Dr Diego
Acosta Arcarazo, Lecturer in Law, University of Bristol
Dr Andrea Romano, Research
Assistant, La Sapienza University of Rome.
In a much
expected ruling delivered on 23 April in Case C-38/14 Zaizoune, the CJEU apparently left without validity the Spanish
legal architecture by which undocumented non-EU (third country) migrants could
be subject to a fine, rather than be expelled as a result of their irregular
situation. Below, we will briefly explain the Spanish legal system as well as
the rationale by the Court in declaring it in breach of EU law, notably its
limited analysis of Article 4(3) of the EU’s Returns Directive, which grants
Member States the right to adopt or maintain more favourable provisions
provided those provisions are compatible with that Directive.
The Case
Mr
Zaizoune, a third-country national irregularly residing in Spain, received an
expulsion order in October 2011. Mr Zaizoune brought an action against that
decision and requested that such expulsion order should be replaced with a
fine. Indeed, based on the Spanish legislation, which had been adopted in 2009 before
the deadline for implementing the Directive had expired, and which followed
consistent jurisprudence from the Spanish Supreme Tribunal, migrants in an
irregular situation had to be subject to a fine as the only sanction as a
general rule. Expulsion was indeed only possible when aggravating circumstances
beyond the mere irregular stay were present, and only after having regard to
the principle of proportionality, the degree of fault, the harm caused and the
risk arising from the offence and its effects. In other words, irregular stay
was, as a general rule, not considered to be of sufficient gravity to order
expulsion from the territory.
However,
we find here an instance of the dichotomy, that the American scholar Motomura
has marvellously depicted in the US case, between immigration law in theory and
immigration law in action or practice. Indeed, the fine was the first step for
expelling an individual. Such person was told not only that he had to pay a
fine but also that he had the obligation to voluntarily leave Spain or to
attempt to regularize his status. Such regularization was only possible after
having paid the fine, but paying the such fine did not excuse the person from
being expelled if he had not been able to regularize.
The
reasons for this system may be traced back to the Spanish immigration policy.
Spain received a large number of third-country nationals in the first decade of
this century. There were very few legal routes to migrate to Spain but this was
coupled with a generous regularization policy well represented by the “arraigo”
(settlement) figure. Arraigo allows an undocumented third-country national to
request a residence permit after having resided for three years in Spain if
some conditions are fulfilled out of which the most important one is to have a
job offer. A scheme of fines fit well with this system where numerous third-country
nationals could obtain a residence permit after having worked for a number of
years in Spain.
The Court
does not obviously enter into discussing these internal issues and concludes
that the Directive precludes the Spanish provision providing for the fines as
an alternative to expulsion, since it is likely to jeopardise the achievement
of the objectives pursued by the Directive, notably the removal of the
third-country national concerned, and, therefore, deprive it of its
effectiveness (paras 39 and 41).
Comment
Since the
adoption of the Directive, the Court has repeatedly ruled on the
incompatibility between EU law and national law on return-related issues, where
the latter provided for more restrictive
rules. The CJEU clearly stated in El Dridi
that “the Directive does
not allow those States to apply stricter standards in the area that it governs” (par.
33).
In contrast,
in Zaizoune the Court had to
interpret the notion of the possibility of Member States adopting “more favourable provisions” than the
Returns Directive, as permitted by Article 4 (2) and (3) of the Directive.
Labour
law is an area where similar “more favourable provision” clauses have raised
major concerns for the Court. Several rulings deal with the possibility for
Member States to set higher standards for workers than EU employment
legislation, and in some of these cases the Court has allowed them to do so.
For example, in Merino Gomez, the CJEU affirmed that number of days of leave for women who had taken maternity leave could be higher than those laid down in the relevant directive, since the latter only provides for minimum standards (par. 42-45). A similar rationale was also adopted in other cases such as Dominguez (paras 47-48) or Neidel (par. 35).
Probably
a less linear attitude to the more favourable clause characterizes the case-law
on migration and asylum law. In B and D the Court allowed a Member State to
grant protection on the basis of its constitutional law in favour of a person
excluded from the refugee status provided for by Directive 2004/83, the
so-called “qualification Directive” that defines eligibility for refugee and
subsidiary protection status in the EU. However, the Court excluded the
application of the “more favourable provision” clause in that Directive in
order to grant the persons concerned refugee status in accordance with the
Directive, as the Directive required persons in the situation of the applicants
to be excluded from refugee status (par. 113-121). Like the Returns Directive, the
qualification Directive (and other EU asylum laws) only allow Member States to
apply more favourable provisions that are compatible with the Directive. It
should be noted that EU law on legal migration allows Member States to have
more favourable standards without
such a compatibility requirement.
A restrictive approach as regards
“more favourable” rules for obtaining refugee and subsidiary protection status can
again be found in the recent M’Bodj
case, discussed further here. Here, the Court held that a person
suffering from a serious illness cannot be eligible for subsidiary protection based
on the more favourable provision clause (art. 3, Directive 2004/83), as
this situation “has no connection with the rationale of international
protection” (par. 44).
Furthermore,
the interpretation of the more favourable provision clause has also been problematic
in the area of free movement of EU citizens: in Ziolkowski, Advocate-General Bot
argued that as art. 37 of the EU citizens’ directive provides for more
favourable national provisions, residence periods of a Union citizen in a
hosting Member State, on the basis of a residence permit issued under national
law, are to be counted in order to obtain a permanent residence right (par.
46-49 and 58). This argument was however rejected by the Court (par. 48-50).
As far as
migration law is concerned, in the recent Tahir
case, the Court adopted a systematic reading and dismissed the
literal interpretation of the applicant, who claimed the right to obtain a long-term residents’ EU residence
permit on the basis that according to national legislation the requisite of an
uninterrupted residence of 5 years was not explicitly required for family
members of a TCN already holding such a long-term residence permit (par. 38-44).
In both Ziolkowski and Tahir we see a refusal by the Court to
incorporate those more favourable rules into the system of the Directive rather
than a limit per se on the ability of Member States to have more favourable
provisions.
As it can
be seen, systematizing EU case law on more favourable national provisions is a
hard task. In Zaizoune, the Court could have explained more fully the reasons why
Spain could not rely on Article 4(3) and given more details about the contrast
between Spanish law and the Directive´s effectiveness. In particular, the Court´s
appraisal of effet utile seems inconsistent
with its earlier case-law (El Dridi, par. 31, 38, 42; Achughbabian, par. 42). The
CJEU only mentions these cases to refer to the removal´s mandate and avoids mentioning
that the directive also aims at ensuring guarantees and fundamental rights for
migrants.
The CJEU
provides for a narrow and literal reading of the Directive where any national
provisions not leading to return are inconsistent with it. With respect, an
alternative reading of Chapter II of the Directive, entitled termination of
illegal stay, could have accepted more favourable provisions, such as those at
play in the Spanish case, where the national legislation provides for a
permanent mechanism of regularization which will indeed potentially lead to the
termination of such legal stay. The
Court could have then adopted a more nuanced interpretation, by stating that the
Spanish law would be inconsistent with the directive where the person concerned
could not regularize his status, something for the national court to assess in
each scenario.
Spain
will not now be able to impose a fine as an alternative to expulsion. It will
however also have to make sure that the period for voluntary departure, which
as a general rule has to be granted to any individual issued with a return
decision, is effectively put into place. Indeed, this is not always the case in
the Spanish practice. During such period for voluntary departure, which can be
extended (according to the Directive) beyond 30 days taking into account the specific
circumstance of the individual case, the person concerned could avail himself
of the possibility to regularize his status through arraigo and have the return decision withdrawn in line with
Article 6(4) of the Directive, which allows Member States to regularize
irregular migrants. This alternative will respect the Returns Directive but
will also allow the individuals concerned an opportunity to regularize and
avoid expulsion. It will also take into account the particular circumstances of
a Member State where a large number of undocumented migrants are those who fell
into irregularity. In other words, these are individuals who, having resided
for a number of years in Spain, could not renew their temporary permits due to,
for example, having lost their jobs. This alternative will also require careful
judicial oversight and good lawyering involved and will almost mirror the
previous system while also respecting the Directive. It will also tackle the
ongoing challenge of those third-country nationals who cannot be removed, a
situation which not only arises in Spain but also in the other 24 Member States
(all except the UK, Ireland and Denmark) bound by the Directive.
Barnard
& Peers: chapter 26
Photo credit: bagnewsnotes.com
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