Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 76
Enero
Marzo
2023
Recibido el 18/11/22 Aceptado el 11/01/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 76 (2023), 136-161
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Legal approaches to the regulation
of migration processes in the
European Union
DOI: https://doi.org/10.46398/cuestpol.4176.07
Oleg Todoshchak *
Andrii Neugodnikov **
Liudmyla Valuieva ***
Olha Tsarenko ****
Serhii Tsarenko *****
Abstract
Using an interpretative methodology, the article examines
approaches to the regulation of migration processes in the light
of the increasing ow of immigrants to the European Union EU.
In this context, two main directions of regulation of migration
processes are considered: legal regulation and integration
measures. It can be concluded that the international legal regulation of
migration processes in the EU is based on adopted and ratied declarations,
conventions, covenants and protocols, which form a general international
legal basis for the regulation and management of migration processes at the
interstate level. Accordingly, the analysis of migration legislation and state
border legislation allows distinguishing three types of documents according
to their content, which are related to the ght against irregular migration:
a) regulatory legal acts determine the model of legal entry and stay of a
migrant on the territory of the country; b) law enforcement rules establish
responsibilities and regulate the application of other coercive measures in
case of violation of migration rules, and; c) documents of organizational
content determine the competence of the authorities involved in the process
of combating illegal immigration.
* PhD., Associate Professor of the Department of Administrative and Financial Law, National University
“Odesa Law Academy”, Odesa, Ukraine. ORCID ID: https://orcid.org/0000-0002-1147-1567
** PhD., Associate Professor of the Department of Administrative and Financial Law, National University
“Odesa Law Academy”, Odesa, Ukraine. ORCID ID: https://orcid.org/0000-0002-4649-0784
*** PhD., Associate Professor of Common Law Disciplines of the Educational and Scientic Institute of
Maritime Law and Management, National University "Odesa Maritime Academy", Odesa, Ukraine.
ORCID ID: https://orcid.org/0000-0002-0603-1399
**** PhD., Assistant Professor of the Department of Administrative Activities, Bohdan Khmelnytskyi
National Academy of the State Border Guard Service of Ukraine, Khmelnitskyi, Ukraine. ORCID ID:
https://orcid.org/0000-0002-9759-1024
***** PhD., Associate Professor of the Department of Theory and History of the State and Law and Private-
Law Disciplines, National Academy of the State Border Guard Service of Ukraine named after Bohdan
Khmelnytskyi, Khmelnitskyi, Ukraine. ORCID ID: https://orcid.org/0000-0002-2861-2514
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Keywords: migration processes; illegal migration; migration policy;
migrants in Europe; immigration and integration.
Enfoques jurídicos para la regulación de los procesos
migratorios en la Unión Europea
Resumen
Mediante una metodología interpretativa, el artículo examina los
enfoques de la regulación de los procesos migratorios a la luz del creciente
ujo de inmigrantes hacia la Unión Europea UE. En este contexto, se
consideran dos direcciones principales de regulación de los procesos
migratorios: la regulación legal y las medidas de integración. Todo permite
concluir que, la regulación jurídica internacional de los procesos migratorios
en la UE se basa en declaraciones, convenios, pactos y protocolos adoptados
y raticados, los cuales forman una base jurídica internacional general para
la regulación y gestión de los procesos migratorios a nivel interestatal. En
consecuencia, el análisis de la legislación migratoria y de la legislación
en frontera estatal permite distinguir tres tipos de documentos según su
contenido, que se relacionan con la lucha contra la migración irregular:
a) los actos jurídicos reglamentarios, determinan el modelo de entrada y
permanencia legal de un migrante el territorio del país; b) las normas de
aplicación de la ley establecen responsabilidades y regulan la aplicación de
otras medidas coercitivas en caso de violación de las normas migratorias, y;
c) los documentos de contenido organizacional determinan la competencia
de las autoridades involucradas en el proceso de lucha contra la inmigración
ilegal.
Palabras clave: procesos migratorios; migración ilegal; política
migratoria; migrantes en Europa; inmigración e
integración.
Introduction
Activation of migration processes is one of the main trends of modern
world development. It is rst of all due to the unevenness of the economic
growth of dierent countries in terms of globalization, the diversity of inter-
ethnic, social, international conicts, and the peculiarities of demographic
processes in the regions. Mass migration posed two problems to society: the
integration of migrants into the host society and the permissible limits of its
change under the inuence of mass migrations.
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Oleg Todoshchak, Andrii Neugodnikov, Liudmyla Valuieva, Olha Tsarenko y Serhii Tsarenko
Legal approaches to the regulation of migration processes in the European Union
The process of globalization, which reached large scales in the 21st
century, opened up new problems for the modern world community. To
date, one of the loudest challenges in Europe has become the problem of
migration. Migrants seeking a better life, needing help, looking for work
show interest in the economy of more developed countries. The specied
migration processes endanger the state policy of the European Union, they
can cause the destruction of the unity of states and national identity.
Such large-scale migration ows necessarily aect the political, economic
and demographic processes in European countries by a sharp increase in
the non-native population, a possible increase in rebellions and quarrels
between migrants and demographic residents, a decline in the economy of
states in connection with the needs of migrants, often those who have no
work and rely on social benets from the host state.
Any migration processes, in one way or another, aect the dynamics
of the population in dierent countries and regions. Upon resettlement,
migrants bring signicant changes to the social life of the country. In the
modern world, migration plays a major role in the political, economic and
social life of a country. Thus, given the importance of this phenomenon,
according to research data, the crisis began in 2013, when the migration
of Syrian and Lebanese refugees began. Despite the fact that the acuteness
of the crisis has been removed in recent years, the problem itself does not
cease to bother the European world.
As a result of the extensive policy of the European Union, which does
not take strict measures to regulate migration processes, referring to the
natural human rights of movement and security, the ow of migrants in
Europe, despite the crisis, continues.
The peak of the crisis was in 2015 and 2016, when more than one million
people applied for asylum, and the total number of migrants was almost
four million people.
The magnitude of migration ows turned migration into one of the
global problems of humanity and forced the whole world to think about it as
a crisis phenomenon. Migrants have a huge impact on various aspects of life
in the countries they move to. Thus, for example, international migration
has become an important factor in population growth and reproduction in
many countries with a low birth rate.
A large inux of migrants is accompanied by many negative
consequences. The ow of migrants, sometimes dominated by refugees,
falls on host countries, causing dissatisfaction among the indigenous
population. Besides, a number of problems arise as a result of the clash
of cultures - migrants are often subjected to discrimination and mortal
danger, besides, the issues of integration of international migrants into the
host community are aggravated.
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States have always taken measures to regulate migration policy. But in
terms of the current migration crisis in European countries, new measures
are needed. Recently, border control has been strengthened in many
countries, barrier walls and fences are being erected, refugee camps are
being destroyed, and army units are being involved, which, however, does
not currently bring striking positive results. The ambiguity of the measures
adopted in relation to migrants and the regulation of migration ows
indicates that European countries are not ready to deal with this problem
at the moment.
In view of the above, the relevance of scientic research is determined
by the importance of assessing and forecasting the impact of large-scale
population movements on the political and social system of the European
Union, the impact on the course of modern international relations and the
system of ways to overcome the phenomenon of the migration crisis in the
EU.
1. Legal regulation of the EU migration policy: current state
Real guarantees of the declared freedom of movement of EU citizens
is the primary task of its migration policy (Zolka et al., 2021). The right
to work, study, and live in other countries provides signicant benets to
both member countries and their citizens, ranging from ensuring greater
eciency of the labor market to expanding educational opportunities and
deepening cultural exchanges.
Since the 1960s, the EU has adopted a number of documents designed
to promote the internal European mobility of citizens. In 2004, two
regulations and nine directives on the procedure for entry and stay of
citizens of EU member states were combined into one legislative act, which
was supposed to simplify the use of these procedures both for individuals
and for authorities. It regulates the conditions under which EU citizens
and their family members can move freely and reside within the territory
of member states, resettle for permanent residence, and also establishes
restrictions on the exercise of this right for reasons of public health and
safety (Malinovska, 2018).
To enter the territory of any EU country, an EU citizen must have only
an identity document. This is enough for a short-term stay of up to three
months. Family members of EU citizens who are third-country nationals
enjoy the same rights as the EU citizen with whom they move around
Europe.
A longer stay in another EU country is allowed if certain conditions
are met. A citizen must either be economically active (employed or self-
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Oleg Todoshchak, Andrii Neugodnikov, Liudmyla Valuieva, Olha Tsarenko y Serhii Tsarenko
Legal approaches to the regulation of migration processes in the European Union
employed), or have sucient nancial resources, health insurance, that
is, prove that he or she will not become an additional burden for the
host country’s social protection system. The same requirement applies to
students and pupils. A citizen who meets the specied conditions can move
together with family members (Koppel and Parkhomchuk, 2004).
EU citizens do not need residence permits. However, member states
may require them to register their stay on their territory no later than
three months after moving. If their family members are citizens of third
countries, they must apply for a residence permit, which is issued for a
period of ve years. Moreover, the death of an EU citizen, his departure
to another country, dissolution of marriage or termination of partnership
relations do not necessarily lead to the loss of one’s right to residence by a
member of one’s family - a citizen of a third country. EU citizens acquire the
right to permanent residence in the territory of another member state after
ve years of continuous residence, if the authorities of the host country
have not taken a decision on their expulsion.
This right is already granted without any conditions. It is also used by
family members of EU citizens who are citizens of third countries, if they
have been in a family relationship with an EU citizen for at least ve years.
The right to permanent residence is lost only in case of absence from the
territory of the respective country for two or more years (Peers, 2021).
EU citizens, if they wish, can obtain ocial conrmation of their
permanent resident status. Their family members, if they are citizens of
third countries, receive a permanent residence permit that is automatically
renewed every ten years. In order to prove that the relevant persons have
really lived in a particular country continuously, any suitable evidence can
be provided.
Persons who have the right of residence, as well as their family members,
enjoy the full range of rights. However, in the rst three months, host
countries are not obliged to include them in their social protection systems,
unless they are ocially employed. Likewise, member states are not obliged
to provide education assistance (grants, loans) to immigrants from the EU
until they become permanent residents.
EU citizens and their family members may be expelled from the territory
of another country for security reasons. Economic reasons cannot lead to
expulsion. Restrictive measures are applied only in case of a real threat to
the fundamental interests of the country and exclusively on an individual
basis. Before making a decision on expulsion, such circumstances as
the length of residence in the country, the age of the person, the level of
integration and family situation in the host country, and the presence of
ties with the country of origin must be carefully considered. The expulsion
decision can be appealed. A lifetime entry ban is not possible under any
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circumstances. A person who has been expelled can apply for a review of the
relevant decision after three years (Council of the EU, 2008).
The regulation adopted in 2011 is dedicated to clarifying and codifying
the rights of workers who move within the EU and their family members.
It prohibits a special procedure for the employment of citizens of other EU
countries, guarantees equal access to employment, vocational training for
both migrants and their children, equal working conditions and pay, access
to social benets, participation in trade unions. The only exception to the
principle of equality can be access to jobs in the eld of national security,
if the state deems it necessary to ll them only at the expense of its own
citizens. Two documents related to labor mobility were adopted in 2016.
The rst concerns the European network of employment services and
provides for the modernization of the electronic job portal, the activation
of the exchange of relevant information between countries. The second
is aimed at promoting mobility by simplifying the requirements for
registration and unifying the documents required for employment.
A number of legal acts of the EU dene common approaches to ensuring
legal immigration and guaranteeing the rights of migrants. In particular,
in 2003, a directive was adopted regarding the legal status of citizens of
third countries who have continuously resided in the territory of member
states for a long time (at least ve years). Its eect extends to citizens of
third countries who have a stable and regular source of income, health
insurance, do not pose a threat to the security or public order of the country
of residence.
This document provides persons who have a residence permit in one of
the EU countries the right to move and reside in the territory of other EU
states, guarantees basic economic and social rights on a par with citizens,
namely, the right to employment and entrepreneurial activity, education
and vocational training, social protection and basic benets. In 2010, an
agreement was reached that the rights provided for in this Directive also
apply to beneciaries of international protection, i.e., refugees from third
countries, if they meet the basic requirements regarding the duration of
residence in the EU (Buromenskyi et al., 2010).
A subsequent directive granted migrants the right to family reunication
and guaranteed the rights of persons arriving as members of their families
(2003). According to it, citizens of third countries who legally reside in the
EU can bring their minor children and spouses to the country of residence.
Host countries can, at their discretion, expand this circle and allow the
immigration of an unmarried partner, adult children and parents if they are
dependents of the migrant. Persons arriving as family members have the
right to employment and professional training on the same basis as other
third-country nationals.
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Oleg Todoshchak, Andrii Neugodnikov, Liudmyla Valuieva, Olha Tsarenko y Serhii Tsarenko
Legal approaches to the regulation of migration processes in the European Union
After ve years of residence, they can obtain autonomous legal
status if family ties are maintained. At the same time, the right to family
reunication is not absolute and may be limited in the interests of public
order and state security. A migrant who applies for permission for the
arrival of his relatives must have sucient income, housing, and health
insurance to support them, he must live in the country for a certain period,
the requirement for the duration of residence, however, cannot exceed two
years. Penalties are also provided for concluding ctitious marriages for the
purpose of obtaining an immigration permit.
In order to simplify bureaucratic procedures in the immigration process,
a Directive on the introduction of a single permit for both employment and
residence of citizens of third countries in the EU, as well as a common list of
rights and freedoms that they can enjoy was adopted in 2011. Such a decision
was aimed at improving the situation of migrants and the possibilities of
their adaptation in host countries. In order to establish Europe as a world
center of education and science, the EU has developed joint legislation
regarding students and scientists from third countries.
In particular, in 2004, common rules were approved for the admission
of foreigners to study in higher and secondary educational institutions, for
paid internships, as volunteers. The conditions for accepting students are
adequate knowledge of the language, availability of nancial resources,
medical insurance, etc. Foreigners who have come to study receive a
residence permit for a period of one year, which can be extended. Under
certain conditions (participation in international programs, possession of
a residence permit for at least two years), students have the right to move
around the territory of the EU to continue their studies (Buromenskyi et
al., 2010).
A special Directive of 2005 introduced a simplied procedure for
the immigration of scientists at the invitation of recognized scientic
institutions for a period of more than three months. A scientist who obtains
the right to stay automatically acquires the right to work, that is, they do not
need a separate permit for employment, as well as passing a labor market
test. Scientists enjoy the same rights in terms of working conditions and
social protection as local citizens, they have the right to engage in teaching
activities, to move freely between the countries of the Schengen zone for
a period of up to three months for the purpose of conducting scientic
research.
In 2016, instead of the two Directives mentioned above, one was adopted,
the category of migrants covered by the new legislation was expanded to
include interns, volunteers, schoolchildren, au-pairs (young people from
abroad who look after children while living in families). Opportunities
for student employment have increased – 15 hours a week instead of 10.
After completing studies or a contract for conducting research, graduates
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of educational institutions and scientists have the right to stay in the EU
for nine months in order to nd a job or start their own business. Family
members of scientists can join them and look for work in the host country.
Considerable attention of European legislators is devoted to the regulation
of immigration of specialists. In particular, in 2009, the procedure for the
admission of highly qualied migrants from third countries was approved
through the introduction of “blue cards”, that is, a special type of residence
permit. We are talking about people who have a higher or secondary special
education and a salary that is at least one and a half times higher than the
average for the EU country where they work. According to the procedure
agreed at the EU level, they have free access to all member states and can
move to another country after 18 months of stay, but must apply for a new
“blue card” already in that country.
The signing and adoption of the European Convention on the Legal
Status of Migrant Workers in 1977 became a signicant event in the eld of
regulation of migration and its processes in Europe.
Labor migration law contains several points:
1. creation of valid conditions for approval of an invitation to work in
the countries of the European Union;
2. unimpeded movement in any branches of the EU;
3. implementation of activities by migrant workers on the basis of legal
norms;
4. have equal rights with the employees of the host country;
5. voluntary deportation from the territory of the EU member state
after the end of the labor activity of the migrant, in accordance with
the principles of the European Union (Aloyo and Cusumano, 2021).
In 2012, 3 600 “blue cards” were issued, and in 2016 - already 19 500. In
2014, a Directive on the admission of seasonal workers from third countries
was approved. They must have a contract, where the working conditions
are prescribed, get appropriate temporary housing. They are guaranteed
the same labor and social rights as local workers, except for unemployment
benets and family allowances.
Within the permissible time of stay (from ve to nine months per year),
seasonal workers have the right to change employers, extend or enter into
a new contract. Member countries can stimulate the circular, i.e., repeated,
migration of seasonal workers by simplifying the procedures for their
admission to their territory. In the same year, a Directive on intra-corporate
transfers was adopted, which simplied the procedures for transferring
foreign employees of multinational companies to their branches located in
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the EU, which should improve opportunities for innovation and promote
investment.
An important component of the regulation of immigration processes in
the EU is the proper informing of migrants, which should contribute to a
more organized and legal movement of people. In 2011, the EU Immigration
Portal was opened, which functions in English, French, Spanish and
Arabic, contains extensive information on immigration procedures of all
28 member states, contacts with national government bodies and non-
governmental organizations in the eld of migration. Such electronic portals
are designed to provide potential migrants with up-to-date information on
entry channels and operate in most member states.
At the same time, despite a signicant number of common legal norms,
the volume of economic immigration, as before, is regulated independently
by each EU country, depending on its own needs and capabilities. Although
the mechanisms of immigration are standardized, the issue of admission to
the sovereign territory, as conrmed in the Treaty of Lisbon (2007), which
dened the current foundations of the functioning of the EU, will continue
to remain within the competence of national governments.
Along with ensuring legal immigration in the interests of progressive
economic development, a signicant place in the common migration policy
of the EU belongs to the control of immigration processes and the ght
against illegal migration. Practice has shown that it is easiest to develop
standardized approaches precisely in this area, where the common
interests of the member countries are most obvious. As already mentioned,
the Schengen agreements, that is, the abolition of control at the internal
borders of the EU and its transfer to the external border, were incorporated
into EU legislation with the adoption of the Treaty of Amsterdam (1997).
Today, the zone of free movement in Europe, to which not only the
member states of the European Union, but also a number of other states
have joined, covers almost the entire continent. Under these conditions, the
interests of internal security require EU countries to make joint eorts to
protect the external border. The European Border and Coast Guard Agency
(FRONTEX) was founded in 2004 with the main functions of coordination
of joint actions at the external border, personnel training, risk analysis and
forecasting of the migration situation, allocation of resources and assistance
to member countries facing mass arrivals of illegal migrants.
In 2016, the mandate of FRONTEX was expanded. The Agency was
authorized to act also outside the EU. Common rules for control at the
external border are dened by the Schengen Borders Code, approved in
2006 and modernized in 2016. It provides for simplied control when
crossing the external border by citizens of EU member states, as well as
those foreigners who have the right to free movement (family members
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of EU citizens), and, at the same time, increased control over citizens of
third countries. This code is also aimed at deepening the cooperation of law
enforcement structures of the member countries in the interests of common
security, and denes the conditions for the temporary restoration of control
at internal borders (European Parliament and the Council of the EU, 2016).
In 2008, a decision was made to create a Visa Information System
(VIS), which enables member countries to promptly exchange information
regarding Schengen visas. It gradually accumulates data on applications
and issuance of Schengen visas in various regions of the world. The main
purpose of VIS is to check the visa history of third-country nationals, as
well as control whether the visa is being used by the person to whom it was
issued (Yakubovsky, 2015).
The strengthening of control at the external border of the EU was
accompanied by measures to simplify the procedures for its crossing for
law-abiding travelers. This is convincingly demonstrated by initiatives
to introduce a “smart border”. The corresponding package was prepared
by the European Commission in 2016, according to which an automatic
entry/exit control system (Entry/Exit System, EES) was introduced, which
records all entries/exits of citizens of third countries at the external border
of the EU.
The main legislative acts of the EU directly aimed at combating illegal
migration are several Directives. In particular, the sanctions imposed on
carriers transporting foreigners to the EU without proper documents have
been harmonized. Before taking a citizen of a third country on board, they
are obliged to check that he has the necessary documents for entry into the
EU. If the border guards do not allow such a citizen into the EU territory,
the carrier must transport him at his own expense to the country from
which he or she arrived.
Transportation of illegal migrants threatens the company with sanctions
of up to 5 thousand euros for each person. The following EU Directive
obliged air carriers to transfer information about passengers to the control
authorities of the destination country even before arrival at a point in the
territory of the European Union. Violation of this requirement may result
in nancial sanctions up to conscation of the vehicle or suspension or loss
of the license to transport (Buromenskyi et al., 2010).
To combat illegal migration, the European Union developed a legislative
framework consisting of four main documents:
1. Council Directive 2002/90/EC of 28 November 2002 dening the
facilitation of unauthorised entry, transit and residence (Council of
the EU, 2002);
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2. Council framework Decision of 28 November 2002 on the
strengthening of the penal framework to prevent the facilitation of
unauthorised entry, transit and residence (Council of the EU, 2002);
3. Directive 2008/115/EC of the European Parliament and of the
Council of 16 December 2008 on common standards and procedures
in Member States for returning illegally staying third-country
nationals (European Parliament and the Council of the EU, 2008);
4. Directive 2009/52/EC of the European Parliament and of the
Council of 18 June 2009 providing for minimum standards on
sanctions and measures against employers of illegally staying third-
country nationals (European Parliament and the Council of the EU,
2009).
Council Directive 2002/90/EC of 28 November 2002 and Council
framework Decision of 28 November 2002 are interdependent and
complementary to each other, as they are the basis of the legislation under
which, by the end of 2004, all EU countries were obliged to adjust their
criminal codes and other laws regulating intrastate relations, with the help
of sanctions for criminal actions and aiding illegal migration.
On the basis of the documents listed above, it can be said that illegal
migration is perceived by the European Union through the prism of measures
addressed to employers who provide work to undeclared foreigners, as well
as through the analysis of possible ways and means of an eective policy for
the deportation of migrants.
An important role in the regulation of migration processes is played by
the International Organization for Migration - IOM (1951), whose task was
to organize the movement of migrants. Today, its powers include:
1) recruitment of migrants;
2) preparation for the migration process;
3) promotion of language training;
4) implementation of information activities for visiting foreigners;
5) passing a medical examination;
6) location of migrants;
7) conducting and organizing various events to promote reception and
integration;
8) provision of consultations on migration issues.
To regulate migration ows, the European Union uses two directions:
regulatory and legal regulation and integration measures (Kuryliuk et al.,
2021).
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Regulatory and legal regulation aects the size and number of the ow
of migrants, in such a measure, national states and European institutions
are the subjects, and migration ows and the results of migration are
the objects. Integration acts as a forced measure for radical change and
integration of foreigners into the national society of the host party.
Universal international principles and norms are:
1) freedom of movement and the right to freely choose a place of
residence;
2) prohibition of deportation;
3) prevention of discrimination;
4) maintenance of family reunication programs;
5) the right to protection by judicial authorities.
In April 2012, the European Council approved the Strategy of the
EU’s response to migration pressure, which denes a number of strategic
priorities for the EU’s activities in this area. Among them: strengthening
of cooperation with countries of origin and transit regarding migration
management; improvement of external border management; prevention of
illegal migration across the Turkish-Greek border; prevention of abuse of
legal migration channels; ensuring compliance with the right to freedom
of movement while preventing its abuse by citizens of third countries;
improvement of the system of regulation of migratory movements, including
the return of migrants to their homeland.
As part of the implementation of the rst priority, i.e., cooperation with
third countries, it was planned to improve their own capacity to regulate
mixed migration ows (that is, those that consist partly of refugees and
partly of economic migrants). For this purpose, it was envisaged to arm the
countries of rst asylum with the necessary means to provide protection to
refugees in accordance with international standards, thus preventing further
movements of refugees; ensure the implementation and continuation of
readmission agreements; deepen partnership in the eld of mobility with
third countries; to develop a dialogue with the countries of the Eastern
Partnership in the context of challenges caused by migration ows from the
Southern Mediterranean moving through the Western Balkans.
Improving the management of external borders involved the further
development of political and legislative tools for border control, including
ensuring the functioning of the surveillance system and exchange of
information on border risks (European Border Surveillance System,
EUROSUR), the preparation of proposals for the entry and exit registration
system, the use of prejudicial information about international passengers
to identify ways of illegal entry into the EU.
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In order to prevent abuses of the right to free movement, including the
right of migrants to family reunication, joint investigations, collection and
analysis of information on detentions in connection with the presentation
of false documents at the borders, exchange of information between the
authorities of member states are used. The general goal of the Strategy
is to strengthen the coordination of the eorts of member countries, in
particular, the full implementation of directives on sanctions against
employers and the return of illegal migrants, including further support for
voluntary return, providing the necessary statistical and scientic support
for the policy of combating illegal migration, studying and disseminating
advanced experience (Chacon Hernandez, 2021).
Therefore, the international legal regulation of migration processes at the
large-scale level is based on declarations, adopted and ratied conventions,
pacts and protocols, which form the general international legal framework
for the regulation and management of migration processes at the interstate
level. The main decisions are developed by the United Nations, followed
by its specialized organizations: the International Labor Organization,
UNESCO and specialized bodies - the Economic and Social Council of the
United Nations, the Oce of the United Nations High Commissioner for
Refugees, the International Organization for migration.
To date, the European Union, being a special form of the commonwealth
of dierent states, has developed its own system for the regulatory and legal
regulation of migration ows, which is supported by various international
documents, regulatory and legal acts of institutions and organizations,
founding treaties, acts that apply directly to the participating countries and
do not require the actual implementation of obligations at the international
level, which passes into national legislation.
To resist and prevent illegal migration, the system of normative legal
acts provides quite large aspects that reect migration problems in general.
But at the same time, there is no single strategy for conducting migration
policy in the EU countries, as each country follows its own course, not
striving for cooperation with EU member states.
2. Evolution of means of combating illegal migration to Europe
The migration situation in the countries of the European Union has
become a test of strength for the main political forces in Europe. Debates
in every EU country often come down to the question: whether to support
migration - the wave of refugees from the countries of the Middle East and
Africa - or to oppose it.
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As the rst countries that refugees cross on their way to Europe, Italy
and Greece have faced an unprecedented inux of migrants. However, some
EU partners, mainly Visegrad Group member states (Poland, the Czech
Republic, Slovakia and Hungary) are in no hurry to share the burden of
responsibility with their neighbors and open their doors to refugees. Even
Germany was forced to reconsider its approach under the pressure of public
opinion in its own country. It should be noted right away that the EU and its
institutions are a complex bureaucratic mechanism. Decisions, one way or
another related to migration, are made at the level of the entire EU, which
means that they are subject to implementation in all its member states, as
well as at the local level of states.
When it comes to the migration crisis in Europe, public opinion most
often has in mind not migrants in general, but refugees as a separate category
of migrants. It is very important not to confuse concepts and distinguish a
migrant (motives for resettlement, which may be dierent, including purely
economic ones) from a refugee or an applicant for his status. Article 1 of
the UN Convention on the Status of Refugees (adopted on July 28, 1951)
provides grounds for granting refugee status in the event of “fear of being
persecuted on the grounds of race, religion, nationality, membership of a
particular social group or political opinion”.
The Convention also states that a refugee is outside the country of
his nationality and is unable to enjoy the protection of that country or is
unwilling to enjoy such protection because of such fears; or, having no
denite nationality and being outside the country of his former residence
as a result of such events, is unable or unwilling to return to it because of
such apprehensions.
The main political decisions in the eld of migration adopted in the EU
in recent years are primarily aimed at refugees as a separate category of
migrants.
The largest number of applicants for refugee status still come to the EU
from Syria, Afghanistan, Iraq and East African countries. 53% of migrants
from those countries are men. Germany remains the country that receives
the most applications for refugee status (60% of all applications in the 28
EU countries go to Germany) (Malinovska, 2018).
Bringing refugee ows under control is not an easy task. Although the
increase in the ow of refugees during hostilities is a logical and expected
phenomenon, it is the instability in the countries of origin of the refugees
that has triggered the increase in their ow, or it can be fully predicted. The
EU was not ready to accept such a large number of people at the same time,
despite the fact that the scale could be even larger: after all, a huge number
of refugees were accepted by Turkey (2.9 million according to UNHCR data
as of 2018-2019) and other countries in region, taking the brunt of it.
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The Dublin Convention of 1990 stipulates that asylum must be requested
in the country on the territory of the EU that the potential refugee crosses
rst. The document turned out to be unsustainable already in the rst
months of the new migration crisis. Refugees entered the EU, entering
mainly through Greece, Italy and Hungary. These countries were not
able in a short time not only to carry out all the necessary procedures for
consideration of requests, but also simply to register all those who settle.
Thus, in practice, due to the lack of human resources, a large number of
people crossed these countries in an uncontrolled manner, heading to
Central Europe.
Identication, document verication, overnight accommodation
and provision of food and clothing became the rst priority. Conducting
interviews, checking all the circumstances of the case of potential refugees
has also become a challenge for some countries. Standard procedures for
consideration of this request for refugee status could take several months
or even years in some countries. Now, in some cases, accelerated processes
take from several weeks to several days, depending on the country. This
certainly requires additional funding. The migration agencies of the EU
countries are mobilized: for example, at some point the migration service
of Sweden switched to a 24-hour mode of operation.
The next problem faced by EU countries was how to deal with those whose
requests for refugee status were rejected for objective reasons. Expulsion
of illegal migrants costs the budget of the EU countries a lot of money, as
deportation procedures are usually not carried out in one day, but require
planning. This is complicated by the fact that remission agreements have
not been signed with all countries of origin of illegal migrants, which means
that the deportation process in such cases becomes extremely dicult.
One of the constant diculties that have become a European reality
today is the process of integration of refugees: initially providing housing
and funds to pay for small daily expenses, and then state support for
measures for their future independent life in the EU without state subsidies.
The latter is particularly dicult, because sometimes refugees do not even
speak English, let alone the language of their new country of residence, and
do not have professional skills (Ispas, 2021).
The main principles of the European migration policy are outlined in
the European Agenda on Migration, a comprehensive document that came
out in 2015. However, the EU migration policy needs to be revised. This is
noted by both the expert community and the politicians themselves.
It is necessary to move from reactive measures in response to the crisis
in the form of a large ow of illegal migrants and refugees to anticipatory
measures, which will represent a coordinated coherent mechanism that
works in all EU countries. Analyzing the main decisions and discussions in
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ocial Brussels, as well as the roadmap on migration (Roadmap to deal by
June 2018 on the Comprehensive Migration Package), the following can be
noted:
1. The reform of the Common European Asylum System (CEAS) is
currently blocked in the European Council. The cornerstone was the
issue of mandatory redistribution of refugees from countries where
there are too many of them to countries where there are fewer of
them. This would allow responsibility to be shared between all EU
countries. Separate quotas were calculated for each country taking
into account its size, population, and other factors. However, no
agreement was reached on this issue.
In order to somehow get out of this impasse, it is proposed to abandon
the mandatory resettlement of refugees from one country to another and
rely on the good will of the EU member states in this matter. Mandatory
resettlement will be provided by law only in crisis situations.
2. Frontex, the European Union’s external border control agency, was
transformed into the European Border and Coast Guard Agency in
2016. Measures related to building the capacity of the transformed
agency should improve the management and control of the EU’s
external borders. Among other things, the agency received an
additional 1.5 thousand reserve employees and the opportunity to
purchase the latest equipment for border management, available for
mobilization in a crisis situation. However, EU countries should be
ready to increase the agency’s funding, if necessary, as well as provide
additional human resources.
3. Cooperation with third countries or countries of origin of migrants is
an important task. For example, the EU nances large-scale projects
with Turkey, which has become a place of accommodation for a huge
number of refugees. However, spot nancing is not enough.
Thus, the EU needs to develop legal migration schemes with the main
countries of origin of migrants, including primarily African and Middle
Eastern countries. Pilot schemes on legal economic migration were
proposed by third countries in May 2018. Cooperation with third countries,
project nancing and the development of schemes on legal migration will
contribute to reducing the level of migration ows only if the leaders of
third countries are ready to cooperate. A good example of this is Turkey,
which is not itself the country of origin of a large number of refugees in the
EU, but which is crossed by refugees on their way to the EU.
According to the agreement between Turkey and the EU, refugees
entering Greece from Turkey can be turned back and Turkey will be obliged
to accept them. The EU allocated additional funding for refugee settlements
in Turkey. If Turkey completely closes its borders to refugees, they will still
reach the EU borders one way or another.
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4. The development of mechanisms for the return of illegal migrants
must continue. This consists not only in signing remission agreements
and protocols of their interaction with third countries, as well as in the
actual expulsion of illegal migrants, but also in providing nancing
and support for reintegration measures for those who return to their
countries of origin.
Therefore, the consolidated approach of the EU is based on the
development of compromise solutions on those issues where there is no unity
among the EU member states; on the reform of its internal institutions; on
increasing cooperation with countries of origin of migrants (for example, by
concluding remission agreements and legal migration schemes, as well as
by nancing projects to support governments and the population in these
countries).
3. Prospects for improving the EU’s migration policy
The migration crisis in Europe in 2015 became one of the key events in
the modern history of the development of European integration. Despite
the fact that the member states of the European Union have faced migration
from other regions before, this crisis was particularly acute not only in view
of the scale of migration ows, but also in view of the changes in the nature
of migration and the increase in the number of so-called asylum applicants.
As a result, the traditional European system of measures in the eld of
migration turned out to be ineective for regulating migration processes
taking place on the territory of the EU.
Before the beginning of the mass inux of refugees in 2014-2015, the role
of the main regulator of EU migration policy was performed by the Dublin
system, in accordance to which refugees were distributed according to the
principle of “country of rst entry”. Thanks to this rule, it was possible to
prevent a situation in which a refugee can submit an application to several
EU countries at once and receive asylum in the most suitable country.
The Dublin Agreement clearly dened the country responsible for
processing asylum applications. This system showed its unsustainability
after the beginning of the 2015 crisis, when the main burden of migration
fell on the border countries of the EU, primarily on Greece, Italy and
Hungary. Moreover, as a result of the mass inux of migrants, the Schengen
zone was under attack, given the danger of free, uncontrolled movement of
unregistered migrants within the EU.
The inability of the Dublin system to oer a fairer criterion for the
distribution of migrants within the EU, as well as the threat to the existence
of the Schengen Agreement, have led to aggravation of disagreements
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between member states on this issue. As a result, there are serious
contradictions within the European Union on the issue of the eective
distribution of immigrants between member countries. While the leader of
European integration, Germany, advocates the initiative of the EU member
states, the countries of Central and Eastern Europe take a mostly skeptical
position in this regard and are not ready to take responsibility for the
placement of refugees on their territory.
As a result, the European Union faces not only and not so much a
migration crisis, but a crisis of European integration, which is most
threatened by the growth of far-right attitudes among the population. The
general growth of the terrorist threat, expressed in repeated attacks by
people from non-European countries, further contributes to the growth of
populist sentiments in Europe.
The ineectiveness of the Dublin system, disagreements between member
states on the issue of the distribution of migrants, public dissatisfaction
with the actions of the authorities and, as a result, the growing popularity
of far-right attitudes in Europe became the main reasons that led to the
need to change the EU’s approach to refugee policy and reform the entire
system of migration legislation. In the period from 2015 to 2021, attempts
of the member states of the European Union to develop a joint plan of
action to overcome the negative consequences of the migration crisis are
being observed.
If we analyze the course of events, we can distinguish two stages in
the process of reforming the EU migration policy. As the rst stage, the
period from April to October 2015 can be singled out, when the term “crisis”
was rst used in relation to the situation with refugees and the necessary
measures were taken to overcome the negative consequences of mass
migration and prevent the possibility of an escalation of the crisis.
It was in April 2015 that a series of maritime disasters occurred in the
Mediterranean Sea, as a result of which ships carrying several thousand
migrants from North Africa sank. These events became the rst impetus
for the use of measures to respond to migration problems. The key
phenomenon of this period is the approval of the “10 points” program based
on the results of the meeting of the ministers of foreign aairs of the EU
countries in Luxembourg on April 20, 2015.
The main purpose of this program was the adoption of emergency
measures to rescue migrants in the Mediterranean Sea and the allocation
of additional funds for rescue operations, as well as the coordination of
increased measures in the eld of security, which included the mandatory
ngerprinting of all migrants who arrived on the territory of the EU. In
addition, already in April, at an extraordinary meeting of the European
Council, the possibility of starting negotiations with third countries for
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a joint solution to the migration problem, in particular, with Turkey and
African states, was discussed for the rst time.
A joint action plan with third countries was agreed in November of the
same year at the Valletta Migration Summit, where EU and African leaders
signed an agreement on joint action in the eld of migration, as well as
within the framework of the EU-Turkey Action Plan aimed at suspending
migration ow to Europe and the ght against illegal migration. In general,
EU measures within this period can be characterized as a response to
current problems and a search for possible ways and strategies to solve the
migration crisis (Casagran, 2021).
The period from the end of 2015 to the end of 2017 can be marked as the
second stage of migration policy reform, when decisions were made for the
long term, not so much for the purpose of solving current tasks, but for the
purpose of creating a more eective system of migration legislation at the
pan-European level as a whole. During this period, not only was the nal
agreement concluded between the EU and Turkey on the issue of measures
against illegal migrants (March 18, 2016), but also the provisions on the
reform of the Common European Asylum System were approved, which,
among other things, included the transformation of the Dublin system.
As a result, ocial frameworks were established for cooperation with
third countries, primarily with Turkey, through which the main migration
route to Europe passes, as well as proposed reforms, which include an
accelerated procedure for considering applicants’ applications, xing
migrants in one country and prevention of attempts to move them within
the EU, as well as basic measures to integrate refugees, including into the
labor market. In addition, the European Commission adopted the so-called
list of “safe countries” in order to limit migration from those regions where
hostilities are not taking place directly and there is no real threat to life.
In practice, this means that asylum applications from countries such as
Albania, Macedonia, Montenegro, Serbia, Turkey, Bosnia and Herzegovina
and Kosovo began to be considered under an accelerated procedure. Finally,
on February 3, 2017, the “Malta Declaration” on migration was adopted, the
main provisions of which touched on external issues, such as the ght against
the illegal importation of migrants and human tracking, the provision of
assistance during the period of return of migrants to their homeland, as
well as cooperation with Libya in the eld of control along migration routes
and support for Libyan Coast Guard employees (European Council, 2017).
The main focus of this document is on the Central-Mediterranean route,
along which more than 180,000 migrants arrived in the EU in 2016 alone
(Malinovska, 2018).
Evaluating the results of the second stage, it can be concluded that after
2015, the EU seeks to develop a certain long-term action strategy that would
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be able not only to overcome the crisis, but also to create a more eective
legal framework for regulating migration processes on the territory of the
EU and in the future.
It is obvious that the current process of migration to Europe had a serious
impact not only on the internal development of the EU member states, but
also on the political capacity of the European Union as a supranational body
and, therefore, required fundamental changes to the existing legislation.
The future viability of the European Union as an integration group depends
on how eectively the EU can deal with the current crisis.
In 2017, the migration policy of the EU strengthened. At the summit
held in Brussels on October 19, 2017, it was determined that the approach
of EU member states and institutions to ensuring full border control should
be consolidated. At the same time, the Conclusions of the European Union
indicate that it is ready to react and stop any attempts to illegally cross the
borders of EU member states (European Council, 2017).
However, the settlement of the issue has by no means become clearer,
because in the European Union there is a problem of a “closed circle”,
which consists, on the one hand, in opposing immigrant ows, and on the
other hand in observing the principles of protecting the rights of migrants,
ghting poverty, etc. (Zastavna, 2021).
As for the actual results of the EU migration policy reform, the following
results can be highlighted at this point. First, it was possible to strengthen
control over the external borders and signicantly reduce the number of
illegal migrants arriving in the EU. In addition, due to the introduction
of the list of “safe countries”, it was possible to limit the opportunities for
obtaining asylum for citizens from relatively safe regions, which helped to
focus the main eorts of the EU on providing assistance to refugees from
Syria, Iraq, Afghanistan and other countries where the internal political
situation poses a real threat to life.
Agreements with third countries, primarily with Turkey and Libya,
which assumed part of the responsibility for providing assistance to
refugees, helped to signicantly reduce the ow of migrants heading to
Europe. Despite the contradictions that took place during the negotiations
with Turkey on the issue of migration, positive changes could be observed
already a month after the conclusion of the 2016 EU-Turkey agreement.
According to data from the European Commission, if more than 56,000
asylum seekers arrived in the EU in February 2016, then during the next 30
days after the conclusion of the agreement, their number already amounted
to 7,800 immigrants (Raczyński, 2015).
Thus, we can talk about the positive impact of reforms in the eld of
migration policy carried out by the European Union in recent years. In
addition to limiting migration ows and reducing the number of illegal
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migrants, other results were also achieved, in particular, an accelerated and
optimized procedure for considering asylum applications, which helped to
process a large number of applications in a relatively short period of time
and, in case of refusal, to ensure the rapid deportation of immigrants to
their homeland.
In addition, funds were allocated for the implementation of integration
programs for refugees in order to ensure their integration not only into
society, but also into the labor market. Positive developments are also
observed in this area: in Germany, for example, between 2013 and 2020,
the share of employees without German citizenship increased by 75% to
more than four million (Bathke, 2021).
However, the European Union’s response to the 2015 migration crisis
also has weaknesses. Statistics show an increase in crime among refugees
in the EU. According to Der Spiegel, the share of refugees among rape
suspects in 2016 was the highest among other social groups and amounted
to 33%. In addition, the number of terrorist acts and other serious crimes
committed by immigrants in various European cities has been increasing in
recent years (Bondarchuk, 2016).
A key problem in solving the European migration crisis is the inability to
eectively allocate migrant quotas among member states. As a mechanism
for the distribution of quotas for migrants, a possible proposed system
of trading quotas for refugees is presented, in the framework of which a
market mechanism is used for the distribution of migrants by country.
Such a mechanism allows each country to choose the most suitable
option for itself: either to accommodate refugees on its territory, providing
them with the necessary assistance, or, in case of a lack of resources for their
proper accommodation, to provide nancial support to those countries
that accept refugees instead. It follows that, if the state is not ready to take
direct responsibility for the accommodation of migrants, it is obliged to
provide material and nancial assistance to other countries, which will
allow to achieve justice in the distribution of the migration burden between
countries.
Each EU member state also has the right to combine both options - for
example, to place fewer refugees in its country than it should according
to the quota, but to allocate additional funds for other countries that have
redistributed part of the migrants to themselves. In addition, the amount
of nancial assistance may vary depending on the level of economic
development and the average income per capita of a country. According
to this principle, the nancial aid allocated by, for example, Finland will
be much higher than the aid from Estonia or Bulgaria. When distributing
migrants, it is also important to take into account the needs of each
individual country: for example, to send labor migrants to those countries
where there is a shortage of labor (Masoumi, 2022).
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Thus, the European Union’s policy response to the 2015 refugee crisis
has both advantages and disadvantages. Among the latter is the inability
to resolve dierences between EU member states on the issue of migrant
distribution, as some countries continue to take a hard line on refugees
and are not ready to make concessions, as, for example, in the case of the
Hungarian government. This factor, as well as internal problems arising
in connection with mass migration (such as the increase in crime and the
problem of integration), contribute to the strengthening of public distrust
in relation to EU institutions and stimulate the growth of right-wing
populist sentiments, thus undermining the foundations of the European
Union functioning.
The proposed system has a number of advantages, as it allows countries
to independently decide how to contribute to solving the migration crisis and
for which categories of refugees to open borders. A exible mechanism will
not only help to achieve a certain consensus on the issue of the distribution
of migrants between member countries, but will also contribute to a more
eective integration of migrants into the host society, as the system will take
into account the needs of a given society and country in certain categories
of migrants.
Conclusions
The specicity of modern political processes is largely determined
by migration ows from zones of armed conicts and countries with an
unfavorable political and socio-economic situation to more prosperous
countries and regions. Migration, which has acquired a massive multi-
million character in recent years, is one of the most signicant phenomena
of modern political reality. This is evident in the development of the
European migration crisis.
Initially focused on providing assistance to migrants and refugees, the
European Community faced a whole set of problems of a social, economic
and humanitarian nature, among which particular signicance is found,
such as the migrants’ ignoring and devaluation of European values,
imposing their own way of life on Europeans, gradual Islamization, nding
radical forms, as well as the direct escalation of tension and conict. All
these factors determine the crisis in the development of the situation in
European countries, undermine their social, humanitarian, economic and
political foundations.
Taking into account the fact that the situation in countries with military
conicts still has an extremely acute nature of armed conict and the
escalation of the terrorist threat, there is every reason to believe that the
migration crisis will continue to develop in the near future.
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The migration crisis revealed a number of internal problems of a
political, institutional and social nature in the European Union, which must
be solved both in the short and long term.
Germany, France and Great Britain occupy the leading positions among
Western European countries in terms of the number of immigrants. In this
regard, they face a number of problems, mainly related to the economic
support of immigrants arriving in the country, integration into the native
society of the host country and ensuring national security.
After the exacerbation of the migration crisis in 2014-2016, its decline
began. The intensity of the inux of migrants and refugees in 2017-2019
signicantly decreased, which gave Europe a noticeable relief. However, the
year 2020 brought some aggravation of the migration crisis of the new era.
The main factors that provoked this aggravation and increased the
ow of migrants in 2020 include: political, economic, national and legal
instability in Africa and the Middle East; armed conicts in Syria, Yemen,
Afghanistan, Iraq, which were involved in the ght against ISIS; an
increase in the number of the population in the named countries due to
an uncontrolled demographic situation; large-scale unemployment; rapid
growth of poverty; deterioration of the situation in the refugee camps created
on the territory of Turkey and Lebanon. There was no social protection, no
work, and funding was constantly being cut. That is why Syrians began to
run to the countries of the Eurozone.
The analysis of the migration legislation and the legislation on the state
border makes it possible to distinguish three types of documents according
to their content, which relate to the ght against illegal migration:
regulatory legal acts determine the model of a migrant’s legal entry and
stay on the territory of the country; law enforcement regulations establish
responsibility and regulate the application of other coercive measures in
case of violation of migration regulations; documents of organizational
content determine the competence of authorities involved in the process of
countering illegal migration.
In order to improve the migration policy, the structures of the European
Union propose to strengthen the legislation for arriving immigrants,
for persons who have committed crimes and oenses on the territory of
the EU, as well as for illegal migrants. An important element of the new
migration policy should be integration, but in a more intensive form: a clear
concept should be formed that ensures the preservation of harmonious
relations between the local population of EU member states and migrants.
The process of integration can be facilitated by the availability of education,
medical services, and jobs for a wider circle of refugees and immigrants.
Expanding the principles of solidarity and fair responsibility among EU
member states will facilitate the solution to the migration crisis.
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Also, building a new dialogue between the EU states and third countries,
based on compromises and equality of the parties, should be an essential
step for the settlement of the political situation. This can be facilitated by
the renewal of both the national and the elites of the European Union. The
future of this political body depends on whether the European Union will
be able to develop a new migration policy and cope with the challenges.
Bibliographic References
ALOYO, Eamon; CUSUMANO, Eugenio. 2021. “Morally evaluating human
smuggling: the case of migration to Europe” In: Critical Review of
International Social and Political Philosophy. Vol. 24, No. 2, pp. 133-156.
BATHKE, Benjamin. 2021. Migrants in Germany increasingly important for
labor market. Available online. In: https://www.infomigrants.net/en/
post/36965/migrants-in-germany-increasingly-important-for-labor-
market. Consultation date: 20/11/2022.
BONDARCHUK Vitaliy. 2016. “The European migration crisis and the stability
of the EU. World economy and international economic relations” In:
Eastern Europe: economy, business and management. Vol. 2, No. 2,
pp.28-31.
BUROMENSKY, Mykhailo; KUDAS, Iryna; MAYEVSKA, Anastasiya;
SEMENOV, Borys; TESHENKO, Bogdan; BUROMENSKYI, Mykhailo.
2010. International law: educational manual. Yurinkom Inter. Kyiv,
Ukraine.
CASAGRAN, Cristina. 2021. “Fundamental Rights Implications of
Interconnecting Migration and Policing Databases in the EU” In: Human
rights law review. Vol. 21, No. 2, pp. 433-457.
CHACON HERNANDEZ, David. 2021. “Crisis Migration and Migration Crisis.
A Vision from Human Rights” In: Ciencia Juridica. Vol. 10, No. 19, pp.
137-160.
COUNCIL OF THE EU. 2002. Council Directive 2002/90/EC of 28 November
2002 dening the facilitation of unauthorised entry, transit and residence.
Available online. In: https://eur-lex.europa.eu/legal-content/EN/
ALL/?uri=CELEX%3A32002L0090. Consultation date: 20/11/2022.
COUNCIL OF THE EU. 2002. Council framework Decision of 28
November 2002 on the strengthening of the penal framework to
prevent the facilitation of unauthorised entry, transit and residence.
Available online. In: https://eur-lex.europa.eu/legal-content/EN/
ALL/?uri=CELEX%3A32002F0946. Consultation date: 20/11/2022.
160
Oleg Todoshchak, Andrii Neugodnikov, Liudmyla Valuieva, Olha Tsarenko y Serhii Tsarenko
Legal approaches to the regulation of migration processes in the European Union
COUNCIL OF THE EU. 2008. European Pact on Immigration and Asylum.
Available online. In: https://data.consilium.europa.eu/doc/document/
ST-13440-2008-INIT/en/pdf. Consultation date: 20/11/2022.
COUNCIL OF THE EU. 2017. European Council Conclusions on Migration,
Digital Europe, Security and Defense. Available online. In: http://
www.consilium.europa.eu/en/press/press-releases/2017/10/19/euco-
conclusions-migration-digital-defence/. Consultation date: 20/11/2022.
EUROPEAN COUNCIL. 2017. Malta Declaration by the members of the
European Council on the external aspects of migration: addressing
the Central Mediterranean route. Available online. In: https://www.
consilium.europa.eu/en/press/press-releases/2017/02/03/malta-
declaration/. Consultation date: 20/11/2022.
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EU. 2008.
Directive 2008/115/EC of the European Parliament and of the Council
of 16 December 2008 on common standards and procedures in
Member States for returning illegally staying third-country nationals.
Available online. In: https://eur-lex.europa.eu/LexUriServ/LexUriServ.
do?uri=OJ:L:2008:348:0098:0107:en:PDF. Consultation date:
20/11/2022.
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EU. 2009.
Directive 2009/52/EC of the European Parliament and of the Council
of 18 June 2009 providing for minimum standards on sanctions and
measures against employers of illegally staying third-country nationals.
Available online. In: https://eur-lex.europa.eu/legal-content/EN/
ALL/?uri=celex%3A32009L0052. Consultation date: 20/11/2022.
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EU. 2016. Regulation
(EU) 2016/399 of the European Parliament and of the Council of 9 March
2016 on a Union Code on the rules governing the movement of persons
across borders (Schengen Borders Code). Available online. In: https://
eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32016R0399.
Consultation date: 20/11/2022.
ISPAS, Gabrieli Liviu. 2021. “Impact of the COVID-19 on the migration in the
European Union” In: Juridical Tribune – Tribuna Juridica. Vol. 11, No.
1, pp. 30-41.
KOPPEL, Olena; PARKHOMCHUK, Olena. 2004. International systems and
global development: training. Manual. Kyiv University. Kyiv, Ukraine.
KURYLIUK, Yurii; SLYVKA, Mariia; KUSHNIR, Yaroslav. 2021. “Legal
regulation of combating illegal migration in Ukraine and the EU” In:
Cuestiones politicas. Vol. 39, No. 71, pp. 472-491.
161
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 136-161
MALINOVSKA, Olena. 2018. Migration policy: global context and Ukrainian
realities. NISD. Kyiv, Ukraine.
MASOUMI, Azar. 2022. “Fast Refugee Protection: Temporality and Migration
Control” In: Social & legal studies. Vol. 31, No. 2. pp. 197-215.
PEERS, Steve. 2021. EU Pact on Migration and Asylum. Implementation,
Impact and Consequences in the Euro-Mediterranean Context. Available
online. In: https://www.iemed.org/publication/eu-pact-on-migration-
and-asylum-implementation-impact-and-consequences-in-the-euro-
mediterranean-context/. Consultation date: 20/11/2022.
RACZYNSKI, Robert. 2015. “The impact of international migration on national
internal security” In: Security. Theory and practice. Vol. 2, pp.13-30.
TREATY OF AMSTERDAM. 1997. Amending the Treaty on European Union,
the Treaties establishing the European Communities and certain related
acts. Available online. In: https://eur-lex.europa.eu/legal-content/EN/
TXT/?uri=CELEX:11997D/TXT. Consultation date: 20/11/2022.
TREATY OF LISBON. 2007. Amending the Treaty on European Union and
the Treaty establishing the European Community. Available online.
In: https://eur-lex.europa.eu/eli/treaty/lis/sign. Consultation date:
20/11/2022.
YAKUBOVSKY, Serhey. 2015. EU migration policy: evolution and socio-
economic consequences. EU migration policy: state, challenges and
prospects. Fenix. Odesa, Ukraine.
ZASTAVNA, Olga. 2021. “EU migration policy in the context of the EU countries
security” In: Entrepreneurship, economy and law. Vol. 1, pp. 276-281.
ZOLKA, Valentyn; TSARENKO, Olha; KUSHNIR, Iryna; TSARENKO &
HAVRIK, Roman. 2021. “The Impact of the Pandemic Covid-19 on
the Human Right to Freedom of Movement” In: European Journal of
Sustainable Development. Vol. 10, No. 1, pp. 376-376.
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Esta revista fue editada en formato digital y publicada
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