The issue of the free movement of EU citizens, as well as immigration and asylum from non-EU countries, has in recent years become one of the most contested issues in EU law. This blog post reviews the large number of legal developments over the last year in these two fields, assessing firstly the controversies over EU citizens’ free movement rights and secondly the tensions in EU immigration and asylum law between immigration control and human rights and between national and EU powers. It’s the second in a series of blog posts reviewing aspects of EU law in the last year; the first in the series (on criminal law) can be found here.
Free Movement Law
The case law of the CJEU on EU citizens’ free movement in 2014 was dominated by the themes of the limits to economic migration and equal treatment, in conjunction with EU citizens’ right to family reunion. On the first point, the most prominent judgment of 2014 was the Dano ruling (discussed here), in which the CJEU took a more stringent approach than usual in ruling that an EU citizen who had not worked or looked for work had no right to insist upon a social assistance benefit in the Member State that she had moved to.
As for the basic rules on qualification for EU free movement rights, the CJEU was not asked to rule in 2014 on the definition of EU citizenship. However, a pending case in the UK Supreme Court (discussed here) raises important questions about the extent of EU rules on the loss of national (and therefore EU) citizenship. The acquisition of EU citizenship also proved controversial, in the context of Malta’s sale of national (and EU) citizenship (discussed here).
Furthermore, EU free movement rights usually only apply to those who have moved between Member States. In two linked judgments this spring (discussed here), the CJEU clarified some important exceptions to that rule, as regards EU citizens who have moved to another country to be with their family members and returned, or who are cross-border workers or service providers. Next year, the CJEU will further clarify another important exception to that rule: the Ruiz Zambrano scenario when the non-EU parent of an EU citizen child is expelled to a third country, and the EU child has to follow, resulting in a de facto loss of their EU citizenship. The CS and Rendon Marin cases both ask the Court whether that case law applies to cases where the non-EU parent has been expelled following a criminal conviction.
For those EU citizens who do move between Member States, the CJEU delivered an important judgment in the case of Saint-Prix (discussed here), extending the concept of ‘former workers’ beyond the categories listed in the EU’s citizens Directive, to include also (under certain conditions) cases of pregnant women who gave up their jobs before the baby’s birth.
This judgment concerned the continued access to equal treatment in welfare benefits which former workers enjoy. Indeed, a new Directive on workers’ equal treatment (discussed here) was adopted in 2014, aiming to ensure the effective implementation of such equal treatment rights in practice. Next year, the CJEU will be called upon in the Alimanovic case to clarify whether the limits on EU citizens’ access to benefits set out in Dano also impact upon work-seekers, who have previously had limited access to benefits linked to labour market access. The Court will also soon rule on students’ access to benefits again in the case of Martens, where there has already been an Advocate-General’s opinion.
The issue of EU citizens’ right to family reunion was repeatedly addressed throughout the year, with the CJEU taking a consistently liberal view. It ruled for a generous interpretation of ‘dependent’ family members in Reyes (discussed here), and confirmed that separated spouses can still qualify for permanent resident status in Ogierakhi (discussed here). It also ruled in McCarthy (discussed here) that non-EU family members of EU citizens could not be subject to a ‘family permit’ requirement to visit the UK, but rather had to be exempt from the need to obtain a visa if they hold a residence card in the country which they live in. This judgment clarified that Member States could only claim that EU citizens were abusing free movement rights in individual cases. On this topic, the Commission produced a Handbook on the issue of 'marriages of convenience' (discussed here). Next year, the Court will be called upon to clarify the application of EU law to divorces (Singh), and for the first time, to same-sex relationships (Cocaj).
Finally, as regards the issue of derogations, the Court took a less generous view of cases involving criminal convictions, ruling in G and Onuekwere that time spent in prison in the host State did not count toward obtaining permanent residence status or the extra protection against expulsion that comes with ten years’ residence.
Of course, the benefits of EU free movement law are not uncontested. Throughout the year, the debate on the merits of these rules in the UK intensified, to the point where Prime Minister David Cameron insisted that there had to be a major renegotiation of these rules as a key feature in the renegotiation of the UK’s membership of the EU. As I pointed out at the time (see discussion here), many of his demands will be difficult to agree, as they would require Treaty amendment.
Immigration and Asylum law
There were important developments in all four areas of EU immigration and asylum law in 2014: visas and border controls; irregular migration; legal migration; and asylum.
Visa and borders
In the area of border controls, the EU adopted new legislation on maritime surveillance in the spring (discussed here), following a judgment of the CJEU invalidating the prior Council implementing measure on the same subject. This Regulation contains rules on search and rescue, as well as maritime surveillance and the accountability of Frontex, the EU’s border agency. But it does nothing to ensure the accountability of Member States for cases of ‘push-backs’ (illegal return to the country of origin from the high seas) where Frontex is not involved. Nor does it address illegal refusal of entry for asylum-seekers at the external land borders, as in the case of recent Spanish legislation applying to its North African enclaves.
To be fair, in recent years there have undoubtedly been far more cases of national operations which save migrants’ lives, in particular the Italian Mare Nostrum operation of 2013-14. However, that operation was wound down starting in autumn 2014, and replaced by a much more modest EU-led Operation Triton. It’s possible that more migrants will drown in the Mediterranean as a result.
The EU prefers to focus instead on ever-increasing controls at the external borders. But the negotiations on the EU’s smart borders proposals dragged on throughout 2014, with no agreement on the relevant rules likely before 2016. As for CJEU case law, the important Air Baltic judgment confirmed (following the 2013 judgment in Koushkaki, regarding the visa code) that EU rules on entry at the external borders are exhaustive, leaving no residual discretion to Member States. The Court’s other judgment in this field, on the EU’s passports regulation (the so-called Doktor U case), copied the EU legislature’s usual approach of prioritising border controls over individual rights (in this case, the right to present one’s own name in a passport).
In the area of visas, new legislation waived visa requirements for Moldova and then for a list of other countries (Peru, Ecuador, the United Arab Emirates, many tropical island States), subject (for most of these countries) to the negotiation of visa waiver treaties with the countries concerned. Treaties on visa facilitation with Armenia, Azerbaijan and Cape Verde entered into force, and the EU and Turkey began discussions on a visa waiver process. Furthermore, the Commission proposed legislation to establish a new ‘touring visa’, and to overhaul the EU’s visa code, in order to encourage tourism and other legitimate travel (including new rules on Schengen visas for EU citizens’ non-EU family members, discussed here). Overall, the long-term trend of gradual liberalisation of the EU’s visa policy continued in 2014.
The main focus in this field was the EU’s Returns Directive, with its detailed rules on many aspects of the expulsion process. Interestingly, while the CJEU’s case law prior to 2014 had focussed on the grounds for immigration detention (with the exception of the 2013 Filev and Osmani judgment, concerning entry bans), the case law this year was far more diverse. In the Mukarubega and Boujlida judgments (discussed here), the CJEU elaborated on the right to be heard in the administrative phase, before an expulsion order was issued to an irregular migrant. The Court ruled that such a right existed even without an express mention in the Directive, although it then proceeded to limit the actual content of that right considerably.
Conversely, the Directive does contain some basic rules on judicial review of detention, and the CJEU interpreted these for the first time in the Mahdi judgment (discussed here). In particular, the CJEU enhanced judicial control over extension of the detention period, but did not clearly answer questions concerning review of the grounds for detention, notably the issue of whether there was a ‘risk of absconding’ purely because a person lacked an identity document.
The CJEU also gave its first ruling on judicial review of removal orders, in the Abdida case (discussed here). It insisted that legal challenges to removal had to have suspensive effect, where the irregular migrant alleged a serious risk to his or her health would result from return to the country of origin. Also, for the first time this judgment addressed the living standards of irregular migrants pending removal (in this case, Mr. Abdida was entitled to basic social assistance, despite the absence of rules on this issue in the Directive). It also confirmed that the list of issues which Member States had to take into account when applying the Directive, including ‘non-refoulement’ (among other grounds), could constitute a reason for non-removal, and took a liberal view of the interpretation of ‘non-refoulement’. In effect, the CJEU ruled that in some cases, the Directive could form the basis of a claim for a form of protection. But in the parallel case of M’Bodj (discussed below) it ruled that such cases did not fall within the scope of EU rules on asylum, and in the Mahdi judgment it ruled that in the ordinary case, irregular migrants who could not be removed gained no particular rights from the Returns Directive, in effect being left in limbo.
Next, the CJEU broke more important new ground in the cases of Bero and others (discussed here), for the first time ruling on detention conditions. It significantly limited the circumstances in which Member States could detain irregular migrants in prisons, rather than specialised detention centres.
Further important questions are pending before the CJEU. Next year, the Court will rule on the extent of Member States’ power to establish more favourable conditions for irregular migrants, by issuing them with fines instead of expelling them (Zaizoune). It will also clarify the extent of the Member States’ obligation to give irregular migrants a period for voluntary departure (Zh and O). It will clarify whether the limits on the criminalisation of irregular migrants, as established by prior case law, also apply to those who stayed without authorisation (Celaj; the Court passed up a chance to answer this point in the 2014 ruling in Da Silva). And it will clarify the grounds for detention further, in particular interpreting when a ‘lack of cooperation’ by an irregular migrant can justify a longer period of detention (Mehrabipari).
The Returns Directive also received attention from the Commission and the European Migration Network in 2014. For its part, the Commission report (discussed here) offered some indications of how Member States applied the Directive in practice, although many details were missing. There were further details of the practice regarding detention in particular in the Network report (discussed here). Overall, there were signs that Member States had increased their standards in some areas but lowered them in others. But the Commission’s failure to bring any infringement actions against Member States, or to issue guidance regarding the correct application of the Directive, was disappointing.
There were developments regarding other aspects of irregular migration in 2014. The Commission issued a report on national application of the Directive prohibiting employment of irregular migrants (discussed here), which indicated that Member States were applying that Directive’s coercive rules enthusiastically, but failing to fully apply its rules on protection of migrants’ rights. For its part, the CJEU confirmed that EU employment law applies to third-country nationals, including irregular migrants (see discussion here). Also, the Commission reported for a second time on the application of the EU rules on the immigration status of trafficking victims. Its report (discussed here) indicates that Member States are still unwilling to issue many residence permits to such victims, hindering the effective prosecution of cases.
Finally, the EU’s readmission treaties with Turkey, Armenia, Azerbaijan and Cape Verde also entered into force in 2014. This completes the network of EU readmission treaties to the east and south-east (with the exception of Belarus), and for the first time extends that network to an African state. The CJEU also strengthened the EU’s powers to include readmission clauses in development treaties (as discussed here), presaging more readmission rules in future.
After four years’ discussion, the EU agreed new legislation on two aspects of labour migration in 2014, adopting legislation on seasonal workers and intra-corporate transferees (the latter directive is discussed here). There was also some progress on the 2013 proposal to amend the rules on students and researchers: the European Parliament adopted its position in the spring, and the Council position was agreed in December. Negotiations between the two branches of the EU legislature will get underway in 2015, but are likely to be difficult due to their radically different views (I’ll look at these positions in detail in a future blog post).
The Commission also reported for the first time on the EU’s flagship legislation on labour migration, the ‘Blue Card’ Directive. The report (discussed here) indicated that Member States were making great use of the many options in the Directive, diluting its intended purpose to serve as a means to attract highly-skilled migrants to settle in the EU. The new EU Commission intends to propose amendments to this legislation (discussed here) to ensure that it is better able to accomplish its goals.
The CJEU played a modest role in the development of EU law on legal migration in 2014, ruling on issues relating to family reunion, long-term residents and students. On family reunion, the CJEU delivered a very disappointing judgment in Noorzai (discussed here) on the calculation of waiting periods for spouses married before the age of 21, paying little account to its prior case law on the need to protect family life and interpret exceptions from the EU’s family reunion Directive narrowly. For the family members of Turkish workers, though, the Court insisted in Dogan (discussed here) on the application of a standstill clause, thereby exempting them from being subject to the more restrictive rules introduced in recent years – unless such rules could be justified on public policy grounds. Next year, the Court is due to rule on the key question of the limits to the imposition of integration conditions as a ground for family reunion (K and A case). The Commission issued some useful (if very belated) guidance on the application of the family reunion Directive (discussed here); it remains to be seen whether it takes any action to enforce the law.
In other areas, the CJEU ruled in Tahir that being a family member of a long-term resident wasn’t enough to become a long-term resident in one’s own right. The Court should rule next year on: when integration conditions can be imposed on long-term residents (P and S; the Advocate-General’s opinion is due in January already); on the scope of equal treatment for long-term residents (Van Hauthem), and on the extent of fees which Member States can charge to get such status (CGIL).
Next, the Court ruled that Member States have no residual discretion to create new conditions for the admission of non-EU students, in the Ben Alaya case (discussed here). This judgment arguably applies by analogy in other areas of EU immigration law too.
Finally, the Court repeatedly rejected arguments that the UK’s opt-out over immigration matters applied to social security matters, in particular as regards Switzerland (discussed here) and Turkey (I’ll come back to the latter case soon).
The CJEU’s case law on the qualification directive (which governs the definition and content of refugee and subsidiary protection status) addressed a number of issues. In A, B and C (discussed here), it ruled out a variety of unpleasant methods of assessing the credibility of LGBTI asylum-seekers, while oddly leaving it open to Member States to ask questions based on stereotypes. In Diakite, it ruled that the EU rules on qualification for subsidiary protection, on grounds that there is a risk of a serious threat to a civilian in cases of ‘indiscriminate violence in situations of international or internal armed conflict’, should not be interpreted consistently with the similar provisions of international humanitarian law. It also clarified another ground for subsidiary protection in M’Bodj (discussed here), ruling that protection on grounds of facing ‘torture or other inhuman or degrading treatment’ did not apply where the person concerned would simply not receive medical treatment in his or her country of origin. Furthermore, Member States’ power to set ‘more favourable standards’ did not extend to permit them to give subsidiary protection as an option to such people. EU law could only apply in the context of the Returns Directive (see the Abdida case, discussed above). Early next year, the CJEU should give important rulings in the cases of T (regarding terrorism) and Shepherd (regarding a US citizen claiming asylum due to conscientious objection to the Iraq war); there is an Advocate-General’s opinion in both cases already.
As for the reception conditions Directive, the CJEU delivered a liberal ruling in Saciri (discussed here), affirming asylum-seekers’ right to family housing on the basis of a very generous interpretation of the Directive. In the area of asylum procedures, the Court clarified the relationship between refugee and subsidiary protection status in the MM case (discussed here), and took a narrow view of the application of data protection rules to the asylum process in Y and S (discussed here).
Finally, the CJEU did not rule on the Dublin system on responsibility for asylum claims in 2014, except to rule in the Qurbani case (discussed here) that it did not have jurisdiction to interpret Article 31 of the UN Refugee (Geneva) Convention on this context. But its approach was implicitly criticised by the European Court of Human Rights (ECtHR) in the Tarakhel ruling (discussed here). The CJEU quickly reacted with its quite bonkers judgment on the EU’s accession to the ECHR (discussed here), insisting that its peculiar notion of naïve mutual trust in each Member States’ asylum system should prevail over any possibility that the other Court might find a breach of human rights in individual cases. The Dublin system was also the focus of the sole legislative proposal on asylum in 2014 (discussed here), which sought to clarify the rules on unaccompanied minors.
In the area of free movement of EU citizens, the CJEU has made significant gestures to its critics this year, as regards the issue of ‘benefit tourism’ and on the limited legal rights of those who have been convicted of crimes. But it continues to take a robust view of equal treatment rights and of the definition and rights of EU citizens’ third-country family members, even in cases outside the traditional rules. If David Cameron is in a position after next year’s UK general election to insist upon renegotiation of the UK’s EU membership, this will be one of the key political issues facing the EU.
In the area of immigration and asylum, the tension between immigration control and human rights can be seen particularly in the EU’s continued strengthening of its border controls despite the large loss of life in the Mediterranean. It’s often suggested that a more developed EU external policy on asylum could reduce the number of lives lost, but there are many legal and political issues holding up such a resolution. This autumn, I attended a seminar on these issues: there was a consensus among the high-level government experts that an effective policy was simply not politically realistic.
Once non-EU citizens do reach the EU’s territory, however, the CJEU’s relatively liberal interpretation of the legislation on legal migration, asylum and even the Returns Directive means that they enjoy more rights than the initial critics of much of this legislation thought would be likely. Interestingly, the EU’s traditional economic objectives are being increasingly used as justification for the adoption of more liberal rules on visas and labour migration, not only by the EU legislature but also (in the Ben Alaya judgment) by the CJEU.
The Court’s rulings this year have confirmed that EU law constrains Member States’ discretion in this field significantly, not only establishing the exhaustive nature of the EU’s rules on border control on admission of students, but also setting a ceiling as regards the definition of refugee and subsidiary protection status and developing many new rules in the context of the Returns Directive. But there is an interesting new development: the CJEU has opened up a second front, defending EU rules also from any significant influence by international law. This is evident in several areas: the decoupling of the EU’s subsidiary protection rules from international humanitarian law; the ‘channelling’ of the ECtHR jurisprudence on medical cases into the Returns Directive instead of asylum law; the continued implicit snub to international soft law (this year, as regards the UNCHR guidelines on credibility assessment in LBGTI cases); and most obviously the CJEU’s barely suppressed rage at the ECtHR’s mild criticism of the dysfunctional Dublin regime. Time will tell what the effects of the Court’s hubris will be.
Barnard & Peers: chapter 13, chapter 26