Syllabus

EUROPEAN UNION LAW ON FOREIGNERS

Professor : Doctor Charles GosmeAcademic Year 2015/2016 : Fall Semester

COURSE PRESENTATION This course aims to provide legal insight into the world of non-EU immigrants living in an EU MemberState. Non-EU immigrants are institutionally referred to as third country nationals. The EU fight againstillegal immigration has attracted considerable media attention as well as polarised public opinion onissues surrounding the entry, residence, access to citizenship rights, deportation and imprisonment ofthird country nationals. This course examines the law, at EU level, that lies beneath the surface of thesepolarising issues. It examines the complex and multiple statuses of legally and “illegally” present thirdcountry nationals under EU law, deconstructing all conceptual assumptions, and focusing on the real-life consequences that may flow from these statuses.

CONTINUOUS ASSESSMENTThe final grade will be based on:- a written and oral presentation within the framework of a debate- a written and oral presentation within the framework of a mock institutional hearing- class participation

READINGStudents will be required to read a variety of sources. The basic textbooks are:-D. Chalmers, G. Davies and G. Monti, European Union Law: Cases and Materials (Cambridge University Press, 24 June 2010), chapter 11 (pp.439-449, 464-479), chapter 12 (pp.485-532). -European Union Agency for Fundamental Rights, Handbook on European Law relating to asylum, borders and immigration (Luxembourg, Publications Office of the European Union, June 2013) http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration

You can find the first textbook on the Sciences Po Library website, Electronic Resources, EbookLibrary: http://www.sciences-po.eblib.com/

Most of the academic articles and books in the reading lists below can be found in the EbookLibrary or Sciences Po Library's Online Journals Catalogue: http://gl5sm8uv5q.search.serialssolutions.com/?paramdict=en-US

Compulsory reading will be set one week before each class.

(There are very useful summaries of EU legislation and policy documents relating to the free movement of persons, asylum and immigration on the europa website: http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/ )

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Syllabus

COURSE & SYLLABUS OUTLINE

Class 1/ Introduction to the course

Class 2/ Historical and institutional introduction to EU law on foreigners

Class 3/ Membership of third country nationals in the European Union : denizens and aliens in EU immigration and asylum law

Class 4/ Membership of third country nationals in the European Union : third country national family members of EU citizens who fall under the scope of EU free movement law

Class 5/ The management of irregular migration : a multi-layered border control system

Class 6/ The management of irregular migration : the criminalisation of irregular migration

Class 7/ Seeking international protection in the European Union : the right to seek asylum and the problem of jurisdiction

Class 8/ Seeking international protection in the European Union : asylum procedures andasylum reception conditions

Class 9/ Seeking international protection in the European Union : refugee status and subsidiary protection status

Class 10/ Regularisation of irregular migrants in the European Union

Class 11 & 12/ Mock Institutional Hearing

Instructions for debate presentations

Instructions for the mock institutional hearing exercise

A couple of useful websites

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Syllabus

Class 1/ Introduction to the course

Class 2/ Historical and institutional introduction to EU law on foreigners

Summary of class : I shall provide an introduction to the history of EU law on third country nationals,as well as to the key institutions behind this law. Third country nationals are defined by reference to EUcitizens. EU citizens are made up of all national citizens of EU Member States. Third country nationalsare national citizens of non-EU States. This course focuses on foreigners in EU Member States who arethird country nationals.

The EU is a polity that is made up of 28 Member States. It possesses shared competence with its MemberStates in two broad areas that touch upon the entry, residence and expulsion of third country nationals.These are immigration and asylum law, on the one hand, and free movement law, on the other. We shallexamine the history behind the development of these two areas of law as they relate to the entry,residence and expulsion of non-EU nationals.

We shall examine this history through several analytical and thematic lenses. In examining this history,we shall also look at the variety of institutional and non-institutional actors involved in thisdevelopment. The key institutional/judicial actors are the European Commission, the Council of the EU,the European Parliament and the Court of Justice of the EU. Key non-institutional actors include NGOs,business groups, trade unions, EU citizens in the form of public opinion and third country nationalsthemselves.

We shall briefly go through some key features of the European Union's legal system, in so far as they arenecessary to understand this historical and institutional introduction to EU law on foreigners.

Textbook :-D. Chalmers, G. Davies and G. Monti, European Union Law: Cases and Materials (Cambridge University Press, 24 June 2010), chapter 11 (pp.439- 449, 464-466, 469-473) and chapter 12 (pp.487-508).

Primary Law:- Treaty on the Functioning of the European Union (Consolidated Version 2012), arts 20 and 77-80.

Policy Documents:-Council Document 9531/14 (Future development of the area of Freedom, Security and Justice). -European Council, “Tampere European Council: Presidency Conclusions” (1999), part entitled “A Common EU Asylum and Migration Policy” http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/00200-r1.en9.htm .-European Council, “The Hague Programme: strengthening freedom, security and justice in the European Union” (2004) pp.7-18 http://ec.europa.eu/home-affairs/doc_centre/docs/hague_programme_en.pdf .-European Council, “European Pact on Immigration and Asylum” (2008) http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/jl0038_en.htm .-European Council, “The Stockholm Programme -an open and secure Europe serving and protecting citizens” (2009) pp.28-33 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:115:0001:0038:EN:PDF .

Passage of an article on the stereotyped ideological positions of EU institutions:-D. Acosta, “The Good, the Bad, and the Ugly in EU Migration Law: is the European Parliament Becoming Bad and Ugly?” 11 (2009) European Journal of Migration and Law, 19-39, pp.19-22.

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Syllabus

Article on migration policy and public perception:-R. Beutin, M. Canoy, A. Horvath, A. Hubert, F. Lerais and M. Sochacki, “Reassessing the Link between Public Perception and Migration Policy” 9 (2007) European Journal of Migration and Law, 389-418.

Infographic on Immigration in the EU : http://ec.europa.eu/dgs/home-affairs/e-library/docs/infographics/immigration/migration-in-eu-infographic_en.pdf .

Surveys on how citizens from certain EU Member States perceive immigrants:-Transatlantic Trends: Immigration: http://trends.gmfus.org/archives/immigration-archive/ .Information on EU institutions : http://europa.eu/about-eu/institutions-bodies/ (especially European Parliament, Council of the EU, European Commission and Court of Justice under “institutions and bodies”).

Infographic on the ordinary legislative procedure in the EU: http://www.europarl.europa.eu/external/html/legislativeprocedure/default_en.htm .

Information on the legislative recasting technique: http://ec.europa.eu/dgs/legal_service/recasting_en.htm .

Information on the sources of European Union law: http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/l14534_en.htm .

Information on the division of competences within the European Union: http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0020_en.htm .

Information on the direct effect of European Union law: http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/l14547_en.htm .

Information on the supremacy of European Union law over national law: http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/l14548_en.htm .

Class 3/ Membership of third country nationals in the European Union : denizens and aliens in EU immigration and asylum law

Summary of class : We shall examine the hierarchical membership system that currently exists in theEU. Third country nationals are excluded from numerous rights as a result of their exclusion from EUcitizenship. But the rights of third country nationals vary enormously in accordance with their formalimmigration status. Distinctions exist between legally/illegally resident third country nationals,labour/family/humanitarian migration, low-skilled and highly-skilled workers …. We shall examine thenumerous membership categories that third country nationals can fall under, and the relationshipbetween these categorisations and the human rights of migrants. We shall then focus on legally residentlong-term residents, who have been described by some authors as denizens because they lie somewhereon a spectrum between citizens and aliens by virtue of their enhanced membership status. The statusand rights of long-term residents are governed under the EU Long Term Resident Directive. Thirdcountry nationals are entitled to be granted long term resident status after a period of five years of legaland continuous residence. They must however satisfy certain socio-economic criteria, and the hostState may impose cultural integration requirements (e.g. tests on language and an understanding of thehost State's values). We shall examine the issue of integration, the inclusionary and exclusionarydynamics of citizenship, the relationship between membership and equal personhood, and the ideologybehind national territorial sovereignty.

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Debate topic : Should it be permissible for EU Member States to impose cultural integration requirements on thirdcountry nationals for the acquisition of long-term resident status?

Textbook:-D. Chalmers, G. Davies and G. Monti, European Union Law: Cases and Materials (Cambridge University Press, 24 June 2010), chapter 12 (pp. 494-495, 509-532 but especially pp. 511-518).-European Union Agency for Fundamental Rights, Handbook on European Law relating to asylum, borders and immigration (Luxembourg, Publications Office of the European Union, June 2013), pp.51-52 http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration .

Legal sources: -Directive 2013/33/EC from 21 July 2015 (Recast Asylum Reception Conditions Directive).-Directive 2003/109/EC (Long Term Resident Directive): http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:016:0044:0053:EN:PDF .

> 2011 Report from the European Commission on the application in Member States of the Long Term Resident Directive: http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/legal-migration/pdf/long-term-residents/1_en_act_part1_v62.pdf > Recent case on the Long Term Resident Directive: Court of Justice of the EU, Case C-579/13 P, S v Commissie Sociale Zekerheid Breda (2011) http://curia.europa.eu/juris/document/document.jsf?text=&docid=164725&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=86081 .

-Directive 2004/38/EC (EU Citizenship Directive).-Directive 2004/81/EC (Directive on residence permits for cooperative victims of human trafficking or smuggling).-Directive 2011/95/EU from 21 December 2013 (Recast Qualification Directive).-Directive 2008/115/EC (Return Directive).-Directive 2009/50/EC (Highly Skilled Workers Directive).-Directive 2011/98/EU (Single Permit Directive).-EU Charter of Fundamental Rights (2012).

Policy Document:Council of the EU, “The Stockholm Programme – An open and secure Europe serving and protecting citizens” (Brussels, 3 March 2010), pp. 97-99 and 105-108 http://register.consilium.europa.eu/pdf/en/10/st05/st05731.en10.pdf .Council document 12217/02 relating to the Long Term Resident Directive: http://register.consilium.europa.eu/pdf/en/02/st12/st12217.en02.pdf .

Theoretical article on the social constructs behind our understanding of territorial sovereignty and migrants:-D. Kostakopoulou and R. Thomas, “Unweaving the Threads: Territoriality, National Ownership of Land and Asylum Policy” 6 (2004) European Journal of Migration and Law, pp. 5-26. Articles and reports on the issue of integration (and mostly long term residents):- M. Antonsich, “Exploring the Demands of Assimilation among White Ethnic Majorities in Western Europe” 38 (January 2012) 1 Journal of Ethnic and Migration Studies, pp. 59-76.-A. Bocker and T. Strik, “Language and Knowledge Tests for Permanent Residence Rights: Help or Hindrance for Integration” 13 (2011) European Journal of Migration and Law, pp. 157-184.-S. Carrera (ed), “The Nexus between Immigration, Integration and Citizenship in the EU” (Challenge, Liberty & Security, Collective Conference, April 2006).-T. Huddleston and J.D. Tjaden, “How immigrants perceive integration tests” (May 2012), pp. 34-35 and 61-69: http://www.immigrantsurvey.org/downloads/ICS_ENG_Full.pdf .-W. Kymlicka, “Multiculturalism: Success, Failure, and the Future”(February 2012) Migration Policy Institute.-T. Kostakopoulou, “ “Integrating” non-EU migrants in the European Union: ambivalent legacies and mutating paradigms” 8 (Spring 2002) Columbia Journal of European Law 181. - S. Peers, “Implementing equality? The Directive on long term third country nationals” 29 (2004) 4 European Law Review 437-460.

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Syllabus

- A. Schrauwen, “Granting the Right to Vote for the European Parliament to Resident Third-Country Nationals: Civic Citizenship Revisited” 19 (2013) 2 European Law Journal 201-218.-N. Walker, “Denizenship and the Deterritorialization in the EU” 08 (2008) European University Institute LAW Working Papers, http://cadmus.eui.eu/handle/1814/8082 .

Articles on highly skilled and low skilled migrant workers: -Yasin Kerem Gumus, “EU Blue Card Scheme: The Right Step in the Right Direction?” 12 (2010) European Journal of Migration and Law 435–453, pp.435-437. - Y. Pascouau and S. McLoughlin "EU Single Permit Directive: a small step forward in EU immigration policy”, European PolicyCentre Policy Brief, 24 January 2012 http://www.epc.eu/documents/uploads/pub_1398_eu_single_permit_directive.pdf .

Database on the integration policies:-Migrant Integration Policy Index, Long Term Residence (Benchmarking tools for research on integration policies in the EU) http://www.mipex.eu .

Institutional survey on migrant integration:-Qualitative Eurobarometer, “Migrant Integration”, Aggregate Report, May 2011, pp.76-77 entitled “Non-EU Migrants” http://ec.europa.eu/public_opinion/archives/quali/ql_5969_migrant_en.pdf .

Institutional report on the rights of irregular migrants: European Union Agency for Fundamental Rights, “Fundamental rights of migrants in an irregular situation in the European Union”, Comparative Report, especially pp.19-26: http://fra.europa.eu/en/publication/2012/fundamental-rights-migrants-irregular-situation-european-union.

Articles by Linda Bosniak on citizenship and the intersection between membership and human rights: -L. Bosniak, “Membership, equality, and the difference that alienage makes” 69 (December 1994) New York University Law Review. 1047. -L. Bosniak, “Citizenship Denationalized” 7 (2000) Indiana Journal of Global Legal Studies. 447.L. Bosniak, “Varieties of Citizenship” 75 (April 2007) Fordham Law Review. 2449 (3 pages).-L. Bosniak, “Varieties of Citizenship” 75 (April 2007) Fordham Law Review. 2449 (3 pages).

EU website on integration: http://ec.europa.eu/ewsi/en/

Key EU Migratory Statistics released in 2011 by the European Migration Network: http://emn.sk/phocadownload/emn_reports/key_eu_migratory_statistics_march_2012.pdf .

Class 4/ Membership of third country nationals in the European Union : third country national family members of EU citizens who fall under the scope of EU free movement law

Summary of class : The entry, residence and return of most third country nationals is governed underEU immigration and asylum law. However, the movement and rights of a small group of third countrynationals are governed under another area of EU law – EU free movement law. Core third countrynational family members of EU citizens, who fall under the scope of EU free movement law, benefit froman automatic right of entry and residence, irrespective of prior illegality of entry and/or stay. We shallexamine the seminal METOCK case which firmly established this derivative right, and which highlighteda clash between EU free movement law and national immigration laws. We shall also examine thedifficulties experienced by persons concerned who seek to exercise this right in EU Member States, aswell as other complex legal, political and socio-economic issues surrounding this very specific group ofthird country nationals and their position vis à vis other third country nationals.

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Syllabus

This will be our first examination of a ruling delivered by the Court of Justice of the EU (under thepreliminary reference procedure).

Debate topic : Should third country national family members of EU citizens, who fall under the scope of EU free movement law, have an automatic right of residence, irrespective of the prior illegality of stay?

Texbook:-D. Chalmers, G. Davies and G. Monti, European Union Law: Cases and Materials (Cambridge University Press, 24 June 2010) : chapter 11 (pp.447-449 and 464-479, especially pp. 464-466 and 470-473).-European Union Agency for Fundamental Rights, Handbook on European Law relating to asylum, borders and immigration (Luxembourg, Publications Office of the European Union, June 2013), p. 55 http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration .

Legislation:Directive 2004/38/EC (EU Citizenship Directive): http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF .

Case Law:-European Court of Justice, Case C-127/08 Metock (2008) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008CJ0127:EN:HTML

-AG Opinion: http://eur-lex.europa.eu/Notice.do?val=495256:cs&lang=en&list=479036:cs,475277:cs,495256:cs,470186:cs,&pos=3&page=1&nbl=4&pgs=10&hwords=metock~&checktexte=checkbox&visu=#texte .-Court of Justice of the EU, Case C-34/09 Zambrano (2011).-Court of Justice of the EU, Case C-434/09 McCarthy (2011). -Court of Justice of the EU, Case C-40/11 Iida (2012).-Court of Justice of the EU, Case C-456/12 O (2014).

Articles:-C. Costello, “Metock: Free Movement and “Normal Family Life” in the Union” 46 (2009) Common Market Law Review. 587-622. -B. De Hart, “Introduction: The Marriage of Convenience in European Immigration Law” 8 (2006) European Journal of Migration and Law 251-262. -K. Groenendijk, “Family Reunification as a Right under Community Law” 8 (2006) European Journal of Migration and Law 215-230, pp.215-217.-E. Guild, “Citizens Without a Constitution, Borders Without a State: EU Free Movement of Persons” in A. Baldaccini, E. Guild, H. Toner, Whose Freedom, Security and Justice?: EU immigration and asylum law and policy (Oxford, Hart, 2007) 25, pp.25-33 - P. Jan Slot and J. Bulterman, “Harmonization of Legislation on Migrating EU Citizens and Third Country Nationals: Twoards aUniform Evaluation Framework?” 29 (April 2006) Fordham International Law Journal 747.- A. Lansbergen, “Metock, implementation of the Citizens' Rights Directive and lessons for EU citizenship” 31 (2009) 3 Journal ofSocial Welfare and Family Law 285-297. - S. Peers, “Free movement, immigration control and constitutional conflict” 5 (2009) 2 European Constitutional Law Review, 173-196.-J. Shaw and N Miller, “When Legal Worlds Collide: an Exploration of what Happens when EU Free Movement Law Meets UK Immigration Law” 38 (2013) 2 European Law Review 137–166.- A. Wiesbrock, “Free movement of third-country nationals in the European Union: the illusion of inclusion” 35 (2010) 4 European Law Review 455.

Institutional follow-up to the Metock case:-Council Document 13177//1/08 REV 1 Written question on the Metock casehttp://register.consilium.europa.eu/pdf/en/08/st13/st13177-re01.en08.pdf -Council of the EU, “Free movement of persons: abuses and substantive problems” (Brussels, 28 November 2008) Council Document 16483/08 http://register.consilium.europa.eu/pdf/en/08/st16/st16483.en08.pdf

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Syllabus

-European Parliament Committee on Petitions, “WORKING DOCUMENT on the Communication from the Commission to the European Parliament and the Council on "An area of freedom, security and justice serving the citizen" also known as "The Stockholm Programme" COM (2009) 262 final”, 23 September 2009, PETI_DT(2009)428214 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-428.214%2b02%2bDOC%2bPDF%2bV0%2f%2fEN

Information on the preliminary reference procedure which is the principal form of access to the Court of Justice of the EU for migrants and defenders of migrants: http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/l14552_en.htm

Class 5/ The management of irregular migration : a multi-layered border control system

Summary of class : We shall examine the EU's role in managing extra-territorial migration control,territorial border control, and in-territory control. Focus shall be on in-territory control, namely on theapprehension and deportation of illegally staying third country nationals.

The EU does not have closed borders but has a presumptively closed border system. This means that as arule (with exceptions), third country nationals cannot enter the European Union unless authorised. Andif authorised, they may only legally enter through authorised border-crossing points. Control of legalentry and residence takes place within, at and beyond the Union's territorial borders. Large numbers ofthird country nationals attempt to enter the European Union illegally, either to seek asylum or forreasons unrelated to asylum. They do so either with their own financial resources and/or networks orthrough smuggling/trafficking networks.

The European Union's immigration control system is multi-layered. It does not just consist of internalcontrol and border control of legal entry and residence. There are pre-border controls that take placelong before a third country national reaches the territorial border of the European Union. Such pre-border controls involve a variety of actors (private carrier companies, consular officers, liaison officers,third countries ...) at a variety of locations and stages. We shall dig into the complex specifics of thesevarious forms of pre-border controls as well as the actors involved. Particular focus shall be paid toissues of legitimacy, responsibility and accountability, namely in light of EU Member States' humanrights obligations.

At the territorial border of the European Union, border checks take place at authorised border- crossingpoints. And border surveillance takes place between these points, where numerous clandestine entriestake place every year. We shall focus on the European Union's Border Agency's (FRONTEX) emergenceand development in activities of border control and surveillance. Border operations coordinated byFRONTEX have come under increasing scrutiny. Despite the arsenal of measures taken by the European Union to prevent irregular entry, there aremany irregular immigrants who make it past the border and into the territory of the European Union.The Union's irregular migrant population is partly made up of individuals who successfully enteredillegally. However, the bulk is made up of individuals who entered legally, and subsequently fell intoillegality of status. This namely includes third country nationals who remain following expiry of theirvisas and non-EU nationals whose residence permits are withdrawn or not renewed.

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Syllabus

The EU and its Member States have adopted a variety of approaches towards managing irregularmigrant populations within the territory of the EU. The two principal tools have been regularisationand deportation, public opinion and political parties being polarised around these options. Emphasishas been placed on deportation in most EU Member States and at EU level. A veritable EU fight againstillegal immigration has developed over the years, which consists in cutting all life-lines that allowirregular migrants to remain. This notably involves the development of an effective return policy, thecriminalization of illegal stay and offences related to illegal stay, the prohibition of employing andassisting illegal residents, as well as the deprivation of irregular residents from numerous socio-economic rights and benefits.

We shall focus most of the class on EU law and policy relating to the return, removal, and pre-removaldetention of irregular migrants. This requires us to focus on the Return Directive, and the case law ofthe Court of Justice of the EU relating to this Directive. The European Parliament and Council of the EUadopted the Return Directive in 2008, a piece of EU legislation which governs the return and removal ofirregular migrants who are apprehended within the territory of the EU. This controversial piece oflegislation was branded by many NGOs across Europe as the « Directive of Shame ». The disapproval ofNGOs was especially due to the fact that the Directive made it permissible for EU Member States toadministratively detain illegally staying third country nationals for up to eighteen months pendingremoval. Return, removal, and administrative detention (pending removal) are all administrativeimmigration sanctions, as opposed to criminal sanctions which we shall look at in the next class.

Our examination of the multi-layered border control system shall include an analysis of the humanrights impact of this system, as well as its legitimacy.

Debate topic : Were the Council of the EU and the European Parliament right to set the absolute maximum periodof administrative detention for illegally staying third country nationals at eighteen months in the ReturnDirective?

Watching :-Cecilia Malmstrom talking about irregular migration: https://www.youtube.com/watch?v=-ErSFUK78nE&feature=player_embedded#at=12 .-”Wanted but not welcome” by Naga: http://vimeo.com/21968497 .

Textbook:-D. Chalmers, G. Davies and G. Monti, European Union Law: Cases and Materials (Cambridge University Press, 24 June 2010), pp.496-503, 509-511.-European Union Agency for Fundamental Rights, Handbook on European Law relating to asylum, borders and immigration (Luxembourg, Publications Office of the European Union, June 2013), pp. 25-40 and 141-178 http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration .

Legislation:-Schengen Convention Implementing the Schengen Agreement (1990).-Regulation 2007/2004/EC (Frontex Regulation – it has since been amended).-Regulation 562/2006/EC (Schengen Borders Code).- Directive 2008/115/EC (Return Directive): http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:pdf .-Regulation 810/2009/EC (Visa Code).

Articles and sources on the Return Directive:-D. Acosta, “The Good, the Bad, and the Ugly in EU Migration Law: is the European Parliament Becoming Bad and Ugly?” 11 (2009) European Journal of Migration and Law 19-39.

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Syllabus

-A. Baldaccini, “The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive” 11 (2009) European Journal of Migration and Law 1–17.-M-L. Basilien-Gainche, “Immigration Detention under the Return Directive: The CJEU Shadowed Lights” (2015) European Journal of Migration and Law 104.-Debates in the European Parliament on the Return Directive Proposal: http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20080617&secondRef=ITEM-004&language=EN&ring=A6-2007-0339 .-Euractiv, “Fighting illegal immigration: the Return Directive”, Issues & Positions, Published 26 August 2008, updated 28 May2012, http://www.euractiv.com/socialeurope/fighting-illegal-immigration-ret-linksdossier-188473 .

Case law relating to the Return Directive: - European Court of Justice, Case C-357/09 Kadzoev (2009): http://curia.europa.eu/juris/liste.jsf?language=en&num=C-357/09 .-Court of Justice of the EU, Case C-61/11 El Dridi (2011).-Court of Justice of the EU, Case C-329/11 Achughbabian (2011).-Court of Justice of the EU, Case C-383/13 M.G., N.R. (2013).-Court of Justice of the EU, Case C-146/14 Mahdi (2014).-Court of Justice of the EU, Case C-562/13 Moussa Abdida (2014).

Institutional and NGO sources on the administrative detention of irregular migrants: For those who can read in French - CIMADE et al (13 December 2011) Centres et locaux de retention administrative: Rapport 2010, especially p.60 http://www.lacimade.org/publications/57 .-European Parliament, “Prolongation of Detention by Member States of Illegally Staying Third-Country Nationals Beyond the 18-month Time Limit in Violation of the Return Directive (Debate)” (2014/2701(RSP), Debates, Thursday, 17 April 2014, Strasbourg) .-European Union Agency for Fundamental Rights, Detention of third-country nationals in return procedures (September 2010),pages 42-54 and 72-81 http://fra.europa.eu/sites/default/files/fra_uploads/1054-detention-third-country-nationals-report-092010_en.pdf .-Global Detention Project website: http://www.globaldetentionproject.org/ . -JRS Europe, “Alternatives to Detention” (October 2008) Working Paper http://www.detention-in-europe.org/images/stories/jrs%20europe%20paper_alternatives%20to%20detention.pdf .-JRS Europe's Detention in Europe website: http://detention-in-europe.org/index.php?option=com_content&view=article&id=170&Itemid=206 .

Article which provides a fascinating historical and conceptual take on deportation: W. Walters, 'Deportation, Expulsion,and the International Police of Aliens' 6 (2002) 3 Citizenship Studies 265.

Article on the stigma of deportation: L. Schuster and N. Majidi, “Deportation Stigma and Re-migration” 41 (2015) 4 Journal of Ethnic and Migration Studies 635-652.

Articles on border control:- V. Georgiev, “Towards a common European border security policy” 19 (2010) 2 European Security 255-274. - B. Kasparek, “Borders and Populations in Flux: Frontex's Place in the European Union's Migration Management” in M. Geigerand A. Pecoud (eds), The Politics of International Migration Management (Palgrave Macmillan, 13 October 2010), chapter 6. - A. Meloni, ”EU Visa and Border Control Policies: What Roles for Security and Reciprocity” in D. Bigo, S. Carrera and E. Guild (eds), Foreigners, Refugees or Minorities?: Rethinking People in the Context of Border Controls and Visas (Ashgate Publishing Ltd, 2013), chapter 9. - T. Spijkerboer, “The Human Costs of Border Control” 9 (2007) European Journal of Migration and Law 127-139.

Articles relating to the legitimacy of border control:-K. R. Johnson, “Open Borders?” 51 (October 2003) UCLA Law Review 193, pp.205-213.-D. G. Papademetriou, “Restoring Trust in the Management of Migration and Borders” (2011) Migration Policy Institute http://www.migrationpolicy.org/transatlantic/TCMStatement-Borders.pdf .

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NGO report and articles on extra-territorial border control:-L. den Hertog, “Fundamental Rights and the Extra-territorialization of EU Border Policy: A Contradiction in Terms?” in D. Bigo, S. Carrera and E. Guild (eds), Foreigners, Refugees or Minorities?: Rethinking People in the Context of Border Controls andVisas (Ashgate Publishing Ltd, 2013), chapter 12.-Migreurop, 'At the Margins of Europe: The Externalisation of Migration Controls' (2010-2011 Report), especially pages 102-112 http://www.migreurop.org/article2069.html .-Claire Rodier, 'Study: 'Analysis of the external dimension of the EU's asylum and immigration policies' – summary and recommendations for the European Parliament' (European Parliament, June 2006) http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dt/619/619330/619330en.pdf .

Articles on the effectiveness of deterrent immigration control policies: -R. Black, M. Collyer, R. Skeldon, and C. Waddington, “Routes to Illegal Residence : A Case Study of Immigration Detainees in the United Kingdom” 37 (2006) Geoforum 552-564.-V. Robinson and J. Segrott, “Understanding the Decision-Making of Asylum Seekers” (Home Office Research Study 243, Home Office Research, Development and Statistics Directorate, July 2002).

Figures on irregular migrants in the EU (Clandestino Project): http://clandestino.eliamep.gr/category/irregular-migration-in-the-eu/comparative-analysis/ .

Recent data on irregular migration: Frontex, FRAN Quarterly: Quarter 1 January-March 2014 (Frontex, 18 August 2014).

Class 6/ The management of irregular migration : the criminalisation of irregular migration

Summary of class : The fight against irregular migration has witnessed the increasing criminalisationof irregular migration. When we talk about immigration law at EU and national levels, we are talking aboutadministrative law that governs the relationship between Member States's administrative immigrationauthorities, on the one hand, and immigrants, on the other. When we talk about the criminalisation ofirregular migration stricto sensu, we are talking about the use of criminal law in order to sanctionviolations of immigration law. These criminal sanctions might come in the form of a fine or a prisonsentence.

Irregular migrants as well as facilitators of irregular migration are criminalised in a majority of EUMember States. The EU's role in this criminalisation is not simple to grasp. EU law has contributed tothe increasing criminalisation of facilitators of irregular migration (employers, private transportcompanies, smugglers, human traffickers, helping families and friends …) but to the partialdecriminalisation of irregular migrants themselves.

Before delving into the criminalisation of facilitators of irregular migration, I'll say a few words hereabout the EU's role with regard to the (de)criminalisation of irregular migrants themselves. Illegal entryand stay are not criminal offences under EU law, but they are criminal offences in a majority of EUMember States' national legal systems. In short, illegal stay is not a criminal offence under EU law, but itis under the national laws of a majority of EU Member States, with the possibility of imprisonment.Until quite recently, there was a trend towards the increasing criminalisation of illegal stay across theEU via sanctions of imprisonment. However, in 2011, the Court of Justice of the EU delivered two keyrulings in which it interpreted the EU Return Directive as placing limits on Member States' power toimprison irregular migrants for the criminal offence of illegal stay. We shall examine these complexcases that touch upon the relationship between national criminal sanctions of imprisonment and the

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European sanction of return. We shall further look at subsequent cases on the relationship betweennational criminal law and European immigration law.

By contrast, EU law has contributed to the increasing criminalisation of facilitators of irregularmigration. An infamous group of criminalised facilitators are traffickers of human beings. Proliferousnetworks of human trafficking and smuggling are partly the by-product of tightly guarded andrestrictive immigration systems. What we have here is a modern form of slavery with a strongtransnational element and one which therefore mainly concerns migrants. The number of victims oftrafficking in the EU is not known, but estimates suggest there are a large number. The European Unionhas stepped up national and international efforts to crack down on these networks, focusing on acriminal law approach that targets traffickers, with smaller (but nonetheless existent) efforts dedicatedto a victim-protection approach. Of particular interest for us is the EU Directive that sets standards forMember States to offer temporary residence permits to victims of trafficking who cooperate ininvestigations or judicial proceedings against their traffickers. ____________________________________

Debate topic : Should all victims of human trafficking be unconditionally entitled to a residence permit under EU law upon identification by Member State authorities?

Textbook:-European Union Agency for Fundamental Rights, Handbook on European Law relating to asylum, borders and immigration (Luxembourg, Publications Office of the European Union, June 2013), pp. 46-47, 152-154 and 221-223 http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration .

Legislation:-Directive 2004/81/EC (Directive on residence permits for cooperative victims of human trafficking or smuggling): http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0081:EN:HTML . -See the European Commission's Directive proposal on residence permits for cooperative victims of human trafficking or smuggling: http://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/com/2002/0071/COM_COM(2002)0071_EN.pdf .-Directive 2008/115/EC (Return Directive).-Directive 2009/52/EC (Employer Sanctions Directive).-Directive 2011/36/EU (Directive on preventing and combatting trafficking).

Case Law on the relationship between European immigration law and national criminal law:-Court of Justice of the EU, Case C-61/11 El Dridi (28 April 2011).-Court of Justice of the EU, Case C-329/11 Achughbabian (6 December 2011).-Court of Justice of the EU, Case C-430/11 Sagor (2012).-Court of Justice of the EU, Case-522/11 Mbaye (2013).

Book chapter on the criminalisation of migration in Europe:-V. Mitsilegas, The Changing Landscape of the Criminalisation of Migration in Europe: The Protective Function of European Union Law, in M.J. Guia, M. van der Woude and J. van der Leun (eds), Social Control and Justice: Crimmigration in the Age of Fear (The Netherlands, Eleven International Publishing, 2013).

Article on the convergence between immigration law and criminal law: J. Stumpf, “The Crimmigration Crisis: Immigrants, Crime and Sovereign Power” 56 (December 2006) American University Law Review 367-419.

Articles and book chapters on EU law relating to victims of human trafficking: - S. Peers, “Legislative Update EU Immigration and Asylum Law 2010: Extension of Long-term Residence Rights and Amending the Law on Trafficking in Human Beings” 13 (2001) European Journal of Migration and Law 201-218.

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- C. Rijken and E. de Volder, “The European Union's Struggle to Realize a Human Rights-based Approach to Trafficking in Human Beings” 25 (2009) Connecticut Journal of International Law Fall 49, pp.67-76 (especially pp.73-75).- M. Ventrella, The Control of People Smuggling and Trafficking in the EU: Experiences from the UK and Italy (Ashgate Publishing, 2010), chapters 3 and 4 (especially chapter 4).

Institutional Documents relating to victims of human trafficking and smuggling:-European Migration Network, “Ad-hoc Query on Trafficking in Human Beings” (Compilation produced on 6 February 2013).-Europol, “Facilitated Illegal Immigration into the European Union” (September 2009).-Europol, “Trafficking in Human Beings in the European Union: a Europol Perspective” (December 2009).-Group of Experts on Action against Trafficking in Human Beings, “Report Concerning the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by France : First Evaluation Round” (Strasbourg, 28 January 2013).- UN, “Joint UN Commentary on the EU Directive – A Human Rights-Based Approach - Prevent Combat Protect: Human Trafficking” (OHCHR, UNHCR, UNICEF, UNODC, UN Women and ILO, 2011), pp. 16-17 and 46-47.

-Facts and figures on victims of trafficking on the European Commission's website: http://ec.europa.eu/dgs/home-affairs/e-library/docs/infographics/thb/thb_en.pdf .-Testimonies of victims of trafficking on European Commission's website: http://ec.europa.eu/avservices/focus/index.cfm?&focusid=264&page=focus&sitelang=en .

-Article on EU legislation relating to the criminalisation of employers of irregular migrants: - S. Peers, “Legislative Update: EU Immigration and Asylum Law Attracting and Deterring Labour Migration: The Blue Card and Employer Sanctions Directives” 11 (2009) European Journal of Migration and Law, 387-426, pp.411-426.

Class 7/ Seeking international protection in the European Union : the right to seekasylum and the problem of jurisdiction

Summary of class : Asylum seekers have the right to apply for international protection under theCommon European Asylum System. International protection status englobes two sub-statuses : refugeestatus and subsidiary protection status. These statuses cover many third country nationals who areprotected from refoulement under several international human rights instruments, namely the UNRefugee Convention and the European Convention on Human Rights. The EU Qualification Directive setsout standards with regard to the criteria that asylum seekers must satisfy in order to qualify for refugeestatus and/or subsidiary protection status, as well as the formal status and rights of persons grantedone of these two statuses. But the grant or refusal of an international protection status is oftenpreceded by a long and difficult journey for asylum seekers.

There is the issue of access to the asylum procedure within the EU (class 7), the procedure itself andhow asylum seekers are treated during the procedure (class 8), and the international protection statusesthat asylum seekers hope to be granted (class 9). Our focus in this class is on the asylum seeker'sjourney towards the EU in the hope of lodging an application for asylum within an EU Member State.

The Union has set up a multi-layered system of prevention and repression of illegal entry and residencewhich makes it very hard for asylum seekers to enter easily and legally in order to find protection in anEU Member State. Through visas imposed on nationals of most refugee- producing countries, sanctionsimposed on transport carriers, cooperation of third countries in preventing illegal entry into the EU,and border patrol operations coordinated by the EU's border agency FRONTEX, a large number of thosewho seek asylum have no choice but to enter illegally or to enter legally as short-stay visitors with nointention of leaving.

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Asylum seekers are protected from refoulement from the moment they fall under the jurisdiction of EUMember States. They clearly fall under Member States' jurisdiction when they are at – or within – theterritorial border. Extra-territorial jurisdiction is more difficult to establish, but it can be if asylumseekers are deemed to fall under the effective control of EU Member States. This can for example be thecase when boats transporting asylum seekers are intercepted on the high seas or in third countrywaters by EU Member States authorities.

We shall examine the relationship between the multi-layered border control system, on the one hand,and the right to asylum, on the other. We shall also examine the compatibility of the former with thelatter, as well as the changes which should or shouldn't be made.

Debate topic : Should all existing extra-territorial migration control measures be maintained, adapted orabolished in order to facilitate the access of asylum seekers to the territory of the EU ?

Textbook:-European Union Agency for Fundamental Rights, Handbook on European Law relating to asylum, borders and immigration (Luxembourg, Publications Office of the European Union, June 2013), 37-40 http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration .

Watching :-European Commission video on asylum https://www.youtube.com/watch?v=aSuqV7q_CNY&feature=player_embedded

Legal sources:-Convention Implementing the Schengen Agreement (1990).-Regulation 2007/2004/EC (Frontex Regulation – it has since been amended).-Regulation 562/2006/EC (Schengen Borders Code).-Regulation 810/2009/EC (Visa Code).

Article on the conceptualisation of forced migration:-D. Turton, “Conceptualising Forced Migration”, lecture given at the RSC’s International Summer School in Forced Migration in July 2003, http://www.rsc.ox.ac.uk/publications/working-papers-folder_contents/RSCworkingpaper12.pdf

Articles and reports on the relationship between extra-territorial migration control and border control, on the one hand, and human rights and the prohibition of refoulement, on the other:-N. El-Enany, “Who is the new European refugee?” 33 (2008) 3 European Law Review 313-335. -European Council on Refugees and Exiles, “Defending Refugees' Access to Protection in Europe” (December 2007) http://www.ecre.org/topics/areas-of-work/access-to-europe/95-defending-refugees-access-to-protection-in-europe.html .-L. den Hertog, “Fundamental Rights and the Extra-territorialization of EU Border Policy: A Contradiction in Terms?” in D. Bigo, S. Carrera and E. Guild (eds), Foreigners, Refugees or Minorities?: Rethinking People in the Context of Border Controls andVisas (Ashgate Publishing Ltd, 2013), chapter 12. -S. Kessler (Ed.), ”Safe and Secure: How do Refugees Experience Europe's Borders?”, JRS Europe, December 2011, (try pp.20-29 and at the very least the story on pp.20-21) http://www.jrseurope.org/publications/JRSEuropeRefugeesAtEUBorder08122011.pdf .-V. Moreno Lax, “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” 10 (2008) European Journal of Migration and Law 315-364. -Claire Rodier, 'Study: 'Analysis of the external dimension of the EU's asylum and immigration policies' – summary and recommendations for the European Parliament' (European Parliament, June 2006) http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dt/619/619330/619330en.pdf .-E. Taylor Nicholson, “Cutting Off the Flow: Extraterritorial Controls to Prevent Migration” (July 2011) Chief Justice Earl Warren Institute on Law and Social Policy Issue Brief http://eucenter.berkeley.edu/files/Issue_Brief_2011_Final.pdf .

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Articles relating to the legitimacy of border control:-K. R. Johnson, “Open Borders?” 51 (October 2003) UCLA Law Review 193, pp.205-213.-D. G. Papademetriou, “Restoring Trust in the Management of Migration and Borders” (2011) Migration Policy Institute http://www.migrationpolicy.org/transatlantic/TCMStatement-Borders.pdf .

Class 8/ Seeking international protection in the European Union : asylum procedures and asylum reception conditions

Summary of class : Irrespective of their initial legality or illegality of entry and residence, asylumseekers have the right to apply for international protection in an EU Member State under EU law, andare in principle allowed to remain for as long as their application is being processed. But those whoenter and/or reside illegally prior to lodging their asylum applications may face a large number ofobstacles in accessing asylum procedures as a direct result of their violations of immigration rules. Weshall contextually examine EU legislation (and accompanying case-law) which sets standards on asylumprocedures and on the reception conditions which must be provided for asylum seekers during thoseprocedures.

We shall especially focus on the Dublin system. Under this system, only one Member State is responsiblefor examining the asylum application of an asylum applicant. The determination of the Member Stateresponsible for a given asylum applicant is made by reference to a hierarchical list of criteria set out inthe Dublin III Regulation. The most common criterion is that of the first country of illegal entry e.g. if anasylum applicant enters the EU illegally via Italy and travels to Belgium, Italy is the country responsiblefor examining that asylum seeker's application. The determination of the Member State responsible foran asylum applicant is facilitated by the Eurodac database, a database which contains the fingerprintsand data of all asylum applicants and irregular border-crossers in the EU. If an asylum seeker whoapplies for asylum in one Member State turns out to be under the responsibility of another MemberState, a “Dublin” procedure is triggered in order to transfer said asylum seeker. “Dublin” asylumseekers run the risk of being bounced around between EU Member States, and they generally benefitfrom lower reception conditions than other asylum seekers. The system exists to deter what somedescribe as asylum shopping. This deterrence of asylum shopping often negatively impacts asylumseekers' right to seek asylum and a whole host of other human rights they are entitled to.

A note of caution for the debate presenters: the Dublin system was born outside the framework ofthe EU in the form of an international agreement between several EU Member States. It was called theDublin Convention. In 2003, the system was incorporated (and amended) into the EU legal systemthrough the adoption of the EU Dublin II Regulation. The Dublin II Regulation was repealed and replacedmid-2013 by the Dublin III Regulation. The Dublin III Regulation slightly improved certain of the DublinII Regulation's flaws. Most of the sources below relate to the Dublin II Regulation, but the key argumentsremain applicable to the Dublin III Regulation.

Debate topic : Should the Dublin system be abolished?

Watching :- « Refugees taking a risk on Europe » https://www.youtube.com/watch?v=iCsp9glxZ14&feature=player_embedded#at=87 .

Infographic on asylum in the EU: http://ec.europa.eu/dgs/home-affairs/e-library/docs/infographics/asylum/infographic_asylum_en.pdf .

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Infographic on the Common European Asylum System: http://ec.europa.eu/dgs/home-affairs/e-library/docs/infographics/ceas/ceas_infographics_a4_en.pdf .

Textbook: -D. Chalmers G. Davies G. Monti, European Union Law: Cases and Materials (Cambridge University Press, 24 June 2010), pp.507-508, 518-525. -European Union Agency for Fundamental Rights, Handbook on European Law relating to asylum, borders and immigration (Luxembourg, Publications Office of the European Union, June 2013), pp. 43-45 and 95-109. http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration .

Legislation:-Directive 2013/33/EC on 21 July 2015 (Recast Asylum Reception Conditions Directive).-Directive 2013/32/EU on 21 July 2015 (Recast Asylum Procedures Directive).- Regulation 343/2003 (Dublin II Regulation) repealed and replaced by Regulation 604/2013 (Dublin III Regulation).Dublin II Regulation: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:050:0001:0010:EN:PDF .European Commission's Dublin II Regulation Proposal: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2001:0447:FIN:EN:PDF .Dublin III Regulation: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0031:0059:EN:PDF .

Case-law:- Court of Justice of the EU, Joined Cases C-411/10 and C-493/10 N.S. V Secretary of State for the Home Department (2011). -European Court of Human Rights, Case of MSS v Greece and Belgium (21 January 2011) Application no. 30696/09- Court of Justice of the EU, Case C-179/11 Cimade, GISTI v Ministre de l'Interieur, de l'Outre-mer, des Collectivites territoriales et de l'Immigration (2012). -Court of Justice of the EU, Case C-394/12 Shamso Abdullahi v Bundesasylamt (2013).

Excellent summaries by the ECRE of EU asylum legislation: http://www.ecre.org/topics/areas-of-work/protection-in-europe.html .

ECRE notes and analyses of the Dublin system: http://www.ecre.org/topics/areas-of-work/protection-in-europe/10-dublin-regulation.html .

Inter-institutional negotiations behind the Dublin III Regulation: http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2008/0243(COD)&l=en .

The European Commission's 2007 Report on the implementation of the Dublin II Regulation: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0299:FIN:EN:PDF .

Articles:- C. Costello, “The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?” 7 (2005) European Journal of Migration and Law 35-69. - V. Moreno-Lax, “Dismantling the Dublin System: M.S.S. v. Belgium and Greece” 14 (2012) European Journal of Migration and Law 1-31.- E. R. Thielemann, “Why Asylum Policy Harmonisation Undermines Refugee Burden-Sharing” 6 (2004) European Journal of Migration and Law 47-65.

NGO Reports on the Dublin system:-D. Di Rado (Ed.), “Dubliners Project Report”, implemented under the ERF Community Actions 2007, pp.31-39, http://helsinki.hu/wp-content/uploads/dublinerCORRETTO-definitivo.pdf .-JRS Europe: “Protection Interrupted: The Dublin Regulation's Impact on Asylum Seekers' Protection (The DIASP project)” (5 June 2013), available at http://www.jrseurope.org/DIASP%20Publications/Protection%20Interrupted_JRS%20Europe_June%202013.pdf .- JRS Europe and ECRE statement on the commencement of the Dublin III Regulation as part of the Common European Asylum System (CEAS) : http://www.jrseurope.org/publications/ECREJRSStatementonDublinIII_publications_19072013.pdf .

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Some recent figures on asylum applications in the EU : Alexandros Bitoulas, “Asylum Applicants and First Instance Decisions on Asylum Applications: 2014” (Eurostat Data in focus, 3/2015).

Class 9/ Seeking international protection in the European Union : refugee status and subsidiary protection status

Summary of class : At the end of an asylum seeker's asylum procedure, international protection mighteither be granted or refused. If international protection is granted, one of two international protectionstatuses may be granted under EU law (other protection statuses exist under EU Member States'respective national legal systems). Asylum seekers might be granted refugee status or subsidiaryprotection status. The EU Qualification Directive sets out standards with regard to the qualificationcriteria for these two statuses, as well as the rights attached to them. We shall look at how the right tointernational protection has evolved as a result of increasing EU intervention, in light of prior MemberState practices and their obligations under the UN Refugee Convention and the European Convention onHuman Rights. We shall in particular focus on the dividing line between those who are included withinand excluded from the scope of international protection. Notable groups of excluded persons arepersons in need of international protection who are deemed to pose a security threat to the EU, such asa terrorist threat.

Rejected asylum seekers run a high risk of falling into illegality of stay. They frequently end upbecoming non-removable irregular migrants, a broad group of individuals we shall discuss in class 10.

Debate topic : Are the security-related grounds for exclusion from international protection too broad as currently set out in the Recast Qualification Directive?

Textbook: - D. Chalmers G. Davies G. Monti, European Union Law: Cases and Materials (Cambridge University Press, 24 June 2010), pp.525-532.-European Union Agency for Fundamental Rights, Handbook on European Law relating to asylum, borders and immigration (Luxembourg, Publications Office of the European Union, June 2013), pp. 45-46 and 61-85 http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration .

Legislation:-Directive 2011/95/EU (Recast Qualification Directive).

Case-law: -European Court of Human Rights, Case of Chahal v UK (1996) Application no. 22414/93 .-European Court of Justice, Case C-465/07 Elgafaji v Staatssecretaris van Justitie (2009).-Court of Justice of the EU, Cases C-57/09 and C-101/09 B and D (2010). -Court of Justice of the EU, Case C-373/13 H.T. v Land Baden-Wurttemberg (2015).

Articles: -E. Brouwer, “Immigration, Asylum and Terrorism: A Changing Dynamic Legal and Practical Developments in the EU in Response to the Terrorist Attacks of 11.09” 4 (2003) European Journal of Migration and Law, 399-424. - M. J. Gibney “Between Control and Humanitarianism: Temporary Protection in Contemporary Europe” 14 (2000) Georgetown Immigration Law Journal 689. -E. Guild, “Examining the European Geography of Refugee Protection: Exclusions, Limitations and Exceptions from the 1967 Protocol to the Present” (2012/03) Nijmegen Migration Law Working Paper Series

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- E. Guild and M. Garlick, “Refugee Protection, Counter-Terrorism, and Exclusion in the European Union” 29 (2010) 4 Refugee Survey Quarterly.- K. McAdam, “The European Union qualification directive: the creation of a subsidiary protection 17 (2005) 3 International Journal of Refugee Law 461. - S. Peers, “Legislative Update 2011, EU Immigration and Asylum Law: The Recast Qualification Directive” 14 (2012) European Journal of Migration and Law 199-221.- M. Zard, “Exclusion, terrorism and the Refugee Convention” 13 (2002) Forced Migration Review http://www.migrationpolicy.org/files/fmr_13_zard.pdf .

UNHCR report on the Qualification Directive: UNHCR, “Asylum in the European Union: A Study of the Implementation of the Qualification Directive” (November 2007) http://www.unhcr.org/47302b6c2.html .

ECRE information note on the Recast Qualification Directive: http://www.ecre.org/component/downloads/downloads/805.html .

ECRE information note on the Commission's Recast Qualification Directive proposal: http://www.ecre.org/component/downloads/downloads/128.html .

European Commission document on security-related exceptions to international protection : Commission, “Working Document: The Relationship Between Safeguarding Internal Security and Complying with International Protection Obligationsand Instruments” COM (2001) 743 final.

NGO report on the impact of cases delivered by the Court of Justice: -G. Gyulai, 'The Luxembourg Court: Conductor for a Disharmonious Orchestra? Mapping the national impact of the four initial asylum-related judgments of the EU Court of Justice' (Hungarian Helsinki Committee, 2012) http://helsinki.hu/wp-content/uploads/The-Luxemburg-Court-06-04-2012-final.pdf .

Class 10/ Regularisation of irregular migrants in the European Union

Summary of class : Even though the Return Directive established an obligation to issue returnmeasures against illegally staying third country nationals, return and removal are not always possible.Removal might not be possible for practical, legal or policy-related reasons. Practical non-removabilityincludes difficulties in identifying the country of origin, as well as non-cooperation on the part of thecountry of origin or the migrants themselves. Legal non-removability includes protection from removalon human rights grounds. Policy-based non- removability includes protection from removal of victimsof trafficking who cooperate with competent authorities against their traffickers.

The problem for many non-removable persons is that while some are entitled to regularisation ofstatus, others are not so entitled. And in the absence of discretionary regularisation, they remain in alegal limbo of exclusion from legal residence, which entails exclusion from the numerous socio-economic rights and benefits attached to legality of status. Member States are often reluctant toregularising the status of non-removable irregular migrants; they tend to be more keen to increasedeportation rates by trying to break down obstacles to removal. Regularisation is believed to be a pull-factor by numerous state actors and political parties in Europe; available research has not providedconclusive evidence of a pull-factor.

While EU law governs many aspects of legally and illegally resident third country nationals' statusesand rights, it does not yet govern the discretionary regularisation of irregular migrants. Discretionaryregularisation is solely governed under Member States' national legal systems. Practices ofregularisation vary from one Member State to another. Depending on the State, they can be in the form

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of a time-limited programme or of an ongoing mechanism, and the grounds for regularisation might beof an economic, humanitarian or other nature. Several authors and institutional actors have argued forthe introduction of EU legislation in this area, a move which most Member States seem reluctant toaccept for sovereignty-related reasons. We shall examine the issues that stem from regularisationpractices and the manner in which the EU could intervene.

We shall also examine the enigmatic statuses that non-removable irregular migrants may end uppossessing in the absence of regularisation (namely postponed-removal statuses), as well as thevariable treatment they might come to expect in EU Member States (namely in terms of healthcareaccess, labour market access, education, and administrative detention). The starting point will be therelevant provisions under EU law, to be followed by an overview of the variety of approaches across EUMember States' national legal systems. We shall examine the theoretical implications of the governanceof non-removable persons in terms of membership, as well as the practical issues surrounding thisgovernance. Debate topic : Should non-removable irregular migrants be entitled to the regularisation of their status under EUlaw after a certain period of time?

Textbook: -European Union Agency for Fundamental Rights, Handbook on European Law relating to asylum, borders and immigration (Luxembourg, Publications Office of the European Union, June 2013), pp. 47-50, 88-89, 117-140 http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration .

Legislation:- Directive 2008/115/EC (Return Directive): http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:pdf .-European Commission's Return Directive proposal: http://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/com/2005/0391/COM_COM(2005)0391_EN.pdf .

Summary of ECtHR case-law on the prohibition of refoulement: ECtHR Press Unit, “Factsheet : Expulsions and Extraditions” (June 2011): http://www.echr.coe.int/Documents/FS_Expulsions_Extraditions_ENG.pdf .

Papers on the issue of regularisation:-K. Brick, “Regularisations in the European Union: The Contentious Policy Tool”, Migration Policy Institute Insight, December 2011, http://www.migrationpolicy.org/pubs/EURegularization-Insight.pdf .-M. R Rosenblum, “Immigration legalization in the United States and European Union: Policy Goals and Program Design”, Migration Policy Institute Brief, December 2010, http://www.migrationpolicy.org/pubs/legalization-policydesign.pdf .

PhD Thesis on non-removable migrants: C. Gosme, “Limbo spaces between illegal and legal stay: resulting from EU management of non-removable third country nationals” (PhD in Public Law, Institut d'Etudes Politiques de Paris 2014), http://spire.sciencespo.fr/hdl:/2441/30a6ffj78696ja3eov65066e05

Paper on the issue of non-removable irregular migrants: E. Paoletti, “Deportation, Non-Deportability and Ideas of Membership” (July 2010) Refugee Studies Centre Working Paper 65: http://www.rsc.ox.ac.uk/files/publications/working-paper-series/wp65-deportation-non-deportability-ideas-membership-2010.pdf .

Institutional report on the human rights of irregular migrants which includes a chapter containing a thorough explanation about non-removable irregular migrants in the EU and their human rights:European Union Agency for Fundamental Rights, “Fundamental rights of migrants in an irregular situation in the European Union”, Comparative Report, especially pp.27-38: http://fra.europa.eu/en/publication/2012/fundamental-rights-migrants-irregular-situation-european-union .

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Syllabus

Institutional study on Member State practices and possible reforms with regard to irregular migrants whose removal is postponed: Ramboll and Eurasylum, “Study on the situation of third-country nationals pending return/removal in the EU Member States and the Schengen Associated Countries” (2013) http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/immigration/return-readmission/docs/11032013_sudy_report_on_immigration_return-removal_en.pdf .

Passage of a European Commission Communication relating to the integration of non-removable irregular migrants: European Commission (2003) Communication on Integration, Immigration and Employment. COM (2003) 0336 final, pp.25-26 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0336:FIN:EN:PDF .

Passage of a report on regularisation which discusses possible EU reform with regard to non-removable irregular migrants: M. Baldwin-Edwards & A. Kraler, REGINE Regularisations in Europe. Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU (Vienna: ICMPD, 2009) , pp.123-124.http://research.icmpd.org/fileadmin/Research-Website/Project_material/REGINE/Regine_report_january_2009_en.pdf .

NGO Reports on Migrants in limbo: -JRS Europe Report, “Living in limbo: forced migrant destitution” (Brussels, March 2010) http://www.jrseurope.org/publications/JRS%20Europe%20Living%20in%20Limbo%20-18-18h.pdf .-M. Vanderbruggen, J. Phelps, N. Sebtaoui, A. Kovats, and K. Pollet, “Point of No Return: The Futile Detention of Unreturnable Migrants” (Collaboration between Flemish Refugee Action (Belgium), Detention Action (UK), France terre d’asile (France), Menedek – Hungarian Association for Migrants, and The European Council on Refugees and Exiles (ECRE), project supported by EPIM, January 2014).

NGO Report on the human rights of irregular migrants: PICUM's Main Concerns about the Fundamental Rights of Undocumented Migrants in Europe (2010), October 2010, http://picum.org/picum.org/uploads/publication/Annual%20Concerns%202010%20EN.pdf .

Article on readmission agreements: A. Roig and T. Huddleston, “EC Readmission Agreements: A Re-evaluation of the Political Impasse” 9 (2007) European Journal of Migration and Law 363-387.

Class 11 & 12/ Mock Institutional Hearing

Written and oral assignment: The European Commission launches a public consultation and holds ahearing on several aspects of EU law relating to third country nationals. You will be assigned variousinstitutional roles. You will prepare written answers to a small number of questions set out by thefictional European Commission, and take part in a hearing and debate in the final two classes.

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Syllabus

Instructions for debate presentations

You will be required to submit a short essay presenting your arguments. This short essay shall serve as abasis for your participation in an oral debate.

Oral component : -No oral presentation is required. However, you will take part in an oral debate, in which your contributions will be steered by your course instructor.

Written component: -A short essay which matches your presentation and contains

1. a very short contextual introduction2. a clear and concise argument or set of arguments that answer(s) the question 3. precise references to sources (with footnotes)4. Illustrations5. Depth of thought

-Word count : minimum 1000 words (including footnotes but excluding bibliography) -A short bibliography must be included. For your bibliography and footnotes, be consistent with your bibliographical and/or citation style. You could for example follow the OSCOLA rules : http://www.law.ox.ac.uk/published/OSCOLA_4th_edn.pdf https://www.law.ox.ac.uk/published/OSCOLA_Quick_Reference_Guide_001.pdf Please hand in a paper version of your written component on the day of the debate in class and send a digital version to cgagosme@gmail.com and charles.gosme@sciencespo.fr (in office and pdf formats) on the same day.

Evaluation and grade : a grade shall be awarded for overall qualities of the written and oral components of the assignment. Both should strive to display qualities of clarity, precision, concision and depth of thought.

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Syllabus

Instructions for the mock institutional hearing exercise

Dates of hearing : classes 11 and 12.

Deadline for written submission on : 25 November 2015 at midnight (discretionary substraction of marks for late submissions ; extenuating circumstances taken into account such as health problems)

Fictional context: The European Commission launches a public consultation and holds a hearing on several aspects of EU law relating to third country nationals. The political landscape is becoming increasingly ripe for reform and the Commission wishes to consult institutional actors and civil society actors on how EU law should govern the status and rights of third country nationals. To this end, it has published a green paper1 entitled “The future of EU law on third country nationals” with numerous questions to be answered, discussed and debated at the hearing. Below are five of the consultation questions and seven of the groups/associations/organisations represented at the hearing. Each student will be assigned to one of the seven groups/associations/organisations. Each student will provide written answers to the four consultation questions as fictional consulted actors, in accordance with the rules set out below, and as the basis for their participation at the hearing.

The consultation questions are :

Question 1 : Should EU Member States be prohibited from imposing cultural integration requirements as a prerequisite for the acquisition of long term resident status under a Recast Long Term Resident Directive?

Question 2 : a) Should the maximum period of administrative detention be shortened in a Recast Return Directive ?b) Should a Recast Return Directive place limits on the number of times an illegal resident can be detained ?

Question 3 : Should the Dublin system be maintained or replaced ?

Question 4 : Should EU legislation be adopted which would entitle non-removable illegal residents to the regularisation of their status after a certain period of time? If not, why not ? If so, on what grounds, after how longand under what conditions ?

Question 5 : Which of the current extra-territorial migration control measures should be adapted in order to facilitate the access of asylum seekers to the territory of the EU ?

Actors consulted are representatives from :

- the European Parliament's European People's Group- the European Parliament's Progressive Alliance of Socialists and Democrats Group - the European Parliament's Confederal Group of the European United Left- Nordic Green Left - the European Parliament's Freedom and Democracy Group- the Third Country National Workers and Families Association (completely fictional)- the NGO Alliance : European Council on Refugees and Exiles- EU Migration Watch (fictional organisation derived from UK Migration Watch)

Details on these actors will be provided and discussed in class several weeks before the hearing.

1 http://europa.eu/legislation_summaries/glossary/green_paper_en.htm

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Syllabus

Requirements for written answers by your assigned fictional character: you are required to send a written component of this assignment to cgagosme@gmail.com and charles.gosme@sciencespo.fr (in office and pdf formats) by midnight on 25 November 2015 in which you : 1) provide an introduction of who you represent and of your general position on the four questions from an ideological standpoint 2) answer the four questions with clear, precise and well researched and thought-out arguments (minimum 450 words per answer) 3) provide a conclusion 4) provide an annex to your written assignment in which you state your real position on one or more of the questions (the annex takes us away from the fiction)5) provide a bibliography at the end. Choose a bibliographical style for your secondary and primary sources. If you refer to primary or secondary sources in your answers, you can either make use of footnotes or simply cite the sources in brackets at the end of sentences in a manner that refers the reader clearly to the fully cited sources in your bibliography.

Oral part of the assignement : The written submission will serve as a basis for discussions and debates in the « hearing » class. There will be no formal presentations in the « hearing » class, and I will prompt discussions and debates around these questions.

Evaluation and grade : a grade shall be awarded for overall qualities of the written and oral components of the assignment. Both should strive to display qualities of clarity, precision, concision and depth of thought.

Model answer by the European Council on Refugees and Exiles (ECRE) in response to a real consultation on asylum : http://ec.europa.eu/dgs/home-affairs/what-is-new/public-consultation/2007/pdf/contributions/ngo/european_council_on_refugees_exiles_ecre_en.pdf

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Syllabus

List of useful websites

For general information on European policies

Europa: http://europa.eu/

For searches on current EU law (Treaties, Legislation, Cases....)

Eurlex: http://eur-lex.europa.eu/

For searches on EU law in the making

Prelex: http://ec.europa.eu/prelex/apcnet.cfm?CL=enOeil: http://www.europarl.europa.eu/oeil/home/home.do

Websites of institutional and judicial actors involved in the field of European and international migration law

Council of Europe (Migration): http://www.coe.int/t/dg3/migration/default_en.asp Council of the European Union: http://www.consilium.europa.eu Court of Justice of the EU: http://curia.europa.eu European Commission Directorate for Justice and Home Affairs: http://ec.europa.eu/dgs/home-affairs/index_en.htm

>in particular: http://ec.europa.eu/dgs/home-affairs/e-library/documents/index_en.htm European Court of Human Rights: http://www.echr.coe.int/echr/en/header/case-law/hudoc/hudoc+database/ European Migration Network: http://emn.intrasoft-intl.com/html/index.html

> in particular: http://emn.intrasoft-intl.com/html/info_exchange/third_party_databases.html European Parliament: http://www.europarl.europa.eu

>LIBE Committee: http://www.europarl.europa.eu/committees/en/libe/home.html >in particular the links to websites of political groups: http://www.europarl.europa.eu/aboutparliament/en/007f2537e0/Political-groups.html

European Union Agency for Fundamental Rights: http://fra.europa.eu/fraWebsite/home/home_en.htm EU Border Agency: http://www.frontex.europa.eu/ International Organization for Migration: http://www.iom.int/jahia/Jahia/lang/en/pid/1 UN Refugee Agency: http://www.unhcr.org/

Websites of non-governmental organisations specialised in the field of immigration law

CIMADE: http://www.cimade.org/ European Council on Refugees and Exiles: http://www.ecre.org France Terre d'Asile: http://www.france-terre-asile.org/ GISTI: http://www.gisti.org/ Human Rights Watch: http://www.hrw.org/ JRS Europe: http://www.jrseurope.org Migreurop: http://www.migreurop.org/ PICUM: http://picum.org/en/ Statewatch: http://www.statewatch.org/

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Syllabus

Academia in the field of immigration

CHALLENGE: Liberty and Security: http://www.libertysecurity.org/COMPASS: http://www.compas.ox.ac.uk European University Institute of Florence (Law Working Papers): http://cadmus.eui.eu/handle/1814/3 International Centre for Migration Policy Development: http://www.icmpd.org Migration Policy Institute: http://www.migrationpolicy.org Odysseus Network: http://www.ulb.ac.be/assoc/odysseus/index2.html Refugee Studies Centre: http://www.rsc.ox.ac.uk

There are many useful journals that you can find on Sciences Po library's online journals: Columbia Journal of European Law, European Journal of Migration and Law, European Law Review, Yearbook of European Law, Population Space and Place ...Most of the journal articles in the class reading lists can be found either on google or on Sciences Po library's catalogue of online journals: http://gl5sm8uv5q.search.serialssolutions.com/?paramdict=en-US You should search for journals with titles that contain the following words migration, immigration, asylum, refugee, and/or human rights.

Statistical and benchmarking databases

Clandestino: http://irregular-migration.hwwi.de/ European Migration Network: http://emn.intrasoft-intl.com/html/index.html Eurostat (population): http://epp.eurostat.ec.europa.eu/portal/page/portal/population/introduction Migration Integration Policy Index: http://www.integrationindex.eu/

Europe-wide surveys

Euro barometer: http://ec.europa.eu/public_opinion/index_en.htm Transatlantic Trends: http://trends.gmfus.org European Social Survey: http://www.europeansocialsurvey.org/

Data on Parliaments and Governments in the EU

ParlGov: http://parlgov.org/

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