The idea to adopt an ‘EU immigration code’ has been put forward by the Commission on several occasions. The first one was in the 2009 Communication on “An area of freedom, security and justice serving the citizen: Wider freedom in a safer environment”, which stipulated,
The EU must strive for a uniform level of rights and obligations for legal immigrants comparable with that of European citizens. These rights, consolidated in an immigration code, and common rules to effectively manage family reunification are essential to maximise the positive effects of legal migration for the benefit of all stakeholders and will strengthen the Union’s competitiveness.125
It reappeared in the Communication on “Delivering an area of freedom, security and justice for Europe’s citizens: Action Plan Implementing the Stockholm Programme” of April 2010,126 which stated,
Further steps could be taken to codify and streamline the substantive conditions for admission, as well as of the rights of third country nationals. This would be a step towards a ‘single area of migration’, with the aim of facilitating intra-EU mobility of third country nationals, including through mutual recognition of national permits.127
Despite these reiterated calls, an EU immigration code has not materialised. Member States’ hesitation to codify rules in this area have also by and large predominated. During the last eight years, no further reference to a ‘code’ has been made in any subsequent Commission policy document. The academic literature has however emphasised and recognised the positive effects that such consolidation and mainstreaming of the EU legal and labour migration acquis would entail. A code could provide not only a more ambitious harmonisation than the currently existing rules provide.128 It would have the potential to overcome the current sectoral nature of EU policy and seek to put into practice the EU fairness and non-discrimination principle through a more uniform level of rights and working conditions for all third-country nationals in light of international, regional and EU standards.129
Instead, the Commission called for the above-mentioned ‘Legal Migration Fitness Check’, which is still currently in preparation. Still, some preliminary results can be highlighted based on publicly available
125 European Commission (2009), An area of freedom, security and justice serving the citizen: Wider freedom in a safer environment, COM(2009) 262, Brussels, 10.6.2009.
126 European Commission (2010), Delivering an area of freedom, security and justice for Europe’s citizens: Action Plan Implementing the Stockholm Programme, COM(2010) 171 final, Brussels, 20.4.2010.
127 Ibid., p. 4.
128 S. Peers (2012), “An EU Immigration Code: Towards a Common Immigration Policy”, European Journal of Migration and Law, Vol. 14, No. 1, pp. 33–61; S. Peers (2014), “An EU Immigration Code: Towards a Common Immigration Policy”, in S. Carrera, E. Guild and K. Eisele (eds), Rethinking the Attractiveness of EU Labour Immigration Policies – Comparative Perspectives on the EU, the US, Canada and Beyond, CEPS Paperback, CEPS, Brussels, pp. 100–110.
documents related to the ‘Fitness Check’,130 inputs and summaries of public consultations,131 as well as non-publicly disclosed information obtained during semi-structured interviews with European Commission and European Parliament representatives.132 When examining ‘internal coherency’ gaps in the EU legal migration acquis, the European Commission in its preliminary finding of the Fitness Check has acknowledged that specific equal treatment provisions in each sectoral directive, as well as their specific restrictions, including the length of stay, re-entry, etc. leads to fragmentation and incoherences (see Chapter 3).
The preliminary findings of the Commission’s Fitness Check confirm that the existing EU policy and legal setting dealing with the conditions of entry and residence of TCNs, and particularly those instruments covering employment-related aspects, are characterised by fragmentation, differentiation and multi-layered migratory statuses, with national schemes for highly skilled workers often running in parallel with EU Blue Card Scheme. The interviews confirmed that, this differentiation does not seem justified in all cases and sometimes seem to have been rather the result of negotiations with Member States in the Council of the EU.133 The interviewees representing European Parliament and International organisations went a step further, stating that there is a clear indication of the existence of unjustified differential treatment which amounts to unlawful discrimination against third-country nationals.134 To conclude, one of the key findings emerging from this Chapter is that the EU sectoral approach to legal migration leads to inequality in the treatment of different administrative categories (statuses) of third-country workers, and between these workers and EU citizens. This leads to a ‘differential treatment by design’ in EU policy, according to which TCNs are subject to differential levels of labour standards and working conditions depending on whether they qualify and meet all the conditions for holding an EU highly qualified/skilled status. However, it was highlighted in the written comments drafted by the Commission in response to the final draft of this Research Paper that “this is generally not in line with the conclusions of the Fitness Check”.135
This analysis begs the question as to whether the differential treatment which is left ‘by design’ in EU legal and labour migration policy is unjustified and is tantamount to unlawful discrimination. This is
130 European Commission (2015), “Regulatory Fitness and Performance Programme (REFIT) – State of Play and Outlook – REFIT Scoreboard”, Commission Staff Working Document, SWD(2015) 110 final, annexed to the Communication on Better Regulation for Better Results – An EU agenda, COM(2015) 215 final, Strasbourg, 19.5.2015; European Commission (2016), “Evaluation Roadmap – REFIT Legal Migration Fitness Check”, Working Document. (https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we- do/policies/legal_migration/2016_home_199_fitnesscheck_legal_migration_en.pdf); European Commission (2017), “Fitness Check Legal Migration: Consultation Strategy”, Brussels, 01.02.2017 (https://ec.europa.eu/home- affairs/sites/homeaffairs/files/what-we-do/policies/legal_migration/fitness_check_legal_migration_-
_consultation_strategy_1.2.2017_en.pdf).
131 European Commission (2017), Official website for Public Consultation. 17.09.2017 (https://ec.europa.eu/home- affairs/content/consultation-european-unions-eu-legislation-legal-migration-non-eu-citizens-fitness-check- eu_en); European Commission (2017), Legal Migration Fitness Check, Summary of Replies to the public consultation on legal migration by non-EU citizens (https://ec.europa.eu/home- affairs/sites/homeaffairs/files/e-library/documents/policies/legal-migration/summary_of_replies_en.pdf). 132 Interviews with European Commission (1), (2), (3).
133 Interviews with European Commission (1), (2), (3).
134 Interview with International Labour Organisation 09.03.2018; Interview with UN Special Procedures/Rapporteur 23.02.2018. Interview with European Parliament, MEP active on legal migration directives (1) , 31.01.2018 and MEP active on legal migration directives (2) 28.02.2018.
135 European Commission (2018) Comments of DG HOME B1 Unit on this Research Paper, received on 11 of December, 2018, p. 5.
particularly crucial in cases where discrimination may become ‘systematic’ or institutional across EU Member States. Chapters 2 and 3 of this Research Paper examine the main benchmarks for conducting this ‘legality check’, and identify the main challenges and open questions that the current EU framework poses to international and regional human rights and labour standards.