Legal Framework

In the case of adult third-country nationals, the rights and duties you are entitled to as well as their extent vary according to two main legal elements: 1) if you are regularly or irregularly staying in the territory of a State, and 2) what status you are eligible for.

Here is a list of some conditions that make your entry and stay in an (EU Member) State regular.

• Your entry in an (EU Member) State has been authorised by competent authorities
• You have all the documents required and you meet all the requirements upon entry according to (EU) law (Reg. 399/2016 Schengen Borders Code Article 6; 810/2001 Visa Code; Reg. 1806/2018 Reg. Liste)
• You have entered and/or stayed irregularly on the territory of an (EU Member) State but you have applied for international protection. In this case, after lodging an international protection request, and for the whole period of the evaluation of your application, you will be regularly present on the territory of the (Member) State responsible for assessing your claim. Should your international protection request be refused by the competent administrative or judicial authority and you decide to appeal against that negative decision, you will be equally authorised to remain on that territory until the competent authority issues a final decision on your case.

Here is a list of some conditions that makes your entry and stay in an (EU Member) State irregular.

• Your presence on the territory of a (Member) State does not fulfil, or no longer fulfils, the conditions of entry as set out in Article 5 Schengen or other conditions for entry, stay or residence in that Member State
• You have crossed an international border without the necessary documentation and/or authorisation from competent authorities
• You have entered the territory of a Member State regularly but your visa/documentation expired and it has not been renewed
• The information you provided to the competent authorities to be given a visa or other travel document was false or fraudulent
• You have lodged an international protection request that has received a final negative outcome or denial from competent authorities.

There is no universally agreed definition of migrant. For its part, the International Organization for Migration (IOM) defines a migrant as ‘any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of (1) the person’s legal status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement are; or (4) what the length of the stay is’. UNHCR’s definition of migrants looks more at the causal reasons of departure: ‘migrant describes any person who moves, usually across an international border, to join family members already abroad, to search for a livelihood, to escape a natural disaster, or for a range of other purposes’.

Beyond regional broader and narrower definition of who is a refugee, the point of reference in international refugee law is the 1951 Geneva Convention relating to the Status of Refugees, where Article 1(A)2 defines a refugee as ‘A person who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’.

An asylum seeker, or more precisely an international protection seeker, is a third country national who has a well-founded fear of persecution or serious harm and, owing to such fear, is unwilling to return to their country of origin and therefore has applied or has manifested their intention to apply for an international protection status in the territory of a Member State.

In the context of EU asylum law, 2011/95/EU Directive (Qualification Directive) sets out that international protection is characterised by two distinctive protection statuses that give access to rights and duties to a different extent: the refugee status and the subsidiary protection status.

Article 2(d): ‘refugee’ means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;

Article 2(f): ‘person eligible for subsidiary protection’ means a third- country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.

The 2030 Agenda on Sustainable Development promotes an overall reconsideration of migration as well as of the rooted classifications that have traditionally characterised human mobility. Indeed, in underscoring universality as a key feature, the 2030 Agenda moves away from the well-known categorisation of country of origin, transit and destination to rather embrace a more holistic view, where each state takes on its responsibilities towards a safe, orderly, and regular migration in a spirit of shared responsibility and global partnership. In this sense, the 2030 Agenda promotes an international governance of migration, going beyond single jurisdictions and national arrangements.  What is more, the principle ‘to leave no one behind’ and the interrelated inclusivity of the Agenda also help create a new image of migration, where the often fixed definitions of internal/external, regular/irregular, or voluntary/forced migration seem to lose their meaning in favour of the urgent need to reach every individual wherever they are, regardless of their status, nationality, race etc. The Agenda, in fact, does not refer either to migrants or to refugees only; rather, it refers to people, communities, and vulnerable groups in general, among which refugee men, women, and children, internally displaced persons, and migrants are mentioned as vulnerable people deserving particular attention and assistance, and whose needs should be addressed.

In looking jointly to migration and the SDGs, IOM further explains that this alternative interpretation of migration ‘[…] can also help move the migration and development agenda away from focusing solely on how migrant women and men can contribute to countries of origin, and towards a more holistic view that acknowledges migration as a multi-faceted reality that can make a positive contribution to development outcomes’.