Visa Policy as a Migration Channel. Luxembourg National Contact Point within the European Migration Network

Transcription

1 Visa Plicy as a Migratin Channel Luxemburg Natinal Cntact Pint within the Eurpean Migratin Netwrk

2 University f Luxemburg - Natinal EMN Cntact Pint - P.O. Bx Walferdange LUXEMBOURG crdinatin@emnluxemburg.lu Octber 2011

3 Abbreviatins ADEM CCTS CES EC EEA EEC EMN EU IGSS IOM MOU MYO NCP NGO STATEC TFEU Administratin de l Empli (Natinal Emplyment Office) Cmmissin Cnsultative pur Travailleurs (Advisry Cmmittee fr Wrkers) Cnseil Ecnmique et Scial (Ecnmic and Scial Cuncil) Eurpean Cmmissin Eurpean Ecnmic Area Eurpean Ecnmic Cmmunity Eurpean Migratin Netwrk Eurpean Unin Inspectin générale de la Sécurité Sciale (General Inspectrate f Scial Security) Internatinal Organizatin fr Migratin Memrandum f Understanding Migrer les yeux uverts (Migrate with pen Eyes) Natinal Cntact Pint Nn-gvernmental Organizatin Institut Natinal de la Statistique et des Études Écnmiques du Grand-Duché du Luxemburg (Natinal Statistical Institute f Luxemburg) Treaty f Functining f the Eurpean Unin

4 Cntents Frewrd... 1 Executive Summary... 2 INTRODUCTION Methdlgy Literature review Archival analysis Semi-structured interviews Wrkshp Definitins POLICY AND LEGAL FRAMEWORK FOR THE GRANTING OF VISA IN LUXEMBOURG HISTORICAL BACKGROUND Migratin in Luxemburg Definitin and Significatin f a Visa Histry f the Schengen Area: Implementing a cmmn visa plicy Natinal Plicy and legislative framewrk Visa plicy Legal Framewrk: Visa plicy, natinal legislatin and legal immigratin Visa plicy, natinal legislatin and irregular migratin Agreements with third cuntries Recent changes t Visa Plicy and Legislatin within cntext f a cmmn EU dimensin Practical Implementatin and Organizatin General Prcedure fllwed in the Stages f the C Visa Prcedure Visa issuance fr the purpse f legal immigratin specific prcedure fllwed in the Stages f the Visa Prcedure Prcedure fr the applicatin f a C Visa Prcedure fr btaining a D visa Natinal Visa Practices fr admissin f third-cuntry natinals Challenges and success factrs fr facilitating legal immigratin Visa prcedures fr the purpse f preventing irregular migratin Preventin f irregular migratin thrugh ther measures during visa issuing Challenges and success factrs fr preventing irregular migratin... 70

5 4. C-peratin with third cuntries The facilitatin f legal migratin and/r preventin f irregular migratin: China Ratinale fr chsing China Histrical verview f relatins with China Existence f migratin agreements with China Any ther measures Statistics Findings f China case The facilitatin f legal migratin and/r preventin f irregular migratin: Russian Federatin Ratinale fr chsing the Russian Federatin Histrical verview f relatins with the Russian Federatin Existence f migratin agreements with the Russian Federatin Any ther measures Statistics Findings f Russian Federatin case Effects f EU Plicy and Legislatin Impact f EU visa plicy and legislatin n Luxemburg Overall impact f EU migratin plicy and legislatin n visa plicy and the issuing f visas in Luxemburg Instruments that have an effect n Luxemburg legislatin and/r plicy and practices: EU visa facilitatin agreements Lifting f visa requirements with particular third cuntries The visa infrmatin system The Visa Cde and the cmmn cnsular instructins Regulatin N. 265/2010 f the Eurpean Parliament and f the Cuncil f 25 f March 2010 amending the cnventin implementing the Schengen agreement and Regulatin N. 562/2006 as regards mvement f persns with a lng stay visa Natinal discussins and plitical debate n current and future visa plicies Cnclusins Annexes Bibligraphy:

6 Frewrd The pinins and interpretatins expressed in this reprt are thse f the authr. They d nt necessarily reflect the psitins f the Luxemburg Ministry f Family and Integratin, r the Ministry f Freign Affairs nr d they represent Natinal Gvernment plicy. The present reprt was drafted by Adlf Smmarribas with the assistance f Anne Kch, staff member f the Natinal Cntact Pint Luxemburg within the Eurpean Migratin Netwrk, under the verall respnsibility f Ass.-Prf. Dr. Christel Baltes-Löhr. Cntinuus supprt was prvided by the members f the natinal netwrk f the Natinal Cntact Pint Luxemburg: Sylvain Besch (CEFIS), Dr. Claudia Hartmann-Hirsch, (CEPS/Instead), Germaine Thill (STATEC), and Marc Hayt (OLAI Receptin and Integratin Agency, Ministry f Family and Integratin). 1

7 Executive Summary Issuing a visa derives frm the svereign authrity f the State. Visa plicy is cmpsed f a grup f parameters set by natinal legislatin (Cnstitutin, laws, regulatins and decrees), thereby allwing the administratin t determine which freigners can be admitted t enter and stay n a temprary basis n its territry. It is a scial phenmenn because it reacts and interacts with the entire scial system f the State. It will respnd t the scial, ecnmic, plitical, educatinal and ethical sub-systems. Fr example, during perids f war r scial cnflicts, visa plicy has acted as an effective instrument t stp the immigratin f a certain type f ppulatin. On the ther hand, in times f high ecnmic grwth, in rder t avid labr shrtages t sustain this grwth 1,, visa plicy can allw fr the immigratin f freigners n flexible terms than thse impse when the ecnmy is cntracting 2. This grup f parameters, based n bjective and smetimes subjective terms, allws regulating the entry f freign natinals int the territry f the State. It has tw manifestatins: It acts permissin that the state grants t a specific individual, while at the same time acting as a restrictin thrugh filtering peple that are cnsidered as a ptential threat t public interest. As it is a manifestatin f the svereign pwer f the State, in principle, the administrative authrity wuld nt be bliged t infrm the persn f the reasns why the visa was granted r refused. Hwever, with the develpment f the principle f transparency in administrative law, this has changed and nwadays the mtives f the decisin tend t be cmmunicated. This is t avid any abuse f pwer frm the civil servant wh takes the decisin, thus acting as a means t cntrl the acts f the civil servant by the administrative r judicial curts but als by sciety in general. 1 Luxemburg repeatedly faced similar situatins thrughut the last decades : 1) the Italian immigratin during the develpment f the steel industry ; the Italian and Dutch immigratin after Wrld War II and the Prtuguese immigratin in the 1960 s. 2 This change f plicy can be bserved in new labr plicies which tend t prmte the immigratin f high skilled wrkers frm third cuntries (directive 2009/50/CE) while restricting the immigratin f lw skilled wrkers. 2

8 In mdern times, mst cuntries distinguish between shrt-stay visas (three mnths r less), lng-term visas (mre than three mnths) and transit visas. All these types f visas are integrated within the legal authrity f the State. The integratin f Luxemburg in the Schengen Agreement and the subsequent integratin int Eurpean law, thrugh the Treaty f Amsterdam, have generated the transfer f part f this legal authrity t the Eurpean Parliament and Cmmissin. Nwadays, shrt-term visas are the exclusive cmpetency f the Eurpean authrities, as prvided fr in article 77 f the Treaty f the Functining f the Eurpean Unin and the Visa Cde. Hwever, residual cmpetency ver lng-term visas, better knwn as the D Visa, remains at natinal level in Luxemburg. In Luxemburg this cmpetency allws fr the authrizatin f stay f third cuntry natinals n a temprary basis n its territry. It is imprtant t underline that the cmpetency fr the attributin f the tw kinds f visas lies within different Ministries in Luxemburg. The Passprts and Visas Office (Bureau de Passeprts et Visas) f the Ministry f Freign Affairs is respnsible fr prcessing and authrizing shrt-stay visas, while the Directrate f Immigratin f the Ministry f Labr, Emplyment and Immigratin is in charge f prcessing and authrizing lng-stay visas. Hwever, the receptin f bth kinds f visas is treated by the diplmatic missins that represent Luxemburg in third cuntries. Given its small size, Luxemburg has very few diplmatic representatins abrad (see Annex 1) and it is mainly represented by ther member states (mainly the ther member states f the Benelux, France, Germany, Prtugal and Spain) a, meaning that in the case f Luxemburg the cperatin develped thrugh the Visa Cde, had been in place fr many years nw. The fact that Luxemburg des nt have external brders with third cuntries makes it very difficult fr visa plicy t wrk as a migratin channel. A third cuntry natinal cming t Luxemburg with a valid C visa issued by any ther member state cannt be cntrlled by Luxemburgish authrities, because there are n physical cntrls. The nly way t detect them wuld be thrugh identity verificatin by the plice, but in a cuntry with arund peple cmmuting n a daily basis, effective cntrls are limited. In summary, visa plicy in Luxemburg cannt be cnsidered as a means t channel migratin because Luxemburg des nt have cntrl ver the external brders f the Eurpean Unin. There are sme nn-gvernmental rganizatins that cnsider that thse 3

9 peple wh want t cme t Eurpe will d it n matter which bstacles are in the way, s in their pinin visa plicy tends t prmte irregular migratin. The tw case studies chsen in the study, the Peple Republic f China and the Russian Federatin, illustrate the glbal reality f grwing ecnmies n a small scale. Over the last 10 years there has been an increase in the number f citizens cming frm bth cuntries that wrk in Luxemburg. This can be explained by the ecnmic imprtance f bth cuntries and the fact that Luxemburg is a sphisticated financial center. Hwever, in general terms, regular immigratin frm bth cuntries is nt significant (thugh in the future that can change because f the mving f the headquarters f imprtant cmpanies frm bth cuntries t Luxemburg), because mst f the immigratin t Luxemburg stems frm Eurpean Cuntries and especially frm neighbring cuntries. With regard t irregular migratin, there are hardly any cases related t the Russian Federatin (nly five peple were expelled). The case f Chinese citizens is similar as that f Russian citizens in the sense that legal migratin is scarce but has grwn steadily thrughut the last decade. Hwever, with regard t irregular migratin, the situatin is slightly different as there have been knwn cases f Chinese irregular migrants wrking in Chinese restaurants in Luxemburg. Due t lack f identificatin papers, hwever, they tend t be released after initial arrest and disappear in the nature. Hwever, this type f irregular migratin is nt significant in numbers and has nt generated any kind f debate n the natinal level. 4

10 VISA POLICY AS MIGRATION CHANNEL INTRODUCTION Schengen (Schengen Agreement and the Cnventin implementing the Schengen Agreement) is knwn by third-cuntry natinals as a visa requirement fr entering the Eurpean Unin. Nevertheless, Schengen is mre cmplex and the recent develpments with the grwing flws f immigrants f refugees arriving t the external brders f the Schengen area have led t questining the effectiveness f the Schengen cnventin and therefre ne f the fundamental principles f the Eurpean Unin: freedm f mvement. That is ne f the reasns that analyzing the visa plicy f the different Member States becme relevant.. The Treaty n the Functining f the Eurpean Unin (TFEU) makes a distinctin between shrt stay and lng stay fr third-cuntry natinals. In the first case it cvers the Schengen acquis 3 and the secnd case is cnsidered as Cmmn Immigratin Plicy. 4 The shrt-stay regime is gverned by Cuncil regulatin 539/ f 15 March 2001 listing third-cuntries whse natinals must/r must nt be in pssessin f visas when crssing the external brders. This regime cncerns visas, issued by Member States, fr stays nt exceeding three mnths per six-mnth perid. The lng-stay regime requires that the third-cuntry natinal wanting t stay lnger than three mnths in ne r mre Member States, need t either btain a natinal lng-stay visa r a residence permit frm the Member State t which he wishes t mve. The main bjective f this study is t analyze the nexus between visa plicy and migratin management and cntrl, including tackling irregular migratin and criminality. It will serve 3 Article 77(2)(a) TFEU, prvides that measures shuld be adpted by the Eurpean Parliament and the Cuncil cncerning the cmmn plicy n visas and ther shrt-stay residence permits. 4 Article 79(2) TFEU prvide that measures shall be adpted in the area f the cnditins f entry and residence, and the standards n the issue by the members states f lng-stay visas and residence permits

11 t infrm plicy makers and analysts abut the effects f visa plicy n the management f migratin. In additin, it will allw evaluating the effectiveness f different strategies t use visa plicy t manage migratin including c-peratin with third cuntries and explre the effects f Eurpean Unin plicy and legislatin n natinal plicymaking and practices. The study will be fcused n third-cuntry natinals excluding the citizens frm Iceland, Nrway and Switzerland wh benefit frm flexible visa, entry and residence prcedures that are ut f the scpe f articles 77 and 79 f the Treaty n the Functining f the Eurpean Unin (TFEU). The target audiences f this study are plicy makers cncerned with visa plicy and migratin, NGO s, academic researchers and the general public that are interested in visa plicy and legal migratin. It is imprtant t mentin that the recent events f Lampedusa n April 2011 that triggered the Franc Italian cnflict, the judgment M.S.S. vs. Belgium and Greece 6 f the Eurpean Curt f Human Rights f January 21, 2011 and the psitin f Denmark t reestablish the physical brders 7 have nt nly put the Schengen Cnventin and the Dublin Agreement t the test, but als the Eurpean Pact n Immigratin and Asylum 8 and the Stckhlm Prgram 9. These tw instruments try t guarantee nt nly mre effective brder cntrls allwing access t Eurpe t third-cuntry natinals while guaranteeing the safety f EU citizens. T achieve the gal f effective brder cntrl, the Actin Plan Implementing the Stckhlm Prgram 10 highlights the imprtance f the entry int peratin f the SIS II and VIS systems. In Luxemburg, visa plicy has nt been a plemic issue, especially because Luxemburg is used t free mvement f persns t the pint that the nly external brder is the internatinal airprt, which has very few direct flights cming frm third cuntries. This 6 ydcnumber&table=f69a27fd8fb86142bf01c1166dea Eurpafrum.lu, «Rétablissement des cntrôles duaniers aux frntières intérieures par le Danemark - La Cmmissin n est pas satisfaite des justificatins du Danemark et va cntinuer ses cntrôles», 18 juillet, This actin plan highlights the imprtance f the use f mdern technlgies in brder management fr cmplementing the actual tls that are being used. This actin plan is cmpleted with the EU Internal Security Strategy f 25 February

12 situatin makes that the issuing f shrt-term visas cannt be cnsidered as an effective migratin cntrl instrument, especially with regard t irregular migratin. The visa restrictins impsed n certain third-cuntries (see annex 1) have cntributed t the develpment f a parallel and very lucrative black visa market allwing the hlder t enter int the EU 11. False visas with frged signatures are cmmnly fund at the external brders 12. Mrever, in Luxemburg, the cncerned public fficials have been cnfrnted with the utilizatin f mailbx crpratins, prducing letters f invitatins t third-cuntry natinals that will permit them t btain a visa 13. Additinally, prblems with natinals r residents that warrant visitrs spnsrs t Luxemburg have been nted i.e. in sme cases the authrities respnsible fr the verificatin f the spnsrs fund that the persn having signed the dcument des nt even knw the third-cuntry natinal visiting Methdlgy Natinal reprts are prduced by the respective Natinal Cntact Pints (NCPs) n the legal and plicy situatin in their Member State accrding t cmmn specificatins. Subsequently, a cmparative synthesis reprt is generated by the Eurpean Cmmissin with its Service Prvider giving the key findings frm each natinal reprt, highlighting the mst imprtant aspects and placing them as much as pssible within an EU perspective. The varius natinal accunts and the summary reprt are made publicly available. The EMN engages primarily in desk research, i.e. it cllects and analyzes data and infrmatin already available r published at the Member State r internatinal level. The present reprt was prduced by drawing upn a number f different surces f infrmatin, all f which are listed in the bibligraphy by type f dcument. This includes surces f natinal and EU legal dcuments which are referred t in the reprt. Additinally semi- 11 The rle f rganized crime in the smuggling f migrants frm West Africa t the Eurpean Unin, United Natins Office n Drugs and Crime, January 2011, pp. 11, Ibidem. 13 Interview with the Passprts and Visas Office, May Interview with the Passprts and Visas Office, May

13 structured interviews were cnducted with gvernment fficials, NGO representatives wrking in the field f visa cunseling. Thirdly, a wrkshp regruping representatives f civil sciety and migrant assciatins was rganized in rder t incrprate their experiences, and perspectives int the study. 8

14 Literature review Initially, a research f academic-riented literature as well as plicy-related publicatins n visa plicy in the natinal cntext was made. There are, t the authr s knwledge, n empirical studies n current visa plicy in Luxemburg. Luxemburg visa plicy is clsely related t EU migratin and visa plicy. Luxemburg has adapted its natinal legislatin t the subsequent develpments in Schengen legislatin. This is why the subject is very technical and it is handled by the ministerial authrities respnsible fr issuing the shrt-term visas. It is imprtant t indicate that visa plicy within the Eurpean Unin has becme largely unifrmed by the intrductin f the Visa Infrmatin System and the Visa Cde. The nly cmpetence that is left t Luxemburg with regard t natinal visa plicy is the issuing f lng term visas Archival analysis An archival analysis has been carried ut t determine the natinal visin, plicy and legislatin in relatin t visa plicy. This invlved the cllectin and analysis f relevant plicy and legal dcuments, including gvernment prgrams, fficial speeches, pinins f different stakehlders n different bills, the minutes f the public parliamentary sessins, and respnses t parliamentary inquiries Semi-structured interviews Semi-structured interviews were cnducted with ministerial authrities, diplmatic authrities, and public fficials, representatives f nn-gvernmental rganizatins (NGO) and representatives f civil sciety Wrkshp As part f the preparatin f this reprt, a wrkshp was held by the natinal EMN cntact pint at the University f Luxemburg n 6 July The wrkshp was attended by a representative f the gvernment, migrant assciatins and advcacy grups and aimed at finding ut their attitudes and experiences. The ttal number f participants was 14. 9

15 Wrkshp participants were invited t speak abut their experiences, knwledge and views n visa plicy in Luxemburg. The insights gained during the wrkshp have been incrprated at varius pints in the present reprt Definitins Brders (external): Member States land brders, including river and lake brders, sea brders and their airprts, river prts, sea prts and lake prts, prvided that they are nt internal brders 15. Brders (internal): The cmmn land brders, including river and lake brders, f the Member States, the airprts f the Member States fr internal flights and sea, river and lake prts f the Member States fr regular ferry cnnectins 16. Cuntry f Origin The cuntry (r cuntries) which are a surce f migratry flws and f which a migrant may have citizenship. In refugee cntext, this means the cuntry (r cuntries) f natinality r, fr stateless persns, f frmer habitual residence. Cuntry f Natinality The cuntry (r cuntries) f which a persn hlds citizenship. Synnym: State f Natinality Entry (Illegal) The entry f a third-cuntry natinal int an EU Member State wh des nt satisfy Article 5 f Schengen Brder Cde. 15 Cuncil Regulatin (EC) n 562/2006. Art. 1 par Cuncil Regulatin (EC) n 562/

16 In a glbal cntext, crssing brders withut cmplying with the necessary requirements fr legal entry int the receiving State. Related Term: Illegal Immigratin, Legal Entry, Irregular Migrant Entry (Legal) Entry f a third-cuntry natinal int an EU Member State, fr a stay nt exceeding three mnths per six-mnth perid, which satisfies Article 5 f Schengen Brder Cde. In a glbal cntext, this means crssing brders with authrised entry, cmplying with the necessary requirements fr legal entry int the receiving State. Related Term: illegal Entry Entry (Refusal f) In the EU cntext, refusal f entry f a third-cuntry natinal at the external EU brder because they d nt fulfil all the entry cnditins laid dwn in Article 5(1) f Regulatin (EC) N 562/2006 and d nt belng t the categries f persns referred t in Article 5(4) f that Regulatin. In a glbal cntext, refusal f entry f a persn wh des nt fulfil all the entry cnditins laid dwn in the natinal legislatin f the cuntry fr which entry is requested. Entry Ban An administrative r judicial decisin r act preventing entry int and stay in the territry f the Member States fr a specified perid, accmpanying a Return Decisin. Synnym: Re-entry ban Residence Permit Any authrisatin issued by the authrities f a Member State allwing a third-cuntry natinal t stay legally in its territry, in accrdance with the prvisins f Article 1(2)(a) f Cuncil Regulatin (EC) N 1030/2002 f 13 June 2002 laying dwn a unifrm frmat fr residence permits fr third-cuntry natinals. 11

17 Schengen Infrmatin System (SIS) A jint cmmunitarian infrmatin system that enables the relevant authrities in each Member State, by means f an autmated search prcedure, t have access t alerts n persns and prperty fr the purpses f brder checks and ther plice and custms checks carried ut within the cuntry in accrdance with natinal law and, fr sme specific categries f alerts, fr the purpses f issuing visas, residence permits and the administratin f legislatin n aliens in the cntext f the applicatin f the prvisins f the Schengen Cnventin relating t the mvement f persns. Spnsr Bradly, a persn r entity which undertakes a (legal, financial r persnal) engagement, prmise r pledge, n behalf f anther, that is a third-cuntry natinal. In the EU cntext f Family Reunificatin, a third-cuntry natinal residing lawfully in a Member State and applying r whse family members apply fr family reunificatin t be jined with him/her. Visa The authrisatin r decisin f a Member State required fr transit r entry fr an intended stay in that Member State r in several Member States. The nature f the visa shall be determined in accrdance with the fllwing definitins: (i) lng-stay visa means the authrisatin r decisin f a Member State required fr entry fr an intended stay in that Member State f mre than three mnths; (ii) shrt-stay visa means the authrisatin r decisin f a Member State required fr entry fr transit thrugh r an intended stay in that State r in several Member States fr a perid whse ttal duratin des nt exceed three mnths in a six mnth perid; (iii) airprt transit visa means the authrisatin r decisin allwing a third-cuntry natinal specifically subject t this requirement t pass thrugh the transit zne f an 12

18 airprt, withut gaining access t the natinal territry f the Member State cncerned, during a stpver r a transfer between tw sectins f an internatinal flight. Visa Infrmatin System (VIS) It is a system implemented fr the exchange f visa data between Member States, which enables authrised natinal authrities t enter and update visa data and t cnsult these data electrnically 13

19 2. POLICY AND LEGAL FRAMEWORK FOR THE GRANTING OF VISA IN LUXEMBOURG 2.1. HISTORICAL BACKGROUND Migratin in Luxemburg In rder t analyze visa plicy in Luxemburg, it is imprtant t firstly utline the migratin histry f Luxemburg. Immigratin can be cnsidered as a structural phenmenn in the histry f the regin nw knwn as the Grand Duchy f Luxemburg. 17 Previusly a cuntry f emigratin, Luxemburg experienced large-scale labr Immigratiun f bth lw - and highly skilled wrkers with the nset f the Industrial Revlutin in the secnd half f the 19 th century and the develpment f the steel industry. It cincided with the cuntry s accessin t the German Custms Unin in 1842, the installatin f the railway in 1859 and the plitical cnslidatin and demilitarizatin fllwing the Treaty f Lndn signed in 1867, all f which facilitated crss-brder trade and the transprt f gds and peple. Given that nt a sufficient number f qualified and/r willing wrkers culd be recruited amng the lcal ppulatin, qualified wrkers, engineers and supervisrs came mainly frm the neighburing regins f Germany; they brught their families and eventually settled permanently. En 1870, manual wrkers arrived frm Italy t wrk in the cuntry s mines and factries 18. Cntrary t their German cunterparts, they were less qualified and verwhelmingly single men r they came withut their families. Their migratin pattern was characterized by a frequent rtatin between the neighburing regins f Lrraine, Luxemburg and Saarland in search fr the best wrking cnditins and highest salaries. It invlved a shrt stay f several mnths in Luxemburg befre migrating elsewhere in the 17 The subsequent utline is based n Pauly (2010). See Circular and Temprary Migratin: Empiral Evidence, Current Plice Practice and Future Optins in Luxemburg, LU-EMN-NCP, 2011, pp Institut Grand-Ducal, Sectin de linguistique, d ethnlgie et d nmastique, «Migratins à Luxemburg - Un aperçu histrique», 2011, fr&u= %3Fptin%3Dcm_cntent%26task%3Dview%26id%3D127%26Itemid%3D238 14

20 regin and smetimes returning t Luxemburg at a later pint in time. These cnditins prevailed until the 1940 s. After the Secnd Wrld War, German immigratin stpped fr bvius reasns 19 but additinal wrkers were needed fremst in the cnstructin and agricultural sectrs fr the recnstructin f the cuntry. Already in 1945, the Gvernment f Luxemburg called n Italians t cme t Luxemburg but the Italian Gvernment refused t cmply with that request fr plitical reasns. In 1948, after all, a bilateral agreement was cncluded between Italy and Luxemburg which had been regularly extended until the creatin f the Eurpean Ecnmic Cmmunity (EEC) in The agreement invlved an annual quta, the recruitment f wrkers in Italy, and fixed-term but renewable wrk cntracts. In the curse f the 1950s, hwever, immigratin frm Italy declined as wrkers preferred t g t Germany r Switzerland where higher wages were paid r they decided t lk fr wrk in the ecnmically strng Nrthern part f Italy. T give further incentives, Luxemburg accrded mre pen cnditins in 1957 such as the pssibility fr family reunificatin, higher annual qutas and subsidies fr cmpanies t prvide apprpriate accmmdatin. Yet, these measures did hardly have any effect and became superfluus with the cming int frce f the Treaty f Rme n 1 January 1958 which allwed fr the free circulatin f wrkers between the Member States f the EEC. Luxemburg als entered int bilateral labr agreements with ther States and in ding s, deliberately encuraged a White and Cathlic immigratin 20. In 1950, a bilateral agreement was signed with the Netherlands t recruit agricultural wrkers. Accrding t the cnditins f the agreement, wrkers had t be unmarried and Cathlic men frm the Dutch prvinces f Nrth Brabant and Limburg brdering Belgium. Since the Mid-1960s, Prtuguese migrants wh had been wrking in the French neighburing prvince f Lrraine came t Luxemburg, and, in 1970, a bilateral agreement was signed between Prtugal and Luxemburg. Family 19 Luxemburg was under German ccupatin since the 10 May 1940 until the 10 September During that perid the Nazi regime vilently repressed the Luxemburgish ppulatin, i.e., because f the general strike f 30 August 1942, 21 persns were executed and hundreds f peple were sent t cncentratin camps. Als the frce cnscriptin f Luxemburgish men in the German Army prduced resentment and hatred against the German Ppulatin. At the end f the war, because f the Battle f the Bulge mst f the cuntries were n ruins. The fact that the lcal German ppulatin cllabrated with the invaders als aggravated the situatin f the Germans in Luxemburg. See Raths, Alyse, «Unheilvlle Jahre für Luxemburg - Années néfastes versez le Grand- Duché», 2008 p. 7 ss. Germans began t return t Luxemburg in the 1970 s with the establishment f German banks in Luxemburg, Pauly, p. cit., p Pauly, p. cit., p

21 reunificatin was allwed immediately. The agreement became redundant when Prtugal natinals, after the cuntry had jined the EEC in 1986, enjyed freedm f mvement within the territry f the Member States as frm 1 January The majrity f Prtuguese immigrants was lw-qualified and wrked primarily in the cnstructin and cleaning sectr r as dmestic wrkers. Cape Verdean migrants, hwever, wh thrugh the clnial ties between the tw cuntries (Cape Verde and Prtugal) came t wrk in Prtugal where they mainly replaced the unskilled Prtuguese labrers that had migrated t ther Eurpean cuntries and then ften mved nwards frm Prtugal 21 r went directly t Luxemburg 22. This wrkers, even if they have a Prtuguese passprt, were nt welcmed by the lcal ppulatin. In 1970, a bilateral agreement was signed with the Frmer Republic f Yugslavia. Hwever, the fact that the pssibility fr family reunificatin was nt prvided fr in this agreement, leaves the questin whether this agreement was established as a means t prevent further immigratin frm a predminantly Muslim cuntry. Fr the same reasn, bilateral labur agreements with Asian r Nrth African cuntries were nt envisaged. As a result f further migratin inflws, family reunificatin and chain migratin, Prtuguese natinals cnstitute nwadays the largest grup f nn-natinals in Luxemburg ( r 15.9% f the ttal inhabitants in Luxemburg n 1 January ). Natinals frm the Frmer Republic f Yugslavia, including thse wh came t Luxemburg during the Yugslav wars in the 1990s and the cnflicts in Ksv, represent the largest grup f thirdcuntry natinals. 24 They frm part f the 43.2 percent nn-natinals amng the resident ppulatin in Luxemburg (r n 1 January 2011) and this high number f nnnatinals can be largely explained by the massive recurse t freign wrkfrce. 25 Cntrary t mst f the ther EU Member States, the verwhelming majrity f resident nn-natinals are f EU-rigin, nly 14.1 % f immigrants are third-cuntry natinals Carling (2002). 22 Centre de Dcumentatin et d Animatin Interculturelle (2010: 13). 23 These figures, hwever, d nt prvide infrmatin abut the ttal number f persns with immigratin backgrund, particularly thse wh naturalized, and thse with duble citizenship wh are cunted as natinals in the statistics. me=2&fldrname=1&rfpath=68 24 See Circular and Temprary Migratin: Empirical Evidence, Current Plice Practice and Future Optins in Luxemburg, LU-EMN-NCP, 2011, pp Thelen (2010: 225). 26 See Circular and Temprary Migratin: Empirical Evidence, Current Plice Practice and Future Optins in Luxemburg, LU-EMN-NCP, 2011, pp me=2 &FldrName=1&RFPath=68 16

22 Definitin and Significatin f a Visa There is a direct relatinship between visa plicy and immigratin. A visa is the effective cntrl f a cuntry ver freign citizens that which t enter and/r stay in its territry. Visa plicy is directly linked t the State svereignty 27 and with its svereign right t selfdetermine the cnditin fr a freign citizen f entry and stay in its territry. It is cnsidered as an instrument f freign plicy 28. Visa plicy is a grup f parameters set by the legislatin (Cnstitutin, laws, regulatins and decrees) that permits the administratin t determine which freigners can be admitted t enter and stay n a temprary basis n its territry. It is a scial phenmenn because it reacts and interacts with the entire scial system f a State. It will respnd t the scial, ecnmic, plitical, educatinal and ethical sub-systems. The wrd visa cmes frm the Latin term Charta Visa that means the dcument has been seen 29 and was first used in Visas were nt generally used befre Wrld War I in internatinal travel. Nevertheless, when the war started, belligerent cuntries fund ut that visa refusal culd be an effective means t frbid the entry f certain type f freigners, cmprmising natinal security, int their territry. Nrmally the criteria used by a cuntry t decide n the prvisin f a visa are: a) Natinality; b) Travel dcument; c) Prfessin d) Travel mtivatin e) Persnal histry f the applicant. 27 Pint f view f NGO, Interview N 4., 28 Les rientatins de la plitique de l immigratin, Dc. Fr "visa." American Heritage Dictinary f the English Language, 4th editin. Web. 7 Oct "visa." Merriam-Webster Online Dictinary. Web. 7 Oct

23 Nwadays, it has becme a matter f security and justice. Curiusly there is nt a single definitin f visa in any law. Even the actual visa cde des nt have a clear definitin f visa. Art. 2 (a) and (b) f the Visa Cde (Regulatin 810/2009) says that visa means: an authrizatin issued by a Member State with a view t: (a) Transit thrugh r an intended stay in the territry f the Member States f a duratin f n mre than three mnths in any six-mnth perid frm the date f first entry in the territry f the Member States; (b) Transit thrugh the internatinal transit areas f airprts f the Member States Histry f the Schengen Area: At the beginning f the XX century, a valid passprt was a prerequisite fr any travel frm ne state t anther (frm Paris t Russia). Since then, there had been several attempts t try t suppress internal brders between states. A first attempt that still subsists between the United Kingdm and Ireland (Irish Free State) dates back t 1922, when bth cuntries passed laws which treated the ther cuntry as part f its wn territry fr immigratin purpses. On 1944, the gvernments-in-exile f the Netherlands, Belgium and Luxemburg (Benelux 32 ) signed an agreement t eliminate brder cntrls between themselves; this agreement was put int frce in Similarly, the Nrdic Passprt Unin 33 was created in 1952 t permit free travel amngst the Nrdic cuntries f Denmark, Finland, Iceland, Nrway and Sweden and sme f their assciated territries. Bth f these areas have been subsumed within the Schengen Area. On June 14th, 1985, Germany, France, Belgium, the Netherlands and Luxemburg signed an agreement in the Luxemburgish twn f Schengen, freseeing a gradual suppressin f the 31 It is imprtant t mentin that until the visa cde the transit visas were excluded frm the Eurpean Unin law. 32 Traité instituant l Unin écnmique Benelux, 33 The Nrdic Passprt Unin was established in three steps. The first step came in 1952, in the frm f agreements by the Nrdic cuntries t ablish passprts fr travel between them and t readmit aliens having entered illegally int ne Nrdic cuntry frm anther. The secnd step was implemented in 1954, when the agreement was extended t allw citizens t reside in any Nrdic cuntry withut a residence permit. The third step was the remval f passprt checks fr aliens at internal Nrdic brders by a treaty signed July 12, 1957 and cming int frce May 1,

24 brders cntrls f persns at the internal brders between the signing parties. Italy did nt sign at that time due t its brders which cnstitute a challenge in terms f cntrl. On June 19 th 1990, in rder t apply the Schengen agreement, the Schengen Cnventin (Cnventin Implementing the Schengen Agreement) was signed. The cnventin fresaw cmpensatry measures that will guarantee a unique space f security and justice. These cmpensatry measures were: 1) harmnizing prvisins relating t entry int and shrt stays in the Schengen area by nn-eu citizens (unifrm Schengen visa); 2) asylum matters 3) measures t cmbat crss-brder drugs-related crime; 4) plice cperatin (ht pursuit); 5) Cperatin amng Schengen states n judicial matters. The Cnventin Implementing the Schengen Agreement entered int frce n 1 September 1993; its prvisins culd nt take practical effect, hwever, until the necessary technical and legal prerequisites (such as databases and the relevant data prtectin authrities) were in place. The Cnventin thus tk practical effect n 26 March , fr the riginal Parties t the Schengen Agreement as well as fr Spain and Prtugal. Since 1995 Italy, Greece, Austria, Denmark, Finland and Sweden have signed the Cnventin, which nly entered int frce fr the three Nrdic cuntries n 25 March A Schengen cperatin agreement was cncluded with the nn-eu members f the Nrdic Passprt Unin (Nrway and Iceland) in Nrway and Iceland have als fully implemented the Schengen regime since 25 March Once checks at cmmn brders are cmpletely ablished, the hlder f a unifrm visa is entitled t stay in the abve-mentined 15 cuntries which apply the Cnventin Implementing the Schengen Agreement fr a maximum f up t 90 days, within a six-mnth perid. 34 At this date the technical and juridical cnditins were put in place, like the databases and the authrities needed t guarantee the persnal prtectin data. See cidal.dipl.de/vertretung/cidal/fr/03/- Bienvenue/02_Schengen/01_accrd_seite.html 19

25 The Schengen prtcl was annexed t the Treaty f Amsterdam n 2 Octber 1997 (primary law). This cnventin came int frce n 1 May This allwed that mst f the cmpetences were transferred t the Eurpean Cmmunity. The cntrl fr the entry inside the Schengen Space is made at the external brders f the member cuntries. As Mrs Cecilia Malmström emphasized The creatin f the Schengen area is ne f the mst tangible, ppular and successful achievements f the Eurpean Unin, and when necessary, we must find ways t prtect and imprve it th anniversary f Schengen: statement f the Eurpean Cmmissiner fr Hme Affairs, Cecilia Malmström, Mem/11/401, 13 June 2011, 20

26 Key Pints f the Cnventin Implementing the Schengen Agreement The key pints f the cnventin implementing the Schengen Agreement are: Citizens f cuntries implementing the Schengen Agreement can crss the internal brders f the implementing cuntries at any pint withut checks. A visa with n territrial restrictins (visitr's r business visa allwing the hlder t stay up t 90 days per six-mnth perid, transit r airprt visa) granted t a thirdcuntry natinal by ne implementing cuntry entitles the hlder, fr the same purpse and fr the duratin f the visa's validity, t enter withut brder checks ther implementing cuntries as well. Any third-cuntry natinal with a residence permit valid in ne implementing cuntry may travel n a valid passprt, withut requiring a visa, fr up t 90 days per sixmnth perid t ther implementing cuntries. Harmnized visa plicies f Schengen cuntries (cmmn list f third cuntries whse natinals require visas). External brder checks accrding t a cmmn Schengen standard. Access by all Schengen cuntries t the Schengen Infrmatin System (SIS) prviding persnal identity and ther data thrughut the Schengen area. Clse plice and judicial cperatin. Jint effrts t cmbat drug-related crime. Rules determining cmpetence fr asylum prcedures Transpsing the Schengen Cnventin int natinal law 36 This prvisins were replaced by the the Dublin Cnventin f 15 June Tday it is knwn as Dublin II. 21

27 On 29 May 1992, the Luxemburgish parliament ratified the Schengen Cnventin 37. T fully implement the Schengen cnventin, the Law f 9 August 1993 mdified the law f 31 March, 1979 that regulates the utilisatin f nminative data in the infrmatics prcedures 38 and created the natinal database f the Schengen Infrmatin System. The Law f 18 August 1995 n the entry and residence f freign natinals had intrduced a system f sanctins t the airlines that bring inside the cuntry a traveler that des nt have a valid travel dcument and/r a required visa. The Law f 21 December transpsed fur EU directives, including directive 2001/51/CE f the Eurpean Cuncil f 28 June 2001, which cmpleted the dispsitins f article 26 f the Cnventin implementing the Schengen Agreement 40. It is imprtant t mentin that the establishment f the Schengen area was the base fr develping a cmmn visa plicy. The fundamental principle f the Schengen cperatin is t harmnize the prcedures in issuance f visas, with the bjective f reprting the identificatin prcedures and visa cntrl at the external brders f the Eurpean Unin. This bjective requires an effective and efficient cperatin between the diplmatic and cnsular authrities and a clear attitude t diffuse and share sensible infrmatin cntained in the SIS and the VIS, as sn as it will be peratinal Implementing a cmmn visa plicy As we mentined in the definitin, visa plicy remains a svereign right f the State. With the cnstructin f the Eurpean Unin, Member States have lst sme f their svereign rights in benefit f the Eurpean Unin as a whle. One f these rights is visa plicy. This transfer has been slw t the pint that visa plicy is a shared cmpetence between the Eurpean Unin and Member States. Luxemburg has been in this prcess since the beginning, which explains why the Luxemburg visa plicy is fllwing the Eurpean Plicy t 99%. The nly part that remains 37 See Memrial A n 51 f 23 July, See Memrial A n 65 f 20 August, 1993, There are als three regulatins : Grand ducal regulatin f 9 august 1993 n the rganizatin and functin f the cntrl authrity; Grand ducal regulatin f 9 august 1993 that authrize the creatin and explitatin f a nminative data base that cnstitutes the natinal sectin f the Schengen infrmatin system and the grand ducal regulatin f 9 august 1993 that mdified the grand ducal regulatin du 2 Octber 1992, n the creatin and explitatin f the nminative data base f the General Plice. This last decree was mdified by decree f 22 December See Memrial A n 237 f 29 December See Memrial A n 230 f 27 December,

28 t be based entirely natinal law is the D Visa r lng-stay visa that is in reality a cnditin t btain a resident permit. The shrt-stay visa plicy had been transferred t the Unin in a prgressive manner frm the middle 1990 s 41. The cmmn plicy frm the decisinal pint f view is being applied frm 1 January 2005 (c-decisin prcedure) 42. In the applicatin f this plicy the Brder Cde f 15 March 2006 was adpted 43 finalizing with the visa cde and cmplemented by the Regulatin n 265/2010 f the Eurpean Parliament and f the Cuncil f 25 March It is imprtant t mentin that the visa is a cnditin f entry but des nt give the hlder a right f entry. The main bjective t require a third-cuntry natinal t prduce a visa is t avid that migrants that can represent a migratry risk can enter the territry 44. Nt all third-cuntry natinals are subject t hlding a visa t enter the Schengen area. It all depends in which list the cuntry fells. If it is in the black list, the citizens frm thse cuntries are cmpelled t hld a visa fr entering 45. The citizens frm cuntries that are nt n that list (white list) d nt require having a visa. Nevertheless, the visa plicy nly regulates a minimum part f the inflws f migrants that enter annually the Schengen Area. In sme cases there is a majr migratry risk frm the cuntries that are nt subject t visa requirements (in the Luxemburg case, the Brazilian citizens 46 r Serbian natinals). Additinally, the prblem f visa ver stayers remains. These are the reasns why the authrities cnsider that visa plicy by itself is nt and cannt be an effective instrument t cntrl migratin flws and thus des nt serve as a migratin channel. 41 Regulatin 1683/95 f the Eurpean Cuncil f 29 May Directive 2004/927/CE f 22 December Regulatin 562/2006 f the Eurpean Parliament and f the Cuncil f 15 March Les cahiers juridiques du Gisti, Les visas en France, 2003, p. 3. Article 30 f the Visa Cde says: Rights derived frm an issued visa. Mere pssessin f a unifrm visa r a visa with limited territrial validity shall nt cnfer an autmatic right f entry 45 Annex 1 f the regulatin n 539/2001 f the Cuncil 15 March This cmmn visa plicy needed a list f cuntries whse citizens are cnsidered undesirable. Regulatin n 2317/95 f the Cuncil f 25 September 2005 (it has been actualized since then several times). See als, regulatin n 1932/2006 f 21 December It is imprtant t ntice that the participatin f the Parliament n the develpment f the lists had changed with time because befre it can nly give its pinin. 46 The Brazilian citizens take advantage that t guarantee the efficiency f the reciprcity principle; the Eurpean Cmmissin had signed tw new agreements f visa s exemptin with Brazil n 28 September The main reasn was that Brazil demanded a visa t the citizens f fur Member States (Estnia, Latvia, Cyprus and Malta). Hwever, the Eurpean Unin had threatened Brazil t include it in the black list if he cntinues t demand a visa fr citizens f certain Member States. Finally Brazil signed an agreement with the EU fr an exemptin f shrt stay visas fr Eurpean citizens (Dec. n 2010/UE f the Cuncil, 7 Octber 2010). 23

29 2.2. Natinal Plicy and legislative framewrk Luxemburg is a funding member f the Schengen Area. As mentined befre, natinal visa plicy is the reflectin f the Eurpean Unin migratin and visa plicy 47. Even mre imprtant is the fact that Luxemburg des nt have physical external brders. The cuntry des nt have any external brders, except fr the Internatinal Airprt f Luxemburg 48. Cntrls are limited t the flights cming frm the United Kingdm because the rest f the flights arrive frm ther Eurpean Unin Member States s they are nt cnsidered external flights 49 and sme ther flights cming frm third-cuntries. This means that Luxemburg relies n the external cntrls made by ther Members States at the external brders f the Schengen Area, randm internal cntrls and the issuance f visas t prevent irregular migratin. Nnetheless, Luxemburg cntributes t the cntrl f the external brders f the Eurpean Unin via its implicatin in the activities deplyed by FRONTEX 50. Nevertheless, it is bvius that there is a small part f visa plicy which cntinues t be a regalia right f the cuntry: visa D (authrizatin t reside in Luxemburg and thus a cnditin fr btaining a residence permit 51 ). The law f 29 August 2008 n the free mvement f persns and n immigratin is a clear example f this situatin. It regulates in detail the type f residence permit that a third-cuntry natinal can have and in which cases a freigner can migrate legally t Luxemburg. In this sense, we can cnclude that Luxemburg has a general visin f the rle that natinal visas play in prmting and cntrlling natinal migratin Article 39 f the Law f 29 August 2008) establishes as general principle that the third-cuntry natinal that wants t apply fr a resident permit in Luxemburg has t apply frm his r her hme cuntry, previusly t entering the cuntry. It is established in the same 47 There are sme members f civil sciety that cnsider that the visa plicy f the gvernment des nt cmply with Eurpean Unin legislatin n the issue. Pint f view f NGO, Interview N 10, page 2, lines 66 t Plice Grand-Ducale, Prgramme Pluriannuel , p Pint f view f a member f the Grand Ducal Plice, Interview N 3, page 1, lines 28 t Pint f view f a member f the Grand Ducal Plice, Interview N 3, page 1, lines 23, 24, 35 t 38; page 2, lines 83 t 90. Luxemburg has several members f the plice that are members f the RABBIT prgram f Frntex. They are deplyed in a shrt delay when Frntex demands their assistance. They d field peratins and missins t cntrl irregular migratin. Als Luxemburg has putted t the dispsal f Frntex a surveillance airplane in the cntext f the HERA prgram. 51 Pint f view f the Gvernment, Interview 1, page 4, lines 50 t

30 article that the applicatin made in Luxemburg t btain a resident permit that is nt made in exceptinal circumstances 52 will be rejected. It is evident that the requirement f applying frm their hme cuntry fr an authrizatin t stay prevents irregular migratin in the sense that the persn will nt be allwed cming int the cuntry as a turist and then changing his migratry status. The general rule is that the persn that tries t stay under these cnditins will nt be allwed t regularize his r her situatin later, and he will be cnsidered an irregular migrant fr all purpses (he r she cannt rent a place by him/ herself, buy a car, get an emplyment, get any public services, etc.). The Law f 29 August 2008 fresees the fllwing type f authrizatins t stay (and resident permits) fr third-cuntry natinals: 1. Salaried wrkers (art. 42) 2. High skilled wrkers (art. 45) 3. Independent wrkers (art. 51) 4. Athletes (art. 54) 5. Students, pupils, trainees and vlunteers (art. 55) 6. Researchers (art. 63) 7. Family reunificatin (art. 68) 8. Private reasns (art. 78). In this categry are included the cases f humanitarian reasns (art. 78 (3) 53. It is imprtant t ntice that article 89 f the Law f 29 August 2008 nly allws fr the regularizatin f third-cuntry natinals under exceptinal circumstances. The persn in questin needs t fulfill the fllwing cnditins: 1) The persn is nt a ptential danger fr the public rder, public security r public health; 2) The persn has nt made use f false infrmatin abut his identity; 3) The persn demnstrates that he has a real intentin f integratin; 52 Article 39 (2) f the Law f 29 August The residence permit fr humanitarian reasns was simplified eliminating the requirement f prper husing and health insurance cverage, when the Law f 29 August 2008 was mdified by the Law f 1 July

31 4) That he demnstrate by any means that he has have lived and wrked cntinuusly fr at least 8 years r 5) That he has accmplished his schling fr at least 6 years in a Luxemburgish schl. In this case the demand has t be made in the year that fllws his eighteenth birthday. Fulfilling all the requirements is nt an easy task meaning that regularizatin n the basis f this article has been limited t a few single cases. Nevertheless, Luxemburg has always practiced a case by case regularizatin plicy, as it is mentined in the Calitin accrd and the Gvernmental Declaratin f Visa plicy Psitin f the Gvernment In Luxemburg, the shrt-term visa plicy is clsely related t the Eurpean Visa Plicy and in the gvernment s pint f view the natinal visa plicy des nt serve as a migratin channel. In general, visa plicy is nt an internal issue. It is the cmpetence f the General Affairs Cmmissin f the Eurpean Unin; because it is a general issue (it cncerns all the Member States) 54. Visa plicy is planned frm the perspectives f free mvement f persns 55 and frm a plitical pint f view 56. In cnclusin, there is nt a natinal independent visa plicy frm the Eurpean Unin legislatin. This means visa plicy is nt an immigratin plicy 57. Visa plicy that is applied by the Eurpean Unin 58 has a plitical dimensin, especially when it decides which cuntries are subject t visa requirements r nt Pint f view f the Gvernment, Interview N 1, page 2, lines 13 t Pint f view f Gvernment, Interview N 1, page 3, lines Pint f view f Gvernment, Interview N 1, page 2, lines Pint f view f Gvernment, Interview N 1, page 2, lines and page 3 lines There is ne NGO that cnsiders visa plicy as a prergative f the State but this plicy cannt prvide effectives means t cntrl irregular migratin. Pint f view f NGO, Interview N 10, page 3, lines 109 t At the Eurpean level, visa plicy in principle will try t eliminate the visa requirements. Nevertheless, when the EU signed a visa facilitating agreement with a third cuntry it is evident that the ther cuntry has t assume certain respnsibilities such as cntrlling the cnduct f its citizens when they abused f this freedm. Pint f view f Gvernment, Interview N 1, page 3, lines Pint f view f Gvernment, Interview N 1, page 3, line

32 Hwever, lng-term visa plicy is useful fr cntrlling the entry f certain type f individuals. In this sense the legal framewrk is quite elabrated. The law f 29 August 2008, as mentined, prvides the legal framewrk fr permanent r temprary (mre than three mnths) legal migratin 60. Nevertheless, the different types f resident authrizatin are nt prmted t the same extents 61. The cuntry has been develping a very mdern and vigrus ecnmy ver the last 60 years, meaning that migratin plicies are clsely related t ecnmic needs. In the gvernmental prgram f 2009, legal immigratin is described as being a «psitive cntributin t the sciety and the ecnmy f Luxemburg.» Furthermre, this prgram indicates that the applicatin f the law f August 29 th 2008 n the free mvement f persns and immigratin must take place within the framewrk f a cherent and practive immigratin plicy [ ] The bjective is t adapt immigratin t the needs f Luxemburg s ecnmy, while fully respecting the Eurpean and internatinal cmmitments which Luxemburg has made. 62 In rder t d this, an inter-ministerial think tank was set up. It is cmpsed f the ADEM, the Ministry f Emplyment and the Directrate f Immigratin. A first meeting tk place in December Its missin is t create directins and recmmendatins fr a practive and cherent immigratin plicy which takes int cnsideratin the interests f Luxemburg s ecnmy and the current situatin as well as the future f the labr market. 63 The imprtance given t ecnmic immigratin by Luxemburg s Gvernment was brught frward during the interviews : «The grwth f the ecnmy [f Luxemburg] depends in part als upn the businesses f the third cuntries wh mve t Luxemburg and wh, in turn, will bring part f their wrk frce [with them]...it is clearly a very imprtant subject fr Luxemburg. 64 Nnetheless, ne culd fear that Luxemburg s Gvernment des nt give much imprtance t ecnmic migratin cming frm third cuntries because f the large numbers f wrkers cming frm the Grand-Regin (crss brders wrkers). 60 One NGO cnsiders that Luxemburg has its wn visa plicy in terms when it cmes t D Visas. Pint f view f the NGO, Interview N 10, page 2, lines 66 t Pint f view f Civil Sciety, Interview with NGO, Interview N 10, pages 3-4, lines 139 t Gvernmental prgramme, Ministry f Freign Affairs, chapter IV.1. Immigratin, mehttp:// 63 Eurpean migratin netwrk, «Rapprt plitique sur les migratins et l asile 2009», page Ministerial pint f view, interview 4, page 1, lines Eurpean migratin netwrk, Satisfying Labur Demand thrugh Migratin in Luxemburg,

33 When interviewed, the ministerial and emplyers representatives cnsider that mst attentin is given t highly-skilled wrkers r the «rare pearls» which are difficult t find in Eurpe. Frm the emplyers pint f view, if Luxemburg wishes t cntinue its grwth, it must d s in the niches f high added value, as the cst f labr is t high t allw grwth in lw added value emplyment. 65 Fllwing this view, the Gvernment plans t take several initiatives. 66 The by-wrd then seems t be: Qualificatin, wherever it cmes frm. 67 Furthermre, accrding t the gvernmental prgram f 2009, Luxemburg s Gvernment intends t develp its scientific human capital s as t prmte research in Luxemburg. T this end, it is wrking t create an envirnment which will be prpitius t the expansin f scientific and technlgical emplyment and which favrs career perspectives and mbility 68. In this perspective, many initiatives have been taken by the Gvernment, which tend t cnciliate migratin plicy with the ecnmic needs f the cuntry. Psitin f civil sciety: The psitin f civil sciety is that visa plicy is a plicy based n pwer 69. Member States have the right t decide hw and under which cnditins third-cuntry natinals can enter their territries 70. Therefre, it is nt a plicy t channel migratin. Mst f the assciatins interviewed abut the subject cnsider that there is nt a clear plicy f the gvernment fr reslving the migratin issue thrugh visa plicy 71. This rganizatin cnsiders that the prblem f migratin is mre cmplex and visa plicy is nly a part f it 72. The fact that Luxemburg des nt have any type f cntrl at its territrial brders makes that the visa plicy is inefficient t cntrl migratin, because mst f the migrants that are n 65 Emplyers pint f view, interview 10, page 2, lines Eurpean migratin netwrk, Satisfying Labur Demand thrugh Migratin, Ministerial pint f view, interview 12, page 8, lines and page 9, lines 1-6. Eurpean migratin netwrk, Satisfying Labur Demand thrugh Migratin, Ministerial pint f view, interview 12, page 8, lines and page 9, lines 1-6. Eurpean migratin netwrk, Satisfying Labur Demand thrugh Migratin, Gvernmental prgram f 2009, page Pint f view f NGO, Interview N 10, page 3, lines 109 t 110. Pint de view f NGO, Interview N 4, page 2, lines 55 t Wrkshp n Visa Plicy as a migratin channel and Irregular Migratin, EMN NCP Luxemburg, 6 July Pint f view f NGO, Interview N 9, page 1, lines 25 t Pint f view f NGO, Interview N 5, page 1, lines 29 t 42. Als, Interview N 4, page 2, lines 79 t

34 irregular situatin in Luxemburg have cme thrugh anther brder state 73 (i.e. a lt f the migrants frm the MAGREB cuntries had cme thrugh France). The vast majrity f irregular migrants have either abused the fact that they d nt have need f a visa t enter the Schengen area 74 (the best example is the Brazilians) r that they have abused their visa (i.e. the citizens f Cape Verde). The rest cmes thrugh irregular migratin (i.e. the Nigerians) 75. In cnsequence, fr this rganizatin there is nt a general plicy t cntrl migratin thrugh visa plicy. It cnsidered it as almst impssible t cntrl immigratin thrugh visa plicy because they can nly cntrl sme entries (brders are pened t migrants that are in anther brdering cuntry) but they cannt cntrl the exits. Anther rganizatin cnsiders that the visa plicy in Luxemburg is strngly linked t the Eurpean plicy (Eurpean directives). This rganizatin cnsiders that the Luxemburgish visa plicy is fcused in fighting irregular migratin than prmting an pening t legal migratin 76. Nevertheless, anther rganizatin is very critical and cnsiders that visa plicy is prmting irregular immigratin because certain natinalities abuse the visa r use the absence f a visa requirement in rder t cme and stay in Luxemburg nce the validity f the visa expires (Cape Verde) r the perid f three mnths expires fr the third-cuntry natinals (Brazilians and Balkan cuntries) which dn t need a visa t enter the Schengen area Legal Framewrk: The legal framewrk f the cmmn shrt-term visa plicy in primary law was riginally based n the Treaty f Amsterdam 78. This was later mdified with the entry in frce f the Treaty f Lisbn f 1 December 2009 in its title V Pint view f NGO, Interview, N 10, page 3, lines Pint f view f NGO, Interview N 10, page 3, lines 116 t Pint f view f NGO, Interview N 5, page 6, lines 247 t Pint f view f NGO, Interview N 9, page 1, lines 25 t 29. This persn said: n peut cnstater qu ils essayent plus de battre la migratin irrégulière que de faire une uverture pur une migratin légale 77 Pint f view f NGO, Interview N 5, page 7, lines 318 t See Title IV f the Treaty. Article 62.2.b) 29

35 The secndary law that derives frm the treaty is the visa cde, which is cmpulsry fr every member state, and is the legal base that regulates shrt-term visa plicy in Luxemburg. The legal framewrk with regard t visa plicy is cmpleted by the law f 29 August 2008 that regulates entry and residence f freigners, including Eurpean Unin citizens and citizens frm assciated states (Nrway, Iceland and Switzerland) as well as third-cuntry natinals. It regulates all the aspects f temprary stay r permanent residence and the sanctins that can generate the cnducts that vilate these rules. Additinally, the fllwing regulatins apply with regard t visa plicy: the Visa Infrmatin System regulatin, the Grand-ducal regulatin f 21 December , Regulatin N. 265/2010 f the Eurpean Parliament and f the Cuncil f 25 f March 2010 amending the cnventin implementing the Schengen agreement, Regulatin N. 562/2006 as regards the mvement f persns with a lng stay visa and the Eurpean Cmmissin decisin f 11 June 2010 that establishes the handbk fr the rganizatin f visa sectins and lcal Schengen cperatin 81 in accrdance with article 51 f the Visa Cde. It cntains the guidelines fr rganizing visa sectins and lcal Schengen cperatin. Finally the visa facilitating agreements subscribed by the Eurpean Unin and the Balkan cuntries (Serbia, Macednia, Bsnia-Herzegvina, Albania, and Mntenegr), the Russian Federatin, Ukraine, Mldva and Gergia, (see Sectin 5.3.1) and the Memrandum f Understanding n Apprved Destinatin Status subscribed by the Eurpean Unin and China (See sectin 4.1.3) cmplete this framewrk. Implementatin f the Visa Infrmatin System and the Visa Cde The implementatin f the Visa Infrmatin System (VIS) and the Schengen Infrmatin System (SIS) is the cmpetence f an inter-ministerial wrk grup cmpsed by the Ministry f Freign Affairs, the Ministry f Justice, the Grand-ducal Plice, the Infrmatics Centre f the Gvernment and the Intelligence Services Article 77 f the TFEU establishes the rules fr shrt-term stay visas. This article cmprehends fur majr aspects: 1) the lists f cuntries that are subject t the visa requirement and thse cuntries that are exempted; 2) the prcedures and cnditins f issuing visas by the member states; 3) a mdel type visa and 4) rules in terms f unifrm visa. 80 This regulatin establishes the list f safe cuntries Plice Grand-Ducale, Prgramme Pluriannuel , p. 2 30

36 The SIS has been peratinal fr several years. Nevertheless, the implementatin f the Luxemburgish system f SIS II had nt been cmpleted until 2011 because f the need t firstly implement a cmputer interface between the passprt reading machines and the SIS database. Fr implementing these systems (SIS II and the Autmatic Fingerprint Identificatin System AFIS-) the Grand-ducal plice had planned t acquire the technical equipment fr detecting the false travel dcuments and frge dcuments (especially visas). The main reasn fr this was t equip the Freigners Sectin f the Judicial Plice Service with advanced technlgy in rder t cunteract irregular migratin and human trafficking. The main acquisitin planned by the prgram will be a mbile terminal that allws the plice t make identificatin and authenticatin verificatins during the identity cntrl in the field. That instrument that is easily transprtable can be used in the randm cntrls in cafés, restaurants, cabarets, cnstructins sites, train and bus statins and the airprt 83. The system is integrated by a laptp with different sftware, with a lgical cntrl access and cmmunicatin interfaces and a terminal fr taking finger prints and pictures. Luxemburg has decided t fight the fraud in the passprts and visas by mre severe and strict identity cntrls. In relatin with the bimetrical visas, this machine allws t take the finger prints f the persn that is being checked and t cmpare them with the data that appears in the VIS. This peratin allws verifying that the persn cntrlled is authrized t hld that visa in his passprt 84. This machine allws t search in the different bimetrical databases, such as AFIS, SIS and VIS. The system can use different bimetrical systems depending f the data dispsable t give a better identity result 85. Further t sme technical prblems at the Eurpean Cmmissin level and ther Member States, the VIS prject has been pushed back. The new date f entry int frce was set t 24 June Plice Grand-Ducale, Prgramme 2010, p Plice Grand-Ducale, Prgramme 2010, p Plice Grand-Ducale, Prgramme 2010, p. 3 31

37 In rder t accmplish this cmmunity prject, Luxemburg has taken cnnectivity tests prvided by the Cmmissin and develped a new data entry prgram (cnfrming t the requirements f the 767/2008 regulatin (VIS) and the 810/2009 regulatin (Visa cde). Furthermre, the Luxemburgish diplmatic missins, wh are delivering visas, were prvided with the necessary equipment, ntably a fingerprint reader. It is imprtant t nte that bth instruments, the Visa Infrmatin System and the Visa Cde d nt need t be transpsed int natinal law. It is t be underlines that with the intrductin f the Visa Cde, that came int frce n Octber 5, 2009 because it did nt t be transpsed int natinal law by Luxemburg, the prceedings and delays that apply in the treatment f the applicatins are the same. The decisin is taken n a case by case basis. Hwever, the Visa Office can take int cnsideratin aspects and infrmatin related t the cuntry s situatin 86, if it is cnsidered a safe cuntry etc. Als, it needs t be cnsidered that there are cuntries where the verificatin f certain infrmatin will take a lt f time fr the diplmatic missin representing Luxemburg because f the lack f infrastructure r the lack f infrmatin systems put int place. Nevertheless, ne f the NGOs said that the implementatin f the Visa Cde, especially in the case f refusals, is nt evident. The main example is that the visa cde bliges the Member State t justify the mtives fr its refusals. Nevertheless, this rganizatin is categrical that in all the cases that have been treated by them and that they are aware f, there has nt been a simple case where the applicant that had been rejected had received a cpy f the mtivated decisin Psitin du Passprts and Visas Office (Bureau de Passeprts et Visas). 87 Pint f View f NGO, Interview N 5, page 5, lines 205 t

38 Visa plicy, natinal legislatin and legal immigratin The previus sectin has illustrated the explicit link between the legal framewrk and visa plicy with regard t legal migratin. The plicy f the gvernment seems t be in favr f highly skilled wrkers and researchers. The by-wrd then seems t be: Qualificatin, wherever it cmes frm. 88 The NGOs qualified the gvernment s visa plicy as being fcused n prmting the entry (with the exceptin f family reunificatin cases) f peple with qualificatins 89. The psitin f the gvernment in the transpsitin f the directive 2009/50/CE creates a very favrable prcedure in cmparisn t the salaried wrker resident permit, especially in relatin with family reunificatin prcedure 90 while visas t lw skilled wrkers 91 are mre limited. The explanatin, frm the emplyers pint f view, is that if Luxemburg wishes t cntinue its grwth, it must d s in the niches f high value added, as the cst f labr is t high t allw grwth in lw value added emplyment. 92 Highly skilled wrkers The prvisins f article 45 f the law f August 29th 2008 takes int accunt the directive f the Cuncil establishing the cnditins f entry and residence f third-cuntry natinals fr highly skilled (EU blue card) 93 emplyment. The gvernment thereby manifests its interest in facilitating the recruitment f highly skilled wrkers. The bill fr transpsing int natinal law f the directive 2009/50/EC f the Cuncil f May 25 th 2009 establishing the cnditins f entry and residence f third-cuntry natinals fr highly skilled emplyment was intrduced t the Chambre des Deputés n 18 July Ministerial pint f view, interview 12, page 8, lines et page 9, lines 1-6. Eurpean migratin netwrk, Satisfying Labur demand thrugh Migratin, Pint f view f Civil Sciety, Interview with CL, VM. 90 Pint f view f Civil Sciety, Interview with CL, VM 91 Interview with assciatins f Civil Sciety, L.H., ASTI 92 Emplyers pint f view, Satisfying Labur Demand, EMN-NCP-LU, 2010, interview 10, page 2, lines The directive prpsitin (COM(2007) 637) has been adpted in the meantime: Directive 2009/50/CE f the Cuncil f May 25th 2009 establishing the cnditins f entry and f residence f third-cuntry natinals fr a highly qualified jb psitin : ed/sexpdata/mag/126/062/ pdf 33

39 In terms f the article mentined abve, the highly skilled wrker may have access t the labr market in better cnditins and by mre simplified prcedures. 95 As such, unlike wrkers, the highly skilled wrker must nly prve that he meets the legal cnditins t enter the territry, that he has a wrk cntract which crrespnds t the required qualificatins, and a salary which is at least equal t the equivalent f three times the scial minimum wage fr a nn-skilled wrker 96. On the first f January the scial minimum wage fr a nnskilled wrker was 1.757,56 grss per mnth 98. These prvisins are applied t thirdcuntry natinals wh have a higher educatin degree r wh have specialized prfessinal experience f at least five years fr jbs requiring particular prfessinal knwledge and capacities. There is n market test t verify the pririty f hiring cmmunity natinals. Cnsequently, the pinins f the ADEM (Administratin de l Empli) and f the CCTS (Cmmissin Cnsultative des Travailleurs Salariés) are nt required. These persns may be granted a residence dcument fr a maximum perid f three years, renewable upn request. Accrding t the article 45 f the law f August 29th 2008, a change f emplyer r f sectr is pssible if the jb in questin requires particular knwledge r capacities, if the wrker pssesses a wrk cntract fr which he pssesses the required qualificatins and if his pay is equal t at least three times the scial minimum wage. 99 Researchers The ther grup f third-cuntry natinal migrants that the gvernment prmtes is researchers. The law f August 29th 2008 prmtes the issuance f residence permits t this grup f migrants withut the restrictins f salaried wrkers in rder t pursue a research prject. This dcument may be granted by the minister t the third-cuntry natinal wh has a higher educatin degree which gives him access t dctral prgrams, if he can shw a receptin cnventin signed by an accredited research rganizatin, as well as a certificate prving that he will be taken care f. The researcher residence dcument is valid fr ne year r fr the length f the research prject and is renewable Art. 45 f the law f August 29th Art. 1 f the grand-ducal regulatin f September 26th 2008 which determines the level f minimum wage fr a highly qualified wrker in executin f the law f August 29th 2008 n the free mvement f persns and n immigratin, in : Memrial A N 145 f September 29th Last review 12 July Art. 45 f the law f August 29th Art. 63 f the law f August 29th 2008 n the free mvement f persns and n immigratin 34

40 Visa plicy, natinal legislatin and irregular migratin The visa is a dcument issued by a state allwing fr the temprary visit by a citizen f anther, fr a perid f time and a specific purpse. Nevertheless, it des nt give the hlder a right t enter the cuntry. The brder cntrl authrities are the persns that had the authrity t decide if a third cuntry natinal can stay temprarily in the territry r nt. The situatin is the same fr a persn that hlds a visa as well that fr a persn that des nt require a visa. The Schengen Area Members States are respnsible fr the regular cntrl f the external brders. The permissin t stay up t 90 days inside the Schengen area applies in principle t all the thirdcuntry natinals independent if they need a visa r nt (except the hlders that have a visa fr a limited time perid). Hwever, there are peple that enter by regular channels and verstayed the perid f 90 days 101. There are three surces fr irregular migratin: a) peple that came by regular channels and verstayed the 90 day perid (with visa r withut visa); b) peple that were regular migrants and that have lst their legal status and c) clandestine migratin. In Luxemburg the general plicy is t fight irregular migratin. The multiannual prgram and the prgram f 2010 f the Grand-Ducal Plice, ne f the main bjectives f the pplice is t cunteract irregular migratin 102. In 2007, Niclas Schmit, Minister Delegate f Freign Affairs and Immigratin had prpsed a series f measures t cunteract illegal immigratin One f the measures discussed was a new directive t harmnize the sanctins against emplyers that hired irregular immigrants 103. The Minister cited pverty and the perspective f an attractive emplyment as the principal 101 Pint f view f the Gvernment, Interview 1, page 3, lines Plice Grand-Ducale, Prgramme Annuel, 2010, p. 2 When talking abut the acquisitin f an equipment that will allw t detect false travel dcuments and ther frge dcuments they said that this acquisitin has been selected by the Directrate General as ne pririty fr the Grand Ducal Plice t furnish the field units, especially the Freigner Sectin f the Judiciary Plice Service with an effective tl t fight against illegal immigratin. 103 The «sanctins» directive (2009/52/CE) that has t be transpsed n 20 July 2011 but the gvernment had annunced that n September 30, 2011 the Gvernment cuncil will apprve the bill t be sent t Parliament. Pint de view f the Gvernment, Interview 1, page 12, lines See Rapprt sur l état de transpsitin des directives eurpéennes (État des lieux au 10 mai 2011) ; Ministry f Freign Affairs, 10 May 2011, 35

41 reasns that push peple t leave their cuntries f rigin. Instead f putting all the respnsibility n these cuntries, the EU Member States wuld need t cunteract it in their wn terrain. Amng thers, he prpsed that the sanctins culd imply the exclusin f the cmpany frm the public markets r the suppressin f public subventins that the cmpany benefits 104. In a meeting f Ministers f the Eurpean Unin hld n 21 January 2010, M. Niclas Schmit underlined the need fr an pen EU immigratin plicy that must try t rganize the legal migratin and discurage the inflws f irregular migrants. In that cntext, he cnsidered that immigratin must be harmnized in the dmains f entry, residence and status f migrants 105. Nevertheless, the psitin f sme f the NGOs interviewed in the cntext f this study is very clear: mst f the irregular migrants that are in Luxemburg have cme legally. That is because either they btain a visa t enter the Schengen area by any Schengen Member State and they just stay (Cape Verde), r they enter the Eurpean Unin withut the need f a visa (Brazil and Serbians), because they are exempted, and they stay r they are legal residents in anther Member State and they came t Luxemburg trying t get a jb and they decide t stay. In the first tw cases is clear that there is an abuse f the visa plicy 106. Anther grup f irregular migrants is the ne cmpsed frm the rejected asylum seekers 107, and the last grup is the clandestine migrants Refusal f Entry: The brder cntrl authrities can refuse the entry f anyne that they cnsider nt fulfilling the legal requirements established by article 34 f the Law f 29 August 2008 fr entering Eurpafrum.lu, «Niclas Schmit a présenté un paquet de mesures de la Cmmissin eurpéenne qui visent à mieux cmbattre le prblème de l immigratin illégale en Eurpe», 13 June schmit/index.html?highlight=immigratin%22ill%c3%a9gale 105 Eurpafrum.lu, «Sécurité intérieure, cpératin transatlantique en matière de lutte cntre le terrrisme et plitique d immigratin dans le cadre du traité de Lisbnne étaient au prgramme des ministres réunis à Tlède pur un Cnseil JAI infrmel», 21 January Pint f View f NGO, Interview 9, page 2, lines 94 t 101; Pint f View f NGO, Interview 5, page 7, lines 319 t In 2001, this grup cmpsed the majrity f the regularizatins. 108 Art. 34, paragraph (2) f the law f August 29th 2008 n the free mvement f persns and n immigratin : 1. must pssess a valid passprt and a valid visa if this is required; 2. must nt be the bject f a ntificatin fr nn-admissin 3. must nt be the bject f an injunctin frbidding entry n the territry 36

42 the cuntry. This decisin will be taken by the brder cntrl fficer (Airprt Cntrl Service) and it must be duly mtivated 109. This decisin can be executed ex-ffici by the agents f the Airprt cntrl service. The ntificatin and the executin f the decisin are included in a minute that will be addressed t the Minister. Nevertheless, against the refusal s decisin, the visa hlder can file an actin fr annulment t the first instance administrative tribunal. Hwever, this actin des nt have a suspense effect ver the decisin and it can be executed immediately Abuse f the validity f the visa: The law fresees certain cnsequences fr the verstaying f the validity perid f the visa. Article 100 f the Law f August 2008 fresees that the gvernment will refuse the stay and rder the expulsin f a third-cuntry natinal wh has verstayed the perid granted by the visa. Once the authrities realized that the persn had verstayed the validity f his visa, a duly mtivated decisin f refusal f stay will be taken 110 by the Minister. The decisin is ntified t the persn and it will mentin the administrative actins and the delays against the decisin. Nevertheless, the decisin is accmpanied with an bligatin t leave the cuntry in a certain delay (that is nrmally a mnth r mre 111 ) and the cuntry f return and with an entry ban f maximum five years. Against this decisin the persn cncerned can intrduce recurse t the first instance administrative curt and in case that the decisin is negative he can intrduce an appeal t the Administrative Curt 112. Once the decisin is final (res judicata), and the irregular migrant refuses t leave, he can be expelled by frce must nt be cnsidered as a threat fr public rder, dmestic security, public health r internatinal relatins f the Grand-duchy f Luxemburg r f ne f the States members f an internatinal Cnventin relating t the crssing f exterir brders, linking the Grand-Duchy f Luxemburg. 5. Must justify the bject and the cnditins f the freseen stay, and justify having sufficient persnal resurces, as much fr the planned length f stay as fr the return trip t the cuntry f rigin, r justify the pssibility f legally acquiring these means, and have health insurance cverage which cvers all risks within the territry. A grand-ducal regulatin defines the required resurces and indicates the cnditins and mdalities accrding t which this prf may be brught. 109 Article 104 (1) f the Law f 29 August Article 109 (1) f the Law f 29 August Only in urgency cases duly mtivated the delay given will be less than a mnth. Article 111 (2) f the Law f 29 August Article 113 f the Law f 29 August Article 124 (1) f the Law f 29 August

43 There are sme exceptins that are cntemplated in the law where the third-cuntry natinal cannt be expelled: 1) when a request fr extraditin is pending 114 ; 2) when there is the suspicin that the life r freedm f the third-cuntry natinal in his cuntry f rigin is in danger accrding t article 3 f the Eurpean Cnventin n Human Rights r that he will be subject t cruel, inhuman r degrading treatments r trture 115 ; 3) when the third-cuntry natinal because f medical reasns dully crrbrated has t be treated urgently 116. In relatin with the last pint, the third-cuntry natinal receives a reprieve t the expulsin fr a maximum perid f 6 mnths. This reprieve can be renewed up t a maximum f 2 years 117. Hwever, in the case f medical reasns, if the situatin persists, the third-cuntry natinal can apply fr a resident authrizatin fr medical reasns fr the duratin f the treatment that cannt exceed ne year. Nevertheless, if the situatin persists this resident permit can be renewed after study f the case 118. Article 140 f the Law f 29 August penalizes the irregular migrant that had received a ntice t leave the cuntry but des bey it, except when he had been granted with a reprieve f expulsin. Hwever, this article has t be harmnized with the recent judgment El Dridi v. Italy f 28 April 2011 (C61-11) f the Eurpean Curt f Justice 120 that says: Directive 2008/115/EC f the Eurpean Parliament and f the Cuncil f 16 December 2008 n cmmn standards and prcedures in Member States fr returning illegally staying thirdcuntry natinals, in particular Articles 15 and 16 theref, must be interpreted as precluding a 114 Article 128 f the Law f 29 August Article 129 f the Law f 29 August Article 130 f the Law f 29 August Article 131(1) f the Law f 29 August Article 131 (2) f the Law f 29 August It punishes the irregular migrant with a fine f 251 t 1250 eurs r/and a prisn sentence f 8 days t a year. 120 The Curt cncluded that : «Directive 2008/115/EC f the Eurpean Parliament and f the Cuncil f 16 December 2008 n cmmn standards and prcedures in Member States fr returning illegally staying thirdcuntry natinals, in particular Articles 15 and 16 theref, must be interpreted as precluding a Member State s legislatin, such as that at issue in the main prceedings, which prvides fr a sentence f imprisnment t be impsed n an illegally staying third-cuntry natinal n the sle grund that he remains, withut valid grunds, n the territry f that State, cntrary t an rder t leave that territry within a given perid.» in&allcmmj=allcmmj&affint=affint&affclse=affclse&alldcrec=alldcrec&dcdecisin=dcdecisin&dcr=dcr&dcav=dcav&dcsm=dcsm&dcinf=dcin f&alldcnrec=alldcnrec&dcnr=dcnr&dcppag=dcppag&radtyperd=n&newfrm=newfrm&dcj=dcj&dcp=dcp&dcnj=dcnj&typerd=all&d maine=&mts=&resmax=100&submit=rechercher 38

44 Member State s legislatin, such as that at issue in the main prceedings, which prvides fr a sentence f imprisnment t be impsed n an illegally staying third-cuntry natinal n the sle grund that he remains, withut valid grunds, n the territry f that State, cntrary t an rder t leave that territry within a given perid. With regard t third-cuntry natinal students that want t stay fr ther purpses, the Law f 29 August 2008 is very clear. The student that des nt fulfill his student cmmitments can have his residence permit revked 121 withut prejudice f applying the sanctins freseen by article 101. Hwever, nce he finishes his diplma, the student can apply fr a salaried wrker permit fr a maximum delay f tw years 122 if he fulfills the fllwing requirements: a. The applicant has btained his higher educatin diplma; b. He wishes t cmplete his academic frmatin with a first prfessinal experience that serves the ecnmic interests f the Grand Duchy f Luxemburg and thse f cuntry f rigin; c. The ecnmic activity that the applicant wants t develp is related t his academic training; d. He is in pssessin f a wrk cntract. This wrking residence permit is nt renewable. S, if the student decides t stay after this perid the sanctins f article 100 and 101 will apply Agreements with third cuntries Luxemburg visa plicy is related t the general visa plicy f the Eurpean Unin and Luxemburg des nt have a diplmatic representatin in mst f the nn-eurpean Unin cuntries (see annex 3), it depends n the diplmatic representatins f ther Eurpean Unin cuntries t prtect and administer its interests. 121 Article 57 (4) f the Law f 29 August Article 59 f the Law f 29 August

45 These facts cmbined with the gegraphical psitin f Luxemburg, in the sense that it des nt have any external brder with a nn-eu cuntry, makes that the cuntry des nt have any visa bilateral treaty with nn-eu cuntry in this field. The visa facilitating agreements that Luxemburg applies are the nes that the Eurpean Unin have negtiated with ther nn-eu cuntries. These multilateral treaties are with the fllwing cuntries: Visa facilitating agreements with the Balkan cuntries (Serbia, Macednia, Bsnia-Herzegvina, Albania, and Mntenegr), Russian Federatin, Ukraine, Mldva and Gergia, (See Sectin 5.3.1) and the Memrandum f Understanding n Apprved Destinatin Status subscribed by the Eurpean Unin and China (See sectin 4.1.3). It needs t be clarified that these visa facilitating agreements have a cunterpart that are the readmissin agreements. This means that these multilateral agreements are signed nt nly t facilitate the issuance f visa and the free mvement f citizens f bth parties in each ther territry but at the same time they establish simplified prcedures t return the citizens f the ther party when they are in irregular situatin and the ther cuntry must accept the return f their wn citizens. S we can cnclude that thse agreements facilitate nt nly the legal migratin (temprary) but have als a preventin effect ver the irregular migratin Recent changes t Visa Plicy and Legislatin within cntext f a cmmn EU dimensin Luxemburg had implemented its visa plicy in accrdance, first with the Schengen agreement and nce the Schengen agreement became EU law, the visa plicy had always been in accrdance with EU law. This situatin is ttally different frm ther cuntries that jined the Schengen Agreement afterwards and which had t adapt their visa plicy t the requirements f Schengen. The Law n the free mvement f persns and n immigratin had transpsed different directives. Fr example, article 45 f the law is a partial adptin f the Eurpean directive 40

46 2009/50/EC 123. Articles 55 t 62 f this law transpse the Eurpean directive 2004/71/EC and articles 63 t 67 transpse the directive 2005/71/EC. Als the agreements with the Balkans States that lifted visa requirements had affected the visa plicy f Luxemburg. During the 1990 s, Luxemburg accepted a lt f refugees cming frm the Balkans States and granted an ad hc administrative status t a lt f them which was ablished with the Daytn agreement. After this perid, the applicatins were examined under the asylum prcedure. Many f these peple were refused plitical asylum. Sme f them gt a tlerance status t rest temprarily in the cuntry because f the cnflict. Once the situatin calmed dwn in their riginal cuntries, in applicatin t the asylum law a lt f these tlerance status were nt renewed. Many f rejected asylum seekers frm the Balkans have als been legalized in A lt f them were als frced t leave the cuntry either by frce r vluntarily with the ecnmic aide f Luxemburg. Nw that the visa requirement has been lifted, they are returning. The phenmenn is explained d t the fact that in Luxemburg is that there is a large cmmunity f Balkans states citizens in the cuntry s mst f the peple that are cming stay with family r friends. Only the peple that d nt have any link with the cuntry are demanding plitical asylum 125. The exemptin f the bligatin f visa fr certain Balkans cuntries citizens is an imprtant factr that explains the recent augmentatin f asylum applicatins frm the Rma minrities cming frm Serbia. The asylum seekers frm Serbia, between January and April 2011, represent 54% f the ttal number f internatinal prtectin applicatins, and the applicatins frm the Rma minrities frm Serbia represent 41% f all the new applicatins fr internatinal prtectin. 123 The directive 2009/50/CE has nt been transpsed yet. The Cuncil f Ministers n 10 June 2011 apprved a bill t mdify the Law f 29 August 2008 n the free mvement f persns and n immigratin t transpse the directive, cnseil/index.html 124 Fr mre details abut asylum plicy in the the years , see Besch Sylvain. Les réfugiés entre drit et plitique, in : ASTI ans de migratins. 30 ans de recherches. 30 ans d engagements, Editins Guy Binsfeld, 2010, pp Pint f view f NGO, Interview N. 5, page 14, lines 643 ss 41

47 Table N 1: Internatinal Prtectin seekers January July 2011 Internatinal Prtectin Seekers (January July 2011) Files Individuals Serbian Individual Files Individual applicants Files Applicants Rma Serbians Applicants Serbia Rma Serbian Jan Feb Mar Apr May Jun Ttal Perc. 100% Surce: Ministry f Freign Affairs, 2011 EMN NCP LU Accrding t the interviewed NGOs, the prblem has nt been recgnized in all its magnitude by the gvernment which has nly seen an extrardinary augmentatin f the internatinal prtectin applicatins. The real prblem will be appreciated when these peple begin applying fr a residence permit as salaried wrkers. 126 Hwever, the plitical respnse f the gvernment was fast. Cnfrnted with a high vlume f internatinal prtectin seekers (mainly frm Serbia) between the end f the year 2010 and the beginning f 2011, the gvernment and the Parliament addressed the issue. In the State f the Natin speech, Prime Minister, Jean-Claude Junker said that Luxemburg is nt ready t pen its drs t peple that cme frm a safe cuntry 127. He asked the Parliament t apprve 126 Pint f view f NGO, Interview N 5, page 14, lines 643 t The Prime Minister said: «Nus avns dans ntre pays, cmme je viens de le dire, de graves prblèmes, prblèmes que, bien que tuchant un petit nmbre de persnnes, nus devns régler, parce que la nn-gestin de ces prblèmes aurait de graves cnséquences tant pur les persnnes cncernées que pur la sciété dans sn ensemble. En plus, nus devns faire face aux défis qui nus viennent de l étranger. Je veux parler des réfugiés, dnt le nmbre n a cessé d augmenter au curs de l année passée et ntamment au curs des derniers mis. En 2007, 426 persnnes nt cherché une prtectin internatinale au Luxemburg, en 2008, leur nmbre s est élevé à 463, 42

48 the bill that authrizes the fast track prcedure. He als annunced a return help package t the Serbian natinals that leave the cuntry in a three mnth perid after their arrival (250 eurs per adult and 100 eurs per child). The Gvernment Cuncil f 18 mars 2011 apprved avant de passer à 505 en En 2010, ils étaient 786, et rien que pendant les tris premiers mis de cette année, leur nmbre était de 487, ne sit plus que le ttal de l année On ne peut exclure que dans les mis à venir, nus syns cnfrntés à 50 à 60 demandes d asile par semaine. 313 des 487 persnnes qui snt arrivées avant la fin du mis de mars snt riginaires de Serbie. Elles quittent la Serbie, parce que la situatin écnmique y est désastreuse et que la pauvreté y est élevée. Elles peuvent plus facilement quitter la Serbie depuis la suppressin de l bligatin de visa entre la Serbie et l Unin eurpéenne. Parmi les réfugiés serbes, la prprtin de Rms est de 75 %. Nus smmes d avis que la Serbie est un pays sûr. C est un pays qui a une perspective eurpéenne à myen et à lng terme. L actuel afflux de réfugiés d rigine serbe vers l Eurpe de l Ouest et, partant, le Luxemburg, dit et je suis déslé de devir m exprimer de manière aussi drastique s arrêter. Aujurd hui cmme hier, la plitique guvernementale suit tris principes : le Luxemburg uvre ses prtes à tute persnne pursuivie dans sn pays d rigine, le Luxemburg uvre ses prtes parfis et en fnctin des circnstances à ceux qui viennent au Luxemburg pur d autres raisns et le Luxemburg n est pas, a priri, prêt à uvrir ses prtes à ceux qui viennent d un pays sûr. Il s ensuit lgiquement qu au curs des derniers mis, aucun ressrtissant serbe ne s est vu accrder l asile et il y a lieu de suppser que cette situatin ne changera pas dans les mis à venir. Il est dans l intérêt des ressrtissants serbes de quitter ntre pays dans les tris mis de leur arrivée. Ils tuchent 250 eurs par adulte et 100 eurs par enfant pur le vyage de retur, qu ils purrnt effectuer à brd d autcars gratuits. Les persnnes dnt la demande d asile est rejetée au but de plus de tris mis, à la fin de la prcédure d asile, divent quitter le pays sans bénéficier d aide. Il est essentiel que les décisins sur les demandes d asile se prennent rapidement. Pur cette raisn, il faut accélérer davantage les prcédures d asile dites "accélérées", et ce ntamment lrsque les demandeurs viennent d un pays sûr. Or, l applicatin de la prcédure d asile accélérée telle que prévue à l article 20 de la li du 5 mai 2006, est, à la suite d intermezzs jurisprudentiels, gelée depuis février Vendredi dernier, le guvernement a prpsé un prjet de li garantissant le redémarrage de la prcédure accélérée. Je vus demande d appruver ce prjet rapidement. A cela vient s ajuter le prblème de l hébergement des réfugiés, qui est une affaire cmpliquée qui requiert à la fis prudence, tact et déterminatin. Cela est vrai tut d abrd au niveau de l accueil des réfugiés. Les services d accueil et les services de lgement ainsi que les services chargés de l instructin des demandes d asile divent être dtés sans tarder de persnnel supplémentaire. C est là un effrt actuellement en curs. Deuxièmement, cela est vrai pur l hébergement prprement dit. Nus avns un besin urgent de nuvelles pssibilités d hébergement qui divent respecter une répartitin équitable des charges sur l ensemble du pays. Il faut qu à terme, aucune cmmune ne sit dépassée par ces mesures, mais en même temps, il faut qu aucune cmmune ne se sustraie à la slidarité intercmmunale et natinale nécessaire. Cette questin fera l bjet d entretiens avec le Syvicl qui aurnt lieu encre cette semaine. A myen terme, nus devns créer en plusieurs endrits du pays de grandes infrastructures mdulables sus frme de halles u de cnteneurs ffrant des pssibilités d hébergement suffisantes au cas ù nus serins cmme nus en avns fait l expérience au curs des derniers mis cnfrntés à de véritables vagues de réfugiés. Bien sûr, il faut cncevir ces infrastructures de manière à puvir les affecter à d autres usages en cas de baisse de l afflux de réfugiés.» Cela dit, je dis ajuter ceci : les Rms vivant en Serbie u ailleurs en Eurpe vivent dans des cnditins difficiles. Inutile de le nier. C est purqui je veux que les Rms qui snt au Luxemburg sient traités avec le respect et la sensibilité nécessaires. Ils snt malheureux. Tutefis, dans ce mnde, le Luxemburg n est pas le lieu qui permet de régler tus leurs prblèmes. C est purqui la ministre de la Famille et le ministre de l Immigratin se rendrnt sur place en Serbie pur examiner eux-mêmes cmment nus puvns amélirer les cnditins de vie des Rms chez eux. La plitique est claire : nus prpsns ntre assistance aux Rms en Serbie, et nus le faisns en cllabratin avec les ONG luxemburgeises. Le srt des Rms ne nus laisse pas indifférents. Tutefis, plutôt que de les aider ici, nus misns sur l aide que nus leur furnissns chez eux. francaise/index.html?sid=ba78841b709950c3e75d9236a187e28b 43

49 a mdificatin t the Grand Ducal regulatin f 21 December 2007 that fixed the list f safe cuntries in the sense that it includes Serbia 128. With this mdificatin peple cming frm Serbia (that is cnsidered a safe cuntry) that apply fr internatinal prtectin will be treated with the fast track prcedure accrding with the Law f Asylum and ther cmplementary frms f prtectin f 5 May S that the Ministry f Immigratin culd use the fast track prcedure the bill f law was submitted t Parliament n 19 April 2011 and it was apprved n 5 May 2011 (Law f 19 May ). 3. Practical Implementatin and Organizatin 3.1. General Prcedure fllwed in the Stages f the C Visa Prcedure The General Prcedure that Luxemburg fllws fr the issuance f a Visa C is the ne that is cntemplated in the Visa Cde and the handbk fr the rganizatin f visa sectins and lcal Schengen cperatin. The persn shall ask fr an appintment t fill the applicatin. 130 The persn shall ldge the unifrm applicatin 131 frm in persn 132 and present his passprt, a pht and all the supprting dcuments that are asked by the cnsular authrity 133 (there is a nt exhaustive list f things that the diplmatic representatives can ask frm the applicant). The diplmatic fficer will cllect the fingerprints frm the applicant 134.The applicant must pay the visa fee 135. The applicant must pass an interview with a persn f the cnsulate. Here the diplmatic fficer can assess fr the first time if the persn represents a migratry risk r nt. This is 128 The list f safe cuntries is cmpsed by: Albania, Benin, Bsnia-Herzegvina, Cape-Verde, Cratia, Ghana, Macednia, Mali, Mntenegr, Senegal, and Ukraine ed/sexpdata/mag/103/052/ pdf 130 Article 9.2 f the Visa Cde. This applicatin must take place within a perid f tw weeks frm the date when the appintment was requested. 131 Article 11.1 f the Visa Cde 132 Article 10.1 f the Visa Cde. 133 Article 14 f the Visa Cde. 134 Article 13 f the Visa Cde. 135 Article 16 f the Visa Cde. 44

50 cnsidered a determinant factr t deliver a visa 136. The diplmatic fficers receive a frmatin n prfiling, t ask certain type f questins t verify the stry f the applicant 137. Als he has t verify if the cnditin f the guarantee and the receptin in the Member State as well as the ecnmic resurces f the applicant are sufficient and in accrdance t the law. The diplmatic fficer will review if all the infrmatin is cmplete and crrect and if the applicatin is admissible 138. If it is admissible then he r she cntinues the prcedure by intrducing all the infrmatin int the VIS and verifying and linking it with any previus applicatin made 139. If the fficer cnsiders that the applicatin des nt fulfill the requirements, he will declare it inadmissible and the cnsulate must return the applicatin frm and any dcuments submitted by the applicant, destry the cllected bimetric data, reimburse the visa fee and nt examine the applicatin. If it is admissible the fficer will stamp the passprt and send the file fr examinatin 140. Once he cnsiders that the file is cmpleted (in the Luxemburg case) he can either apprve the visa ex-ffici (in the case where there is anther Member State that represents Luxemburg) r transfer the file electrnically t the Passprt and Visa ffice in Luxemburg. In the Passprt and Visa Office the respnsible civil servant will verify all the infrmatin. He has t determine if the applicant fulfills the entry cnditins set ut in Article 5(1) (a), (c), (d) and (e) f the Schengen Brder Cde 141 and assess whether the applicant presents a risk f 136 In Muslim cuntries, the French representatins cmpel the applicant t cme t the interview with an uncvered face. See decisin f the French Cuncil f State, 7 December 2005, n , El Mrsli. 137 Infrmatin prvided by the Passprts and Visas Office. 138 Article 19 f the Visa Cde. 139 Article 8 f the VIS regulatin and article 19.2 f the Visa Cde. 140 Article 20 f the Visa Cde. 141 Regulatin (EC) N 562/2006 f the Eurpean Parliament and f the Cuncil f 15 March 2006 establishing a Cmmunity Cde n the rules gverning the mvement f persns acrss brders (Schengen Brders Cde) Article 5 (1) f the Schengen Brder Cde says: 1. Fr stays nt exceeding three mnths per six-mnth perid, the entry cnditins fr third-cuntry natinals shall be the fllwing: (a) they are in pssessin f a valid travel dcument r dcuments authrizing them t crss the brder; (b) they are in pssessin f a valid visa, if required pursuant t Cuncil Regulatin (EC) N 539/2001 f 15 March 2001 listing the third cuntries whse natinals must be in pssessin f visas when crssing the external brders and thse whse natinals are exempt frm that requirement [17], except where they hld a valid residence permit; (c) they justify the purpse and cnditins f the intended stay, and they have sufficient means f subsistence, bth fr the duratin f the intended stay and fr the return t their cuntry f rigin r transit t a third cuntry int which they are certain t be admitted, r are in a psitin t acquire such means lawfully; 45

51 illegal immigratin r a risk t the security f the Member States and whether the applicant intends t leave the territry f the Member States befre the expiry f the visa 142. Fr this purpse he must decide if there is need t make a query n certain aspects (i.e. interviewing the resident spnsr, cntacting the cmpany that is inviting the persn, make the verificatin in the Visa Infrmatin System, the SIS, etc. r demand the diplmatic missin t verify if certain dcuments are authentic r t ask the applicant fr mre infrmatin) 143. It is imprtant t ntice that this assessment f the migratry risk is discretinary. Hwever in certain cases the cnsular services are cmpelled t cmmunicate their individual files t the Passprt and Visa Office 144. Once the visa fficer cnsiders that the file is cmpleted, he will take a decisin f whether t accept (with all the different specificatins number f entries and validity, if it is limited r nt -) r refuse the visa 145. In the first case the decisin will be cmmunicated t the diplmatic missin t authrize the visa 146. In this case the sticker will be placed n the applicant passprt 147 and they will cntact the persn s he can cme and pick it up. In the secnd case the decisin must be cmmunicated in writing 148 t the applicant with the indicatin f the recurses, delays and instances that he can take against the decisin 149. The diplmatic fficer has t hand t the applicant a dcument with the mtives f the refusal (this is applicable since April 25, 2011). Hwever, the Visa Cde in its annex VI simplifies the (d) they are nt persns fr whm an alert has been issued in the SIS fr the purpses f refusing entry; (e) they are nt cnsidered t be a threat t public plicy, internal security, public health r the internatinal relatins f any f the Member States, in particular where n alert has been issued in Member States' natinal data bases fr the purpses f refusing entry n the same grunds. 142 Article 21.1 f the Visa Cde. 143 The fficer after reviewing all the available infrmatin in the VIS and the SIS can make a cnsultatin t the central authrities f ther Member States. Article 22.1 f the Visa Cde. 144 Article 21 f the Visa Cde insists n the discretinary pwer f cnsular authrities. Fr example it is interesting the psitin f the French Cuncil f State (Cnseil d Etat Français) in this pint had said that the French diplmatic authrities dispse f a large discretinary pwer and can justify their decisin in issuing a visa in the general interest. CE, 28 February 1986, N , Ngak Jeuga, Rec. CE, p Article 23.4 (a), (b), (c) f the Visa Cde. 146 Articles 24 and 25 f the Visa Cde. 147 Article 29.1 f the Visa Cde. 148 Article 32.2 f the Visa Cde. 149 Article 32.3 f the Visa Cde. 46

52 wrk f the cmpetent authrities establishing a frm that will expse in a circumstantial manner the reasns fr the refusal f the visa 150. The main reasns fr refusal are: a) Existence f a risk fr the public rder r a risk f diversin f the bject f the visa 151 ; b) Insufficient resurces. In this case there is a quantitative criterin. The precarius situatin f the applicant implies by itself a migratry risk. c) Inscriptin n the Schengen Infrmatin System. d) The nn-serius character f a study prject. e) Financial incapacity f the family member n the Member State that invites the applicant t assume the financial respnsibility f the applicant in the territry f the member state. All this prcedure has t be handled in a delay f 15 days frm the day f the ldging f the applicatin 152. Nevertheless, in cases were further scrutiny is needed r when the diplmatic missin represents anther Member State (the case f Luxemburg) the delay is f 30 days 153. Exceptinally the delay may be extended t 60 days in case additinal dcuments are needed Visa issuance fr the purpse f legal immigratin specific prcedure fllwed in the Stages f the Visa Prcedure There are three types f visas that Luxemburg can issue under the visa cde: a) A Visa; b) C Visa and c) D Visa. A) A Visa The A Visa is a transit visa, nrmally fr transit in internatinal airprts. In the case f Luxemburg it is nt current t issue an A Visa because the Internatinal Airprt f 150 It establishes eleven reasns that justify the refusal f the visa. Hwever, it is imprtant t mentin that the cnsular authrities have the right t refuse the visa with ther mtives than thse cntemplated in the annex VI, based n the large discretinary pwers. 151 In this case the diplmatic fficer must take int accunt: 1)the past cnduct and the criminal recrd f the applicant, 2) if he had verstayed the allwed perid f a previus visa n the Schengen area r 3) if he had been an irregular migrant in the past and 4) has t take in cnsideratin if there is any risk t the general interest (fr example, the fficer can realize that the applicatin cver a permanent installatin plan in the Schengen area, r if there are nt sufficient attachments t the cuntry f rigin). 152 Article 23.1 f the Visa Cde. This delay applies fr Luxemburg in the Luxemburg diplmatic missins. 153 Article 23.2 f the Visa Cde. 47

53 Luxemburg (FINDEL) is nt an internatinal hub fr any cmpany s it is very difficult that smene will try t travel in transit t anther cuntry thrugh Luxemburg 154. Nevertheless, the Grand-ducal plice, especially the Central Unit f the Plice at the Internatinal Airprt, is charged with the brder cntrl and the issuance f urgency visas and the implementatin f the Schengen Infrmatin System (SIS) 155. B) C Visa Visa applicatins shuld be made in persn at a Luxemburg diplmatic r cnsular missin r in a diplmatic r cnsular missin f a Member State f the Schengen agreement which issues visas n behalf f Luxemburg in the applicant's hme cuntry Prcedure fr the applicatin f a C Visa In general terms, there are 3 types f Visa applicatins: - Visa applicatin with a spnsr in Luxemburg - Visa applicatin withut a spnsr - Visa applicatin thrugh firms/fficial delegatins/sprt clubs Tw cpies f a visa applicatin frm shuld be filled in. The fllwing dcuments shuld be prvided in supprt f the applicatin: tw recent passprt phts a valid passprt r a travel permit recgnized by the Schengen cuntries whse validity is at least three mnths lnger than the validity f the visa applied fr Written prf relating t the reasn fr the jurney such as: 1. fficial invitatin letter fr a business trip 154 There are very few internatinal flights cming frm cuntries utside f the Eurpean Unin and they d nt make cnnectins with ther flights. 155 Plice Grand-Ducal, Prgramme Pluriannuel , p

54 2. Certified cpy f an accmmdatin r a letter f the reference persn in Luxemburg guarantying the stay. 3. htel reservatin 4. return airplane ticket 5. Prf f sufficient means f subsistence (bank statements, cash, credit cards etc.) 6. prf f legal residence in the usual cuntry f residence 7. health r travel insurance is required It is imprtant t ntice that beginning n 11 Octber 2011; the applicant will be cmpelled t give his finger prints (10 fingers) 156. With this new system, the bimetrical data will be saved in a cmmn database which will be used t cntrl the visa s hlder identity at the external brder. Still, there are sme practical prblems because there are sme peple that d nt have finger prints, because they wrk with chemical prducts (i.e. farmers) r because they submit themselves t chemical prcedures r plastic surgeries t erase their finger prints 157. It is imprtant t highlight that this prcedure will nly be applied in a first phase t a glbal rll-ut t citizens cming frm the Maghreb cuntries. As we have seen Luxemburg des nt have diplmatic representatin in all the cuntries s fr issuing the C visa (with r withut territrial limitatins). There are tw pssibilities: 1. The visa is issued ex-ffici by ther member state diplmatic representatin withut cnsulting Luxemburg. This practice is called visa granted exffici 158. In this case the diplmatic representatin will fllw its wn prcedures. In this case the diplmatic representatin will accept r refuse the visa n its wn right. In case f refusal, Luxemburg has the right t ask the reasns why the diplmatic representatin refuses ex-ffici the visa. Nevertheless, the applicant must file the administrative recurses in the administrative jurisdictin f the cuntry that made the refusal and nt in Luxemburg. 156 Infrmatin prvided by the Passprts and Visas Office, May Infrmatin prvided by the Passprts and Visas Office. 158 Visa «accrdé d ffice». Passprts and Visas Office,

55 2. The visa is apprved by Luxemburg. This can be made directly thrugh a Luxemburgish diplmatic missin r thrugh anther member state diplmatic representatin that represents Luxemburg. In any f these tw cases the fllwing prcedure will have t be respected: 1. The applicant must cmplete the visa applicatin jining all the dcuments that are listed as requisites (See annex I f the Visa Cde (regulatin EC 810/ ). 2. Nrmally nce the applicant brings the applicatin cmpleted he will have t pass in mst cases a little interview with a cnsular fficer. Once the applicatin is cmplete it is transferred with the remarks made by the cnsular fficer by electrnic means t the Visa department in Luxemburg. The delay f 15 days begins t run frm the mment the diplmatic authrity judged the applicatin as cmpleted. 3. Here the examinatin prcedure begins. The examiner will evaluate if the applicant fulfill the criteria s the visa can be issued. If the examiner cnsiders that he needs mre infrmatin, he can demand any dcument included in the list f nn-exhaustive justifying dcuments (annex II f the Visa Cde (regulatin EC 810/2009)) and any ther that he cnsiders necessary. It is imprtant t ntice that when there is an invitatin f a particular the examiner can call the cmpany r interview the persn that will be respnsible fr the freigner 160. When there is a persn that is taking the financial respnsibility f the persn that he is inviting, the Passprts and Visas Office (Bureau des Passeprts et Visas) has t intervene twice: 1) it has t validate the financial guarantee, and 2) decides t grant the visa r nt. 4. Once the examiner has finished his evaluatin, he takes the file t the head f the department and they will discuss the decisin t be taken. The Directr f the Passprts and Visas Office will take the final decisin. If it is accepted r rejected the visa department wuld cntact the diplmatic representatin with the decisin. If it is accepted the diplmatic representatin will issue the visa. Hwever, if this representatin has any further infrmatin that demnstrates that the applicant des nt deserve t be issued a visa, then the diplmatic representatin wuld stp the issuing f the The persn that guarantees the stay f the freigner is respnsible up t 2 years fr the persn and he is liable fr any wrng ding that the freigner des in the Schengen area. Als the persn is respnsible fr the return f the freigner t the cuntry f rigin. Interview with the Bureau des Passeprts et Visas, May

56 visa and cntact the Visa ffice submitting the new infrmatin. The final decisin will be taken by the Visa ffice. In case that the visa was refused, the applicant will be ntified f the final decisin and the mtives f the refusal 161. The applicant has t cme t the embassy r cnsulate t receive the signed refusal. It is nly until then that the delay fr making recurse against the decisin is pssible. There are tw types f recurse: a) Gracius recurse: This is a recurse that is made t the Directr f the Passprts and Visas Office, t recnsider his decisin. Against his final decisin there is n ther recurse. b) Administrative recurse: This is the nrmal recurse that any citizen culd intrduce t the first instance administrative curt. The delay fr intrducing the recurse is f three mnths (art. 16 f the Law f 21 June 1999) frm the ntificatin f the decisin. Against the decisin f the first instance administrative curt the applicant has the right t make an appeal t the Administrative Curt (Cur Administrative).The delay fr ding s is f 40 days (art. 38) 162 Nevertheless, it is almst impssible that an applicant will use this administrative prcedure nt nly because f the cst f hiring a lawyer in Luxemburg but the time it will take t be decided. S nrmally the nly thing that the applicant des is t file gracius recurse against the decisin t the Directr f the Visa Office. Types f visas: The C visa issue by Luxemburg is unifrmed in accrdance with the Visa Cde. Nevertheless fr internal use t distinguish the duratin f the visas thee Visa department made an internal classificatin: 161 This frm cmes frm the STANDARD FORM FOR NOTIFYING AND MOTIVATING REFUSAL, ANNULMENT OR REVOCATION OF A VISA cntemplated in annex VI f the Visa Cde. 162 Law f 21 June This law rules the prcedure f the administrative jurisdictins. 51

57 a) C-1: ne entrance with a maximum stay f 30 days and the hlder must entry in 30 days after issuance. b) C-2: multiple entries with a maximum stay between 30 and 90 days. Maximum validity: three mnths. c) C-3: multiple entries with a maximum stay f 90 days. Validity between 3 mnths and a year. d) C-5: multiples entries with a maximum stay f 90 days. Validity between 1 and 5 years. Delay fr issuing a C VISA The delay fr issuing a C visa is the ne that is established by the Visa Cde. It is imprtant t mentin that the transmissin f the infrmatin, thanks t the new technlgies this transmissin is made n real time Prcedure fr btaining a D visa The visa D r lng stay visa entitles its hlder t stay fr mre than 90 days in the territry f the cuntry that issued it. Als, it entitles its hlder t travel in the Schengen area fr up t 3 mnths 163. It is imprtant t ntice that the new D visa has integrated the ancient D+C visa that disappeared n 5 April 2010 with the entrance n frce f the Visa Cde. The D visa is a prerequisite fr btaining a resident permit. Article 39 f the Law f 29 August 2008 is clear that the applicatin fr the authrizatin t stay and fr the visa has t be dne frm the cuntry f rigin. In this case the diplmatic representatin that represents Luxemburg des nt have any discretin in issuing the visa and it is cmpelled t send the applicatin directly t the Ministry f Freign Affairs in Luxemburg, wh is the nly cmpetent authrity that will take the decisin related t the residence permit and the D visa. Hwever, the diplmatic representatin will help in the examinatin prcedure f the applicatin. It is necessary t distinguish between the applicatin fr the authrizatin t stay and that fr the visa. The applicatin fr the authrizatin t stay has t be intrduced first. The delays in 163 With the visa cde the qualificatin f Visa D+C was incrprated in the new D Visa. 52

58 which the Ministry f Freign Affairs has t respnd vary frm 3 mnths in cases like salaried wrkers, students, researchers, athletes, transferred and psted wrkers, t 9 mnths in cases f family reunificatin when the resident is a nn-eu citizen. In exceptinal cases, linked t the cmplexity f the applicatin s investigatin, this perid may be extended. In any case the delay starts t run when the file is cmpleted. Once the authrizatin t stay is accrded, the applicant has 90 days t btain the D visa in case it is needed, r 90 days t enter the cuntry, in case the applicant des nt required a visa t enter. This D visa is issued in the fllwing cases 164 : 1. Salaried wrker In rder t btain the authrizatin t stay as salaried wrker in Luxemburg, the thirdcuntry natinal must meet the five fllwing cnditins 165 : a. the wrker must meet with, like all ther third-cuntry natinals, the general regulatins f article 34, paragraph (2) f the law f August 29th ; b. he must nt prejudice the hiring pririty frm which certain wrkers benefit in virtue f the cmmunity r natinal dispsitins; c. the practice f the intended activity serves the ecnmic interests f Luxemburg; d. the persn seeking authrizatin dispses f the required prfessinal qualificatins fr the practice f the intended activity; 164 Article 38 f the Law f 29 August Art 42 f the Law f 29 August Art. 34, paragraph (2) f the law f August 29th: 1. must pssess a valid passprt and a valid visa if this is required; 2. must nt be the bject f a ntificatin fr nn-admissin 3. must nt be the bject f an injunctin frbidding entry n the territry 4. Must nt be cnsidered as a threat fr public rder, dmestic security, public health r internatinal relatins f the Grand-duchy f Luxemburg r f ne f the States members f an internatinal Cnventin relating t the crssing f exterir brders, linking the Grand-Duchy f Luxemburg. 5. Must justify the bject and the cnditins f the freseen stay, and justify having sufficient persnal resurces, as much fr the planned length f stay as fr the return trip t the cuntry f rigin, r justify the pssibility f legally acquiring these means, and have health insurance cverage which cvers all risks within the territry. A grand-ducal regulatin defines the required resurces and indicates the cnditins and mdalities accrding t which this prf may be brught. 53

59 e. the persn seeing authrizatin pssesses a wrk cntract fr a jb pening declared vacant t the ADEM in the frms and cnditins freseen by the afferent current legislatin. The necessary cnditins are verified respectively by the ADEM and by the cnsultative cmmissin fr wrkers (CCTS 167 fllwing the mdalities determined by the grand-ducal regulatins. 168 The minister in charge f immigratin requests, first f all, the pinin f the ADEM, wh must reply within three weeks, then afterward that f the CCTS; Prcedures fr the residence authrizatin: Once the applicatin is cmpleted, the diplmatic representatin will transfer the file t the Ministry f Freign Affairs in Luxemburg. The case will be assigned t the examiner. This persn will analyze all the dcuments that are submitted t him and will decide if the applicatin is in accrdance with the law. The applicatin fr the authrizatin t stay has t be addressed t the Ministry f Immigratin. The demand must cntain 169 : - The identity f the applicant ; - A cmplete cpy f the applicant s passprt that must be certify against the riginal; - The birth certificate; - The criminal recrd r an affidavit; - A curriculum vitae; - A certified cpy f the diplmas r f the prfessinal qualificatins f the applicant, with the translatin in French, German r English if the riginal dcuments are nt issued in theses languages 167 Within the terms f the grand-ducal regulatin f September 5th 2008 and in applicatin f the law f 29 August2008 n the three cnsultative bdies cmpetent fr immigratin during the decisin-making prcess, s ntably fr the CCTS; The principal missin f the CCTS is t ensure the general cnfrmity with the legal cnditins which cntrl the renewal r the cnference f the residence dcument f emplyed wrkers r the wrk permit f third-cuntry natinals. The CCTS is cmpsed f 10 members, secnded by the cmpetent ministries. 168 Art. 43 f the law f August 29th Article 2 f the grand ducal regulatin f 5 September 2008 that fixed the cnditins and mdalities related t the issuing f resident permits fr salaried wrkers 54

60 - A labr cntract, dated and signed by bth parties; - The applicant must indicates if there any family ties with the emplyer - A mtivatin letter that will supprt the applicatin The examiner can demand any ther dcument r cmplementary infrmatin 170 that he cnsiders necessary fr its investigatin. Fr example, he/she can interview the members f the cmpany r the emplyer t verify the authenticity f the dcuments. The Ministry must transfer a cpy f the applicatin and all the infrmatin t ADEM that has t give a mtivated pinin 171 n the pprtunity f authrizing the residence permit. That must be dne in a three weeks perid. After receiving the pinin r at the expiratin f the delay, the Ministry will demand the psitin f the cnsultative cmmissin f wrkers (CCTS). The cmmissin will give the respective pinin t the minister and then the Minister takes the final decisin. The third-cuntry natinal wh received an authrizatin t stay as a salaried wrker wh can give the prf that he has apprpriate husing and a medical certificate may be granted a salaried wrker residence dcument (titre de séjur). The first residence dcument is valid fr ne year maximum and fr ne sectr and ne prfessin nly. Fr the first renewal 172, the residence dcument is extended fr tw additinal years if the wrker has a wrk cntract fr a jb psitin declared vacant with the ADEM. Frm the secnd renewal n, the residence dcument, valid fr three years, can be used fr all prfessins in all sectrs. 2. Highly skilled wrkers The prvisins f article 45 f the law f August 29th 2008 takes int accunt the directive prpsitin f the Cuncil establishing the cnditins f entry and residence f third-cuntry 170 Article 4 f the grand ducal regulatin f 5 September This pinin must cntains: 1) that the pst was declared vacant by the ADEM; 2)the bjective need f the emplyer related t the executin f the wrk in the psitin that the emplyee is required; 3) verificatin f the cncrete availability f ther registered wrkers in ADEM that benefit frm a pririty t be higher; 4) the fllw ups t the assignatins and 5) the number f wrkers that have a resident permit in relatinship with the ttal number f wrkers f the emplyer. Article 3 f the grand ducal regulatin f 5 September The Minister can ask fr the pinin f the cnsultative cmmissin f wrkers, if the previus cnditins d nt exist anymre. Accrding t article 6 f the grand ducal regulatin f 5 September

61 natinals fr highly skilled (EU blue card) 173 emplyment. The Gvernment thereby manifests its interest in facilitating the recruitment f highly skilled wrkers. The cmplete transpsitin int natinal law f the directive 2009/50/EC f the Cuncil f May 25 th 2009 establishing the cnditins f entry and residence f third-cuntry natinals fr highly skilled emplyment is currently being discussed in Parliament.. In terms f the article mentined abve, the highly skilled wrker may have access t the labr market in better cnditins and by mre simplified prcedures. 174 As such, unlike ther wrkers, the highly skilled wrker must nly prve that he meets the legal cnditins t enter the territry, that he has a wrk cntract which crrespnds t the required qualificatins, and a salary which is at least equal t the equivalent f three times the scial minimum wage fr a nn-skilled wrker. On 1 January 2011 the scial minimum wage fr a nn-skilled wrker was 1.757,56 grss per mnth 175. These prvisins are applied t third-cuntry natinals wh have a higher educatin degree, r wh have specialized prfessinal experience f at least five years fr jbs requiring particular prfessinal knwledge and capacities. There is n market test t verify the pririty f hiring cmmunity natinals. The pinins f the ADEM and f the CCTS are as a cnsequence nt required. These persns may be granted a residence dcument fr a maximum perid f three years, renewable upn request. Accrding t the article 45 f the law f 29 August 2008 n the free mvement f persns and n immigratin, a change f emplyer r f sectr is pssible if the jb in questin requires particular knwledge r capacities, if the wrker pssesses a wrk cntract fr which he pssesses the required qualificatins and if his pay is equal t at least three times the scial minimum wage. 176 Prcedure: The applicatin must be filed at the embassy f the cuntry f rigin and must cmplied with the requisites f article 34 paragraph (1) f the Law f 29 August He has t have a cntract and the qualificatins required fr the psitin and that the salary agreed will be at 173 The directive prpsitin (COM(2007) 637) has been adpted in the meantime: Directive 2009/50/CE f the Cuncil f 25 May establishing the cnditins f entry and f residence f third-cuntry natinals fr a highly qualified jb psitin : Art. 45 f the law f 29 August Art. 1 f the grand-ducal regulatin f September 26th 2008 which determines the level f minimum wage fr a highly qualified wrker in executin f the law f August 29th 2008 n the free mvement f persns and n immigratin, in : Memrial A N 145 f September 29th Art. 45 f the law f 29 August He has t have a valid travel dcument and a visa if it is necessary. 56

62 least three times the scial minimum wage. Als he/she has t prve that he has adequate husing where t live 178. Hwever, the examiner can demand any additinal infrmatin that he/she will think is necessary fr the decisin. Like there is n market test t verify pririty f hiring cmmunity natinals then the pinins f ADEM and f the CCTS are nt required. The Minister can take the decisin nce the examiner cnsiders that the file is cmpleted. 3. Researchers The law f 29 August 2008 instigates the residence dcument in rder t pursue a research prject. This dcument may be granted by the minister t the third-cuntry natinal wh has a higher educatin degree which gives him access t dctral prgrams, if he can shw a cnventin signed by an accredited research rganizatin, as well as a certificate prving that he will be taken care f. The researcher residence dcument is valid fr ne year r fr the length f the research prject and is renewable. 179 Hwever, the research rganizatin has t be apprved by the Ministry and it has t fulfill all the requirements f article 65 f the Law f 29 August One f the principal bjectives f the Luxemburg gvernment is t attract tp researchers in certain fields, like bimedicine. Prcedure: Once that the dcuments have been presented t the diplmatic representatin and they have been transferred t the Ministry the examiner will verify if all the requirements f article 63 are fulfill and the mdalities f the cnventin signed with the research rganizatin. When the examiner finished his evaluatin the final decisin will be taken by the Minister. The research residence permit will be issued fr at least ne year r fr the entire perid f the prject, and it can be renewed if the cnditins by which it had been granted cntinue t be valid. 4. Athletes 178 The criteria are defined by the grand ducal regulatin f 5 September Art. 63 f the law f August 29th 2008 n the free mvement f persns and n immigratin 57

63 The residence dcument fr athletes is granted t practice, exclusively, an athletic r caching activity. The athlete r cach must fill the cnditins f entry int the territry and must have cncluded a cntract with an accredited federatin r with an affiliated club. The salary must nt be inferir t the scial minimum wage set fr a full-time jb and the cncerned persn must be cvered by illness/accident insurance. The applicant must prve that he/she has adequate husing. The Minister takes the decisin withut cnsulting any f the cnsultative cmmissins. The residence permit is valid fr ne year maximum. This dcument is renewable, upn request, fr the same perid f validity, as lng as the cnditins fr qualifying are met Transferred wrkers A transfer authrizatin permit may be granted, upn request frm the hst cmpany, t a third-cuntry natinal wrker wh is temprarily transferred t the Grand-Duchy f Luxemburg, within the framewrk f a transfer between cmpanies belnging t a scial r ecnmic entity. Prcedure: In rder t d this, the hst cmpany must submit a request t the minister, explaining the psitin and wrk the wrker will accmplish and the duratin f the transfer. In rder fr the transfer authrizatin permit t be apprved, the wrker must be engaged thrugh a wrk cntract f unfixed length t the sending cmpany wh is ding the transfer. The transferred salaried wrker transfer authrizatin permit is valid fr ne year maximum. This dcument is renewable, upn request, fr the same perid f validity as lng as the cnditins f qualificatin are met. 181 This dcument des nt allw the hlder t btain a residence permit Independent wrkers A residence dcument fr independent activity may be granted t a third-cuntry natinal wh wishes t exercise a nn-salaried prfessin in Luxemburg. 180 Art. 54 f the law f August 29th 2008 n the free mvement f persns and n immigratin 181 Art. 47 (1) f the law f 29 August Art. 47 (5) f the law f 29 August

64 Prcedure 183 : The applicant must fulfill the same prfessinal qualificatins and integrity criteria that any EU citizens. He has t prve that he has the required qualificatins t practice the activity he wants t develp. The applicant must prve that he has adequate resurces s as t be able t practice this activity and that the activity serves the interests f the cuntry. Als the applicant has t prve that he has adequate living facilities. Once the examiner cnsiders that the applicatin is cmpleted the Ministry will ask the pinin f the Cnsultative Cmmissin f Independent Wrkers (CCTI). 184 After receiving the pinin the Minister takes the decisin. The residence dcument is granted fr three years, renewable upn request fr the same length f time Students, pupils, trainees and vlunteers This resident permit is nly issued t the third-cuntry natinal whse nly bjective is t study if he fulfills the fllwing cnditins: a. The applicant has been accepted in a higher educatin institutin 186 fr btaining a diplma f higher educatin; b. The applicant has a parental authrizatin t pursue the studies if he is nt 18 years ld. 183 This prcedure als applies t any persn that demands an authrizatin f establishment r a ministerial accrd t establish an independent artisanal, industrial, cmmercial r agricultural frm the Ministry f Middle Classes. 184 Art. 51 f the law f 29 August Art. 52 f the law f 29 August The University f Luxemburg, any institute that delivers BTS diplmas and any ther higher educatin institutin that is apprved in virtue f the Law f 14 August 1976 that established the cnditins f creatins f private establishments f higher educatin. 59

65 c. The applicant prves that he has financial means t sustain himself and t return t his cuntry f rigin. d. The applicant has health insurance The residence permit will be issued fr ne year and will be renewed yearly fr the duratin f the studies and if it the prgram is inferir t a year it will be issue fr the duratin f the studies. The student can nly wrk a maximum f 10 hurs per week mnthly if he is in a master r PhD prgram. The students that are registered in a BTS r a bachelr prgram can nly wrk the same hurs, after having cmpleted the first tw semesters. This limitatin des nt apply during the summer vacatin perid. It als des nt apply t the PhD students that are ding research inside the higher educatin institutin r a research center, as well as the assistants that have a cntract with the University f Luxemburg 187. The residence permit cannt be renewed r withdrawn if the student des nt respect the wrking time limits r he des nt d any prgress in his studies. Nevertheless, a salaried wrker residence permit can be authrized fr a maximum perid f 2 years if the applicant fulfills the fllwing cnditins: 188 e. The applicant had btained his higher educatin diplma; f. He wishes t cmplete his academic educatin with a first prfessinal experience that serves the ecnmic interests f the Grand Duchy f Luxemburg and thse f cuntry f rigin; g. The ecnmic activity that the applicant wants t develp is related t his academic frmatin; h. He is in pssessin f a wrk cntract. In the case f trainees the situatin is slightly different. The trainee must fulfill the fllwing criteria: a. That the internship is cmpulsry and freseen in the prgram the applicant is in; b. The applicant prves that he has the parental authrity in case he is a minr; 187 Art. 57 (3) par. 3 f the law f August 29 th 2008 n the free mvement f persns and n immigratin 188 Art. 59 f the law f August 29 th n the free mvement f persns and n immigratin 60

66 c. He prves that he has the financial means t supprt himself during the internship and the means t return t the cuntry f rigin. He wuld receive a trainee residence permit fr the duratin f the internship that cannt exceed ne year. Only in very exceptinal cases the Ministry can renew nly ne time the permit and fr the time needed t btain a prfessinal qualificatin recgnized by Luxemburg Family Reunificatin. There are tw different types f prcedures fr family reunificatin. The first type is when the third-cuntry natinal is a family member f a Eurpean Unin citizen r a citizen f Iceland, Nrway r Switzerland. Fr this purpse the law cnsidered as a family member the fllwing persns: a spuse t whm the Eurpean is married a civil partner bund by fficial ceremny (such as Pacte civil de slidarité) a direct descendant (child) (r descendant/child f partner) that is nt 21 years ld a direct ascendant (parent) wh is dependent n the Luxemburg resident r his/her partner certain exceptins fr persns wh have lived in the same husehld as the resident applicant. The third party cuntry natinal wh wishes t apply fr family reunificatin t an EU r similar citizen must filed the applicatin fr a D visa in the Luxemburg diplmatic representatin (can be a Luxemburg embassy r the embassy f anther Member state that represents Luxemburg) in his r her cuntry f rigin. The dcuments t be submitted t the embassy are: an authenticated cpy f the full passprt, valid fr a t least six mnths; an extract frm the birth certificate; 189 Art. 61 (2) f the Law f 29August

67 an extract frm the criminal recrd, established at least three mnths ag. In case the family reunificatin is fr a spuse r partner, then the applicant must als submit: an extract frm the marriage certificate/cpy f partnership; If it is a child f divrce parents the applicant must submit a cpy f the judgment cnferring custdy f the minr t the parent wh is residing in Luxemburg, r a ntarized authrizatin frm the ther parent attesting his r her agreement that the minr can mve abrad. In case f an ascendant the applicant must submit: prf f financial supprt, in any apprpriate means, prving that the ascendant was in a situatin f dependency t the descendant living in Luxemburg fr a perid f at least six mnths befre the applicatin fr family reunificatin. The secnd type f family reunificatin is the case that the Luxemburgish resident is a thirdcuntry natinal. In this case the applicatin prcedure changes. The applicatin must be made befre entering the cuntry. In exceptinal cases with due reasn the minister may agree that the applicatin can be made when the family members are already in Luxemburg. The Luxemburg resident must: hld a residence permit valid fr at least ne year and must have been living in Luxemburg fr at least twelve mnths. prvide prf f stable, regular and sufficient resurces t cver his r her wn needs and thse f dependent family members withut using the scial security system, prvide prf f adequate husing fr the family member(s) and health insurance cver fr himself r herself and family members. As in the first type f family reunificatin the applicant must file the applicatin with the fllwing dcuments: a full cpy f his r her passprt, certified as true t the riginal; a birth certificate; 62

68 a dcument prving the existence f the marriage, the registered partnership r the family relatinship(fr the children f the nn resident, prf that he r she has custdy and respnsibility f them); an extract f the plice recrd r an affidavit. The applicant must als enclse the fllwing dcuments cncerning the situatin f the persn wh is a Luxemburgish resident: cpy f the residence permit f the resident applicant valid fr a perid f ver ne year; Certificate f residence prf f the resident applicant s resurces equivalent t the minimum wage fr a duratin f 12 mnths 190 prf f suitable accmmdatin in Luxemburg; prf f health insurance cvering all risks n Luxemburg territry; All f these dcuments must have an apstil added by the cmpetent lcal authrity in the cuntry f rigin r certified by the cmpetent lcal authrity in the cuntry f rigin and authenticated by the diplmatic representatin f Luxemburg. If the dcuments are nt written in German, French r English, a certified translatin by a swrn translatr must be enclsed. Family reunificatin is nt accepted in any case f plygamus marriage, if the resident applicant already has anther spuse living with him in the Grand Duchy f Luxemburg. Prcedure: Once the files arrive t the Ministry f Freign Affairs it is transfer t an examiner. The Ministry can ask fr any ther infrmatin that is relevant t the file. T btain prf f the existence f family relatinships, the minister r the agent f the diplmatic r cnsular pst representing the Grand Duchy f Luxemburg in the cuntry f rigin f the family member may carry ut interviews with the third party cuntry natinal Luxemburg resident r family members, and any examinatin r investigatin cnsidered apprpriate

69 Once the examiner cnsiders that the file is cmpleted he will submit his cnclusins t the Minister, wh will authrize the residence permit. If the applicatin is apprved the embassy will issued the visa and nce that the family member arrives n the territry the authrities frm the Ministry f Immigratin will issue the residence permit. In a case f family reunificatin where the third-cuntry natinal btains a residence permit, a family member residence permit valid fr a perid f ne year must be issued, renewable at the applicant s request, as lng as the cnditins fr btaining it are still fulfilled. The validity perid f the residence permit granted will nt exceed the expiring date f the nn EU resident s residence permit. In the pinin f the NGOs the biggest prblem that they are cnfrnted is the fact that the prcess takes very lng and that creates a real stress fr the family reunificatin applicant. Smetimes a year g by and the persn has nt received an answer 191. There is always an administrative justificatin (the absence f a dcument that is hard t btain, r the scial investigatin) fr the delay but there is nt a real discriminatin t several third cuntries citizens Private reasns: The law f 29 August 2008 allws the residence permit fr private reasns. This authrizatin is cmplementary t the family reunificatin when the applicant des nt fulfill the cnditins fr family reunificatin but where the persnal and family attachments, are s intense, ld and stable, that the refusal will vilates the right t private and family life. Hwever, this authrizatin can als be issued in cases f humanitarian mtifs that are extremely grave and t thse applicants that can prve that they can live n its wn financial means. In all cases (with the exceptin f humanitarian reasns), the applicant must prve that he/she has health insurance and dispse f husing facilities where t live and sufficient financial means t subsist. 191 Pint f view f NGO, Interview N 9, page 3, lines 124 t Pint f view f NGO, Interview N 10, page 9, lines 421 t 432 and pint f view f NGO, Interview N 7, page 24, lines 1121 t

70 Prcedure: The prcedure is the same as n family reunificatin and the examiner can demand any type f infrmatin that he cnsiders necessary fr his investigatin. Once the file is cmpleted the file is transferred t the Minister and he will take the final decisin. The private reasns residence permit is issued fr ne year and it can be renewed if the cnditins cntinue t be applicable. Nevertheless, the Ministry can evaluate the level f integratin f the applicant in the Luxemburgish sciety fr the renewal f the permit The applicant can get a salaried wrker residence permit if he fulfill the cnditins fr the salaried wrker residence permit establish in article 42 f the Law f 29 August f It is t mentin that in all the prcedures fr btaining the authrizatin f residence regardless, f the type f authrizatin requested, Luxemburg can in any mment f the prcedure ask the pinin f the Member State diplmatic missin that received the applicatin Visa prcedure: Once the authrizatin f residence had been issued the beneficiary has 90 days t apply fr the lng-stay visa (in case he needs ne) in frnt f the diplmatic missin that represents Luxemburg in the cuntry f rigin. The applicant must file the nrmal visa applicatin frm, and has t present the administrative decisin that gives the persn the residence authrizatin in case that the third-cuntry natinal needs a visa fr entering the cuntry. In any case the applicant must apply fr the visa 90 days after the ntificatin f the decisin was made t him. If he des nt apply in that perid f time the visa will be refused and the applicant must begin the entire prcedure again. Nrmally the visa will be issued in a very shrt delay because the residence authrizatin already had been apprved. Nevertheless, if the diplmatic representatin discvers new infrmatin abut the applicant that had been hidden frm the embassy r that the dcuments 65

71 submitted are false the diplmatic missin wuld stp the prcedure and cntact the Ministry f Immigratin. In this case, the Ministry wuld have t decide if he denied the visa r nt 193. The decisin authrizing the residence authrizatin and the issuance f the visa is signed by the Directrate f Immigratin. Hwever the visas are initialized by the diplmatic representatin agent that issue the visa in accrdance with the decisin, as a prf f validity f the visa Recurses and appeals: If the applicatin is refused r n respnse is issued within the delays abve mentined 194 the applicant can intrduce recurse t the first instance administrative curt in Luxemburg. The delay fr intrducing the recurse is f three mnths (art. 16 f the Law f 21 June 1999) frm the ntificatin f the decisin. Against the decisin f the first instance administrative curt the applicant has the right t make an appeal t the Administrative Curt (Cur administrative).the delay fr ding s is f 40 days (art. 38) Natinal Visa Practices fr admissin f third-cuntry natinals As described in the sectin n visa (visa C and D) issuing prcedure, there is a lng prcess t fllw t issue the visas. This is especially true fr D visas, where the diplmatic missins and the Ministry have put in place different prcedures t cntrl the validity and legality f the dcuments submitted by the applicants (See Sectin 3.2.) Fr example, in the case f C visas, the Visa department can cntact the spnsring persn in Luxemburg, wh had invited the applicant t interview him and determine the seriusness f the spnsring (i.e. if he knws the persn, if he knws the cnsequences f his spnsring, etc.). It had ccurred that the persnnel f the visa department had discvered in certain cases 193 Pint f view f the Gvernment, Interview 1, page 6 lines Hwever, it is imprtant t ntice that art f the Visa Cde allw anther Member State t abrgate a visa. In this case the authrities f the ther member state must infrm the issuing cuntry. 194 Three r nine mnths depending if the resident is a Eurpean r a third-cuntry natinal, 195 Law f 21 June This law rules the prcedure f the administrative jurisdictin. 66

72 that the spnsr did nt knw the persn and that he had signed the papers t help a friend that wanted t invite smene but that wuld nt fulfill the criteria. Als, the Visa department can cntact the cmpanies that have issued invitatins t thirdcuntry natinals and verify the authenticity f the invitatin and the purpse f the visa. It is imprtant t ntice that the Visa department is entitled, as well as the diplmatic missin, t ask fr any kind f infrmatin that they cnsider relevant fr the study and evaluatin f the applicant s file. The same situatin ccurs with the D visas. The diplmatic missin can make any verificatin n the cuntry f rigin that cnsiders necessary fr determining the seriusness, validity and legality f the dcuments that the applicant had submitted. Als it can demand any infrmatin frm the applicant that they cnsider necessary fr clarifying any dubt that they have. On the Ministry side, the examiner can cntact any f the spnsrs r cmpanies that want t bring a third-cuntry natinal int the cuntry. The examiners can demand frm these peple all the infrmatin that will be relevant t determine the seriusness, validity and legality f the dcuments that the Luxemburgish resident r the Luxemburgish Cmpany had submitted. In the case f family reunificatin the examiner has the right t interview the resident t determine the level f affective links that the resident has with the third-cuntry natinal 196. In cases f suspicin f a marriage f cnvenience, the diplmatic representative and the minister fficer can cnduct simultaneus and independent interviews t the applicant and t the resident t determine the reality f their stry and facts. After the visa is issued the authrities cntinue t have a determinant rle t play in the admissin f the third-cuntry natinal independent t the type f visa that the applicant hlds. Once the third-cuntry natinal arrive t the external brder f the Eurpean Unin, the brder fficer has the right t interview the visa hlder f the intentins f his visit. If the brder fficer cnsiders that there is smething suspect r that the travelling dcuments are faked r that the versin given by the hlder is cntradictry, r that he/she brings illegal r suspect things r has nt declared certain things (i.e. mney exceeding eurs) they can transfer the hlder t an ffice fr further interrgatin. In cases that the hlder had brught 196 Pint f view f NGO, Interview N 5, page 7, lines 299 t 302 and page 26 lines 1253 t

73 illegal r suspect things r has brught mney exceeding eurs the visa will be vid and the hlder will be placed n the hlding facility at the exterir brder, in rder t be expelled r t be transferred t the custdy f the plice r the state prsecutr. In Luxemburg like there is nly ne external brder, the Internatinal Airprt, the thirdcuntry natinal will be placed in the airprt retentin center called AIDA. The AIDA Centre can hld a maximum f 28 detainees (men, wmen and families) fr a maximum perid f 72 hurs. In this perid the Minister has t decide t extend the detentin and transfer the subject t the Retentin Centre(Centre de Rétentin), expel the third-cuntry natinal and if the things that he brught are illegal r the travel dcuments are falsified he/she will be placed under the jurisdictin f the Attrney General (Prcureur Général d Etat). If the Minister decides t extend the detentin ver 72 hurs the detainee will be transferred t the hlding facility utside f the airprt. The detentin facility (Centre de Retentin) is currently lcated in the vicinity f the internatinal airprt with separate units fr men, wmen and families. It was pened n 18 August Nevertheless, in 2009 and 2010 there was nt a single case f refusal f entry n any grunds (Annex V, part B f the Schengen Brder Cde art. 5.1 (a)) in the Internatinal Airprt. In Luxemburg different authrities are cmpetent in the external brder dmain: 1. The Grand-ducal Plice have a Central Unit in the Airprt, which is charge with the brder cntrl, the issuance f urgency visas and the implementatin f the Schengen Infrmatin System. 2. The Ministry f Freign Affairs is in charge f the issuance f visas thrugh its cnsular netwrk, and has t implement the infrmatics tls that are related t the issuance f visas (VIS) and its crdinatin with the central infrmatics center f the Gvernment. 68

74 Challenges and success factrs fr facilitating legal immigratin Luxemburg had implemented, in cperatin with ther Member States, a prgram with Cape Verde fr facilitating legal migratin (See Sectin 4). This prgram expired at the end f Nevertheless, in reality this has nt been very useful because peple that want t stay will nt try t use this type f prgrams because they will be afraid that the Luxemburgish authrities refuse their visas. Nrmally what these peple will d is apply fr a C Visa t any cuntry in the Eurpean Unin (nrmally Prtugal, France r Luxemburg) and nce they arrived, they just stay Visa prcedures fr the purpse f preventing irregular migratin We have discussed several cntrls that are intrduced in the visa prcedure that can prevent the irregular migratin. 1. Dcument verificatin: The pssibility f the cnsular authrities and the Ministry s fficers t cntrl all the dcuments that are presented t them. They can cntrl the travel dcuments t verify the authenticity f them. Als, they can verify all the financial evidence that are submitted (bank statements, prperty s certificates, salary slips, marriage certificates, civil status dcuments, etc.) 2. Interviews: In the case f family reunificatin the interviews celebrated with the parties are very imprtant. They can prvide valuable infrmatin t verify nt nly the strength f the links between the persns invlved but als t verify the sincerity f their intentins. This allws the examiner t determine if he/she is cnfrnted with a marriage f cnvenience (sham marriage) r t determine in case f elders the precarius cnditins in which they leave. Finally als, in cases f applicatins fr high skilled wrkers r salaried wrkers the interview can allw the authrities t realize if the persn is really qualified r nt fr the jb. 197 Pint f View f NGOs, Interviews 4, 5, 7 et 9. 69

75 Als these types f interviews allw the functinaries f the diplmatic missins t verify the real intentin f the applicant by evaluating the way they behave during the interviews (prfiling) Fr the lcal authrities in Luxemburg the interview allws the parties t verify the authenticity f the invitatin. In sme cases gvernmental fficials had determined that the sciety that had invited the persn was a mail bx sciety that did nt existed 198. Als they can verify the authenticity f the wrking cntracts. When there are private visits they can questin the persn that is nt nly making the invitatin but is respnsible fr the persn during his stay in Luxemburg, t crrbrate if the persn really knws the persn that he is trying t bring int the cuntry Preventin f irregular migratin thrugh ther measures during visa issuing The fact that Luxemburg des nt have a lt f diplmatic representatins thrugh the wrld and it is represented by ther member states, Luxemburg depends in the practices f these diplmatic representatins fr preventing irregular migratin Challenges and success factrs fr preventing irregular migratin The mst imprtant challenges that the Eurpean Unin and Luxemburg have t tackle t prevent irregular immigratin are: 1) Frgery f travel dcuments and visas: As we have described in Sectin 2.1 (Implementatin f the Visa Infrmatin System and the Visa Cde), ne f the principle bjectives f the Luxemburgish authrities is t prevent irregular migratin by detecting false travel dcuments and visa frgery. A large quantity f irregular migrants try t enter in the Eurpean Unin using falsified travel dcuments f visas. This is a multimillin dllar business that in sme cuntries is cntrlled by rganized crime 199. In this sense, Luxemburg had acquired sphisticated equipment t prevent 198 Infrmatin prvided by the Passprts and Visas Office. May Infrmatin prvided by the Passprts and Visas Office. May

76 and fight irregular migratin t verify this type f dcuments, during the entry prcess r by making regular and randmized identity cntrls. 2) Fight the criminal rganizatins that prfit frm the lucrative business f helping third-cuntries natinals t enter the Eurpean Unin. In this case, the migrants d nt have any kind f dcuments and the smuggler rings that bring them int the Eurpean Unin help intrduce this peple in exchange f large amunt f mney that the migrants will have t pay, either at the beginning f the trip r latter). In this sense, Luxemburg cllabrates with the rest f the Eurpean Unin t fight this prblem 200. In 2007, Luxemburg had participated in the peratin HERA III 201 f Frntex 202 in different aspects: a) Luxemburgish experts participated by cnducting interviews with detained irregular migrants t determine and establish if they had been help in their trip by smugglers rings and t establish the pssible rutes that they used 203 ; b) Luxemburg facilitates a recnnaissance plane t perate in Western Africa; c) facilitates agents that integrates the RABIT prgram 204 and they are deplyed at Frntex demand t participate in missin and peratins; d) participates in the lgistics fr the return flights rganized by Frntex 205 ; e) In rder t supprt Member States faced with a massive influx, Luxemburg has temprarily secnded fficials frm the immigratin directrate f the Ministry fr Freign Affairs, as well as frm the grand ducal plice under the terms f its invlvement in Frntex peratins 206 3) Infrmatin campaigns. 200 Fr Luxemburg the external brders cntrl is a respnsibility f all the Member States. This was the fficial psitin f Ministers Luc Frieden and Niclas Schmit. Eurpafrum.lu, Le Luxemburg annnce la cntributin à la lutte cntre l immigratin, autur des Îles Canaries 15 February This peratin was deplyed in the Canarias Islands and had as principal bjective t fight irregular migratin. Luxemburgish Gvernment, Press Release, Luc Frieden et Niclas Schmit annncent une cntributin luxemburgeise à l pératin Hera III de l Agence Frntex, The main task f FRONTEX is t carry ut s-called Risk Analyses, give technical and peratinal assistance at the external brders as well as t manage jint return peratins (FRONTEX, 2006). See, Spiegel, Elisabeth, FRONTEX Legitimate Agent fr Brder Security r Ruthless Deprtatin Agency? Duble Bachelr Degree Thesis, Schl f Management and Gvernance, University f Twente, The Netherlands, 2010, p. 4. In the Mem 11/449 f 22 June 2011, Cmmissinaire Malmström said: I very much welcme this plitical agreement which cnfirms the EU's cmmitment t strengthening the peratinal capabilities f Frntex, als ensuring that the activities f the Agency will take place in full respect f the Eurpean fundamental rights prvisins. This prpsal will ensure that, in the perfrmance f their tasks, members f Frntex teams fully respect fundamental rights and human dignity, including the principle f nnrefulement Interview with member f the Grand Ducal Plice, Interview N 3, pages 3-4, lines 148 t Interview with member f the Grand Ducal Plice, Interview N 3, page 1, lines 16 t 21 and page 2, lines 57 t EMN-NCP-LU, Plicy Reprt 2008, p EMN-NCP-LU, Plicy Reprt 2009, p

77 4) Retentin and expulsin. Irregular migratin is a big issue in the Eurpean Unin. Irregular migratin is hard t calculate 207 but is cunted by the millins in the Schengen area. 4. C-peratin with third cuntries The nly agreements which exist with third cuntries in the area f migratin is the «Partenariat pur la mbilité entre l Unin eurpéenne et le Cap-Vert» ( Partnership fr mbility between the Eurpean Unin and Cape Verde ) 208 and the «Migrer les yeux uverts» (MYO) ( Migrate with pen eyes ) prgram 209. Cape Verde was chsen as it is a target cuntry f the cperatin fr develpment plicy and because there is a large ppulatin f Cape Verde natinals living in Luxemburg. Hwever, there are n existing criteria which wuld allw the identificatin f ther cuntries with which similar agreement can be made. Indeed, given the lack f infrmatin n the labr shrtage in Luxemburg it is difficult t identify target cuntries r target sectrs. The Partnership fr mbility was signed by Spain, France, Luxemburg and Prtugal n June 5th Luxemburg cmmitted itself t study the pssibility f putting int place mechanisms fr circular migratin with Cape Verde. 211 Currently, as the negtiatins have nt yet been launched, n prnuncement can be made as t the exact cntent f such an agreement. 212 Als this partnership tries t develp a real cperatin in migratin and develpment issues and t prevent and fight clandestine migratin, smugglers rings and the traffic f human beings. 207 Pint f view f the Gvernment, Interview, 1, page 10, lines 200 t Eurpafrum.lu, Le partenariat pur la mbilité entre l'unin eurpéenne et le Cap-Vert, 9 Nvember, This is a prgram develped by Luxemburg. 210 Luxemburg Gvernment infrmatin and current events, Official statement f 5 June 2008 «Signature du Partenariat pur la mbilité entre l Unin eurpéenne et le Cap-Vert», (last update n , last cnsultatin n ) 211 Annual Plicy Reprt 2009, page Respnse f Mnsieur, the Minister f Labur, Emplyment, and Immigratin t the parliamentary questin N 955 n the partnership n mbility with Cape Verde prpsed by the Hnrable Deputy Mnsieur Eugene Berger, 13 Octber 2010, 72

78 Within the framewrk f this partnership, Luxemburg has bund itself t reinfrcing the «Migrer les yeux uverts» prgram which was initially started in Cape Verde by the Luxemburgish cperatin and which «lks t, amng ther thing, familiarize future family reunificatin migrants frm Cape Verde with scial, linguistic and ther realities f living in Luxemburg. 213 This prgram has just reached its deadline at the end f 2010 and the MYO ffice must therefre be clsed. Accrding t the Freign Affairs and Immigratin Ministry a similar prject is ging t be launched and a new cmmn ffice pened. 214 Luxemburg had cllabrated t put in place a cmmn visa applicatin center and helped in the preparatin f a cmmunitarian prject that will try t reinfrce the capabilities f Cape Verde in migratin flws administratin The facilitatin f legal migratin and/r preventin f irregular migratin: China The first study case is the Ppular Republic f China. It exists under its current denminatin since 1 Octber It is the mst ppulated natin in the wrld with peple (census 2010) and is the third largest natin in the wrld with km 2. It has a grss dmestic prduct f trillin dllars, placing the cuntry as the secnd largest ecnmy in the wrld Ratinale fr chsing China China has becme an indispensable partner fr Luxemburg Freign Trade. Luxemburg exprts t China have mre than quintupled between the mid 90 s and mid 2000 s. At the same time, imprts frm China have increased by a tenfld during that same perid Respnse f Mnsieur, the Minister f Labur, Emplyment, and Immigratin t the parliamentary questin N 955 n the partnership n mbility with Cape Verde prpsed by the Hnrable Deputy Mnsieur Eugene Berger, 13 Octber 2010, Official statement by the Freign Affairs and Immigratin ministry, Signature f the partnership fr mbility between the Eurpean Unin and Cape Verde ( ) Eurpafrum.lu, Le partenariat pur la mbilité entre l'unin eurpéenne et le Cap-Vert, 9 Nvember, Freign Trade, Official Agenda 2010, Le Guvernement du Grand-duché de Luxemburg et la Chambre de Cmmerce de Luxemburg, p

79 Nwadays, cmmercial transactins are grwing. In 2008 the exprts t China represented 157,4 millin eurs and the imprts 72,9 millin eurs. In 2009 thse numbers declined because f the ecnmic crisis t 132,6 fr exprts and 47,9 fr imprts 217. In Luxemburg, tw majr Chinese banks are established: the Bank f China (Luxemburg) and the Industry and Cmmercial Bank f China (Luxemburg). The imprtance f China is reflected by the fact that Luxemburg has its embassy in Beijing but it als has a General Cnsulate in Shanghai. The tw cnsulates issue visas t Chinese citizens but Luxemburg is als supprted by the Dutch cnsulate in Guangzhu and by the Belgian cnsulate in Hng Kng. Furthermre, in 2010 Luxemburg treated 1426 visa applicatins and the Luxemburgish cnsulates issued 1355 visas (the Belgian cnsulate in Hng Kng had issued 32 visas). Nevertheless, it is imprtant t nte that frm the ttal amunt, nly 91 visas (6,7%) were lng-stay visas. This fllws the trend that the majrity f visas that are issued by Luxemburg in China are trade r turism related Histrical verview f relatins with China The bilateral diplmatic relatins between the Ppular Republic f China and the Grand- Duchy f Luxemburg began in In 1972, the Luxemburgish Freign Minister, M. Gastn Thrn, made the first fficial visit t China. Since then there have been several high ranking visits frm bth sides. In 1979, the Grand-Duke Jean and the Grand-Duchess, Jséphine Charltte, made the first state visit t China and in 1987 the president f China, Li Xiannian made a State visit t Luxemburg. The Prime Minister, M. Jean-Claude Juncker made three fficial visits t China in 1996, 2002 and 2004 and in 1998 and 2000 the prime ministers f China, Li Peng and Zhu Rngji, made fficial visits t Luxemburg. The last State visit was made by the Grand-Duke Henri n 2006, when he inaugurated the General Cnsulate in Shanghai. 217 Le Luxemburg en Chiffres 2010, Ministère de l Ecnmie et du Cmmerce extérieur, p

80 Nevertheless, the ecnmic cperatin between China and Luxemburg has existed since the end f the XIX century. The technical directr f Irn and Steel Wrks in China was a metallurgist engineer, called Eugène Ruppert. Tday there are several Luxemburgish cmpanies with an ecnmical interest in China (i.e. Arcelr Mittal, Paul Wurth, Ceratizit, Rtarex specialized in the develping and fabricatin f valves, regulatrs and fittings -, Internatinal Electrnic Engineering, Luxcntrl, etc.) The Industrial and Cmmercial Bank f China had decided t establish its Eurpean Headquarters in Luxemburg. 218 Chinese Migratin in Luxemburg: It is imprtant t mentin that the Chinese cmmunity has been grwing ver the last years. There are a large majrity f Chinese immigrants that wrk in Chinese restaurants. The restaurants began bringing Chinese citizens because they were in need f persnal. Every restaurant had the right t engage three persns, which later became a multiplicatin factr (each f these three Chinese was likely t pen their wn restaurant later and bring three ther Chinese citizens and s n). Hwever, mst f them did nt have a real diplma as cks 219. On this matter the Ministry f Labr and Emplyment, respnding t a parliamentary query (n 45) frm the Member f Parliament M. Eugène Berger wh had asked, based n a German weekly newspaper article if in Luxemburg Chinese were inhumanly treated and explited in Chinese restaurants in the same way as described by the article. The Ministry had said that he did nt knw that in Luxemburg this type f criminal behavir existed Banque Chinise ICBC met en place sn siège eurpéen à Luxemburg, Neweurpe, 23 Janvier, Sa filiale luxemburgeise a changé de nm à ICBC Eurpe. 219 Les Chinis au Luxemburg, Interview annyme, China à Lëtzebuerg, May 2008, p «Se basant sur un article de presse paru dans un hebdmadaire allemand, l'hnrable député me demande si des faits et des méthdes tels que décrits dans l'article en questin existent également au Luxemburg. En ma qualité de ministre du Travail et de l'empli et de ministre de l'immigratin, je n'ai pas cnnaissance que des agissements criminels tels que relatés dans la presse allemande, existent au Luxemburg. Or, si de tels agissements devaient exister dans un Etat membre de l'unin eurpéenne, il serait pur le mins curieux qu'ils n'aient lieu que dans ce seul Etat membre. Sur base de l'article 134 de la li mdifiée du 29 aût 2008 sur la libre circulatin des persnnes et l'immigratin, la plice grand-ducale effectue des cntrôles dans le milieu des restaurants chinis au Luxemburg. Ces cntrôles snt effectués sit par des unités de plice, sit par des agents de ('Administratin des Duanes et Accises, sit en cpératin entre les deux administratins. En 2008, la plice grand-ducale a effectué 10 cntrôles dans le milieu cncerné, ce qui a permis de décuvrir 18 persnnes en situatin irrégulière. L'Administratin des Duanes et Accises pur sa part a cntrôlé pendant la même péride 144 persnnes dans 52 restaurants chinis. Outre 13 infractins en relatin avec l'hygiène générale, 1 75

81 Mst f the Chinese citizens living in Luxemburg cme frm the Zhejiang prvince (suth f Shanghai) and there are thers that cme frm Manchuria and the Nrthern prvinces. Smetimes Chinese immigratin tends t be assciated with trafficking in human beings and explitatin at the wrk place Accrding t the answer by the Ministry, there has nt been a verificatin f this situatin in the Chinese restaurants. Hwever, sme Chinese citizens have accepted t return t China because f their difficult living and wrking cnditins in Luxemburg. The OIM, thrugh its cperatin prgram with the Directrate f Immigratin, arranges the vluntary return Existence f migratin agreements with China By its very nature, readmissin cncerns three actrs: the state that requests readmissin, the state that is requested t readmit, and the persn t be readmitted (either irregular migrant r rejected asylum seeker). Their interests are very different. While the first tw actrs decide upn the legal framewrk f readmissin, the third ne is its mere bject. The returning state usually refers t the integrity f its asylum system r its migratin cntrl system and argues that the electrate is in favr f a restrictive cntrl apprach. Even thugh frced return is cstly, the expense is cnsidered t be lwer than the lng-term financial csts f nt implementing it. The state requested t readmit may have ecnmic, demgraphic r scial interests in nt readmitting its wn citizens and even mre s third-cuntry natinals 223. The persn t be readmitted is cnfrnted with the chice between staying in irregularity and returning. If the individual is unwilling t return, the returning state might react by threatening and then als implementing frced remval. Furthermre, the authrities f the cuntry f rigin r transit might display an uncperative attitude by denying that the individual actually pssesses their natinality, by nt issuing the necessary travel dcuments, r by bjecting t the mdalities f return. persnne a été truvée en situatin irrégulière. Parmi ces persnnes, 16 nt été placées en rétentin. 3 persnnes nt été transférées, sur base de la réglementatin Dublin vers un autre Etat membre de l'unin. 3 autres nt été rapatriées vers la République ppulaire de Chine, dnt 1 retur vlntaire. Les 10 autres nt été libérées, alrs qu'une identificatin, dnc un rapatriement n'nt pas été pssibles 221 Les Chinis au Luxemburg, Interview annyme, China à Lëtzebuerg, May 2008, p Pint f View f NGO, Interview N 6, page 4, lines 173 t Trauner, Flrian/Kruse, Imke, EC Visa Facilitatin and Readmissin Agreements: Implementing a New EU Security Appraching the Neighburhd, CEPS Wrking Dcument N. 290/April 2008, p.p

82 Readmissin questins cnstitute a segment f thse plicy issues that, when the Treaty f Amsterdam tk effect, became part f the acquis in the 1st pillar. The cmpetence t cnclude readmissin agreements n behalf f EU member states was shifted t the Eurpean Cmmunity. The Eurpean Cmmissin received the mandate by Member States t negtiate readmissin agreements with nn-member cuntries n their behalf. Hwever, nt all f the EU members participate in readmissin plicy. Since Cmmunity readmissin agreements are based upn the prvisin f Title IV f the Treaty Establishing the Eurpean Cmmunity (TEC), they are nt applicable t the UK and Ireland unless these cuntries pt-in in the manner prvided fr by the Prtcl t the TEC. Likewise Cmmunity readmissin agreements will nt extend t Denmark by virtue f the Prtcl n the psitin f Denmark. In September 2000, the Cmmissin received the first mandates fr negtiatins with Mrcc, Sri Lanka, Russia, and Pakistan; in May 2001 with Hng Kng and Maca; in June 2002 with Ukraine; and in Nvember 2002 with Albania, Algeria, Turkey, and China (Cuncil f the Eurpean Unin, 2002a). Actually there are nt bilateral migratin agreements with China. Hwever, in May 2004, China fficially asked the Eurpean Unin t negtiate n visa facilitatin in parallel with negtiatins n readmissin 224, despite the fact that the Destinatin Status Agreement had already taken a first step twards visa facilitatin in February It incrprated a readmissin clause as a quid pr qu which essentially means visa facilitatin fr grup visits f Chinese turists t the EU. Chinese turists ging thrugh selected travel agencies will benefit frm simplified and facilitated prcedures t apply fr turist visas fr the Member States f the Eurpean Unin which have been granted "Apprved Destinatin Status"(ADS) by China. The agreement als includes prvisins allwing return f pssible Chinese ver-stayers. The new accrd is expected t enter int frce befre the summer and will generate significant flws f Chinese visitrs t Eurpe, thus bsting EU-China turism exchanges and peple-t-peple cntacts. Cmmenting n the signature, EU External Affairs Cmmissiner Chris Patten said: "This agreement is gd news fr China and fr Eurpe. I lk frward t seeing mre Chinese 224 Trauner, Flrian/Kruse Imke, EC Visa Facilitatin and Readmissin Agreements: Implementing a New EU Security Apprachin the Neighburhd, CEPS Wrking Dcument N. 290/April 2008, p

83 turists here, and I hpe many will take up the new pprtunity t travel. Human cntacts really d make a difference, and I believe this new agreement will help Eurpe and China t understand each ther better, as well as bringing new cmmercial pprtunities. The next step is t deepen ur c-peratin n migratin in all its frms". The Memrandum f Understanding n Apprved Destinatin Status, which was initialed during the 30 Octber 2003 EU-China Summit in Beijing, is the largest ADS agreement ever cncluded by China and will facilitate Chinese turist grup`s access t mst Member States f the Eurpean Unin. With the visas given by the cnsular ffices f these Member States, Chinese turist grups will be allwed t freely travel within these cuntries. Schengen visas will be delivered by the current Schengen cuntries and natinal visas by the acceding cuntries until the date they are allwed t jin the Schengen area. Hwever, it is t be nted that mst f the Chinese turist grups that cme t Luxemburg are nt the wealthy peple. In many cases, they are emplyees that are rewarded by their cmpanies at the end f the year r after several years f wrk with a trip t Eurpe f tw t three weeks. Luxemburg is included in these turs because it takes nly a half day t visit the city 225. EU cnsulates in China will simplify and facilitate the delivery f turism visas fr grups (with a minimum f 5 persns) which will apply thrugh designated Chinese travel agencies. China agreed t take back pssible ver-staying turists accrding t article 5 f the agreement. Fr the Eurpean Cmmunity, the Memrandum f Understanding (MU) has been signed by the Eurpean Cmmissin`s Deputy-Directr General fr External Relatins, Herve Juanjean, and the Irish Ambassadr in China, Mr. Declan Cnnlly, representing the EU Presidency. The China Natinal Turism Administratin (CNTA) was represented by its Chairman, M. He Guangwei. Denmark, Iceland, Nrway and Switzerland have cncluded separate ADS agreements with CNTA. The MU cntains specific prvisins n the accreditatin, mnitring and pssible sanctining f travel agencies under the ADS scheme. 225 «Les Chinis au Luxemburg», Interview annyme, China à Lëtzebuerg, May 2008, p

84 On 16 September 2004, the Cmmissin issued a Recmmendatin n the implementatin f the MU 226, in which it prpsed cmmn implementatin prcedures fr the MU with respect t accreditatin f travel agencies, curiers' identificatin badges, practical arrangements cncerning cperatin with their curiers, as well as the warnings and withdrawals which can be impsed n travel agencies. Pursuant t this Recmmendatin, the Cmmissin is respnsible fr establishing and updating the list f curiers and fr infrming the Chinese authrities f any sanctins impsed n travel agencies. Nevertheless, there are tw readmissin agreements signed at the cmmunitarian level with tw Chinese regins. The first ne was signed with the Gvernment f the Hng Kng Special Administrative Regin f the Peple s Republic f China n 27 Nvember 2002 and ratified n 1 March The secnd ne was signed with Maca n 13 Octber 2003 and ratified n 1 June The readmissin treaty with Hng Kng was the first readmissin agreement signed by the EU 227. The first treaty indicates that Hng Kng shall readmit, upn applicatin by a Member State and withut any frmalities ther than thse specified in the agreement, all persns wh d nt fulfill the cnditins in frce fr entry t, presence in, r residence n the territry f the requesting Member State. Als, these agreements cntain the cmmitment t readmit stateless persns r persns f anther jurisdictin wh entered the EU illegally frm the cuntry in questin, r vice versa. These might include, fr example irregular immigrants in the EU wh were als in an irregular situatin in the cuntry frm which they entered, r wh had temprary residence permits in that cuntry that have subsequently expired Any ther measures It is imprtant t mentin that the psitin f the Eurpean Unin t China is t facilitate visas in a prgressively manner t avid a majr inflw f Chinese citizens. Hwever, this psitin cntrasts with the recent exemptin f visa t the Taiwanese citizens made by the Eurpean Parliament and the Cuncil in the regulatin n 1211/2010 f 15 December OJ L 296, p Readmissin Agreements; Mem/05/351, Brussels, 5 Octber EN&guiLanguage=en

85 4.1.5 Statistics A. Arrivals and Departures The migratin inflws and ut flws in Luxemburg f Chinese citizens in the last 23 years can be describe by the fllwing table: Table N 2: Arrivals and Departures f Chinese natinals 1987 t 2010 Arrivals Departures Balance % Aug. Arrivals % Aug. Departures % 500.0% % -11.1% % -25.0% % 0.0% % 8.3% % 46.2% % -10.5% % 23.5% % 100.0% % 416.7% % -88.9% % 37.5% % 9.1% % -44.4% % 85.0% % -10.8% % 63.6% % -24.1% % -2.4% 80

86 % 25.0% % -2.0% % 26.5% % -22.6% Surce: STATEC, 2011 EMN NCP LU It is bvius that the number f Chinese in Luxemburg has been increasing since As we can see frm the graph belw, with the exceptin f 1997, the inflw number has always been bigger that the utflw number. Graph N 1: Surce: STATEC, 2011 EMN NCP LU This graph shws that since 2000, inflw and utflw lines have a very unifrm pattern with certain picks but nthing significant. Nevertheless, it is bvius that the yearly balance is psitive, meaning that each year there are mre Chinese citizens arriving then leaving. Since the year 2000 there were 1100 arrivals and nly 470 departures. This represents a psitive balance f 630 (an average f 57 persns per year). The majrity f new arrivals are wmen as we can see frm the table belw: 81

87 Table N 3: New arrivals f Chinese natinals by sex ( ) Men % Wmen % Ttal % % % % % % % % % % % % % % % % 139 Nte: In 2002 Eurstat included 4 Taiwanese citizens in the Chinese numbers 229 Surce: EUROSTAT EMN NCP LU In 2009, a ttal f 139 Chinese citizens arrived in Luxemburg. As can be seen frm the graph belw, the majrity were wmen. This trend has been the same since 2002 as the fllwing graph illustrates: Graph N 2: Surce: EUROSTAT, 2011 EMN NCP LU This tendency remains the same with regard t utflws (mre wmen leaving than men with the exceptin f ). Hwever, the percentage difference is less than in the case f arrivals. 229 See Statec, 2002: Arrivals and Departures. China and Taiwan. 82

88 Table N 4: Departures f Chinese natinals by sex ( ) Men % Wmen % Ttal % % % % % % % % % % % % % % % % 62 Surce: EUROSTAT EMN NCP LU Graph N 3 : Surce: EUROSTAT EMN NCP LU B. Chinese wrking and residing in Luxemburg The numbers f Chinese citizens wrking and residing in Luxemburg have been steadily grwing since 2000 and have almst duplicated ver the last decade. 83

89 Table N 5: Chinese wrking and residing in Luxemburg by sex and status Year Male Female Wrkers Emplyee Civil Servant Wrkers Emplyee Civil Servant Ttal Nte: Since 2009 wrkers and emplyees have been gruped under the unique salaried wrkers status. This data represents the situatin n 31 March f each year. Surce: IGSS, 2011 EMN NCP LU It is interesting t ntice that the balance between men and wmen tend t balance ut thrugh the decade. At the beginning the number f men was superir (69,7%) t wmen(30,3%) but in 2010 the prprtin was almst similar (55,6% were men and 44,4% were wmen) as we can see frm the graph belw. Graph N 4: Surce: IGSS, 2011 EMN NCP LU 84

90 In the EMN study Satisfying Labur Demand thrugh Migratin, EMN NCP LU btained infrmatin n the cmpsitin f the Labur Frce in Luxemburg frm the Inspectrate General f the Scial Security. Hwever, between 2004 and 2009 nt all salaried wrkers had their CITP cde (91% in 2004 and 33,6% in 2009). Fr this reasn n accurate cmparisns can be made between these years. Nnetheless the table belw, including a prtin f the entire Chinese wrkers, shws that between 2006 and 2008 the level f qualificatin was grwing. Over these tw years, the number f high skilled and skilled wrkers had dubled. Table N 6: Level f Qualificatin f Chinese wrkers Year Highly skilled Skilled Lw skilled Unknwn Ttal Surce: IGSS, 2009 EMN NCP LU C. Asylum With regard t asylum applicatins, there has nt been a single applicatin frm Chinese citizens during 2007, 2009 and In 2008 there was ne single applicatin while there were tw in In between 2006 and 2010, n psitive decisin in asylum applicatins was given t any Chinese citizen and nt a single subsidiary prtectin status was granted 231 in the same perid. D. Naturalizatins The naturalizatins f Chinese citizens in Luxemburg have nt fllwed an ascending line. Different frm ther natinalities that had taken advantage f the new f Law f Naturalizatin (Law f 23 Octber 2008), the number f naturalizatins since 2008 has declined substantially fr Chinese citizens. Between 2001 and 2004, the number f naturalizatins had been n the rise ranging frm 11 in 2001 t 21 in Then in 2005, there were nly 16 and frm 2005 t 2008, the number had been increasing, frm19 in 2006 t 42 in Hwever, with the entry int frce f the new law, the numbers have decreased significantly t a bttm lw f 11 in This can be explained by the fact that the new law 230 See Key figures in asylum matters. Evlutin f Asylum/Internatinal Prtectin by cuntry/regin f rigin. Ministry f Freign Affairs Surce: Ministry f Freign Affairs,

91 requires a language skill test and that makes it mre difficult fr Chinese natinals t acquire the natinality. Graph N 5: Surce : STATEC, 2011 EMN NCP LU Findings f China case. China has becme the secnd largest ecnmy in the wrld 232. It is cnsidered as the largest grwing ecnmy (8,7% en 2009). In this cntext it is clear that the main relatinships between China and Luxemburg are based n financial reasns, Luxemburg being ne f the mst sphisticated financial centers in the wrld. As we have seen the Industrial and Cmmercial Bank f China had decided t establish its Eurpean Headquarters in Luxemburg. This situatin demnstrates the imprtance f the financial ties between the tw cuntries. Hwever, the financial interests that are at stake, the migratin f Chinese citizens t Luxemburg is quite small if we cmpare its ppulatin. There were nly 1426 visa applicatins made t the Luxemburgish cnsulates in China during Frm thse visas applicatins, Luxemburg granted 1355 visas, frm which nly 91 was lng-stay visas (6,7%), meaning that legal migratin t Luxemburg is very lw. The large majrity were shrt-stay 232 Accrding t the US State Department the grss dmestic prduct f China was in 2009 $4.814 trillin (exchange rate-based). 86

92 visas that are mainly fr turism 233 (894), accunting fr 66% f the ttal number f visas granted by the cnsulates f Shanghai and Beijing. Even if China is a grwing ecnmy, the ecnmic situatin f the general ppulatin has nt imprved significantly, s the majrity f turists that visit Luxemburg cme in excursins that are paid by the cmpany in which they wrk as a bnus r a present fr their perfrmance. Migratin f Chinese citizens in Luxemburg has grwn ver the last twenty three years, with arrivals that are mre significant than the departures. Hwever, the number f Chinese wrkers that are registered in the IGSS had almst duble in the last ten years. At the same time we have seen that the number f naturalizatin had been grwing steadily between 2001 until 2008, the year when the new naturalizatin law was intrduced. This law requires that the applicant passes a language skill test that is quite hard fr Chinese citizens. With regard t irregular migratin, the phenmenn is knwn t exist but it is impssible t quantify the phenmenn. It is believed that there are an imprtant number f Chinese immigrants that wrk illegally in Chinese restaurants. When arrested in a plice raid, the persns are sent t the Detentin Center in Schrassig. Hwever, due t identificatin issues, they tend t be released and then they leave t anther Eurpean Unin cuntry waiting that the situatin calms dwn. The nly debate ver Chinese migrants was generated by the parliamentary query made by the Member f Parliament, Mr. Eugène Berger. On 16 Octber 2009 the Ministry f Labur Emplyment and Immigratin, respnding t this parliamentary query (n 45) that questin based n a German weekly newspaper article if in Luxemburg Chinese citizens were inhumanly treated and explited in Chinese restaurants in the same way as described by the article, said that he did nt knw that in Luxemburg this type f criminal behavir existed. 234 After this discussin the issued has nt been addressed any mre. 233 These are visas with a maximum validity f 30 days and a maximum stay f 30 days. 234 The Minister said : «En ma qualité de ministre du Travail et de l'empli et de ministre de l'immigratin, je n'ai pas cnnaissance que des agissements criminels tels que relatés dans la presse allemande, existent au Luxemburg. Or, si de tels agissements devaient exister dans un Etat membre de l'unin eurpéenne, il serait pur le mins curieux qu'ils n'aient lieu que dans ce seul Etat membre. Sur base de J'article l'article 134 de la li mdifiée du 29 aût 2008 sur la libre circulatin des persnnes et l'immigratin, la plice grand-ducale effectue des cntrôles dans le milieu des restaurants chinis au Luxemburg. Ces cntrôles snt effectués sit par des unités de plice, sit par des agents de ('Administratin des Duanes et Accises, sit en cpératin entre les deux administratins. En 2008;,la Plice plice grand Ducale a effectué 10 cntrôles dans le milieu cncerné, ce 87

93 4.2. The facilitatin f legal migratin and/r preventin f irregular migratin: Russian Federatin The secnd study case is the Russian Federatin. It exists under its current denminatin since 1 Octber It has a ppulatin f peple (census 2010) and is the largest natin in the wrld with km 2. It has a grss dmestic prduct f trillin dllars (2010) Ratinale fr chsing the Russian Federatin The Russian Federatin is cnsidered as a rising ecnmic pwer. It is part f the BRIC (Brazil, Russia, India and China). Luxemburg being a sphisticated financial center, has a special interest in a fluent ecnmic exchange with the Russian Federatin. The plitical and ecnmic imprtance f the Russian Federatin t Luxemburg ges t the pint that Luxemburg has an embassy in Mscw (Saint Petersburg is served by the Belgian Cnsulate but Luxemburg has an hnrary cnsul). This allws the pssibility f having mre data abut the visas issued by the Luxemburgish missin withut having t pass thrugh the diplmatic authrities f ther cuntries that represent Luxemburg abrad. Frm a quantitative pint f view, the Russian Federatin case is very interesting. During 2010, the diplmatic representatins f Luxemburg in Russia have received 5511 applicatins. This is the largest number f applicatins made by citizens f any given cuntry that apply fr cming t Luxemburg. Frm the ttal amunt, the Luxemburgish authrities have apprved 5354 visas (97,2%). Hwever, frm the ttal amunt f applicatins and visas applied and apprved, there were nly 49 D Visas (lng-stay visas). This amunt represents nly 0,92% f the visas apprved and 0,89% f the ttal amunt f applicatins. qui a permis de décuvrir 18 persnnes en situatin irrégulière. L'Administratin des Duanes et Accises pur sa part a cntrôlé pendant la même péride 144 persnnes dans 52 restaurants chinis. Outre 13 infractins en relatin avec l'hygiène générale, 1 persnne a été truvée en situatin irrégulière. Parmi ces persnnes, 16 nt été placées en rétentin. 3 persnnes nt été transférées, sur base de la réglementatin Dublin vers un autre Etat membre de l'unin. 3 autres nt été rapatriées vers la République ppulaire de Chine, dnt 1 retur vlntaire. Les 10 autres nt été libérées, alrs qu'une identificatin, dnc un rapatriement n'nt pas été pssibles.» See pdata/mag/036/838/ pdf 88

94 Mst f the visas issued were C visas fr turism, family r business reasns and the majrity f lng stay visas are fr family reunificatin. It is imprtant t nte that the Russian Federatin is the mst imprtant energetic partner f the Eurpean Unin in terms f exprting il and natural gas. Nevertheless, Luxemburg is nt dependent n il because it des nt have any refineries and the gas that the cuntry uses cmes frm Germany and Belgium 235. Hwever, there is mutual financial interest in the Russian Federatin and Luxemburg because f financial investments made by Luxemburgish cmpanies, and vice versa in the sense that Russian cmpanies are attracted by the Luxemburg financial centre. These elements culd explain the large amunt f visas apprved by Luxemburg in that cuntry. Energy and finance are the key areas f cperatin between Russia and Luxemburg. The bilateral trade almst tripled between 2003 frm 66,6 millin USD t 228,3 millin USD in In 2008 the exprtatins frm Luxemburg represented 140,6 millin eurs but in 2009 they decreased because f the crisis t 103,2 millin eurs (-26,6%) 236. In 2007, accrding t Rsstat data, Luxemburg was the secnd largest investment partner fr Russia. Its investments accunted fr 15,5% f all freign investments in Russia. In 2007, Luxemburg was the secnd destinatin fr Russian investments accunting fr 27% f all the Russian investments tward the Eurpean Unin. Hwever, bilateral relatins suffered temprarily after the Serstal bid fr Arcelr steel was turned dwn by the sharehlders wh preferred the ffer f Lakshmi Mittal and the cndemnatin by the Luxemburgish gvernment t Russian recgnitin f the independence f Abkhazia and Suth Ossetia. In 2010, Luxemburg has becme the third mst imprtant investr in Russia. A great number f Luxemburg cmpanies have decided t prduce in Russia: ArcelrMittal is investing in steel in Tver; Guardian will prduce glass in Ryazan; Astrn has chsen Yarslavl fr the cnstructin sectr. Several telecmmunicatin cmpanies, amng them ASTRA-SES have chsen Russian launchers t put their satellites n rbit frm Baïknur. 235 Herald f Eurpe, The Bilateral Relatins f EU Members States with Russia, December, 2008, p AL_Relatins.pdf 236 Le Luxemburg en chiffres 2010, page

95 The city f Mscw and a number f majr Russian cmpanies tk advantage f Luxemburg s financial legislatin t issue Eurbnds at the Luxemburg Stck Exchange Histrical verview f relatins with the Russian Federatin In 1867, Russia was amng the signatries f the Lndn Treaty, which guaranteed perpetual independence t the svereign Luxemburg state under the aegis f the Nassau dynasty. Russia was asked by the representative f the Grand-Duchy f Luxemburg, Barn Victr de Trnak, t defend the interests f the Grand-Duchy and its citizens 238. The diplmatic relatins between Russia and Luxemburg g back t Luxemburg was a yung cuntry and it was represented t Tsarist Russia by the Netherlands. The idea f having direct diplmatic relatins between the tw states was brn after the revlutin f Octber 1917 and it was supprted by the radical liberal grups and by certain scialists. The fficial date fr exchange f curiers between the tw states was made thrugh a press release n Octber 26, The first cmmercial representatives fr bth states were M. Antine Funck (Luxemburg) and Eugène Hirshfeld (USSR). They were interrupted in 1940 because f the Nazi ccupatin but they were reestablished n Octber 1942 by the Luxemburgish gvernment in exile 240 The first sviet ambassadr in Luxemburg was M. Eugène Rubinine and the secnd was V.S. Lebedev that presented his credentials n the spring f 1944 t the Grand-Duchess Charltte in Lndn. The first Luxemburgish ambassadr t the Sviet Unin with residence in Mscw was M. René Blum and he was nminated n June 16, Gastn Strnck, Bilateral relatins between Luxemburg and Russia: histrical ties and imprtant ecnmic relatins, CENTRE CULTUREL A.S. POUCHKINE ASSOCIATION LUXEMBOURG-RUSSIE, Le Qutidien, «Luxemburg/Russie : relatins diplmatiques», 16 nvembre

96 Nwadays, Luxemburg has an embassy in Mscw 241 and an hnrary cnsulate in Saint Petersburg and Russia has an embassy in the city f Luxemburg Existence f migratin agreements with the Russian Federatin There are n bilateral migratin agreements between the Russian Federatin and Luxemburg. Hwever, there is a visa facilitating agreement with the Eurpean Unin (see belw and sectin 5.3.1) High skilled wrkers Nevertheless, the Russian Federatin has issued a similar dispsitin t the blue card directive, in accrdance with article 13/2 f the Federal Law N. 86 f 19 May Since 1 July 2010 Russian Cnsulates receive applicatins and grant visas t freign citizens claiming t be highly skilled wrkers. The applicant must submit: passprt, infrmatin cnfirming the experience f the freign citizen, his/her skills r achievements in a specific field; recmmendatins cnfirming expert knwledge and qualificatin and cnsent t include the infrmatin prvided by the applicant in the database within the state system f recrding migratin as well as cnsent t frward these persnal details t emplyers and spnsrs n the territry f the Russian Federatin that has t be cnfirmed by signature. A business visa fr the freign citizen is then granted n the basis f an invitatin t enter the Russian Federatin t hld relevant talks, prvided fr the freign citizen by an emplyer r a spnsr. The invitatin made n the letterhead f the legal persn that is the emplyer r the spnsr shall include the fllwing infrmatin in Russian: the jb vacancy that the highly skilled migrant is invited t fill as well as cnditins f labur and scial supprt; the identity f the applicant, the identity f the emplyer (name, address, taxpayer number and tax registratin reasn cde, primary state registratin number), expected date f entry int the Russian Federatin and itinerary f travel

97 The prpsitin has t be signed by the directr r his deputy and certified by the seal f the legal entity. The migrant shuld present a bank statement in n lnger than ne mnth which has a current balance f a minimum f 6000 Eurs. Upn arrival in Russia and signing the cntract, the highly skilled migrant is issued a new multiple entry wrk visa 244. This visa is issued with a validity f three years and it is nt limited t the 90 days stay perid f the ther types f visas 245. Visas fr members f the family f a highly skilled migrant are issued in accrdance with the existing prcedure based n the riginal visa supprt letter issued by a Federal Migratin Service branch. In case the emplyment agreement r civil law cntract is nt cncluded, the migrant has t leave the Russian Federatin befre the date f expiry f his business visa. Readmissin agreements Luxemburg has nt signed any bilateral readmissin agreement with Russia but is member f the cmmunitarian readmissin agreements with Russia 246. Thse agreements and their applicatin prtcls define the bligatins and prcedures that each party has t respect 247 and they were negtiated and signed by the Eurpean Cmmissin. The agreement with the Russian Federatin was signed n 25 May 2006 and was ratified n July 1, The effective applicatin f this agreement had permitted the expulsin f 3 Russian citizens in 2009 and 2 in Currently, there is a negtiatin ging n between Luxemburg and the Russian Federatin fr signing the Prtcl fr the readmissin agreement between the tw cuntries. Accrding t the Russian cnsul, he expects that this prtcl will be signed n September The Russian Federatin will cnsider a persn that will earn USD r mre. Pint f view f the Russian diplmatic representative, Interview N 2, page 6, lines 224 t Pint f view f the Russian diplmatic representative, Interview N 2, page 6, lines 226 t Eurpafrum, «En répnse à une questin parlementaire de Felix Braz, Niclas Schmit fait le pint sur les accrds de réadmissin applicables au Luxemburg», 25 février Le Qutidien, «Réadmissin» est synnyme d expulsin», 26 février Eurpafrum, «En répnse à une questin parlementaire de Felix Braz, Niclas Schmit fait le pint sur les accrds de réadmissin applicables au Luxemburg», 25 février Pint f view f the Russian diplmatic representative, Interview N 2, page 2, lines 44 t

98 Visa agreement Luxemburg has nt signed any agreement with the Russian Federatin related t visa plicy. Hwever, n Octber the Eurpean Cmmissin and the Russian Federatin signed a cmmunitarian agreement n visa facilitatin 250. This "visa facilitatin agreement" defines the prcedures fr issuing shrt-stay visas. Under the new agreement, a decisin n whether r nt t issue a visa will have t be taken as a rule within 10 days and the dcuments that need t be presented have been simplified. The agreement als sets ut simplified criteria fr issuing multiple-entry visas fr many grups f peple, such as lrry drivers, peple n business, students, jurnalists and diplmats. Mrever, visa fees applied by bth Parties have very substantially been reduced t 35. Visa fees are waived fr sme grups f peple such as clse relatives, students r disabled peple. Individuals hlding Russian r EU member state diplmatic passprts will be exempt frm visa regulatins under the agreement. Bth parties have als agreed t undertake measures as sn as pssible t simplify registratin prcedures. 251 The Russian Federatin bases its diplmatic relatins n the principle f reciprcity. Once the visa facilitating agreement was signed the Russian Federatin simplified the issuance f visas fr Eurpean citizens, especially fr business and turism but als fr the families f a Russian citizen living abrad that d have the Russian citizenship t make visits t relatives in the Russian Federatin 252. Hwever, the Law f 29 th August 2008 cntinues t apply t all issues nt cvered by this agreement, such as the refusal t issue a visa, recgnitin f travel dcuments, prf f sufficient means f subsistence, and the refusal f entry, expulsin measures r the general rule f the persnal interview with the applicant 253. Als, Schengen rules must be respected (i.e. Visa Cde regulatins). 250 OJ L129 f , p Press Release, IP/05/ guilanguage=fr 252 Pint f view f the Russian diplmatic representative, Interview N 2, page 6, lines 226 t Guidelines fr the implementatin f the agreement between the Eurpean Cmmunity and the Russian Federatin n the facilitatin f the issuance f visas t the citizens f the Eurpean Unin and the Russian Federatin, p en_visa/vhbi/vhbi-anh08_vfa-durchfuehrung-rus-e.pdf 93

99 4.2.4 Any ther measures There is an intentin frm the gvernment f Russia and the Eurpean Unin t ablish the need f visas fr Russian citizens cming t the Schengen area. The Russian Cnsul in Luxemburg cnsiders that the Russian Federatin will ablish the visa system the mment that the Eurpean Unin decides t d the same 254. Frm the Russian pint f view, the visa prceedings have been facilitated after the visa facilitating agreements. Nwadays the pssibility f btaining a turist visa fr Russia is simpler than befre. The same applies t visas fr the family members f a Russian citizen that want t visit Russia, student visa and the visas issued fr assisting t cultural and sprtive events. As we have seen befre, the Russian Federatin had simplified the prceedings t btain a highly skilled wrker visa. Hwever, there still sme prblems t slve with regard t the issuance f certain types f visas, but accrding t the Russian diplmatic authrities, President Medvedev will be signing certain decrees t facilitate the traveling f Eurpean Unin family members f a Russian citizen t Russia. Nevertheless, there are sme peple in Eurpe that cnsidered that there are sme bstacles t the visa-free regime. Niklay Petrv named three key bstacles t a visa-free regime between Russia and Eurpe: The pen brder with CIS neighbrs. The Russian Federatin brders with the densely ppulated and impverished states f Central Asia. Strengthening these brders wuld imply huge investments and weaken the Kremlin s influence in the regin. On the ther hand, a readmissin agreement impses certain liabilities n Mscw if citizens frm the CIS illegally enter the EU frm Russian territry and requires returning them t the cuntries f rigin. This culd becme a serius financial burden. The prblem f Caucasus. Given the increasing instability in suthern Russia, there is a cntinual flw f plitical asylum seekers and refugees t Eurpe, which cmplicates relatins between Mscw and Brussels. 254 Pint f view f the Russian diplmatic representative, Interview N 2, page 10, lines 404 t

100 Crruptin. Eurpean fficials are nt cnfident that all Russian internatinal passprts are received legally and fllwing required prcedures. It is necessary t make this prcess mre transparent Statistics Statistics n the Russian Federatin A. Arrivals and Departures The migratin inflws and utflws in Luxemburg f Russian citizens in the last 23 years are presented in the fllwing table: Table N 7: Arrivals and Departures f Russian natinals ( ) Arrivals Departures Balance % Aug. Arrivals % Aug. Departures % 128.6% % 0.0% % -6.3% % 26.7% % -10.5% % 52.9% % -50.0% % 100.0% 255 Changes in Visa Plicies f the EU Member States, May 17, Carnegie Endwment fr Internatinal Peace. 95

101 % 7.7% % 167.9% % -13.3% % 30.8% % -1.2% % 56.0% % -29.8% % 50.0% % -65.9% % -21.3% % -35.1% % 95.8% % 12.8% % -35.8% Surce: STATEC, 2011 EMN NCP LU Ntes: Between 1988 and 1991, the data relates t citizens f the URSS. During 1992 and 1993, the data was divided int Russian citizens and URSS. Hwever, fr these tw years data was added. The table shws that the number f Russian citizens has been increasing in Luxemburg since As we can see frm the graph belw, with the exceptin f 2004, the inflw number has always been bigger that the utflw number. 96

102 Graph N 6: Surce: STATEC, 2011 EMN NCP LU This graph shws that since 2000 the inflw and utflw lines have nt had a very unifrm pattern with certain imprtant peaks. Fr example in 2004 there was a majr augmentatin in the departures and a reductin f the arrivals. Then with the entry int frce f the visa facilitating agreement n 2007, there was an abrupt augmentatin f the arrivals and a slight reductin in the departures. This tendency has had its peak in 2007 but because f the ecnmic and financial crisis the arrivals were reduced by 33,3% in 2008 and lst 3,1% in Hwever, the line began t recuperate in 2010 (8,6%). Nevertheless, it is bvius that the yearly balance is psitive, between 2000 and 2010, meaning that each year there are mre Russian citizens that arrive and stay that the nes the leaves. Between 2000 and 2010 there were 1449 arrivals and 772 departures. This represents a psitive balance f 677 (an average f 61 persns per year). In 2009 there were 93 Russian citizens that arrived in Luxemburg. As we can see there are mre wmen than men that arrive in the Grand-Duchy frm Russia. This trend is the same since 1998 as we can appreciate frm the graph belw. 97

103 Table N 8: New arrivals f Russian natinals by sex ( ) Men % Wmen % Ttal % % % % % % % % % % % % % % % % % % % % % % % % 53 Surce : EUROSTAT EMN NCP LU In 2009 there were 93 Russians that arrived in Luxemburg. As we can see there are mre wmen than men that arrived in the Grand-Duchy frm Russia. This trend is the same since 1998 as we can appreciate frm the graph belw. Graph N 7: Surce: EUROSTAT EMN NCP LU 98

104 It is knwn that many wmen frm the Russian Federatin cme t the west t marry Eurpean citizens r t wrk as artists, explaining the mentined trend, because as we will see belw this amunt f new arrivals is nt shwn in the labur frce survey r in the statistics f the IGSS. Fr the utflws the tendency is almst the same as in the inflws. Mre wmen than men leave the cuntry. Table N 9: Departures f Russian natinals by sex ( ) Men % Wmen % Ttal % % % % % % % % % % % % % % % % % % % % % % % % 53 Surce : STATEC, 2011 EMN NCP LU 99

105 The mvement had been reduced nce the artist visa was eliminated 256 in Since then the trend has been almst stable. Graph N 8: Surce: STATEC, 2011 EMN NCP LU B. Russian citizens wrking and residing in Luxemburg Between 2003 t 2010 the number f Russians citizens wrking and residing in Luxemburg has grwn 263,1% with an average f 15,1% per year n this perid, as we can see frm the table belw. Table 10: Russian citizens wrking and residing in Luxemburg by sex and status Year Male Female Wrkers Emplyee Civil Servant Wrkers Emplyee Civil Servant Ttal Surce: IGSS, 2011 EMN NCP LU 256 This was the visa that was issued t wmen that came t wrk in cabarets in Luxemburg. Infrmatin prvided by the Passprts and Visas Office. 100

106 Nte: Since 2009, wrkers and emplyees have been gruped under the unique salaried wrkers status. This data represents the situatin n 31 March f each year. Hwever, the prprtin f Russian wmen wrking and residing in Luxemburg is significantly superir t men. In 2003 wmen represented 63,1% f the Russians wrking in Luxemburg cmpared t 36,9% f men. In 2010 the prprtin f wmen grew t 69,2% while men nly represented 30,8%. It is imprtant t nte that the number f wmen has almst tripled in seven years (288,7%) while the prprtin f men has nly dubled (219,4%). Graph N 9: Surce: IGSS, 2011 EMN NCP LU In the EMN study Satisfying Labur Demand thrugh Migratin, EMN NCP LU btained Scial Security infrmatin n the cmpsitin f the Labur Frce, by qualificatin level, in Luxemburg frm the Inspectrate General f the Scial Security. Hwever, between 2004 and 2009 nt all the salaried wrkers had their CITP cde : in 2004 the prprtin was 91% and in 2009 it was 33,6%. That is the reasn why we cannt make accurate cmparisns between the years in this dmain. 101

107 Hwever, frm the table belw that includes a prtin f the Russian wrkers in Luxemburg we can see that between 2006 and 2008 the level f qualificatin is grwing and that in tw years the number f skilled wrkers had dubled. Table N 11: Level f qualificatin f Russian wrkers Year Highly Skilled Lw Unknwn Ttal skilled skilled IGSS, 2009 EMN NCP LU Hwever, the level f high skilled wrkers had been stable between 2006 and C. Asylum applicatins The number f asylum applicatins frm Russian citizens has decreased between 2006 and In 2006, the number f applicatins was 43. This number fell t 13 during 2007 and On 2009 there were 27 applicatins 257 and in 2010 nly 21. In 2007, the Directrate f Immigratin granted 8 psitive decisins t Russian citizens 258. In 2008 the number f psitive decisin was This number increased in 2009 with 13 psitive decisins. During the perid f 2006 t 2009 nt a single subsidiary prtectin was granted t a Russian citizen. 257 There is ne applicatin filed by a nn-accmpanied minr. 258 Annual reprt n Asylum and Immigratin, Statistics fr Luxemburg 2007, Eurpean Migratin Netwrk, p Annual reprt n Migratin and Internatinal Prtectin.Statistics fr Luxemburg 2008, Eurpean Migratin Netwrk, p

108 D. Naturalizatins It is imprtant t nte that the number f Russian natinals wh have acquired the Luxemburgish natinality has explded since the apprval f the law n naturalizatin (Law f 23 Octber 2008). Since 2001, the number f Russian citizens acquiring the Luxemburgish natinality had been grwing very slwly (4 in 2001, 5 in 2002, 2 in 2003, 5 in 2004, 8 in 2005 and 13 in 2006). Between 2007 and 2009 the number f naturalizatin was f 10 per year but in 2009 the number jumped t 40 (a 300% increase) and in 2010 the number was 50. Graph 10: Surce : STATEC, 2011 EMN NCP LU Findings f Russian Federatin case. The relatins between the Russian Federatin and Luxemburg g back in histry t the signing f the Treaty f Lndn. Hwever, since 1935 the tw cuntries maintain diplmatic relatinships (with an interruptin f fur years during Wrld War II). Nwadays the relatins between bth cuntries are based n ecnmic reasns (Luxemburg is ne f the majr investrs in Russia and vice versa) due t the fact that Russia is a grwing ecnmy, especially in the energetic sectr and Luxemburg is a sphisticated financial center. Nevertheless, there are very strng cultural links between the tw cuntries. 103

109 These tw factrs explain why Luxemburg issued the large majrity f its visas t Russian citizens. In 2010, there were 5511 visa applicatins frm which 5354 were issued (97,2%). Mst f the visas are shrt-stay visas (see data sectin). The lng-stay visas (D visas) are nly 49 visas that amunts t 0,9% f the ttal number f visas issued. The number f refusals (62) is minimum (1,2%) and there is nt any abuse f visas reprted (visa verstay). Migratin f Russian citizens t Luxemburg was characterized during the Sviet era by feminine migratin that came t Luxemburg t marry Luxemburgish citizens. Since the fall f the Berlin wall and the dwnfall f the Sviet Unin the situatin has changed. In the first time the augmentatin f wmen that came t Luxemburg increased but nt nly fr family reunificatin but als fr wrking in the cabarets. This was cnsidered by many including United Natins as traffic f persns. This made that the Luxemburgish gvernment ablished the visa fr artist n 1 May Hwever, since 2000, the type f traveler f Russian citizens t Luxemburg has changed. Mst f them are businessmen that cme t Luxemburg t establish cmpanies and fr reasns related t wrk. The imprtant investments between the tw cuntries have influenced the type f traveler between the tw cuntries. It is imprtant t mentin that in the last decade a majrity f migrants mving legally t Luxemburg are high skilled r skilled wrkers that cme t wrk fr Russian cmpanies. This phenmenn explains why the numbers f Russian wrkers have almst tripled in the last decade. This trend is ging t cntinue especially given the existing rumr that the giant Gazprm has the intentin t mve its German headquarters frm Berlin t Luxemburg. That wuld imply a mvement f a ttal f 520 wrkers, mst f whm are Russian citizens 260. The main interest f the Russian Federatin is t create a visa-free regime between the Russian Federatin and the Eurpean Unin. Accrding t the Russians, the visa facilitating agreement signed in 2006, has simplified the issuance f visas and cntinue t d s, t the pint that the diplmatic authrities f the Russian Federatin in Luxemburg cnsiders that if the Eurpean Unin lift the visa requirements they are willing t d the same. It is imprtant t nte that the migratin f Russian citizens has nt generated a debate in Luxemburg. After the issue f the artist visa in in the 1990 s and early 2000 s and its 260 Wrt.lu, Gazprm eyes up Luxemburg, 4 July

110 ablitin n 1 May 2004, the migratin f Russian citizens (the discussin was in general ver the wmen that came frm Eastern Eurpean cuntries) had nt been debated. Excluding the cases f internatinal prtectin applicatins made by Russian citizens that have decreased during the last few years, the relatins between the tw cuntries are very stable. Irregular migratin frm Russian citizens is nt a serius prblem as it is with the Brazilians, Serbians and Capverdiens. In the fficial statistics fr the last five years, the number f readmissin persns has been five. Nevertheless, the Russian authrities dispute this fact arguing that the prtcl f the readmissin agreement has nt been signed yet (it is ging t be signed in September 2011) and that the nly infrmatin that they have ver these five cases is that three f them were readmitted thrugh Brussels and nt frm Luxemburg. There was n infrmatin regarding the ther tw. It is imprtant t mentin that regarding the naturalizatin f Russian citizens, the number has increased since the new naturalizatin law that permits t hld the duble natinality. As we can see, the migratin situatin f Russian citizens t Luxemburg is nt a majr prblem. Hwever, we cnsider imprtant t mentin that a study released by the Carnegie Mscw Center and the Stefan Batry Fundatin in Warsaw n May 2010, reprts tw disturbing trends. First, even as it is getting relatively easier fr Russians t get visas t Western Eurpe, it is getting prgressively harder fr them t get visas t the new Schengen zne states f Eastern Eurpe, reducing ties with the cuntry s clsest neighbrs. And secnd, the gap in visa prcedure and enfrcement within the Schengen zne is grwing wider. The new visa prcedures may help reslve these prblems. Visas are part f brder cntrls, designed t allw law-abiding travelers in while keeping unwelcme elements ut. The prblem is that smetimes the law-abiding citizens are ften kept ut, while criminals seem t have little truble reaching their destinatins 261. Anther argument fr keeping the visa requirement fr the Russian Federatin is a mean t prmte prgress twards demcracy and the rule f law in Russia, because in this mment Russia des nt need any financial supprt, technical assistance and ther benefits that were needed at the beginning f the 1990 s. That element will give the Eurpean Unin sme leverage with Russia. 261 GREENE, Sam, Lift EU Visas fr Russians, The Mscw Times, May 17,

111 Hwever, the main bjective f the Eurpean Unin with the Russian Federatin is a strategic integratin, s t certain extend the ablishment f visas will be inevitable. As M. Brja Crtés-Bretón f the Spanish Embassy, said during the presentatin f the internatinal survey rganized by the Stefan Batry Fundatin in Mscw n May 2010, lng-term visas and ther instruments might amelirate the current situatin. He suggested that allwing the issuance f tw, three, r even five-year visas wuld in practice amunt t a virtual visa-free zne Effects f EU Plicy and Legislatin The EU visa plicy has emerged in respnse t the integratin f the EU Member States and ensuring the functining f the EU internal market, ne f the cre principles f which is the freedm f mvement f persns 263. The ambitius gal enshrined int the Amsterdam Treaty t develp the Unin as the area f freedm, security and justice which includes the right t mve freely thrughut the Unin that can be enjyed in cnditins f security and justice accessible t all 264 required frm the EU t develp the effective cmmn instruments fr cntrlling its external brders, fighting irregular migratin and rganized crime. The EU visa plicy has becme an instrument fr ensuring f the Unin s internal security and became an imprtant element f the EU freign plicy. T implement this plicy, the Maastricht Treaty cntained the prvisins n harmnizatin f the laws cvering the list f third cuntries whse natinals must be in pssessin f visa while entering the Schengen area and a unifrm frmat fr the visas. 262 Changes in Visa Plicies f the EU Member States, May Carnegie Endwment fr Internatinal Peace, 263 Cmmissin f the Eurpean Cmmunities 1985, Eurpean Cuncil

112 5.1. Impact f EU visa plicy and legislatin n Luxemburg As already mentined, the visa plicy f Luxemburg has been strngly influenced by EU visa plicy and legislatin and since the Law n the free mvement f persns and n immigratin had transpsed already several EU directives, the transpsitin f directives in this field des nt create a big impact. In additin the fact that the Visa Cde and the Visa Infrmatin System regulatin des nt need transpsitin in the natinal legislatin had made that these pieces f legislatin had immediate effect since the mment they came int effect. Nevertheless, accrding t ne f the assciatins interviewed, the cming int frce f the Visa Cde has nt changed the administrative practice. Fr example, ne assciatin had mentined that even if the Visa Cde fresees that when a C visa is refused the embassy has t issue a dcument explaining the mtives f the refusal, in their prfessinal experience they have nticed that in the practice the diplmatic representatin des nt give any explanatin f the refusal. Accrding t their wn experience ver the last few years, especially with regard t family reunificatin issues, the administrative practice may differ frm what is freseen in the legislatin. Fr example, in cases f nn-accmpanied minrs, even if the law facilitates family reunificatin, the dcuments that are requested frm the parents f the minr are difficult t fulfill and in that sense the administrative practice is highly frmalist 265. While it is understandable that the functinaries f the Ministry f Freign Affairs demand these dcuments but in the cntext f refugees family reunificatin the prvisin f sme dcuments is very difficult in practice, either because the gvernment refuses t give them r because there is n gvernment t issue them (i.e. Smalia). Other example is the prblem with migrants that already have a resident permit in anther Member State and came t Luxemburg t wrk and their applicatin was refused n the bases that they did nt make their applicatin frm their cuntry f residency 266. What they cnsidered very frmalistic and difficult t understand is that in sme cases these migrants have enrmus difficulties t find 265 Pint f view f NGO, Interview N 9, page 2, lines 60 t Pint f view f NGO, Interview N 9, page 2, lines 73 t

113 a jb and they cannt return t their cuntry f residence withut incurring in ecnmic distress and lsing their jbs Overall impact f EU migratin plicy and legislatin n visa plicy and the issuing f visas in Luxemburg. The Eurpean Migratin plicy and legislatin n visa plicy is the nrm in the issuing f visas in Luxemburg, with the exceptin f the Law n the free mvement f persns and n immigratin that regulates the issuance f the authrizatin fr the residence permit and the residence permit. The EU migratin plicy and legislatin, especially with the visa facilitating agreements, the exemptin f visa requirements t certain cuntries had influenced the number f visas issued and the number f arrivals f migrants in Luxemburg.. Hwever, it is imprtant t take int cnsideratin that a high number f visas issued by Luxemburg are issued by ther Member States Instruments that have an effect n Luxemburg legislatin and/r plicy and practices: EU visa facilitatin agreements The purpse f visa facilitatin agreements is t prmte interactin between the citizens f the Eurpean Unin and the cntracting States. The agreements serve t facilitate the issuance f visas fr a shrt stay between Member States and the cntracting state. The Eurpean Unin and the cntracting States wish t facilitate persnal interactin which is a prerequisite fr the stable develpment f ecnmic, humanitarian, cultural, scientific and ther relatins by facilitating the issuance f visas t the citizens f the Eurpean Unin and the cntracting States in cmpliance with the principle f reciprcity. Visa facilitatin agreements apply t visas fr the Schengen area fr an intended stay f n mre than 90 days per perid f 180 days. 267 Pint de view f NGO, Interview N 7, pages 6-7, lines 283 t 289 and Interview N 10, page 2, lines 73 t

114 All visa facilitatin agreements are invariably assciated with a readmissin agreement via a suspense cnditin clause. In a readmissin agreement, the third-cuntry undertakes t cperate in taking back irregular residents in accrdance with the agreed prvisins relating t prcedure, evidence, etc. The Eurpean readmissin agreements apply nt nly t natinals f the third cuntry but als t irregular residents wh entered the EU via the territry f the third cuntry, insfar as this can be prved. This cnditinal apprach enables the EU t reintrduce stricter visa issuing prcedures n a temprary basis. Since visa plicy is a Eurpean matter because f the freedm f mvement in the Schengen area, the visa facilitatin agreements are negtiated by the Eurpean Cmmissin and nt by individual Member States. In the last past years, the Eurpean Unin had signed visa facilitatin- cmbined with readmissin agreements with the fllwing cuntries: a) Balkan cuntries: Serbia 268, Bsnia-Herzegvina 269, Albania 270, Macednia 271 and Mntenegr 272. These agreements came int frce frm 1 January These agreements determine the applicatin fee at 35, shrtens the visa applicatin prcessing perid, regulates exemptins frm visa fees and simplifies terms and cnditins fr issue f visas t specific categries f peple. The Agreement des nt regulate the terms and cnditins f stay ver 90 days, which remain t be regulated by natinal legislatin. b) Russian Federatin 273 : this agreement simplifies the dcuments that the Russian r Eurpean citizen has t prvide t btain a certain type f visa (art. 4). It als fresees the issuance f multiple entry visas (art. 5), the fees fr issuing the visas (art. 6), length f prcedures fr prcessing visas applicatins (10 days with the pssibility t extend it t 30 days if further scrutiny f the applicatin is needed) and sme ther travel aspects. This agreement has been in frce frm 1 June Official Jurnal f the Eurpean Unin, 19 Dec. 2007, Nr. L 334/ (Official Jurnal f the Eurpean Unin, 19 Dec. 2007, Nr. L 334/97, (Official Jurnal f the Eurpean Unin, 19 Dec. 2007, Nr. L 334/ Official Jurnal f the Eurpean Unin, 19 Dec. 2007, Nr. L 334/ Official Jurnal f the Eurpean Unin, 19 Dec. 2007, Nr. L 334/ Official Jurnal f the Eurpean Unin, 17 May 2007, Nr. L 129/

115 c) Ukraine 274 This agreement has been in frce since 1 January It determines the applicatin fee at 35, shrtens the visa applicatin prcessing perid, regulates exemptins frm visa fees and simplifies terms and cnditins fr issue f visas t specific categries f peple. The Agreement des nt regulate the terms and cnditins f stay ver 90 days, which remain t be regulated by natinal legislatin. d) Mldva 275. This agreement has been in frce since 1 January It determines the applicatin fee at 35, shrtens the visa applicatin prcessing perid, regulates exemptins frm visa fees and simplifies terms and cnditins fr issue f visas t specific categries f peple. The Agreement des nt regulate the terms and cnditins f stay ver 90 days, which remain t be regulated by natinal legislatin. e) Gergia 276 : The visa facilitatin agreement aims at making it easier fr Gergian citizens, in particular thse wh travel mst, t acquire shrt term visas fr the EU. It prvides a reduced visa fee f 35 instead f 60 fr all Gergian citizens and a ttal exemptin frm the visa fee fr certain categries f applicants (e.g. children belw the age f 12, pensiners, disabled persns, students, clse relatives and representatives f civil sciety rganizatins). Furthermre fr certain persns (e.g. business peple, students and jurnalists) the necessary dcuments requested fr supprting a visa applicatin are simplified. Bna fide frequent travellers will be issued multi-entry visas with lng perids f validity. Finally, the hlders f diplmatic passprts are exempt frm the visa bligatin. The agreement als bliges the Cnsulates t take a decisin within 10 days n whether r nt t issue a visa 277. This agreement has been in frce since 1 March f) Republic f Seychelles: The EU had signed agreements with this cuntry tending t exempt its citizen f the visa requirement 278. g) Maurice Islands: The EU had signed agreements with this cuntry tending t exempt its citizen f the visa requirement Official Jurnal f the Eurpean Unin, 18 Dec. 2007, Nr. L 332/ Official Jurnal f the Eurpean Unin, 19 Dec. 2007, Nr. L 334/ Official Jurnal f the Eurpean Unin, 25 February 2011, Nr. L 52/34, Eurpean Unin signs visa facilitatin agreement with Gergia, Press Release, IP/10/737, Brussels, 17 June 2010, uilanguage=fr 278 Directive 2009/900/CE f 30 Nvember Directive 2009/899/CE f 30 Nvember

116 h) Saint Christpher and Nevis Federatin: The EU had signed agreements with this cuntry tending t exempt its citizen f the visa requirement 280. Hwever, it is imprtant t mentin that the Visa facilitating agreements with the Balkan States had been transfrmed int the lifting f visa requirements 281, as we will see belw Lifting f visa requirements with particular third cuntries The Cuncil f Justice and Internal Affairs f the Eurpean Unin had decided n 30 Nvember 2009 t lift the visa requirements t third cuntry natinals frm Serbia, the frmer Yugslavian republic f Macednia and Mntenegr frm 19 December 2009 and fr the citizens f Albania and Bsnia-Herzegvina frm 15 December The nly requirement is fr these citizens t have a bimetric passprt. The citizen has the right t travel withut a visa in the Schengen area fr 90 days during a perid f six mnths 282. Hwever, they cannt establish r wrk in any Member State. These Cuncil decisins had the supprt f Luxemburg 283. Nevertheless, as f the beginning f the 2011, the number f applicants fr asylum that are natinals frm sme Balkans cuntries is in cnstant augmentatin since the lift f the visa requirements t thse cuntries. Fernand Kartheiser MP (ADR) made a parliament query n 2 February 2011 t the Minister f Labr and Immigratin regarding the resurgence f the asylum applicatins frm Balkans cuntries citizens after la lifting f the visa requirement. 280 Directive 2009/899/CE f 30 Nvember The Eurpean Cmmissin had analyzed the cnsequences f the neighbrhd plicy with certain cuntries in Central and Eastern Eurpe, prpsing in a first phase t extend the visa facilitating agreements excepting frm this bligatin in the regulatin n 1244/2009 f 30 Nvember 2009, the citizens f the Frmer Yugslav Republic f Macednia and Serbia. In a secnd phase this exemptin will be extended t the citizens f Albania and Bsnia-Herzegvina if they were in pssessin f a bimetric passprt. It is imprtant that the Cuncil f Justice and Internal Affairs had apprved n its meeting f 24 and 25 February 2011, the decisin t create a mnitring panel f the visa liberalizatin plicy in the Balkan states. This mechanism will permit t suspend the visa exemptins in case f a massive r imprtant inflw f migrants frm theses cuntries. 282 Eurpean Cmmissin, Cmmissin prpses visa free travel fr citizens frm the Western Balkans, Press Release, IP/09/1138, 15 July Eurpafrmum.lu, Jean-Marie Halsdrf a participle le 30 nvembre 2009 à sn premier Cnseil Justice et Affaires interièures, 30 Nvember

117 As we can see frm the graph belw the number f asylum applicatins t May 2011 is almst the same as the ttal amunt f asylum applicatins in the year Graph N 11: This situatin had been recgnized by the Ministry f Labur and Immigratin, Mr. Niclas Schmit during a cnference n 1 February He nted a resurgence f asylum applicatins by Serbian citizen, especially frm Rms and members f the Albanian speaking minrities 284. Hwever, the Minister had recgnized that the prblem is nt exclusive t Luxemburg but that ther cuntries like Germany, Belgium, Sweden 285 and the Netherlands have been affected as well. He had granted that this is a real prblem that will challenge the administrative and judiciary capacities f the Directrate f Immigratin. The Serbian Minister f the Interir, Mr. Ivan Dacic, had said that mst f these peple are false asylum seekers that are mved by ecnmic mtives, because they are nt plitically persecuted. They are mtivated by a financial calculatin trying t benefit f the financial aids that sme Member States give t asylum seekers Eurpafrum, Le ministre de l Immigratin Niclas Schmit cnstate un "afflux de demandes d asile émanant de ressrtissants de la Serbie" après la levée de l bligatin de visa vers l espace Schengen, 1 February 2011, In Sweden nly in 2 mnths they had mre than applicatins. 286 Eurpafrum, Niclas Schmit et Ivica Dačić nt fait part de leur vlnté que Luxemburg et Serbie pursuivent leur cpératin "dans un esprit parfaitement eurpéen" pur lutter cntre l afflux de demandeurs d asile en prvenance de Serbie, May 5, 2011, 112