Migration and asylum

Article 67 of the Treaty on the Functioning of the European Union (TFEU) gives the European Union (EU) the task of ensuring the absence of internal border controls for persons and of framing a common policy on asylum, immigration and external border control, based on solidarity between EU Member States, which is fair towards non-EU-country nationals.

Article 77 TFEU requires the EU to develop a policy on border checks on persons and efficient monitoring of the external borders, the absence of controls on persons at the internal borders and the gradual introduction of an integrated border management system for the external borders.

Article 78 TFEU requires the EU to develop a common policy on asylum, subsidiary protection and temporary protection, with a view to offering appropriate status to any non-EU national requiring international protection and ensuring compliance with the principle of non-refoulement (a core principle of international refugee and human rights law that prohibits states from returning individuals to a country where there is a real risk of being subjected to persecution, torture, inhuman or degrading treatment or any other human rights violation).

Under Article 79 TFEU, EU immigration policy seeks to manage migration flows, to ensure the fair treatment of non-EU nationals residing legally in Member States, and to prevent and combat illegal immigration and trafficking in human beings.

On legal immigration, the EU has the power to lay down the conditions governing entry into and legal residence in a Member State, including for the purposes of family reunification, for non-EU nationals. Member States, however, have discretion over the number of non-EU nationals who may be admitted to seek work.

The EU seeks to prevent and reduce illegal immigration, in particular by means of an effective returns and readmissions policy, in a manner that respects human rights.

According to Article 80 TFEU, the EU’s policy on migration and asylum is governed by the principle of solidarity and the fair sharing of responsibility, including its financial implications, between the Member States.

Over the years, the EU has been developing and refining its common approach to migration and asylum. Since 1999, the EU has been working towards establishing a common European asylum system. In 2020, the European Commission published its New Pact on Migration, covering all of the different elements needed for a comprehensive European approach to migration and seeking to ensure greater consistency in integrating the internal and external facets of migration policies. The Commission proposes improved and faster, better integrated procedures throughout the asylum and migration system and seeks to ensure a balanced, common framework bringing together all aspects of asylum and migration policy. It recognises that effective returns require improved procedures inside the EU that reduce the fragmentation of national approaches and bring closer cooperation and reinforced solidarity between all Member States.

The EU’s policy on migration and asylum applies to all Member States, with the exception of Denmark, which has an opt-out in accordance with Protocol 22, and Ireland, which enjoys the right to opt-in to specific measures in accordance with Protocol 21.

The EU’s policy on borders belongs to the Schengen acquis and applies to Member States and the Schengen associated countries (Iceland, Liechtenstein, Norway and Switzerland) in accordance with Protocol 19. Ireland does not participate in measures of the Schengen acquis relating to borders.