INTRODUCTION

The European migration law has inevitably been characterised by its focus on public interests. States have a general interest in controlling immigration; thus sovereignty is often used as a legal justification to control the entry and residence of third-country nationals. For example, according to the European Court of Human Rights (ECtHR) “a State is entitled, as a matter of well-established international law … to control the entry of aliens into its territory and their residence there.”

However, these discretionary powers of states are not unlimited, but confined by binding provisions of EU law as well as international human rights law. EU law acknowledges explicitly rights of third-country nationals to enter and reside in a Member State under certain conditions, e.g., for the purpose of family reunification. Further, the EU migration law recognises the goal of the promotion of migration, such as the aim to facilitate the attraction of highly qualified workers or other skilled people. Hence, the focus of this analysis lies on “voluntary” migration as opposed to “forced” migration in the sense of the Common European Asylum System.

Within this general framework, the goal of this contribution is to analyse whether a coherent approach to the role and weight of public interests in upholding national legal restrictions regarding the entry and residence of third-country nationals can be derived from the case-law of the Court of Justice of the European Union (CJEU).

LEGAL FRAMEWORK

COMPETING INTERESTS REFLECTED IN PRIMARY LAW

It was more than 60 years ago when the first provisions on the freedom of movement of EU citizens were introduced. After that, some of those rights got progressively extended to third-country nationals. Still, it was only with the entry into force of the Treaty of Amsterdam in 1999 that the European Community obtained a wide-ranging competence to regulate the migration of third-country nationals. The entry into force of the Treaty of Lisbon in 2009 led to a further loss of competences of Member States, restricting their sovereignty in a highly politicised and sensitive area.