Legislation at European level

The EU passes legislation in four areas of migration policy:

Free movement within the European Union

Nationals of a member state of the European Union have the right to live and work in all other EU member states with almost no restrictions or the need for a special permission. The same rules and conditions apply to them as to the receiving country’s own nationals. Since freedom of movement is a core element of Union citizenship, it is considered to be very important and can be limited only under strict conditions. Union citizens live in the European Union on the basis of a civil right. Under the Charter of Fundamental Rights of the European Union, the right to free movement is a fundamental right. Union citizenship is therefore a constituent element of being a national of a member state. Any restriction of this fundamental right is subject to strict conditions. In the European Union, Directive 2004/38/EC regulates the details of the freedom of movement. In Germany, the directive is implemented in national law by the Act on the General Freedom of Movement for EU Citizens (Gesetz über die allgemeine Freizügigkeit von Unionsbürgern).

Open borders in the Schengen area

Open borders are a very visible feature of European integration. As a rule, there are no border checks at the internal borders between the countries that belong to the Schengen area. This makes it possible for hundreds of thousands of commuters every day and millions of tourists every year to travel within the European Union without queuing or waiting at the borders. A functioning Schengen area without border checks requires common rules for entry and border crossings. Therefore, the Schengen countries agreed on compensatory measures which form what is known as the Schengen standard. They include:

• Harmonising and strengthening the protection of external borders: All Schengen countries apply the same high Schengen standards when they monitor and conduct border checks at their borders with non-Schengen countries.
• Cross-border police cooperation: The police, for example, are allowed to surveil and pursue suspicious persons across the internal borders.
• Creation of an automated system to search for missing and wanted persons and objects, known as the Schengen Information System (SIS)
• Common visa and asylum policy: This includes for example the Schengen visa and common rules for entry and residence. The Schengen countries have agreed on uniform lists of countries whose nationals can enter for a short stay without requiring a visa. Visas are issued and managed according to uniform rules. Visa and residence permits have the same layout in all Schengen countries. In addition, the rules for processing asylum claims must be as uniform as possible.

The Schengen area is named after the town of Schengen in Luxembourg where the first agreement to dismantle border checks in Europe was signed in 1985. Although the Schengen Agreement is often referred to, the EU has been responsible for passing legislation pertaining to the Schengen area since 1999. Thus, the rules of the Schengen acquis are shaped through the legislative procedure of the European Union. The Schengen countries that are not members of the European Union have exceptional voting rights in the Council, i.e. in one of the two legislative bodies of the European Union, whenever a regulation or directive concerns the Schengen area.

Common European asylum policy

The European Union has set minimum standards for conducting asylum procedures and for housing and caring for asylum seekers. These standards are based on the Common European Asylum System (CEAS). The CEAS consists of directives and regulations that govern the right to stay in the European Union; probably the most well-known is the "Dublin Regulation". After years of intensive negotiations, a successful reform of the CEAS has finally been achieved. On 14 May 2024, the President of the European Parliament and the President of the European Council signed the legal instruments to reform the Common European Asylum System. Earlier on the same day, the Council had given its consent. The European Parliament had already adopted the proposed reform on 10 April.

The reform is about granting protection to people who are persecuted and who, under European law, are therefore entitled to refugee status or to subsidiary protection. In these cases, people apply for protection. However, an asylum application is not a regular pathway for immigration. Nevertheless, especially the Geneva Refugee Convention, to which many countries all over the world have acceded, enshrines the principle of non-refoulement, which says that those in need of protection may not be refused entry at the border which would lead to a denial of protection.

Regulating and managing regular migration

The EU also regulates matters that regard nationals from countries to which freedom of movement does not apply (third countries), but who wish to stay in a member state for the long term. Unlike for the areas outlined above, the EU does not pass directly applicable law for the regular migration of third-country nationals. Rather, it adopts directives which each member state then has to implement in its national law. This leaves member states, including Germany, some scope.

The following areas are regulated by EU directives:

• Highly qualified workers with a higher education degree: The EU Blue Card is the main residence permit for highly qualified workers with a higher education degree. The Blue Card gives them the right to stay and work in a specific member state. However, the directive also stipulates that Blue Card holders can temporarily live and work in another member state if their job so demands.
• Seasonal workers: In some sectors, like agriculture and tourism, seasonal workers play an important role. Many seasonal workers come from other EU member states using their right to freedom of movement. Other seasonal workers, however, come from countries outside the EU. The rules and conditions for them are set out in a directive.
• Intra-corporate transferees: Not only large companies, but also medium-sized ones often operate across borders and have subsidiaries in several countries. Managers and also staff who are new and need to familiarise themselves with the company are often transferred across borders to other branches of the same companies. The World Trade Organisation’s General Agreement on Trade in Services also contains provisions to facilitate this. The EU directive regulates residence-related matters for these intra-corporate transferees.
• Students and researchers: A knowledge-based society thrives on attracting students and researchers from third countries for short- or long-term stays. Acting in the common interest, the EU therefore adopted a directive to regulate the stay of third-country students and researchers. As in the case of highly qualified workers, the right of residence is granted for only one member state. However, the directive also makes temporary stays in other member states possible with comparatively little red tape.
• Families: Another EU directive provides a framework for family reunification of third-country nationals to join third-country nationals who already reside lawfully in a member state. Here, member states have some leeway. For example, they can regulate to what extent the livelihood of the family has to be secured and whether a certain level of integration has to be proved. Germany has used this leeway to regulate these issues in its Residence Act (Aufenthaltsgesetz).
• After five years of lawful residence: Pursuant to section 9a of the Residence Act, the EU long-term residence permit is a residence permit for an indefinite period of time granted to third country nationals who have been lawfully resident in a member state of the European Union for five years. This permit allows third-country nationals to move to another EU member state; like Germany’s permanent settlement permit, it gives third-country nationals largely the same status as German nationals, for example with regard to labour market access and social insurance benefits.