(EXCERPTS OF THE HANDBOOK INTRODUCTION)
A first version of the handbook on the European law relating to asylum, borders and immigration is co-authored by the European Agency for Fundamental Rights (FRA) and by by the European Court of Human Rights was published (in four languages) in June 2013. This second edition incorporates the changes to the EU asylum acquis published in the summer of 2013. Future updates of this handbook will become available on the FRA webpage at: http://fra.europa.eu/en/theme/asylum-migration-borders and on the European Court of Human Rights (ECtHR) webpage at: www.echr.coe.int under “Publications”.
This handbook provides an overview of the law applicable to asylum, border man-agement and immigration in relation to European Union (EU) law and the European Convention on Human Rights (ECHR). It looks at the situation of those foreigners whom the EU usually refers to as third-country nationals, although such distinction is not relevant for cited ECHR law.
The handbook does not cover the rights of EU citizens, or those of citizens of Iceland, Liechtenstein, Norway and Switzerland who, under EU law, can enter the territory of the EU freely and move freely within it. Reference to such categories of citizens will be made only where necessary in order to understand the situation of family members who are third-country nationals.
There are, under EU law, some 20 different categories of third-country nationals, each with different rights that vary according to the links they have with EU Member States or that result from their need for special protection.
For some, such as asylum seekers, EU law provides a comprehensive set of rules, whereas for others, such as students, it only regulates some aspects while leaving other rights to EU Member States’ discretion. In general, third-country nationals who are allowed to settle in the EU are typically granted more comprehensive rights than those who stay only temporarily. (…)
This handbook is designed to assist legal practitioners who are not specialised in the field of asylum, borders and immigration law; it is intended for lawyers, judges, prosecutors, border guards, immigration officials and others working with national authorities, as well as non-governmental organisations (NGOs) and other bodies that may be confronted with legal questions relating to these subjects.
It is a first point of reference on both EU and ECHR law related to these subject areas, and explains how each issue is regulated under EU law as well as under the ECHR, the European Social Charter (ESC) and other instruments of the Council of Europe. Each chapter first presents a single table of the applicable legal provisions under the two separate European legal systems. Then the relevant laws of these two European orders are presented one after the other as they may apply to each topic. This allows the reader to see where the two legal systems converge and where they differ.
Practitioners in non-EU states that are member states of the Council of Europe and thereby parties to the ECHR can access the information relevant to their own country by going straight to the ECHR sections.
Practitioners in EU Member States will need to use both sections as those states are bound by both legal orders. For those who need more information on a particular issue, a list of references to more specialised material can be found in the ‘Further reading’ section of the handbook.
ECHR law is presented through short references to selected European Court of Human Rights (ECtHR) cases related to the handbook topic being covered. These have been chosen from the large number of ECtHR judgments and decisions on migration issues that exist.
EU law is found in legislative measures that have been adopted, in relevant provisions of the Treaties and in particular in the Charter of Fundamental Rights of the European Union, as interpreted in the case law of the Court of Justice of the European Union (CJEU, otherwise referred to, until 2009, as the European Court of Justice (ECJ)).
The case law described or cited in this handbook provides examples of an important body of both ECtHR and CJEU case law. The guidelines at the end of this handbook are intended to assist the reader in searching for case law online.
Not all EU Member States are bound by all the different pieces of EU legislation in the field of asylum, border management and immigration. Annex 1 on the ‘Applicability of EU regulations and directives cited in this handbook’ provides an overview of which states are bound by which provisions.
It also shows that Denmark, Ireland and the United Kingdom have most frequently opted out of the instruments listed in this handbook. Many EU instruments concerning borders, including the Schengen acquis – meaning all EU law adopted in this field – and certain other EU law instruments, also apply to some non-EU Member States, namely Iceland, Liechtenstein, Norway and/or Switzerland.
While all Council of Europe member states are party to the ECHR, not all of them have ratified or acceded to all of the ECHR Protocols or are State Party to the other Council of Europe conventions mentioned in this handbook. Annex 2 provides an overview of the applicability of selected Council of Europe instruments, including the relevant Protocols to the ECHR. Substantial differences also exist among the states which are party to the ESC. States joining the ESC system are allowed to decide whether to sign up to individual articles, although subject to certain minimum requirements. Annex 3 provides an overview of the acceptance of ESC provisions.
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