants to remain in their territory until the time limit to lodge a
n appeal
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applications,
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whether the applicant
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Under the ECHR,
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measure
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have an himautomatic
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might haveeffect
potent
irreversible
ially
179
180 ECtHR, Kud.a
.onka
effects
v. Poland
Belgium,
contrary[GC],
No.
to No.
Article
51564/99,
30210/96,
3.5 February
26 October
2002.2000.
that the applicants
Example: In Gebremedhin allegations
[Gaberamadhien]
as to the v. risk
France,181
of ill-treatment
the ECtHR considered
in Eritrea had be
sufficiently credible to make his complaint under Article 3 of the ECHR an arguab
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Example: De Souza Ribeiro
suspensive v. France,184
effect. the applicant, a Brazilian national,
resided in French Guiana (a French overseas territory) with his family since the
had
age of seven. Following his administrative detention for failing to show a valid
next
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183 ECtHR, Hirsi Jamaa and Others v. Italy [GC], No. 27765/09, 23 February 2012,
184
paras.
ECtHR,
197-207.
De Souza Ribeiro v. France, No. 22689/07, 13 December 2012.
Under EUAccelerated
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a negative
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Under the ECHR,
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orous
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family unity.
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Member
onsible
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186 Regulation).
CJEU,
State
C-620/10,
in case
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a Membermembers
v.State
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suffering
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examineRegulation).188
an applicationAccording
(the sovereignty
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(2)
the Dublin
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criteriaifwould
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expose the
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under
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Article
the
examine
other regulation criteria and, within a reasonable length of time, determine
whether the criteria enable another Member State to be identified as responsible
the
forexamination of the asylum application. This may lead the first mentioned sta
187 See
te,
188 CJEU,also
CaseCJEU,
C-245/11,
C-528/11,K v.Zuheyr
Bundesasylamt,
Frayeh Halaf 6 November
v. Darzhavna
2012. agentsia za bezhan
tsite pri
savet, 30 May
Ministerskia
2013.
to becomeonresponsible
Handbook European law to examine
relatingthe to application
asylum, borders (Article
and immigration
3 (2)) in order to eli
the risk In
minate
Example: of theinfringement
N.S. and M.E. of thejointapplicants
cases,189fundamental
the CJEU lookedrights.at whether Article
of4 be
ECHR,
the
had
Greece
could
and
to
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meant
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fact
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held
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to Belgium
respect
ECHR
guarantees
of taken
Dublin
and
of
for
failure
the
Greece,191
access
intransfers.190
protecting
applicants
conjunction
totoapply
the
the
theasylum
the
ECtHR
right
with
applicant
asylum
found
to
its
procedure
anlegislation
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from
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effective
and3.remedies,
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remedy
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yremoval
the procedure
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Afghanistan,
for
lawchallenging
requirements
where aheof Dublin
risked
closetransfer
ill-treatment.
and rigorous
to Greecescrutiny
Regarding
did not ofBelgium,
ameet
complaint in
189 CJEU, Joined Cases C-411/10 and C-493/10, N.S. v. Secretary of State for the
and
HomeM.E.
Department
and Others v. Refugee Applications Commissioner & Minister for Justice,
Reform,
Equality21and December
Law 2011. See also CJEU, Case C-4/11, Bundesrepublik Deutschland
14v.November
190 Kaveh Puid,
ECtHR, Mohamed
2013. Hussein and Others v. the Netherlands and Italy (dec), No. 27
725/10,
ECtHR,
191 ECtHR,
Mohamed
2 April
M.S.S. v.2013;
Austria,
v. BelgiumNo.and2283/12,
Greece [GC],
6 JuneNo. 2013.
30696/09, 21 January 2011.
cases where expulsion to another country might expose an individual to treatment
4.3.
conditions
Under
prohibited
Procedures
EU law,
by within
of Article
asylum
relating
seekers
15
3.days
to reception
of lodging an asylum application, asylum seekers mu
be informed of the benefits to which they are entitled and any obligations they
st
comply with in relation to reception conditions (Article 5 of the Reception Cond
must
Directive (2013/33/EU)). Information on the legal assistance or help available a
itions
needs to be provided. The individual should be able to understand the informatio
lso
nprovided. Asylum
authorities not toapplicants
grant benefits
have the
(Article
right 26to of
appeal
the Reception
against decisions
Conditions
of Direct
the
Failurebetoactionable
ive).
either comply withasobligations
a breach ofunder
EU lawthegiving
Reception
rise to
Conditions
Francovich
Directive
damagesmay(se
ethe Introduction to this handbook), and/or as a breach of Article 3 of the ECHR.
Example: Both that
192
respectively, the ECtHR
systemic
and flaws
the CJEU
in the
haveasylum
held inprocedure
M.S.S. and
andN.S.
reception
and M.E.,
conditio
for degrading
ns
and asylum seekers
treatment
in thecontrary
responsible
to Article
Member3State
of theresulted
ECHR orinArticle
inhuman4 of the EU
4.4.
Under
Charter
Return
EUoflaw,
Fundamental
procedures
the ReturnRights.193
Directive (2008/115/EC) provides for certain safeguards
on the issuance of return decisions (Articles 6, 12 and 13) and encourages the u
se of
voluntary
According departures
to Article 12overofforced
the directive,
removals return
(Articledecisions
7). as well as re-entry b
an decisions
must
reasonably
192
193 ECtHR,
Ibid.;
be in CJEU,
writing
be
M.S.S.
presumed
Joined
v.inBelgium
atoCases
language
understand,
and
C-411/10
that including
Greecethe
and
[GC],
individual
C-493/10,
No.information
30696/09,
can understand
N.S. v.21
onSecretary
available
January
or of
maylegal
2011.
State
for the
M.E. andHome
Others
Department
v. Refugee andApplications Commissioner and Minister for Justice, E
quality
21 December
and 2011.
Law Reform,
remedies.onToEuropean
Handbook this end,lawEUrelating
Member States
to asylum,
are obliged
borderstoandpublish
immigration
information sheet
sat least in the five most common languages for migrant groups specific to a Memb
State. Article 13 of the Return Directive provides that third-country nationals
er
be afforded the right to an appeal or review of a removal decision before a comp
must
judicial
etent
the
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advice,
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sentation
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set down9inofnational
the directive
law. provides that removal decisions have to be postponed
they
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remedy
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specific
with
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asprinciple
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cles to If removal is postponed, EU Member States need to provide written confi
removal.
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rmation
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members
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(2004/38/EC).
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such decisions
notification
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(Articles and27, must
28 andbe abl
e to
comprehend the content and the implications. The notification must specify proce
aspectsthecitizens
dural
Turkish
Under concerning
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addition
lodgingto considerations
of protection.
appeals as well relating
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frames (Article
13 of the30). ECHR
, specific
safeguards
need to be respected
are set forth in cases
in Article
of expulsion
1 of Protocol
of lawfully
No. 7residing
to the Convention
aliens. Furtherm
that
the ECtHR has held that Article 8 contains procedural safeguards to prevent arbi
ore,
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trary
individuals withhave
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in a of Article 8 (2) on the basis that the decision has not been in accordanc
breach
e with
the law.
for reasons
Example: C.G.ofv.national
Bulgaria194
security
concerned
on theabasis
long-term
of a classified
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to
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andhad
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formalistic.
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found
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between
ation
4.5.
Access
procedures
Legal
tothelegal
assistance
authorities
assistance
ininasylum
determining
is a cornerstone
and return
such of interests.
access to justice. Without access
justice,
to the rights of individuals cannot be effectively protected.196 Legal sup
portmake
particularly
may is it difficult
importantfor in the
asylum persons
and return
concerned proceedings
to understand
where the
language
oftenbarriers
complex
rapidlytheimplemented
or
Under ECHR, the right
procedures.
of access to a court is derived from the right to a fa
airright
trialwhich
holds a prominent position in any democracy.197 The right of acces
as court,
to which is one aspect of Article 6 of the ECHR, has been held as inapplic
to asylum and immigration proceedings because the proceedings do not concern the
able
determination of a civil right or obligation, or a criminal charge.198 It does n
ot follow,
however,
194
195 ECtHR,that C.G.theand
Anayo v.principles
Others v.No.
Germany, ofBulgaria,
access
20578/07,
toNo.court
211365/07,
December
the Court
242010;
April
hasECtHR,
developed
2008. Saleck
under
Bardi
No.
196
197
198
v. ECtHR,
Spain,
66167/09,
For moreMaaouia
Airey
information,
24 v.
Mayv.Ireland,
2011.
France,
see:No.No.
FRA6289/73,
39652/98,
(2010b).9 5October
October1979.
2000, para. 38.
Article 6onofEuropean
Handbook the ECHRlaw arerelating
irrelevant to toasylum,
Articleborders
13. Inandterms
immigration
of procedural guara
the requirements of Article 13 are less stringent than those of Article 6, but t
ntees,
he very of a remedy for the purposes of Article 13 is that it should involve an
essence
Example: In G.R. v. the Netherlands,199 the Court found a violation of Article 1
procedure.
accessible
3of the ECHR on the issue of the effective access to the administrative procedure
exemption
due
of
the
applicant.
under
to
In
legal
Example:
lacked
returned;
offering
lawyers,
in
forpractice.
law,
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be
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competent
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interpreted
aid
applicants
case
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legal
this
from
to
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law,
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facilitate
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had
paying
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residence
were
the
not
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asv.
rendered
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reiterated
also
requiring
ECtHR
means
received
the
Belgium
and
who
concluded
access
permit.
statutory
relevant
guidance.
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did
has
to
the
procedure
administrative
and
pay
information
Court
not
an
referred
to
Greek
that
that
The
accessible
justice,
aGreece,201
fully
for
charges
lawyer
Compounded
also
the
legal
Court
for
there
Article
toprinciples
examine
obtaining
underlined
concerning
charge
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in
aid
noted
were
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procedure.
the
particular
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system
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Europe
where
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formalistic
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that
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had
organisations
ofpermit
in
available
very
the
ineffective
ofactual
court
legal
practice,
been
ofapplicant
therefore
Article
attitude
poor.200
and
the
aid
income
developed
the
13onofo
fthe ECHR
Under
development
EU law,
taken
ofthein EU
the conjunction
right
Charter
to legal
ofwith
Fundamental
aid
Article
and assistance
3.Rights marks undera EU
staging
law. According
post in theto
its
Article 51,ofthetheCharter
47 Charteronlyprovides
appliesthat when[e]veryone
EU Member shall
Stateshaveimplement
the possibility
EU law. of
advised,
being
199 ECtHR.defended
G.R. v.and therepresented
Netherlands,[] No.and22251/07,
that [l]egal
10 January aid 2012,
shall paras.
be made49,available
50
.200 Council of Europe, Committee of Ministers (1981) Recommendation No. R (81)7
of Ministers
the Committee to member states on measures facilitating access to justice; ECtHR,
No.
201
Sia.kowska
8932/05,M.S.S.
ECtHR, v.22Poland,
March
v. Belgium
2007. and Greece [GC], No. 30696/09, 21 January 2011, par
a. 319.
to those who lack sufficient resources in so far as such aid is necessary to ens
effective
ure
The right to
access
a fair
to hearing
justice under
[]. EU law applies to asylum and immigration cases
,which is not the case under the ECHR. The inclusion of legal aid in Article 47 o
f the
EU Charter of Fundamental Rights reflects its historical and constitutional sign
The Explanatory Report on Article 47 in regard to its legal aid provision mentio
ificance.
Strasbourg case
ns
immigration caseslawisanspecifically
essential partthe of
Airey
thecase.202
need forLegal
an effective
aid in asylum
remedyandand t
need for
he
4.5.1.
Under EULegal
a fair
law, assistance
Article
hearing.22in(1)asylum
of theprocedures
Asylum Procedures Directive entitles applica
to consult with a legal adviser on matters relating to their application. Pursua
nts
nt to 20 of the directive, in the case of a negative decision by the administr
Article
EU MembertoStates
ation,
granted applicants
shallinensure
orderthat
to lodge
free an
legal
appeal
assistance
as welland
as for
representation
the appeal hear
be
Free have
ing.
that
requirelegal
that
noassistance
tangibleconditions
certain and/or representation
prospects of fulfilled,
be success (Article
maysuch
notas20
bemonetary
grantedMember
(3)). to those
matters
States
orappeals
time
may l
(Article2321).
imits
Article of the directive also makes provision for the scope of legal assistan
and representation, including allowing the legal adviser to access the applicants
ce
file information, as well as practical access to the client if held or detained
in closed
areas, such as detention facilities and transit zones. Applicants are allowed to
tobring
the personal asylum interview a legal adviser or other counsellor admitted as
The
of
202
assistance.
203
suchAccelerated
ECtHR,
Council
under Airey
national
of Europe,
Europe
Asylum
v. Ireland,
lawProcedures203
Guidelines
Committee
. No. of
on Ministers
6289/73,
Humanrecognise
also 9Rights
October
(2009),
Protection
the
1979.
Guidelines
rightintothe
legal
onContext
human
aid rights
and
ofprotection
acceleratedin asylum
the context
procedures, 1 July 2009.
Under EULegal
Handbook
4.5.2. on European
law, assistance
the provision
lawinrelating
return
of legalto assistance
decisions
asylum, borders
is notandlimited
immigration
to asylum decisio
ns butincludes return decisions. This is notable as it allows individuals to seek
also
review
decision
judicial
judicial
ofconsideration
made
a removal
under the
decision.
ofReturn
theirSome
Directive,
claims.
individuals,
Some
mayofnever
who have
theseareindividuals
recipients
had an appeal
may
of have
aorreturn
any
forme
dfamilies during their time in the EU Member State and will require access to a c
to determine the compatibility of the return decision with human rights. As such
ourt
,Article 13 of the Return Directive states that EU Member States shall ensure that
the necessary legal assistance and/or representation is granted on request free
chargeprovisions
of
Article
These
entails in (3)
15
individuals
accordance
(6)note
ofbeing
withinformed
Directive
that relevant
legal 2005/85/EC.
aidabout
national
should
thebeprovision
legislation
made available
ofand
legal
within
onaid
request.
theclear
in terms
Thisand
of
language
simple that they understand, as otherwise the rules would be rendered meaningl
and Council
ess
The hamper effective
of Europeaccess
TwentytoGuidelines
justice. on Forced Return (Guideline 9) also fore
legal EU
sees
4.5.3.
Under
decisions
Conditions
(Article
assistance.204
Legal
law,
26 Directive
ofassistance
athe
decision
directive).
(2013/33/EU)
totochallenge
refuse
In case
may
asylum
asylum
beofchallenged
support
an support
appealtaken
by athe
or under
review,
affected
theMember
Reception
individual
States m
ensure free legal assistance and representation in so far as such aid is request
ust
ed it
if andis necessary to ensure effective access to justice. Under the Reception Co
Directivefor
nditions
provided Member
by the
States
Asylum
mayProcedures
impose similar
Directive
limitations
for thetoreview
legalofassistance
asylum decisio
as
204 Council of Europe, Committee of Ministers (2005).
ns.
EUpoints
Key law requires fair and efficient procedures in the context of both examining a
n Article
application
asylum 13and of the
examining
ECHR requires
returns an
(seeeffective
Sectionsremedy
4.1.1 before
and 4.4).
a national authority,
respect
in of any arguable complaint under any provision of the ECHR or its protoco
In particular, it requires independent and rigorous scrutiny of any claim that t
ls.
exist substantial grounds for fearing a real risk of treatment contrary to Artic
here
le 2 or 3 of the ECHR in the event of an individuals expulsion or extradition (se
Article
eSection
Article4.1.2).
13 of the ECHR requires a remedy with automatic suspensive effect when t
implementation of a return measure against him or her might have potentially irr
he
effects
eversible
Article(see
47 of
Section
the EU4.1.3).
Charter of Fundamental Rights requires a judicial remedy an
dcontains
Section
There are
4.1.2).
moreprocedural
extensivesafeguards
fairness safeguards
under EU law
thaninArticle
respect13ofofthetheentitlement
ECHR (see to an
dwithdrawal
Lack of legal
of support
assistance
and benefits
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(2004/38/EC),
(2003/86/EC),
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was
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respect
with
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1996
thenot
third-
2011
and
2001
benefits
19to
for(6)
of
asylum,
(family
borders
reunion
and immigration
Introduction
This chapter will look at the right to respect for private and family life as we
ll as to
right themarry and to found a family. It also examines questions relating to fam
regularisation
ily
Under
Articlethe8 of
ECHR,
theand
the
ECHR.
reunification
rightThetonotion
respect
asofwell
for private
private
as safeguards
lifeandisfamily
to preserve
wide and
life
an exhaustive
family
is guaranteed
unity.
defini
by
is not easily found. It covers the physical and psychological integrity of a per
tion
son, ato personal development and the right to establish and develop relationshi
right
with other human beings and the outside world.205 Aside from possible family life,
ps
the expulsion of a settled migrant might constitute an interference with his or
right to respect for private life, which may or may not be justified, depending on
her
facts
the of the case. Whether it is appropriate for the Court to focus on the family
rather
life than the private life aspect will depend on the circumstances of a particul
Example:8InofOmojudi
case.206
ar
Article the ECHRv.also the protected
United Kingdom,207
the rightthe to establish
Court reaffirmed
and develop
that relation
with other
ships
aspects of an
human
individuals
beings andsocialthe outside
identity.
world,
It must
and could
be accepted
also embrace
that the totality
social
of
living
Article
Under
and toEUfound
ties
constituted
8,law,
regardless
between
athe
family
EUpart
settled
Charter
ofofthethe
(Articlemigrants
existence
of concept
9)
Fundamental
andand
the
ofthe
aprivate
right
family
Rights
community
to respect
life
enshrines
life.
inwithin
which
forthefamily
they
the
right
meaning
were
life
to marry
(Arti
of
cle also
and 7) protects the rights of the child (Article 24), particularly the right t
o maintain
contact
In relation
withtobothmigration,
parents the(Article
first24measure
(3)). on the free movement of persons adop
over 40 years ago (Regulation (EEC) No. 1612/68) included the express right for
ted
aEuropean migrant worker to be accompanied not only by his or her spouse and thei
rchildren
205
206 ECtHR,under
Pretty
A.A. the
v.v.the
agetheUnited
ofUnited
21 years
Kingdom,
Kingdom,
but No.
also
No.8000/08,
by2346/02,
dependent
2029September
children
April 2002,
2011;
overpara.
that61.
ECtHR,agener
[GC],
207
v. ECtHR,
theNo.Netherlands
46410/99,
Omojudi v.18the October
United2006.
Kingdom, No. 1820/08, 24 November 2009, para. 3
7.
Handbook
and dependent
the admission
on European
parents
andlaw
andrelating
authorisation
grandparents.
toofasylum,
other
Registered
borderspartners
family members
and immigration
are now
must be facilitated.
included,
The nationality of family members was and is immaterial to this right. Since the
majority of national immigration policies seek to restrict the movement of third
-country nationals, much of the EU litigation has involved the rights of third-co
national
untry
The question
familyformembers
the CJEUrather
has been
thanwhether
the EEArestrictions
nationals themselves.
on family migration may
as a discouragement to EU citizens to exercise their rights to free movement or
act
impede
will
EU
reunification
nationals
the enjoyment
exercising
than theofstates
EU citizenship.
free movement
own nationals
rights
Paradoxically,
enjoyFamily
do. far greater
inreunification
many rights
EU Member
to family
for States
EU natio
who have not made use of free movement rights is regulated by national law, whic
nals
hremainsaremore
There alsorestrictive
special provisions
in some EUforMember
the family
States.members of Turkish citizens und
Article 7 of Decision No. 1/80 of the Ankara Agreement. The adoption at EU level
er
Directive
of the Long-Term
(2003/86/EC
Residents
concerning
Directive
family
(2003/109/EC)
members of third-country
and the Familynational
Reunification
sponso
meaningrefugees
rs
expanded
Finally, EUthecompetence
family
havemember
in this
long in field.
been
theaccorded
EU who special
requestsfamily
familyreunion
reunification)
privilegeshasin E
states, based on the impossibility of returning to their country of origin to co
uropean
their family life. In this sense, special provisions for refugees are contained
ntinue
Chapter
in
5.1.
The right
TheVright
of marry
to thetoFamily
marry
is enshrined
Reunification
and to found
in Article
aDirective.
family
12 of the ECHR and in EU law in Artic
le 9EUofCharter of Fundamental Rights. It concerns the right to form a marital re
the
and a relates
lationship
which family. to Thisfamilies
is quiteseeking
distinct
immigration
from the authorisation
right to respect on the
for basis
familyoflife,
an e
family relationship.
xisting
European states have put in place restrictions on the right to marry, since marr
of convenience are seen as a device for circumventing immigration controls.
iages
A sham marriage (or marriage of convenience) is a marriage entered into purely f
immigration purposes
or
residence208 and without
withany theintention
sole aim toof cohabit
circumventing
or share
thethe
rules
other
on social
entry and
chara
of marriage.
cteristics
many
Forced jurisdictions.
marriages Knowingly
occur when
facilitating
one (or both)
a shamofmarriage
the spouses
is a is
criminal
an unwilling
offenceparty
in t
othemany
in marriage.
jurisdictions.
Coercing In someone
practice,
into it
a forced
may bemarriage
difficultistonowdistinguish
a criminalaoffence
forced
from that
marriage
term a marriage
can cover
of convenience,
a variety ofparticularly
situations fromin the
something
case ofclose
arranged
to a forced
marriages,
mar a
toshort
ariage
a system
listwhereby
of candidates
the spouseproposed
freelybyand
their
voluntarily
families after
selectscareful
a partner
research
from as
to their
suitability. Little exists in terms of European legislative measures or case law
tolinked
Example:
whether
forcedthe
Inmarriages.209
the on
ban Quila
thecase,210
entry forthesettlement
United Kingdom
of foreign
Supreme
spouses
Courtorwascivil
askedpartners
minimum
years
on
the
contained
ECtHR
refusal
was
age
case
into
aofparagraph
lawful
law,
boththe
grant parties
awaymarriage
277ofofdeterring
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visa
Immigration
and
struck
amounted
or preventing
settle
down
Rules
to had
atheviolation
provision,
been
forced
under
raised
marriages.
which
of Article
from
finding
the18Relying
toof21the
8that
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Under
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EU thisCourt
law, that
case,perceived
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permitted
therethatwasincidence
nothere
noexceptions
suspicion
wasofnosham
logical
and
of marriages
a forced
the connection
incidence
marriage
for immigration
ofbetween
forced
and, such
therefore,
marriage.
purposes
a
led to the adoption at EU level of Council Resolution 97/C382/01. This resolutio
nreflected
listed factors
the European
which mightstates
provideconcern
grounds
for for
marriages
believingof convenience,
that a marriage
and was one
208
convenience.
of Art. 1 of Council Resolution of 4 December 1997 on measures to be adopted on
marriages
209
theCouncil
combating
ofofconvenience,
of
Europe, Parliamentary
OJ 1997 C 382/1.
Assembly, Resolution 1468 (2005) on Forced
Marriages
Marriages,
210 The United
and
5 October
Child
Kingdom2005.
Supreme Court, R (Quila and another) v. Secretary of Stat
e for the Home
Department [2011] UKSC 45, 12 October 2011.
Legislation
Handbook on onEuropean
the freelawmovement
relatingoftopersons
asylum,isborders
generally
and silent
immigration
about the possib
of immigration authorisation for a fianc (e), preferring to focus on family regula
ilities
or reunification.
risation
the
Under
reasonable
situation
the ECHR,
conditions
ofitthose
Only
follows
onseeking
thethefrom
principle
right
admission
ECtHR
ofofacase
non-discrimination
third-country
forlawfuture
that aspouses
statewould
national
fromtoproperly
may apply
abroad.
marrytoinimpose
order
ascertain
to whether the proposed marriage is one of convenience and, if necessary,
to prevent it. Consequently, a state is not necessarily in violation of Article
12 ofECHR if they subject marriages involving foreign nationals to scrutiny in or
the
to establish whether they are marriages of convenience. This may include requiri
der
foreign nationals to notify the authorities of an intended marriage and, if nece
ng
asking
ssary,
the genuineness
them to submit
of theinformation
marriage. Inrelevant
a recenttocase,
theirhowever,
immigration
the ECtHR
statusfound
and tothat
,although not inherently objectionable, the requirement for persons subject to im
control totosubmit
migration
permitted marryaninapplication
the United Kingdom
for a certificate
gave rise to of aapproval
number ofbefore
gravebeing
concerns
.Example:
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authorities
contracting
subject
The permission
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ty,
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reducing
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found
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sham
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was
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decidingto
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whether
the stated
only theto
Theimmigration
issue
aim of
status of the individual applicant and no enquiries were made as to the genuinen
of the
ess
the ECHR.
marriage.
It was also
The Court
held to found
be discriminatory
that the schemeonviolatedthe ground
Article
of religion
12 of as onl
ymarriages
to
charged
or
211 obtain
fee
ECtHR,
reductions
foracelebrated
ODonoghue
certificate
such certificates
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needy
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of approval.
Church
persons.
werev.excessively
ofthe
The
England
United
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high
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from
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34848/07,
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fees14waivers
December
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Under
country
5.2.
Family Family
the
regularisation
for
ECHR,
the complaints
regularisation
purposedescribes
of concerning
gettingsituations
married
the refusal
are relatively
where the
to allow
resident
rare.212
a fianc
sponsor
(e)wishes
to enter
to a
asterritory
regularise
the
Under aEUfamily
law, the
member
in either
rules the
somesituation
set out
other
in the
capacity
ofFree
a family
or inmember
Movementan Directive
irregular
who is (2004/38/EC)
already in appl
situation.
yto the
in third-country
case of EUnationals
citizens,who theare
directive
the family
onlymembers
appliesofifEEAfreenationals,
movement rights
albeit h
been exercised by the individual concerned. For EEA citizens, the qualifying fam
ave
members are spouses, children under the age of 21, children aged over 21 years b
ily
dependent
ut
of qualifying
(Articles
family2members
(2)) andofother
Swiss nationals
family members
is somewhat
(Articlemore3 restrictive.213
(2)). The category
Example:
The CJEU InhasRahman,214
provided clarification
the CJEU clarifiedconcerning
that Article
other family
3 (2) ofmembers.
the Free Movemen
tDirective
confer
those other
a certain
notfamily
onlyadvantage
makes itof
members onpossible
applications
an EU citizen
but also
for
whoobliges
entry
are dependent
and
EU residence
MemberandStates
can
submitted
demonstrat
to by
ethatmeet
to
contains
for
event
before
212 entry
ECtHR,
their
ofathat
measures
refusal,
judicial
and
Abdulaziz,
dependence
obligation,
residence
athat
authority.
reasoned
existed
Cabales,
enable
duly
EU Member
and
denial,
atandextensively
the the
persons
States
Balkandali
time concerned
which they
must
they
examined
v.ensure
sought
are
theentitled
toUnited
entry.
that
and
havetotheir
their
Kingdom,
In have
obtain,
to order
legislation
application
in the9214/8
reviewed
Nos.
0, May
28 9473/81
1985.andThis
9474/81,
case initially concerned women (some of whom were not yet marr
ied) who found
themselves in a disadvantageous position when seeking to bring their fianc s or sp
ouses to By
Kingdom. thetheUnited
time the case came to be considered by the ECtHR, all the applic
antsPursuant
the
213 case
werewas
married
considered
to theandAgreement
as onebetween
governingthethe
European
rightsCommunity
of spouses. and its Member Stat
es, onand
part, thethe
oneSwiss Confederation, on the other, on the free movement of persons
, 212002
OJ JuneL 144/6,
1999, Art. 3, family members include spouses, descendants who are und
er 21oryears
age who are
of dependants, and dependent relatives in the ascending line, if acc
ommodation and
maintenance are provided for (in the case of students, it covers only spouses an
d minor
214 CJEU,children).
C-83/11, Secretary of State for the Home Department v. Rahman and Othe
rs, 5 September 2012.
Third-country
nationallawfamilyrelating
members
to asylum,
of EEA nationals
borders and(including
immigrationEU citizens bu
tonly in so far as they have exercised free movement rights) are often in a privi
situation compared to third-country nationals who are family members of national
leged
sof the country concerned, as their status is regulated purely by national law. T
right of third-country national family members to enter and reside exists irresp
he
of when
ective
who
Example:
national
entered
and
Thein
spouses
how
case
anheofof
irregular
ornon-Irish
Metock
she entered
manner.
andEUOthers215
citizen
the hostresidents
concerned
country.inthe
ItIreland.
applies
third-country
alsoIrish
The to persons
governm
argued
ent
third-country
in
not
spouses
the
matters
thatanother
bethegranted
rightthat,
ofthird-country
suchtoEUas
incitizens.
live
national
Member
towhen
order
those
together
State,
and
tonational
spouse
who
The
benefit
where
under
andhad
entered
Court
the
that
had
from
the
tomarriage
held
the
previously
have
the
Free
the
that
host
right
Free
previously
Movement
EUMember
had Movement
of
Member
been
taken
entry
Directive
State
lawfully
been
States
place
Directive,
andlawfully
before
residence
or
could
conditional
resident
onbecoming
the
thein
resident
not should
fact
make
on
another
Example:
refuse
entered
Over
EU Member
time,
residence
the
InState.
the
theCJEU
country
case
whenhas
unlawfully
ofthird-country
MRAX,216after
extended thenationals
ECJ found
their
scope visaapplication
of married
that
had expired.
ittowould
EUofcitizens
be unlawful
the rightshadand
to free
deriving from the EU treaties to EU nationals, thus granting, under certain cond
doms
derived
itions,
215 ECJ,rights
C-127/08 to [2008]
their third-country
ECR I-06241, Metock
nationalandfamily
Othersmembers.
v. Minister for Equality
, Justice
25 July 2008, and paras.
Law Reform,53-54, 58. Metock was followed by the Swiss Federal Supreme
BGE
216
Court
136inIIC-459/99
ECJ, its
5, 29
decision
September
[2002] ECR2009.I-06591, Mouvement contre le racisme, lantis mitisme e
ASBL
t la (MRAX)
x nophobie v. Belgian State, 25 July 2002, para. 80.
for remuneration,
Example:
national Thethe
of caseUnited
of other
in Carpenter217
Kingdom
Memberwhose concerned
States.
businessItawasthird-country
consisted
argued successfully
of providing
national that,
wife ofifahi
services,
swifeCJEU
after
his
freedom
family
cross-border
right
The freedom
was
his
to
rights
tohas
respect
not
children
provide
torecognised
permitted
economic
toprovide
a Union
for
while
services
family
activity.
tothat,
services
heremain
citizen
wasunder
recognised
life away,
across
The
withcertain
who
as ECJ
enshrined
had
him
he
the
byalso
would
never
inEU.
Article
circumstances,
the
referred
inlived
beArticle
In United
restricted
this
56 oftocase,
abroad
Kingdom
the
8theresidence
ofbut
TFEU
inthewho
the
fundamental
and
the
Court
to
ECHR.
torights
exercise
acknowledge
pursued
look may
used the
of
linked directly to the status of Union citizens under Article 20 of the TFEU, ap
be
plying
in
Example:
who
granted
their
applicable
or
Courtcases
resided
aredirectly
children.
itaparents
where
In
Belgian
because
inRuiz
areferred
the
ofZambrano,218
Article
Member
residence
EU national
dependent
the children,
State
3 (1)
to their
and
minor
other
the
ofnever
work
the
who
status
CJEU
children
than
exercised
permit
Free
were
found
their
as Movement
Union
Union
ofthat
in country
free
Belgian
order
citizens,
citizens
the
Directive
movement
toof
third-country
nationality,
live
national
hadwas
underrights.
with
never
Article
held
andmoved
origin.
nationals,
hadsupport
not
toThe
20 toof
bebeth
eTFEU in order to grant their third-country national parents a permit to work and
children
the
of
This
reside
the
status
ruling,
inofBelgium.
Europeanofthe
however,
Union
genuine
Union
Acitizens
refusal
inenjoyment
related
ordertoto
intodothe
soaccompany
ofso,
far
thethe
specific
assubstance
Court
they
their
circumstances
would
pointed
parents.
of have
theout,
rights
toofleave
would
theattaching
case
deprive
the territory
and todoes
the
not apply in all circumstances. For example, a child who is a Union citizen must
legally,
be financially or emotionally dependent on the third-country national who
refused a right of residence, as it is that dependency which would lead to the U
is
217 ECJ, C-60/00 [2002] ECR I-06279, Mary Carpenter v. Secretary of State for th
nion
e Home
11 JulyDepartment,
2002, paras. 36-46; ECJ, C-370/90 [1992] ECR I-04235, The Queen v. IAT a
nd Surinder
parte Secretary Singh,of State
ex for the Home Department, 7 July 1992, concerning the po
ssibility
rights
218 CJEU,
forC-34/09,
toEUclaim
nationals
such returning
[2011] ECR I-01177, to their
RuizhomeZambrano
country.
v. Office national de lemplo
i (ONEm),
ECJ, C-200/02,8 March [2004]
2011;ECR I-09925, Kunqian Catherine Zhu and Man Lavette Chen v.
for
Secretary
the HomeofDepartment,
State 19 October 2004, paras. 42-47.
citizen being
obligedlaw to leave
relatingnottoonlyasylum,
the territory
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immigration
Member State of whi
ch ahenational but also that of the European Union as a whole.219 Further clarifi
is
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C-357/11,
220
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CJEU,C-356/11
6 December
C-434/09,
and [2011]
2012, ECRpara.I-03375,
56. Shirley McCarthy v. Secretary of State f
5orMay
221 the
CJEU,
2011.
HomeC-256/11,
Department, Murat Dereci and Others v. Bundesministerium f r Inneres, 15 N
ovember68.2011,
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State, for economic reasons or in order to keep his family together in the terri
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this includes
is consistent
registered
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w ofCJEU, C-40/11, Iida v. Stadt Ulm, 8 November 2012.
222
the host EU
Handbook on Member
EuropeanState.
law relating
In certain
to circumstances,
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and immigration partners may al
be granted
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integration
must
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fromv.for
Dutch
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the
Reed,223
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to Ms
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arried
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while the family member is still outside the EU Member State territory where the
ined
of
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entry,
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Europe
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Article
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8toofthe
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theright
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uires
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ied
n of cases).
such
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considerableto the
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haveorbeenregularise
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members
questions
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own the
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migrants.
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en
ECtHR
Courts
the will casenormally
law in this
consider
areathe
is closely
Member States
tied todecision
the particular
proportionate.225
features andThefacts
case
223
of ECJ,
each
(alsoC-59/85
see Section
[1986]5.4ECRfor
I-01283,
furtherState
examples).
of Netherlands v. Ann Florence Reed,
17 April
224 ECJ, C-459/99
1986, paras. [2002]28-30.
ECR I-6591, Mouvement contre le racisme, lantis mitisme et
(MRAX)
la x nophobie
v. Belgian ASBLState, 25 July 2002; ECJ, C-503/03 [2006] ECR I-1097, Commissi
on ofECtHR,
Communities
225 the European
Darren
v. Kingdom
Omoregie
of Spain,
and Others
31 January
v. Norway,
2006.No. 265/07, 31 July 2008, para.
v.68;Austria,
ECtHR, No.Bajsultanov
54131/10, 12 June 2012, para. 91; ECtHR, Onur v. the United King
dom,February
17 No. 27319/07,
2009, paras. 60-61.
NorwegianInwife
Example: Darren
of aOmoregie
Nigerianand should
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notv.have
Norway,226
had an expectation
the Court found
that her
thathusband
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fact
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into
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situation
v.previously
account
found
Norway,227
applicant
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foreign
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married
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on
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this Section).
that a child should remain i
nthe state of residence, the ECtHR may be reluctant to condone the separation of
228
family
the
226
227 European
ECtHR,
proposed
NDarren
Commission
ezby v.Omoregie
the
Norway,
immigration
of Human
and
No.Others
55597/09,
Rights,
authorities.
v. Sorabjee
Norway,
28 JuneNo. 2011.
v. the
265/07,
United31 Kingdom
July 2008.
(dec.),
No.October
23 23938/94,1995; European Commission of Human Rights, Jaramillo v. the United Ki
ngdom24865/94,
No. (dec.), 23 October 1995.
There
Handbook
Example:
found
best
it
mother
wasinterests
that,
are
disproportionate
with
onalso
In European
Rodrigues
where
whomofshe
situations
thehad
law
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domestic
child
relating
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that
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courts
remain
toHoogkamer
asylum,
regularise
may
hadbe
in the
expressly
anNetherlands
borders
v. indirect
the situation
Netherlands,229
ruled
andinterference
immigration
with
thatof
her
ither
wasthe
Dutch
Brazilian
with
infather,
Court
the
the ri
ght to for family life, even if there is not an outright refusal to authorise a
respect
Example:
caused
stay. byThe charging
case ofexcessively
G.R. v. thehigh Netherlands230
fees for thelooked
regularisation
at the interference
of the immigrati
situation
on
under
inabilityArticle
of challenge
to a13foreign
of thethe
spouse.
ECHRrefusal
because
The ofCourt
the
hiscomplaint
decided
residence torelated
considersince
permit tothe
thehis
matter
applicants
application
was rejected purely on the basis that he had failed to pay the necessary fees.23
15.3. Family
Family reunification
reunification
describes situations where the person who is resident in an
behind
Under
EU or EU
Council
when
law,hethe
oforEurope
she migrated.
Free Movement
member state
Directives
wishes provisions
to be joinedrelating
by family
to the
members
family
leftmemb
of EEA nationalsandexercising
ers
regularisation reunification
treaty itrights
is the
makerelationship
no distinction
between
between
the family membe
randrelation
In
recently
the EUheldcitizen
tothat
family
sponsor
EU members
Member which
States
whoisarehave
determinative.
notapart
wideofdiscretion
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family,
selecting
the CJEU
the fact
has
to be considered
ors
persons
States are
envisaged
therefore
when
in entitled
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examining3to(2)
the
layofentry
down
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andtheir
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legislation
applications
Directive.
particular
TheofMember
therequir
as to the nature and duration of dependence. The CJEU has, however, also specifi
ements
thatECtHR,
ed
229 those Rodrigues
requirements da Silva
must beandconsistent
Hoogkamerwith v. thetheNetherlands,
normal meaningNo.of50435/99,
the words31
230
231
January
ECtHR,2006.
G.R. v. the
Anakomba YulaNetherlands,
v. Belgium,No. No.22251/07,
45413/07,1010January
March 2009.
2012.
relating to the dependence referred to in Article 3 (2) of the directive and can
depriveArticle
not
Under that provision
4 of the Family
of its Reunification
effectiveness.232
Directive, spouses and minor unmarri
children are entitled to join an eligible third-country national sponsor, but EU
ed
States
have
Member
atcan
hisimpose
or herconditions
disposal. Therelating
directive
to thestates
resources
that where
that the
a child
sponsor
is over
must 12
old and arrives independently from the rest of his or her family, the Member Sta
years
may, before authorising entry and residence under the directive, verify whether
te
child meets a condition for integration provided for by its national legislation
the
onexisting
the date of implementation of the directive. The ECJ dismissed an action brou
by the European Parliament alleging that these restrictive provisions of the dir
ght
violated fundamental rights. The ECJ did stress, however, that there are a set o
ective
frequirements
Article 4 (5)that
of the
Member
Family
States
Reunification
need to follow
Directive
when allows
implementing
EU Member
it.233
States to r
the sponsor
equire
higher
European than
states
andyears
21 his orto
seem ofher
age,adopting
be spouse
beforetolegislation
the
be spouse
of a minimum
can
raising
join
age,the
himwhich
or her.
age cannot
of marriage
A number
be setvisa
of
s.
EU law does not draw a distinction between whether a family relationship was con
beforeregard
cluded
With or after
to the
thefamily
sponsormembers
took upofresidence
third-country
in thenationals
territory.234
living in the EU, t
EU Family Reunification Directive specifically states in Article 2 (d) that the
he
applies irrespective of whether the family was formed before or after the migran
directive
tarrived in the home country, although legislation in some Member States does mak
ea clear distinction. This distinction is also not relevant for qualifying third-
national In
country
Example: family
Chakroun,235
members oftheEEACJEU
citizens.
addressed Dutch legislation that made a distin
between
ction
232 CJEU,family
C-83/11,
formation
Secretaryandofreunification,
State for the HomeeachDepartment
of which v.hasRahman and Othe
rs, ECJ,
paras.
233 5 September
36-40.
C-540/03,
2012,
[2010] ECR I-05769, European Parliament v. Council of the Eur
opean
27
234 June
ECJ,
Union,
2006,
C-127/08
paras.
[2008]
62-65.
ECR I-06241, Metock and Others v. Minister for Equality
, Justice
25
235 July
CJEU,2008.
and Law Reform,
C-578/08, [2010] ECR I-01839, Chakroun v. Minister van Buitenlandse Za
ken, 4 March 2010.
after theexclusively
Handbook
different
depended onsponsors
residence
Europeanarrival
regimes,
lawwhether
on relating
toincluding
take
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relationship
asylum,
financial
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borders
requirements.
was
in the
andhost
entered
immigration
into
state.
Suchbefore
distinction
Since orthe coup
in this
le,
the
reunification,
time
The
Reunification
Netherlands,
Court
of the
specific
confirmed
disputed
Directive
despite
case,
their
that
decision.
had
situation
the
tothebe
married
couple
right
joined
was
having
twoby
of treated
ayears
qualifying
beenas
after
married
family
thefor
sponsor
third-country
sponsors
formation
over
under30national
arrival
and
the
yearsnotatfamily
Family
infamily
the
the
existing
members
sponsors
existed
in EUentry.
law
whether
(Article
TheorCourt
not
2 (d)
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took family
into
Recital
account
relationship
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arose
directive
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beforeand
a distinction
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f the
EU Charter of Fundamental Rights) and the necessity not to deprive the directives
The
provisions
Free Movement
of theirDirective
effectiveness.
and, before its adoption, Regulation (EEC) No. 1612/
make clear that the spouses of EEA nationals are entitled to reside with them, b
68
EEA nationals exercising free movement rights are also to be given the same socia
ut
land tax advantages as their host states own citizens, including the benefit of any
immigration rules applicable to situations not covered by the express terms of t
Under thetoECHR,
directive.236
he
refusal grantthevisas
Courtforhasspouses,
considered
children
a number
or elderly
of cases relatives
that concerned
left behind the an
d with
whom
Regarding
are
family
raised
theregularisation
applicant
spouses
by Councilwho
hadcases
have
ofpreviously
Europe
been
are also
left
member
enjoyed
behind,
applied
states
family
many
to
reunification
and
life
ofaccepted
the
abroad.
samebycases.
arguments
the ECtHR
Spouses
that inres
in Council
ident
who
that
known
respect
are
there
about
abroad,
the ofchoice
are
theEurope
serious
mayofbemember
restrictive
married
expected
obstacles
states,
immigration
couples
totorelocate
whotorules.
this,have
reside
particularly
abroad
contracted
Member
in aunless
certain
states
ifmarriages
theycountry,
areshould
cannot
with
demonstrate
obliged
have
nor
partners
to acc
to
the non-national
ept
enact legislationspouses
conferringfor the
settlement.
right toIfbeajoined
memberbystate,
spouses
however,
to certain
decidescatego
to
riesEFTA
236 of Court, Arnulf Clauder, No. E-4/11, 26 July 2011, para. 44.
immigrants, it must do so in a manner compatible with the principle of non-discr
enshrined
Aimination
common feature
in Article
of migration
14 of theisECHR.237
leaving children behind: parents migrate to est
themselves in the host country but leave their children behind, often in the car
ablish
eof a grandparent or other relative, until they have legally, socially and econom
established and secured themselves enough to be able to bring their children to
ically
them. The ECtHRs approach in this type of case largely depends on the specific ci
join
of each particular
rcumstances
Example: In G l v. case.
Switzerland,238 a child was left behind in Turkey with relative
swhen first
result of serious
her father
injuries
and then
in aher
fire,
mother
the mother
migratedwastogranted
Switzerland.
a humanitarian
As a perm
in Switzerland
it
being
therefore
wouldoffered
be jeopardised
as atheresidence
authorities
if permit
she were
at to
thetostay
time
return
with
considered
toher.
Turkey.
They
thatapplied
Herherhusband
physical
to have
waswell-
thei
rleft-behind
in Switzerland,childtheir
joinstatus
them, had
but,notalthough
made them
botheligible
parents forwerefamily
lawfully reunion.
residentHavi
considered
ng
found
Turkey,
that the
that
given
refusal
thethat
thereparticular
wasthe
to allow
nomothers
real
issues
the reason
child
health
andto
why
circumstances
had
join
theappeared
wholeparents
the family
oftothe
stabilise.
had
could
case,
notnottheItrelocate
been ECtHR
thusviolatio
in found
to
n of when
Article
Example:
Turkey
parents 8decision
Inofthe
Sen
theparents
v.ECHR.
totheleave
Netherlands,239
cametheir
to the
daughter
Netherlands.
thebehind
eldestcould
The
daughter
Court
not bewasconsidered
foundleft
thatbehind
theirrevocab
in
withECtHR,
le
particular
parents
Example:
teenage
237 theschoolgirl
inIn
effect
circumstances,
that
Hode
Osmanand
that
country
v.Abdi
shelong-term
aDenmark,240
amounted
should
v.
thetheDutch
remain
United
to aauthorities
the
lawful
Court
violation
outside
Kingdom,
resident
considered
the
ofwith
No.
refusal
family
Article
22341/09,
a case
her tofamily
group.
8allow
of6 November
wherethe
Inher
in aDenmark
the
ECHR.
Somali
to 2012,
join her
p
aras.
238
239 ECtHR,
240 43-55.GOsman
Senl v.v.Switzerland,
theDenmark,
Netherlands,
No.No.38058/09,
23218/94,
No. 31465/96,
1419June
February
212011.
December
1996.2001.
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rter,See1998,
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Conclusions
family
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recent
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Many cases
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the CJEU,244
fact
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and during which
ket
individual. Throughout
time thethatEUperiod,
Member the
Stateapplicant
can imposelived
conditions
togetheronwith
theher parent
sthrough
244
reunification.
CJEU,whom
C-484/07,
she was[2011]
admitted
ECRtoI-05203,
the Netherlands
Fatma Pehlivan
on thev.ground
Staatssecretaris
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ustitie, 16 June 2011.
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Handbook
5.4.1. Relationship
onthird-country
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the relationship
may lose thecontinues
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justifytothereside.
residence of the separat
third-country national until the marriage on which it is based is legally dissol
ed
(Free Movement Directive).245 Relationship breakdown is not sufficient to justif
ved
y loss
of
Article
residence.
13 of the Free Movement Directive provides for the retention of a right
of residence
for
where
host third-country
state,
the marriage
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children
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years,
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A duty to grant
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only exists after five years of residence (Article 15). According to Article 15
it
(3) of the EU Member States should lay down provisions ensuring that an autonomo
directive,
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us
following divorce or separation. Like Article 13 (2) (c) of the Free Movement Di
this isthe
rective,
States
Under have
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to ECtHR
extend
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situations
provisions
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life
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contact with the children demand that the third-country national should be allow
to remain. This
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can leadfromtothe
thenational
loss of residence
law of manyrights
MemberforStates,
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where
ynational spouses or parents. Often the Court sees no reason why contact should n
be maintained through visits,246 but it will consider that some situations may r
ot
the ECJ,
equire
245 third-country
C-267/83 [1983]
nationalECRtoI-00567,
be permitted
Aissatou
to remain.
Diatta v. Land Berlin, 13 Februar
y 1985.
246 ECtHR, Rodrigues da Silva and Hoogkamer v. the Netherlands, No. 50435/99, 31
January 2006.
An EUECHR
Example:
the
divorce,
5.4.2. Member
Criminal
In Berrehab
prevented
maintained
Stateconvictions
the
may
contact
v.wish
Netherlands
the to
Netherlands,247
withdeport
hisfrom
child
a lawfully
expelling
four
the times
Court
resident
a father
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week.
third-country
that despite
who, Article national
8 of
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Under
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of the Free Movement Directive confer on qualifying
nationals
movement
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members
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residence
orthepublic
same
enjoy.
ofsecurity
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derived
For
citizens
example,
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andbased
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of the individual concerned represents a genuine, present and sufficiently serio
duct
threat. Previous criminal convictions cannot in themselves constitute grounds fo
us
rtakingArticle
Under such measures.
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nimperative grounds of national security, unless the expulsion is in the childs be
Family members
interests.
st
achieved
Article 6stable
(2) ofofresidence
the
Turkish
Familyare
nationals,
Reunification
similarlyregardless
protected.248
Directive
of their
allowsnationality,
Member States whotohave
with
or refusepublic
draw
policy, to renew
security
a family
or public
members
health.
residence
When making
permit aondecision
grounds on of this
publicbasis,
Member State must consider the severity or type of offence against public policy
the
public
such
Under
or person.
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security
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committed
Court will
by thefirst
family
decide
member,
whether
or the
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reasonable
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from t
family to accompany the offender overseas, and, if not, whether the criminal con
he
still justifies expulsion when it is clear that this will cause total separation
duct
family.
of the In these situations, the conclusion reached by the ECtHR is closely tied
247
248
to CJEU,
the C-451/11,
ECtHR, Berrehab Natthaya
v. the Netherlands,
D lger v. Wetteraukreis,
No. 10730/84, 21 19 June
July 1988.
2012.
details ofoneach
Handbook European
case.law Therelating
ECtHR hastoadopted
asylum,various
borderscriteria
and immigration
for assessing the p
ofthe
roportionality
expelling
expelled;
during
an solidity
expulsion
nature
length
time
nationalities
thatstate;
elapsed
period;
andofthe
of order.
seriousness
his,
since
applicants
of These
the
hertheor
applicant
include:
of
offence
their
the social,
stay offence
in the
was
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cultural
familyandfrom
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ifthe
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expelled.249
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heprevious
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applicants
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have
offence
andconstituted
rehabilitation,
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whichcommitted
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was ECtHR
inwasathis
and
violat
of Article
ion
Example:
national
249 ECtHR,and
InBoultif
8Antwi
of the
his wife
and
v.ECHR.
Others
and
Switzerland,
daughter,
v. Norway,251
No.
who54273/00,
weretheNorwegian
applicants
2 August nationals.
were aECtHR,
2001; Ghanaian
The ECtHRner v. the
No.
Netherlands
46410/99,[GC], 18 October 2006; ECtHR, Balogun v. the United Kingdom, No. 60286/0
9, 10ECtHR,
paras.
250
251 April
43-53. A.A.
Antwi
2012,v.andtheOthers
Unitedv.Kingdom,
Norway, No. 26940/10,
8000/08, 2014September
February 2012.
2011.
held that there was no violation of Article 8 of the ECHR following the authorit
decision
ies
five
that
left
with
together
Example:
permanent
and
release
another
years
since
the
their
from
toresidence
country
in
In after
both
daughter,
expel
Ghana
Amrollahi
child
prison
parents
they
when
Mrfollowing
or,
living
inthere
Antwi
discovered
she
at
v.
Denmark.
had
the
Denmark,252
in
was
and
were
been
Denmark
least,
a17)
toconviction
noborn
Hethat
prohibit
and
insurmountable
had
maintaining
from
the
his
and
had
twoaapplicant
passport
brought
visited
his drug
children
previous
for re-entry
regular
upwas
the
obstacles
with
relationship.
trafficking,
incountry
forged.
an
into
Ghana
contact.
his
Iranian
toDanish
Norway
(the
three
Thethe
themnational
Upon
Court
wife
for
times
settling
partner
authorities
his
having
held
with
sought to deport him to Iran. The ECtHR held that this would violate Article 8 o
ftheanECHR
would
their
Iran,
to
Example:
minor
principally
contributions
separate
family
did
Iranian
offences
In
because
notfrom
Hasanbasic
life
understand
man,
he
theand
several
the
his
outside
family.
sheapplicants
substantial
his
hadfamily
v.
times.
Farsi
Denmark
Switzerland,254
It But
no was
ties
and
had
proposed
debts
effectively
since
the
was
with
been
decision
not
and
thereceiving
permanent
the
acountry.253
the
applicants
Muslim.
impossible
applicant
to expel
very rather
exclusion
considerable
Apart
wife
had
him
for
than
from
been
seemed
them
had
from
from
being
never
convicted
social
toto
Denmark
these
continue
married
stem
been
welfare
convic
ofto
In applyingaim
tions.
well-being
legitimate ofthethe
justifying
above
country
criteria,
was expressly
interference
the ECtHR with
provided
considered
the right
for in
that
tothe
respect
theConvention
economic
for private
as a and
family life. The Swiss authorities were therefore justified in taking into accou
the as
nt
far
however,
this applicants
case
that
only
that
dependence
one
the
debts
ofexpulsion
the
and
affected
factors
hiswould
familys
the
theviolate
countrys
ECtHR
dependence
tookeconomic
Article
into
on8 ECHR,
thewell-being.
consideration,
welfare
given thesystem
This
finding
considerabl
in soin
was,
eamount of time the applicants had been living in Switzerland and their integrati
intoFor
on
252
253 ECtHR,
Swiss
other
society.
Amrollahi
similarv.judgments,
Denmark, see No. ECtHR,
56811/00, Beldjoudi
11 Julyv.2002.
France, No. 12083/86, 2
6 March v.
Boultif 1992;
Switzerland,
ECtHR, No. 54273/00, 2 August 2001; ECtHR, Udeh v. Switzerland,
16No.April
254 ECtHR,
12020/09,
2013.
Hasanbasic v. Switzerland, No. 52166/09, 11 June 2013.
Family
Handbook
Key pointsreunification
on European lawofrelating
EU nationals
to asylum,
who have
borders
not exercised
and immigration
free movement rights
is not covered by EU law. In some EU Member States, EU nationals exercising free
nationals
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selves
255
presence.256
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procedures,on the Applicable Criteria and Standards relating t
o the Detention
Seekers and Alternatives
of Asylum-to Detention; Council of Europe, Committee for the Prev
ention oforTorture
Inhuman Degrading andTreatment or Punishment (CPT) (2008-2009), 20 Years of Comb
atingGeneral
19th Torture:Report,1 August 2008-31 July 2009.
The ECHR comprises
Handbook on Europeananlaw exhaustive
relatinglist to asylum,
of grounds
borders
for detention,
and immigration
one of them bein
gto prevent unauthorised entry or to facilitate the removal of a person. Under EU
the law,overarching principle is that detention of persons seeking international pro
as well as persons in return procedures must be necessary. In order not to rende
tection
rdetention arbitrary, certain additional requirements need to be met, such as giv
reasons
ing
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where the applicant is deprived of his or her freedom of movement (Article 2 (h))
.The Return
Under the ECHR,
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Article(2008/115/EC)
5 regulatesdoes issues
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to deprivation of liberty
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and
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ament.
cell,someother
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ction
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ana individuals
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held thatbythere
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needs5 to
of
an assessment of the individuals situation, taking into account a range of criter
be
suchquestion.257
ia,
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the measureon
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oneliberty
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degree
mayonnot
ortheintensity
bespecific
established
and
facts
notonofofthe
the
nature
significance
case.or substance.258
of any one f
taken individually but by examining all elements cumulatively. Even a short dura
actor
of a restriction, such as a few hours, will not automatically result in a findin
tion
g that
the situation constituted a restriction on movement as opposed to a deprivation
257 ECtHR, Austin and Others v. the United Kingdom [GC], Nos. 39692/09, 40713/09
of
15andMarch
258 ECtHR,
41008/09,
2012,
Guzzardi
para.v.57.Italy, No. 7367/76, 6 November 1980, para. 93.
liberty. This is particularly the case if other factors are present, such as whe
ther the is closed, whether there is an element of coercion259 or whether the si
facility
has particular effects on the individual, including any physical discomfort or m
tuation
Any underlying public interest motive for detention, such as protecting or havin
anguish.260
ental
g the
intention to protect, treat or care for the community against a risk or threat c
by the individual,
aused
deprived of his liberty.
has noSuch
bearing
intentions
on the might
question
be relevant
whether that
whenperson
considering
has been
the
for detention under Article 5 (1) (a)-(f) of the ECHR.261 In each case, however,
justification
Article 5 (1) must be interpreted in a manner that accounts for the specific con
text inthe measures are taken. There should also be regard for the responsibility
which
duty
and of the police to maintain order and protect the public, which they are requ
to do under
ired
Example: In Guzzardi
both national
v. Italy,263
and ECHRthe law.262
applicant was restricted from moving aroun
da specified area, placed under curfew and special supervision, required to repor
tto the
the outside
authorities
world. The
twiceCourt
a day,
heldandthat
hadthere
restricted
had beenandansupervised
unjustified
contact
deprivation
with
Example:
of libertyInunder
Raimondo
Article
v. Italy,265
5 of the theECHR.264
applicant was placed under police supervis
which
ion,
He
not
259 could
need
ECtHR,
wastheir
not
held
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leave
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leave.
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2008;
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ECtHR,
although
Nolanofheand
liberty.
didK. v. Ru
ssia,
12
260 February
ECtHR,
No. 2512/04,
Guzzardi
2009. v. Italy, No. 7367/76, 6 November 1980; ECtHR, H.L. v. the U
nitedECtHR,
No.
261 45508/99,
Kingdom,
A. and
5 October
Others2004.
v. the United Kingdom [GC], No. 3455/05, 19 February 20
09, ECtHR,
262 paras. Austin
163-164.and Others v. the United Kingdom [GC], Nos. 39692/09, 40713/09
15andMarch
263
264
265 Ibid.
ECtHR,
41008/09,
2012,
Guzzardi
Raimondo
para.v.60.Italy, No. 12954/87,
7367/76, 622November
February1980.
1994.
cabaret
Handbook
asylum
national,
under
argument
concerned
Example:
country.
Russian
work
the daughter
permit
Article
seekers,266
national
owners
oncould
that
Ina issued
European
Amuur
detention
Rantsev
decided
5reported
there
(1)
avoid
residing
v.by
and
ofto
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in
ECHR.
the
and
been
transit
Cyprus
and
of
her
immigration
Riad
and
at
aThe
the
tothe
Russia,268
employment
deprivation
K.cabaret
and
asylum,
and
zone
Court
v.working
airport
Idiab
Russia,267
of
hadand
office
borders
an
the
owners.
v.as
not
of
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applicants
return
Belgium,
liberty
taking
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accepted
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dead
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the
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of Article
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The
5of the station
police ECHR. TheandCypriot
also inauthorities
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responsible without
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of exhausted,
on
6.2.
Under
be
individual
(2013/33/EU),
liberty
Alternatives
EU law,would
case detention
unless
Article
(Article
not
to such
have
detention
18must
8alternatives
(2)
occurred.
(2)of
beofthe
a the
last
Dublin
revised
resort
cannot
Regulation
andapplied
be
Reception
all and
alternatives
Conditions
effectively
Article 15Directive
must
in the
(1) first
of the
266 ECtHR, Amuur v. France, No. 19776/92, 25 June 1996, paras. 38-49; ECtHR, Ria
Return
d andECtHR,
Nos.
267
268 29787/03
IdiabRantsev
Nolan
v.and
Belgium,
and
29810/03,
v.K.Cyprus
v. Russia,
24andJanuary
Russia,
No. 2512/04,
2008.
No. 25965/04,
12 February
7 January
2009,2010,
paras.paras.
93-96.31
4-325.
Directive (2008/115/EC): [u]nless other sufficient but less coercive measures can
be applied). Detention should therefore only take place after full consideration
of all alternatives, or when monitoring mechanisms have not achieved the lawfu
possible
land legitimate purpose. In Article 8 (4), the revised Reception Conditions Direc
obliges statestotodetention
tive
Alternatives lay downinclude:
rules forreporting
alternatives
obligations,
to detention
such asin reporting
national law.
to t
police or immigration authorities at regular intervals; the obligation to surren
he
der a
passport or travel document; residence requirements, such as living and sleeping
at a particular address; release on bail with or without sureties; guarantor req
release
uirements;
mental
Under
been
Example:
other imposed
the
measures
health
toInECHR,
care
Mikolenko
prior
teams;
atthe
worker
their
toECtHR
orv.
detention.
support
electronic
disposal
Estonia,269
looksoratthan
under
monitoring,
whether
the
keeping
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care
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the
planapplicant
such
found
intrusive
with
asthat
tagging.
community
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measure
authorities
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care
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have
had
at theexpelled.
ion
being
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deportation
to detention
centre often
when there
involvewasrestrictions
no immediateonprospect
freedomofofhis movement. Und
the ECHR, the right to freedom of movement is guaranteed by Article 2 of Protoco
er
lNo. 4 provided the state has ratified this Protocol (see Annex 2). A restriction
this
on freedom must be necessary and proportionate and comply with the aims in the
second paragraph of Article 2 of Protocol No. 4. This provision only applies to
lawfully
those
Example:
situation.
living inInawithin
Omwenyeke
particular
the territory
v.area
Germany,270
as part
and of
therefore
thehisapplicant
temporary
does had
notresidence
assistconfined
been those
condition
intoanpending
irregular
had
within
the breached
outcome
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claim.
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and
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ECtHRresidence,
therefore
held that,not
hesince
had
relynot
the
onbeen
applicant
the lawfully
right to fre
of movement
edom
269
270 ECtHR, Omwenyeke
Mikolenko
under Article v. Germany
Estonia,
2 of Protocol
(dec.),
No. 10664/05,
No. 44294/04,
4. 8 October 20 November
2009. 2007.
by two
Handbook
6.3.
to
Under liberty
Exhaustive
EUdifferent
on European
law, asylum-related
list
legalof
lawregimes.271
exceptions
relating
detention
toDeprivation
toasylum,
the
andright
return-related
borders
of liberty
and immigration
detention
is regulatedareincovered
Articl
e 8 revised
the of Reception Conditions Directive (2013/33/EU) and Article 28 of the Du
Regulation (Regulation (EU) No. 604/2013) for asylum seekers and in Article 15 o
blin
fthe ReturntoDirective
According Article 8forofpersons
the Reception
in returnConditions
procedures.
Directive and to Article 26 o
fthe Asylum
person solely
Procedures
for the reason
Directive that(2013/32/EU),
she or he hasitlodged
is notanacceptable
asylum application.272
to detain a
isItalso not permissible to detain a person for the sole reason that he or she is
tosubject
for the
theDublin
detentionRegulation
of asylum(Article
seekers28are(1)listed
of theinregulation).
Article 8 (3) Exhaustive
of the Reception
grounds
Conditions Directive. Asylum seekers may be detained in six different situations
: if
thetoabsence
determine
decide
they areon
ofdetained
or verify
elements
detention,
the applicants
under
ofthe
inthethe
applicants
particular
asylum
right
Return
toapplication,
where
enter
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identity
thereand
the orwhich
territory;
isnationality;
submit
a risk
couldanofnot
asylum
absconding;
be obtained
application
in
toin
when
delay
accordance
theorprotection
frustrate
with Article
thenational
of removal;273
28 ofsecurity
the Dublinor Regulation,
public orderwhich
so requires;
under certain
and cond
allows
itions
271 ECJ,detention
C-357/09to[2009]
secureECRtransfer
I-11189,procedures
Kadzoev (Huchbarov),
under the Regulation.
30 November 2009, par
a. 45 and
CJEU,C-534/11, Mehmet Arslan v. Policie .R, Krajsk .editelstv policie steck ho kraje,
policie,
272
odbor
Forcizineck
more
30 May
information,
2013, para.see52.European Commission, Directorate-General of Home A
ffairs (2012),
conditions, available
Reception
at: http://ec.europa.eu/dgs/home-affairs/what-we-do/polici
273 See also CJEU,C-534/11, Mehmet Arslan v. Policie .R, Krajsk .editelstv policie
conditions/index_en.htm.
es/asylum/reception-
cizineck
steck hopolicie,
kraje, odbor
30 May 2013.
Article 15 (1) of the Return Directive only allows for the detention of third-co
nationals who are the subject of return procedures. Deprivation of liberty is perm
untry
forinofthe
itted
or
Under order
other
the
following
ECHR,
toserious
prepare
carry
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twoout
interferences
reasons,
return;
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protects
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particular
process.
the right
return
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there
liberty
removal
is aand
risksecurity.
process:
of absconding
Its su
(a)-(f) provide
bparagraphs
deprived of his liberty,
an exhaustive except
listinofanypermissible
of the following
exceptions:
casesNo
andone
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shall be w
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ith procedure
afterfailure
conviction
prescribed
to comply
by abywith
competent
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court;
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law;
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in
on
to
isprevent
specific
public
for the
trial;
health
anstate
situations
unauthorised
grounds
to justify
concerning
orentry
due
detention
toorminors;
vagrancy;
to by
facilitate
relying onremoval
one ofofthese
an alien.
six grounds.
274 If thecannot be based on any of these grounds, it is automatically unlawful.
detention
The grounds are restrictively interpreted.276 There is no catch-all provision, s
275
uch as
detention to prevent an unspecified crime or disorder in general. Failure to ide
clearly the precise purpose of detention and the ground may mean that the detent
ntify
is unlawful.
ion
274 The United Kingdom, Supreme Court, WL (Congo) 1 & 2 v. Secretary of State fo
r the
KM (Jamaica)
Home Department;
v. Secretary of State for the Home Department [2011] UKSC 12, 23 Ma
rch ECtHR,
275 2011. Al-Jedda v. the United Kingdom [GC], No. 27021/08, 7 July 2011, para.
276
99.ECtHR, A. and Others v. the United Kingdom [GC], No. 3455/05, 19 February 20
09.
Article 5on(1)European
Handbook (f) of the
law ECHR
relatingprovides
to asylum,
for detention
borders ofandasylum
immigration
seekers and irreg
migrants
ular
to aprevent
of person
in twoanagainst
situations:
unauthorised
whom actionentryisintobeing
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or with
tion
As extradition.
the other exceptions to the right to liberty, detention under Article 5
(1) (f)
must be based on one of these specific grounds that are restrictively interprete
d.
Example: Yoh-Ekale Mwanje v. Belgium277 concerned the detention of a Cameroonian
and
national
fixedinitiated
had with
address,
advanced
several
and she
HIV.steps
had
Thealways
authorities
to regularise
kept herknew
her
appointments
the
status
applicants
in Belgium.
with them
identity
Notwithstan
the not
ding
did factconsider
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deteriorated option,
during
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as issuingtheherauthorities
a temporary reside
permit
nce
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detention
Article
Example:
almost
to5In(1)
safeguard
and
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A.ofthe
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the
governments
Others
the
ECHRThe
public
hadECtHR
v. the
been
interest.
aim
United
saw
to deport
violated.
noKingdom,278
Theyher,
link keptand
between
her
thetherefore
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instead
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applicants
held
infound
detention
thatthat
a policy
sufficiently
of keeping ancertain applicants
or determinative
possible deportation
to amountunder
to action
active[...]
review
beingwastaken
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aview third-country
preventing
6.3.1.
into
Under
that the
toEUDetention
deportation
country
law,
an the
unauthorised
toSchengen
nationals
prevent
under Borders
Article
entry
anwhounauthorised
andCode
do 5not
(1).fulfil
was (Regulation
therefore
Theentry
detention
the entry
unlawful.
(EC)wasNo.clearly
conditions
562/2006)
notrequires
are aimed at
refused
into the EU. Border guards have a duty to prevent irregular entry. The national
entry
law ofEU Member States provides for short-term deprivation of liberty at the bord
many
277 ECtHR, A.
er,
278 Yoh-Ekale
and Others
Mwanje
v. the
v. Belgium,
United Kingdom
No. 10486/10,
[GC], No. 20 3455/05,
December 19
2011.
February 20
09, para. 167.
which often takes place in the transit area of an airport. The revised Reception
Directive
seekers
Conditions
who(2013/33/EU)
arrive at the allows,
borderunder
whenArticle
this is8necessary
(3) (c), to thedecide
detention
on their
of asylum
right
Under
to enter
thetheECHR, territory.
detention has to adhere to a number of conditions in order to be
Example:
State
The
yet
aimed
of
lawful
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detention
have
has
at
under
Inauthorised
authorisation
preventing
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of (f)
av.person
his
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the
of ofthe
entry
effecting
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theECHR.
who
do into
so
ECHR.
wished
Kingdom,279
could
theunauthorised
an
The toCourt
country,
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without
thean
did any
ECtHR
not
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entry
entry
accept
held
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unauthorised.
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soon a
san asylum seeker surrenders to the immigration authorities, he or she is seeking
detention
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not be justified
entry. under
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5 (1) (f). beingAnthat
interpretation
his or her of t
provision
his
to
provisions
right
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place
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(f).
Musa
legal
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identity
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obligations
Nations
todetention
Malta,280
with
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basis
achecks
mass
relevant
Conclusion
High
ofand
are
influx
however,
ofCommissioner
an
undertaking
asylum
enacted
Committee
anNo.
situation,
the
accelerated
seekers
place
claim.
44Court
legislation
fororhad
of the
Ministers
The
Refugees
in
held
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certain
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asylum
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explicitly
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held
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procedure,
where
circumstances,
inthat
violation
a State
authorisin
gthe entry or stay of immigrants pending an asylum application, either independen
or pursuant
tly
279 ECtHR, Saadi to EUv.law,
theanyUnited
ensuingKingdom
detention
[GC], No.for 13229/03,
the purpose29ofJanuary 2008, para
. 65.ECtHR, Suso Musa v. Malta, No. 42337/12, 23 July 2013.
280
detentiononunder
Handbook
preventing anEuropean
unauthorised
Article law5relating
(1)
entry
(f).might
toIndeed,
asylum,
raiseinan
borders
such
issue
circumstances,
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the lawfulness
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precise
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purpose
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ofofArticle
the
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law
detention
5Inprovisions
(1)
fact,
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.In Saadi,
the applicantnational
formallawauthorisation
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ore
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6.3.2.
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absconding.
suchEUDetention
issue
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law,
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8 order
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of
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to or out the removal process, unless this can be achieved by other sufficien
t butcoercive measures (see Section 6.2). Detention is permitted, particularly i
less
n casesthere is a risk of absconding or other serious interferences with the retu
where
rn or process and if there is a realistic prospect of removal within a reasona
removal
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ble
Several casesarehave
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set CJEU
by Article
concerning
15 (5)the(6)imprisonment
of the directive.
of thir
d-
country nationals in return procedures for the crime of irregular entry or stay.
Example:
281
with
sanction
Articles
In El15Dridi,282
during the
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Return
wasand
asked
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on the
to verify
to impose
sole ground
whether
a that
criminal
it awasthird-country
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detention
within
281
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CJEU,a given
did
C-430/11,
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of Court, Criminal
Order proceedings against Abdoul Khadre Mbaye, 21 March 2013 (c
oncerning the
imposition of a fine); CJEU, C-297/12, Criminal proceedings against Gjoko Filev
andSeptember
19 Adnan Osmani,2013 (concerning detention based on violating a pre-existing entry
282 CJEU, C-61/11, El Dridi, alias Soufi Karim, 28 April 2011, para. 59.
ban).
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erequirement
283 CJEU, C-329/11,
of due diligence.
Achughbabian v. Prefet du Val-de-Marne, 6 December 2011, par
as. 37-39, 45.
Example: In
Handbook on Mikolenko
European law v. Estonia,284
relating to the asylum,
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v. Bulgaria,285
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and provisions necessary to comply with the Return Directive (Article
284
285
20).ECtHR, M. Mikolenko
and Othersv. Estonia,
v. Bulgaria,
No. 10664/05,
No. 41416/08,
8 October
26 July 2009.
2011, paras. 75 and
286 ECtHR, Popov v. France, Nos. 39472/07 and 39474/07, 19 January 2012.
76.
Similarly, the revised Reception Conditions Directive requires in Article 8 (3)
that the
grounds
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v.
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Russia,289
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ly
287 period.Amuur v. France, No. 19776/92, 25 June 1996, para. 50; ECtHR, Dougoz
6v.March
288
289 Greece,
ECtHR,
2001,
No.para.
S.P.
Azimov40907/98,
v.v.Belgium
55.
Russia,(dec.),
No. 67474/11,
No. 12572/08,
18 April14 2013.
June 2011.
UnderNecessity
Handbook
6.5. EU law,
on European
Article
and proportionality
law
15 (5)
relating
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requirement
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forms
an offence
mitting
Article 9 oforthe
fleeing.292
ICCPR requires that any deprivation of liberty imposed in an im
context
migration
290
291 CJEU,mustC-61/11,
C-329/11,
be lawful,
ElAchughbabian
Dridi,
necessary
aliasv.and
Soufi
Prefet
proportionate.
Karim,
du Val-de-Marne,
28 April
In a2011,
case
6 December
concerning
paras. 29-62.
2011,
thepar
a. 49.
292 ECtHR, Saadi v. the United Kingdom [GC], No. 13229/03, 29 January 2008, para
. 72.
detention of a Cambodian asylum seeker in Australia, the UN Human Rights Committ
has explicitly
ee
comply
6.6.
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the
withECHR,
Article
found
compliance
9that
of the
detention
with
ICCPR.293
national
must law
be necessary
is insufficient.
and proportionate
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requires that any deprivation of liberty should be in keeping with the purpose o
CHR
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of liberty ma
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lawful
To avoid being considered arbitrary, detention under Article 5 (1) (f) must be c
R.294
out in good faith: it must be closely connected to the detention ground identifi
arried
and relied on by the government; the place and conditions of detention should be
ed
appropriate; and the length of the detention should not exceed a duration that i
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and UN
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violated
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Committee,
5anofAelement
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v. Australia,
ECHR.
of arbitrariness.
Communication
Her No.
detention
560/1993, views
294
of ECtHR,
30 AprilSaadi
1997.v. the United Kingdom [GC], No. 13229/03, 29 January 2008, para
. 67;ECtHR,
Others
295 ECtHR,
v. theRusu
A.United
andAustria,
v. KingdomNo. [GC], 34082/02,
No. 3455/05,
2 October
19 February
2008, para.
2009,58.para. 164.
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Handbook
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onECHR,
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law relating
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ties
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days,
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Inauthorities
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deportation
hadBorder
v.been
as Latvia,297
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only
is justified for as long as deportation or extradition proceedings are in prog
If such proceedings are not conducted with due diligence, the detention will cea
ress.
to be permissible under the ECHR.298 Member States must therefore make an active
se
effort to organise a removal, whether to the country of origin or to a third cou
ntry. In Member States must take concrete steps and provide evidence not simply
practice,
296 ECtHR, A. and Others v. the United Kingdom [GC], No. 3455/05, 19 February 20
09; ECtHR,
United
297
298 Kingdom
Saadi[GC],
Longa
Chahal v.v.the
YonkeuNo.v.United
the 13229/03,
Latvia,
Kingdom
29 January
No. 57229/09,
[GC], No.2008.
1522414/93,
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para.1996,
143. pa
ra. 113;v.ECtHR,
Others the United
A. andKingdom [GC], No. 3455/05, 19 February 2009, para. 164.
whereonthetheir
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Czech
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sentence
years
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the
lyardstick.
299
300 ECtHR,C-357/09
ECJ, Singh
It statesv.[2009]
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Return Directive,
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ce: Chapterand55Temporary Release, available at: www.gov.uk/government/publication
Detention
302 ECtHR, Mikolenko v. Estonia, No. 10664/05, 8 October 2009, para. 67.
62-detention-and-removals.
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303 ECJ, C-357/09 [2009] ECR I-11189, Kadzoev (Huchbarov), 30 November 2009, par
a. 60.
304
305
306 ECtHR, Auad
Mathloom
Louled v.Massoud
Bulgaria,
v. Greece,
v. No.
Malta,
No.46390/10,
48883/07,
No. 24340/08,
1124October
April
27 July
2012.2010.
2011, para. 128.
unlike Article
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or minors,
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in facilities not equipped to handle their needs to be arbitrary and in violatio
tion
n of
Article 5 of the ECHR as well as, in some cases, also raising issues under Artic
le 3ECHR.307
the of The Court also considered that asylum seekers are particularly vuln
in the context of detention and as regards conditions in which they were held.30
erable,
8307 ECtHR, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, No. 13178/03, 12 Oc
tober 2006; ECtHR,
Muskhadzhiyeva and Others v. Belgium, No. 41442/07, 19 January 2010; ECtHR, Kana
garatnamv.and
Others Belgium, No. 15297/09, 13 December 2011; ECtHR, Popov v. France, Nos.
39472/07 and
39474/07, 19 January 2012; ECtHR, M.S. v. the United Kingdom, No. 24527/08, 3 Ma
y 2012;
Price
308 ECtHR,
v.ECtHR,
theS.D.
United
v. Greece,
KingdomNo.No.53541/07,
33394/96,1110June
July2009;
2001.ECtHR, M.S.S. v. Belgium
and 30696/09,
No. Greece [GC], 21 January 2011.
four Chechen
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Example:
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children
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Mayeka
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include
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rArticle
Article5 5(1)(2):
(f):the right to be informed promptly, in a language understood by th
eperson concerned, of the reasons for his or her arrest and of any charge against
309
him ECtHR,
or her.Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, No. 13178/03, 12 Oc
toberECtHR,
310
311 2006.Rantsev
Muskhadzhiyeva
v. Cyprus andand
Others
Russia,
v. Belgium,
No. 25965/04,
No. 41442/07,
7 January192010.
January 2010.
Articleon5 (4):
Handbook European
the right
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detention in writing and provide reasons in fact and in law.For asylum seekers,
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so as to be able, if he sees fit, to challenge its lawfulness in court in accord
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.Example:
officers
312
313
314 ECtHR,took
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Saadi
Dbouba
hisv.v.
statement
v.the
Ukraine,
Turkey,
Turkey,314
United
about
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Article 47 of the EU Charter of Fundamental Rights demands that an
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Directive
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addition, Article 15 (3) of the Return Directive and Article 9 (5) of the Recept
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iontime
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establish
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that the infringement at issue actually deprived the party relying thereon of th
siders
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procedure47could
tive
Article of thehave
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been and
different.315
Article 13Provision
(4) of theofReturn
legal Directive
aid is regulated.
also requir
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individuals
matters, and that legal aid be made available to ensure access to justice. For a
egal
seekers, specific provisions on free legal assistance and representation are inc
sylum
in Article 9 of the Reception Conditions Directive (see Chapter 4 for more detai
luded
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ls).
or herthe
liberty
ECHR,beArticle
entitled5 (4)
to take
specifically
proceedingsrequires
to have
thattheeveryone
legality of
deprived
their det
of his
315 CJEU, C-383/13, M. G. and N. R. v. Staatssecretaris van Veiligheid en Justit
ention
ie, 10 September 2013.
decided speedily
Handbook on European by alawcourt
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indeprivation
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Turkey,316
through
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seeker
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and
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expulsion.
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because
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rights,
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not be separated, and children and vulnerable individuals should normally not be
uld
317
316 ECtHR, Z.N.S.
Abdolkhaniv. Turkey,
and Karimnia
No. 21896/08,
v. Turkey, 19 January
No. 30471/08,
2010; ECtHR,
22 September
Dbouba2009.
v. Tur
key,July
13
318 ECtHR,
No.2010.
15916/09,
S.D. v. Greece, No. 53541/07, 11 June 2009.
detained (see Section 6.7 concerning detention of individuals with specific need
sand children).319
Under EU law, detention conditions for persons in return procedures are regulate
din Article 16 of the Return Directive and for children and families, in Article
17. The conditions of asylum seekers are regulated in Article 10 of the revise
detention
dReception Conditions Directive (2013/33/EU), with specific provisions for vulner
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outv. B
elgium (unaccompanied
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im ofECtHR,
No.
320 25965/04,
trafficking)
Dougoz
7 January
v. Greece,
2010.No. 40907/98, 6 March 2001; ECtHR, Peers v. Greece,
19No.April
28524/95,
2001; ECtHR, S.D. v. Greece, No. 53541/07, 11 June 2009.
Article 3In
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provision
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2011.
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f Europe,
of Ministers Committee
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tionCommittee
the Rec(2006)2ofofMinisters to member states on the European Prison Rules, 11 Jan
uaryECJ,
323 2006.Joined Cases C-6/90 and C-9/90 [1991] ECR I-05357, Francovich and Bonif
aci and Others
Republic, 19 November
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need forhuman special
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groups
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An individual
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damages under both EU law and the ECHR (see Section 6.10).
or
To accesscase
Handbook
Further onfurther
European
law and
casereading:
lawlaw,
relating
pleasetoconsult
asylum,theborders
guidelines
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ndbook.
7Issues
and
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v.
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Article
12
2Fundamental
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in
(2004/573/EC)
France,
1168/2011
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Introduction
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examineslawtherelating
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asylum,an alien
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asafe, dignified and humane manner. There have been incidents of returnees dying
the removal process because of asphyxiation or suffering serious injury. Deaths
in
also occurred in detention centres before the removal could take place. The remo
have
process may also increase the risk of self-harm or suicide, either during detent
val
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ion
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regulated
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The
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(EU)rarely
No. 1168/2011.
been called on to consider the actual manner of removal. Th
is, however, a wealth of case law primarily under Articles 2, 3 and 8 of the ECH
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R.
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their handling of situations that allegedly subjected an individual to serious h
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arm.
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provisions,
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be looked
are important
at in more
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law instruments
on this issue. The Council of Europe Twenty Guidelines on Forced Return provide
specific
suseful guidance and is therefore referred to in several parts of this chapter.32
4 Thestandards
CPT
Returns
politicalareoroften
operational
alsomade
include
possible
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through
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EU,
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readmission
on returns
agreements
agreements
by air.325
concluded
can be conclud
at the
ed byCouncil of Europe, European
324
325 CommitteeCommittee
of Ministers
for the
(2005).
Prevention of Torture and Inhu
man or Degrading
Treatment or Punishment (CPT) (2002-2011), Chapter IV, pp. 69 and following.
individual Member States or by the Union. In the period 2005-2013, 15 EU readmis
agreements
sion
7.1.
and
Underhumane
Carrying
EU law,
werethe
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removal:Directive
Return most ofdignified
safe, which entered
states that forced
into returns
force.326must be carried ou
twith due respect for the dignity and the physical integrity of the person concer
(Article 8 (4)). Moreover, voluntary departures are to be given priority (Articl
ned
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Council
returns
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s on
security provisions for joint removals by air also provide guidance on, among ot
things, medical issues, the training and conduct of escort officers, and the use
her
coercive
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inmeasures.328
Directive
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processthat
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the individuals
5). In the case
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healthbyisair,
taken
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t
requires medical staff to certify that the person is fit to travel. The persons p
ypically
and mental health condition may also be the reason for a possible postponement o
hysical
fthe removal (Article 9). Due account has to be given to the right to family life
implementing
when removals (Article 5). Domestic legislation and policy may also addr
specific
ess
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Directive
issues,
requires
such asthat
women
unaccompanied
in a late stage
minorsofonly
pregnancy.
be returned to fami
members,
ly
Under
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officials
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guardian
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to whether
under
facilities
thetheir
injuries
custody
(Article
or and
harm
10).
con
are of sufficient gravity to engage Article 3 of the ECHR. An individuals particu
trol
326 Hong Kong, Macao, Sri Lanka, Albania, Russia, Ukraine, Former Yugoslav Repub
lar
lic of and
Bosnia Macedonia,
Herzegovina, Montenegro, Serbia, Moldova, Pakistan, Georgia, Cape Ver
de (not Armenia
force), yet in (not yet in force) (chronological order). Also see: Commission S
taffFor
SEC
327 (2011)
Working
more209,
Paper,
information
23 February
on EU
2011,Member
tableState
1. practices, see: FRA (2012), pp. 51-5
4.
328 Council Decision 2004/573/EC, Council Decision of 29 April 2004 on the organ
isation offrom
removals joint
theflights
territory
forof two or more Member States, of third-country natio
nalsindividual
of who are subjects
removal orders, OJ 2004 L 261/28.
vulnerabilities,
suchlaw
as those
relating
deriving
to asylum,
from age
borders
or from
and mental
immigration
health concerns,
According
have to betotaken
the Council
into account.329
of Europe Guidelines on Forced Return, authorities shou
cooperate with returnees so as to limit the necessity to use force, and returnee
ld
sshould be given an opportunity to prepare for the return (Guideline 15). Returne
mustisConfidentiality
es
7.2.
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important
be fittotoensure
travelthat
(Guideline
only the16).
information necessary to facilitate a re
is passed on to the country of return so as to preserve confidentiality of the i
moval
obtained incentre
nformation
detention the asylum
to their
process.
point of
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y.
Article
Under EU48law,
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information
Asylum Procedures
obtained during
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asylum
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proceduresandis requires
governed EUby Membe
rStates to respect the confidentiality of any information obtained. Article 30 of
the directive provides guarantees of non-disclosure of information to alleged pe
when collecting
rsecutors
Under the ECHR, ainformation
breach of confidentiality
on individual asylum
mightapplicants.
raise issues within the scope
Article 8 of the ECHR and, where a breach would lead to risk of ill-treatment up
of
return, it may fall within Article 3 of the ECHR. However, in a different contex
on
t, thehasrules
Court
detailed held and
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safeguards
that interferes
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be subject
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things,
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and arbitrariness.
usage, access
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third parties,
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concern, among
for preser
other
dataCouncil
ving
The integrity
of Europe
and confidentiality,
Twenty Guidelines
and on
procedures
Forced Return
for data
alsodestruction.330
address respect an
drestrictions imposed on the processing of personal data and the prohibition of s
information
haring
329 ECtHR, M.S.S.
relatedv.toBelgium
asylumandapplications
Greece [GC],(Guideline
No. 30696/09,
12). 21 January 2011; ECt
HR, ECtHR,
No.
330 Darraj S.
34588/07,
v. and
4France,
November
Marper v.
2010.
the United Kingdom [GC], No. 30562/04, 4 December 20
08, para. 99.
measures
7.3.
Under Serious
domesticharmlaw,caused
statebyagents,
restraint
such as custody officers or escort staff, may
empowered to use force in the exercise of their functions. Both EU law and the E
be
stipulate
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Article
Under EU law, the Return Directive sets out rules on coercive measures. Such mea
331
are to be used as a last resort and must be proportionate and not exceed reasona
sures
force.the
ble
physical
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integrity
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forceofbylife,
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force needstructure,
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and adequately
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set outandwithin
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on the use of Wher
estate agents exceed the amount of force they are reasonably entitled to use and
leads to be
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needs harm,
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to aCourt
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individuals,
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positive
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not only haveto protect
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obligationsagainst
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of life or serious injury, including from third parties or from him- or herself,
oss
331
as European
well Commission of Human Rights, Stewart v. the United Kingdom (dec.), N
o. July
10 10044/82,
1984; ECtHR, McCann and Others v. the United Kingdom, No. 18984/91, 27 S
eptember
paras.
332 ECtHR,
148-149.
1995,
Makaratzis v. Greece [GC], No. 50385/99, 20 December 2004, para. 58;
ECtHR,
Others
333 ECtHR,
Nachova
v. Bulgaria
McCann
andand
[GC],
Others
Nos.v.43577/98
the Unitedand Kingdom,
43579/98,No. 6 July
18984/91,
2005, 27
para.
September
96. 1
995, para.
ECtHR, Velikova
161; v. Bulgaria, No. 41488/98, 18 May 2000, para. 80.
as to provide
access to lawmedical
relatingservices.
to asylum, Theborders
Member States
and immigration
obligation to protect
also encompasses a duty to establish legal provisions and appropriate procedures
,including criminal provisions to prevent offences against a person, with accompa
sanctions
nying
the authorities
to deterhavethedone
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suchreasonably
offences.334be expected
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is whether
in order
known
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to considering
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including whether it was deliberate or unintentional, and whether there was adeq
rce,
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uate
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In control
forcev.employed
Turkey,336
of the and
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theECtHR
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The use of restraint may not only raise issues under Article 2, which involves a
ofloss
life or a near-death situation, such as attempted suicide that causes lasting
but
harm,
also under Articles 3 and 8 in situations where the individual is harmed or
through use
injured
Example: In Ilhan
of restraint
v. Turkey,337
that falls
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short found
of unlawful
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thanECtHR
er
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taking part in interventions against individuals in the context of Article 8 of th
ers
eECHR.338
334 ECtHR, Osman v. the United Kingdom [GC], No. 23452/94, 28 October 1998; ECtH
R, Mastromatteo
Italy [GC], No. 37703/97,
v. 24 October 2002, paras. 72 and 73; ECtHR, Finogenov an
d Others
Nos.
335 ECtHR,
18299/03
v.Branko
Russia,
and Toma.i.
27311/03,and20Others
December v. Croatia,
2011, para.No.209.
46598/06, 15 January 2009,
para.ECtHR,
336
337
338 51. Ku.era
Kaya v.v.v.Turkey,
Ilhan Turkey
Slovakia,
No. No.
[GC],
22729/93,
No.48666/99,
22277/93,
19 February
1727July
June2007,
1998.
2000,paras.
paras.122-124;
77 and ECtHR
87.
, Rachwalski
Poland, No. 47709/99,
and Ferenc28v.July 2009, paras. 58-63.
Statesorfailure
Death injury to
mayprevent
be caused
lossbyofcoercive
life, including
restraintfrom
techniques
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or or
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339 In thismeasures
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7.4.
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general principles
where he ordeveloped
she risksprimarily
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theof ECHR may in certain circumstances also be applicable in the context of force
dreturns. There must be some form of effective and official investigation when an
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State, or whensuch
ember
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A minimum level of effectiveness must be satisfied, which depends on the circums
companies.
of ensure
tances
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342 Similarly, there were also examples of breaches of Article 2 found in cases
rtem.
defective medical care in a prison hospital343 and shortcomings in the examinati
on
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For applicants
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be: See,
uld
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United Kingdom
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FGP v. Serco
and effective.
Plc & AnorThe[2012]
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340
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ECtHR,
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(Admin),
McCann and Others v. the United Kingdom [GC], No. 18984/91, 27 Septem
ber ECtHR,
ECtHR,
341 1995,
Velikova
para.
Ramsahai
161;Bulgaria,
v. and OthersNo.v.41488/98,
the Netherlands
18 May [GC],
2000, No.
para.52391/99,
80. 15 May 200
7, para.
342
343
344 ECtHR,325.
Tanl
Tarariyeva
Ta s v.v.Frankreich,
Turkey,
v. Russland,
No.No.
26129/95,
No.
39922/03,
4353/03,
10 April
1 June
14 December
2001,
2006.paras.
2006,143-147.
para. 88.
investigation
and itslaw results
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should
to also
asylum,
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s on the
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with
toand
ofto
asylum,
socialborders and immigration
Introduction
For most migrants, being permitted to enter or to remain in a state is only the
step in establishing full residence rights. Accessing employment, education, hou
first
healthcare, social security, social assistance and other social benefits can be
sing,
a challenging
exercise.
for
States
accessing
areAngenerally
acknowledged
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range
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enterrights.
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is normally
nationalities
necessarywhen they
exercising their sovereign right to permit or deny access to their territory. In
are
itprinciple,
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is notnationalities
unlawful to privileged
enter agreements
rightsortopass
enternational
or remainlegislation
in the states
permitting
territor
y. States
are therefore normally also permitted to attach differentiated conditions to suc
hentry or residence, such as stipulating that there should be no access to employ
or no recourse to public funds. States must bear in mind, however, that internat
ment
and more
ional
ground
The
exclude
European
offoreigners,
anationality,
particular
human rights
thesituation
inmore
instruments
the discretion
respective
falls under
prohibit
the
fields
a states
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hasregulate.346
sovereign
in imposing
including
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differentiated
to admit
on theor
347
conditions.
Differentiated treatment becomes less acceptable the more similar a foreigne
immigration
rs
core fundamental
situation
rightsisare to concerned,
the situationsuchofasa the
states
rightowntocitizens.348
life or the prohibit
Where
on degrading treatment, differentiated treatment amounts to prohibited discrimin
ion
349 These principles are of particular importance when looking at access to soci
ation.
This chapter provides a brief overview of both EU and Council of Europe standard
rights.
al
srelating to access to economic and social rights, namely the right to work, educ
housing,
ation,
346 EU Charter
healthcare
of Fundamental
and socialRights,
protection.
Art. 21; ECHR, Art. 14 and Protocol No. 12
, Art.
347
348
349 ECtHR,
ECSR,
1; Defence
ESC,
Bah v.
Gaygusuz
Partfor
thev.
V,Children
United
Art. E.Kingdom,
Austria, International
No. 17371/90,
No. 56328/07,
v.16the
September
27 September
Netherlands,
1996. No.
2011.47/2008, 20
October 2009.
UnderMain
Handbook
8.1. EU law,
onsources
European
EU free
of lawmovement
relating
provisions
to asylum,
haveborders
a significant
and immigration
impact on the situa
of third-country
tion
their
(2004/38/EC)
right toregulates
free
national
movement
thefamily
situation
within
members
Europe.
of their
of The
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citizens
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Movement
who have
ofDirective
whatever
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lity.
the directive.
2 (2) ofThethedirective
directivealso
defines
applies
which
to third-country
family membersnational
are coveredfamily
by membe
of citizens from Iceland, Liechtenstein and Norway.350 Family members of Swiss c
rs
enjoy a similar status.351 The family members covered by these different provisi
itizens
are not only entitled to access the labour market, but also have access to socia
ons
lbenefits.
Under EU law, Turkish citizens, although not EEA nationals, and their family mem
have a privileged position in EU Member States. This derives from the Ankara Agr
bers
of 1963anationals
eement
become
Turkish and
member
its of
1970
residing
theAdditional
EU byin1985.
theProtocol
EU,
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assumednationals
there were
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Turkey
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would
milliongroup
third-country
The
nationals,
of degree such
of access
nationals
as asylum
to the
residing
seekers,
labourinrefugees
market
the EU.ofor
352
other
long-term
categories
residents,
of third-country
is regulated
specific
by directives. In December 2011, the EU adopted the Single Permit Directiv
e(2011/98/EU), which must be transposed by end 2013. It introduces a single appli
procedureterritory,
cation
States for third-country
as well asnationals
a commontosetreside
of rights
and work
for legally
in an EUresiding
Member third-co
national
untry
In addition,
workers.
the Racial Equality Directive (2000/43/EC) prohibits discrimination
basis
on theof race or ethnicity in the context of employment and when accessing goods
and services as well as the welfare and social security system.353 It also appli
es toAgreement on the European Economic Area, 2 May 1992, Part III, Free Movement
350
and
351
of Agreement
Persons, OJ
Capital, Services
between
L 1 ofthe 3 March
European
1994.Community and its Member States, of the one p
art, and the Swiss
Confederation, of the other, on the free movement of persons, 21/06/1999, Art. 7
30 April
352 OJEuropean
L 114/7,
2002Commission,
(subsequently Eurostat
extended
(2010),
to other
MainEUcountries
Member States).
of origin of non-nationa
ls, EU-27,at:
available 2010,
http://epp.eurostat.ec.europa.eu/statistics_explained/index.php?ti
of_origin_of_non-nationals,_EU-27,_2010_(million).png&filetimestamp=201111251752
tle=File:Main_countries_
353 Directive 2000/43/EC, OJ L 180/22.
50#file.
third-country nationals; according to Article 3 (2) of the directive, however, i
t does
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to[...]
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and9United
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like the right to education in Article 14 (1) (2), as most of rights are restric
ndividuals,
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of member states party to the ESC lawfully resident or working regularly within
als
territory of a member state party to the ESC. These articles are to be interpret
the
ed in of Articles 18 and 19 on migrant workers and their families. Article 18 se
light
the right to engage in a gainful occupation in the territory of the member state
cures
sparty to the ESC, and Article 19 secures the right of migrant workers and their
to protection and assistance.
families
The ESCsonscope
Handbook European
of application
law relatingis thus
to asylum,
somewhatborders
limited,
and but
immigration
the ECSR has develope
da significant body of jurisprudence. When certain fundamental rights are at stak
ECSR case law has extended the ESCs personal scope to cover everyone in the terri
e,
including
tory,
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an important
in an relationship
irregular situation.354
to the ECHR that gives ECSR case law consi
value.
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are also
hat
8.2.
This Economic
section
regulated
looks
rightsat
by economic
the ESC. rights,
355 including access to the labour market and
right
the to equal treatment at work. Access to the labour market is usually depende
upon a persons
nt
whether lawfullylegal
or not,
status.
core labour
From therights
momenthave
a person
to be respected.
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of legal
ardless
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ECHR, workers
out. andare social
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with t
exception of the prohibition of slavery and forced labour (Article 4) and the ri
he
ght totrade
form
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cases in
(Article
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areas, the Court has examined the situation of a fo
who then
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was
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allowed
the v.
right
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commence
to exercise
training
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permitted
and to commen
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354 ECSR,
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refused
beingRights
admitted
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to thev.to
Greek
France,
sit forComplaint
the Bar
8No.September
355 14/2003,Demir
ECtHR, 2004.
merits,
and Baykara v. Turkey [GC], No. 34503/97, 12 November 2008, par
as. 85, 86.
examples of relevant
Other international instruments applicable in this field include
theEconomic,
on International
SocialCovenant
and Cultural Rights (ICESCR), the UN Convention on Migrant W
orkers
ILO
356 Convention
ECtHR,
and Bigaeva
143.v. Greece, No. 26713/05, 28 May 2009.
noted that theonBar
examinations theCouncil
groundshadthatallowed
she wasthenotapplicant
a Greek to
national.
commenceTheherECtHR
traineeship
athe
professionally,
although
lack
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itconsistency
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clearhadand
that
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constituted
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respect
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found
towards
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unlawful
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authorities
interference
not beboth
entitled
conduct
personally
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sitand
shown
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fe
that the meaning foreigners
of Article
from8the
of law
the profession
ECHR. The ECtHR
was, in
diditself,
not find,
discriminatory
however,
.Under the ESC, Article 18 provides for the right to engage in a gainful occupati
on interritory of other member states party to the ESC. This provision does not r
the
entry tothan
egulate
rather themandatory.
territory It fordoes
workrequire,
purposeshowever,
and is inthat
somework
respects
permitexhortatory
refusal rates
not too high;357 that work and residence permits be obtainable by means of a sin
be
application procedure and without excessive fees and charges;358 that any work p
gle
granted be not too restrictive geographically and/or occupationally;359 and loss
ermits
permit,
Article
migrant
of employment
giving
19
workers
of the
need
the
onESC
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person
the automatically
territory
time an
toofextensive
look
other
andforimmediately
State
another
catalogue
Parties,
job.360
lead
of but
provisions
to with
loss the
ofsupporting
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stipulatio
n thatmust be there lawfully (see, however, Chapter 3 for details on Article 19 (
they
The ESCthe
8)).
hours, alsoright
coversto paid
workingannual
conditions,
leave, the suchright
as the
to health
right toandreasonable
safety atworking
the wor
and theEUisright
kplace,
Under
Rights
occupation law,
the
(Article
toright
one fair
of 15
the
toremuneration.361
engage
(1)
freedoms
of the
in work
enshrined
Charter).
and toinThis
pursue
theright
EUaCharter
freely
is, however,
of Fundamental
chosen or accepted
circumscribed
national
by law, including national laws regulating the right for foreigners to wor
k. The recognises the right to collective bargaining (Article 28) and the freed
Charter
om totrade unions (Article 12). It also grants everyone the right to free placem
form
357 ECSR, Marangopoulos
ent
358
359
360
361 Conclusions XVII-2,
V,Foundation
Germany,
Spain,
Germany,
Finland,
Art.
forArt.
18 (3).
Art.
Human
1818Rights
(1).
(2). v. Greece, Complaint No. 30/
(3).
62005,
December
merits,2006, which refers to mine workers.
services (Article
Handbook on European29).lawEvery
relating
worker,
to including
asylum, borders
non-EUandnationals,
immigration
enjoys protecti
from unjustified dismissals (Article 30), the right to fair and just working con
on
as well as the right to rest and to paid annual leave (Article 31). Article 16 g
ditions,
thehealth
uarantees
of freedomandtosafety
conductatbusiness.
work (Article
The Charter
31). Italso
alsoprovides
prohibitsforchild
the labour
protection
(Artic
le 32). EU law devoted to a specific category of persons usually regulates acc
Secondary
to the labour market. Third-country nationals have differing degrees of access t
ess
othe labour market depending on the category to which they belong. Sections 8.2.1
8.2.8 briefly outline the situation of the main categories of third-country nati
8.2.1.
onals.
Under
who exercise
EUFamily
law,free
members
designated
movement
of family
EEArights
andmembers
Swiss
as well
nationals
as
of of
whatever
other EEA
nationality
citizensand of Swiss
EU citizens
cit
haveself-employment,
izens
and
Statestheownright
nationals
to moveand
(Article
freely
have the
throughout
24 of
right
thetoFree
Europe
treatment
Movement
for the
equal
Directive
purposes
to a Member
of employment
for EU nationals)
.Family members of Swiss nationals do not have the right to full equality of trea
in this respect.362 Temporary restrictions to access the labour market have been
tment
the
In
placed
the
possibility
by some of
context EUtothe
Member
extend
freeStates
itmovement
further
on Croatian
ofupcitizens
to June
nationals
2020their
and inuntil
certain
family
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2015, butofwith
members what
nationality,
ever
reserve employment
Articlein45the(4)public
of theservice
TFEU makes
for their
provision
own nationals.
for MemberTheStates
ECJ has
to in
this strictly
terpreted
positions for nationals
and has notonly,allowed
for example
Member States
to worktoasreserve
a trainee
access
teacher363
to certain
or a f
language
oreign
362 CJEU,university
C-70/09 [2010]
assistant.364
ECR I-07233, Alexander Hengartner and Rudolf Gasser v.
Vorarlberg,
Landesregierung
363 ECJ, C-66/85
15 July[1986]
2010,ECRparas.
I-02121,
39-43.
Deborah Lawrie-Blum v. Land Baden-W rttemberg
, 3 ECJ,
paras.
364 July26Joined
1986,
and 27.Cases C-259/91, C-331/91 and C-332/91 [1993] I-04309, Pilar Allu
and Carmel
Mary Coonan and Others v. Universit degli studi di Venezia and Universit degli stu
2diAugust
di Parma,
1993, paras. 15-21.
To facilitate the genuine free movement of workers, the EU has also adopted comp
legislation concerning the mutual recognition of qualifications, both in general
lex
and per sector, which apply to third-country national family members as well as
EEA nationals. Directive 2005/36/EC on the recognition of professional qualifica
to
was last consolidated
tions
provisions relating tointhose Marchwho2011
have(note
obtained
also all
amendments).
or part ofThere
theirarequalificatio
complex
outside the EU, even if those qualifications have already been recognised in one
ns
8.2.2.
field.365
Those
EU Member
third-country
Posted
State. workers
Thenationals
ECJ/CJEU not
has enjoying
handed down freemore
movement
than 100
rights
judgments
but whoinare
thislawf
working
ully
by that employer
for an employer
to carryinout
onework
Member
on its
State,
behalf
and in
whoanother
are temporarily
Member, State
sent are co
by to
vered
is
throughout
theguarantee
Posting
the European
oftheWorkers
protection
Union
Directive
inoforder
posted
(96/71/EC).
toworkers
preventThesocial
rights
purpose
and
dumping.
ofworking
the directive
More
conditions
explicitly,
the directive is aimed at reconciling the freedom to provide cross-border servic
under Article 56 of the TFEU with appropriate protection of the rights of worker
es
stemporarily posted abroad for that purpose.366 As the ECJ highlighted, this cann
however
ot
to respect
leadthetorelevant
a situation
labour
in law
whichofanboth
employer
the sending
is obliged
stateunder
and the
thehost
directive
countr
as that
y,
To
equivalent.367
the protection
extent, thestandard
directive
granted
sets out
in the
minimum
two Member
standards
States
thatcanmust
be apply
regarded
to empl
as
from one Member
oyees
directive provides State
thatposted
termstoandwork
conditions
in another.
established
Specifically,
by theArticle
host countrys
3 of theleg
or by universally
islation
especially in relationapplicable
to maximum
collective
work periods
agreements,
and minimum
apply torestposted
periods,
workers,
breaks,
365
annual
Forholidays
a list ofandtheratesjudgments
of pay.with summaries, see European Commission, List of
ofjudgements
MARKT/D4/JMV/
366 the
ECJ,Court
C-346/06
of1091649
Justice
[2008]
/5/2010-EN.
concerning
I-01989, Dirkprofessional
R ffert v. recognition,
Land Niedersachsen,
22 December3 April
2010,2008
.367 ECJ, C-341/05 [2007] I-11767, Laval un Partneri Ltd v. Svenska Byggnadsarbet
Svenska
aref rbundet,
Byggnadsarbetaref rbundets avdelning 1 Byggettan and Svenska Elektrikerf rbu
18 December 2007.
ndet,
Cards
Handbook
In
improve
8.2.3.
Directive.
After
March
two
are
Blue
the
onentitled
2012,
years
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Cardthe
ofholders,
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legal
to law
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researchers
and
Commission
treatment
enforcement
to third-country
asylum,
and
with
proposed
students
ofborders
nationals
thea existing
directive368
nationals
andregards
as immigration
Posting
whowhich
access
hold
ofseeks
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EUtoBlue
any
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qualified employment in the host Member State. After 18 months of legal residenc
ghly
ein take
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up highly
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subjectmaytomove
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another
States
Memberlimits
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enumberArticle
Under of non-nationals
15 (6) of the accepted.
Blue Card Directive (2009/50/EC), the family members
EUofBlue Card holders, of whatever nationality, acquire an automatic general righ
t to the labour market. Unlike the Family Reunification Directive (2003/86/EC)
access
,the Blue CardareDirective
Researchers covered by doesthenotScientific
impose a Research
time limitDirective
for acquiring
(2005/71/EC;
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travel
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Annex
signed
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to pose a threat to public policy, public security or public health. The issue o
ered
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permits
States. for researchers
This directive, much familylikemembers
the Single
remainsPermit
at the
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grant ri
ghtsthe
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The
to Students
ofEU
reunification
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study, pupil
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family
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membersunremunerated
regulates
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third
training
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ornationals
voluntaryadmitted
service
.Member States have to allow students to work outside of study time for a maximum
also
In
Research
number
March
require
ofDirective
2013,
hours
that
the
percertain
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and
weektheasother
Students
set conditions
Commission
by the
Directive
Member
proposed
be to
State,
fulfilled
amending
improve
but(Article
the Scientific
admission
Member
17).
conditions
State may an
d368 European Commission (2012), Proposal for Directive concerning the enforcemen
t of the provision
applicable to the posting of workers in the framework of the provision of servic
es, COM(2012) 131 final.
extend their rights.369 The proposal also includes provisions for remunerated tr
and au Turkish
ainees
8.2.4.
Turkish pairs.
citizenscitizens
have a particularly privileged position under the 1963 Ankara A
and itsAssociation
greement
Turkey 1970 Additional
Council
Protocol,
set up under
as wellthose
as the
instruments.
decisions Turkish
taken bycitizens
the EEC-do n
have the direct right to enter any EU Member State in order to take up employmen
ot
If a then
t.
they
After Member
threehave
States
years,
the under
right
national
to continue
certain
law,conditions,
however,
in thatpermits
same may
they employment
themalsoto seek
take
after
up one
otheremployment,
employment
year.370
under Article 6 (1) of Decision No. 1/80 of the EEC-Turkey Association Council.
EEA other
Like
Example:
Tetik
for
periodworkers,
aofresidence
Inlawful
employment.
the
Turkish
Tetik
residence
permit
workers
case,371
The after
ECJ
inare
found
order
thedefined
he completed
German
thatseek
to inauthorities
he a broad
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had
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to
work bemanner.
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The
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her
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ofGenc372
ahours,
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onlyan6works
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Under
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Article
No. 1/80
genuine.
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the Association
No. 1/80,Council,
family members
providedofthat a Turkish
her employment
worker, evenis i
fthe family members are not Turkish citizens themselves, can access the labour ma
after they have been legally residing for three years. Objective reasons may jus
rket
the ECJ,
tify
369
370 familyC-386/95
European member
Commission,
concerned
[1997] COM(2013)
I-02697,
livingS151 apart
leyman
final,
from
Eker
thev.Turkish
Brussels,
Land 25 Baden-W
migrant
Marchttemberg,
2013.
worker.37329 May 199
7, paras.
371
372 ECJ, C-171/95,
CJEU, 20-22. [2010]
C-14/09 Recep I-00931,
Tetik v. HavaLand Genc
Berlin,
v. Land
23 January
Berlin,1997,4 February
para. 30. 2010, par
as. ECJ,
373 27, 28.C-351/95 [1997] ECR I-02133, Kadiman v. Freistaat Bayern, 17 April 1997
, para. 44.
child
AHandbook
country
legally
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him ECJ,
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security.378Agreements are in place with Albania, the form
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seven states). Agreements have been signed with the 79 Afro-Caribbean Pacific st
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377 Euro-Mediterranean Agreement establishing an association between the Europea
-21.
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art,1 March
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he Republic
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of other part (entered into force on 1 March 1998), OJ 1998 L97, p.
378
2. ECJ, C-18/90 [2009] ECR I-00199, Office National de lemploi v. Bahia Kziber,
31 January 1991.
third-country
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I-00199,
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ffice
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onomic
and theCommunity
Kingdom of Morocco, Art. 41 (1) allocation datteinte, OJ 1978 L 264 pp. 21
18, EU-Morocco
the superseded Euro-Mediterranean
by Association Agreement); ECJ, C-416/96 [1999] E
CR I-01209,
Yassini v. Secretary
El of State for the Home Department, 2 March 1999 (Cooperation
the
Agreement
Europeanbetween
Economic Community and the Kingdom of Morocco); ECJ, C-438/00 [2003
] I-04135,
Deutscher
380 ECJ, C-416/96
Handballbund[1999]v.ECR Kolpak,
I-01209,
8 MayEl2003
Yassini
(Slovak
v. Secretary
Republic).of State for the H
2omeMarch
381 Department,
ECJ, 1999,
C-237/91
paras.[1992]
64, ECR
65, I-6781,
67. Kazim Kus v. Landeshauptstadt Wiesbaden, 16
paras.
December21-23
1992,
and 29.
Example: In Gattoussi,382 the Court was called to decide a similar case, but und
the prohibition of discrimination laid down in Article 64 (1) of the Euro-Medite
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nd
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applicable
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nationals.
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cember
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383 Stabilisation
39.
2006, and Association Agreement between the European Communities and
oftheir
the one
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States,
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partnership and cooperation establishing a partnership between
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a professional
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st
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unauthorised economic migrants. The key measure is the Employer Sanctions Direct
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388 ECtHR, Ponomaryovi
European Commissionv.ofBulgaria,
Human Rights,No. 5335/05,
Karus v.21Italy June(dec.),
2011, paras.
No. 29043/95,
59-63. 20
May 1998.
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No. 492/2011
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(EU)
of Regulation
No. 492/2011, OJ L 141/1, 5 April 2011) and especially on ECJ, Joined Cases
[1989]
C-389/87
ECRand I-00723,
390/87G. B. C. Echternach and A. Moritz v. Minister van Onderwijs
en March
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1989, and on ECJ, C-413/99 [2002] ECR I-07091, Baumbast and R v. Secret
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Directive.392
Handbook
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ditions,
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395
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Kingdom
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[GC],
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337/9,
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Art.
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1986, paras.
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5-58.
a violation of Article 3 of the ECHR on the prohibition of inhuman and degrading
Example:
treatment.In M.S.S. v. Belgium and Greece,396 the ECtHR found that Greeces failure
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27 September
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ilahi Abdulwahidi
Netherlands (dec.),v.No. the21741/07, 12 November 2013.
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mber 2012;
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ty December
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country nationals and requires some of them to have sickness insurance before th
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412 inRegulation
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114/6. Art. 19 (1); C
JEU,I-05267,
ECR C-211/08European
[2010] Commission v. Kingdom of Spain, 15 June 2010, paras. 58 an
d 61.Decision 2012/195/EU of the Joint Committee established under the Agreement
413
between theandEuropean
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security
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103/51.No. 1408/71, at issue in both ECJ, C
-368/98,
Abdon Vanbraekel
[2001] ECRandI-05363,
Others v. Alliance nationale des mutualit s chr tiennes (ANMC),
ECJ,
12 July
C-372/04
2011 [2010]
and ECR I-04325, The Queen, on the application of Yvonne Watts
v. Bedford
Care Trust andPrimary
Secretary of State for Health, 16 May 2006.
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are entitled to necessary healthcare, which must include at least emergency care
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security
necessary
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s, or
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thererange
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e.
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as the applicants complaints relate to his difficult financial situation, the Cou
recalls thatasneither
rt
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cial
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fstates that refused benefits to lawful residents on the discriminatory basis tha
t they
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not meet
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nationality
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tbenefits to aThe
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case ofcitizen
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v. France418
that he concerned
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ol
Example: the case
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peaceful v.enjoyment
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The ECtHR,
ts.
was
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415
416 applicant
part
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working
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thehad
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worked
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mostargument
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of(dec.),
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her
77782/01,
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awould
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citizen.
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1999. because
Fawsie
whenappli
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itv.
sheGr
eece,
28
417
418
419 October
ECtHR,
No. 40080/07,
2010.Poirrez
Gaygusuz
Koua
Andrejeva v.v.Austria,
v. France,
Latvia [GC],
No.No.
17371/90,
No.40892/98,
55707/00,16 30
September
18September
February
1996,
2003,
2009,
paras.
para.
para.
46-50.
41.
91.
cant to become
a naturalised
law relating
Latvian
to citizen
asylum, inborders
orderandto receive
immigration the full amount
of the pension claimed. The prohibition of discrimination enshrined in Article 1
4of the ECHR was only meaningful if, in each particular case, the applicants perso
situation
nal
to
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victims
criteria
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taken
listed
asonisthe
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ation
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ubject
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or
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of
had
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application,
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public
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the
only
Article
were
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maternity
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Hungarian
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hArticlethe14.ESC, there is a right to social security (Article 12), a right to soci
Under
al and assistance (Article 13) and a right to benefit from social welfare servi
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far
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EUinlaw,situation.
two situations regarding third-country nationals have to be distin
First,
guished.
for third-country
there is a nationals
system of moving
coordination
withinofthebenefits
EU. Second,
amongspecific
Member States
categories of
420 ECtHR, Weller v. Hungary, No. 44399/05, 31 March 2009, paras. 36-39.
EU Member
third-country
regardless
a)
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State
of national
nationals
whether
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rights.
movement
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been codified
that the
in EU-wide
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883/2004/EC
is a system(as ofamended)421
coordination, no
tharmonisation.422
between
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treatment
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(EU)
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465/2012)
883/2004.
arebetween
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outthethebenefit
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-border
(EC) the
tions
that No. employed
859/2003 third-country
and (EU) No. 1231/2010).
nationals are Thislegally
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resident
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Member States
State.
territory
These
andregulations
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not cover
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to the thirdthird-country
country andnationals
a singlethat Member
only
421
haveThe
links
regulation
to a third hascountry
been amended
and a by
single
Regulation
Member (EC)
State.No. 988/2009, OJ 2009 L 2
84/ 43,
(EU) No.Regulation
1231/2010 , OJ 2010 L 344/1 and most recently in 2012 by Regulation (EU
) No.
OJ
422 2012
ECJ,
465/2012,
LC-21/87
149/4. [1988] ECR I-03715, Borowitz v. Bundesversicherungsanstalt f r An
5 July 1988, para. 23; ECJ, C-331/06 [2008] ECR I-01957, Chuck v. Raad van Bestu
gestellte,
ur van de Sociale 3 April 2008, para. 27.
Verzekeringsbank,
Asylum
Handbook
b) Entitlements
seekers
on European
have
for no
certain
lawspecific
relating
categories
right
to asylum,
toofaccess
third-country
borders
socialandassistance
nationals
immigrationunder the Rece
Conditions
ption
on the availability
Directiveof(2013/33/EU).
material receptionArticleconditions
17, however, andsets
Article
out 17
general
(5) rules
which is
applicable
not to Ireland and the United Kingdom indicates how the amount of financi
allowances
al
Example:
(Bundesverfassungsgericht)
to
cover
the
Under
asylum
German
theOnminimum
Article
seekers,
or1829
Constitution.423
vouchers
July
ofrequired
which
2012,
the isrevised
itthe
toto
ruled
had
beensure
German
determined.
not
Qualification
thatincreased
aFederal
Germany
dignified
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mustexistence
for
Directive,
19increase
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and
under
Court
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aid
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State
given
didis1notto
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that refugees and beneficiaries of subsidiary protection receive necessary social
sure
assistance equal to that provided to a national in the host Member State. For sub
protection
sidiary
Article 23 (2)
status extends
holders,
benefits
however,
to the
thisfamily
can bemembers
limitedoftobeneficiaries
core benefits.
of subsid
protection. According to Article 11 (7) of the Anti-Trafficking Directive, Membe
iary
rStates are required to attend to victims of trafficking with special needs, and
requirements
specific
Under
resident
with
Articleregard
the11status
Long-Term
(1)
toare(d).
social
are
setSocial
Residents
entitled
for
security,
child
assistance
toDirective,
victims
equal and
social treatment
ofthose
assistance
trafficking
socialwho
with
protection
and
have
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(Articles
social
acquired
hostentitlements,
protection
country
13).
long-term
nationals
under
howeve
r, limited
be
The may
Family Reunification
to core benefits. Directive does not provide access to social assistance
family members of third-country national sponsors. The sponsors have to show tha
to
tthey have stable and regular resources that are sufficient to maintain themselve
s as as the family member without recourse to the Member States social assistance
well
423
system
Germany,
(Article Bundesverfassungsgericht,
7 (1) (c) of the directive). 1 BvL 10/10 and 1 BvL 2/11, 18 July 2012.
Anpoints
Key
General acknowledged
points under right
EU to
lawenter
and theor remain
ESC is normally necessary in order to acces
seconomic Core components
and socialofrights
social(see
rights
Introduction
are to be provided
to this chapter).
to any individual present in
territory the (see references to migrants in an irregular situation in Sections 8.2
The closer the migrants situation is to that of a states own citizens, the greater
8.6).
justification
the that will be required if discriminating on the ground of nationali
tyMany
Introduction
(seerightstounderthisthe
chapter).
EU Charter of Fundamental Rights are restricted solely to
andThethose
citizens
rights ESC
is,enshrines
lawfully
in principle,
resident
a bodyrestricted
ofineconomic
an EUtoMember
and social
nationals
Stateofrights;
(see
a state
Section
theparty
enjoyment
8.1).
to theofESCthese
whe
n in the ofwhen
territory
exceptions another
it concerned
state party
housing
to the
forESC.
children
The ECSR
(seehas,
Section
however,
8.4) and
madehealthca
some
(see
re
EconomicAccess
Section
rights
to the
8.5).
under EUmarket
labour law can be restricted; however, from the moment a person
is working, whether lawfully or not, core labour rights have to be respected (se
eSection
The degree
8.2).to which third-country nationals have access to the labour market dif
according
fers Qualifyingto family
which category
members oftheyEEAbelong
nationals
(see have
Section
the8.1).
same right to access the lab
market
our Turkish
as citizens benefit
of an EUfrom
Member
theState
standstill
(see Section
clause of8.2.1).
Article 41 of the Additio
nalAsylum
to
them
granted
the
Protocol
(see
Ankara
access
seekers
Section
Agreement,
towhose
8.2.4).
the labour
claims
whichmarket
have
prevents
not
at the
yet
states
beenfrom
latestdecided
nine
imposing
months
at first
new
(oneinstance
burdens
year inonmust
Irelabe
and the United Kingdom) after their application for international protection (se
nd
eSection
The Employer
8.2.7).Sanctions Directive penalises those who employ migrants in an irreg
situation and also provides the right to claim withheld pay and some other prote
ular
for migrants in abusive situations (see Section 8.2.8).
ction
Pursuanton(see
Handbook
Education toEuropean
Article
Sectionlaw
28.3)
ofrelating
ProtocoltoNo.asylum,
1 to the
borders
ECHR,andnoimmigration
one must be denied the r
toAll
ight
imposing education.
third-country
certainMember
limitations
national
states, children
however,
in respectstaying
enjoy
of higher
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wider
the
levels
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EU, including
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appreciation
migrantsinin an
situation
irregular
to
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includes EUaccess
law(see
deals
specific
whose
basic
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with
removal
education.
provisions
housing
8.4)has through
been
for third-country
postponed,
the EU Charter
arenational
entitled
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family
under members
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itlaw
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long-term
tionals,
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required
EU law.
in to
needprovide
of international
asylum seekers protection
with a standard
and victims of livin
of
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8for
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health
authorities
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and someones
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ensuring
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Healthcare
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onal Persons affiliated
(see Section with8.5)
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benefit
can from local healthcare provisions when they visit other EEA Member States
whereas
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Under
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postponed
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EU contains
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examine
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EU guarantees
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this
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(see
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migrants
body
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8.6)
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ECHR.
Member
built
situation.
States
up over
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yearstheregarding
ECHR, theentitlement
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security orandother
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assistance.
to a foreigne
r may an issue of discrimination regardless of whether he or she contributed to
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out. to persons in need, includ
those in an irregular situation.
ing
To accesscase
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law and
casereading:
ndbook.
9Issues
specific
EU
CoE
ESC,
minors
Unaccompanied
to
ECtHR,
protection)
(unaccompanied
seeker
Dublin
centre)
604/2013,
CJEU,
(Dublin
(2013/33/EU),
Qualification
Return
Reception
Asylum
treatment
(2013/32/EU),
Age
Trafficking
Article
Persons
Charter
social,
assessmentConvention
Article
C-648/11,
Rahimi
detained
Regulation,
Directive
Procedures
covered
24
transfers)
31
10
with
needs
Article
Conditions
and
ofin17Article
(the
legal
(3) Fundamental
v.
Directive
minor
Human
rights
(right
in
2013,
and
Greece,
(2008/115/EC),
8Regulation
Directive
adult
economic
asylum
Directive
Beings,
MA,
24
25
of(2011/95/EU),
2011
detention
on
Rights,
the
children
BT Action
and
child)
(EU)
DAagainst
Introduction
Handbook
EU
Anti-Trafficking
CoE
(2011/36/EU)
ECHR,
trafficking
slavery
Russia,
carry
motion)
Trafficking
Convention
with
Persons
Reception
disabilities
(2013/33/EU),
Asylum
(2013/32/EU),
Victims
and
forms
ECtHR,
(domestic
This
Issues
other
Disabilities
chapter
Article
out
of
Rantsev
Procedures
Opuz
covered
and
2010
with
of
onviolence)
violence
investigation
Conditions
serious
onv.
torture
European
forced
in
(authorities
will
4Turkey,
Action
the
Articles
Article
v.(prohibition
Human
Directive
Cyprus
Rights
(ratified
Directive
look
labour)
law
against
Beings
Directive
14at
25
2419,
2009
ofof
relating
and
obliged
certain
their
21
Persons
byofand
theown
toEU)asylum,
22
groups of individuals
borders andwho
immigration
could be classified
especially vulnerable and requiring specific attention. In addition to what has
as
generally said in previous chapters, both EU and ECHR law may afford extra prote
been
to EU
ction
In
account,
persons
law,forthe
with
example
specific
specific
in reception
situation
needs. arrangements
of vulnerableorpersons
when depriving
needs to persons
be takenofinto
thei
rliberty. Vulnerable persons are listed in Article 21 of the Reception Conditions
(2013/33/EU)
Directive and Article 3 (9) of the Return Directive (2008/115/EC). Both provi
include
sions
people,
been subjected
minors,towomen,
pregnant unaccompanied
torture,single
rapeparents
minors,
or otherwith
persons
serious
minor
with
forms
children
disabilities,
of psychological,
and persons
elderly
whophysica
have
l or violence, but the list in the Reception Conditions Directive is longer and
sexual
exhaustive.
non- Pursuant to Article 22 of the Reception Conditions Directive states
assess whether vulnerable persons have special reception needs. The Asylum Proce
must
Directive
dures
need of special
(2013/32/EU)
procedural
requires
guarantees
statesand to if
assess
so provide
if an asylum
him orseeker
her with
is adequate
in
support during the asylum procedure (Article 24).
18 who
9.1.
The term
Unaccompanied
enter
unaccompanied
European
minors
territory
minors without
is used an
to adult
describeresponsible
individuals forunder
them in
thethe
agerec
of
state (see Qualification Directive, Article 2 (l)). There are key provisions of
eiving
legislation on asylum and immigration that address their situation, which will b
EU
ereviewed
The
minors,
Article
ECHR5but
does
inontheir
this
the
notright
section.
expressly
treatment
to liberty
contain
may beand
considered
provisions
security,under
inArticle
relation
various
8 ontoprovisions,
the
unaccompanied
right tosuch
respec
as
t forfamily
and privatelife or Article 2 of Protocol No. 1 on the right to education. The EC
has held that states have a responsibility to look after unaccompanied minors an
tHR
dnot decision
Any to abandonconcerning
them whenareleasing
child mustthem
be based
from detention.424
on respect for the rights of the c
as set out in the UN Convention on the Rights of the Child (CRC), which has been
hild
ratified by all states except Somalia and the United States of America. The CRC
out childrens human rights that are to be applied regardless of immigration statu
lays
s.
and
425 public
The principle
authorities
of the
mustbest
makeinterests
this a primary
of the consideration
child is of fundamental
when takingimportance
action
srelated to children. Unlike the EU Charter of Fundamental Rights, this principle
explicitly
is not stated in the ECHR, but it is regularly expressed in its case law. Th
e principle
also underpins specific provisions of EU legislation in relation to unaccompanie
dminors.
The ESC refers to separated children in Article 17 (1) (c). The ECSR like the EC
has highlighted that states interested in stopping attempts to circumvent immigr
tHR
rules must their
ation
protection not deprive
statusforeign
warrants.minors,
The protection
especiallyofiffundamental
unaccompanied, rights
of and
the the c
imposed
onstraints
424
425 ECtHR,
The by Committee
UN a states
Rahimi v. on
immigration
Greece,
the Rights
No. 8687/08,
policy
of themust
5 April
Child
therefore
has2011.
provided
be reconciled.426
additional guidance
and
forproper
the protection,
treatment of
careunaccompanied children in its General Comment No. 6 (200
5), ECSR,
426
http://www.refworld.org/docid/42dd174b4.html.
available
Defence
at: for Children International v. the Netherlands, Complaint No. 4
7/2008,
20 October
merits,
2009. The Committee held, inter alia, that unaccompanied minors enjoy
under
a right
Art.to31shelter
(2) of the ESC.
process,
Handbook
9.1.1.
Under
asylum
Before EUconsidering
Reception
instruments
on is
law,
it European
specific
important
andthe
astreatment
law
well
provisions
treatment
relating
to asbeinaware
the
of
tounaccompanied
for asylum,
Return
of
unaccompanied
whichDirective.
borders
stateminors
minors
is
andresponsible
immigration
during
are contained
thefor
application
processin
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8). They
application.
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which
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with
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Regulation
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examined
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bypresent
(EU) 6
the
gives guidance on how to assess the best interests of the child. Article 11 cont
(3)
rules to avoid separation through the application of the Dublin Regulation (Regu
ains
(EU) No.State.
lation
Member 604/2013)
Finally,
in case
Article
family16 deals
memberswith submit
dependent
separatepersons.
applications
(see Section
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)In the absence of a family member, a sibling or a relative, the Member State res
is the state where the child has lodged his or her application for asylum provid
ponsible
thatCJEU
ed
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the it ishad
IninMA,
tothedetermine
BTbest
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v. Secretary
which state
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responsible
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Home
the case
Department,427
of an unaccomp
minor whoin
anied
States.
present Thehad
aCJEU
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submitted
clarified
State,
asylum
thatstate
the applications
in theinabsence
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present is
responsible for examining such claim. In doing so, it relied on Article 24 (2) o
f soon
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Directive).
of the
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relating
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aThe
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to Conditions
legislation
children,do
not, however, provide for the appointment of a representative from the moment an
es
unaccompanied minor is detected by the authorities. States can decide to appoint
the same or different representatives to assist the asylum seeker in the asylum
as well
procedure
427 CJEU,asC-648/11,
to ensureThe theQueen,
minorsonwell-being
the application
while of theandasylum
Others
application
v. Secretary
is of
State for the6 June
Department, Home 2013.
processed. Under the Asylum Procedures Directive, a representative must be given
an opportunity to discuss matters with the minor before the asylum interview and
Any
with
Article
accompany
interview
knowledge
25).
himThere
orofher
with the
antospecial
are unaccompanied
restrictions
it. needs to minor
of thismust
the processing
group
be (Asylum
conducted
of applications
Procedures
by someoneDirective,
by unaccom
minors
panied
is allowed
at the
onlyborder,
in theincases
transit
listed
zones
in Article
or through25 (6).
accelerated
In suchprocedures,
cases the directi
which
ve allows
states not to grant an automatic right to stay to unaccompanied minors during th
ereview of a negative decision, but only when the conditions listed in Article 46
the
(7)directive
of are met. These include, for example, the necessary language and le
assistance and at least one week to ask a court or tribunal for the right to rem
gal
ain Reception
the
The on
territory pending theDirective
Conditions outcome of(Article
the appeal.
24) provides guidance on the type of
relatives,
accommodationwithtoabefoster
provided
family,
to unaccompanied
in reception centres
minors, with
whichspecial
must beprovisions
with adultfo
r minors,
or
fullyin prohibited
other suitable
but is
accommodation.
only allowedDetention
in exceptional
of unaccompanied
circumstancesminors
and never
is notin p
accommodation (Article 11 (3) of the recast directive). The directive also notes
rison
applicants
that aged 16 and over, but under the age of 18 and therefore still minors,
bemayplaced in accommodation centres for adult asylum seekers, but only if it is i
n theinterests of the child (this condition is not applicable to Ireland and the
best
Kingdom,
Article
United 24asofitthewasReception
introducedConditions
with the Directive
2013 recastfurther
directive).
specifies that as far a
s possiblemust be kept together, taking into account the best interests of the mi
siblings
nor concerned
and,
unaccompanied
in particular,
minorshismustorbeherkept
agetoanda minimum.
degree ofFurthermore,
maturity. Residence
the directive
changesstipu
of
that Member
lates
minors as soon
States
as possible
must trywithto trace
due regard
the family
for their
members
safety.
of unaccompanied
Finally, it ensures
working
The
thatrevised
individuals
withQualification
unaccompaniedDirective
minors must(2011/95/EU)
receive appropriate
includes specific
training.provisions fo
runaccompanied
EU
minorMember
and that
States
minors
regular
are required
whoassessments
are granted
to ensure
arerefugee
carried
representation
orout
subsidiary
by the
of appropriate
the
protection
unaccompanied
status.
authoritie
The appointed representative can be a legal guardian or, where necessary, a
s.
representative
of an organisation
law relating responsible
to asylum, borders
for theandcareimmigration
and well-being of min
or any other
ors,
Article 31 ofappropriate
the Qualification
representative
Directive(Article
further31).
requires Member States to ensu
that unaccompanied minors granted asylum are placed with adult relatives, a fost
re
family, in reception centres with special provisions for minors, or in other sui
er
accommodation.
table
into account inThe accordance
childs with
viewstheon minors
the typeage
of and
accommodation
maturity. The
mustdirective
be taken echoes
the Reception Conditions Directive provisions regarding placement with siblings,
Under
familyArticle
tracing10andoftraining
the Returnof Directive
adults working(2008/115/EC),
with unaccompanied
when removing
minors.an unaccom
minor must
panied
State from bea Member
satisfied
States
thatterritory,
he or she will
the authorities
be returnedoftothat
a member
Memberof his or he
rfamily, a nominated guardian or adequate reception facilities in the state of re
There ismust
turn.
return no give
absolutedue consideration
ban on returning to the
unaccompanied
best interests
minors,
of the
but child.
the decision
If return
to
oristaken
be
Under
apostponed
period
theinto
ECHR,
foraccount
voluntary
the ECtHR
(Article
repatriation
has held
14).thatgranted,
respecting
childrens
the bestspecial
interestsneeds
of the
mustchi
requires that other placement options than detention be explored for the unaccom
ld
Example:
minors.
panied
minor
without
ECtHR
failure
treatment
9.1.2.
Under who
concluded
EU
Age
the
to
Inproscribed
law,
had
take
assessment
Rahimi
authorities
been
the
that
care
Asylum
v.by
detained
the
of
Greece,428
offering
him
Article
applicants
Procedures
in an3.him
following
the
adult
Directive
applicant
any
conditions
hisdetention
assistance
release
allows
was
ofhad
centre
anwith
detention
Member
unaccompanied
amounted
andStates
accommodation.
later
andtothe
degrading
released
to
Afghan
authorities
useThemedica
lexaminations
of
(Article
their 25).
asylumtoInapplication
determine
cases where
thewhen
medical
agethey
of examinations
unaccompanied
have doubts are
about
minors
used,
anwithin
applicants
MembertheStates
context
ageshould
428 ECtHR, Rahimi v. Greece, No. 8687/08, 5 April 2011.
and thatthat
ensure their
unaccompanied
consent is sought.
minors are
Theinformed
age assessment
beforehand
issueofhas
suchbecome
an assessment
increasing
contentious throughout Europe. Since minors are afforded increased protection in
ly
the asylum process and receiving states have an extra duty of care for them in o
matters including
ther
territory, often without
accommodation
documentation,
and education,
claimingsome
to be
individuals
under thearrive
age ofin18.anThes
EU
eindividuals may then find themselves subject to examination in order to determin
ewhether they are, in fact, below the age of 18 years. The test results will ofte
an significant
have impact on their asylum application and access to social welfare. T
least invasive medical examination must be used. Examinations must be carried ou
he
tby qualified medical staff and respect the applicants dignity. The directive does
define
not further what types of medical examinations are appropriate or adequate, a
a widethe
nd
Under variety
Council of of
techniques
Europe system,
are applied
the Convention
throughoutonEurope.
Action against Trafficking
Human
the
in ageBeings
of the(Trafficking
victim is uncertain,
Convention)
but provides
also envisages
no guidance
an ageasassessment
to the nature
when of
suitable
A9.2.
migrants
adistinction
Victims
assessment
is anofshould
activity
human(Article
betrafficking
made between
undertaken
10 (3)).429
forsmuggling
a financial
and or
trafficking.
other material
Smuggling
benefit
of by
the irregular entry of a person into a state where the person is not a national
procuring
or a bothresident.430
permanent
Under EU and ECHR law, trafficking of persons is [the] recruitment, transpor
transfer,
tation,
force or other
harbouring
forms of
or coercion,
receipt ofofpersons,
abduction,
by means
of fraud,
of theofthreat
deception,
or useofofthe a
buse ofor of a position of vulnerability or of the giving or receiving of payment
power
s or
benefits to achieve the consent of a person having control over another person,
429 Separated Children in Europe Programme (SCEP) (2012); In accordance with Eur
for
opean Commission
(2010) Action Plan on Unaccompanied Minors, COM(2010) 213 final, 6 May 2010, EAS
O has started
developing technical documentation, including specific training and a handbook o
n ageUNassessment.
430 Protocol against the Smuggling of Migrants by Land, Air and Sea supplemen
ting theTransnational
against UN ConventionCrime, Art. 3.
the purpose
Handbook on of
European
exploitation.431
law relatingThereto asylum,
is an element
borders of
andcompulsion
immigrationand intimidatio
ninvolved
Under theinECHR,
trafficking
the ECtHRthat
heldisinnotRantsev
involved
v. Cyprus
in smuggling.
and Russia432 that trafficki
falls within the scope of Article 4 of the ECHR, which prohibits slavery and for
ng
labour. Member States are under a positive obligation to put effective provision
ced
s intofor the protection of victims and potential victims of trafficking, in add
place
ition to In
criminal
Example: provisions
Rantsev v.forCyprus
punishing
and Russia,433
traffickers.the Court held that it was importan
tthat a victim of trafficking should not need to request an identification or inv
estigation;
criminal
The authorities
Trafficking
activityConvention
areisobliged
suspected.
istothe
takefirst
the European
initiativetreaty
themselves
to provide
when detailed
such prov
on the assistance, protection and support to be provided to victims of trafficki
isions
ng in
addition to the Member States obligations to carry out effective criminal investi
andadopt
gations
to to take
legislative
steps to orcombat
othertrafficking.
measures necessary
The Convention
for identifying
requires victims
state parties
of traf
and to provide competent authorities with trained personnel qualified in prevent
ficking,
and combating
ing
(Article 10). Parties
trafficking
mustand
adopt
identifying
measures as
andnecessary
helping victims
to assist
of victims
trafficking
in thei
rrecovery
Under EU law,
(Article
the Anti-Trafficking
12). Directive (2011/36/EU) defines trafficking in
same
the terms as the Council of Europe Trafficking Convention. Under the directive,
Member States must ensure that victims of trafficking have access to legal couns
without
el
the victim
delay.
doesSuch
not have
advicesufficient
and representation
financial resources
has to be (Article
free of charge
12). Thewhere
direct
ive also the concept of criminal and civil liability of legal persons as well
introduces
as that persons.
natural of Child victims of trafficking receive particular attention in th
e directive,with regard to assistance and support (Articles 13-16). Such assistan
especially
andthe
ce
to support
childmeasures
victim asinclude:
soon asatheguardian
authorities
or representative
identify thebeing
childappointed
(Article 14);
431 Council of Europe, Convention on Action against Trafficking in Human Beings,
interviews
Directive
432
CETSECtHR,
No. 2011/36/EU,
197,
Rantsev
2005,v.Art.
OJ L4;337/9,
Cyprus and Russia,
Art. 2 No.
(1).25965/04, 7 January 2010, paras. 28
433 Ibid., para. 288.
2-286.
with the child being conducted without delay and, where possible, by the same pe
(Article 15); and a durable solution based on the best interests of the child in
rson
The
casesAnti-Trafficking
of unaccompaniedDirective
child victims
protects
of victims
trafficking
of trafficking
(Article 16).against prosecuti
on for that they have been forced to commit, which may include passport offences
crimes
,offences linked with prostitution or working irregularly under national law. The
and
cooperation
assistance
support with
provided
the authorities
to victims ofintrafficking
a criminal investigation
should not be (Article
conditional11).upon
There
also
are procedural safeguards for victims involved in criminal proceedings (Article
including
12), free legal representation where the victim does not have sufficient fi
resources.
nancial
to prevent trauma
Victimsandneedre-trauma
to be treated
(Articles
in a12particular
and 15). Specific
way duringguarantees
the procedure
apply
child victims of trafficking (Articles 13-16). If victims of human trafficking a
to
pply EU
asylum,
provided
Both forand
their
(Reception
ECHR
specific
lawConditions
arereception
concerned
Directive,
needs
withmust
theArticle
be assessed
status 21ofand
trafficking
and
22).appropriate
victimssupport
once t
has been
rafficking
9.3.
When Persons
seeking
detected.
with disabilities
asylum, This
persons
issuewith
has physical,
been dealtmental,
with inintellectual
Section 2.4.or sensory impa
irments
may
The
authorities.
face sets
need
CRPD specific
extra forth
assistance
barriers
international
that
to accessing
maystandards
not always
protection
concerning
be provided
and persons
assistance,
by thewith
competent
and
disabilities
they
.
Article 18
5 ofstates
the CRPD
thatsets
States
principles
Partiesofshall
equality
recognize
and non-discrimination,
the rights of persons andwith
to liberty
disabilities
nationality,
Under the ECHR,
ofonmovement,
an equal
there istono
basis
freedom
definition
withtoothers.
choose
of disability,
their residence
but theandECtHR
to has
a held tha
tArticle
434 ECtHR,
14 Glor
protects
v. Switzerland,
against discrimination
No. 13444/04,based
30 April
on disability.434
2009; ECtHR, Pretty v. th
e United
No. 2346/02,
Kingdom,
29 April 2002.
by theEUConvention.
Handbook
Under on European
law, the European
Article
law relating
Union
21 of the
has
to Reception
asylum, borders
ratified the
Conditions
CRPDandandimmigration
Directive
is therefore
(2013/33/EU)
bound
states that EU Member States must take into account the specific situation of vu
persons,toincluding
lnerable
related receptionpersons
conditions.
with disabilities,
Their specificwhenreception
implementing
needs must
the provisions
be assessed
appropriate
and support provided (Reception Conditions Directive, Article 21 and 22)
including mental health care, where needed (Article 19). The Return Directive al
includes persons with disabilities when defining vulnerable persons, but there a
so
no particular provisions in relation to them. There is no absolute bar to detain
re
disabled asylum applicants or persons in return procedures, but if they are deta
ing
particular attention must be paid to them (Return Directive, Article 16 (3)). In
ined,
ofcase
asylum seekers, the Reception Conditions Directive (Article 11) requires that
their health, including their mental health, shall be of primary concern to nati
Under Article 14 (2) (b) of the Asylum Procedures Directive, the personal interv
authorities.
onal
may be omitted where applicants are unfit or unable to be interviewed owing to c
iew
thatthose
ircumstances
for are long-lasting
with mental health
and beyond
issues
their
whocontrol.
may not be
Thisable
is to
especially
participate
relevant
effective
ly stated
the
9.4.
forms
As ininterview.
Victims
of violence
in the
of torture
introduction
and other
to this
serious
chapter, victims of torture, rape or other
forms
serious
of psychological, physical or sexual violence are a group of vulnerable pe
that have
ople
Under EU law,
specific
Article
safeguards
25 of thesetReception
out in relation
Conditions
to Directive
their treatment.
(2013/33/EU) cont
a duty
ains
to torture,
for Member
rape orStates
othertoserious
ensureacts
thatofpersons
violencewhoreceive
have been
the necessary
subjected treatme
nt for
the damages caused by such acts, in particular access to appropriate medical and
psychological treatment or care. Staff working with them must receive appropriate
Difficulties
training. in recounting the trauma suffered may cause problems with the perso
asylum interview. Therefore, persons conducting the interview must be knowledgea
nal
about problems that may adversely affect the applicants ability to be
ble
interviewed, in particular indications of torture in the past (Articles 4 (3) an
d 14Asylum
the of Procedures Directive). The directive also requires states to provide
who have support
applicants
adequate experienced
during
torture,
the asylum
rape procedures,
and other serious
if thisforms
is required
of violence
for awith
fair an
d efficient
asylum
and
Additional
border
procedure.
procedures,
guaranteesSuchapply
applicants
where inadequate
cases
arewhere
also appeals
support
to cannot
be exempted
against
be provided
from
a negative
accelerated
(Article
first-inst
24).
decision do not have automatic suspensive effect. These include, for example, th
ance
necessary language and legal assistance be provided. In addition, the applicant
at
a negative first-instance decision must have at least one week to request a cour
with
t or
tribunal to decide on the right to remain on the territory pending the outcome o
f the (Article 24 read in conjunction with Article 46 (7). The provision on app
appeal
in need of special procedural safeguards were introduced with the 2013 recast of
licants
the directive and are therefore not applicable to Ireland and the United Kingdom
.For those persons in return procedures, if removal is postponed or a period of v
repatriation
oluntary
Aforms
been
Under
environment.435
particular
subjected
of violence
the ECHR,
granted,
category
tothedomestic
must
ECtHR
the
of
bevictims
special
taken
has
violence.
held
into
ofneeds
that
serious
account
This
ofmay
victims
victims
crimes
(Return
also
of domestic
ofDirective,
are
occur
torture
individuals
in violence
theanddomestic
Article
other
whomayhave
serious
14).
work wi
fall
the group of vulnerable individuals, along with children, thereby being entitled t
thin
oMember State protection in the form of effective deterrence against such serious
In
breaches
2011, the
of personal
Council of integrity.436
Europe adopted the Convention on Preventing and Combatin
gViolence Against Women and Domestic Violence. It is the first legally binding in
in theEUworld
strument
protect
Under victims
law,creating
victims
and toofaend
comprehensive
domestic
the impunity
violence
legal
of who
perpetrators.
framework
are third-country
to It
prevent
is notnational
violence,
yet in family
force.
to
435
members
FRA has
of EEA
documented
nationalsthearerisks
entitled
that migrants
under theinFreean irregular
Movement Directive
situationtotypical
an
ly encounter
employed
436 ECtHR,inOpuz
the
whenv.
domestic
they
Turkey,
arework
No.sector,
33401/02,
see9FRA
June(2011a).
2009, para. 160.
partnership
Handbook
autonomous onresidence
European 13
(Article law(2)
permit
relating
in caseFor
(c)). toofasylum,
family
divorcemembers
borders
or termination
andthird-country
of immigration
of the registered
national s
according
ponsors,
Member
residence
divorce
Key Thepoints
best
States
or tointerests
permit
separation.
Article
shall
in the
15 the
lay
of (3)
event
downchild
ofof
provisions
theparticularly
must
Family
beensuring
aReunification
primary
difficult
theconsideration
granting
Directive
circumstances
of in
(2003/86/EC),
an autonomous
all
following
actions c
children
oncerning
by
medical
asylum,
Under
a representative
EU(see
examinations
if law,Section
there unaccompanied
the
areAsylum
(see
to9.1).
doubts
determine
Section
Procedures
about
minors
9.1.1).
theseeking
whether
Directive
age of unaccompanied
they
asylum
are
allows
minors
haveEUthe
Member
or
minors
rightStates
not, seeking
but
to the
betoassisted
Member
use
States
Both under
must respect
EU law andcertain
the ECHR,
safeguards
there(see
is aSection
positive9.1.2).
obligation to put into place
provisions
effective for the protection of victims and potential victims of human traffick
inUnder
ing addition
EU law,
to criminal
victims of provisions
torture,punishing
rape and other
the trafficker
serious crimes
(see Section
are entitled
9.2). to
procedural safeguards, if these are needed for a fair and efficient asylum proce
special
(see
dure
Under
Section
the ECHR,
9.4).children and victims of domestic violence may fall within the gr
of vulnerable individuals, thereby being entitled to effective State protection (s
oup
Sections
ee
Further
To accesscase
9.1.1
further
lawandand
case
9.4).
reading:
ndbook.
in the Further reading section on page 227.
The following
Further readingselection of references includes publications by international org
academics,
anisations,
reading hasNGOs
beenasgrouped
well asinbyseven
the broad
ECtHR categories
and the FRA.(general
The listliterature,
of furtherasylum a
refugee law, detention, irregular migrants and return, children, persons with di
nd
and statelessrelates
sabilities
publication persons).
to more
In some
thancases,
one area.
it canIn addition,
be noted from
articles
the title
on thethat
topics
the c
in this handbook can be found in different journals, such as the European Journa
overed
l of
Migration
Quarterly
General
Council literature
of and
Europe,
Law, European
others.
the International
Court of Human
JournalRights
of Refugee
(2011),Law,
Practical
the Refugee
guideSurvey
on adm
criteria,
issibility
Case
FRA
in Europe:
(European
law .Strasbourg,
Admissibility
an Union Agency
overview Council
ofguide.
challenges
forofFundamental
Europe,
and opportunities,
available
Rights) (2011c),
at: www.echr.coe.int
Luxembourg,
Access toPublications
justice
.
report
FRA
Handbook
Office
(2012),
and ofCouncil
2011,
ontheEuropean
Fundamental
Luxembourg,
European
of Europe,
non-discrimination
Union
rights:
Publications
European
(Publications
challenges
Court
Office.
law,
ofand
Office).
Human
Luxembourg,
achievements
RightsPublications
(ECtHR)
in 2011,
(2011),
Annual
Office.
Frigo, M.,onetEuropean
Handbook al. (2011),
law relating
Migrationtoand
asylum,
international
borders andhuman
immigration
rights law: practiti
guide No. 6,Y.Geneva,
oners
Ktistakis, (2013),International
Protecting migrants
Commission
underofthe
Jurists.
European Convention on Human
Rights and the European Social Charter, Strasbourg, Council of Europe Publishing
.Peers, S. (2011), EU justice and home affairs law, Oxford, Oxford University Pre
UNHCR of
ss.
Rules (2012),
the European
Toolkit Court
on howoftoHuman
request
Rights
interim
for persons
measuresinunder
needRule
of international
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Asylum
Council
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of Europe,
refugee
Strasbourg,
law UNCHRofRepresentation
Committee Ministers (2009),
to theGuidelines
European oninstitutions.
human rights pro
in Asylum
tection
European
on
October
Luxembourg,
FRA the
(2010),
(2010b),
context
2010.
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(ELENA)
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Notes: acquis
Handbook
Schengen on European
(including
law relating
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to asylum,
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under Borders
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Migration
For DenmarkandseeReturn)
Protocol (No. 19) on the Schengen acquis integrated into the fra
mework of the European Union, Article 3 and Protocol (No. 22) on the Position of
For
Denmark.
the United Kingdom see Protocol (No. 21) on the position of the United Kingd
om and Ireland in respect of the area of freedom, security and justice; Protocol
on(No.
the19)
Schengen acquis integrated into the framework of the European Union, Arti
cle 4; Council
adopted on 29.5.2000.
Decision(OJ2000/365/EC
2000 L 131,approving
pp. 4347),
the and
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Kingdom
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(OJ United
2004 L Kingdom
395, pp.and
70-80).
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and in respect of the area of freedom, security and justice; Protocol (No. 19) O
n the
Schengen acquis integrated into the framework of the European Union, Article 4;
and Council Decision 2002/192/EC of 28.2.2002 concerning Irelands request to take
For
partNorway
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theUnion,
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on the association of these two states to the implementation, to application an
d todevelopment of the Schengen acquis, signed on 18.5.1999 and entered into for
the
ce on 26.6.2000
17.5.1999 on certain
(OJ 1999
arrangements
L 176, pp.for36-62);
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of
by the Council of the European Union and the Republic of Iceland and the Kingdo
m of concerning the association of those two States with the implementation, a
Norway
pplication
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see Agreementof between
the Schengen
the European
acquis (OJ
Union,
1999the
L 176
European
, pp. Community
31-33).
implementation,
and the Swiss Confederation
application and on development
the Swiss Confederations
of the Schengenassociation
acquis, signed
with on
the26
.10.2004 and entered into force on 01.03.2008 (OJ 2008 L 53, pp. 52-79) and Coun
Decision 2008/146/EC of 28.1.2008 on the conclusion, on behalf of the European C
cil
ommunity,
and the Swiss
of theConfederation
Agreement between
on the Swiss
the European
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Union, theassociation
European Community
with the impl
ementation,
pp.
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Liechtenstein see theandProtocol
development
between
of the European
Schengen Union,
acquis the
(OJ European
2008 L 53,Comm
unity, the Swiss Confederation and the Principality of Liechtenstein on the acce
of the Principality of Liechtenstein to the Agreement between the European Union
ssion
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pp. Denmark
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For 21-36).
and Eurodac
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instruments
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ark on theacriteria
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mechanisms
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e European Union
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of fingerprints
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2006(OJ
(OJ2006
2006LL66,66,pp.
p. 37);
38-43)based
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2006/188/EC
the above-ment
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ioned agreement, Denmark has notified the European Commission on 4 July 2013 tha
t it apply both regulations, except for the law enforcement part within Eurodac
will
whichIceland
for requires
andseparate
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blic of Iceland
mechanisms for establishing
and the Kingdomthe State
of Norway
responsible
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forthe
examining
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and for as
ylum lodgedand
19.01.2001 in entered
a Memberinto
Stateforce
or ininto
Iceland
01.04.2001
or Norway
(OJ 2001
- Declarations,
L 93, pp. 40-47)
signedandon
Council Decision 2006/167/EC of 21.2.2006 (OJ 2006 L 57, pp. 15-18); both Icelan
d (on
23 July 2013) and Norway (on 12 July 2013) have notified the European Commission
that they will apply both regulations, except for the law enforcement part with
Eurodac which requires separate negotiations;
in
for Switzerland see Agreement between the European Community and the Swiss Confe
deration concerning
responsible for examining
the criteria
a request
andfor
mechanisms
asylum lodged
for establishing
in a MembertheState
State
or in Sw
itzerland, signed on 26.10.2004 and entered into force 01.03.2008 (OJ 2008 L 53,
5-17);
p. and Council Decision 2008/147/EC of 28.1.2008 (OJ 2008 L 53, pp. 3-4); Sw
itzerland has notified the European Commission on 14 August 2013 that it will ap
both regulations, except for the law enforcement part within Eurodac which requi
ply
res Liechtenstein
for separate negotiations;
see Protocol between the European Community, the Swiss Confede
ration and the Principality of Liechtenstein to the Agreement between the Europe
Community, and the Swiss Confederation concerning the criteria and mechanisms fo
an
r establishing
in a Member StatetheorState
in Switzerland,
responsible signed
for examining
on 28.02.2008
a request
andfor
entered
asyluminto
lodged
force
on 19.12.2011 (OJ 2011 L 160, pp. 39-49); Liechtenstein has notified the Europe
Commission on 11 July 2013 that it will apply both regulations, except for the l
an
aw enforcement
Schengen
The Schengen
Borders
Borders
part
Codewithin
Code applies
Eurodactowhich
Bulgaria,
requires
Romania,
separate
Cyprus
negotiations.
except for Title
III SIS
SIS
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II internal
II Regulation
borders.
became applicable on 9 April 2013, as established by the C
ouncil Decision
Bulgaria and Romania
2013/158/EU
will beofable
7 March
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OJ for
2013refusal
L87/10 of
27.3.2013.
entry only once t
he Council has accepted these two Member States into the Schengen area, but have
toaccess
SIS II for police and judicial cooperation purposes under the SIS II Decision
(2007/533/JHA) and Council Decision 2010/365/EU of June 2010 on the application
provisions
of the of the Schengen acquis relating to the Schengen Information System in
Ireland
the Republic
and theofUnited
Bulgaria
Kingdom
and Romania.
do not take part and are not bound by or subject
to Council Decision 2013/158/EU of 7 March 2013, therefore only the SIS II Decis
(2007/533/JHA
ion
Free
For Liechtenstein,
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June Security
2007)
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Annex VItotothem.
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76/2011 of 1 July
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262, pp. 3343)
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EEA No.
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see Annex
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rity schemes, as updated by Decision No. 1/2012 of the Joint Committee establish
under the Joint Committee established under the Agreement between the European C
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on the
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2012 replacing
Confederation,
Annex I
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pp.specific
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owever
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the
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on ofQualification
their nationality
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EU-SWISS
the Joint Committee established by Article 14 of the 1999 Agreement between
Confederation,
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of the other,
and its
on the
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30 September
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(2011/702/EU)
to
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(OJ 2011
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pp. 20-35).is not applicable to Switzerland who has
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Agreement between the European Community and its Member States, of the one part,
signed
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21.06.1999
Confederation,
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the free movement
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18
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A great deal of information on the European Union Agency for Fundamental Rights
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10.2811/37325
The
TK-01-15-852-EN-N
European Convention on Human Rights and European Union law provide an increa
important framework for the protection of the rights of foreigners. European Uni
singly
on legislation
relating to asylum, borders and immigration is developing fast. There is an impr
essivelawbody
case by the
of European Court of Human Rights relating in particular to Article
s 3,the5,ECHR.
of 8 andThe 13 Court of Justice of the European Union is increasingly asked to
onpronounce
the interpretation
itself of European Union law provisions in this field. The second
handbook,
edition ofupdated
this in December 2013, presents this European Union legislation and
case
the law
bodybyofthe two European courts in an accessible way. It is intended for leg
al practitioners,
judges, prosecutors, immigration officials and non-governmental organisations, i
n the978-92-9491-065-3
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