Competence, discretion and third country nationals: The European Union's legal struggle with migration

Abstract

With the Amsterdam Treaty the European Community has been granted a wide competence over the treatment of third country nationals seeking to come to or become resident in the European Union. This includes third country nationals who are seeking asylum in the territory of the Union. How this new competence will be exercised and what the results will be are still unclear, In this article 1 argue that there is a consistent approach in Community law towards migration which has developed from the principle of free movement of persons which has constituted an objective of the Community since the original Treaty in 1957. In the exercise of these powers the Community, as regards nationals of the member states, has devised clear rules which provide a maximum of choice to the individual at the expense of member state discretion. Can a consistent and coherent approach be applied towards third country nationals either within the territory of the Union or seeking to enter? This challenge which arises with the Amsterdam Treaty is considered here from an historical perspective.