The Irony of Brexit for Immigration Control

Daniel Thym, Professor of Public, European and International Law at the University of Konstanz

Immigration was a hot topic throughout the Brexit debate. ‘To take back control’ was a prominent slogan. In her Lancaster speech of January this year, Theresa May was adamant that control of immigration is a central objective of the ongoing Brexit negotiations: ‘The message from the public before and during the referendum campaign was clear: Brexit must mean control of the number of people who come to Britain from Europe. And that is what we will deliver.’

Many readers of this post will remember the ‘breaking point’ poster used by UKIP before the referendum with a picture of migrants and asylum seekers trotting across the Western Balkans. That poster was a tipping point in the debate. The EU was associated with chaos and open borders – both for EU citizens and third country nationals.

From a legal perspective, there is a certain irony in the ‘breaking point’ poster. My argument will be that while Brexit can facilitate legal control over the entry and stay of EU citizens, it need not necessarily make it easier for the UK to control the immigration of third-country nationals, including asylum seekers. It might even, paradoxically, render control of immigration by non-Europeans more difficult to some extent.

Status Quo: Extended Opt-out

The legal background of the irony is easy to explain: from a legal perspective, the UK has always retained widespread control of its external borders insofar as the entry and stay of third-country nationals is concerned, since the UK rejected to participate in the border-free Schengen area. It did not sign up to the Schengen Implementing Convention of 1990 and it secured an opt out when the letter was integrated into the framework of the European Union on the occasion of the Treaty of Amsterdam.

Moreover, successive British governments decided not to participate in most legislative initiatives on immigration, visas and border controls in the so-called area of freedom, security and justice, which have been adopted during the past 15 years and which have substantially reshaped the immigration law systems of countries in continental Europe. The UK does not participate, for instance, in the Family Reunion Directive, the Long-Term Residents Directive, the Blue Card scheme for highly qualified migrants or any other instrument facilitating the entry or stay of third-country nationals. The UK can decide autonomously the nationals of which country are subject to visa requirements, are allowed to take up employment or have to leave the UK. There is little primary or secondary law limiting UK sovereignty in this respect.

The situation is different for the ECHR and corresponding limits to state discretion, on the basis of Articles 3 and 8 ECHR, on the expulsion of those staying illegally, including suspects of terrorism. That is why Theresa May was promoting a departure from the ECHR (or at least a repeal of the Human Rights Act) when she was Home Secretary. Leaving the ECHR (or repealing the Human Rights Act) might have extended UK sovereignty over third-country national somewhat (albeit with a considerable constitutional price-tag attached). By contrast, leaving the EU won’t change much regarding immigration control.

Brexit: Loss of the Opt-in Option

What is more, the UK might even lose regulatory leverage post-Brexit insofar as immigration controls vis-à-vis third-country nationals are concerned. The underlying reason is simple: at the time of the Treaty of Amsterdam, the British government of Tony Blair secured not only an opt out from the Schengen regime. It also won an opt in option for all immigration, visa, asylum and border control measures, which are not inseparably linked to the abolition of border controls. This opt in option of was reinforced by the Treaty of Lisbon which established an hitherto unprecedented option of ‘cherry picking’ in the field of justice and home affairs legislation. The UK has used this opt in option quite extensively – and selectively – over the years, including during the time when Theresa May was Home Secretary.

This selective opt in practice focused on those measures enhancing the control powers of states, such as the Schengen Information System (SIS), in which the UK participates although it never signed up to order-free travel. The UK also subscribed to many EU measures against illegal immigration, while not being bound by the rules on legal migration. Most importantly, the UK participates in the Dublin regulation without, however, contributing to the solidarity measures, such as the relocation decisions on resettling 160,000 asylum seekers from Greece and Italy to other Member States. To be sure, the Dublin system was originally based upon a convention outside the EU framework, but it ceased to exist as an instrument of public international law when it was supplanted by EU legislation in which the UK participated.

In short, British participation in justice and home affairs was highly selective and lopsided: it enhanced state control without promoting the rights of migrants and refugees. As a member of the EU, the UK could use the justice and home affairs Protocols to enhance control of its external borders towards other Member States through à la carte participation. The irony is that Brexit will reverse these dynamics.

The Future: Reversed Dynamics

In the post-Brexit legal environment, the UK will not be able to decide any longer to participate in Dublin and the SIS by means of a simple declaration notifying the Council that it wants to exercise the opt-in option. Instead, the UK will have to negotiate with the EU post-Brexit whether it will be allowed to participate – and these negotiation will be defined, like any negotiation, by a quid pro quo, by reciprocal give-and-take.

Thus, the UK might have to pay a price for being allowed to participate in the Dublin IV Regulation or the Schengen Information System in the future – something it got for free in the past. The EU could demand, for instance, that the UK contributes to the relocation of asylum seekers from Greece or Italy. If that happened, Brexit would entail into the opposite of what UKIP had hoped for when it put up the ‘breaking point’ poster.

That need not happen, of course. The UK could decide, alternatively, to stay out of Dublin or it could negotiate a cross-sectoral package deal. The price the EU may wish to extract from the UK for continued Dublin participation may relate to any other policy field.

One thing, however, seems certain: the UK will not get Dublin for free any longer – like Switzerland, which was allowed to join Dublin under the condition that it subscribed to border free travel within the Schengen area at the same time. Ever since, border controls have been abolished between Germany and Switzerland. That, to me, is the irony of Brexit for immigration law sensu stricto: it might become more difficult for the UK to control the entry and stay of third-country nationals.

Barnard & Peers: chapter 27, chapter 26, chapter 13

JHA4: chapter II:6

Photo credit: Horizon magazine

Daddy’s gonna pay for your crashed car? The ECJ clarifies the vertical direct effect of Directives

Albert Sánchez Graells, Reader in Economic Law, University of Bristol*

One of the great complications of EU law is that EU Directives – unlike Regulations – do not have ‘direct effect’ horizontally, meaning that a private party cannot rely on them as such against another private party. However, there are other means of enforcing Directives, and in any event they do apply vertically, ie an individual can invoke a Directive against the State. This distinction between vertical and horizontal direct effect means that it is necessary to define exactly what is the ‘State’ for this purpose, given that there are many types of complex public-private relationships in each EU country.

More precisely, EU case law has indicated how to determine if a particular legal body is an ‘emanation of the State’, which is therefore covered by the principle of vertical direct effect. The key authority on this issue is the case of Foster and Others v British Gas, C-188/89, EU:C:1990:313. While some later judgments have touched on this definition, the Court of Justice of the European Union (CJEU) today clarified the position more thoroughly in its judgment in Farrell, C-413/15, EU:C:2017:745, broadly following the Opinion of AG Sharpston (here) – just in time for the start of many law students’ study of EU law.

The test for defining an ‘emanation of the State’, as applied in Foster, was formulated in the following terms: 

... a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon (C-188/89 at [20], emphasis added).

However, also in Foster, the CJEU had offered a broader formulation of the test, indicating that:

a directive [capable of direct effect] could be relied on against organisations or bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals (C-188/89 at [18], emphasis added).

The interpretation of the Foster-test has been a relatively contentious issue in EU scholarship since its formulation in 1990. In particular, there have been opposing views on whether the conditions in which the test breaks down are cumulative (ie, a body needs to satisfy both criteria to be an emanation of the State) or not and, in case they are cumulative, whether they include three conditions (entrustment of public service, State control and special powers), or only two (thus suppressing the requirement to provide a public service) [cfr eg M Bobek, 'The effects of EU law in the national legal systems', in C Barnard & S Peers (eds), European Union Law, 2^nd edition (Oxford, OUP, 2017) 154 (two conditions, non-cumulative), TC Hartley, The Foundations of European Union Law, 7th edn (Oxford, OUP, 2010) 232 (identifying four conditions, cumulative, but indicating that the test is non-exhaustive), K Lenaerts & P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 903-04 (two conditions, including public service provision, cumulative), or R Schütze, European Union Law (Cambridge, CUP, 2015) 100 (equally, two conditions, including public service provision, cumulative)].

Uncertainty about the exact limits and implications of the Foster-test have remained for a surprisingly long time, and the CJEU had so far only provided limited and piecemeal clarifications--most recently, in its Judgment of 12 December 2013 in Portgás, C-425/12, EU:C:2013:829, where the CJEU still referred in less than clear-cut terms to 'bodies which, under the control of [the] authorities [of a Member State], have been given responsibility for a public-interest service and which have, for that purpose, special powers' (at [34], for discussion, see here).

In Farrell, concerning who was liable for failure to implement an EU motor insurance Directive properly following a car accident, the CJEU has clarified that the conditions set out in the so-called Foster-test are not cumulative (ie, a body does not need to satisfy both criteria to be an emanation of the State) and, in any event, that it suffices for an entity (even a private law one, not necessarily subjected to State control) to have been delegated the performance of a task in the public interest by the Member State and to possess for that purpose special powers.

According to the CJEU, in Foster, 'the Court was not attempting to formulate a general test designed to cover all situations in which a body might be one against which the provisions of a directive capable of having direct effect might be relied upon' (at [26]) and, consequently, that '[p]aragraph 20 of [Foster] must be read in the light of paragraph 18 of the same judgment, where the Court stated that such provisions can be relied on by an individual against organisations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals' (at [27]). Ultimately, then, the CJEU has clarified that the Foster-test is actually formulated at [18] (see also Farrell at [33]) and, consequently, that

... the conditions that the organisation concerned must, respectively, be subject to the authority or control of the State, and must possess special powers beyond those which result from the normal rules applicable to relations between individuals cannot be conjunctive (C-413/15 at [28], emphasis added).

Adding some further clarity, the CJEU explained that the 'emanations of the State' that are relevant for the purposes of ensuring direct effect of EU Directives after the expiry of their transposition period

... can be distinguished from individuals and must be treated as comparable to the State, either because they are legal persons governed by public law that are part of the State in the broad sense, or because they are subject to the authority or control of a public body, or because they have been required, by such a body, to perform a task in the public interest and have been given, for that purpose, such special powers.

Accordingly, a body or an organisation, even one governed by private law, to which a Member State has delegated the performance of a task in the public interest and which possesses for that purpose special powers beyond those which result from the normal rules applicable to relations between individuals is one against which the provisions of a directive that have direct effect may be relied upon (C-413/15 at [34]-[35], emphasis added).

In my view, this is a welcome clarification and one that can potentially catalyse a higher level of effectiveness of secondary EU law. It comes to clearly establish three prongs for the test of whether an entity is an emanation of the State (shall we re-label it the Farrell-test, for clarity?), which the entity will be if either (1) it is governed by public law, (2) it is subject to the authority or control of a public body, or (3) it performs a public interest task on the basis of special powers. This can have interesting implications in areas other than general EU law (eg in State aid law, to the effect of reducing the scope of the Judgment of 30 May 2013 in Doux Élevages and Coopérative agricole UKL-AREE, C-677/11, EU:C:2013:348--as criticised here) and, more generally, follows a welcome functional approach.

I envisage that the next potential frontier for litigation will concern what should be considered special powers, and whether they have to be substantial for an entity carrying out tasks in the public interest by delegation of the State to be considered 'emanations of the State' for these purposes. In Farrell, the special powers consisted in statutory powers 'to require [private entities] to become members of [the entity considered an emanation of the State] and to contribute funds for the performance of the task conferred on it by the [the Member] State' (C-413/15 at [40]). This seemed like a clear instance. However, there may be more difficulties in drawing clear lines where the powers are exercised in the context of a situation of a relationship of special dependence from the State, where the special powers form part of the task delegated to the entity. This can be particularly relevant in the context of contracted-out public services in sectors such as care, corrections or education, where the existence or not of special powers (eg to discipline) will trigger complex issues in the future.

On the whole, however, it seems to me that Farrell resolves one of the important areas of uncertainty in the area of the effectiveness of EU secondary legislation. It should thus be welcome.

Barnard & Peers: chapter 6

Photo credit: Yahoo.com

*Reblogged from the ‘How to Crack a Nut’ blog