The Legal and Normative Framework on Migration in Germany and in the European Union

Lana de Freitas Castro, Emília

doi:10.1007/978-3-030-46608-4_5

Emília Lana de Freitas Castro²

111 Accesses

Abstract

Following the structure and the scope of this work, this chapter will cover the freedom of movement in Germany and in the European Union, by analyzing mobility under these two legal frameworks as a person’s most basic human right. Indeed, based on the concepts presented by Longo (2013, p. 31), we intend to draw Germany’s and the European Union’s provisions on the free movement of people considering the freedom of movement as a core right, which constitutes citizenship and promotes the self-determination of an individual. Referring to Carens, Longo affirms (2013, pp. 31–32) that people should be free to determine their life choices (e.g., their occupation, place of residence and their partners, regardless of their geographic position in the world). Considering that the freedom of mobility is a driving force and a key element behind the structure of the European Union, we conceived this chapter by problematizing to what extent the European Union and the German State tolerate the right to freedom of movement. By freedom of movement, just as in the previous chapters, we understand the right to enter and stay in the territory of the German State/of the European Union, as well as the necessity (or not) of compulsory withdrawal from a territory. The associated rights to these, such as, for example, the right to exercise a profession in Germany or in the European Union in general will be tangentially mentioned, just as proceeded in the previous chapters. Also, on the first topic, which considers the analysis of German law, we will exclusively take into consideration the movement of third-country nationals within German territory, since the analysis of EU citizens’ migration rights within the German territory is absorbed by Sect. 5.2.1, which is dedicated to EU’s citizens’ migration rights within the EU. Whereas Sect. 5.1 is only dedicated to TCNs, Sect. 5.2 is divided into the EU’s treatment given to EU’s citizens and the EU’s treatment given to third-country nationals on the field of migration rights (entry, stay and compulsory withdrawal of immigrants).

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 84.99; Price excludes VAT (USA)

Softcover Book: USD 109.99; Price excludes VAT (USA)

Hardcover Book: USD 109.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). The full name of the German Residence Act is Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet.
2.
The Migration Report for 2015, and most recent Migration Reports are available via https://www.bamf.de/EN/Themen/Forschung/Veroeffentlichungen/Migrationsberichte/migrationsberichte-node.html.
3.
According to the Bundesamt für Migration und Flüchtlinge & Forschungszentrum Migration, Integration und Asyl (2018, p. 11).
4.
Aufenthaltsverordnung vom 25. November 2004 (BGBl. I S. 2945), die zuletzt durch Artikel 1 der Verordnung vom 1. August 2017 (BGBl. I S. 3066) geändert worden ist. No official translation into English is available.
5.
Beschäftigungsverordnung vom 6. Juni 2013 (BGBl. I S. 1499), die zuletzt durch Artikel 2 der Verordnung vom 1. August 2017 (BGBl. I S. 3066) geändert worden ist. No official translation into English is available.
6.
In the version promulgated on 2 September 2008 (Federal Law Gazette I, p. 1798), last amended by Article 2 of the Act of 11 March 2016 (Federal Law Gazette I, p. 394).
7.
Social assistance to forced migrants which must also be mentioned are: the Asylum Seekers’ Benefit Act (Asylbewerberleistungsgesetz) and the Third Book of the German Social Code (SGB III – Arbeitsförderung).
8.
AZR-Gesetz vom 2. September 1994 (BGBl. I S. 2265), das zuletzt durch Artikel 4 des Gesetzes vom 17. Juli 2017 (BGBl. I S. 2615) geändert worden ist. No official translation into English is available.
9.
Nationality Act of 22 July 1913 (Reich Law Gazette I p. 583—Federal Law Gazette III 102-1), as last amended by Article 3 of the First Act to Amend the Federal Act on Registration and other legislation of 11 October 2016 (Federal Law Gazette I p. 2218).
10.
Bundesvertriebenengesetz in der Fassung der Bekanntmachung vom 10. August 2007 (BGBl. I S. 1902), das zuletzt durch Artikel 10 des Gesetzes vom 20. November 2015 (BGBl. I S. 2010) geändert worden ist. No official translation into English is available.
11.
The German Residence Act uses the expression Ausländer in its provisions. Translated into English, Ausländer means foreigners. For methodology reasons, and in order to use the expression German lawmakers decided to apply, we are using throughout this chapter the word foreigner to refer to immigrants who find themselves within German territory. This does not mean we agree with the name Ausländer, which is given to these movers.
12.
Just to cite a few, as mentioned by von Harbou and Weizsäcker: the Employment Ordinance (Beschäftigungsverordnung), already mentioned in this topic; the introduction of the EU’s Blue Card Directive rules into the German Residence Act; as well as the Act on the Implementation of European Union Residence Law Directives on Labor Migration, of 2017 (Gesetz zur Umsetzung aufenthaltsrechtlicher Richtlinien der Europäischen Union zur Arbeitsmigration—Federal Law Gazette I, p. 1106), which, as its name indicates, implemented in the German immigration legal framework some EU Directives dedicated to third-country nationals: the Directive on admission for seasonal employment (2014/36), the Directive on intra-corporate transferees (2014/66)—both of them to be mentioned in Sect. 5.2 of the present work—, as well as Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 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 (OJ L 132, 21.5.2016, pp. 21–57).
13.
In fact, the coalition agreement between SPD, CSU and CDU from February 2018 mentions the necessity of creating a draft law on the immigration of skilled workers from third countries (Fachkräfteeinwanderungsgesetz). Also SPD parliamentary group drafted an immigration law for Germany—Entwurf eines Gesetzes zur Neuordnung der Einwanderung qualifizierter Fachkräfte (Einwanderungsgesetz – EinwG)—dating from November 2017 and available via https://www.spdfraktion.de/system/files/documents/ge-einwanderungsgesetz.pdf.
14.
The draft of the law “Entwurf eines Gesetzes zur Einführung eines Einwanderungsgesetzes” dates from December 2018 and is available via https://dip21.bundestag.de/dip21/btd/19/065/1906542.pdf.
15.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I, p. 3618).
16.

Section 39

Approval of employment for a foreigner

(1) A residence title which permits a foreigner to take up employment may only be granted with the approval of the Federal Employment Agency, in the absence of any provisions to the contrary in statutory instruments. Such approval may be granted if laid down in intergovernmental agreements, an act or a statutory instrument.

(2) The Federal Employment Agency may approve the granting of a temporary residence permit to take up employment pursuant to Section 18 or of an EU Blue Card pursuant to Section 19a if

1.

(a) the employment of foreigners does not result in any adverse consequences for the labour market, in particular with regard to the employment structure, the regions and the branches of the economy, and

(b) no German workers, foreigners having the same legal status as German workers with regard to the right to take up employment or other foreigners who are entitled to preferential access to the labour market under the law of the European Union are available for the type of employment concerned or

2. it has established, via investigations for individual occupations or for individual industries in accordance with sentence 1, no. 1 (a) and (b), that filling the vacancies with foreign applicants is justifiable in terms of labour market policy and integration aspects and the foreigner is not employed on terms less favourable than apply to comparable German workers. German workers and foreigners of equal status shall also be deemed to be available if they can only be placed with assistance from the Federal Employment Agency. The future or present employer of a foreigner who requires or has obtained approval for such employment must furnish the Federal Employment Agency with information on pay, working hours and other terms and conditions of employment.

(3) Subsection 2 shall also apply if approval from the Federal Employment Agency is required in order to take up employment in cases of residence for other purposes covered in Parts 3, 5 or 7.

(4) The approval may stipulate the duration and form of occupational activity and restrict the employment to specific plants or regions.

(5) The Federal Employment Agency may approve the granting of a permanent settlement permit pursuant to Section 19 if employment of the foreigner does not result in any adverse consequences for the labour market.

(6) Subsections 2 and 4 shall apply accordingly to the granting of a seasonal work permit. As for the rest, the legal provisions governing the approval by the Federal Employment Agency shall be applied to the work permit in the absence of any law or statutory instrument to the contrary. The Federal Employment Agency may determine demand-oriented admission figures with regard to approving the granting of a residence title for seasonal work and a seasonal work permit.
17.

Section 50

Requirement to leave the federal territory

(1) A foreigner shall be obliged to leave the federal territory if he does not possess or no longer possesses the necessary residence title and a right of residence does not exist or no longer exists under the EEC/Turkey Association Agreement.

(2) The foreigner shall leave the federal territory without delay or, if a period has been allowed for departure, by the end of this period.

(2a) (repealed)

(3) The foreigner may meet his obligation to leave the federal territory by entering another member state of the European Union or another Schengen state only if his entry into and residence in such state is permitted. If this is the case, the foreigner who is obliged to leave the federal territory must be required to proceed to the territory of such state without delay.

(4) A foreigner who is obliged to leave the federal territory and who intends to change his address or to leave the district covered by the foreigners authority for more than three days shall be required to notify the foreigners authority accordingly beforehand.

(5) The passport or passport substitute of a foreigner who is required to leave the federal territory should be taken into custody until his departure.

(6) For the purpose of terminating residence of a foreigner, the police may use their search tools for wanted persons in order to determine the foreigner’s whereabouts and to apprehend him, if his whereabouts are not known. A foreigner subject to a ban on entry and residence pursuant to Section 11 may be reported for the purposes of refusal of entry and, in the event of his being found in the federal territory, for the purposes of his apprehension. Section 66 of the Asylum Act shall apply accordingly to foreigners who have been allocated in accordance with Section 15a.
18.
Especially when considering and interpreting the provisions of Section 1 (1).
19.
Information on these cornerstones and on the intentions of the German Government with a law for the attraction of highly skilled people has been massively widespread on by the media, see: https://www.bayernkurier.de/inland/34215-besserer-zugang-fuer-fachkraefte/, https://www.tagesspiegel.de/politik/fachkraeftezuwanderungsgesetz-einwanderung-erwuenscht/23145322.html, https://www.mdr.de/nachrichten/politik/inland/zuwanderung-auslaendische-fachkraefte-100.html.
20.
It is important to stress that the cornerstones also lay down the importance of providing Germans and citizens of the European Union with the necessary tools for making the German market an attractive market for highly skilled workers. According to the cornerstones, the German government will focus first and foremost on raising and safeguarding domestic potential, by intensifying the Government’s efforts to make it easier to reconcile family and working life, because it is particularly important to tap the valuable untapped potential of women. The Government mentions as an essential adjustment the guarantee of employability of all workers. In concrete terms, the Government believes that it is important to maintain and/or adapt the qualifications of German workers according to the changes of the world of work. To this end, it is intended to create a National Further Education Strategy together in order to also improve further education and training and prepare better the country and the Federal States for the necessities of the employees and of the companies. See: Federal Ministry of the Interior, Building and Community. Eckpunkte zur Fachkräfteeinwanderung aus Drittstaaten. Available via https://www.bmi.bund.de/SharedDocs/downloads/DE/veroeffentlichungen/2018/eckpunkte-fachkraefteeinwanderung.pdf;jsessionid=FEC12038D8E67C095973112912D5ADDE.1_cid287?__blob=publicationFile&v=1, pp. 1–2.
21.
See: Federal Ministry of the Interior, Building and Community. Eckpunkte zur Fachkräfteeinwanderung aus Drittstaaten. Available via https://www.bmi.bund.de/SharedDocs/downloads/DE/veroeffentlichungen/2018/eckpunkte-fachkraefteeinwanderung.pdf;jsessionid=FEC12038D8E67C095973112912D5ADDE.1_cid287?__blob=publicationFile&v=1, pp. 1–7.
22.
It is estimated that Germany’s population could drop from more than 80 million to between 65 and 70 million by 2060. Thoughts on how immigration could prevent Germany’s population decline (the so-called demographic dividend) are shared in Weber (2015).
23.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 13 (1).
24.
Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 3 (1).
25.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).
26.
According to the Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).
27.

(1) A foreigner may be issued the following visas in accordance with Regulation (EC) No 810/2009:

1. a visa for the purpose of transit through the territory of the Schengen states or for planned stays in this territory of up to 90 days within a 180-day period (Schengen visa),

2. an airport transit visa for the purpose of passing through the international transit area at airports.

(2) In accordance with Regulation (EC) No 810/2009, Schengen visas may be extended up to a total stay of 90 days within a 180-day period. A Schengen visa may be extended by a further 90 days within the 180-day period concerned as a national visa on the grounds stated in Article 33 of Regulation (EC) No 810/2009/EC, to safeguard the interests of the Federal Republic of Germany or for reasons of international law (...).
28.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 6(3).
29.
The authors report, though, that, in practice, the national visa has a validity of three months. Otherwise, the duration of the intended stay in German territory is determined by the circumstances of the stay; then, the issuance of the national visa extends in general for a maximum period of 1 year. Also, differently form the Schengen visa, there are no provisions on Section 6 (3) on the possibility of extension of the national visa. Nevertheless, Section 39, No. 1 of the Residence Ordinance (Aufenthaltsverordnung) provides that a national visa or a residence title under the terms of Section 6 (3) of the Residence Act can be extended.
30.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 7(2).
31.
The basic requirements for being able to apply for the settlement permit are provided by Section 9 (2):
(2) A foreigner shall be granted a permanent settlement permit if
1. 1.
  he has held a temporary residence permit for five years,
2. 2.
  his subsistence is secure,
3. 3.
  he has paid compulsory or voluntary contributions into the statutory pension scheme for at least 60 months or furnishes evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company; time off for the purposes of child care or nursing at home shall be duly taken into account,
4. 4.
  granting such a temporary residence permit is not precluded by reasons of public safety or order, according due consideration to the severity or the nature of the breach of public safety or order or the danger emanating from the foreigner, with due regard to the duration of the foreigner’s stay to date and the existence of ties in the federal territory,
5. 5.
  he is permitted to be in employment, if he is in employment,
6. 6.
  he possesses the other permits required for the purpose of the permanent pursuit of his economic activity,
7. 7.
  he has sufficient command of the German language,
8. 8.
  he possesses a basic knowledge of the legal and social system and the way of life in the federal territory and
9. 9.
  he possesses sufficient living space for himself and the members of his family forming part of his household.
32.
The EU long-term residence permit is also presented in Sect. 5.2.2 of the present work.
33.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 9a (2).
34.
As already mentioned in the beginning of Sect. 5.1, there are specific criteria based on EU Directive 801/2016 that allow a third-country national to pursue a study-related training program in the EU and, in this case, in Germany. These conditions are provided by Section 17b of the German Residence Act and the issuance of a temporary residence permit is possible if, among other conditions, the Federal Employment Agency has granted approval for this training in accordance with Section 39 or it has been determined by statutory instrument pursuant to Section 42 or by intergovernmental agreement that such training is permissible without approval from the Federal Employment Agency. Moreover, the training program must be designed to enable the third-country national to gain knowledge, practice and experience in a professional environment, if the foreigner presents a training agreement which provides for theoretical and practical training with a host entity, among other conditions that are provided by Section 17b and its paragraphs. On this issue see: Huber et al. (2017), pp. 76–77.
35.
A temporary residence permit for the purpose of participating in a European voluntary service scheme must be in accordance with Directive (EU) 2016/801 and it is provided by the German Residence Act under Section 18d.
36.
Other educational purposes are also considered, as provided by Section 17, which grants a temporary residence permit for the purpose of basic and advanced vocational training. This temporary residence permit “may be extended by up to one year for the purpose of seeking a job commensurate with this qualification, provided that foreigners are permitted to fill the vacancy in accordance with Sections 18 and 21.”, according to Section 17 (3) of the Residence Act. Also, this same provision states that the temporary residence permit shall entitle the holder to pursue an economic activity within this period. There are some general rules on grounds for rejection in the case of researchers, students, pupils, trainees, participants in language courses and European Voluntary Service that are provided by Section 20c of the Residence Act. Basically, a temporary residence permit pursuant to Sections 16, 16b, 17b, 18d, 20 or 20b shall not be granted in cases in which the host entity was established for the main purpose of facilitating the entry and residence of foreigners for the purposes mentioned in the individual provisions. Moreover, the temporary residence permit shall not be granted in several fraud and insolvency cases. For more details, see Section 20c (2) and (3).
37.
Not necessarily a German language course, but any language which is relevant for preparing the foreigner for his/her future studies in Germany, see: Huber et al. (2017, p. 63). It is important to note that a foreigner may be granted a temporary residence permit to attend language courses that do not serve for preparation for a course of study (in contrast to what is provided by Section 16), as well as to take part in a pupil exchange scheme, and, in exceptional cases, also to attend school. These are provisions from Section 16b of the German Residence Act, which determines that a temporary residence permit for participation in a pupil exchange scheme may also be granted in cases where there is no direct exchange. Where the foreigner is under 18 years of age, the persons entitled to his/her care and custody must consent to the planned stay. If the stay at the school is intended for the completion of a vocational training, it is possible for the foreigner that he/she works up to 10 hours/week in jobs that do not relate to his/her to such vocational qualification (Section 16b (2)). It is also possible that, after completing the vocational training, the foreigner may have his/her temporary residence permit extended by up to twelve months for the purpose of seeking a job. This job must be in accordance with the vocational training qualification acquired, provided that foreigners are permitted to fill the vacancy in accordance with Sections 18 and 21 of the Residence Act. As stated by Section 16b (3): “The temporary residence permit shall entitle the holder to pursue an economic activity in this period.”
38.
This rule does not apply in the foreigner’s first year of residence during a stay for the purpose of preparatory measures for a course of study, except during holidays, as defined by Section 16 (3). See: Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).
39.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 16 (5).
40.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 16a(1). According to this provision, for this purpose, following documents need to be presented by the foreigner:
1. 1.
  evidence that the foreigner has a residence title for study purposes from another member state of the European Union which is valid for the duration of the planned stay and falls within the ambit of Directive 2016/801,
2. 2.
  evidence that the foreigner wishes to carry out part of his studies at an educational institution in the federal territory, because he is taking part in a Union or multilateral programme that comprises mobility measures or because he is covered by an agreement between two or more higher education institutions.
3. 3.
  evidence that the foreigner has been accepted by the host educational institution,
4. 4.
  the copy of the foreigner’s recognised and valid passport or passport substitute,
5. 5.
  and evidence that the foreigner’s subsistence is secure.
41.
This Section also details the proceedings that must exist between the host educational institution and the German Government. More explanations on the proceedings, including the grounds for obstacles for a student from a third-country when applying for this kind of mobility which are provided by Section 20c, see: Huber et al. (2017), pp. 70–71.
42.
For more information on this European law instrument, see also: Weizsäcker (2018, pp. 49–50).
43.
This is the case, for example, of the European Master in Law and Economics (EMLE), where the master student attends to classes in cities such as Hamburg, Rome, Rotterdam, Vienna, among others: https://emle.org/about-emle/.
44.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 17a (1), Nos. 1. and 2.
45.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 18 (1).
46.
As long as the requirements of Section 9 (2), sentence 1, nos. 2 and 4 to 9 are met. Also, Section 9 (2), sentences 2 to 6 shall apply accordingly, as stated by Section 18b 4.
47.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 18b 3.
48.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 18c (2).
49.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 18c (3), ratified by Huber et al. (2017, p. 88).
50.
Or in case it has been determined by statutory instrument pursuant to Section 42 or by intergovernmental agreement that the permanent settlement permit may be granted without approval from the Federal Employment Agency in line with Section 39 and there is reason to assume that integration into the way of life in the Federal Republic of Germany and the foreigner’s subsistence without state assistance are assured, as determined by Section 19 (1).
51.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 19 (2) 1. and 2.
52.
Section 19a (1) 3.
53.
For more details on the EU Blue Card under German law, see: Ponert (2018, pp. 21–25), and Marx (2015, pp. 244–246).
54.
On the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (OJ L 157, 27.5.2014, p. 1). This Directive is also briefly mentioned in Sect. 5.2.2 of this book.
55.
According to the German Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 19b (2) and (3).
56.
See more restriction cases in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 19b (5) and (6).
57.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 19c (1).
58.
We believe that Sections 19c and 19d, just as Sections 20a and 20b have a deburocratization character, once, under the context of a mobility of foreigners for a limited period of time, a visa is “waived” because another Member State has already issued a visa for the same purpose.
59.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 20 (1) 1.
60.
According to the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 20 (1) 2.
61.
According to the German Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 20a (1).
62.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 20b (1).
63.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 21 (1).
64.
Also, according to Section 21 (1), the evaluation of the viability and importance of the business idea for the country/region shall be done as follows: “viability of the business idea on which the application is based, the foreigner’s entrepreneurial experience, the level of capital investment, the effects on the employment and training situation and the contribution to innovation and research. The competent bodies for the planned business location, the competent trade and industry authorities, the representative bodies for public-sector professional groups and the competent authorities regulating admission to the profession concerned must be involved in examining the application”, see: German Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).
65.
In this brief explanation of Part 1 of Chapter 5, residence title is used as an umbrella term, as it might include, among others, the long-term permit for non-EU citizens, the EU Blue Card, and the ICT Card.
66.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).
67.
In this case, not included in the concept of foreigner who has his/her entry into Germany refused are nationals of other Member States of the European Union (EU citizens) and their dependents, under the terms of Section 1 of Freedom of Movement Act/EU of 30 July 2004 (Federal Law Gazette I p. 1950, 1986), last amended by Article 6 of the Act of 21 December 2015 (Federal Law Gazette I p. 2557), available via https://www.gesetze-im-internet.de/englisch_freiz_gg_eu/englisch_freiz_gg_eu.html#p0014.
68.
The cases of unlawful entry are provided by Section 14 of the Residence Act and are basically: the lack of passport of a passport substitute; the lack of a residence title required in accordance with Section 4; the lack of the necessary visa pursuant to Section 4 upon entry, but obtained it by threat, bribery or collusion or by furnishing incorrect or incomplete information, for which reason it is revoked or annulled retrospectively; or when the foreigner is not permitted to enter Germany (unless there is a temporary entry permit allowing it so) under the terms of Section 11 (1), (6) or (7), that relate to the possibilities of the German State has of banning the entry and residence of a foreigner due to expulsion, removal or deportation.
69.
These reasons are also detailed by The General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), which is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SF-A001.pdf . As an example, we cite No. 15.2.2.0, that affirms that the suspicion mentioned in Section 15 (2) sentence 2 must be based on concrete evidence which we believe to still be a criteria with a wide possibility of interpretation.
70.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).
71.
According to No. 15.0.5.1 of The General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz) is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SF-A001.pdf.
72.
The conditions for expulsion and/or right to stay in German territory list in Section 53(1), (2), (3), (4); Section 54; Section 55 and Section 56 figures as a mere illustrative and not an exhaustive list, see: Huber et al. (2017, p. 295).
73.
Regarding Sections 56 and 56a of the Residence Act, these refer to the monitoring of foreigners who are subject to an expulsion measure. Among other obligations, foreigners subject to expulsion under the terms of Section 56(1) Nos. 2 to 5: must report to the police authorities; have their residence restricted to the district of the foreigners authority concerned; “may also be obliged not to contact specific persons or persons in a specific group, not to keep company with them, not to employ them, train or house them and to refrain from using certain means of communication or communication services (…)”, as stated by Section 56 and its paragraphs. In this context, foreigners subject to geographic restrictions as mentioned before and/or to contact bans may be required to carry technical devices, i.e., an electronic location monitoring, in the name of prevention of serious threats to internal security or to life and limb of others, as it can be understood under Section 56a of the Residence Act.
74.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).
75.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).
76.
Section 53(3) of the German Residence Act.
77.
(1) There shall be a particularly serious individual interest in remaining in the federal territory (Bleibeinteresse) within the meaning of Section 53 (1) where the foreigner
1. 1.
  possesses a permanent settlement permit and has lawfully resided in the federal territory for at least five years,
2. 2.
  possesses a temporary residence permit and was born in the federal territory or entered the federal territory as a minor and has lawfully resided in the federal territory for at least five years,
3. 3.
  possesses a temporary residence permit, has lawfully resided in the federal territory for at least five years and cohabits with a foreigner as designated in nos. 1 and 2 as a spouse or in a registered partnership,
4. 4.
  cohabits with a German dependant or domestic partner in a family unit or a registered partnership, exercises his rights of care and custody for a minor, unmarried German or exercises his right of access to that minor,
5. 5.
  enjoys the legal status of foreigner entitled to subsidiary protection within the meaning of Section 4 (1) of the Asylum Act or
6. 6.
  possesses a temporary residence permit pursuant to Section 23 (4), Sections 24, 25 (4a), sentence 3, or pursuant to Section 29 (2) or (4).
78.
(2) There shall be a serious individual interest in remaining within the meaning of Section 53 (1) in particular where
1. 1.
  the foreigner is a minor and possesses a temporary residence permit,
2. 2.
  the foreigner possesses a temporary residence permit and has resided in the federal territory for at least five years,
3. 3.
  the foreigner exercises his rights of care and custody for an unmarried minor residing lawfully in the federal territory or exercises his right of access to that minor,
4. 4.
  the foreigner is a minor and his parents or parent holding rights of care and custody reside or resides lawfully in the federal territory,
5. 5.
  consideration is to be given to the interests or the well-being of a child or
6. 6.
  the foreigner possesses a temporary residence permit pursuant to Section 25 (4a), sentence 1.
79.
Under German law, only with the institute of deportation it is possible to take a foreigner back to his/her country of origin.
80.
Funke & Kaiser, GK-AufenthG, § 57, margin number 14 and following pages apud Hailbronner (2017, p. 359).
81.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).
82.
Important to note that, according to No. 57.1.2 from the General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), if the foreigner wishes to enter the country without a valid passport but if he/she possesses a valid residence permit, this foreigner shall not be removed from German territory. The General Administrative Regulation to the German Residence Act is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SF-A001.pdf.
83.
Of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code). OJ L 77, 23.3.2016, pp. 1–52. Originally known, in 2006, as “Regulation (EC) No 562/2006 of the European Parliament and the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)”. Out of this Schengen Borders Code are Denmark and Ireland. Non-EU Member States such as Iceland, Norway, Switzerland and Lichtenstein are part of the Schengen Borders Code.
84.
Section 62(1) of the German Residence Act.
85.
The General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz) is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SF-A001.pdf.
86.
Section 60 of the German Residence Act is dedicated to the prohibition of deportation under the context of the Convention of 28 July 1951 relating to the Status of Refugees (Federal Law Gazette 1953 II, p. 559), also known as the Geneva Convention. These provisions are, therefore, related to the protection of refugees within the German territory and are not included in the scope of this work.
87.
These Sections will not be scrutinized in the present work, as it provides detailed information on the custody awaiting deportation. It is important to mention though that the imprisonment of foreigners to be deported shall not be permissible if the purpose of the custody can be achieved by other less severe means, which are also sufficient. When necessary, the detention shall be limited to the shortest possible duration. (Section 62(1) of the German Residence Act).
88.
The notice of intention to deport a foreigner is called deportation warning and it is ruled by Section 59 of the Residence Act. The general rule is to grant the foreigner between 7 and 30 days for his/her voluntary departure.
89.
For the cases of supervision of deportation see Section 58(3) of the German Residence Act.
90.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 58(3).
91.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 58a (1).
92.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 60a (1).
93.
According to No. 60a.2.1.1.1 of the General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), which is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SF-A001.pdf.
94.
Provided by Section 60(1) or (2) to (5) or (7) of the German Residence Act.
95.
According to No. 60a.2.1.2 of the General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), which is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SF-A001.pdf.
96.
Determined by Section 60a(6) of the Residence Act, only in specific cases, as follows:
A foreigner whose deportation has been suspended may not be permitted to pursue an economic activity if
1. 1.
  he has entered the country to obtain benefits under the Asylum Seekers Benefits Act,
2. 2.
  measures to terminate his stay cannot be carried out for reasons for which he is responsible or
3. 3.
  he is a national of a safe country of origin according to Section 29a of the Asylum Act and an asylum application which he filed after 31 August 2015 has been denied.
Foreigners shall in particular be responsible for reasons in accordance with sentence 1 no. 2 if they themselves brought about the obstacle to deportation by their own deceit concerning their identity or nationality or by furnishing false particulars.
Nevertheless, Section 18a defines the cases in which a temporary residence permit for the purpose of employment can be granted to qualified foreigners whose deportation has been suspended. In this sense, the employment the foreigner whose deportation has been suspended must be commensurate with his/her vocational qualification if the Federal Employment Agency has granted approval in accordance with Section 39. Also, some other conditions must be fulfilled, such as the command of German language, sufficient living space at the foreigner’s disposal, and also the absence of any links between the foreigner and extremist or terrorist organizations, among others, which are provided by Section 18a(1) of the Residence Act.
97.
See also: Marx (2015, pp. 474–475).
98.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). These restriction may be waived in order to preserve family unity, for example, or to attend a school, see Section 61(1) sentences 2 and 3.
99.
In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). This special rule is, though, numerus clausus, as affirmed by Huber et al. (2017, p. 342).
100.
The Treaty of Rome is available via https://ec.europa.eu/romania/sites/romania/files/tratatul_de_la_roma.pdf.
101.
It was through the Treaty of Maastricht that the definition of the European citizenship was defined on Article 17 of the Treaty Establishing the European Community, providing that: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship”, see: Hailbronner (2007, p. 313).
102.
One of the consequences of the inexistence of the direct legal bond between the individual citizens and the Union are movements such as the BREXIT.
103.
Article 67 (ex Article 61 TEC and ex Article 29 TEU)
1. 1.
  The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
2. 2.
  It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.
3. 3.
  The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
4. 4.
  The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. European Union (2012). Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, available via http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012E/TXT&from=DE.
104.
On the “europeanness” and on the relationship between European and national identification, see: Recchi (2015).
105.
The name Schengen refers to the small town in Luxemburg where the original Schengen Agreement was signed, see: White (2004, p. 8).
106.
In Boswell’s and Geddes’ opinion, the Schengen Agreement figures as a flourished example of innovation apart from the EU’s treaty framework that has been absorbed by the EU’s structure.
107.
Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas [2009] OJ L 243/1, (18).
108.
Commission Decision C(2010) 1620 final of 19.3.2010, establishing the Handbook for the processing of visa applications and the modification of issued visas.
109.
Article 45
(ex Article 39 TEC)
1. 1.
  Freedom of movement for workers shall be secured within the Union.
2. 2.
  Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. 3.
  It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
  
  (a)
  to accept offers of employment actually made;
  
  (b)
  to move freely within the territory of Member States for this purpose;
  
  (c)
  to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
  
  (d)
  to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. 4.
  The provisions of this Article shall not apply to employment in the public service.
Article 46

(ex Article 40 TEC)
The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 45, in particular:
1. (a)
  by ensuring close cooperation between national employment services;
2. (b)
  by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;
3. (c)
  by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned;
4. (d)
  by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.
110.
Consolidated version of the Treaty on the Functioning of the European Union – Protocols – Annexes – Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390.
111.
Needless to mention that a third-country national worker, even if he/she has permanent residence in any of the Member States, is not entitle to the freedom of movement guaranteed by Articles 45 and 46 of the TFEU.
112.
Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, OJ L 141, 27.5.2011.
113.
In this context, it is important to mention Eleanor Spaventa, when she classifies four phases that reflect on how the EU—mostly through its case law—developed its concept of European citizenship (namely, the market-citizen phase; the constituent phase; the consolidation phase and the reactionary phase). In the beginning, under the Maastricht Treaty, it was common to refer to the market-citizen, which is the EU citizen characterized by a broad interpretation of the economic migrant’s rights, i.e., EU migrants, playing their role as economic actors in EU Member States, would consequently have access to, for example, social, tax, and education rights. Spaventa then draws attention to the figure of the market-citizen, which lost its relevance during the constituent and consolidation phases, once not only the ECJ but also the EU’s institutions “shifted their rhetoric towards the ‘citizen’”. It was through the ECJ’s case law that the EU intended to free the EU citizenship from its market strings. In these cases, according to Spaventa, EU citizens began to be seen as individuals rather than migrants and economically inactive people also started to enjoy the same rights of “market-citizens”, culminating with the rights granted by Directive 2004/38. For more details on the development of the market citizen to the union citizen, including the most recent phase that refers to the reactionary phase, see: Spaventa (2017, pp. 204–209).
114.
Consolidated version of the Treaty on the Functioning of the European Union—Protocols—Annexes—Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390.
115.
Article 6 (ex Article 6 TEU)

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. European Union. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union - Consolidated version of the Treaty on the Functioning of the European Union - Protocols - Annexes - Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390.
116.
Charter of Fundamental Rights of the European Union OJ C 326, 26.10.2012, pp. 391–407.
117.
According to the presidency conclusions of the Tampere European Council (15–16 October 1999, available via http://www.europarl.europa.eu/summits/tam_en.htm#a), partnerships with countries of origin mean that the European Union “needs a comprehensive approach to migration addressing political, human rights and development issues in countries and regions of origin and transit. This requires combating poverty, improving living conditions and job opportunities, preventing conflicts and consolidating democratic states and ensuring respect for human rights, in particular rights of minorities, women and children. To that end, the Union as well as Member States are invited to contribute, within their respective competence under the Treaties, to a greater coherence of internal and external policies of the Union. Partnership with third countries concerned will also be a key element for the success of such a policy, with a view to promoting co-development”. This case could be an example of the EU’s role as an International Law actor, a global actor, and even as imperialist. See: Zielonka (2008).
118.
It was this fear, together with the lack of information on European citizenship and free movement, the “Euroscepticism”, among other reasons that led the UK to BREXIT. For more commentaries on this issue, see: Outhwaite (2018).
119.
Mostly because of the lack of migration policy in MERCOSUL dedicated to third country nationals.
120.
Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications. OJ L 255, 30.9.2005, pp. 22–142.
121.
Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems. OJ L 284, 30.10.2009, pp. 1–42.
122.
Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community, OJ L 209, 25.7.1998, pp. 46–49 and Directive 2014/50 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights. Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights, OJ L 128, 30.4.2014, pp. 1–7.
123.
Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2009/0313 final, Brussels, 2 July 2009, p. 3.
124.
Curtin and Manucharyan state that the so-called secondary legislation of the EU listed by article 288 TFEU is incomplete. Also, under the Treaty of Lisbon there is an incomplete hierarchy of legal acts, as embodied by articles 289, 290, and 291 TFEU. For more information on typology and on the hierarchy of EU’s legal acts after the Lisbon Treaty, see: Curtin and Manucharyan (2015).
125.
Consolidated version of the Treaty on the Functioning of the European Union—Protocols—Annexes—Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390, art. 288 TFEU.
126.
Regulations, decisions, recommendations and opinions, according to art. 288 of the TFEU.
127.
Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2009/0313 final, Brussels, 2 July 2009, p. 3.
128.
Freedom of Movement Act/EU of 30 July 2004 (Federal Law Gazette I p. 1950, 1986), last amended by Article 6 of the Act of 21 December 2015 (Federal Law Gazette I p. 2557).
129.
For detailed information on the German Freedom of Movement Act/EU and for the rights of entry and establishment of EU citizens in Germany, see: Hailbronner (2017, pp. 461–500).
130.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123.
131.
In fact, Rogers, Scannel and Walsh affirm that the Commission has identified some criteria for the determination of the unreasonableness of the burden an EU citizen may cause in a host Member State. According to the authors, Member States would have to carry out a proportionality test, in which duration of the social benefit, personal situation of the EU citizen, and the amount of the benefit should be evaluated. For more information, see: Rogers et al. (2012, pp. 195–196).
132.
Family reunion is also guaranteed by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union. OJ L 141, 27.5.2011, pp. 1–12.
133.
Or partner, in accordance with item (5) of the preamble of Directive 2004/38/EC, as well as with article 2 of the same Directive.
134.
Article 6
Right of residence for up to three months
1. 1.
  Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.
2. 2.
  The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.
135.
Generally provided by article 16 of Directive 2004/38/EC.
136.
Each Member State defines the application process of a residence card. In Germany, for example, the Freedom of Movement Act/EU establishes, in its Section 5 and 5a, the documents the immigrant has to present and the several requirements EU citizens and their dependents need for the issuing of documents that confirm their right of permanence within German territory, see: Hailbronner (2017, p. 468).
137.
The author refers to ECJ cases like Carpenter and S and G, that are detailed and commented in the article and that try to reduce this inequality.
138.
Consolidated version of the Treaty on the Functioning of the European Union—Protocols—Annexes—Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390.
139.
Consolidated version of the Treaty on the Functioning of the European Union—Protocols—Annexes—Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390.
140.
After cases C-47/08, C-50/08, C-53/08, C-54/08, C-61/08 and C-52/08, the ECJ defined some of the activities that should not be considered as connected directly and specifically with the exercise of official authority and, therefore, could not justify the exception to the free movement of EU citizens: (i) activities auxiliary or preparatory to the exercise of official authority; (ii) “certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves the discretionary and decision-making powers of public authorities intact”; and (iii) “certain activities which do not involve the exercise of decision-making powers, powers of constraint or powers of coercion” (Kaczorowska 2013, p. 745) The cases just mentioned above are related to the question whether the profession of notary is within the scope of the derogation provided by Article 51, as six respondent Member States limited the access to the profession of notary to their own nationals. The Court concluded that the activities notaries exercise are not related to the exceptions of Article 51 TFEU. More recently, this very same discussion was also led by cases C-575/16 Commission v Czech Republic; C-392/15 Commission v Hungary; C-342/15 Piringer; C-151/14 Commission v Latvia.
141.
Article 27
General principles
1. 1.
  Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. 2.
  Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
  
  The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
3. 3.
  In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.
4. 4.
  The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security, or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.
142.
The opinions of these authors go along with Giustiniani’s definition of expulsion. The author adopted a functional and broad approach to the concept of expulsion, in which it is comprised: deportation, refoulement, non-admission, reconduction to the border, removal from the territory, mainly because these measures share the same goal (expulsion stricto sensu). See: Giustiniani (2015, pp. 446–449). We must stress, though, that we agree with this broad approach of expulsion only when it refers to the effects it might produce under the light of the Directive. Out of the scope of the Directive we do believe in the differences made between expulsion, deportation, repatriation, among other measures, which are presented in Sect. 5.1 of this book.
143.
Being, therefore, the argument for limiting the application of foreign rules. See in this regard: Dolinger (2012, p. 90), and Ghodoosi (2016, pp. 698–699).
144.
Ghodoosi sets the discussion of the public policy definition in four contexts. The first one refers to the modern sense of public policy, which refers to those pursued and enacted by a government. The second one refers to “public policy as a mandatory rule that trumps the parties’ contractual agreement”, whereas the third one relates to Private International Law, in which public policy limits the application of foreign rules. The fourth context prevents the enforcement of foreign judgements or arbitral awards, see: Ghodoosi (2016, pp. 698–701). Dolinger, on the other hand (2012, p. 92), names these contexts as levels of application of public policy.
145.
For further information on the concept of domestic public policy and international public policy, see Dolinger (2012, pp. 90–110). It is important to mention that the four contexts presented by Ghodoosi in the previous footnote do not preclude the possibility of dividing the first one named by Ghodoosi into domestic public policy and international public policy, as Dolinger suggests.
146.
Ramos, following the lessons of Dolinger, believes that there are essential values that are advocated by a state that might derive from regional and/or global contexts. Therefore, the origin of the values proclaimed by a state may be divided into: national public policy, regional public policy, and international (or universal) public policy. The national one is based on the essential values produced by the state in its own forum; the regional one contemplates imperative values contained in norms produced by regional organizations, which he believes is the case of the European Union, and the international one is, as mentioned before, the one that contains essential values of the international community as a whole. See: Ramos (2018, pp. 329–330); and Dolinger (1986, pp. 205–232).
147.
C-41/74, Yvonne van Duyn v. Home Office.
148.
In this case also referring to the public health exception to the free movement.
149.
Important to mention that the public policy argument is most commonly pleaded by the Member States when these seek to expel EU nationals or their family members, as it also presupposes criminal behavior, see: Guild et al. 2014, p. 248).
150.
Such as Case C-50/06, Comm’n v. Netherlands; Case C-30/77, Regina v. Pierre Bouchereau; Case C-434/10, Petar Aladzhov v. Zamestnik director na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti, among others which are analyzed in Besters’ and Macenaite’s work (2013).
151.
It shall be considered, however, in accordance with case C 48/75 Royer, that failure to comply with registration requirements does not constitute “conduct threatening public policy and this cannot justify expelling an EU citizen”, see: Guild et al. (2014, pp. 254–255).
152.
Based on the values of a society, states often argue public policy because they try to achieve “certain public goals, such as promotion of education, prohibition of drug usage, increased economic efficiency, protection of basic rights, and many other policies”, see: Ghodoosi (2016, p. 699).
153.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123.
154.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123.
155.
On an in-depth-analysis of para. 2 of Article 27, including aspects such as: the proportionality that has to exist on the understanding of a genuine, present, and sufficiently serious threat; the necessity of basing the restriction on a “personal conduct”; the rule concerning previous criminal convictions; the degree of threat, as well as the ban on general preventive measures, see: Guild et al. (2014, pp. 257–263).
156.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123 (our emphasis).
157.
Even though the wording of Article 28 refers to “expulsion”, “presumably it would also apply if a State refuses to re-admit a person who still retains a right of residence or permanent residence in the host State, and is returning there after a visit to another State”. See: Guild et al. (2014, p. 264).
158.
See judgement of the case C-145/09, para. 47.
159.
On this dissention opinion, see: Kaczorowska (2013, pp. 754–755), and Guild et al. (2014, pp. 270–278).
160.
Rules of the case C-348/09.
161.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123.
162.
Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2009/0313 final, Brussels, 2 July 2009.
163.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123.
164.
In this case, the ECJ stated that the conditions for the application of the public policy exception were not fulfilled because the expulsion for life declared by a Greek court “automatically follows a criminal conviction” and did not consider the personal conduct of the defender or any possible danger that the defender could represent for the menace of public policy. It is important to note that the ECJ in this case exclusively considered that an automatic expulsion for life following a criminal conviction does not fulfill the conditions for the application of the public policy exception. For more comments on this decision, see: Rotaeche and Llorens (1999, pp. 357–364).
165.
Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). OJ L 190, 18.07.2002, pp. 1–20.
166.
For a review and explanation on the “refugee crisis”, which in our opinion figures rather as a crisis of asylum systems, see: Sola (2018).
167.
For an in-depth explanation on the main legal framework for the EU asylum system, see also: Hailbronner and Thym (2016, pp. 1023–1053).
168.
The Global Approach to Migration was not the first initiative of the EU after the Conclusions of Tampere in 1999. In fact, in 2000, “the first indication by the European Commission on how it intended to translate the Tampere milestones into concrete actions took the form of the Communication on a Community Immigration Policy COM (2000)757 of 22 November 2000”, see: Carrera (2009, p. 52). This communication already contained some points on the integration of TCN, just as many other documents that came after it, as for example the Communication (2001)387. In fact, Carrera considers both of these Communications the starting point for the development of European law on regular immigration, as well as of the EU framework on integration (Carrera 2009, p. 59) However, we opted for reducing the time frame concerning the history of protection of TCN within the EU, as we want to focus on the Directives’ provisions.
169.
Article 217: The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.
170.
In order to understand how and why these special treatments are compatible with the prohibition of nationality discrimination provided by Article 18 TFEU, see: Eisele (2014, pp. 190–212).
171.
Case C-12/86.
172.
Not to mention bilateral agreements between EU countries and third countries. In this regard, Sánchez affirms that it is hard to find a “pure” migration bilateral agreement, as not only privileges are provided by the treaties because of political and economic reasons, but also in order to strengthen diplomatic relations with countries linked by historical or colonial ties. See: Sánchez (2015, p. 180).
173.
Especially because these agreements might not only refer to legal migration, regarding TCNs admission and legal status, but also to agreements that fight against irregular migration, providing rules for repatriation, readmission, technical and political cooperation when managing migration flows. For further information on this topic, see: Sánchez (2015, p. 179).
174.
Just to name the most relevant ones, in which there are provisions that are comparable to the European citizenship rights: The European Economic Area Agreement, which covers Iceland, Liechtenstein and Norway; the Agreement on the free movement of persons with Switzerland and the Association Agreement with Turkey. For further information see: Kochenov and van den Brink (2015, p. 91). For a detailed explanation on the various EU Association Agreements and cooperation frameworks, see: Eisele (2014, pp. 189–275).
175.
In this case, EU immigration law in the sense of secondary legislation in EU law, which is legally binding upon Member States but that is “not a special kind of EU law that might be regarded as less legally binding upon Member States when [compared] to other Directives dealing with other European policies”, see: Carrera (2009, p. 151).
176.
Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection and repealing Council Regulation (EEC) No 311/76 on the compilation of statistics on foreign workers, OJ L 199, 31.7.2007, pp. 23–29.
177.
Data from the UK is not included. The tables the residence permits statistics was based on had its last update on 13 July 2019 and are available via http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_resfirst&lang=en.
178.
Curiously, Brazilians are in 10^th place in the list of main citizenships of TCNs granted first residence permits in the EU. The majority of them are residing in the EU for education reasons (41.6%), see: Eurostat (2017a).
179.
Such as, for example: Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 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, OJ L 132, 21.5.2016, pp. 21–57, as well as Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3.10.2003, pp. 12–18.
180.
The reference metadata is available via http://ec.europa.eu/eurostat/cache/metadata/en/migr_res_esms.htm.
181.
See definition of voluntary and forced migration in Sect. 2.1.1.
182.
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code). OJ L 77, 23.3.2016, pp. 1–52. Originally known, in 2006, as “Regulation (EC) No 562/2006 of the European Parliament and the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)”. The most recent version of the Regulation of 2016 was amended by Regulation (EU) 2017/458 of the European Parliament and of the Council of 15 March 2017. The latter amends Regulation (EU) 2016/399 as regards the reinforcement of checks against relevant databases at external borders.
183.
Article 6
Entry conditions for third-country nationals
1. 1.
  For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:
  
  (a)
  they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria:
  
  (i)
  its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived;
  
  (ii)
  it shall have been issued within the previous 10 years;
  
  (b)
  they are in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001 (25), except where they hold a valid residence permit or a valid long-stay visa;
  
  (c)
  they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully;
  
  (d)
  they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry;
  
  (e)
  they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds.
184.
As affirmed by Article 6(3) of the Schengen Borders Code.
185.
We believe so, even though Article 14(2) of the Schengen Borders Code affirms that the refusal of entry is subject to a substantiated decision stating the precise reasons for the refusal. Once the list of required documents for entry into the EU is a non-exhaustive one, the substantiated decision might be based on the necessity of a document that either does not exist in the TCN’s country of origin or cannot be fetched at the time of the admission into the EU territory.
186.
Except in some cases of derogation of the conditions described in paragraph (1), which are provided by Article 6(5), as, for example, cases in which the TCN is entering the territory of a Member State on humanitarian grounds, because of an international obligation or because of a Member State’s national interest, among other reasons.
187.
Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. OJ L 81, 21.3.2001, pp. 1–7. This Regulation has suffered successive amendments and corrections until 2014, which have been incorporated to the basic text.
188.
For further information on privileged and non-privileged visa rights of TCNs (the latter named by the author as Schengen Black List, also known as Schengen negative list) under a comparative approach, see: Eisele (2014, pp. 276–283).
189.
Council Directive 2003/109/EC of 25 November 2003 concerning the status of third- country nationals who are long-term residents. OJ L 16, 23.1.2004, pp. 44–45.
190.
See Articles 14 and 15 of the Directive.
191.
Preamble No. 4 of the Long-Term Directive.
192.
According to the Article mentioned, these rights are:
1. (a)
  access to employment and self-employed activity, provided such activities do not entail even occasional involvement in the exercise of public authority, and conditions of employment and working conditions, including conditions regarding dismissal and remuneration;
2. (b)
  education and vocational training, including study grants in accordance with national law;
3. (c)
  recognition of professional diplomas, certificates and other qualifications, in accordance with the relevant national procedures;
4. (d)
  social security, social assistance and social protection as defined by national law;
5. (e)
  tax benefits;
6. (f)
  access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing;
7. (g)
  freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security;
8. (h)
  free access to the entire territory of the Member State concerned, within the limits provided for by the national legislation for reasons of security.
193.
Even though the Long Term Directive does not define the term “legal residence”, the ECJ in its case Singh, C-502/10, stated that the legality or illegality of a TCN’s residence must be in accordance with (in the sense of must be defined by) the provisions of a Member State’s immigration law. For more details, see: Thym (2016, p. 441).
Also, according to Article 3.2 of the Directive, there are some cases in which the TCN might even be residing legally in the EU, but is still not entitled to the protection of the Directive, namely: TCNs who reside in the EU in order to pursue studies or vocational training; TCNs who legally reside in the EU but on the basis of temporary protection; TCNs who legally reside in the EU on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States; TCNs who are refugees or have applied for this status’ recognition; TCNs “who reside solely on temporary grounds such as au pair or seasonal worker, or as workers posted by a service provider for the purposes of cross-border provision of services, or as cross-border providers of services or in cases where their residence permit has been formally limited”; TCNs under diplomatic or consular protection.
194.
As stated by ECJ case C-40/11, Iida v Germany, according to Boeles et al. (2014, p. 177). According to Article 8(2) of the Directive, the long-term resident’s residence permit shall be permanent and shall be issued by Member States. The permit shall be valid for at least five years and shall be automatically renewable on expiry.
195.
As another evidence of the Directive’s strong economic and selective character, we can mention Article 3(2) (a)–(f), which determines that the Directive is not applied to TCNs who, among others, reside in a Member State in order to pursue studies or vocational training, or are authorized to reside in a Member State on the basis of temporary protection or refugee status.
196.
In order to understand the integration requirements intended under the terms of the Directive, see: Carrera (2009, pp. 175–183).
197.
As, for example, the right to form and join trade unions for the protection of his or her interest, as enshrined in the EU Charter of Fundamental Rights. See: Eisele (2014, p. 344).
198.
According to preamble No. 16 of the Directive.
199.
The parameters of interpretation of public policy and public security shall be the same as those used under the context of the Free Movement Directive (2004/38/EC). For more details, see: Wiesbrock (2010, p. 483).
200.
Article 12(3) of the Long-Term Directive.
201.
Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment. OJ L 155, 18.6.2009, pp. 17–29.
202.
The name “Blue Card“ was inspired by the US-American Green Card; the European card makes reference to the EU flag, which has a blue color. We must draw attention to the fact that the Blue Card does not provide as much as rights as the US American Green Card does. For more details and discussions on the Green Card and on legal immigration policies of the USA, see: Dobkin (2013).
203.
As determined by Article 6 of the Blue Card Directive. The Member State shall also decide whether applications for a Blue Card are to be made by the TCN and/or by his/her employer, as provided by Article 10.
204.
Article 2 (b) of the Blue Card Directive. Also, in order to apply for the Blue Card, the TCN may either reside outside the territory of the Member State to which he/she wishes to be admitted or the TCN is already residing in that Member State as holder of a valid residence permit or national long-stay visa (Article 10(2) of the Directive).
205.
Article 2 (g) of the Blue Card Directive.
206.
Article 2 (h) of the Blue Card Directive.
207.
It is important to note that cross border workers are excluded from the scope of the Blue Card Directive, see: Hailbronner and Herzog-Schmidt (2016, p. 772).
208.
According to Rottas and Givens (2015, p. 135), Germany is included in this category, receiving more high-skilled immigrants than people who do not even have a high school diploma.
209.
Limits to these rights are observed, for example, under Article 8(2) of the Blue Card Directive, which provides some priorities to national and EU workforce, as well as, for example, to TCNs owners of a long-term residence permit.
210.
Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State. OJ L 343, 23.12.2011, pp. 1–9, preamble No. (3).
211.
As provided in preamble (19) of the Single Permit Directive.
212.
It is important to bear in mind that Article 3(2) of the Directive contains a list of derogations, i.e., it states the group of people the Directive does not apply to, such as: EU citizens’ family members from third countries who make use of the right of free movement under the terms of Directive 2004/38/EC; TCNs who are applying for or are already beneficiaries of international or national protection; TCNs who are intra-corporate transferees, seasonal workers or au pairs, among others.
213.
Article 1(2) of the Single Permit Directive.
214.
In this regard see also Sánchez (2016, p. 891).
215.
The Directive is a relatively concise one and consists of 23 Articles structured in five chapters.
216.
According to Article 3(4) of the Returns Directive, the return decision is an administrative or judicial decision or act that states or declares the stay of a TCN as illegal, consequently imposing or stating an obligation to return.
217.
According to Article 6(1) of the Returns Directive.
218.
According to Article 7(1) of the Returns Directive.
219.
Or in cases where there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, as provided in Article 7(4) of the Returns Directive.
220.
Noting that the term expulsion is not used in the Returns Directive.
221.
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. OJ L 348, 24.12.2008, pp. 98–10, art. 3(3).
222.
Article 3(5) of the Returns Directive.
223.
According to the newest updates of the Schengen Borders Code, the conditions for entry are now provided in Article 6 of the Code.
224.
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. OJ L 348, 24.12.2008, pp. 98–10, Article 3(2).
225.
Although Article 6(1) of the Returns Directive only mentions an illegal stay within the territory of a Member State, we also believe an illegal entry also justifies a returning decision, as it can be interpreted when reading Article 3(2) of the Returns Directive.
226.
Article 2(2) of the Returns Directive.
227.
Article 2(2) of the Returns Directive.
228.
According to these authors, it has been debated whether internal criminal legislation of the Member States could not be used to penalize the illegal staying of a TCN in the territory of a Member State (in the sense that this possibility could debilitate the Returns Directive). This discussion only refers to penalties such as imprisonment and other forms of deprivation of liberty, as the Directive “does not preclude penalising illegal stays by third-country nationals by means of a fine that may be replaced by an expulsion order”. For more details on this discussion, see: Boeles et al. (2014), pp. 389–390.
229.
Including the possibility of detention, only possible “in order to prepare and/or carry out the removal process, if no other sufficient but less coercive measures can be applied in the concrete case, in particular, when there is a risk of absconding, or when the third-country national concerned avoids or hampers the preparation of return or the removal process.”, see: Boeles et al. (2014, p. 394).
230.
See preamble No. 14 of the Returns Directive.
231.
This decision has been taken by the ECJ in case C-146/14 Mahdi.
232.
Article 4 of Directive 2009/52/EC.
233.
Naturalization requirements can be consulted, for example, via http://www.bamf.de/DE/Willkommen/Einbuergerung/InDeutschland/indeutschland-node.html.
234.
We must note that Arcarazo’s work is of great importance for these studies, once he is one of the only academics to refer to these differences between the EU’s and MERCOSUL’s migration law frameworks.
235.
Expressions used by Chalmers et al. (2010, pp. 509–525).

References

Arcarazo DA (2015a) Civic citizenship reintroduced? The long-term residence directive as a post-national form of membership. Eur Law J 21(2):200–219
Google Scholar
Arcarazo DA (2015b) Toward a South American citizenship? The development of a new post-national form of membership in the region. J Int Aff 68(2):213–221
Google Scholar
Bauböck R (2014) The three levels of citizenship within the European Union. German Law J 15(5):751–764
Google Scholar
Besters M, Macenaite M (2013) Securing the EU public order: between an economic and political Europe. German Law J 14(10):2075–2090
Google Scholar
Bigo D (2005) Frontier controls in the European Union: who is in control? In: Bigo D, Guild E (eds) Controlling frontiers: free movement into and within Europe. Ashgate Publishing Limited, Hants, pp 49–99
Google Scholar
Bigo D, Guild E (2005) Policing at a distance: Schengen Visa Policies. In: Bigo D, Guild E (eds) Controlling frontiers: free movement into and within Europe. Ashgate Publishing Limited, Hants, pp 233–263
Google Scholar
Boeles P, den Heijer M, Lodder G, Wouters K (2014) European migration law. Intersentia, Cambridge
Google Scholar
Boswell C, Geddes A (2011) Migration and mobility in the European Union. Palgrave Macmillan, Basingstoke
Google Scholar
Brinkmann G (2015) Equal treatments on the ground of nationality for EU migrant workers. Eur J Migrat Law 17(2/3):239–257
Google Scholar
Camargo S (2010) O Processo de Integração Regional: fronteiras abertas para os trabalhadores do Mercosul. Revista Contexto Internacional 32(2):489–517
Google Scholar
Carrera S (2009) In search of the perfect citizen? The intersection between integration, immigration and nationality in the EU. Martinus Nijhoff Publishers, Leiden
Google Scholar
Chalmers D, Davies G, Monti G (2010) European Union law. Cambridge University Press, New York
Google Scholar
Cholewinski R, Taran P (2010) Migration, governance and human rights: contemporary dilemmas in the era of globalization. Refug Surv Q 28(4):1–33
Google Scholar
Corthaut T (2012) EU Ordre Public. Kluwer Law International, Alphen aan den Rijn
Google Scholar
Costello C (2011) Citizenship of the union: above abuse? In: De la Feria R, Vogenauer S (eds) Prohibition of abuse of law – a new general principle of EU law? Hart Publishing, Oxford, pp 321–353
Google Scholar
Cunha A (2017) A new border for Portuguese workers: EEC accession and freedom of movement. In: Calandri E, Paoli S, Varsori A (eds) Peoples and borders – seventy years of migration in Europe, from Europe, to Europe [1945–2015]. Nomos, Baden-Baden, pp 237–254
Google Scholar
Curtin D, Manucharyan T (2015) Legal acts and hierarchy of norms in EU law. In: Arnull A, Chalmers D (eds) The Oxford handbook of European Union law. Oxford University Press, Oxford, pp 103–125
Google Scholar
de Campos JM, de Campos JLM (2010) Manual de Direito Europeu. Wolters Kluwer Portugal/Coimbra Editora, Coimbra
Google Scholar
Dobkin DS (2013) Behind the green card: how immigration policy is killing the American dream. Algora Publishing, New York
Google Scholar
Dolinger J (1986) Ordem pública mundial: ordem pública verdadeiramente internacional no direito internacional privado. Revista de Informação Legislativa 23(90):205–232
Google Scholar
Dolinger J (2012) Private international law in Brazil. Kluwer Law International, Alphen aan den Rijn
Google Scholar
Dougan M (2011) Some comments on the idea of a general principle of union law prohibiting abuses of law in the field of free movement for union citizens. In: De la Feria R, Vogenauer S (eds) Prohibition of abuse of law – a new general principle of EU law? Hart Publishing, Oxford, pp 355–362
Google Scholar
Eichenhofer J, Hörich C (2018) Vom Zuwanderungs- zum Einwanderungsgesetz? Vorschlag einer Dogmatik für ein neues Einwanderungsrecht. Beichel-Benedetti S, Janda C (eds) Hohenheimer Horizonte – Festschrift für Klaus Barwig, pp 428–441
Google Scholar
Eisele K (2014) The external dimension of the EU’s migration policy. Different legal positions of third-country nationals in the EU: a comparative perspective. Brill Nijhoff, Leiden
Google Scholar
European Union (2012) Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union – Consolidated version of the Treaty on the Functioning of the European Union – Protocols – Annexes – Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 – Tables of equivalences. Official Journal C 326, 26/10/2012, p. 1–390, available via http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012E/TXT&from=DE
Eurostat (2017a) Residence permits for non-EU citizens. New high in first residence permits issued in the EU Member States in 2016. Main beneficiaries from Ukraine, Syria and the United States. Eurostat News Release No. 174. Available via http://ec.europa.eu/eurostat/documents/2995521/8456381/3-16112017-BP-EN.pdf/e690a572-02d2-4530-a416-ab84a7fcbf22
Fernandes CV, Silva JCJ (2013) Trânsito de trabalhadores e migrações: um estudo comparativo entre Mercosul e União Europeia. In: Gadelha RMAF (ed) Mercosul a Unasul – avanços do processo de integração. EDUC, São Paulo, pp 359–383
Google Scholar
Germany. Federal Office for Migration and Refugees (2018) Migration, Integration, Asylum. Political Developments in Germany 2017. Annual Policy Report by the German National Contact Point for the European Migration Network (EMN)
Google Scholar
Ghodoosi F (2016) The concept of public policy in law: revisiting the role of the public policy Doctrine. Nebraska Law Rev 94(685):685–736
Google Scholar
Giustiniani FZ (2015) Expulsion and the Fundamental Right of Irregular Migrants: Critical Notes in the margins of the Work of the International Law Commission Work of the “Expulsion of Aliens”. In: Goodwin-Gill GS, Weckel P (eds) Protection des migrants et des réfugiés au XXI^e siècle – aspects de droit international / Migration and Refugee Protection in the 21^st Century – International Legal Aspects. Academie de Droit international de la Haye / The Hague Academy of International Law. Martinus Nijhoff Publishers, Leiden/Boston, pp 445–484
Google Scholar
Groenendijk K (2015) Equal treatment of workers from third countries: the added value of the Single Permit Directive. ERA Forum J Acad Eur Law 16(4):547–561
Google Scholar
Groß T (2014) Das Ausländerrecht zwischen obrigkeitsstaatlicher Tradition und menschenrechtlicher Herausforderung. Archiv des Öffentlichen Rechts 139(3):420–445
Google Scholar
Guild E (2013) EU immigration and the new EU treaty framework. In: Juss SS (ed) The Ashgate research companion to migration law, theory and policy. Ashgate Publishing, Surrey, pp 43–59
Google Scholar
Guild E, Peers S, Tomkin J (2014) The EU citizenship directive: a commentary. Oxford University Press, Oxford
Google Scholar
Hailbronner K (2006) The EU Directive on free movement and access to social benefits. CESifo DICE Report 4(4):8–13
Google Scholar
Hailbronner K (2007) Free movement of EU nationals and union citizenship. In: Ryszard C, Perruchoud R, MacDonald E (eds) International migration law: developing paradigms and key challenges. T.M.C. Asser Press, The Hague, pp 313–328
Google Scholar
Hailbronner K (2017) Asyl- und Ausländerrecht. W. Kohlhammer, Stuttgart
Google Scholar
Hailbronner K, Herzog-Schmidt J (2016) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C.H. Beck/Hart/Nomos, München, pp 764–835
Google Scholar
Hailbronner K, Thym D (2016) Legal framework for EU Asylum Policy. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C. H. Beck/Hart/Nomos, München, pp 1023–1604
Google Scholar
Hampshire J (2016a) European migration governance since the Lisbon treaty: introduction to the special issue. J Ethn Migr Stud 42(4):537–553
Google Scholar
Henry G, Pastore F (2014) The governance of migration, mobility and asylum in the EU: a contentious laboratory. In: Tocci N (ed) Imagining Europe: towards a more united and effective EU. Edizioni Nuova Cultura, Rome, pp 163–198
Google Scholar
Huber B, Eichenhofer J, Endres de Oliveira P (2017) Aufenthaltsrecht. C. H. Beck, München
Google Scholar
Inghammar A (2010) The employment contract revisited. Undocumented migrant workers and the intersection between international standards, immigration policy and employment law. Eur J Migr Law 12:193–214
Google Scholar
Kaczorowska A (2013) European Union law. Routledge, London
Google Scholar
Kahanec M, Zimmermann KF (2010) Migration in an enlarged EU: a challenging solution? In: Keereman F, Szekely I (eds) Five years of enlarged EU – a positive sum game. Springer, Heidelberg, pp 63–94
Google Scholar
Kochenov D, van den Brink M (2015) Pretending there is no union: non-derivative quasi-citizenship rights of third-country nationals in the EU. In: Thym D, Zoeteweij-Turhan M (eds) Rights of third-country nationals under EU association agreement. Brill Nijhoff, Leiden/Boston, pp 65–100
Google Scholar
Kostakopoulou T (1998) European citizenship and immigration after Amsterdam: openings, silences, paradoxes. J Ethn Migr Stud 24(4):639–656
Google Scholar
Longo M (2013) Right of way? Defining freedom of movement within democratic societies. In: Guild E, Niessen J (eds) Democratic citizenship and the free movement of people. Martinus Nijhoff Publishers, Leiden, pp 31–56
Google Scholar
Lutz F (2016) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. Articles 1-11, 14 and 18. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C. H. Beck/Hart/Nomos, München, pp 658–763
Google Scholar
Marx R (2015) Aufenthalts-, Asyl-, und Flüchtlingsrecht. Nomos, Baden-Baden
Google Scholar
Modolo V (2015) O MERCOSUL Importa. A Política Regional de Mobilidade Territorial. Contexto Internacional (PUC) 37(2):571–595. Available via http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0102-85292015000200571&lng=en&nrm=iso
Moses JW (2011) Migration in Europe. In: Tiersky R, Jones E (eds) Europe today: a twenty-first century introduction. Rowman & Littlefield Publishers, New York, pp 371–397
Google Scholar
Neal AC (2013) Freedom of movement for employers and employees in the European Union: some observations from the perspective of a high-wage economy. Eur Labour Law J 4(1):33–71
Google Scholar
Neundorf K (2018) Anerkennung ausländischer Bildungs- und Berufsabschlüsse. In: v Harbou F, Weizsäcker E (eds) Einwanderungsrecht – Das Recht der Arbeits- und Bildungsmigration. C. H. Beck, München, pp 69–98
Google Scholar
Niessen J (2000) The Amsterdam treaty and NGO responses. Eur J Migr Law 2(2):203–214
Google Scholar
Olsson PH (2016) Introduction to the Directives. In: Blanpain R, Hendrickx F (eds) National effects of the implementation of EU Directives on labour migration from third countries. Kluwer Law International BV, Alphen aan den Rijn, pp 9–34
Google Scholar
Outhwaite W (2018) Migration crisis and “Brexit”. In: Menjívar C, Ruiz M, Ness I (eds) The Oxford handbook of migration crises. https://doi.org/10.1093/oxfordhb/9780190856908.013.7
Pagenstecher C (1996) Die ‘Illusion’ der Rückkehr. Zur Mentalitätsgeschichte von ‘Gastarbeit’ und Einwanderung. Soziale Welt 47(2):149–179
Google Scholar
Peers S (2015) EU migration law and the EU/Turkey association agreement. In: Thym D, Zoeteweij-Turhan M (eds) Rights of third-country nationals under EU association agreement. Brill Nijhoff, Leiden, pp 202–222
Google Scholar
Perruchoud R (2012) State sovereignty and freedom of movement. In: Opeskin B, Perruchoud R, Redpath-Cross J (eds) Foundations of international migration law. Cambridge University Press, Cambridge, pp 123–151
Google Scholar
Pich PL (2007) La Política de Integración de la Unión Europea. Migraciones 22:221–256
Google Scholar
Ponert K (2018) Migration zum Zweck der Erwerbstätigkeit. In: v Harbou F, Weizsäcker E (eds) Einwanderungsrecht – Das Recht der Arbeits- und Bildungsmigration. C. H. Beck, München, pp 11–46
Google Scholar
Ramos AC (2018) Curso de Direito Internacional Privado. Saraiva Educação, São Paulo
Google Scholar
Recchi E (2015) Mobile Europe – the theory and practice of free movement in the EU. Palgrave Macmillan, Basingstoke
Google Scholar
Ristea O-E (2011) Free movement of EU citizens: limitations on grounds of public policy, public security and public health. Chall Knowl Soc 1(1):724–736
Google Scholar
Rodríguez AA (2000) La nueva ley española de extranjería ¿ruptura e incumplimiento de Tampere? ¿Innovación o seguimiento del modelo italiano? Migraciones. Revista del Instituto Universitario de Estudios sobre Migraciones 7:89–135
Google Scholar
Rogers N, Scanell R, Walsh J (2012) The free movement of persons in the enlarged European Union. Sweet & Maxwell/Thompson Reuters, London
Google Scholar
Rotaeche CG, Llorens FB (1999) Comments on the Donatella Calfa Case (C-348/96 of 19 January 1999). Eur J Migr Law 1:357–364
Google Scholar
Rottas A, Givens T (2015) High-skilled migration. A new way forward for Europe, the United States, and the World. In: Arcarazo DA, Wiesbrock A (eds) Global migration. Old assumptions, New dynamics, Vol 3. Praeger, Santa Barbara, pp 133–151
Google Scholar
Sánchez SI (2015) Migration agreements between the European Union and third states. In: Goodwin-Gill GS, Weckel P (eds) Protection des migrants et des réfugiés au XXI^e siècle – Aspects de droit international/Migration and Refugee Protection in the 21^st Century – International Legal Aspects. Academie de Droit international de la Haye/The Hague Academy of International Law. Martinus Nijhoff Publishers, Leiden/Boston, pp 167–194
Google Scholar
Sánchez SI (2016) Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C. H. Beck/Hart/Nomos, München, pp 880–927
Google Scholar
Schubert C, Schmitt L (2016) The German regulations on labour migrations and the impact of the EU directives on labour migration thereon. In: Blanpain R, Hendrickx F (eds) National effects of the implementation of EU directives on labour migration from third countries. Kluwer Law International BV, Alphen aan den Rijn, pp 35–76
Google Scholar
Sola A (2018) The 2015 refugee crisis in Germany: concerns about immigration and populism. SOEP – Papers on Multidisciplinary Panel Data Research, No. 966, Deutsches Institut für Wirtschaftsforschung (DIW), Berlin
Google Scholar
Spaventa E (2011) Comments on abuse of law and the free movement of workers. In: De la Feria R, Vogenauer S (eds) Prohibition of abuse of law – a new general principle of EU law? Hart Publishing, Oxford, pp 315–320
Google Scholar
Spaventa E (2015) The free movement of workers in the twenty-first century. In: Arnull A, Chalmers D (eds) The Oxford handbook of European Union law. Oxford University Press, Oxford, pp 457–476
Google Scholar
Spaventa E (2017) Earned citizenship – understanding Union citizenship through its scope. In: Kochenov D (ed) EU citizenship and federalism – the role of rights. Cambridge University Press, Cambridge, pp 204–225
Google Scholar
Szabados T (2017) National Courts in the frontline: abuse of rights under the citizens’ rights directive. Utrecht J Int Eur Law 33(85):84–102
Google Scholar
Thym D (2015) Constitutional foundations of the judgements on the EEC-Turkey association agreement. In: Thym D, Zoeteweij-Turhan M (eds) Rights of third-country nationals under EU association agreement. Brill Nijhoff, Leiden, pp 13–38
Google Scholar
Thym D (2016) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C. H. Beck/Hart/Nomos, München, pp 427–519
Google Scholar
v Harbou F, Weizsäcker E (2018) Einleitung. In: v Harbou F, Weizsäcker E (eds) Einwanderungsrecht – Das Recht der Arbeits- und Bildungsmigration. C. H. Beck, München, pp 1–9
Google Scholar
van Calster G (2016) European private international law. Hart Publishing, Oxford
Google Scholar
Weber H (2015) Could immigration prevent population decline? The demographic prospects of Germany revisited. Comp Popul Stud 40(2):165–190
Google Scholar
Weizsäcker E (2018) Migration zum Zweck des Studiums und der Berufsausbildung. In: v Harbou F, Weizsäcker E (eds) Einwanderungsrecht – Das Recht der Arbeits- und Bildungsmigration. C. H. Beck, München, pp 47–56
Google Scholar
White RCA (2004) Workers, establishment, and services in the European Union. Oxford University Press, Oxford
Google Scholar
Wiesbrock A (2010) Legal migration to the European Union. Martinus Nijhoff Publishers, Leiden
Google Scholar
Ziegler KS (2011) ‘Abuse of Law’ in the context of the free movement of workers. In: De la Feria R, Vogenauer S (eds) Prohibition of abuse of law – a new general principle of EU law? Hart Publishing, Oxford, pp 295–314
Google Scholar
Zielonka J (2008) Europe as a global actor: empire by example? Int Aff 84(3):471–484
Google Scholar

Download references

Author information

Authors and Affiliations

Berlin, Germany
Emília Lana de Freitas Castro

Authors

Emília Lana de Freitas Castro
View author publications
You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Lana de Freitas Castro, E. (2020). The Legal and Normative Framework on Migration in Germany and in the European Union. In: Transnational Law of Human Mobility. Springer, Cham. https://doi.org/10.1007/978-3-030-46608-4_5

Download citation

DOI: https://doi.org/10.1007/978-3-030-46608-4_5
Published: 01 August 2020
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-46607-7
Online ISBN: 978-3-030-46608-4
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics