Fundamental Rights Protection for Third Country Nationals and Citizens of the Union: Principles for Enhancing Coherence

Abstract

Abstract The definition of the legal contours of a citizenship status is intrinsically bound to the determination of a differentiated status for non-citizens. Nonetheless, European citizenship has been designed in a non-exclusionary fashion. This is not so much the result of a conscious exercise of inclusiveness, as the result of the indeterminacy of the EU Treaties. The progressive construction of a common European immigration policy is happening within a constitutional scenario deprived of principles suitable to guide the relationship between the citizenship status and the several newly created status for third-country nationals, who now derive their EU rights not only from their relationships with EU citizens nor from agreements mirroring the fundamental freedoms. For this reason, there is a growing need to make explicit the principles that should govern this relationship. The main purpose of this paper is to discern and analyse the emerging lines of this relationship, which are being unveiled by EU immigration norms, particularly as they are being interpreted in recent judgements of the ECJ. It will be argued that the new EU rules on immigration are helping to uncover the shortcomings and incoherencies of the EU citizenship status since, paradoxically, the structure of EU competences allows for a deeper involvement of EU law in the determination of the rights of third country nationals than of the rights of citizens.