EU Free Movement, Immigration and Asylum Law: 2014 in review

 

Steve Peers

Introduction

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.

Irregular migration

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.

Legal Migration

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).

Asylum

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.

Conclusions

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

 

 

The beginning of the end for the Euro? EU Law constraints on leaving EMU or defaulting on debts

 

Steve Peers

After a couple of years without any (apparent) crisis, the future of Economic and Monetary Union (EMU) is threatened again, following the decision to call snap Greek elections in January. What would be the consequences if the anti-austerity party Syriza becomes the government?

First of all, such an outcome is not yet certain. As Open Europe’s analysis points out, Syriza has only a modest lead in the polls, and even if it becomes the largest party, it may well fall short of having a majority of seats, in which case it would have to form a coalition with another party.

Secondly, it’s necessary to realise that Syriza has, in principle, relatively modest ambitions. Its policy is not to leave the EU or even the single currency, but rather to renegotiate Greece’s debts and the related austerity obligations. Even in previous elections, it sought to default on the debt, rather than leave the EU or EMU.

Having said that, it is possible that Syriza might decide to threaten more decisive action if renegotiation does not go well. Or that party’s more radical elements might take charge.  Or, in the view of some (see this Washington Post commentary), Greece might be forced out of the euro by other Member States, particularly Germany.

While the main issues arising from this situation are political and economic, there are also legal constraints that cannot be overlooked. Some key measures taken to save the euro in recent years were litigated before national courts (particularly in Germany and Ireland), as well as in the CJEU, notably the Pringle case (concerning the treaty establishing the European Stabilisation Mechanism) and the pending Gauweiler case (discussed here), concerning the European Central Bank policy of buying government bonds. The Advocate-General’s opinion in the latter case is due in mid-January – in the midst of the Greek election campaign.

Let’s start with the most radical outcome. Every Member State has an option to leave the EU, set out in Article 50 TEU. It would be unwise to invoke that provision unless a Member State genuinely wants to leave (see my earlier blog post on that provision). Conversely, however, it’s entirely impossible to force a Member State out of the EU against its will. The most that the other Member States can do is to suspend its membership in the event of a ‘serious and persistent breach’ of EU values, in particular human rights and democracy (Article 7 TEU).

What about departure from EMU? The Treaties contain detailed rules on signing up to the euro, which apply to every Member State except Denmark and the UK. Those countries have special protocols giving them an opt-out from the obligation to join EMU that applies to all other Member States. But there are no explicit rules whatsoever on a Member State leaving the euro, either of its own volition or unwillingly, at the behest of other Member States.  There’s an obvious reason for this: the drafters of the Maastricht Treaty wanted to ensure that monetary union went ahead, and express rules on leaving EMU would have destabilised it from the outset. Put simply, legally speaking, Greece can’t jump or be pushed from the single currency.

But other currency unions have fallen apart in history, despite any legal prohibitions that may have existed against it. So it’s important to consider also the practical constraints: it’s not realistic to imagine forcing Greece to leave or to stay in EMU against its will, short of invading and occupying the country. How would Greece be forced out exactly? By printing drachmas in Frankfurt, dropping them from the air over Greece and hoping that Greeks use them?

In the event that Greece did choose to leave EMU in practice, EU law would have to be amended (probably with retroactive effect) to regulate the position. Although there are no express provisions on this issue, arguably Article 352 TFEU (the default power to regulate issues not expressly mentioned in the Treaties) could be used. This would require a unanimous vote of all Member States: it wouldn’t be possible to use the EU’s ‘enhanced cooperation’ rules (allowing a group of Member States to go ahead without the others), since those rules can’t be used where an issue falls within the scope of the EU’s exclusive competence, and the single currency falls within the scope of the exclusive competence over monetary policy. If Article 352 was not legally possible (someone might bring a successful legal challenge if it was used, or one or more Member States might have purely legal objections), it would be necessary to amend the Treaties.

The least radical outcome is that Greece’s debt and austerity obligations are simply renegotiated. But there are legal constraints here too. Most significantly, Article 136(3) TFEU states that any financial assistance must be subject to ‘strict conditionality’, consistent with the CJEU ruling in Pringle. The CJEU also made clear in that judgment that the ‘no-bailout’ rule in the EU Treaties (Article 125 TFEU) allowed Member States to offer each other financial assistance on the condition that it took the form of loans, rather than a direct assumption of Greek government debt by other Member States. Moreover, the CJEU pointed out, the ESM Treaty required that in the event of non-payment, the loans would remain payable, and had to be charged an appropriate level of interest.

So it’s not possible for Member States to drop all conditionality as regards loans to Greece, to forgive debt as such or to loan money interest-free. But it is open in principle to reduce the stringency of the conditions somewhat, to reduce the interest rates payable and to lengthen the repayment period – although there is always the risk that some litigant will try to convince a national court or the CJEU that this is going too far. Moreover, the rules in the EU Treaties only bind EU institutions and Member States, not private parties, third States or international organisations (although it might be argued that Member States are constrained as members of the IMF not to violate the no-bailout rule indirectly). So any renegotiation or default as regards such creditors is not subject to EU law rules in principle, although of course other legal rules might be applicable.  

Whether such fairly modest renegotiation would do enough to reduce Greece’s mountain of debt significantly, or to satisfy the voters which supported a Syriza-led government, remains to be seen. The greater impact may be longer-term, in the event that a Podemos-led government comes to power in Spain, or that new or current governments in other Member States which have been bailed out demand a similar renegotiation.

Finally, it should be recalled that renegotiation of loans might not be the only possibility to help out Greece. For example, arguably the Treaties do not rule out a form of (supplementary) unemployment insurance system as between Eurozone Member States, since it would not take the form of paying off another State’s debts as such. Admittedly, such a system would provide indirect financial support to another State, since it would reduce costs which that Member State might otherwise have. But the same might be said of loaning money to that Member State, at interest rates far lower than it would be offered on the free market, via means of the ESM Treaty – and the CJEU has already found that this didn’t violate the no-bailout rule. Moreover, the previous Commission has already done a lot of preparatory work on this issue (see the fuller discussion here). Such a scheme could probably be launched either inside the EU legal framework, or outside it.  

It’s up to Greek citizens to decide if they want to vote for Syriza or not, and the EU institutions and other Member States should leave them alone to make their choice. But if Greeks do decide to vote for that party, it would be tiresome and counter-productive to react with bluster and threats. Why not take this opportunity to re-engage with the millions of EU citizens who are affected or angered by austerity, and re-orient the EU towards ending that austerity, instead of generating more of it? That’s more easily said than done, of course. But an unemployment insurance system would not only have an economic rationale (as an automatic stabiliser) but also a political one, demonstrating that the EU can assist those who have suffered from the economic downturn directly.

 

Barnard & Peers: chapter 19
Photo credit: Xendpay.com

Childhood’s End: EU criminal law in 2014

 

Steve Peers

With the elections to the European Parliament, the installation of a new European Commission, and a number of important legislative and case-law developments, 2014 was an important year for the European Union. This is the first in a series of blog posts reviewing the year in selected fields of EU law.  

The most significant change to EU criminal law came on December 1^, when the five-year transitional period relating to EU criminal law measures adopted before the entry into force of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon EU criminal law measures are subject to the normal rules of EU law (except that they maintain their previous limited legal effect, in particular the lack of direct effect). More specifically, this change (discussed generally here) has three main impacts.

Firstly, the UK was entitled to opt out of all pre-Lisbon EU criminal law measures, and then apply to opt back in to some of them again. The UK indeed exercised these possibilities, opting back in to 35 such measures as of 1 December 2014 (see discussion of the details here), following an unnecessarily convoluted process in the House of Commons (discussed here). In a nutshell, since the UK has opted back into a large majority of the pre-Lisbon measures which have any significant importance, the whole process has had barely reduced the UK’s actual degree of participation in EU criminal law.

Secondly, the end of the transitional period means that the EU Commission can now bring infringement actions against Member States that failed to correctly implement pre-Lisbon EU criminal law measures - or that failed to implement such measures at all. The relevance of this is obvious in light of the Commission reports issued this year, regarding: legislation on the transfer of prisoners, probation and parole and supervision orders (discussed here); hate crime and Holocaust denial (discussed here); and conflicts of jurisdiction and the recognition of prior convictions (discussed here).  

Thirdly, all courts in all Member States can now send references to the CJEU on the interpretation pre-Lisbon EU criminal law. For the EU as a whole, the impact of this change will probably be limited in practice, because (a) two-thirds of Member States allowed such references anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon Treaty. On the former point, the CJEU decided two cases this spring on the EU’s double jeopardy rules (discussed here), in which it finally developed the relationship between those rules and the double jeopardy provisions of the ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on the basis of the old rules, sent just a month before the end of the transitional period (Kossowski), now asks the Court to clarify whether Member States’ derogations from the Schengen rules violate the EU Charter.

On the second point, the first reference from national courts on post-Lisbon EU criminal law was referred this year: the Covaci case, on the Directive on interpretation and translation in criminal law proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there could still be an increase of such cases in future, perhaps after the 2016 deadline to apply the third suspects’ rights Directive (on access to a lawyer). And in the meantime, Member States must apply the victims’ rights Directive towards the end of 2015. Hopefully the CJEU’s case law on that measure will be more convincing than its ruling earlier this year (criticised here) on the scope of the Directive on compensation for crime victims.

Another important CJEU judgment in the criminal law field this year (discussed here) ruled that policing information measure actually fell within the scope of EU transport law. The immediate impact of this judgment was a rush to adopt replacement legislation (the text of which is already agreed), which will apply to all Member States (the UK, Ireland and Denmark had opted out of the prior measure). More broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s criminal law powers broadly – at least as compared to the EU’s other powers.

The end of the transitional period did not lead to a general review of pre-Lisbon EU criminal law measures, with the Commission proposing only a very limited repeal of some obsolete measures (I’ll blog on these proposals in the new year). In particular, the new Justice Commissioner appears to have no significant agenda to suggest criminal law proposals, whether to amend prior measures or to adopt new ones (for an argument as to what the Commission should do, see here).

However, some of the pre-Lisbon criminal law measures have been amended or replaced, or will be amended or replaced by proposed legislation now under discussion. In particular, during 2014, the EU adopted legislation concerning: the European Investigation Order (discussed here); the counterfeiting of the euro (discussed here); the confiscation of criminal assets; and the European Police College (moving its seat from the UK to Hungary). The EU also adopted legislation on criminal sanctions for market abuse (discussed here).

There are also proposals under discussion to replace pre-Lisbon EU criminal law measures concerning: fraud against the EU (see the state of play here); the police agency, Europol (see discussion of negotiations here); the prosecutors’ agency, Eurojust (there was a partial agreement on this proposal); and data protection in criminal law cases (see the state of play here). The latter issue is increasingly important, as indicated by the related CJEU judgment invalidating the data retention directive (discussed here), which gave rise to questions as to whether Member States could adopt or retain their own data retention laws (on this point, see generally here, and here as regards the UK in particular).

In fact, the CJEU will soon be ruling on data protection and criminal law issues as such, since the European Parliament has asked it to rule on the validity of the EU/Canada draft treaty on passenger name records (see discussion here). The pending Europe v Facebook case (discussed here) raises questions about the impact of the Snowden revelations upon the EU and US arrangements on data protection. In the meantime, the proposed Directive on passenger name records still remains on ice (having been put there by the European Parliament), with EU leaders’ attempt to set a deadline to adopt this proposal by the end of 2014 proving futile.

 

Other proposals are also under discussion: a more general overhaul of the European Police College; the creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning child suspects (agreed by the Council), presumption of innocence (also agreed by the Council) and legal aid (see the state of play here). However, the Commission’s proposal for new rules relating to the EU’s anti-fraud body, OLAF, soon melted in the heat of Council opposition. 

 

Conclusion

Taken as a whole, the year 2014 showed how the European Parliament, the CJEU and the Commission are already playing a significant role in the development of EU criminal law. Following the final demise of the third pillar, the year 2015 is likely to see further important developments in this area, which will make the pre-Lisbon measures even less important: the adoption of new legislation on Europol, the European Police College and possibly Eurojust, as well as revised legislation on fraud against the EU budget. There will likely be two or three further Directives on suspects’ rights and the victims’ rights Directive will begin to apply. The rules on the new European Public Prosecutors’ Office might also be agreed, and there could be significant developments in the area of data protection. Overall, the longer-term trends toward greater parliamentary and judicial control and greater focus on individual rights in this area accelerated significantly in 2014 and could well do so again next year.

 

Barnard & Peers: chapter 25

Could EU law save Paddington Bear? The CJEU develops a new type of protection

 

Steve Peers

Many readers may already be familiar with Colin Yeo’s brilliant blog post, imagining Paddington Bear’s unpleasant encounter with British immigration law. But could EU law save Paddington Bear, in particular by creating a new form of protection for those who have to flee their country of origin?

Background

EU law has regulated in detail two forms of international protection: refugee status (based on the UN’s Geneva Convention) and subsidiary protection status, for those who don’t qualify for refugee status. (There’s also EU legislation providing for temporary protection, but the EU has never used it). But there are people who don’t qualify for either form of status. When do they have a right to stay?

This question is relevant in a number of cases. For instance, Paddington Bear could argue that he was an ‘environmental refugee’, fleeing catastrophic events in his country of origin that were not caused by humans (or even bears). (I’m converting Paddington into a human for the purpose of this blog post, just as Colin does in his). Others might lack a right to stay, but can’t be removed for practical reasons, for instance because they don’t have documents that prove their nationality, and so the country which they probably come from refuses to accept them back. Or they have a serious illness, but the developing country which they come from lacks the resources to treat it: so sending them back would, in practice, amount to a death sentence.

It’s the last of these scenarios which forms the subject of the CJEU’s two recent rulings in M’Bodj and Abdida. (Note that these judgments should be read in that order, and it would be highly misleading to read one but not the other). However, these judgments might well have implications for other groups of people as well – perhaps including even our marmalade-loving bear.

Judgments

In the M’Bodj case, a non-EU citizen, having failed in his requests for asylum and stay on medical grounds in Belgium, was then the victim of a violent attack there. So he requested a disability allowance that was only available, on the facts of his case, if he could show that he was eligible for subsidiary protection. According to the EU’s qualification Directive, subsidiary protection must be granted if the applicant is facing any one of the following three situations: (a) the ‘death penalty or execution’; (b) ‘torture or other inhuman or degrading treatment or punishment of an applicant in the country of origin’; or (c) ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. (The EU has more recently adopted a revised qualification Directive, but it didn’t change this particular definition).

The CJEU has previously interpreted the third of these grounds, in its judgments in Elgafaji and Diakite. But it has not yet interpreted the first two grounds. Mr. M’Bodj argued that the second ground applies, on the basis that the European Court of Human Rights (ECtHR) has interpreted Article 3 ECHR, which equally bans ‘torture or other inhuman or degrading treatment or punishment’, to mean that, in exceptional cases, people who would die if they were sent back to their country of origin, due to the inadequate medical treatment there, cannot be sent back.

However, the CJEU rejected its arguments. In its view, since the qualification Directive listed specific human activities as the source of persecution or serious harm, this form of ‘serious harm’ had to be the result of ‘a form of conduct on behalf of a third party’, so ‘cannot therefore simply be the result of general shortcomings in the health system of the country of origin’. This interpretation was bolstered by the preamble to the Directive, which says in effect that the Directive does not apply to those allowed to stay ‘on a discretionary basis on compassionate or humanitarian grounds’. It did make an exception for cases where the person concerned had been intentionally deprived of health care. Just because the ECtHR interpreted Article 3 ECHR to mean that people in Mr. M’Bodj’s situation could not be removed to their country of origin, that did not mean that they were necessarily entitled to subsidiary protection under the EU Directive.

The Directive does state that Member States can have ‘more favourable standards’ as regards qualifying for refugee or subsidiary protection status than those set out in the Directive. But such higher standards have to be ‘compatible’ with the Directive. In the Court’s view, it would indeed be incompatible with the Directive to give subsidiary protection status to Mr. M’Bodj, since there would be ‘no connection with the rationale of international protection’.

Read in isolation, the M’Bodj case means that those facing awful conditions in their country of origin that were not caused by humans have no right to refugee or subsidiary protection status. Their legal position is governed only by the ban on removal to their country of origin, set out in ECtHR case law, along with whatever limited benefits they may have under purely national law. There are a wide variety of such national law rules, as documented in a study for the European Migration Network. For Paddington Bear, this would mean that he could be sent back to his country of origin, unless the conditions there breached Article 3 ECHR standards. In that case, he could remain in the UK, but probably could not expect a very nice life.

However, the Abdida case, decided on the same day by the CJEU, suggests that in some cases, those who are unable to qualify for subsidiary protection or refugee status can use the EU’s Returns Directive to obtain a different type of protection. Mr. Abdida had similarly claimed that he should receive leave to remain on medical grounds in Belgium, and was appealing against the refusal of this application. While the appeal was pending, he was refused social assistance, on the grounds that it was only available to those whose challenge to their removal had suspensive effect; his challenge did not have that effect under Belgian law.

The national court asked the CJEU to interpret EU asylum legislation, and in light of its judgment in M’Bodj, the CJEU simply said that EU asylum law did not apply. While Member States have an option to apply EU legislation on reception conditions and asylum procedures to other types of applications for protection, Belgium has not chosen to do so.

The CJEU could have left the case there, but it didn’t. Instead, it decided to give the national court a detailed answer to questions it had never asked, on the interpretation of EU legislation that it had never referred to – the Returns Directive, which governs the process of removing irregular migrants from the territory.

First, the Court ruled on Mr. Abdida’s procedural rights. While the Returns Directive does not require legal challenges to removal to have suspensive effect, it was necessary to consider the impact of the EU Charter of Rights, Article 19(2) of which bans removals to States where the person concerned would face a serious risk of inhuman or degrading treatment. This had to be interpreted in light of the ECtHR case law on Article 3 ECHR discussed above, which bans removals on ‘medical grounds’ in exceptional cases.

How does this impact the interpretation of the Returns Directive? Article 5 of that Directive says that when they implement the Directive, ‘Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the [person] concerned, and respect the principle of non-refoulement’. The CJEU ruled that Article 5, ‘taken in conjunction with Article 19(2) of the Charter’, means that Member States ‘may not…proceed with…removal’ where removal ‘would infringe the principle of non-refoulement’ on medical grounds.

This ban on removal had the consequential effect that the remedy against removal had to be suspensive, despite the optional wording of the Directive on this point, because otherwise Mr. Abdida could suffer irreparable harm if sent back to his country of origin before his appeal was decided.   

Secondly, the CJEU ruled on his social rights. Article 14 of the Directive says that except where irregular migrants are in detention, where they are given a time for voluntary departure or their removal is postponed, Member States must ‘ensure that the following principles are taken into account as far as possible…: (a) family unity with family members present in their territory is maintained; (b) emergency health care and essential treatment of illness are provided; (c) minors are granted access to the basic education system subject to the length of their stay; and (d) special needs of vulnerable persons are taken into account’.

In the Court’s view, Mr. Abdida qualified for this treatment because his removal had to be postponed under the Directive, which requires postponement where suspensive effect of an appeal has been granted. Oddly, the Court did not mention that the Directive also requires postponement where removal would violate the principle of non-refoulement, although this rule was obviously relevant to Mr. Abdida as well.

It should be noted that the Directive gives an option to Member States to postpone removal in other cases, too. On that point it specifies that ‘Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity;’ and ‘(b) technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification’. In these cases, the persons concerned could also invoke the safeguards set out in Article 14, since that clause applies regardless of the reasons for postponement of removal.

Yet on the face of it, Mr. Abdida’s specific claim for social assistance could not be successful, since such assistance is not mentioned in Article 14 at all. Indeed, the preamble to the Directive states that pending return, the ‘basic conditions of subsistence should be defined according to national legislation’. But the CJEU ruled that such legislation still had to be ‘compatible with the requirements laid down in’ the Directive. In this case, the right to the provision of health care would be ‘rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs’ of the person concerned. However, that right only had to be provided ‘as far as possible’, on the condition that the person lacked the means to provide for his own needs; and it was up to Member States to ‘to determine the form’ which the provision of basic needs took.

 

Comments

At the outset, it should be noted that the qualification Directive and the Returns Directive have a different territorial scope. The former applies to all Member States except Denmark, but including the UK and Ireland. The latter doesn’t apply to the UK and Ireland, and it applies to Denmark and the non-EU Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) only in certain cases.

So, in light of this recent CJEU case law, my advice to Paddington Bear would be to take the tube a few stops from Paddington to King’s Cross & St. Pancras station, and stow away again, this time on a Eurostar train to Brussels. (My apologies for facilitating a breach of immigration law, thereby infringing the EU’s Directive on that subject. And even greater apologies for inflicting upon the world the consequential change of name: it will be much harder to love ‘Gare du Midi Bear’.) Or alternatively, he could stow away on a train to Disneyland Paris – and create work for an army of copyright lawyers.

The Court’s judgments raise questions about the scope of international protection as defined by the qualification Directive, and about the new possibilities of protection arising under the Returns Directive. For the sake of brevity, let’s call that latter concept ‘alternative protection’ (technically, we should probably call it ‘Returns Directive protection’, but I can’t bring myself to use that term).

First of all then, the qualification Directive. The central point here is that there is no right to subsidiary protection merely due to the lack of decent health care in the country of origin, unless access to that health care has been blocked. The Court does not expand further on that exception, but presumably a parallel argument could be made for refugee status, where access to essential health care is blocked on one of the grounds (such as race, religion or political opinion) set out in the Geneva Convention, since that would surely constitute a form of persecution.

More broadly, the Court rules out a subsidiary protection claim unless the conditions in the country of origin have been caused by a ‘third party’ as defined in the Directive (namely the State, persons or groups controlling the State, or non-State actors). While the Court didn’t rule on this point as such, the logic of its judgment suggests that ‘non-State actors’ have to be humans. Also, it’s implicit that indirect causation isn’t sufficient. It could certainly be argued that the lack of sufficient health care in developing countries is ultimately the fault of corrupt dictators and elites who hoard those countries’ wealth, and/or the legacy of (neo-)colonialism and slavery. Equally, many believe that environmental displacement results from climate change caused by human activity. But it seems unlikely that the CJEU would accept this line of argument.

Furthermore, the Court has ruled out Member States using their power to apply more favourable rules for international protection in such cases. The CJEU had only ruled once before on this issue, in the case of B and D, when it ruled that States could not grant refugee status to persons who were excluded from that status. It was possible to interpret that judgment as meaning that Member States were only constrained from granting more favourable treatment when international law required them not to do so. But the M’Bodj judgment goes much further than this. So the CJEU hasn’t just refused to raise the floor for international protection – it’s significantly lowered the ceiling.

It should be noted that the requirement that more favourable standards be compatible with EU law applies in all other EU asylum laws, as well as in some EU migration legislation, such as the Returns Directive. The M’Bodj judgment might therefore have implications for these laws too. But the rule doesn’t apply to all EU immigration laws, and there’s no good reason to assume that a ‘compatibility’ requirement ought to apply in those cases where the EU legislature has deliberately decided not to insert one.

So what more favourable standards can Member States apply? In the case of the qualification Directive, the Court says that they must fall within the scope of international protection. It doesn’t elaborate further, but this presumably refers back to the key concept of persecution or serious harm caused by a ‘third party’. Higher standards can therefore apply only in relation to the Directive’s definition of ‘refugee’ and ‘subsidiary protection’. For instance, it should surely be open to Member States to grant subsidiary protection to persons fleeing indiscriminate violence even where the threat is not ‘individual’, or where the applicants are not civilians.

Secondly, what are the implications of the Abdida judgment for the new possibility of ‘alternative protection’? To understand this concept better, it should be compared to the elements of EU law governing international protection: the allocation of responsibility for an application (ie, the ‘Dublin rules’); the substantive grounds for protection; the procedures for determining whether there is a protection need; and the benefits which an individual receives during the determination process (and afterward, if his or her claim is successful).

Beforehand, though, some general points about the Court’s approach to the Returns Directive in Abdida.  When it was initially adopted back in 2008, that Directive was castigated by NGOs as the Devil incarnate, spurring on Member States to all sorts of inhumane treatment of irregular migrants. Over the years, the CJEU’s interpretation of the Directive has (generally speaking) ensured that irregular migrants are better treated than the Directive’s initial critics thought that they would be. The judgment in Abdida goes even beyond this, and transforms an instrument of repression into (in some cases) an instrument for protection. It’s like going into a vegetarian restaurant, and being served a bacon sandwich.

For meat-eaters – with the obvious exception of Ed Miliband – that would be a pleasant surprise. So what’s the problem? The problem is that it’s difficult to take a law that was drafted to expedite the removal of migrants, and using it to help them instead. The CJEU tried to overcome this in the Abdida judgment by performing a series of feats of legal alchemy: redrafting the national court’s questions from scratch; turning an obligation to ‘take due account’ of non-refoulement into a ban on removal; making an option to grant the suspensive effect of appeals into an obligation; transforming the ‘principle’ of obtaining health care into a rule; and adding social assistance to the list of benefits which Mr. Abdida has to receive.  Yet despite all this, a lot of effort will still be required to make the Returns Directive function as an instrument to grant individual protection.

To see why, let’s look at those elements of the protection process, starting with the allocation of responsibility for an application. There are no ‘Dublin rules’ applicable to alternative protection cases. So if Paddington Bear managed to make his way to Brussels or Paris, Belgium or France could not invoke formal rules requiring the UK to take him back. The position would be different though, if he had applied for asylum in the UK first, before making his way to another Member State. In that case, the Dublin rules would apply, so in principle the UK would have responsibility for him, since he crossed the UK borders without authorisation before he set foot in any other Member State. But this normal rule would have to be disapplied in his case, since unaccompanied minors can usually change the country which is responsible for their application (see the discussion here).

In fact, in real life, most of those using the ‘alternative protection’ route would likely have applied for asylum first (as is evident from the facts of the Abdida and M’Bodj cases), so the Dublin rules as such would apply to them. According to the CJEU, they could therefore only resist being sent back to the responsible Member State if there is a complete breakdown of the asylum system there. For Paddington, the demented attentions of Nicole Kidman’s character, or the grim reality of British immigration law as described in Colin Yeo’s blog post, would not meet that threshold.

Next, what are the substantive grounds for alternative protection? We know from the Abdida case that they include at least non-refoulement, and crucially also that the concept of non-refoulement in the Returns Directive and the Charter is wider than the concept of international protection. It covers at least ‘medical cases’, and arguably also other cases that fall outside the scope of refugee and subsidiary protection status but within the scope of Article 3 ECHR (for instance, persons excluded from refugee status or subsidiary protection status). It could also be argued that it covers environmental cases, such as the fictional destruction of talking bears’ habitat, or the very real scenario of sinking islands. Article 5 of the Returns Directive also refers to the best interests of the child, the state of health of the person concerned and family life, so logically these could also potentially be grounds for alternative protection. But it’s not possible to claim alternative protection on the basis only that it’s impossible to carry out a return decision in practice: se the Mahdi decision earlier this year (discussed here).

Moving on to the procedures for determining whether there is an alternative protection need, there are three elements here: access to the process; administrative procedure; and judicial protection. There’s an obvious problem with access to the process, for the Returns Directive cannot be ‘accessed’ unless there is a pending returns decision. So we have the odd scenario where people facing expulsion (Mr. Abdida) are better off in terms of health care than those with residence permits (Mr. M’Bodj). The Returns Directive requires Member States to issue return decisions to those whose stay is not authorised, but it leaves them an option to allow people to stay if they wish; in that case, the return decisions must be rescinded. Otherwise, the Directive is silent on whether return decisions expire or can be renewed or rescinded. There’s no provision for an individual to ask for a return decision to be issued, even where it’s possible that it might make the person concerned better off.

Next, the administrative procedure during the returns process has been addressed in the CJEU recent judgments on the right to be heard in Returns Directive cases, discussed here. It’s notable that the judgment in Boudjlida specifically requires national authorities, before issuing a returns decision, to consider any issues related to Article 5 of the Returns Directive. However, on the whole the concept of the right to be heard in Returns Directive cases, as developed by the Court is significantly weaker than the rules on interviews, et al, set out in the asylum procedures directive.

Conversely, as for judicial protection, the suspensive effect of removals set out in the Abdida case is stronger than the equivalent provisions of the asylum procedures Directive. It’s not clear if this would apply to other cases where an ‘alternative protection’ argument might be made though. Article 13 of the Returns Directive also contains other rules, on: the independence and impartiality of the appeals body (which actually need not be a judicial body); requirement for a merits review; access to legal advice; and legal aid. It might be arguable by analogy with the suspensive effect point in Abdida, that at least in some cases, Article 47 of the Charter confers stronger rights than the Directive requires.

Finally, the benefits which an individual receives during the determination process, if his or her removal is postponed, are (as noted above) family unity, essential health care, education for minors, protection for vulnerable persons, and written confirmation of their status. We know from the Abdida judgment that this list of entitlements is not exhaustive, and can be extended to protection of basic needs in individual cases. In that case, the CJEU implicitly accepted that there would be no point providing health care for Mr. Abdida if, while he received it, he was being left to starve to death in the streets.  This is surely not the only type of case where basic needs have to be provided for: should an unaccompanied minor be left without food and shelter also?

What about the two provisos mentioned by the Court: a means test, and Member States’ power to ‘determine the form’ which provision of basic needs take? On the first point, it should be noted that the employer sanctions Directive (discussed here) gives Member States an option – but not an obligation – to permit irregular migrants to take up employment. Possibly Member States could take into account other income being provided by families, friends or charities. On the second point, Member States’ discretion does not extend to an absolute power to detain the people concerned, since the grounds for detention and conditions for detention set out in the Returns Directive would apply. But as regards other aspects of basic needs, Member States would surely be free to decide on the details of housing and financial support. So sadly, Paddington Bear could not insist on staying with Hugh Bonneville’s family – and would have to settle for marmalade from Aldi, not Marks & Spencer’s.

 

Barnard & Peers: chapter 9, chapter 26