Tag Archives: Foreign national

Sanctions against the employment of illegally staying non-EU nationals

Sanctions against the employment of illegally staying non-EU nationals

Outline of the Community (European Union) legislation about Sanctions against the employment of illegally staying non-EU nationals

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Sanctions against the employment of illegally staying non-EU nationals

Document or Iniciative

Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.

Summary

The directive requires Member States to prohibit the employment of illegally staying non-EU nationals. It lays down common minimum standards on sanctions against employers who infringe the prohibition. Member States may decide not to apply the directive to illegally staying non-EU nationals whose removal has been suspended and who have been granted permission to work under national law.

Employers’ obligations

Employers are obliged to:

  • require non-EU nationals to produce a residence permit or another authorisation to stay before taking up employment;
  • keep copies of the permit or authorisation for the duration of the employment, in case of inspection by the national authorities;
  • notify the authorities within the period established by the Member State when they employ a non-EU national.

In cases where the employer is an individual who engages a non-EU national for private purposes, Member States may provide for a simplified procedure of notification. Member States may decide not to require notification when the non-EU national has been granted long-term residence status.

Sanctions

Member States must ensure that infringements are subject to effective, proportionate and dissuasive sanctions, including:

  • financial sanctions in relation to each illegally employed non-EU national;
  • payment of the costs for returning the illegally employed non-EU nationals.

The financial sanctions may be reduced for individuals employing illegally staying non-EU nationals for private purposes, provided that the working conditions were not exploitative.

Member States must ensure that employers are liable to make back payments, such as outstanding remuneration, including the cost of sending it to the employee’s country of origin, and social security contributions. To calculate the back payments, the employment relationship is presumed to have lasted for at least three months unless proved otherwise.

Member States must put in place the necessary mechanisms whereby illegally employed non-EU nationals may claim any outstanding remuneration from their employers. The non-EU nationals must be informed of their rights before their return is enforced.

Member States must ensure that employers are also, if appropriate, subject to other measures, such as:

  • exclusion from entitlement to some or all public benefits, including EU funding for up to five years;
  • exclusion from participation in a public contract for up to five years;
  • recovery of benefits granted up to 12 months prior the detection of the illegal employment;
  • temporary or permanent closure of the establishment.

Member States must also ensure that where an employer is a subcontractor, the contractor of which the employer is the direct subcontractor will be held liable in addition to or in place of the employer. However, contractors that have undertaken due diligence obligations defined by national law will not be liable. Member States may also provide for more stringent liability rules in relation to subcontracting.

An intentional infringement constitutes a criminal offence when the employer:

  • persists in his/her non-compliance;
  • employs a significant number of illegally staying non-EU nationals;
  • employs such persons in particularly exploitative working conditions;
  • employs victims of trafficking in human beings;
  • illegally employs minors.

Inciting, aiding and abetting this conduct must also constitute a punishable criminal offence.

Criminal sanctions may be accompanied by other measures, including publication of the judicial decision. Legal persons can also be held liable.

Complaints and inspections

Member States must ensure that illegally employed non-EU nationals can lodge complaints against their employers either directly or through designated third parties. Those working in particularly exploitative conditions may be issued residence permits for the duration of their proceedings on a case-by-case basis, under arrangements comparable to those provided for by Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings and who cooperate with the competent authorities.

Member States are required to carry out effective and adequate inspections based on regular risk assessments to control the employment of illegally staying non-EU nationals.

Background

The Commission suggested these measures in its communication of 19 July 2006 on policy priorities in the fight against illegal immigration. The European Council (15-16 December 2006) endorsed this suggestion, inviting the Commission to present proposals.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2009/52/EC

20.7.2009

20.7.2011

OJ L 168 of 30.6.2009

Entry and residence of highly qualified workers

Entry and residence of highly qualified workers

Outline of the Community (European Union) legislation about Entry and residence of highly qualified workers

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Entry and residence of highly qualified workers (EU Blue Card)

Document or Iniciative

Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment.

Summary

The object of this directive is to improve the European Union’s (EU) ability to attract highly qualified workers from third countries. The aim is not only to enhance competitiveness within the context of the Lisbon strategy, but also to limit brain drain. It is designed to:

  • facilitate the admission of these persons by harmonising entry and residence conditions throughout the EU;
  • simplify admission procedures;
  • improve the legal status of those already in the EU.

The directive applies to highly qualified third-country nationals seeking to be admitted to the territory of a Member State for more than three months for the purpose of employment, as well as to their family members.

Entry conditions

To be allowed into the EU, the applicant must produce:

  • a work contract or binding job offer with a salary of at least 1,5 times the average gross annual salary paid in the Member State concerned (Member States may lower the salary threshold to 1,2 for certain professions where there is a particular need for third-country workers);
  • a valid travel document and a valid residence permit or a national long-term visa;
  • proof of sickness insurance;
  • for regulated professions, documents establishing that s/he meets the legal requirements, and for unregulated professions, the documents establishing the relevant higher professional qualifications.

In addition, the applicant must not pose a threat to public policy in the view of the Member State. S/he may also be required to provide his/her address in that Member State.

Member States will determine the number of third-country nationals they admit.

Admission procedure, issuance and withdrawal of the EU Blue Card

Member States are free to decide whether the application for an EU Blue Card has to be made by the third-country national and/or his/her employer. If the candidate fulfils the above conditions and the national authorities decide to admit him/her, s/he is issued an EU Blue Card, which is valid for a standard period of one to four years. The application will be accepted or rejected within 90 days of filing. If the application is accepted, the applicant will be given every facility to obtain the requisite visas.

The application for an EU Blue Card can be rejected if it was drawn up on the basis of false or fraudulently acquired documents or if, given the state of the labour market, the Member State decides to give priority to:

  • EU citizens;
  • third-country nationals with a preferred status under Community law who are legal residents or who are EC long-term residents and wish to move to that Member State.

The application may also be rejected on the grounds of volumes of admission established by the Member State, ethical recruitment or if the employer has been sanctioned due to undeclared work or illegal employment.

The EU Blue Card may be withdrawn if the holder does not have sufficient resources to maintain him-/herself and family members without social assistance or if s/he has been unemployed for more than three consecutive months or more than once during the period of validity of the card.

Rights and residence in other Member States

With this card, third-country nationals and their families can:

  • enter, re-enter and stay in the issuing Member State and pass through other Member States;
  • work in the sector concerned;
  • enjoy equal treatment with nationals as regards, for example, working conditions, social security, pensions, recognition of diplomas, education and vocational training.

After two years of legal employment, they may receive equal treatment with nationals as regards access to any highly qualified employment. After 18 months of legal residence, they may move to another Member State to take up highly qualified employment (subject to the limits set by the Member State on the number of non-nationals accepted).

The procedure is the same as that for admission to the first Member State. An EU Blue Card holder and his family can, however, freely enter and stay in a second Member State, but must notify the authorities there within one month of their arrival. The second Member State may decide not to allow the third-country national to work until a positive decision on his/her application has been taken. However, the application may already be presented to the authorities of the second Member State while the EU Blue Card holder is still residing and working in the first Member State.

Implementation and reporting obligations

Starting from 2013, the Commission annually collects statistics from the Member States on the number of third-country nationals to whom an EU Blue Card has been issued, renewed, withdrawn or refused, on their nationalities and occupations, and on their families. Starting from 2014, it reports on the application of the directive to the European Parliament and the Council every three years and proposes any changes it deems necessary.

Background

In its policy plan on legal migration, which was presented on 21 December 2005, the Commission made five legislative proposals concerning different categories of third-country nationals. This directive is the first of these proposals.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2009/50/EC

19.6.2009

19.6.2011

OJ L 155 of 18.6.2009

Community statistics on asylum and migration

Community statistics on asylum and migration

Outline of the Community (European Union) legislation about Community statistics on asylum and migration

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Community statistics on asylum and migration

Document or Iniciative

Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection and repealing Council Regulation (EEC) No 311/76 on the compilation of statistics on foreign workers.

Summary

This regulation establishes common rules for the collection of Community statistics on migration by European Union (EU) countries. It concerns statistics relating to immigration * to and emigration * from an EU country, citizenship and country of birth of persons resident in the territories of EU countries, and administrative and judicial procedures relating to migration.

Statistics on migration, international protection, illegal immigration and returns

EU countries are required to provide Eurostat with statistics on the numbers of:

  • immigrants moving to their territories;
  • emigrants moving from their territories;
  • persons usually resident in their territories;
  • residence permits issued, including long-term residence permits;
  • natural persons having acquired national citizenship.

EU countries are also required to give the numbers of:

  • persons applying for international protection;
  • persons covered by applications under consideration by the national authorities;
  • applications rejected;
  • applications granting refugee, subsidiary protection and temporary protection statuses;
  • unaccompanied minors;
  • applications and transfers covered by the Dublin II Regulation;
  • persons selected for resettlement *.

In addition, EU countries must provide Eurostat with statistics on the numbers of non-EU country nationals who have been refused entry at their external borders and who have been found illegally present in their territories.

Furthermore, EU countries must provide statistics on the number of administrative or judicial decisions imposing an obligation to leave their territories, as well as on the number of non-EU country nationals who are returned to their countries of origin, countries of transit or other non-EU countries.

Provisions common to the different categories

The statistics are based on:

  • records of administrative and judicial actions;
  • registers relating to administrative actions and population registers;
  • censuses;
  • sample surveys.

As a rule, the statistics are disaggregated by age, sex and nationality. The Commission may adopt other disaggregations, such as the year in which the residence permit was granted for the first time (statistics on residence permits) or reason for refusal or arrest (statistics on illegal entry and immigration).

The Commission is assisted by the Statistical Programming Committee. It will submit a report to the European Parliament and to the Council on the implementation of the regulation by 20 August 2012 at the latest (and then every three years).

Background

This regulation is in response to the conclusions of the Thessaloniki European Council of June 2003, which asked for more effective mechanisms for collecting and analysing information on migration and asylum in the EU. The Commission had previously published an action plan laying down the objectives for developing statistics in this field.

Key terms used in the act
  • Immigration: the action by which a person establishes his or her residence in the territory of another EU or non-EU country for a period of at least twelve months;
  • Emigration: the action by which a person, having previously been resident in the territory of an EU country, changes his or her country of residence for a period of at least twelve months;
  • Resettlement: the transfer of non-EU country nationals to an EU country where they are permitted to reside for the purposes of international protection.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 862/2007

20.8.2007

OJ L 199 of 31.7.2007

Related Acts

Commission Regulation (EU) No 351/2010 of 23 April 2010 implementing Regulation (EC) No 862/2007 of the European Parliament and of the Council on Community statistics on migration and international protection as regards the definitions of the categories of the groups of country of birth, groups of country of previous usual residence, groups of country of next usual residence and groups of citizenship [Official Journal L 104 of 24.4.2010].
To ensure the comparability of statistics from EU countries and to allow the drawing up of reliable EU-wide overviews from these statistics, it is essential that all EU countries define certain categories of groups in the same manner. Consequently, this regulation establishes the categories of groups of:

  • country of birth;
  • country of previous usual residence;
  • next usual residence;
  • citizenship.

EU countries must transmit data to the Commission according to these groups, as listed in the annex to this regulation. The groups of countries and citizenship are divided into basic groups and additional groups of other non-EU countries and citizenship disaggregated by levels of development. The Commission provides lists of countries and citizenships for each basic and additional group.

Commission Regulation (EU) No 216/2010 of 15 March 2010 implementing Regulation (EC) No 862/2007 of the European Parliament and of the Council on Community statistics on migration and international protection, as regards the definitions of categories of the reasons for the residence permits [Official Journal L 66 of 16.3.2010].
To harmonise the collection of statistics by EU countries, this regulation defines in its annex the categories of reasons for issuing residence permits to non-EU country nationals. The list includes categories of reasons relating to:

  • family formation and reunification;
  • education and study;
  • remunerated activities.

Schengen Borders Code

Schengen Borders Code

Outline of the Community (European Union) legislation about Schengen Borders Code

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Schengen Borders Code

Document or Iniciative

Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [See amending act(s)].

Summary

This regulation applies to any person crossing the internal * or external * borders of a European Union (EU) country.

External borders

External borders may be crossed only at border crossing-points and during the fixed opening hours.

When crossing an external border, European Union (EU) citizens and other persons enjoying the right of free movement within the EU (such as the family members of an EU citizen) undergo a minimum check. This minimum check is carried out to establish their identity on the basis of their travel documents and consists of a rapid and straightforward verification of the validity of the documents and a check for signs of falsification or counterfeiting. Non-EU country nationals are subject to thorough checks. These comprise a verification of the conditions governing entry, including verification in the Visa Information System (VIS) and, if applicable, of documents authorising residence and the pursuit of a professional activity.

For stays not exceeding three months per a six-month period, a non-EU country national must:

  • possess a valid travel document;
  • possess a valid visa, if required;
  • justify the purpose of his/her intended stay and have sufficient means of subsistence;
  • not have an alert issued for him/her in the Schengen Information System (SIS) for the purpose of refusing entry;
  • not be considered a threat to public policy, internal security, public health or the international relations of EU countries.

If these conditions are not met, entry to the territory is refused, unless special provisions (e.g. for humanitarian reasons) apply.

The travel documents of non-EU country nationals are systematically stamped upon entry and exit. If a travel document does not bear an entry stamp, it may be presumed that the holder does not fulfil, or no longer fulfils, the conditions of stay. However, the non-EU country national may provide any credible evidence of having respected the conditions relating to the duration of a short stay, such as transport tickets or proof of his/her presence outside the territory of the EU countries.

Border checks * are carried out by border guards *. When performing their duties, border guards must fully respect human dignity and may not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

EU countries must deploy appropriate staff and resources in sufficient numbers to ensure a high and uniform level of control * at their external borders. They must ensure that border guards are specialised and properly trained professionals. EU countries assist each other with the effective application of border controls. Operational cooperation is coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the EU Countries (FRONTEX).

Internal borders

Irrespective of nationality, any person may cross the internal borders at any crossing-point without checks being carried out. The police may exercise their powers in border zones in the same fashion as elsewhere in their territory, provided that this is not equivalent to the exercise of border checks.

EU countries must remove all obstacles to fluid traffic flow at road crossing-points at internal borders.

Where there is a serious threat to public policy or internal security, an EU country may exceptionally reintroduce border controls at its internal borders for, in principle, a limited period of no more than thirty days. If such controls are to be reintroduced, the other EU countries and the Commission should be informed as soon as possible. The European Parliament should also be informed.

Consultations take place between EU countries and the Commission at least fifteen days before the planned date for the reintroduction of border controls, in order to organise mutual cooperation and to examine the proportionality of the measures to the events giving rise to the reintroduction. The decision to reintroduce border controls at internal borders must be taken in a transparent manner and the public must be informed in full, unless there are overriding security reasons for not doing so.

Under exceptional circumstances, the EU country concerned may reintroduce checks at its internal border immediately, if required by considerations of public order or national security. The other EU countries and the Commission are then notified accordingly.

Background

The Commission communication of 7 May 2002 on the integrated management of external borders set out five essential components for a common policy, including the establishment of a common body of legislation. This was to include a recast of the Common Manual on external borders. The Thessaloniki European Council on 19 and 20 June 2003 invited the Commission to present proposals for said recasting as soon as possible.

This regulation repeals Articles 2 to 8 of the Convention implementing the Schengen Agreement of 14 June 1985 and the Common Manual on external borders.

Key terms used in the act
  • Internal borders: common land borders, including river and lake borders, of EU countries, airports for internal flights, and sea, river and lake ports for regular ferry connections.
  • External borders: EU countries’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders.
  • Border control: activities carried out at a border, in response exclusively to an intention to cross a border, and consisting of border checks and border surveillance.
  • Border checks: checks carried out at border crossing-points to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter or leave the territory of the EU countries.
  • Border guard: any public official assigned, in accordance with national law, to a border crossing point or along the border or the immediate vicinity of that border and who carries out border control tasks.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 562/2006

13.10.2006

OJ L 105 of 13.4.2006

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 296/2008

10.4.2008

OJ L 97 of 9.4.2008

Regulation (EC) No 81/2009

24.2.2009

OJ L 35 of 4.2.2009

Regulation (EC) No 810/2009

5.10.2009

OJ L 243 of 15.9.2009

Regulation (EU) No 265/2010

5.4.2010

OJ L 85 of 31.3.2010

AMENDMENT OF ANNEXES

Annex V, Part A – Procedures for refusing entry at the border:

Regulation (EC) No 810/2009 [Official Journal L 243 of 15.9.2009].

Related Acts

Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the management of Operational Cooperation at the External Borders of the Member States of the European Union [Official Journal L 111 of 4.5.2010].

Report from the Commission to the European Parliament and the Council of 21 September 2009 on the operation of the provisions on stamping of travel documents of third-country nationals in accordance with Articles 10 and 11 of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [COM(2009) 489 final – Not published in the Official Journal].

Common standards and procedures for returning illegal immigrants

Common standards and procedures for returning illegal immigrants

Outline of the Community (European Union) legislation about Common standards and procedures for returning illegal immigrants

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Common standards and procedures for returning illegal immigrants

Document or Iniciative

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.

Summary

This directive provides Member States with common standards and procedures for returning third-country nationals staying illegally on their territories, with certain exceptions. Member States must however ensure that the treatment and level of protection of third-country nationals excluded from the scope of the directive corresponds at least to certain of its provisions on coercive measures, removal, health care and detention. In all cases, Member States must respect the principle of non-refoulement and take into consideration the best interest of children, family life and the health of the person concerned.

A return decision must be issued by a Member State to the third-country national staying illegally on its territory. If the third-country national has a valid residence permit or equivalent from another Member State, s/he must immediately return to that Member State. If another Member State takes back an illegally staying third-country national under a bilateral agreement, that Member State will be responsible for issuing the return decision. Due to compassionate, humanitarian or other reasons, a Member State may provide an illegally staying third-country national with an autonomous residence permit or an equivalent right to stay. Member States should not issue return decisions before the pending procedures for renewing such permits have come to an end.

The return decision must allow for a period of voluntary departure of between seven and 30 days for the illegally staying third-country national. Member States may require that this period is applied for by the person in question. In particular circumstances, the period for voluntary departure may be prolonged. Member States may also impose certain obligations on the third-country national for the duration of this period in order to prevent him/her from fleeing. When the illegally staying third-country national risks fleeing, has submitted a fraudulent application or poses a risk to public/national security, the Member State may grant a shorter period of voluntary departure or no period at all.

If no period is granted, or if the third-country national has not complied with the return decision within the period granted, the Member State must enforce his/her removal. Coercive measures that are proportionate and do not exceed reasonable force may be used only as a final solution to remove third-country nationals. The removal of a third-country national must be postponed if it breaches the principle of non-refoulement or if the return decision has been temporarily suspended. Member States may also postpone removals in particular circumstances.

An entry ban may be given together with a return decision. However, it must be provided when no period of voluntary departure is granted or when the illegally staying third-country national has not complied with the return decision. The duration of the entry ban must be set on a case-by-case basis, taking into consideration the particular circumstances of the person concerned. In principle, the duration may not be longer than five years, unless the third-country national poses a threat to public/national security. Member States may choose to withdraw or suspend an entry ban for particular reasons. In humanitarian cases, they may even decide to not issue such a ban.

Decisions on returns, entry bans and removals must be provided in writing and accompanied by information on available remedies. On request, the Member State must provide a translation of these to the third-country national, unless it issues decisions by means of a standard form.

Third-country nationals must be given the possibility to appeal against or seek review of return decisions, as well as to obtain legal assistance/representation free of charge. The decisions are to be reviewed by a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. The review body will have the power to temporarily suspend the enforcement of the decisions.

In specific cases, and when less coercive measures are not sufficient, Member States may detain a third-country national during the return procedure if s/he risks fleeing or avoids/obstructs the preparation of return or the removal process. Detentions are ordered in writing by administrative or judicial authorities and must be reviewed regularly. The detention period must be as short as possible and not more than six months. Only in particular circumstances, when the removal of a third-country national might exceed the time limit set, Member States may prolong detention by a maximum of 12 months. Specialised detention facilities are to be used for the purpose; however, if this is not feasible, Member States may use prison accommodation with separate quarters for the third-country nationals.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Directive 2008/115/EC

13.1.2009

24.12.2010
(24.12.2011 for Article 13(4))

OJ L 348 of 24.12.2008

Visa requirements for non-EU nationals

Visa requirements for non-EU nationals

Outline of the Community (European Union) legislation about Visa requirements for non-EU nationals

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Visa requirements for non-EU nationals

Document or Iniciative

Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement [See amending act(s)].

Summary

This regulation harmonises the visa * requirements for non-European Union (EU) nationals entering the EU. It provides a common list of countries whose nationals must hold a visa when crossing the external borders of a Member State (Annex I).

The regulation also lists the countries whose nationals are exempt from the visa requirement for stays of maximum three months (Annex II). In addition, the visa requirement is waived for:

  • non-EU nationals who hold a local border traffic permit;
  • non-EU school pupils who are residents of a Member State and travelling with their schools for the purpose of a school excursion;
  • recognised refugees and stateless persons who hold a travel document from the Member State in which they are residing.

Optional exceptions to the visa requirement

A Member State may grant exceptions to the visa requirement or the exemption from the visa requirement to the following persons:

  • holders of diplomatic, service/official and special passports;
  • civilian air and sea crew;
  • flight crew and attendants on emergency/rescue flights;
  • holders of laissez-passer.

The following persons may also be exempted from the visa requirement:

  • school pupils that are nationals of a non-EU country whose nationals require a visa, but that are residing in a non-EU country that is exempt from this requirement or in Switzerland or Liechtenstein, and that are travelling with their schools for the purpose of a school excursion;
  • recognised refugees and stateless persons residing in and having a travel document from a non-EU country exempt from the visa requirement;
  • holders of North Atlantic Treaty Organisation (NATO) identification and movement orders, and members of the armed forces travelling within the framework of NATO or Partnership for Peace operations.

An exception to the exemption from a visa requirement may also be made for persons who perform a paid activity during their stay.

Member States must notify each other and the Commission of any exceptions they decide to apply.

Principle of reciprocity: breaches by a non-EU country

If one of the countries whose nationals are exempt from the visa requirement (Annex II) introduces such a requirement for the nationals of a Member State, that Member State must notify the Commission and the Council. This notification is then published in the Official Journal of the EU. Subsequently, the Commission is to contact the authorities of the non-EU country in question with a view to restoring visa-free travel.

Within 90 days of publication of the notification, the Commission must report to the Council. It may propose the temporary restoration of a visa requirement to the nationals of the non-EU country. The Council must take a decision on the proposal within three months. If the non-EU country abolishes the visa requirement, all temporary measures imposed on it will be terminated.

Key terms used in the act
  • Visa: an authorisation issued by a Member State or a decision taken by such a state that is required with a view to:
    1. entry for an intended stay in that Member State or in several Member States of no more than three months in total;
    2. entry for transit through the territory of that Member State or several Member States, except for transit at an airport.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 539/2001

10.4.2001

OJ L 81 of 21.3.2001

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 2414/2001

1.1.2002

OJ L 327 of 12.12.2001

Regulation (EC) No 851/2005

25.6.2005

OJ L 141 of 4.6.2005

Regulation (EC) No 1932/2006

19.1.2007

OJ L 405 of 30.12.2006

Successive amendments and corrections to Regulation (EC) No 539/2001 have been incorporated in the basic text. This consolidated versionis for reference purposes only.

LAST AMENDMENTS OF ANNEXES

Annex I and II
Regulation (EU) No 1211/2010 [OJ L 339 of 22.12.2010].

A comprehensive European migration policy

A comprehensive European migration policy

Outline of the Community (European Union) legislation about A comprehensive European migration policy

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

A comprehensive European migration policy

Document or Iniciative

Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions of 4 May 2011 – Communication on migration [COM(2011) 248 – Not published in the Official Journal].

Summary

The Arab spring revolutions in 2011 resulted in a large influx of immigrants from the Southern Mediterranean, who entered the European Union (EU) illegally via the Italian and Maltese coasts. The EU took emergency measures in order to respond to this situation. However, these events have demonstrated the limited resources of the EU in immigration matters and the need for greater solidarity between the Member States in this area.

Therefore, the Commission presents initiatives aimed at establishing a comprehensive European migration policy which is better able to meet the challenges presented by migration. This policy must respect the European tradition of asylum and protection, while preventing illegal border crossings.

Several aspects of migration are addressed:

  • Crossing the borders

The EU’s external border controls must be effective and must enable a high level of security to be maintained while also facilitating the passage of persons authorised to enter the EU. The Commission intends to strengthen the existing common rules. In particular, it envisages creating a European system of border guards. It also insists on improving cooperation between national authorities and the exchange of operational information in the case of incidents at external borders, specifically via the EUROSUR system. The operational capacities of the Frontex agency must also be strengthened.

An evaluation of Member States’ application of the Schengen rules must be undertaken at EU level, with the participation of experts from Member States and Frontex, led by the Commission. The latter also intends to establish a mechanism allowing for a decision, at European level, defining which Member States would exceptionally reintroduce border controls at internal borders.

Lastly, to prevent irregular immigration, the Commission stresses the need for a balanced and effective European return policy (returning illegal immigrants who do not need international protection to their countries). It requires that all Member States transpose into their national law the Return Directive on common standards and procedures for returning illegal immigrants, and the Directive on sanctions against the employment of person staying illegally. Lastly, it recognises the effectiveness of readmission agreements with third countries, but also believes that the latter must be considered within the framework of the EU’s overall relations with the countries concerned and accompanied by incentives that help the countries to implement them.

  • Moving and living in the Schengen area

The Commission advocates better organised mobility based on cooperation (between the European agencies Frontex and Europol, and between customs authorities and national police authorities), and on new technologies. In particular, a European entry-exit system would enable data on border crossings by third country citizens to be made available to the authorities. In addition, a registered traveller programme would enable automated border control for frequent travellers.

Visa policy is also an important instrument in terms of mobility. In order to avoid abuse of visa liberalisation systems, the Commission proposes the introduction of a safeguard clause which would enable the temporary re-introduction of visa requirements for citizens from a third country benefiting from this system.

At the same time, the Union recognises that migrants constitute an indispensible workforce for the EU, both in terms of responding to labour shortages in certain areas, and in terms of providing a highly qualified workforce. It is therefore important to recognise their qualifications and to facilitate administrative procedures. The Commission hopes to make progress on the draft single permit authorising foreigners to live and work in a Member State and calls on the EU countries to transpose into their national law the Directive on the European Blue Card which facilitates the recruitment of highly qualified persons. It has also put forward proposals on seasonal workers and intra-corporate transferees. In order to provide migrants with clear and practical information, the Commission will launch an EU immigration portal this year.

Lastly, the integration of migrants into European society must respect the balance between the rights of the migrants and the law and culture of the receiving country. It requires efforts on the part of both migrants and receiving countries. Successful integration is essential for maximising the economic, social and cultural advantages of immigration, for individuals as well as societies. In July 2011, the Commission presented a European Agenda for the Integration of Third-Country Nationals.

  • Common European Asylum System

The establishment of a Common European Asylum System must be completed by 2012. It aims to reduce the divergences between EU countries in the outcomes of asylum applications, and to ensure a common set of rights and procedures, as well as compliance with the Geneva Convention on the status of refugees. The European Asylum Support Office will strengthen cooperation in this area.

The Commission insists that the resettlement of refugees (permanent resettlement in a Member State of a refugee who has obtained protection in a third country) must become an integral part of European Asylum Policy.

  • Relations with third countries

Issues relating to migration must be integrated into the EU’s overall external relations. A better balance must be found between organising legal migration, combating irregular migration and maximising the mutual benefits of migration for development. The human dimension must also be strengthened through a migrant-centred approach.

With regard to the Southern Mediterranean countries, the Union has proposed a structured dialogue on migration with the aim of establishing mobility partnerships to facilitate access by their citizens to EU territory in exchange for their collaboration in managing migration flows. The Commission will also revise its Neighbourhood Policy with these countries.