2. Status and associated documentation – Handbook on European law relating to asylum, borders and immigration

Last Updated on August 13, 2019 by LawEuro


This chapter will look at status and documentation of different groups of migrants.

For many migrants, lack of status or documentation as evidence of their status can lead to various problems, such as being denied access to public or private services, or to the labour market. EU law includes detailed mandatory provisions relating to both status and documentation, and any failure to comply with those provisions will violate EU law. The ECtHR may be called on to consider whether the absence of sta- tus or documentation interferes with the enjoyment of an ECHR right of the indi- vidual concerned and, if so, whether such interference is justified.

If no formal authorisation has been given by the host state, a third-country national’s presence may be considered unlawful by that state. Both EU and ECHR law, however, set out circumstances in which a third-country national’s presence must be consid- ered lawful, even if unauthorised by the state concerned (see Sections 2.2 and 2.5). Some EU, ECHR, EU Charter of Fundamental Rights and ESC rights are granted only to those whose presence in a particular country is lawful (see Chapter 8).

EU law may make express provision for a particular type of status to be recog- nised or granted. It may make the issue of specific documentation mandatory (see Sections 2.1, 2.2 and 2.8). Where an individual is entitled under EU or national law to a certain status – or to certain documentation – the failure to accord the status or issue the documentation will constitute an infringement of EU law.

The ECHR does not expressly require a state to grant a migrant a certain status or issue him or her specific documentation. In some circumstances, the right to respect for family and private life (Article 8) may require the states to recognise status, authorise residence or issue documentation to a migrant. Article 8, however, cannot be construed as guaranteeing as such the right to a particular type of residence per- mit. Where the domestic legislation provides for several different types of residence permits, the ECtHR will normally be called upon to analyse the legal and practical implications of issuing a particular permit.[49]

2.1. Asylum seekers

Asylum seekers seek international protection on the basis that they cannot return or be returned to their country of origin because they have a well-founded fear of per- secution or are at risk of being ill-treated or being subjected to other serious harm (see Chapter 3).

Under EU law, asylum seekers are defined as “applicants for international protec- tion”. Their situation is regulated by the EU asylum acquis. All the relevant texts of the asylum acquis and the states in which they apply are listed in Annex 1. Obtain- ing access to the asylum procedure is discussed in Chapter 1. This section deals with those asylum seekers whose claims are pending and who are waiting for a final decision. EU law prohibits removal of an asylum seeker until a decision on the asylum application is taken. Article 9 (1) of the Asylum Procedures Directive (2013/32/EU), provides that the asylum seeker’s presence in the territory of an EU Member State is lawful. It states that asylum seekers are “allowed to remain in the Member State” for the purpose of the procedure until a decision by the responsible authority has been made, although some exceptions exist, notably for subsequent applications.

The right to documentation for asylum seekers under EU law is set out in the Recep- tion Conditions Directive (2013/33/EU; see Annex 1 for EU Member States bound by the directive). Article 6 of this directive states that all those who lodge an applica- tion for asylum must be given, within three days, a document certifying their status as asylum seekers or that they are allowed to stay while the asylum application is being examined. According to Article 6 (2) states can refrain from doing so when the applicant is in detention or at the border.

Under the ECHR, no corresponding provision exists governing the asylum seekers’ status during the processing of their claims for protection. It will therefore be neces- sary to consider whether under domestic law asylum seekers are allowed to remain in the territory while their claims are processed.

Article 5 (1) (f) of the ECHR permits detention of asylum seekers to prevent them from effecting “an unauthorised entry” into the territory of a state. According to the ECtHR, an entry remains ‘unauthorised’ until it has been formally authorised by the national authorities.

Example: The ECtHR held in Saadi v. the United Kingdom[50] that an entry remained unauthorised until it had been formally authorised by the national authorities. In that case, the Court found that there had been no violation of Article 5 (1) where an asylum seeker had been lawfully detained for seven days in suitable conditions while his asylum application was being processed.

Example: In Suso Musa v. Malta,[51] however, the Court held that where a State had exceeded their legal obligations and enacted legislation explicitly author- ising the entry or stay of immigrants pending an asylum application, either independently or pursuant to EU law, any ensuing detention for the purpose of preventing an unauthorised entry might raise an issue as to the lawfulness of detention under Article 5 (1) (f).

Article 2 of Protocol No. 4 to the ECHR refers to the free movement rights of those who are “lawfully” within a state, whereas Article 1 of Protocol No. 7 provides for certain procedural safeguards against expulsion for those who are “lawfully” within the territory of a state. A person can, however, lose his or her lawful status.

Example: Before the UN Human Rights Committee[52] the German government had acknowledged that the asylum seekers were lawfully resident for the dura- tion of their asylum procedure. However, in Omwenyeke v. Germany,[53] the Court accepted the government’s argument that in violating the conditions that the state had attached to his temporary residence – that is, the obligation to stay within the territory of a certain city – the applicant had lost his lawful status and thus fell outside the scope of Article 2 of Protocol No. 4 to the ECHR.

2.2. Recognised refugees and those recognised as being in need of subsidiary protection

Under EU law, the EU Charter for Fundamental Rights guarantees the right to asylum (Article 18), thus going beyond the right to seek asylum. Those who qualify for asy- lum have the right to have this status recognised. Articles 13 (refugee status) and 18 (subsidiary protection status for those who need international protection, but do not qualify for refugee status) of the Qualification Directive (2011/95/EU) give an explicit right to be granted the status of refugee or subsidiary protection. Persons granted international protection can lose their status if there is genuine improve- ment of the situation in their country of origin (see Chapter 3.1.8).

Article 24 of the same directive regulates the right to documentation. Those recog- nised as being in need of international protection are entitled to residence permits: three years for refugees, and one year for subsidiary protection. Article 25 enti- tles refugees and, in certain cases, beneficiaries of subsidiary protection to travel documents.

Under the ECHR, there is no right to asylum such as that found in Article 18 of the EU Charter of Fundamental Rights. Also, the ECtHR cannot examine whether the refusal or withdrawal of refugee status under the 1951 Geneva Convention[54] or the non- recognition of the right to asylum under the Qualification Directive[55] is contrary to the ECHR. The ECtHR can, however, examine whether the removal of an alien would subject him or her to a real risk of treatment contrary to Article 3 of the ECHR or cer- tain other ECHR provisions (see Chapter 3).[56]

2.3. Victims of trafficking and of particularly exploitative labour conditions

Under EU law, the Employer Sanctions Directive (2009/52/EC) criminalises some forms of illegal employment of migrants in an irregular situation. In the case of workers who are minors or of workers who are subject to particularly exploitative working conditions, they may be issued a temporary residence permit to facilitate the lodging of complaints against their employers (Article 13).

Council Directive 2004/81/EC on the residence permit issued to third-country nation- als who are victims of trafficking or who have been the subject of an action to facili- tate irregular immigration allows for a reflection period during which the victim can- not be expelled. It also requires EU Member States to issue a residence permit to victims of trafficking who cooperate with the authorities (Articles 6 and 8, respec- tively). The permit has to be valid for at least six months and is renewable. Although not dealing directly with residence permits for victims, the 2011 Anti-Trafficking Directive (2011/36/EU) requires assistance and support measures to be provided before, during and after the conclusion of criminal proceedings (Article 11). However, where proceedings against the traffickers are not envisaged or the victim has not cooperated with any investigation, there is no clear requirement for an EU Member State to grant a residence permit.

Under the ECHR, the prohibition against slavery and forced labour in Article 4 of the ECHR may, in certain circumstances, require states to investigate suspected traffick- ing and to take measures to protect victims or potential victims.

Example: The ECtHR Rantsev v. Cyprus and Russia case[57] concerned a Russian victim of trafficking in Cyprus. The Court held that Cyprus had failed to comply with its positive obligations under Article 4 of the ECHR on two counts: first, it had failed to put in place an appropriate legal and administrative framework to combat trafficking and, secondly, the police had failed to take suitable opera- tional measures to protect the victim from trafficking. The ECtHR also found that the Russian authorities had failed to conduct an effective investigation into the victim’s recruitment by traffickers which had occurred on Russian territory. This failure had more serious consequences in the light of the circumstances of her departure from Russia and her subsequent death in Cyprus.

Under ECHR law, in states that are party to the Council of Europe Convention against Trafficking, the authorities must allow the suspected victim a recovery and reflec- tion period during which they cannot be removed (Article 14). If the competent authorities have “reasonable grounds for believing that a person has been a vic- tim of trafficking”, the person may not be removed from the country until it has been determined whether he or she has been a victim of a trafficking offence (Article 10 (2)). The competent authority can issue renewable residence permits to victims if it believes the victim’s stay is necessary owing to their personal situation or for the purposes of the criminal investigation (Article 14 (1)). The provisions are intended to ensure that the victims of trafficking are not at risk of being returned to their countries without being given the appropriate help (see also Chapter 9 on vulnerable groups and, for the list of ratifications, Annex 2).

2.4. Persons affected by Rule 39 interim measures

When the ECtHR receives an application, it may decide that a state should take cer- tain provisional measures while it continues its examination of the case.[58] These are usually referred to as Rule 39 measures.[59] These measures often consist of request- ing a state to refrain from returning individuals to countries where it is alleged that they would face death or torture or other ill-treatment. In many cases, this con- cerns asylum seekers whose claims have received a final rejection and who have exhausted all appeal rights under domestic law. In some states, it may be unclear which status an individual has when the ECtHR has applied a Rule 39 interim meas- ure to prevent the individual’s removal while it examines the case.[60] Regardless of this question of status, the expelling state is under an obligation to comply with any Rule 39 measure indicated by the ECtHR.

Example: In the Mamatkulov and Askarov v. Turkey case,[61] the respondent state extradited the applicants to Uzbekistan notwithstanding a Rule 39 interim measure indicated by the ECtHR. The facts of the case clearly showed that, as a result of their extradition, the Court had been prevented from conducting a proper examination of the applicants’ complaints in accordance with its settled practice in similar cases. This ultimately prevented the Court from protecting them against potential violations of the ECHR. By virtue of Article 34 of the Convention, member states undertook to refrain from any act or omission that might hinder the effective exercise of an individual applicant’s right of appli- cation. A failure by a member state to comply with interim measures was to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right, thus violat- ing Article 34 of the Convention.

Example: In Savriddin Dzhurayev v. Russia,[62] the applicant was forcibly trans- ferred to Tajikistan in a special operation involving Russian state agents – even though an ECtHR-indicated interim measure remained in force. Because the respondent state disregarded the interim measure, the applicant had been put at risk of ill-treatment in Tajikistan and the Court had been prevented from securing for him the practical and effective benefit of his rights under Article 3 of the ECHR. Article 34 of the Convention, as well as Article 3, had therefore been violated. The Court ordered the respondent state to take tangible remedial measures to protect the applicant against the existing risks to his life and health in a foreign jurisdiction. In addition, given repeated incidents of this kind, the Court ordered the respondent State to resolve this recurrent problem without delay by taking decisive general measures in order to ensure the effective pro- tection of potential victims in line with interim measures issued by the Court.

2.5. Migrants in an irregular situation

The presence of those who have either entered or remained in a state with- out authorisation or legal justification is considered irregular or unlawful. Irregular or unlawful presence can arise in many ways, ranging from clandestine entry or absconding from a mandatory address, to being ineligible to renew an otherwise lawful residence permit because of a change of personal circumstance. Lack of law- ful status often affects the possibility of benefiting from other procedural and sub- stantive rights (see Section 8.6 on access to social security and social assistance).

Under EU law, according to the Return Directive (2008/115/EC; see Annex 1 for EU Member States bound by the directive), illegally-staying third-country nationals can no longer be left in limbo. EU Member States participating in the directive must either regularise their stay or issue a return decision.

All persons without legal authorisation to stay fall within the ambit of the direc- tive. Article 6 obliges EU Member States to issue them with a “return decision”. Article 6 (4), however, also sets out the circumstances excusing states from this obli- gation. Along with humanitarian or other reasons, another reason to regularise the stay can be pressing reasons of family or private life guaranteed under Article 7 of the EU Charter of Fundamental Rights and Article 8 of the ECHR (see Chapter 5 on family life).

Example: In M. Ghevondyan,[63] 4 June 2012, the French Council of State (Con- seil d’État) held that Article 6 of the Return Directive did not impose on the competent authorities of the Member States the obligation to take systemati- cally a return decision against third-country nationals in an irregular situation. Article 6 (4) mentions a number of exceptions and derogations to Article 6 (1). Therefore, return decisions may not be made automatically. The administra- tion has the obligation to consider the personal and family situation of the alien and to take into account circumstances that might prevent an expulsion order. Among these are the interests of the child, the situation of the family and the health of the alien, as stated by Article 5 of the directive. Consequently, the courts should review, if this ground is invoked by the alien, the legality of the decision in view of its consequences on the alien’s personal situation.

Allowing people to remain pending the outcome of any procedure seeking authori- sation of stay is possible (Article 6 (5)) but not mandatory, as it is in the case of asylum seekers. The provision does not address the status of such people. Recital 12 to the Return Directive reveals an awareness of the common situation that some of those who stay without authorisation cannot be removed. It also notes that states should provide written confirmation of their situation, but this is not reflected in the operative parts of the directive. The situation is most acute for those who have to be released from detention because the maximum permitted detention has elapsed (see Chapter 6 on detention) but who still do not have permission to stay.[64]

Example: In Kadzoev,[65] a rejected Chechen asylum seeker in Bulgaria, who could not be removed, was released from detention after a CJEU ruling maintained that applicable EU law could under no circumstances authorise the maximum detention period to be exceeded. Once released, the applicant found himself without status or documents and left destitute, as Bulgarian law did not provide for him to have any status even though he could not be removed.

Under the ECHR, there is no Convention right to be granted specific status or related documentation in a host country; however a refusal may, in certain circumstances, violate the ECHR if it was based on discriminatory grounds.

Example: In Kiyutin v. Russia,[66] an Uzbek national, who had been married and had a child with a Russian, requested a residence permit from the Russian authorities. His permit was refused since he had tested positive for HIV. The ECtHR stressed the particular vulnerability of persons infected with HIV and accepted that the disease could amount to a form of disability. The blanket provision of domestic law requiring deportation of HIV-positive non-nationals left no room for an individualised assessment based on the facts of a particular case and was found not to be objectively justified. The Court thus found that the applicant had been a victim of discrimination on account of his health status and concluded it to be a breach of Article 14 of the ECHR taken in conjunction with Article 8.

Under the ESC, the personal scope is, in principle, limited to nationals of other state parties that are lawfully resident or working regularly within the territory. The ECSR has held however that, due to their fundamental nature and their link to human dig- nity, certain rights apply to all persons in the territory, including irregular migrants. These rights comprise the right to medical assistance,[67] the right to shelter[68] and the right to education.[69]

2.6. Long-term residents

Under EU law, the Long-Term Residents Directive (2003/109/EC as amended by Directive 2011/51/EU; see Annex 1) for states bound by the directive provides for entitlement to enhanced “long-term residence” status for third-country nationals who have resided in an EU Member State legally and continuously for five years.[70] This entitlement is subject to conditions relating to stable and regular resources and sickness insurance. There is no case law on the interpretation of these require- ments, but in relation to similar requirements in the Family Reunification Directive (2003/86/EC; see Chapter 5 on families) the CJEU leaned towards a strict interpreta- tion of those conditions. It maintained that the margin of EU Member State manoeu- vre must not be used in a manner which would undermine the objective of the directive.[71]

Under Article 11 of the Long-Term Residents Directive, the grant of long-term res- ident status leads to treatment equal to nationals in several important areas (see Chapter 8 on economic and social rights).

According to the CJEU, EU Member States cannot impose excessive and dispro- portionate fees for the grant of residence permits to third-country nationals who are long-term residents and to members of their families. Such fees would jeop- ardise the achievement of the objective pursued by the directive, depriving it of its effectiveness.

Example: In European Commission v. the Netherlands,[72] the CJEU held that the Netherlands had failed to fulfil its obligation under the Long-Term Residents Directive in so far as it imposed excessive and disproportionate fees (varying from €188 to €830) on (i) third-country nationals seeking long-term resident status, (ii) third-country nationals who have acquired long-term resident sta- tus in another EU Member State and who seek to exercise their right to reside and (iii) third-country nationals’ family members seeking reunification. More specifically, the Court pointed out that Member States do not enjoy unlimited discretion in levying fees on third-country nationals when issuing a residence permit and that Member States are not allowed to set charges which might create an obstacle to the exercise of the rights enshrined in the Long-Term Residents Directive.

Under the ECHR, long-term residence has generally been recognised as a factor to be taken into account if expulsion is proposed (see Section 3.4).

Example: In Kurić v. Slovenia,[73] the ECtHR considered the Slovenian register of permanent residents and the ‘erasure’ of former citizens of the Socialist Federal Republic of Yugoslavia (SFRY) who were still permanent residents but who had not requested Slovenian citizenship within a six-month time limit. The conse- quences of such ‘erasure’ were either statelessness or loss of their residence rights.[74] Foreigners who were not citizens of other SFRY republics were not affected in this way. The ECtHR reiterated that there might be positive obliga- tions inherent in effectively respecting private or family life, in particular in the case of long-term migrants, such as the applicants, who had been unlawfully ‘erased’ from the permanent residence register in violation of Article 8 of the ECHR. It also found that the difference in treatment between non-SFRY foreign- ers and those who had previously been citizens of the SFRY constituted discrim- ination in breach of Article 14 of the Convention taken together with Article 8.

The Council of Europe’s 1955 European Convention on Establishment provides for an enhanced status in all member states for those who are long-term residents, but only if they are nationals of states which are parties to the convention.

2.7. Turkish citizens

The Ankara Agreement signed in 1963 and the Additional Protocol to the Ankara Agreement added in 1970 strengthen trade and economic relations between what was then the European Economic Community (EEC) and Turkey in light of a possible accession by the latter to the EEC. The agreement has been the subject of more than 40 judgments by the CJEU and, previously, the ECJ. It has also been complemented by a number of decisions by the Association Council, some of which relate to the status of the many Turkish citizens in the territory of EU Member States. The agree- ment does not give Turkish citizens any substantial right to enter or reside in an

EU Member State; however, self-employed persons and providers of services bene- fit from a standstill clause (Article 41 of the Additional Protocol). This clause prevents states from imposing new and more stringent procedural or financial requirements on them, other than those that were already in force at the time the agreement came into being.[75] Such rights do not apply to Turkish nationals who wish to make use of – rather than provide – services.[76]

Example: Various cases have addressed the requirements imposed on Turkish lorry drivers employed by Turkish companies in Turkey to drive lorries to Ger- many. Such cases thus concerned the Turkish companies’ right of freedom to provide services in EU Member States. In Abatay,[77] the ECJ held that Germany must not impose a work permit requirement on Turkish nationals willing to pro- vide services in its territory if such a permit was not already required when the standstill clause came into effect.

The Soysal[78] case concerned a visa requirement. The ECJ held that Article 41 of the Additional Protocol to the Ankara Agreement precluded the introduction of a visa requirement to enter Germany for Turkish nationals who wanted to pro- vide services on behalf of a Turkish company if no visa was required at the time of the entry into force of the protocol. According to the Court, this conclusion is not affected by the fact that the national legislation introducing the visa was an implementation of EU Regulation (EC) No. 539/2001 (see Chapter 1). Secondary EU law needs to be interpreted in a manner that is consistent with the interna- tional agreement containing the standstill clause.

In Oguz,[79] the CJEU maintained that the standstill clause does not preclude EU Member States from using domestic law to penalise abuse relating to immigration. However, the fact that Mr Oguz had entered into self-employment in breach of national immigration law, eight years after having been granted leave to enter and remain in the country, was not considered by the CJEU to constitute an abuse.

In relation to newer EU Member States, the relevant date for the operation of the Turkish standstill clause is the date on which they joined the Union.

The 1970 Additional Protocol to the Ankara Agreement provides for several rights, which are discussed in Chapter 8 on access to economic and social rights. With regard to status, Turkish citizens have the right to remain in the territory while exer- cising their social and labour market rights.[80]

Family members, including those who are not Turkish nationals, benefit from privi- leged treatment under Decision 1/80 of the Association Council established by the Ankara Agreement (‘EEC-Turkey Association Council’, see Chapter 5 on family life).[81] Such rights are not subject to the conditions related to the ground on which the right of entry and of residence was originally granted to the Turkish national in the host Member State.

Example: In Altun,[82] the ECJ held that the fact that a Turkish national had obtained the right of residence in an EU Member State and, accordingly, the right of access to the state’s labour market as a refugee did not prevent a mem- ber of his family from enjoying the rights arising under Decision No. 1/80 of the Association Council. In addition, in Kahveci[83] the CJEU clarified that family mem- bers of a Turkish worker could still claim the rights conferred upon them by such decision once the worker had acquired the nationality of the host EU Member State while still retaining his Turkish nationality.

2.8. Third-country nationals who are family members of EEA or Swiss nationals

Under EU law, family members of EEA or Swiss nationals, of whatever nationality, as well as third-country nationals who are family members of EU nationals who have exercised their right to free movement, enjoy, under certain conditions, a right to entry and residence in the territory of an EU Member State in order to accompany or join the EEA, Swiss or EU citizen.[84] This can only be refused for reasons of public policy, public security or public health.

This right also entails a right to residence documents, which are evidence of their status. Under Article 10 (1) of the Free Movement Directive (2004/38/EC), the resi- dence cards of third-country national family members are to be issued, at the latest, within six months from the date on which they submit the application, and a certifi- cate confirming the application for a residence card is to be issued immediately.

Under the ECHR, a failure to deliver a residence permit to a third-country national when that permit is mandated under EU law may raise an issue under Article 8 of the ECHR.

Example: In Aristimuño Mendizabal v. France,[85] the ECtHR found that the appli- cant’s rights under Article 8 of the ECHR had been violated due to the French authorities’ excessive delay of over 14 years in issuing her with a residence permit. The ECtHR noted that the applicant had been entitled to such a permit under both EU and French law.

2.9. Stateless persons and the loss of citizenship or documentation

Neither EU law nor the ECHR covers the acquisition of citizenship. This responsibility remains at national level. There are, however, some limits on national action relating to the loss of citizenship.

Under EU law, EU Member States have exclusive sovereignty over acquisition of citizenship, which thus also includes EU citizenship, as well as the additional rights which citizenship confers in many jurisdictions. Article 20 of the TFEU enshrines the concept of citizenship of the Union, but benefits of EU citizenship are limited to those who have national citizenship of one of the Member States.[86]

Loss of citizenship, however, may engage EU law if this also entails loss of EU rights.

Example: In the Rottmann case,[87] Dr Rottmann was born a citizen of Austria. After being accused in Austria for serious fraud in the exercise of his profession, he moved to Germany where he applied for naturalisation. By acquiring Ger- man citizenship he lost his Austrian citizenship by operation of law. Following information from the Austrian authorities that Dr Rottmann was the subject of an arrest warrant in their country, the German authorities sought to annul his acquisition of German citizenship on the ground that he had obtained it fraudu- lently. Such decision, however, had the effect of rendering him stateless. The referring court wished to know if this was a matter that fell within the scope of EU law, as Dr Rottmann’s statelessness also entailed the loss of Union citizen- ship. The CJEU ruled that an EU Member State decision to deprive an individual of citizenship, in so far as it implies the loss of status of EU citizen and depriva- tion of attached rights, falls within the ambit of EU law and, therefore, must be compatible with its principles. The CJEU concluded that it is legitimate for a Member State to revoke naturalisation on account of deception, even when the consequence is that the person loses Union citizenship, in addition to citizenship of that Member State. Such a decision, however, must comply with the principle of proportionality, which, among other things, requires a reasonable period of time to be granted in order for him or her to recover the citizenship of his or her Member State of origin.

Under the ECHR, there is no right to acquire citizenship of a state.[88] The ECtHR, how- ever, has stated that an arbitrary denial of citizenship might raise an issue under

Article 8 of the Convention because of the impact that such a denial may have on the private life of the individual.[89]

Example: In the case of Genovese v. Malta,[90] the ECtHR considered the denial of Maltese citizenship to a child born out of wedlock outside of Malta to a non- Maltese mother and a judicially recognised Maltese father. The refusal of citi- zenship itself did not give rise to a violation of Article 8 when taken alone, but the Court considered that the impact of the refusal on the applicant’s social identity brought it within the general scope and ambit of Article 8, and that there had been a violation of Article 8 of the ECHR when taken together with Article 14 because of the arbitrary and discriminatory nature of the refusal.

Key points

  • Documentation often allows non-citizens to access the labour market, and private and public services; it also prevents issues with the authorities (see Introduction to this chapter).
  • The EU Charter of Fundamental Rights expressly guarantees the right to asylum. Although the ECHR does not guarantee the right to obtain asylum, the expelling state may be required to refrain from removing an individual who risks death or ill-treat- ment in the receiving state (see Section 2.2).
  • Under EU law, asylum seekers have a right to remain in the territory of the host state while they await a final decision on their asylum application and must be given iden- tity documents (see Section 2.1).
  • Recognised refugees and beneficiaries of subsidiary protection must be given iden- tity as well as travel documents under EU law (see Section 2.2).
  • Victims of trafficking are entitled to residence permits to facilitate their cooperation with the police under both EU and ECHR law. EU law and the ECHR may require states to take particular measures to protect them (see Section 2.3).
  • The Return Directive requires that EU Member States either regularise the position of third-country nationals in an irregular situation or issue a return decision to them (see Section 2.5).
  • Under the ECHR, failure to recognise a migrant’s status or to issue him or her with documentation might raise an issue under Article 8 (see Section 2.5).
  • Under EU law, third-country nationals are entitled to enhanced status after legally residing in an EU Member State continuously for five years (see Section 2.6).
  • Turkish citizens and their families cannot be made subject to more stringent condi- tions as regards self-employment or providing services than were in force at the time of the 1970 Additional Protocol to the Ankara Agreement. Turkish workers and their families have enhanced rights to remain (see Section 2.7).
  • Third-country nationals who are family members of EEA or Swiss nationals or of EU citizens exercising free movement rights are eligible for privileged status under EU law (see Section 2.8).
  • Neither EU law nor the ECHR covers acquisition of citizenship, but loss of citizen- ship may engage EU law if the citizenship loss also entails loss of EU rights (see Section 2.9).

Further case law and reading:

To access further case law, please consult the guidelines on page 249 of this hand- book. Additional materials relating to the issues covered in this chapter can be found in the Further reading section page 227.


49. ECtHR, Liu v. Russia, No. 42086/05, 6 December 2007, para. 50.

50. ECtHR, Saadi v. the United Kingdom [GC], No. 13229/03, 29 January 2008, para. 65.

51. ECtHR, Suso Musa v. Malta, No. 42337/12, 23 July 2013.

52. CCPR/C/DEU/2002/5, 4 December 2002.

53. ECtHR, Omwenyeke v. Germany (dec.), No. 44294/04, 20 November 2007.

54. ECtHR, Ahmed v. Austria, No. 25964/94, 17 December 1996, para. 38.

55. ECtHR, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011, para. 226 (relating to Art. 15 of the Qualification Directive).

56. ECtHR, NA. v. The United Kingdom, No. 25904/07, 17 July 2008, paras. 106-107.

57. ECtHR, Rantsev v. Cyprus and Russia, No. 25965/04, 7 January 2010, para. 284.

58. ECtHR, Rules of the Court, as in force on 1 September 2012, Rule 39.

59. For detailed instructions on how to lodge a request under Rule 39, see UNHCR (2012).

60. ECtHR, Azimov v. Russia, No. 67474/11, 18 April 2013.

61. ECtHR, Mamatkulov and Askarov v. Turkey [GC], No. 46827/99 and 46951/99, 4 February 2005.

62. ECtHR, Savriddin Dzhurayev v. Russia, No. 71386/10, 25 April 2013.

63. France, Council of State (Conseil d’État), M. Ghevondyan, 4 June 2012.

64. On the situation of non-removed persons, see FRA (2011b), Chapter 2.

65. ECJ, C-357/09 [2009] ECR I-11189, Kadzoev (Huchbarov), 30 November 2009.

66. ECtHR, Kiyutin v. Russia, No. 2700/10, 10 March 2011.

67. ECSR, International Federation of Human Rights Leagues v. France, Complaint No. 14/2003, merits, 8 September 2004.

68. ECSR, Defence for Children International v. the Netherlands, Complaint No. 47/2008, merits, 20 October 2009.

69. ECSR, Conclusions 2011, General Introduction, January 2012, para. 10, Statement of interpretation on Art. 17(2).

70. See also CJEU, C-502/10 [2012 ], Staatssecretaris van Justitie v. Mangat Singh, 18 October 2012.

71. CJEU, C-578/08 [2010] ECR I-01839, Chakroun v. Minister van Buitenlandse Zaken, 4 March 2010, para. 52.

72. CJEU, C-508/10, European Commission v. Kingdom of the Netherlands, 26 April 2012, para. 70.

73. ECtHR, Kurić and Others v. Slovenia [GC], No. 26828/06, 26 June 2012.

74. Slovenia is not a party to the Council of Europe 2006 Convention on the avoidance of statelessness in relation to state succession.

75. ECJ, C-37/98 [2000] ECR I-02927, The Queen v. Secretary of State for the Home Department, ex parte Abdulnasir Savas, 11 May 2000; ECJ, C-16/05 [2007] ECR I-07415, The Queen, Veli Tum and Mehmet Dari v. Secretary of State for the Home Department, 20 September 2007; CJEU, C-186/10, Oguz v. Secretary of State for the Home Department, 21 July 2011.

76. CJEU, C-221/11, Leyla Ecem Demirkan v. Bundesrepublik Deutschland, 24 September 2013.

77. ECJ, Joined Cases C-317/01 and C-369/01 [2003] ECR I-12301, Eran Abatay and Others and Nadi Sahin v. Bundesanstalt für Arbeit, 21 October 2003.

78. ECJ, C-228/06 [2009] ECR I-01031, Mehmet Soysal and Ibrahim Savatli v. Bundesrepublik Deutschland, 19 February 2009.

79. CJEU, C-186/10, [2011] ECR I-06957, Tural Oguz v. Secretary of State for the Home Department, 21 July 2011, para. 46; ECJ, C-16/05 [2007] ECR I-07415, The Queen, Veli Tum and Mehmet Dari, 20 September 2007.

80. ECJ, C-337/07 [2008] ECR I-10323, Altun v. Stadt Böblingen, 18 December 2008, para. 21; ECJ, C-171/95 [1997] ECR I-00329, Recep Tetik v. Land Berlin, 23 January 1997, para. 48; Council of Europe 1955 Convention on Establishment, Art. 2: “[…] each Contracting Party [which includes Turkey and many other EU countries] shall, to the extent permitted by its economic and social conditions, facilitate the prolonged or permanent residence in its territory of nationals of the other Parties.”

81. CJEU, C-451/11, Natthaya Dülger v. Wetteraukreis, 19 July 2012.

82. ECJ, C-337/07 [2008] ECR I-10323, Altun v. Stadt Böblingen, 18 December 2008, para. 50.

83. CJEU, Joined Cases C-7/10 and C-9/10, Staatssecretaris van Justitie v. Tayfun Kahveci and Osman Inan, 29 March 2012.

84. See the agreements concluded with the EEA and with Switzerland (see footnotes 5 and 6), and the Free Movement Directive (Directive 2004/38/EC, OJ 2004 L 158/77).

85. ECtHR, Aristimuño Mendizabal v. France, No. 51431/99, 17 January 2006.

86. Under Art. 20 (1) of the TFEU, “Citizenship of the Union shall be additional to and not replace national citizenship”; ECJ, C-369/90 [1009] I-4239, Micheletti and others v. Delegación del Gobierno en Cantabria, C-369/90, 7 July 1992; ECJ, C-192/99 [2001] ECR I-01237, The Queen v. Secretary of State for the Home Department, ex parte: Manjit Kaur, 20 February 2001.

87. CJEU, C-135/08 [2010] ECR I-01449, Rottmann v. Freistaat Bayern, 2 March 2010, paras. 41-45.

88. European Commission of Human Rights, Family K. and W. v. the Netherlands (dec.), No. 11278/84, 1 July 1985.

89. ECtHR, Karassev v. Finland (dec.), No. 31414/96, 12 January 1999; ECtHR, Slivenko v. Latvia [GC], No. 48321/99, 9 October 2003; ECtHR, Kuduzović v. Slovenia (dec.), No. 60723/00, 17 March 2005.

90. ECtHR, Genovese v. Malta, No. 53124/09, 11 October 2011.


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