EU Migration, Asylum, and Citizenship: Legal Frameworks and Challenges

Posted on Jul 11, 2025 in Law & Jurisprudence

European Union Migration and Asylum Policies

Migration has significantly shaped the European Union since post-World War II. This began with labor migration in the 1950s-1970s, followed by the Schengen Agreements (1985, 1995) which facilitated free movement, and the establishment of the Dublin Regulation in the 1990s.

The 2015 Refugee Crisis and its Aftermath

The 2015 refugee crisis saw the arrival of over 1 million refugees, primarily from Syria, Afghanistan, and Iraq. This period highlighted significant problems:

  • Uneven burden sharing among Member States, particularly Italy and Greece.
  • Lack of a unified EU response.
  • Weak cooperation with origin and transit countries.

Legal Frameworks for Asylum and Migration

The EU’s legal framework is primarily based on:

  • The Treaty on the Functioning of the European Union (TFEU), specifically Titles IV and V.
  • The Common European Asylum System (CEAS).
  • Schengen rules, which define asylum rights, border control, and migration procedures.

Objectives of the European Pact on Migration and Asylum

The European Pact on Migration and Asylum aims to:

  • Strengthen external border control.
  • Implement faster asylum procedures.
  • Promote flexible solidarity, including hosting refugees, financial contributions, or deportation sponsorship.
  • Enhance cooperation with third countries.
  • Ensure respect for fundamental rights.

Challenges with the Dublin Regulation

The Dublin Regulation, based on the ‘first entry’ rule, has faced criticism due to its conflict with the principle of non-refoulement.

Reforms under the New Pact

The New Pact proposes reforms including:

  • Replacing the ‘first entry’ rule with shared responsibility.
  • A pre-entry 5-day screening process.
  • A focus on quick processing for individuals from safe countries.
  • Utilization of the EURODAC biometric system.
  • Improved return coordination for deportations.

However, these reforms have drawn criticism regarding the risks of wrongful deportations and the potential for detention camps.

Political and Human Rights Issues

Significant divisions persist among EU states:

  • Southern states advocate for relocation mechanisms.
  • Eastern states largely reject quotas.
  • Western and Northern states seek compromise solutions.

Externalization of Migration Management

The EU has increasingly shifted migration management to third countries:

  • The EU-Turkey deal (2016) aimed to stop migration flows.
  • Cooperation with Libya has led to boats being stopped, but also reports of mistreatment in camps.
  • Tunisia has received payments to control its borders.

Country-Specific Challenges

Italy

Italy is a central point for Mediterranean arrivals, leading to political conflicts over NGO rescue ships and ongoing cooperation with Libya.

United Kingdom and France

Migrants frequently attempt to cross the Channel in small boats. France argues that the UK should take more responsibility for asylum, while the UK has proposed deportation plans.

Greece

Greece faces issues with overcrowded camps and reports of illegal pushbacks to Turkey. Frontex has been investigated for rights violations, and Greece, while demanding help, faces criticism for breaking asylum law.

Nationality and Citizenship in Europe

Nationality represents a legal bond between an individual and a state. It is important to note that nationality does not equate to ethnic origin, as affirmed by the European Convention on Nationality (1997).

Key Distinctions

  • In International Law, the term ‘nationality’ is commonly used.
  • In Domestic Law, particularly in Spain, the term ‘citizenship’ is often preferred.

Sovereignty and Individual Rights

States retain the right to decide on nationality, as per the Hague Convention (1930, Article 1). However, this right must be exercised with respect for international norms and human rights.

Statelessness: A Human Rights Issue

Statelessness refers to the lack of nationality, leaving individuals without state protection. Modern legal systems aim to prevent statelessness as a fundamental human rights concern.

Models of Nationhood

Two primary models define nationhood:

  • The ethnic model, based on ancestry, often referred to as jus sanguinis.
  • The civic model, based on place of birth and shared values, known as jus soli.

Spain’s Hybrid Model of Nationality

Spain employs a hybrid model where nationality signifies legal identity and integration. It emphasizes continuity across generations, cultural and historical connections, and requires residence and integration for naturalization.

Domestic Sources of Spanish Nationality Law

Key domestic sources include:

  • The Spanish Constitution (1978):
    • Article 11(1): Nationality is regulated by law.
    • Article 11(2): Spanish nationals cannot be deprived of their nationality.
    • Article 11(3): Allows for dual nationality with certain countries.
  • The Civil Code:
    • Article 17: Defines who is a Spaniard by origin.
    • Outlines acquisition after birth through options, residence, or special grants.
    • Governs the loss and recovery of nationality with safeguards, especially against statelessness.

International Sources of Nationality Law

Important international instruments include:

  • The Hague Convention (1930):
    • Affirms states’ right to determine nationality within international law limits.
    • Introduces the ‘master nationality’ rule, preventing a state from offering protection against another state of which a person is also a national.
    • Promotes non-automatic change of nationality upon marriage.
    • Emphasizes the avoidance of statelessness.
  • The 1961 Convention on the Reduction of Statelessness:
    • Spain acceded in 2018.
    • Grants nationality to children born in Spain who would otherwise be stateless.
    • Prevents loss or deprivation of nationality if it causes statelessness.
    • Includes various safeguards.
  • The European Convention on Nationality (1997):
    • Spain signed in 1997 and ratified in 2001.
    • Upholds the right to nationality and non-discrimination.
    • Tolerates dual nationality.
  • Bilateral Dual Nationality Treaties: Spain has treaties with several Latin American countries and others with strong historical ties.

Acquisition of Spanish Nationality

Spanish nationality can be acquired through:

  • Origin: Based on jus sanguinis (ancestry) or limited jus soli (place of birth).
  • Residence:
    • Generally 10 years.
    • Reduced to 2 years for citizens of Latin American countries, Andorra, Philippines, Equatorial Guinea, Portugal, and Sephardic Jews.
    • Reduced to 1 year for spouses of Spaniards, widows of Spaniards, persons born in Spain, those under guardianship of a Spanish citizen/institution for 2 years, or children/grandchildren of Spaniards by origin.
  • Carta de Naturaleza: An exceptional grant based on individual symbolic ties.

Loss of Spanish Nationality

For Spaniards by origin, loss is generally not possible, except through voluntary renunciation or consistent use of another nationality for 3 years. For naturalized citizens, loss can occur under Article 25, such as renunciation within 3 years of acquisition to reclaim previous nationality, serving in a foreign military against Spain, or fraudulent acquisition of nationality. The acquisition of another nationality is generally permitted, and statelessness is prohibited.

Dual Nationality in Spain

Spain’s stance on dual nationality is generally restrictive, though it is permitted with Ibero-American countries and, since 2022, with France.

Recovery of Spanish Nationality

Individuals can recover Spanish nationality by residing legally (with exceptions for immigrants), declaring their intent to recover, and registering the recovery. This primarily applies to Spaniards by origin. Restrictions may apply, such as governmental authorization in cases of fraud or serving against Spain.

EU Free Movement Rights

Legal Framework for Free Movement

The right to free movement and residence within the EU is enshrined in:

  • Article 45 of the Charter of Fundamental Rights of the European Union (CFREU).
  • The TFEU:
    • Article 21: Grants free movement and residence for EU citizens in Member States.
    • Title IV: Covers free movement of persons, services, and capital.
    • Title V: Pertains to the Area of Freedom, Security, and Justice (AFSJ).
  • Directive 2004/38/EC:
    • Allows a 3-month stay without conditions.
    • Permits stays over 3 months for work, study, etc.
    • Grants permanent residence after 5 years with full rights, without requiring proof of economic activity.

Key Cases on Free Movement

  • Zambrano (2011): Non-EU parents of EU citizen children can claim residence rights to prevent depriving the child of genuine EU citizenship rights.
  • McCarthy (2011): Free movement rights require actual exercise (crossing an international border) to claim family reunification.
  • O & B (2014): EU citizens who have lived in one Member State can claim residence rights for non-EU spouses after moving to a third country.