Kortukova T.O. Legal Regulation of the Common Immigration Policy of the European Union. – Qualification Scientific Work on the Rights of Manuscript.
The thesis for a degree of the doctor of philosophy on a specialty 293 «International law». – Kyiv University of Law of the National Academy of Sciences of Ukraine; Taras Shevchenko National University of Kyiv, Kyiv, 2021.
The thesis is devoted to theoretical, legal and practical aspects of regulating the common EU immigration policy. The concepts of forming a common EU immigration policy are studied. The characteristic features of the common immigration policy of the EU are highlighted. Immigrants and refugees have been shown to be separate groups to which different legal provisions apply and the issue of asylum is not part of the common immigration policy.
The EU’s common immigration policy is defined as a set of legal acts issued by the EU institutions in the field of legal immigration, combating illegal migration and human trafficking, readmission and return. At the same time, the adoption of soft law acts and the partial enshrinement of the integration of migrants in secondary legislation is intended to encourage EU member states to develop a policy of integration of migrants.
All EU rules in the field of common immigration policy are divided into: rules governing legal immigration; norms governing the fight against illegal migration and human trafficking; rules governing readmission and return. The issue of integration of immigrants is an additional component of the common immigration policy, for which the EU can adopt acts of recommendation.
The correlation between international law and European Union legislation on immigration policy is studied. In particular, the UN Global Compact on safe, orderly and regular migration in 2018, which led to a division of positions of EU member states on its adoption, was analyzed, which is evidence of the low level of solidarity within the union.
The EU Court has been shown to play an important role in the interpretation and implementation of EU immigration law by EU Member States. This is reflected in the large number of issues it addresses and raises, in particular in the field of border management; visa issues; issues related to the return of third-country nationals staying illegally in the EU, etc.
The general principles of EU law in the field of common immigration policy
are analyzed as: the principle of empowerment, which includes the principles of subsidiarity and proportionality; the principle of non-discrimination; the principle of respect for human rights; the principle of legal certainty. The author’s definition of the selected sectoral principles in the field of common immigration policy is proposed: the principle of solidarity, the principle of security, the principle of freedom of the EU to decide on the admission of third-country nationals to its territory; the principle of family unity, the principle of integration of migrants into the host society.
The periodization of the common immigration policy is singled out, which includes four stages: the first stage of the formation of the common immigration policy (1951–1999) is characterized by the regulation of immigration issues at the national and intergovernmental levels. The second phase (1999-2009) began with the entry into force of the Amsterdam Treaty and the creation of an area of freedom, security and justice, which is part of a common immigration policy, and lasted until the entry into force of the Lisbon Treaty in 2009. Special for this period is the development of a common EU immigration policy and the transition of immigration regulation to the supranational level. During the third period (2009-2020), the Lisbon Treaty laid a modern legal basis for regulating the common immigration policy and outlined the EU’s competence in this area. The fourth period begins in 2020 and is characterized by numerous restrictions on immigration flows, due to the need to combat the spread of coronavirus infection.
Given the demographic challenges in the EU, in particular the aging population, the EU is interested in attracting legal migrants to its territory. To this end, the Union has developed migration legislation. At the same time, the reform of legislation in this area is aimed at facilitating access to the EU and expanding the rights of third-country nationals.
Particular attention is paid to EU cooperation with third countries in the field
of immigration policy, in particular, in the framework of the Global Approach to Migration and Mobility in 2011. Its practical implementation is carried out in accordance with mobility partnerships and joint migration and mobility agendas. The paper makes a comparative analysis of such programs and found that both programs are aimed at resolving visa issues and issues of return and readmission of illegal migrants. However, the Mobility Partnership includes negotiations on visa facilitation and readmission agreements, while the Common Agenda on Migration and Mobility does not include these issues.
A new approach to EU cooperation with third countries is the framework partnership on migration. Their main difference from mobility partnerships and joint migration and mobility agendas is that they are country-specific, taking into account its situation and needs.
Given the extensive conceptual framework for the return of persons illegally residing in the EU or who have illegally crossed the EU border, the paper explains the main differences between the concepts of «extradition», «voluntary departure», «voluntary return», «removal», «removal», «return».
It is studied that EU member states coordinate national migration policy and establish a dialogue on migration issues within the framework of mechanisms of interstate consultations on migration, although the political nature of cooperation and irregular meetings somewhat reduce the effectiveness of such a mechanism.
It was found that the Europeanization of Ukraine’s immigration policy was caused, in particular, by Ukraine’s cooperation with the European Union in the field of readmission, visa liberalization, strengthening cooperation with the European Border and Coast Guard, entry into force of the Association Agreement, etc.
Key words: International Law, EU immigration legislation, third country national, EU acquis, Association Agreement.