EU Migration and Asylum Law
People on the Move (Episode 3)
Are they migrants, refugees, third-country nationals, or beneficiaries?
EU migration law is the legislative foundation of the migration management of the Union. It provides common standards for the admission, living and working conditions of migrants and common regulations to prevent irregular migration and human trafficking.
EU law refers to any individual who is not an EU citizen as a “third-country national”[1]. Therefore, in the EU context, migrants are third-country nationals who are present in the territory of a Member State. There are two types of migrants depending on the lawfulness of their presence: regular or irregular. Regular migrants are those who fulfil the conditions of entry, stay and residence as foreseen by the EU regulations and the national laws of Member States. Whereby, irregular migrants are those who do not fulfil or no longer fulfil the conditions of entry, stay and residence.
The EU does not have unified legislation which defines and covers all regular migrants. Instead, there are different groups of third-country nationals categorized as; long-term migrants, migrant workers, highly qualified migrant workers, short-term migrant workers, transferred white colour migrant workers, and those who are not workers but who stay in the Member States mainly for educational purposes[2]. Unauthorised entrants and those who transit or stay unauthorised in the territory of the EU are irregular migrants.
EU asylum law establishes unified standards to be applied by all Member States for those who need international protection. There are three types of international protection under the EU asylum law; refugee status within the meaning of the Convention relating to the Status of Refugees (1951 Convention)[3], subsidiary protection status and temporary protection status.
The standards of refugee status and subsidiary protection are set out under the Qualification Directive[4]. The term “international protection” in the Directive encompasses both statuses. International protection is granted only to non-EU citizens or stateless persons. The citizens of the Member States cannot make asylum claims within the territory of the EU. Therefore, the refugee is a third-country national or a stateless person who fulfils the criteria set out in Article 2(d) of the Qualifications Directive which is identical to the refugee definition in Article 1(2) of the 1951 Convention. According to the Article 2(d);
“Refugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply.
“Beneficiary of subsidiary protection”, is a third-country national or a stateless person who does not fulfill the above-mentioned Convention refugee criteria but who faces a real risk of suffering serious harm on substantial grounds if returned to his country of former habitual residence. Subsidiary protection is complementary to Convention status.
“Temporary protection status” is defined under the Temporary Protection Directive[5] which is applied in case of a mass influx of people to provide immediate protection where individual assessment is not possible. The Directive is activated for the first time by the 4th March 2022 Council Decision[6] for mass arrivals of displaced Ukrainians following the Russian military aggression in February. It is in force initially for one year. It provides Ukrainian nationals, stateless persons and their family members, who are beneficiaries of temporary protection, the right to enjoy residence permits; employment, self-employment and education; housing, social welfare and medical care.
[1] The EU-citizens are the citizens of the Member States.
[2] Those who come to the Member States for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing.
[3] Convention and Protocol Relating to the Status of Refugees; https://immigrationhistory.org/wp-content/uploads/2018/12/Refugee-Protocol.pdf
[4] Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337, (20.12.2011), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32011L0095
[5] Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ L 212, (7.8.2001), https://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex:32001L0055
[6] Council implementing decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection, OJ L 71/1, (4.3.2022), https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32022D0382&from=EN
Leave a Reply