Immigration policy

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A forward-looking and comprehensive European immigration policy, based on solidarity, is a key objective for the European Union. Immigration policy is intended to establish a balanced approach to dealing with both regular and irregular immigration.

Legal basis

Articles 79 and 80 of the Treaty on the Functioning of the European Union (TFEU).

Competences

Regular immigration: The EU is competent to lay down the conditions governing entry into and legal residence in a Member State, including for the purposes of family reunification, for third-country nationals. Member States retain the right to determine volumes of admission for people coming from third countries to seek work.

Integration: The EU may provide incentives and support for measures taken by Member States to promote the integration of legally resident third-country nationals; EU law makes no provision for the harmonisation of national laws and regulations, however.

Combating irregular immigration: The European Union is required to prevent and reduce irregular immigration, in particular by means of an effective return policy, in a manner consistent with fundamental rights.

Readmission agreements: The European Union is competent to conclude agreements with third countries for the readmission to their country of origin or provenance of third-country nationals who do not fulfil or no longer fulfil the conditions for entry into, or presence or residence in, a Member State.

Objectives

Defining a balanced approach to immigration: The EU aims to set up a balanced approach to managing regular immigration and combating irregular immigration. Proper management of migration flows entails ensuring fair treatment of third-country nationals residing legally in Member States, enhancing measures to combat irregular immigration, including trafficking and smuggling, and promoting closer cooperation with non-member countries in all fields. It is the EU’s aim to establish a uniform level of rights and obligations for regular immigrants, comparable to that for EU citizens.

Principle of solidarity: under the Lisbon Treaty, immigration policies are to be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States (Article 80 TFEU).

Achievements

A. Institutional developments brought about by the Lisbon Treaty

The Lisbon Treaty, which entered into force in December 2009 (1.1.5), introduced qualified majority voting on regular immigration and a new legal basis for integration measures. The ordinary legislative procedure now applies to policies on both irregular and regular immigration, making Parliament a co-legislator on an equal footing with the Council. The provisional measures to be taken in the event of a sudden inflow of third-country nationals are adopted by the Council alone, however, after consulting Parliament (Article 78(3) TFEU).

The Lisbon Treaty also made it clear that the EU shares competence in this field with the Member States, in particular as regards the number of migrants allowed to enter a Member State to seek work (Article 79(5) TFEU). Finally, the Court of Justice now has full jurisdiction in the field of immigration and asylum.

B. Recent policy developments

1. The ‘Global Approach to Migration and Mobility’

The ‘Global Approach to Migration and Mobility’ (GAMM) adopted by the Commission in 2011 establishes a general framework for the EU’s relations with third countries in the field of migration. It is based on four pillars: regular immigration and mobility, irregular immigration and trafficking in human beings, international protection and asylum policy, and maximising the impact of migration and mobility on development. The human rights of migrants are a cross-cutting issue in the context of this approach.

2. The June 2014 strategic guidelines

The Stockholm Programme for the area of freedom, security and justice (AFSJ), adopted in December 2009, expired in December 2014 (4.2.1). In March 2014, the Commission published a new communication setting out its vision on the future agenda for the AFSJ, entitled ‘An open and secure Europe: making it happen’. In accordance with Article 68 TFEU, in its conclusions of 26 and 27 June 2014 the European Council then defined the ‘strategic guidelines for legislative and operational planning within the area of freedom, security and justice’ for the 2014-2020 period. These no longer constitute a programme, but rather guidelines focusing on the objective of transposing, implementing and consolidating the existing legal instruments and measures. The guidelines stress the need to adopt a holistic approach to migration, making the best possible use of regular migration, affording protection to those who need it, combating irregular migration and managing borders effectively. The adoption of new strategic guidelines is still pending.

3. European Agenda on Migration

In May 2015, the Commission published the European Agenda on Migration. The Agenda proposed immediate measures to cope with the crisis in the Mediterranean and measures to be taken over the next few years to manage all aspects of immigration more effectively.

On the basis of this agenda, in April 2016 the Commission published its guidelines on regular migration, as well as on asylum, in a communication. There are four main strands to the guidelines as regards regular migration policies: revising the Blue Card Directive, attracting innovative entrepreneurs to the EU, developing a more coherent and effective model for regular immigration in the EU by assessing the existing framework, and strengthening cooperation with the key countries of origin, with a view to ensuring legal pathways to the EU while at the same time improving returns of those who have no right to stay.

In October 2019, the Commission published its last progress report on the implementation of the European Agenda on Migration, which examines progress made and shortcomings in the implementation of the Agenda. In September 2021, a year after adopting the New Pact on Migration and Asylum, the Commission adopted its first report on migration and asylum, covering all aspects of migration management and taking stock of the key developments in migration and asylum policy over the previous period of one year and a half. The second report on migration and asylum was published on 6 October 2022.

All policy developments are closely monitored by the European Migration Network, established in 2008 as an EU network of migration and asylum experts from all Member States, who work together to provide objective, comparable and policy-relevant information.

4. The New Pact on Migration and Asylum

As announced in its 2020 work programme, the Commission published its New Pact in September 2020, which aims to integrate the asylum procedure in overall migration management, linking it with pre-screening and return, while also covering the management of external borders, stronger foresight, crisis preparedness and response coupled with a solidarity mechanism, and external relations with key third countries of origin and transit (4.2.2). The latter includes a Commission recommendation to develop complementary legal pathways to protection, such as resettlement and other forms of humanitarian admission such as community sponsorship programmes, but also pathways linked to education and work.

In April 2022, the Commission proposed the Legal Migration Package, which includes proposals recasting the Single Permit Directive and the Long-Term Residents Directive. On 15 November 2023, the Commission proposed the Skills and Talent Mobility package, which includes the creation of an EU Talent Pool, as well as measures simplifying the recognition procedures of qualifications to promote student and labour market mobility.

On 7 September 2022, the European Parliament and five rotating Council presidencies committed to work together to adopt the reform initiated in 2016 of the EU migration and asylum rules before the 2024 EU elections.

C. Recent legislative developments

Since 2008, a number of significant directives on immigration have been adopted and several have already been revised.

1. Regular immigration

Following the difficulties encountered in adopting a general provision covering all labour immigration into the EU, the current approach consists of adopting sectoral legislation, by category of migrants, in order to establish a regular immigration policy at EU level.

Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment created the ‘EU blue card’, a fast-track procedure for issuing a special residence and work permit, on more attractive terms, to enable third-country workers to take up highly qualified employment in the Member States. In June 2016, the Commission proposed a revision of the system, including less stringent admissions criteria, a lower salary threshold/minimum length of the work contract required, better family reunification provisions, and the abolition of parallel national schemes, which Member States opposed. After the New Pact was published, Parliament and the Council again took up work on this revision, and on 15 September 2021 Parliament validated the agreement that had been reached with the Council. The new rules provide for more flexible admission criteria (a valid work contract or a binding six-month job offer is sufficient), while lowering the minimum wage threshold that applicants must earn to be eligible for the Blue Card and making it easier for Blue Card holders to travel between EU countries and reunite with their families. Directive (EU) 2021/1883 was published in the Official Journal on 20 October 2021.

The Single Permit Directive 2011/98/EU sets out a common, simplified procedure for third-country nationals applying for a residence and work permit in a Member State, as well as a common set of rights to be granted to regular immigrants. The implementation report, adopted in March 2019, found that third-country nationals lacking information about their rights hampers the directive’s objective of promoting their integration and non-discrimination. In April 2022, the Commission proposed to recast the directive in order to simplify and clarify its scope, including admission and residence conditions for low- and medium-skilled workers. The co-legislators are currently working on the dossier.

Directive 2014/36/EU, adopted in February 2014, regulates the conditions of entry and residence of third-country nationals for the purpose of employment as seasonal workers. Migrant seasonal workers are allowed to stay legally and temporarily in the EU for a maximum period of between five and nine months (depending on the Member State) to carry out an activity dependent on the passing of seasons, while retaining their principal place of residence in a third country. The directive also clarifies the set of rights to which such migrant workers are entitled. In July 2020, the Commission issued guidelines on seasonal workers in the context of the COVID-19 outbreak, where it also announced the first implementation report for 2021.

Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer was adopted on 15 May 2014. The directive makes it easier for businesses and multinational corporations to temporarily relocate their managers, specialists and trainee employees to their branches or subsidiaries located in the European Union. The first implementation report was due by November 2019.

Directive (EU) 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing was adopted on 11 May 2016, and was to be transposed by 23 May 2018. It replaces the previous instruments covering students and researchers, broadening their scope and simplifying their application.

Lastly, the status of third-country nationals who are long-term residents in the European Union is still regulated by Council Directive 2003/109/EC, as amended in 2011 to extend its scope to refugees and other beneficiaries of international protection. The March 2019 implementation report found that, rather than actively promote the European long-term residence status, Member States issue mainly national long-term resident permits instead; and only a few third-country nationals use their right to move to other Member States. In April 2022, the Commission proposed a recast of the directive, with the objective of creating a true EU long-term resident status, in particular by strengthening the right of long-term residents to move to and work in other Member States. The European Parliament adopted its negotiating mandate in April 2023. The co-legislators are currently working on the dossier.

2. Integration

Council Directive 2003/86/EC sets out provisions on the right to family reunification, which go beyond the right to respect for private and family life of Article 8 of the European Convention on Human Rights. Given that the 2008 implementation report concluded that Directive 2003/86/EC had not been fully and correctly applied in the Member States, the Commission published a communication in April 2014 providing guidance to the Member States on how to apply it. The Commission’s legal migration fitness check also covers the family reunification directive.

The EU’s competence in the field of integration is limited. In July 2011, the Commission adopted the European Agenda for the Integration of Third-Country Nationals. More recently, in November 2020, the Commission put forward an action plan on integration and inclusion for 2021-2027, setting out a policy framework and practical steps to help Member States integrate and include the 34 million non-EU nationals who are legally resident in the EU in education, employment, healthcare and housing. The plan brings together monitoring measures and the use of new digital tools, and efforts to foster migrants’ participation in society, increase opportunities for EU funding and build multi-stakeholder partnerships at various levels of governance. Existing instruments include the European Migration Forum; the European Website on Integration; the European Integration Network; and the newly created Expert Group on the views of migrants in the field of migration, asylum and integration, which met for the first time in November 2020 and has held regular meetings ever since.

Specialised funding instruments to support national integration policies are based on the Asylum, Migration and Integration Fund (AMIF) and the European Social Fund (ESF+) under the new multiannual financial framework (MFF) 2021-2027.

3. Irregular immigration

The EU has adopted some major pieces of legislation to combat irregular immigration:

The so-called ‘Facilitators Package’ comprises Council Directive 2002/90/EC, setting out a common definition of the crime of facilitating unauthorised entry, transit and residence, and Framework Decision 2002/946/JHA, establishing criminal sanctions for this conduct. The package is complemented by Council Directive 2004/81/EC, which provides for the granting of a residence permit to trafficked or smuggled persons who cooperate with the competent authorities (on trafficking, see also the fact sheet on ‘Judicial cooperation in criminal matters’ 4.2.6). In May 2015, the Commission adopted the EU action plan against migrant smuggling (2015-2020), and, in line with the action plan, the Commission conducted a REFIT evaluation on the application of the existing legal framework, which was preceded by a public consultation. The Commission found that, at that point in time, there was not sufficient evidence pointing to actual and repeated prosecution of individuals or organisations for humanitarian assistance, and concluded that the EU legal framework addressing migrant smuggling remains necessary in the current context. Parliament’s resolution of 5 July 2018 called on the Commission to develop guidelines for Member States to prevent humanitarian assistance from being criminalised, and a hearing was held on the topic in September 2018. As part of its New Pact, the Commission issued a communication providing guidance on interpreting the Facilitation Directive, in which it stated that carrying out the legal obligation to rescue people in distress at sea could not be criminalised, but stopped short of calling for additional efforts, leaving search and rescue activities in the hands of NGOs and private vessels. After a public consultation, in September 2021 the Commission adopted a renewed EU action plan against migrant smuggling for 2021-2025. Trafficking is addressed by Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. In December 2022, the Commission proposed a revision of Directive 2011/36/EU. The co-legislators are currently working on the dossier.
The Returns Directive 2008/115/EC sets out common EU standards and procedures for returning irregularly resident third-country nationals. The first report on its implementation was adopted in March 2014. In September 2015, the Commission published the EU action plan on return, which was followed by the adoption, in October 2015, of the Council conclusions on the future of the return policy. In March 2017, the Commission supplemented the action plan with a communication on ‘a more effective return policy in the European Union – a renewed action plan’ and a recommendation on making returns more effective. In September 2017, it published its updated ‘Return Handbook’, providing guidance relating to the performance of duties of national authorities competent for carrying out return-related tasks. Additionally, in 2016, Parliament and the Council adopted Regulation (EU) 2016/1953 on the establishment of a European travel document for the return of illegally staying third-country nationals. The recently revamped and strengthened European Border and Coast Guard Agency (Frontex) increasingly assists Member States in their return-related activities. In September 2018, the Commission proposed to recast the Returns Directive to accelerate procedures, including a new border procedure for asylum applicants, clearer procedures and rules to prevent abuses, efficient voluntary return programmes to be set up in Member States, and clearer rules on detention. A targeted Parliament impact assessment found that the proposal would entail substantial costs for Member States through increased detention. There was no clear evidence that the proposal would lead to more effective returns, but it was likely to result in breaches of the fundamental rights of irregular migrants. Parliament’s resolution of 17 December 2020 on the implementation of the Returns Directive stressed that the effectiveness of the EU’s return policy must not only be measured in terms of return rates but must also take into consideration respect for fundamental rights and procedural guarantees. The rapporteur (Tineke Strik (Greens/EFA) published her draft report on 21 February 2020. The co-legislators are currently working on the dossier. In its New Pact, the Commission moves towards a common EU system for returns, with more operational support for Member States, and Frontex as the operational arm of EU return policy, together with the appointment of a return coordinator supported by a new High Level Network for Return. The first EU return coordinator, Mari Juritsch, was appointed in March 2022. The Commission has published its strategy on voluntary return and reintegration(April 2021), the policy document ‘Towards an operational strategy for more effective returns’ (January 2023) and its recommendation on mutual recognition of returns decisions and expediting returns (March 2023). Return sponsorship is also proposed as a solidarity measure under the proposed Asylum and Migration Management Regulation (4.2.2) through which Member States can support other Member States that are under pressure.
The Employers Sanctions Directive 2009/52/EC specifies sanctions and measures to be applied in Member States against employers of illegally resident third-country nationals. The first report on the implementation of the directive was submitted on 22 May 2014. Following its announcement in the New Pact, the Commission adopted a communication on the application of the directive in September 2021, with the aim of strengthening implementation while protecting the rights of irregular migrants.
Since 2001, Member States have mutually recognised their respective expulsion decisions (Directive 2001/40), whereby a decision by one Member State to expel a non-EU national present in another Member State is respected and complied with.

At the same time, the EU is negotiating and concluding readmission agreements with countries of origin and transit with a view to returning irregular migrants and cooperating in the fight against trafficking in human beings. These agreements provide for Joint Readmissions Committees to monitor their implementation. They are also linked to visa facilitation agreements, which aim to provide the necessary incentive for readmission negotiations in the third country concerned without increasing irregular migration.

The Commission has also concluded informal arrangements on return and readmission, which have drawn heavy criticism from Parliament for falling outside of its scrutiny, and raised questions of accountability and transparency.

The Commission has proposed EU Actions Plans for the Central Mediterranean (November 2022), for the Western Balkan Route (December 2022), for the Western Mediterranean and Atlantic routes (June 2023) and for the Eastern Mediterranean route (October 2023).

Role of the European Parliament

Since the entry into force of the Lisbon Treaty, Parliament has been actively involved, as a full co-legislator, in the adoption of new legislation dealing with both irregular and regular immigration.

Parliament has adopted numerous own-initiative resolutions addressing migration, inter alia its resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration, its resolution of 20 May 2021 on new avenues for legal labour migration and its legislative own-initiative resolution of 25 November 2021with recommendations to the Commission on legal migration policy and law.