Chapter 5

5.1 Introduction

Ireland will re-run its referendum on the Lisbon Treaty during 2009, having secured some guarantees on matters of concern to the Irish people. This may mean that the Treaty secures the ratification of all 27 governments and can come into effect, though governments of the Czech Republic, Germany and Poland have not yet ratified it.

5.2 Treaty of Amsterdam

The French presidency of the European Union launched a proposal for a pact to be agreed by the EU Council which spelt out a common policy in the field of immigration, asylum and border management (ILPA European update September 2008, Elspeth Guild). It provided policy statements and timescales for objectives within the fields of Legal Migration, Irregular Migration, Reinforcing the efficiency of border controls, Asylum and Migration Partnerships with Third Countries.

New directives have been adopted on conditions of entry and residence of third-country nationals for the purposes of highly qualified self-employment (the ‘Blue Card’ Directive); on sanctions for employers of irregular migrants; on returning illegal migrants: Directive 2008/115 (UK opted out). Regulations have been adopted on biometric passports.

5.7 Frontex

In parallel with Frontex, the European Commission has now published a new package of measures on border management: Communication: Preparing the Next Steps in Border Management COM (2008) 69 final; Communication: Creating a European Border Surveillance System (EUROSUR) COM (2008) 68 final; Evaluation of Future Development of Frontex COM (2008) 67 final.

The proposals include electronic entry-exit systems which would record identity of passengers crossing the border, allow for an automated border crossing gate for privileged travellers, and a possible system of advance authorisation.

5.8 Europe and Asylum

The first phase of the Common European Asylum System was completed in 2005. During 2008, amending measures were proposed to introduce a higher degree of harmonisation and improve standards of protection. These include measures to amend the Reception Directive, the Dublin II Regulation and Eurodac. The UK is opting in to the latter two, but wants to remain outside amendments to the Reception Directive. This will be constitutionally complex within the EU.

5.11.2 Association agreements

In Soysal C-228/06 the ECJ held that Article 41(1) of the Additional Protocol to the Turkey Agreement (the standstill clause) precluded the requirement of for Turkish nationals to have a visa to enter to enter a Member State in order to provide services there, as on 1st January 1973 (the effective standstill date) no such visa was required.

In Sonmez, Agun, Tozge and Demir v SSHD [2009] EWCA Civ 582 the UK Court of Appeal held that where Turkish students had set up in business in breach of the terms of their student leave, they could not benefit from the standstill clause. This meant that the decisions on their applications to remain as businesspeople could be decided, and refused, on the less favourable provisions of the present immigration rules, rather than the pre January 1973 rules. They said this was consistent with Tum and Dari as that case envisaged that the principle concerning abuse of Community law applied to Article 41, the standstill clause.

5.11.3 New member states

On 1st May 2009 the first five years of membership of the EU came to an end for the A8 states and for Cyprus and Malta. This meant the end of the period within which there could be restrictions on freedom of movement for nationals of those states unless a host state could show serious disturbances to its labour market. The UK has stated that it does have such disturbances because of the recession, and so has exercised its right to extend the restrictions (i.e. the Workers Registration Scheme - WRS) for another two years. Germany and Austria are the only other Member States to do this. This decision was supported by a recommendation of the Migration Advisory Committee in its Review of the UK’s Transitional Measures for Nationals of Member States that acceded to the EU in 2004, despite the evidence of their review that the abolition of the WRS would not result in substantial changes in flows and therefore there would not be significant labour market impacts (para 5.35).

In November 2008 the European Commission published a report on transitional arrangements regarding free movement of workers (COM (08) 765), which concluded that in the EU as a whole the entry of A8 workers had not led to serious disturbance of the labour market. The Migration Advisory Committee does not argue that the free movement of workers has led to serious disturbance of the labour market, but rather that abolition of the WRS would be taking place at the time of such disturbances.

Reading list

Baldaccini, Anneliese, Guild,Elspeth and Toner, Helen,Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy (2007) Oxford: Hart
Gammeltoft-Hansen, Thomas; Gammeltoft-Hansen, Hans, 'The Right to Seek - Revisited. On the UN Human Rights Declaration Article 14 and Access to Asylum Procedures in the EU' European Journal of Migration and Law vol.10 no.4 2008 pp. 439-459
Lax, Violeta Moreno,'Must EU Borders have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers' Sanctions with EU Member States' Obligations to Provide International Protection to Refugees' European Journal of Migration and Law vol.10 no.3 2008 pp. 315-364
Peers, Steve, ‘Turkish Visitors and Turkish Students’, Journal of Immigration Asylum and Nationality Law Vol. 23 no.2 pp.197-203
Trauner, Florian; Kruse, Imke, 'EC Visa Facilitation and Readmission Agreements: A New Standard EU Foreign Policy Tool?' European Journal of Migration and Law vol.10 no.4 2008 pp.411-438

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