Steve Peers
For the first time, the CJEU ruled
yesterday (in its judgment in Zh
and O) on the provisions of the EU’s Returns Directive (the main set
of rules governing the expulsion of irregular non-EU migrants) concerning ‘voluntary
departure’. The word ‘voluntary’ is a euphemism here, of course: there’s still a legal obligation for the
migrant to leave, underpinned by the threat of force. But nevertheless it still
makes a big difference to the people concerned whether they have a chance to
leave the country under their own steam. If they aren’t given that chance, they
are likely to be woken up in their homes in the middle of the night, arrested, detained
in jail, and restrained on their journey to their country of origin or transit by
an armed officer. Some are injured or die during this process. So it’s far
better to jump than to be pushed.
But when do irregular migrants have
the choice to do so? The Returns Directive makes it the normal rule to give
them a period for voluntary departure, for a period of between seven and thirty
days. This time must be extended if
necessary in individual cases, for instance whether there are children in
school. But there are exceptions: Member States may decide not to grant this
period, or to curtain it to less than seven days, in three cases: where there’s
a ‘risk of absconding’; where ‘an application for a legal stay has been
dismissed as manifestly unfounded or fraudulent’; and if the person concerned ‘poses
a risk to public policy, public security or national security’.
If one of these exceptions apply,
the removal must then be carried out by national officials, and the Directive
in principle requires the migrant to be issued with an entry ban. (It’s still
an option for a Member State to issue an entry ban in cases of voluntary
departure). Migrants who have the chance of voluntary departure are entitled to
family unity, emergency health care and education in the meantime, and it’s
implicit that they would not normally be detained.
The Zh and O judgment concerns the third of the exceptions from the
rule of giving a period for voluntary departure: the exception for ‘public
policy’, et al. Last year’s judgment in Mahdi,
discussed here, touched on the first exception (the ‘risk of absconding’),
in a different context (the grounds for detention). Zh and O was about two separate cases, and the Dutch courts asked
three questions to clarify the meaning of the public policy exception.
Judgment
The national court wanted to know
whether the ‘public policy’ exception had the same meaning as the similar
provisions in the EU’s citizens’ Directive, and also the EU Directives
on family reunion and long-term resident non-EU citizens. First
of all, the CJEU said that the exception had to be interpreted ‘strictly’. It
confirmed that the three exceptions to the rule of voluntary departure were the
‘only’ ones allowed. A Member State has to ‘prove’ that there is a risk to
public policy. Secondly, the voluntary departure rule aimed, among other
things, to protect the ‘fundamental rights’ of the persons concerned during the
expulsion process.
So while Member States ‘retain the
freedom’ to decide on the concept of public policy, they did not have full
latitude to determine the concept without any control by the Court. Here the
CJEU referred ‘by analogy’ to case law on the EU citizens’ Directive. So the
exception had to be applied on a ‘case-by-case basis’, to decide if the ‘personal
conduct’ of the migrant ‘poses a genuine and present risk to public policy’.
This meant the suspicion of committing a criminal act, or even a criminal
conviction, could not by itself justify the conclusion that a ‘public policy’
risk exists.
On the other hand, the ‘public
policy’ exception could still apply where an appeal against a criminal
conviction had not yet been decided, or where there was no conviction, as long
as ‘other factors’ justified the use of that exception. What are those other
factors? The Court referred to the ‘nature and seriousness’ of the act and ‘the
time which has elapsed since it was committed’. So the national court had to
consider that in one case, the migrant was actually not trying to stay in the
Netherlands without authorisation, but was on his way out (travelling to
Canada) when he was stopped. In the other case, the migrant had been accused of
domestic abuse, but it was relevant that there was nothing to substantiate that
accusation.
Finally, the Court ruled that
there did not have to be a separate assessment of the question of limiting
voluntary departure; that issue could be considered when making the initial return
decision. The Court reiterated its prior judgment in Boudjlida (discussed here), when it ruled that the migrant
must have the opportunity to be heard on the question of whether voluntary
departure ought to be granted.
Comments
The Court’s analysis in this
judgment has broader implications. First of all, unlike the Advocate-General’s opinion,
the Court drew an analogy between the concept of ‘public policy’ in the EU
citizens’ Directive and in the Returns Directive. It should follow that the
public policy exceptions in the EU’s legal migration legislation (and not just
in the two other Directives referred to by the Court) should be similarly
interpreted.
Secondly, the Court’s general
approach to the exceptions to the rule of voluntary departure is surely equally
relevant to the other two exceptions from that rule: the risk of absconding and
the manifestly unfounded or fraudulent application to stay. So those other
exceptions must be strictly interpreted; Member States have the burden of
alleging them; and migrants can object to their application during a form of hearing.
Thirdly, a criminal conviction or
suspicion does not by itself trigger the ‘public policy’ exception. But they
can be considered along with other factors. The Court did not suggest that the factors
which it referred to (departing the country, limited credibility of an
allegation) were the only factors to take into account. So there might well be
others in other cases. Presumably, for instance, it would conversely be
relevant if a migrant’s battered wife has been admitted to hospital. A prior history
of irregular migration or criminal convictions (and conversely, the absence of
any such prior history) might also be relevant.
More broadly, the Court’s
approach, expressly linking the opportunity for voluntary departure with the
protection of human rights, properly takes account of the dramatic impact of
forced removal on individual migrants. Its judgment does not limit the
underlying obligation for irregular migrants to leave the European Union. But
it rightly tempers that obligation with a consideration for the basic humanity
of the people being removed.
Barnard & Peers: chapter 26
No comments:
Post a Comment