Handbook on European law relating to asylum, borders and immigration

Contents

The Council of Europe

The European Union

The Charter of Fundamental Rights of the EU

European Union accession to the European Convention on Human Rights

1. Access to the territory and to procedures

2. Status and associated documentation

3. Asylum determination and barriers to removal: substantive issues

Foreword

In March 2011, as a result of their first joint project, the European Union Agency for Fundamental Rights and the European Court of Human Rights launched a handbook on European law in the field of non-discrimination. Following the positive feedback received, it was decided to pursue this collaboration in another very topical area where equally there was felt to be a need for a comprehensive guide to the case law of the European Court of Human Rights, the Court of Justice of the European Union as well as to relevant EU regulations and directives. The present handbook seeks to provide an overview of the various European standards relevant to asylum, borders and immigration.

The handbook is intended for lawyers, judges, prosecutors, border guards, immi- gration officials and others working with national authorities, as well as non- governmental organisations and other bodies that may be confronted with legal questions in any of the areas the handbook sets out to cover.

With the entry into force of the Lisbon Treaty in December 2009, the Charter of Fundamental Rights of the European Union became legally binding. The Lisbon Treaty also provides for EU accession to the European Convention on Human Rights, which is legally binding on all member states of the EU and the Council of Europe. Improving the understanding of common principles developed in the case law of the two European courts, and in EU regulations and directives is essential for the proper implementation of relevant standards, thereby ensuring the full respect of funda- mental rights at national level. It is our hope that this handbook will serve to further this important objective.

Erik Fribergh
Registrar of the European Court of Human Rights

Morten Kjaerum
Director of the European Union Agency for Fundamental Rights

Acronyms

CAT              United Nations Convention Against Torture

CJEU               Court of Justice of the European Union (prior to December 2009, European Court of Justice)

CoE               Council of Europe

CRC              United Nations Convention on the Rights of the Child

CRPD            United Nations Convention on the Rights of Persons with Disabilities

CPT               European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

EASO            European Asylum Support Office

ECHR              European Convention on Human Rights

ECtHR             European Court of Human Rights

ECJ                  European Court of Justice (since December 2009, Court of Justice of the European Union)

ECSR              European Committee of Social Rights

EEA               European Economic Area

EEA nationals    Nationals of one of the 28 EU Member States, Iceland, Liechtenstein and Norway

EEC               European Economic Community

EFTA             European Free Trade Association

ESC               European Social Charter

EU                 European Union

FRA               European Union Agency for Fundamental Rights

Frontex          European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

ICCPR             International Covenant on Civil and Political Rights

ICESCR           International Covenant on Economic, Social and Cultural Rights

PACE  Parliamentary Assembly of the Council of Europe

RABIT             Rapid Border Intervention Teams

SAR              Search and Rescue

SIS                Schengen Information System

SOLAS            Safety of Life at Sea

TEU               Treaty on European Union

TFEU              Treaty on the Functioning of the European Union

UN                United Nations

UNHCR           United Nations High Commissioner for Refugees

UNMIK           United Nations Interim Administration Mission in Kosovo

UNRWA         United Nations Relief and Works Agency for Palestine Refugees in the Near East

How to use this handbook

This handbook provides an overview of the law applicable to asylum, border man- agement and immigration in relation to European Union (EU) law and the European Convention on Human Rights (ECHR). It looks at the situation of those foreigners whom the EU usually refers to as third-country nationals, although such distinction is not relevant for cited ECHR law.

The handbook does not cover the rights of EU citizens, or those of citizens of Iceland, Liechtenstein, Norway and Switzerland who, under EU law, can enter the territory of the EU freely and move freely within it. Reference to such categories of citizens will be made only where necessary in order to understand the situation of family mem- bers who are third-country nationals.

There are, under EU law, some 20 different categories of third-country nationals, each with different rights that vary according to the links they have with EU Member States or that result from their need for special protection. For some, such as asylum seekers, EU law provides a comprehensive set of rules, whereas for others, such as students, it only regulates some aspects while leaving other rights to EU Member States’ discretion. In general, third-country nationals who are allowed to settle in the EU are typically granted more comprehensive rights than those who stay only temporarily. Table 1 provides a broad overview of the various categories of third- country nationals under EU law.

This handbook is designed to assist legal practitioners who are not specialised in the field of asylum, borders and immigration law; it is intended for lawyers, judges, prosecutors, border guards, immigration officials and others working with national authorities, as well as non-governmental organisations (NGOs) and other bodies that may be confronted with legal questions relating to these subjects. It is a first point of reference on both EU and ECHR law related to these subject areas, and explains how each issue is regulated under EU law as well as under the ECHR, the European Social Charter (ESC) and other instruments of the Council of Europe. Each chapter first presents a single table of the applicable legal provisions under the two sepa- rate European legal systems. Then the relevant laws of these two European orders are presented one after the other as they may apply to each topic. This allows the reader to see where the two legal systems converge and where they differ.

Practitioners in non-EU states that are member states of the Council of Europe and thereby parties to the ECHR can access the information relevant to their own country by going straight to the ECHR sections. Practitioners in EU Member States will need to use both sections as those states are bound by both legal orders. For those who need more information on a particular issue, a list of references to more specialised material can be found in the ‘Further reading’ section of the handbook.

ECHR law is presented through short references to selected European Court of Human Rights (ECtHR) cases related to the handbook topic being covered. These have been chosen from the large number of ECtHR judgments and decisions on migration issues that exist.

EU law is found in legislative measures that have been adopted, in relevant provi- sions of the Treaties and in particular in the Charter of Fundamental Rights of the European Union, as interpreted in the case law of the Court of Justice of the European Union (CJEU, otherwise referred to, until 2009, as the European Court of Justice (ECJ)).

The case law described or cited in this handbook provides examples of an important body of both ECtHR and CJEU case law. The guidelines at the end of this handbook are intended to assist the reader in searching for case law online.

Not all EU Member States are bound by all the different pieces of EU legislation in the field of asylum, border management and immigration. Annex 1 on the ‘Applicabil- ity of EU regulations and directives cited in this handbook’ provides an overview of which states are bound by which provisions. It also shows that Denmark, Ireland and the United Kingdom have most frequently opted out of the instruments listed in this handbook. Many EU instruments concerning borders, including the Schengen acquis

– meaning all EU law adopted in this field – and certain other EU law instruments, also apply to some non-EU Member States, namely Iceland, Liechtenstein, Norway and/or Switzerland.

While all Council of Europe member states are party to the ECHR, not all of them have ratified or acceded to all of the ECHR Protocols or are State Party to the other Council of Europe conventions mentioned in this handbook. Annex 2 provides an overview of the applicability of selected Council of Europe instruments, including the relevant Protocols to the ECHR.

Substantial differences also exist among the states which are party to the ESC. States joining the ESC system are allowed to decide whether to sign up to individual articles, although subject to certain minimum requirements. Annex 3 provides an overview of the acceptance of ESC provisions.

The handbook does not cover international human rights law or refugee law, except to the extent that this has been expressly incorporated into ECHR or EU law. This is the case with the 1951 Geneva Convention relating to the Status of Refugees (1951 Geneva Convention), which is expressly referred to in Article 78 of the Treaty on the Functioning of the European Union (TFEU). European states remain, of course, bound by all treaties to which they are party. The applicable international instruments are listed in Annex 4.

The handbook includes an introduction, which briefly explains the role of the two legal systems as established by ECHR and EU law, and nine chapters covering the following issues:

•               access to the territory and to procedures;

•               status and associated documentation;

•               asylum determination and barriers to removal: substantive issues;

•               procedural safeguards and legal support in asylum and return cases;

•               private and family life and the right to marry;

•               detention and restrictions on the freedom of movement;

•               forced returns and manner of removal;

•               economic and social rights;

•               persons with specific needs.

Each chapter covers a distinct subject while cross-references to other topics and chapters provide a fuller understanding of the applicable legal framework. Key points are presented at the end of each chapter.

The electronic version of the handbook contains hyperlinks to the case law of the two European courts and to EU legislation cited. Hyperlinks to EU law sources bring the reader to eur-lex overview pages, from where the reader can open the case or the piece of legislation in any available EU language.

Table 1: Categories of third-country nationals under EU law

Persons with rights derived from EU free movement provisions Family members of citizens of EU Member States
Persons with rights derived from international agreements Family members of citizens of the European Economic Area (EEA) and Switzerland
Turkish citizens and their family members
Citizens of countries which have concluded bilateral or multilateral agreements with the EU (over 100 countries)
Short- and long-term immigrants Family members of third-country national sponsors
Long-term residents in the EU
Blue Card holders and their family members
Posted workers
Researchers
Students
Seasonal workers
Intra-corporate transferees
Persons in need of protection Asylum seekers
Beneficiaries of subsidiary protection
Beneficiaries of temporary protection
Refugees
Victims of human trafficking
Migrants in an irregular situation Illegally-staying third-country nationals
Illegally-staying third-country nationals whose removal has been postponed

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