The Constitutional Status of Foreigners and European Union Citizens: Loopholes and Interactions in the Scope of Application of Fundamental Rights

Abstract

Twenty years after the communitarisation of asylum and migration policies through the Treaty of Amsterdam, there is still much uncertainty about the impact of EU law on the legal status of different persons, depending on their nationality and whether or not they have crossed an internal or external border. The present chapter focuses on the systematisation of the most basic layer underlying the interaction of the status of third-country nationals and EU citizens: the scope of application of EU fundamental rights with regard to EU citizens and third-country nationals. It looks at the dissection of the complex scenario of EU fundamental rights through the lens of the citizen/foreigner divide.

After a brief account of the structure of the provisions of the Charter of Fundamental Rights of the EU (the Charter) and the role of nationality in the determination of entitlement to fundamental rights (II), the question of the impact of the different competences of the Union with regard to EU citizens and EU foreigners will be explored (III). This third section deals, first, with the areas of competence where in principle no distinction on the basis of nationality exists in the application of EU secondary law (A). Subsequently two main areas where such nationality-based differentiation exists will be considered: free movement law and EU migration law (B). The final section of this chapter (IV) is devoted to exploring how the different structure and reach of EU competences and their development by secondary law in the above-mentioned fields projects onto the scope of EU fundamental rights. It will be posited that the specifi city of the structure of EU fundamental rights protection, combined with the scope of competences of EU law in citizenship and migration issues — and the different development of those areas through secondary law — leads to a particular constitutional scenario, where the scope of fundamental rights protection does not correspond to preconceived expectations based on national conceptions of the status of citizens and foreigners.

Keywords: EU law, immigration policy, EU migration law, EU citizenship, EU fundamental rights, Charter of Fundamental rights