Abstract
The EU is not a federal state but as the competences of the EU have been extended to the field of immigration and as it has adopted an ever increasing number of measures in the field of immigration, the position can be loosely assimilated to that of a federal state. The EU, while consisting of 28 sovereign states which have entered into an international agreement to cede sovereignty in a number of areas to it, nonetheless enjoys a system of law which requires the Member States faithfully to apply EU law in the area of immigration. While some areas of immigration are not regulated by the EU (as yet) such as low skilled migration, many others are.
Once the transitional periods for national implementation of EU directives and regulations have past, the Member States are obliged to apply EU law rather than national law. If the authorities apply the incorrect legal regime, then their courts are under a duty to correct the error and in doubt can request clarification from the Court of Justice of the European Union. In this chapter, I will examine how this system works as regards migration to the EU. I will examine the scope of EU law in the field and how it has been applied in the Member States—where the strengths and weaknesses of the system are and how the legal challenges are resolved. I will seek to draw some broad conclusions on how the EU resolves issues of divergence and difference within the 28 Member States as regards migration.
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Notes
- 1.
See http://www.federalists.eu/ (visited 1 July 2012).
- 2.
See http://www.federalunion.org.uk/federalism/ (visited 1 July 2012).
- 3.
COM(2011)729 final.
- 4.
Soon to be 28 when Croatia joins the EU in 2013.
- 5.
C-292/89 Antonissen [1991] ECR I-745.
- 6.
C-68/89 Commission v Netherlands [1991] ECR I-02637.
- 7.
C-22/08 Vatsouras [2009] ECR I-4585.
- 8.
C-157/89 Pieck [1980] ECR I-02171.
- 9.
C-145/09 Tsakouridis 23 November 2010.
- 10.
152/73 Sotigiu v Deutsche Bundespost ECR [1974] 153; 149/79 Commission v Belgium ECR [1980] 3881.
- 11.
C-184/99 Grzelczyk [2001] ECR I-6193.
- 12.
EUROSTAT Statistics in Focus 34/2011, Luxembourg 2011.
- 13.
- 14.
Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovakia and Slovenia.
- 15.
European Commission Report on the Functioning of the Transitional Arrangements on Free Movement of Workers from Bulgaria and Romania Brussels 11 November 2011, COM(2011)729 final.
- 16.
European Commission: Communication from the Commission to the Council and the European Parliament—Recommendation of the European Commission on Turkey’s progress towards accession COM(2004) 656.
- 17.
C-370/90 Surinder Singh ECR [1992] 265; C-291/05 C Eind [2007] ECR I-10719.
- 18.
C-256/11 Dereci (not yet reported) 15 November 2011.
- 19.
Now Articles 78 and 79 TFEU.
- 20.
Directive 2011/51.
- 21.
This could also include re-employment for the first 12 months.
- 22.
COM(2011) 585 final.
- 23.
Directive 2003/109, discussed above only applies to third country nationals who have already completed 5 years residence in one Member State and thus not to first admission to the territory of the Member States.
- 24.
In their turn, higher professional qualifications are defined as meaning qualifications attested by evidence of higher education qualifications or by at least 5 years professional experience of a level comparable to higher qualifications and relevant in the profession or sector.
- 25.
Directive 2011/51 which extends the application of Directive 2003/109 to beneficiaries of international protection.
- 26.
COM(2010)314 final.
- 27.
Article 8 permits Member States to delay family reunification until the sponsor has stayed lawfully for 2 years in their territory, and there is a derogation where national law so provided at the same of adoption of the directive of a waiting period of 3 years.
- 28.
COM(2008)610 final.
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Guild, E. (2014). Immigration Regulation as a Battleground: The European Union’s Anxiety over Federalism. In: Baglay, S., Nakache, D. (eds) Immigration Regulation in Federal States. International Perspectives on Migration, vol 9. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-8604-1_11
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