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8.1.3.  Common treatment of nationals of third countries in the EU

    The Member States of the EU are all subject to migration pressures from many - and often new - sources to which they have to respond by finding the balance between economic and humanitarian considerations in line with European legislation and key international agreements. The abolition of internal border controls and the notion of a common external border reinforces the desirability for the Union to develop more common approaches and closer cooperation in the immigration policy area. In fact, the abolition of checks at internal borders of the European Union is effective both for the citizens of the Member States and for third country nationals, once they have crossed the external frontiers of a Member State. In other words, freedom of movement applies to all those within the territory of the EU. This is why the Member States must have common rules for the crossing of their borders by foreigners and for the treatment of foreigners within their territory. This common need has led to the adoption of common policies in the fields of visas, immigration, the right of asylum, the status of refugees and extradition.

    Article 67 of the TFEU states that the Union shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals, including stateless persons. Towards this end, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning: (a) the common policy on visas and other short-stay residence permits; (b) the checks to which persons crossing external borders are subject; (c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period; (d) any measure necessary for the gradual establishment of an integrated management system for external borders; and (e) the absence of any controls on persons, whatever their nationality, when crossing internal borders (Article 77 TFEU).

    The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, are invited by the treaty on the functioning of the EU to adopt measures for the development of: a common European asylum system and a common system of temporary protection for displaced persons in the event of a massive inflow (Article 78 TFEU); a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings (Article 79 TFEU).

    The ''single permit directive'' lays down: (a) a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State; and (b) a common set of rights for third-country workers legally residing in a Member State [Directive 2011/98]. This Directive is without prejudice to the Member States’ powers concerning the admission of third-country nationals to their labour markets.

    The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States (Article 79 TFEU). The policies of the Union concerning border checks, asylum and immigration, as well as their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States (Article 80 TFEU).

    A Regulation establishes a European Border and Coast Guard to ensure European integrated border management at the external borders with a view to managing the crossing of the external borders efficiently. This includes addressing migratory challenges and potential future threats at those borders, thereby contributing to addressing serious crime with a cross-border dimension [Regulation 2016/399, last amended by Regulation 2016/1624, see section 9.2]. The United Kingdom and Ireland are not bound by this Regulation, because it constitutes a development of provisions of the Schengen acquis in which these countries do not take parτ.

    A Directive determines: (a) the terms for conferring and withdrawing long-term resident status granted by a Member State in relation to third-country nationals legally residing in its territory, and the rights pertaining thereto; and (b) the terms of residence in Member States other than the one which conferred long-term status on them for third-country nationals enjoying that status [Directive 2003/109].

    The European Migration Network (EMN) was established in 2008 in order to meet the information needs of European institutions and of Member States’ authorities and institutions on migration and asylum, by providing up-to-date, objective, reliable and comparable information on migration and asylum, with a view to supporting policymaking in the European Union in these areas [Decision 2008/381]. A European Asylum Support Office was established in 2010 in order to help to improve the implementation of the Common European Asylum System (CEAS), to strengthen practical cooperation among Member States on asylum and to provide and/or coordinate the provision of operational support to Member States subject to particular pressure on their asylum and reception systems [Regulation 439/2010].

    According to Article 80 TFEU, the policies of the Union in the area of border checks, asylum and immigration and their implementation are to be governed by the principle of solidarity and fair sharing of responsibility between the Member States, and Union acts adopted in this area are to contain appropriate measures to give effect to this principle. The recent crisis situation in the Mediterranean prompted the Union institutions to immediately acknowledge the exceptional migratory flows in this region and call for concrete measures of solidarity towards the frontline Member States. At its meeting of 23 April 2015, the European Council decided, inter alia, to reinforce internal solidarity and responsibility and committed itself in particular to increasing emergency assistance to frontline Member States and to considering options for organising emergency relocation between Member States on a voluntary basis, as well as to deploying European Asylum Support Office teams in frontline Member States for the joint processing of applications for international protection, including registration and fingerprinting. In this context, two Decisions established provisional measures in the area of international protection for the benefit of Italy and of Greece in view of supporting them in better coping with an emergency situation characterised by a sudden inflow of nationals of third countries in those Member States [Decision 2015/1523 and Decision 2015/1601].

    Visa policy is now under Union competence. A Council regulation established a uniform format for visas for nationals of third countries [Regulation 1683/95, last amended by Regulation 2017/1370]. This single, clearly identifiable visa is issued by the Member States and includes all the necessary information. It meets the highest technical standards, notably as regards safeguards against counterfeiting and falsification. It guarantees, however, protection of the personal data involved. The Community Code on Visas (Visa Code) determines the third countries whose nationals are subject to the visa requirement for crossing the external borders of the European Union, and those whose nationals are exempt from that requirement [Regulation 539/2001, last amended by Regulation 2017/850]. A regulation facilitates the free movement within the EU territory of holders of long-stay visas pending the issue of their residence permit [Regulation 810/2009, last amended by Regulation 610/2013]. Several measures were adopted in the context of cooperation in the field of JHA, notably: consular cooperation regarding visas [Council Recommendation 96/318]; the organisation of pre-frontier assistance and training assignments to airports outside the Union [Joint Position 96/622]; and a system for exchanging information with a view to facilitating the detection of false and stolen documents [Decision 2000/261]. The visa information system (VIS) enables authorised national authorities to enter and update visa data, and consult them electronically [Decision 2004/512  and Decision 2008/633]. A Regulation set up the conditions and procedures for the exchange of data between Member States on applications for short-stay visas and on the decisions taken in relation thereto [VIS Regulation 767/2008, last amended by Regulation 610/2013].

    Immigration policy has entered the Community arena through the prior consultation procedure on migratory policies towards third countries, in place since 1988 [Decision 88/384]. A directive determines the conditions under which third-country nationals residing lawfully in the territory of a Member State may exercise the right to family reunification [Directive 2003/86]. A regulation laid down a uniform format for residence permits for third-country nationals with high technology specifications, including enhanced anti-forgery, counterfeiting and falsification standards [Regulation 1030/2002]. A directive lays down rules governing the admission of students into the European Union for a period exceeding three months and sets out the elements to be taken into consideration by the Member States for authorising such admissions [Directive 2016/801]. Another directive determines the conditions of entry and residence for more than three months in the territory of the Member States of third-country nationals for the purpose of highly qualified employment as EU Blue Card holders, and of their family members [Directive 2009/50, see].  One more Directive determines the conditions of entry and stay of third-country nationals for the purpose of employment (not exceeding 90 days)  as seasonal workers and defines the rights of seasonal workers [Directive 2014/36]. Another Directive lays down the conditions of entry to, and residence for more than 90 days in, the territory of the Member States, and the rights, of third-country nationals and of their family members in the framework of an intra-corporate transfer, i.e. the temporary secondment for occupational or training purposes [Directive 2014/66].

     A mechanism was set up for the mutual exchange of information, views and debates concerning national measures in the areas of asylum and immigration that are likely to have a significant impact on several Member States or on the European Union as a whole [Decision 2006/688]. Common rules exist for the collection and compilation of European statistics on migration and international protection [Regulation 862/2007].

    A directive provides a definition of the facilitation of illegal immigration and approximates legal provisions concerning precise definition of the infringement in question and exemptions [Directive 2002/90]. A framework decision aims at strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence by defining minimum rules for penalties, liability of legal persons and jurisdiction [Framework Decision 2002/946]. An EC Directive harmonised financial penalties imposed on carriers transporting into the territory of the Member States third-country nationals lacking the documents necessary for admission [Directive 2001/51] and another Directive provides for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [Directive 2009/52].

    In this context, the Union conducts a military crisis management operation (EUNAVFOR MED), contributing to the disruption of the business model of human smuggling and trafficking networks in the Southern Central Mediterranean achieved by undertaking systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers or traffickers, in accordance with applicable international law [2015/778]. In view of the influx of Syrian refugees, at the end of 2015, the EU decided to mobilise the Flexibility Instrument for immediate budgetary measures under the European Agenda on Migration [Decision 2015/2248].

    An immigration liaison officers' network enables contacts to be established and maintained with the authorities of third countries and facilitates the collection and exchange of information aimed at combating illegal immigration, promoting the return of illegal immigrants and assisting the management of legal migration [Regulation 377/2004]. A secure web-based information and coordination network for Member States' migration management services serves for exchanging information on illegal migratory flows [Decision 2005/267]. The European Community/Union has concluded Protocols against the smuggling of migrants by land, sea and air, aiming in particular at suppressing and punishing trafficking in persons, especially women and children, supplementing the United Nations Convention Against Transnational Organised Crime [Decisions 2006/616, 2006/617, 2006/618 and 2006/619]. Agreements on the readmission of persons residing without authorisation have been signed with Albania [Agreement and Decision 2005/371] and Sri Lanka [Agreement and Decision 2005/372]. The principle of mutual recognition covers an expulsion decision issued by a competent authority in one Member State against a third-country national [Directive 2001/40 and Decision 2004/191].The  Member States must apply common standards and procedures for returning illegally staying third-country nationals, in accordance with fundamental rights of European and international law [Directive 2008/115]. They may not depart from those standards and procedures by applying stricter standards, such as imprisonment of illegal migrants [Case C-61/11 PPU].

    Directive 2005/85 has put in place a system of minimum standards necessary for the granting and withdrawing of refugee status in the Member States, concerning notably access to legal assistance, personal interviews and the right of appeal. A directive lays down standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, aiming to ensure, on the one hand, that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, that a minimum level of benefits is available for those persons in all Member States [Directive 2011/95]. Another directive aims to give the European Union the means to act in the event of a mass influx of displaced persons by means of a mechanism for immediate protection, establishing minimum standards for giving this protection and for ensuring a balance of efforts between the Member States in receiving refugees and displaced persons [Directive 2001/55].

    The range of instruments available to EU asylum policy include: the exchange of information concerning assistance for the voluntary repatriation of third-country nationals [Decision 97/340]; the monitoring of the implementation by the Member States of measures adopted concerning asylum [Decision 97/420]; minimum standards on information, documentation, health, accommodation, clothing and money on the reception of applicants for asylum [Directive 2003/9]; and criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the Member States by a third-country national, incorporating the related Dublin Convention into the Union framework, in order to assist in determining which Member State is to be responsible for examining an application for international protection lodged in a Member State by a third-country national or a stateless person [Regulation 604/2013]. A centralised system, "Eurodac", was set up for processing, comparing and transmitting in digital format fingerprints of asylum seekers and certain other third-country nationals [Regulation 603/2013]. Two Directives lay down: (a) standards for the reception of applicants for international protection [Directive 2013/33]; and (b) common procedures for granting and withdrawing international protection [Directive 2013/32].

    A Framework Decision makes punishable by means of the criminal law of the Member States offences concerning racism and xenophobia, notably: (a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin; (b) the commission of such an act; (c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes [Framework Decision 2008/913].

    A Regulation establishes the Instrument for financial support for the management of external borders and the common visa policy (2014-2020) as part of the Internal Security Fund established jointly by this Regulation and Regulation 513/2014 [Regulation 515/2014, implemented by Regulation 800/2014, see also section 8.1.2]. The general objective of the Instrument is to contribute to ensuring a high level of security in the Union while facilitating legitimate travel, through a uniform and high level of control of the external borders and the effective processing of Schengen visas. Its specific objectives are: (a) supporting a common visa policy to facilitate legitimate travel, provide a high quality of service to visa applicants, ensure equal treatment of third-country nationals and tackle illegal immigration; and (b) supporting integrated border management, including promoting further harmonisation of border management-related measures in accordance with common Union standards and through the sharing of information between Member States and between Member States and the Frontex Agency, to ensure, on one hand, a uniform and high level of control and protection of the external borders, including by the tackling of illegal immigration and, on the other hand, the smooth crossing of the external borders in conformity with the Schengen acquis.

    Two Regulations establish the Asylum, Migration and Integration Fund (2014-2020) [Regulations 516/2014 and 513/2014]. The general objective of the Fund is to contribute to the efficient management of migration flows and to the implementation, strengthening and development of the common policy on asylum, subsidiary protection and temporary protection and the common immigration policy, while fully respecting the rights and principles enshrined in the Charter of Fundamental Rights of the European Union.

    A framework Regulation lays down general provisions for the implementation of the Specific Regulations 516/2014 and 513/2014 on the Asylum, Migration and Integration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management [Regulation 514/2014, last amended by Regulation 2015/378]. The Specific Regulations provide support, through national programmes, Union actions and emergency assistance, which complements national, regional and local intervention, pursuing the objectives of the Union and resulting in added value for the Union.

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