Third country national

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No access for third-country nationals: Marking of the entry lane for EU, EEA and Swiss citizens entitled to free movement at airports

Third-country nationals (formerly part also third country nationals ; English third-country national , Spanish nacional de tercer país , Italian cittadino di un paese terzo , French ressortissant de pays tiers , Dutch onderdaan van een derde country ) is a legal concept from the asylum and immigration law of the European Union . It is mainly used to designate those citizens who are excluded from the right to free movement under European law . It is often the third-country nationals or third one nationality spoken.

Development history

The concept of third-country national is related to the creation of an area of ​​freedom, security and justice and the associated expansion of the legislative competences of the Council of the European Union with the entry into force of the Amsterdam Treaty on May 1, 1999.

According to Art. 63 Nos. 3 and 4 of the amended Treaty on European Union (EGV), the Council has since been empowered to take immigration policy measures such as entry and residence requirements, issuing of visas, repatriation after illegal immigration and the like. a. m. in relation to third country nationals .

In Title V of the Treaty on the Functioning of the European Union (TFEU) - the successor provision to the EC Treaty - created by the Treaty of Lisbon of December 13, 2007 , the term third-country nationals appears in Articles 67 to 80 TFEU, which deals with the area of freedom, security and justice has already been dealt with twelve times.

The granting of legislative competences to the European Union , after the concept of third-country nationals was largely unknown in European legislation until the beginning of 2001, has to be used continuously in European secondary law , above all in legislative acts of residence law and related issues (application for asylum, return , ID cards). Based on the respective subject matter of the regulation, however, the term is understood differently and is still not defined uniformly.

Terminology

The term is explicitly regulated in some ordinances.

Third country national as a non-Union citizen

The term “third country national” is defined negatively throughout , in that its scope is determined by exclusionary criteria. The criterion for exclusion is very often the European citizen . Third-country nationals are hereinafter defined as “any person who is not a national of a Member State ”; B. in Art. 2 letter a) of the Council Directive 2001/40 / EC of 28 May 2001 on the mutual recognition of decisions on the return of third-country nationals .

Later, instead of “nationals of a Member State” - regardless of the substance of the matter - the term “Union citizens within the meaning of Article 17 (1) of the Treaty” or “… within the meaning of Article 20 (1) TFEU” was used.

Third-country national as a person not entitled to free movement

In other pieces of legislation, the group of third-country nationals is significantly larger. In addition to Union citizens are also

  • the family members of Union citizens who are not Union citizens, and
  • Non-Union citizens and their family members, regardless of their nationality, who, on the basis of agreements between the Community and its Member States, on the one hand, and the third countries concerned, on the other, enjoy a right to free movement of persons that is equivalent to that of Union citizens,

excluded from the concept of third-country national. This includes all persons who enjoy the free movement of persons by virtue of European law or special agreements with the European Union.

No third country nationals i. According to this definition are the family members of a Union citizen who do not have Union citizenship (e.g. the Brazilian , Korean or US-American wife of a German , French , Italian , etc.).

No third country nationals i. According to this definition, due to the Agreement on the European Economic Area (EEA), the citizens of the non-EU member states of the EEA ( Iceland , Liechtenstein and Norway ) and their family members, even if the latter should be neither EEA nor Swiss citizens.

No third country nationals i. According to this definition, due to the Agreement on the Free Movement of Persons with Switzerland, Swiss citizens and their family members, even if the latter should be neither EEA nor Swiss citizens.

This extended definition of a third country national is used only in a few pieces of legislation.

Third country national as a non-EEA and non-Swiss citizen

Third-country nationals are defined differently again in Article 3 (d) of Regulation (EC) No. 1987/2006 of the European Parliament and of the Council of December 20, 2006 on the establishment, operation and use of the second-generation Schengen information system (SIS II) . According to this, a third-country national is any person who is not a citizen of the European Union within the meaning of Article 17 (1) of the Treaty or a citizen of a third country who, on the basis of agreements between the Community and its member states, on the one hand, and the third countries concerned, on the other hand, has one of the free movement of citizens of the European Union Union enjoys equivalent freedom of movement.

Something similar can be read in Article 2, letter a) of Council Directive 2003/110 / EC of 25 November 2003 on assistance with transit in the context of return measures by air . For historical reasons, the definition of a third-country national is limited to “any person who is not a national of a Member State of the European Union, the Republic of Iceland or the Kingdom of Norway”.

In both cases, the foreign family members of the nationals addressed with other citizenship are third-country nationals.

Third-party foreigners and third-country nationals

The term “ third-party foreigner ” still used in the Schengen Convention of 1990 has been incorporated into the Schengen acquis , but is no longer used in more recent legislation. It has no other meaning than that of the third-country national. In Article 1 of the CISA, the alien is defined as "a person who is not a citizen of one of the Member States of the European Communities". United Kingdom and Irish nationals are not third country nationals for the purposes of Schengen law , even if their countries are not part of the Schengen area. The Schengen Agreement only affects the abolition of border controls, but does not regulate the right to free movement, which all EEA citizens are entitled to. The British and Irish are just as restrictedly controlled at an external Schen border as Schengen citizens.

Position of the citizens of the European small states

Citizens of Andorra , Monaco , San Marino and Vatican City are not citizens of the Union , although these countries are politically and economically closely linked to the European Union, some also form a customs union with individual member states and often do without border controls with neighboring EU states. In general, the nationals of these states are third-country nationals in terms of European law.

Third country nationals without definition

In around 15 other directives and 20 other regulations of the European Union, the term third-country national is used, but not legally defined. Some of the directives and ordinances concern other regulation subjects than asylum and immigration law, namely the general principle of equal treatment , the recognition of professional qualifications, agriculture , patient rights in the health sector , rights in court proceedings ( legal aid ), social security and the internal market . The respective meaning of the third-country national results from the context. Often people without European citizenship are meant.

National

Germany

The term third-country national is not used in German residence and asylum law. Occasionally the word “third country” is used (e.g. in § 26a AsylG), the meaning of which is then derived from the respective context.

The term “third-country national” is used in other areas, especially in the area of ​​professional practice. It is often related to the recognition of foreign professional qualifications for non-EEA citizens. A legal definition is missing; its meaning mostly results from the context. A common formulation is:

"The regulations apply accordingly to third countries and third-country nationals, insofar as there is equality in terms of diploma recognition under the law of the European Communities."

By third-country nationals are usually meant non-EEA citizens.

Austria

The term third-country national is a legal term in Austrian immigration and asylum law and is legally defined there several times.

Both in Section 2 (1) No. 6 Settlement and Residence Act (NAG) and in Section 2 (4) No. 10 Aliens Police Act 2005 as well as in Section 2 (1) No. 20b Asylum Act 2005 it says uniformly:

"Third-country national [is] a foreigner who is not an EEA citizen or a Swiss citizen."

Certain legal consequences are linked to this in the individual regulations. In addition, the term can be found with a similar meaning, often legally defined, in specialist laws that relate to the practice of a profession or general issues.

In a few laws , the concept of third-country national is restricted to EEA citizens, in some it applies - as the context shows - to all non-Austrians.

Switzerland

In principle, Swiss law does not use the EU-internal term of third-country nationals in its national legislation.

It appears relatively frequently in agreements concluded with other states on the readmission of their own nationals and nationals of third countries who come from the country that the person is supposed to take back. Here, the respective meaning of the third-country national results from the context of the agreement.

Individual evidence

  1. ↑ OJ. L 149 of June 2, 2001, pp. 34-36.
  2. ↑ E.g. in the
    • Article 1 (2) b) of Council Regulation (EC) No. 1030/2002 of June 13, 2002 on the uniform format for residence permits for third country nationals (OJ L 157 of June 15, 2002, pp. 1-7 .),
    • Art. 2, pt. A) of the 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an lodged by a third-country nationals in a Member State Regulation (EC) No. Asylum application is responsible (OJ L 50 of 25 February 2003, pp. 1–10.),
    • Art. 2 letter a) of Council Directive 2003/86 / EC of 22 September 2003 on the right to family reunification (OJ L 251 of 3 October 2003, pp. 12-18),
    • Art. 2 letter a) of Council Directive 2003/109 / EC of 25 November 2003 on the status of third-country nationals who are long-term residents (OJ L 16 of 23 January 2004, pp. 44-53.),
    • Art. 1 No. 2 of Regulation (EC) No. 866/2004 of the Council of 29 April 2004 on a regulation under Article 2 of Protocol No. 10 to the Act of Accession (OJ L 161 of 30 April 2004, p. 128 –143.) (Regarding the border control with Northern Cyprus )
    • Art. 2 letter a) of Council Directive 2004/81 / EC of 29 April 2004 on the issuing of residence permits to third-country nationals who are victims of human trafficking or who have been assisted in illegal immigration and who cooperate with the competent authorities ( OJ L 261 of 6 August 2004, pp. 19-23.),
    • Art. 2 letter a) of Council Directive 2004/114 / EC of December 13, 2004 on the conditions for the admission of third-country nationals to study or to participate in a school exchange , an unpaid training measure or a voluntary service (OJ L 375 of December 23, 2004, pp. 12-18.),
    • Art. 2 letter a) of Council Directive 2005/71 / EC of October 12, 2005 on a special admission procedure for third-country nationals for the purpose of scientific research (OJ L 289 of November 3, 2005, pp. 15-22.) ,
    • Art. 2 para. 1 of Regulation (EC) No. 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection and on the repeal of Regulation (EEC) No. 311/76 of the Council on the compilation of statistics on foreign workers (OJ L 199 of 31 July 2007, pp. 23–29.),
    • Art. 2 No. 1 of the Visa Code ,
    • Art. 2 letter a) of Directive 2011/98 / EU of the European Parliament and of the Council of 13 December 2011 on a uniform procedure for applying for a combined permit for third-country nationals to reside and work on the territory of a Member State, as well as a common set of rights for third-country workers who are lawfully resident in a Member State (OJ L 343 of 23 December 2011, pp. 1-9.)
  3. ↑ Agreement on the European Economic Area of ​​May 2, 1992 , accessed on February 5, 2013 . In: Official Journal of the European Union . L, No. 1, 1994, pp. 3-522.
  4. ↑ Agreement between the Swiss Confederation, on the one hand, and the European Community and its member states, on the other hand, on freedom of movement of June 21, 1999 , accessed on February 5, 2013 . In: Official Journal of the European Union . L, No. 114, 2002, pp. 6-63.
  5. ↑ E.g. in
    • Art. 2 No. 6 i. V. with No. 5 of Regulation (EU) 2016/399 of the European Parliament and of the Council of March 9, 2016 on a Community code for people crossing borders ( Schengen Borders Code ) (OJ L 77 of March 23, 2016, P. 1),
    • Art. 3 No. 5 i. V. with No. 4 of Regulation (EC) No. 1931/2006 of the European Parliament and of the Council of December 20, 2006 laying down provisions on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Agreement ( OJ L 405 of 30 December 2006, pp. 1–22.),
    • Art. 2 letter a) of Directive 2009/52 / EC of the European Parliament and of the Council of June 18, 2009 on minimum standards for sanctions and measures against employers who employ illegally resident third-country nationals (OJ L 168 of June 30, 2009 , Pp. 24-32.).
  6. ↑ OJ. L 381 of December 28, 2006, pp. 4-23.
  7. ↑ OJ. L 321 of December 6, 2003, pp. 26-31.
  8. ↑ See e.g. B. § 1a Altenpflegegesetz, § 10 Abs. 4 Bundesärzteordnung, § 11 Abs. 4 Bundesapothekerordnung, § 1 Abs. 2 Dietassistentengesetz, § 1 Abs. 2 Occupational Therapists Act, § 1 Abs. 2 Midwifegesetz, § 1 Abs. 2 Speechopädiegengesetz, § 1 Paragraph 2 of the Law on Massage Therapy and Physiotherapy, § 1 Paragraph 2 of the MTA Law, § 1 Paragraph 2 of the Orthoptist Law, § 1 Paragraph 2 of the PTA Law, § 1 Paragraph 2 of the Podiatry Law, § 1 Paragraph 1 a of the Psychotherapist Law, § 1 Paragraph 2 Emergency Paramedic Act, Section 13 Paragraph 3 a Law on the Practice of Dentistry.
  9. ↑ See Section 1, Paragraph 4 of the Nursing Act.
  10. ↑ Section 3c (11) of the Pharmacy Act, Section 5b of the Physicians Act 1998, Section 1 (2) of the EEA Psychologists Act, Section 1 (2) of the EEA Psychotherapy Act, Section 28a (3) of the Health and Nursing Act, Section 12 (2) of the Midwives Act, Section 11 Paragraph 3 of the Cardiac Technician Act , Section 16, Paragraph 3 of the Medical Assistant Professions Act, Section 10, Paragraph 3 of the Medical Masseur and Therapeutic Masseur Act, Section 52e, Paragraph 3 of the Medical Technical Service and Medical Aid Services , Section 6b, Paragraph 3 of the MTD Act, Section 18, Paragraph 3 Paramedic Act, Section 9 Paragraph 2 Dental Act
  11. ↑ § 14 Fees Act 1957, § 14 Paragraph 1 i. V. m. Paragraph 3 Trade Regulations 1994
  12. ↑ E.g. Section 2 (9) of the Aliens Employment Act, Section 4 (1) of the 1992 Student Support Act.
  13. ↑ E.g. Section 22 (6) Services Act, Section 38 (2) Personal Status Act.