A/HRC/23/46 Annex [English only] Legal, institutional and policy framework related to migration and border management A. Legal, institutional and policy framework with regard to migration 1. With the entry into force of the 1999 Amsterdam Treaty, migration and asylum policies including the Schengen Acquis were officially incorporated into the legal framework of the EU, and this led to Member States’ agreement to extend the competence of the EU to make binding rules in almost all areas of migration and asylum law. Title IV provided the EU with the competence to enact legislation on visa policy, border control, as well as “illegal immigration and illegal residence, including the repatriation of illegal residents” (Art. 62 and 63 (3b) EC). The EU also decided to adopt a series of directives on asylum, refugees and displaced persons (Art 63 (1) and (2)). 2. The Lisbon Treaty coming into force in 2009 further extended the scope of EU migration and asylum law. Article 67.1 of the Treaty on the Functioning of the EU (TFEU) provides that the EU shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. Article 67.2 provides that the EU shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third -country nationals. Article 68 tasks the European Council with defining the strategic guidelines for legislative and operational planning within the area of freedom, security and justice. Article 79.1 provides that the EU shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third -country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, “illegal” immigration and trafficking in human beings. 3. Article 80 TFEU requires that the principle of solidarity and fair sharing of responsibility, including its financial implications, govern all policies enacted under articles 77-79 (border checks, asylum and immigration). 4. The TFEU article 4.2(j) provides that the EU and its Member States share competence in the area of freedom, security and justice. Member States may thus exercise their competence to the extent that the EU has not exercised its competence, or has decided to cease exercising it (TFEU article 2.2). The principle of subsidiarity requires that the EU does not take action in areas of shared competence unless “the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level” (Article 5.3 of the Treaty on European Union). 5. Member States maintain the right to determine volumes of admission of third country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed (TFEU Article 79.5). 1. The European Council’s five-year programmes 6. The European Council has adopted three programmes on justice and home affairs since 1999: Tampere (1999-2004), The Hague (2005-2009) and Stockholm (2010-14). The 23