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1.3.2009

Immigration Policy

Although the Treaty of Lisbon, also to be known as the Reform Treaty, should it ever enter into force, contains the aim of a "common immigration policy" (Article 17 Treaty of Lisbon), to date the EU has no comprehensive common regulations regarding the admission of third-country nationals or labour migration, with the exception of the right to family unification and two regulations concerning the admission of students and researchers.

Instead, any cooperation has concentrated on formulating common regulations for crossing the external border, including a common visa policy.

Visa policy is one of the most communitised aspects of European cooperation where asylum and migration policy are concerned. The European Union has a list of currently 101 states whose citizens have to be in possession of a visa in order to cross the EU's external border. While member states may extend the requirement of a compulsory visa to certain other nationalities, there is, by contrast, no exception possible for countries in the list. This regulation has repeatedly turned out to be problematic for countries wishing to join the EU. This is because such countries are required to impose compulsory visas on socially, economically and culturally related neighbour states. In addition to uniform determination of countries for which a visa is compulsory, the procedure for issuing visas has also been brought into line in recent years. The common visa policy is supported by an electronic visa information system (VIS) in which data for all visa applications in the European Union are stored, including the applicants┬┤ fingerprints and biometric data.

The central European instruments in relation to legal migration are the family reunification directive and the directive concerning the rights of settled third-country nationals. Both directives aim to harmonise national laws by specifying minimum standards. The directive concerning the status of third-country nationals who are long-term residents (2003/109) provides a framework for harmonising the legal status of third-country nationals (with a settlement permit, i.e. after five years of legal residence) with that of EU citizens. The original aim of extending EU citizens' rights of free movement to settled third-country nationals was only partly fulfilled due to numerous limitation clauses. Thus, for example, member states may determine numerical quotas for the immigration of third-country nationals who have settled in another member state or demand certain integration measures of such third-country nationals.

Directive 2003/86 establishes common minimum standards for the right to family reunification. Apart from the directives on the admission of students and researchers (see below), it is to date the only regulation at European level concerning the influx of third-country nationals. Third-country nationals may apply for family reunification if they possess a residence permit issued by a member state and valid for at least a year, and if they have justified prospects of obtaining a permanent residence permit. Refugees are excluded. The spouses and unmarried or under-age children of legally resident third-country nationals can exercise the right to family reunification (core family concept). Within the context of national law, however, member states may consider the admission of other family members under the right to family reunification (extended family). Human rights groups and the European Parliament are especially critical of the possibility that member states may refuse residence to minors who have passed the age of 12 if they do not satisfy more strictly defined integration requirements. The power of member states to require potential family migrants to take steps towards integration even before entering the country (such as acquiring a command of the language) has also been met with criticism. A complaint brought before the European Court of Justice by the European Parliament that these regulations were contrary to international human rights standards was, however, dismissed.

Attempts by the European Commission to bring about European regulations for employment-related immigration, over and above the right to family reunification guaranteed by human rights, have failed, so far, due to the resistance of the member states. Only two directives concerning the conditions of admission of third-country nationals for the purposes of studies and for the purpose of scientific research have been adopted, the first in 2004 and the second in 2005.

In light of resistance to European regulations on labour migration, the European Commission has concentrated on areas where, in the eyes of the governments of the member states, the harmonisation of European regulations brings with it clear added value. This concerns first and foremost highly skilled migrants for whom there is strong international competition. Consequently the "Blue Card" initiative proposed by the European Commission for highly skilled persons from third countries provides for simplified, fast-track admission procedures and preferential rights of residence for such third-country nationals. According to this proposal, Blue Card holders would immediately receive the right to family reunification as well as the right, after two years' legal residence in a member country, to look for work in other EU countries without having to return to their home country. At the same time, the member states would retain the right to make the issuing of a Blue Card dependent upon the labour market situation within their country as well as to apply national law to the filling of available posts. Following European Parliament approval in November 2008, it is expected that the Council of Ministers will formally pass a corresponding directive in early 2009.

Directives concerning labour migration are planned solely for specific groups of people, such as seasonal workers, trainees and those employed by multinational companies.

Sandra Lavenex

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