The EU and Migration

Third Country Nationals and EU Immigration Policy

 In addition to promoting the right of free movement for member state citizens, the EU has developed a legal competence in the years since 1992 to act on matters concerning the migration of non-EU citizens (third country nationals TCNs).  The important developments here are the establishment of a pillar dealing with justice and home affairs in the 1992 Treaty of European Union (the ‘Maastricht Treaty). Other measures followed improving the delivery of policies in this area particularly the1997 Treaty of Amsterdam [1] and the 2001 Treaty of Nice.

It is important to note that the EU has no intrinsic interest in regulating third country national immigration to the member states of the EU, and the matter would not have been broached had it not become an issue which potentially impeded the full securing of free movement rights for EU citizens, which was intended to be achieved on 1 January 1993, with the final abolition of all restrictions on the crossing of the internal frontiers of member states under the terms of the Single Europe Act 1987.  The EU reasoned that the effect of the removal of controls at the internal frontiers was that third country nationals admitted in one member state would be to permit the de facto right of free movement of such persons to all member states.  If this was to be the consequence of creating a single area of free movement it was felt that an overarching policy approach to the migration of third country national has to be agreed by the EU in order that member states could be assured that immigrants were being admitted on principles of law and policy to which they were prepared to subscribe.

 Non-EU nationals are subjected to entry conditions.  A visa is required if the stay is longer than 3 months and non-EU family members of EU citizens are subjected to special rules. Any non-EU national with a valid residence permit issued by any EU member country applying the Schengen Agreement can circulate freely within the Schengen area without a visa and is protected by the EU Charter of Fundamental Rights.  Citizens of third countries are granted access to travel within the E.U. according to their country of origin. Citizens from some countries are allowed to travel within the EU if they have a valid travel document or a visa - Regulation (EC) No 539/2001 that was altered by Regulation n 2414/2001 and by Regulation No 453/2003 - and enough financial resources for the stay and the return to their country.  Articles 917 of the Schengen Convention and the 'Common consular instructions' (OJ C 313, 16.12.2002, p. 1) set the conditions and the criteria to issue visas.  These citizens have the right not to be listed in the Schengen information system if they are refused entry and not be considered to be a threat to public policy or national security for all Schengen States.  Citizens from other countries - which included some of the E.U. new member states at the time - were allowed to travel within the EU territory for up to three months without a visa.  The UK and Ireland set additional restrictions to issuing visas to non-EU nationals in the annexed protocol to the 1999 Treaty of Amsterdam and have autonomous policies on visas, immigration and provision of political asylum. Furthermore, there are categories of people such as diplomats, workers of intergovernmental organizations and civilian and rescue air and sea crew. In 2001, the Commission proposed changes to the period of stay which raised the period to up to six months - COM (2001) 388 final  and not superior to 3 months in one member state.

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