Brave new world? the new EU law on travel authorisation for non-EU citizens

Professor Steve Peers, University of Essex

Introduction

Yesterday it was announced that a new EU law on travel authorisation for non-EU citizens to visit the EU had been agreed. This will affect millions of travellers a year, probably including British citizens after Brexit. In fact, as a UK citizen who often travels to the continent, it’s the first EU law on non-EU immigration that will have a direct impact on me. The law won’t apply for awhile, but in light of its future significant impact and some public confusion about who it will apply to and how it works, it’s worth explaining in detail. (Update: the final version of the law was published in the EU Official Journal in September 2018).

Basics of the system

First of all, a travel authorisation is not a visa. While it is similar to a short-term travel visa in the sense that it is a process for deciding in advance whether a person can enter the territory, it will be much simpler and less costly to apply, and be valid for much longer.

The second key issue is: which countries are covered? This has two dimensions: the countries which will apply the travel authorisation law and the countries whose citizens will be subject to travel authorisation.

Taking these points in turn, the countries which will apply the travel authorisation law are the countries fully applying the Schengen system. This means all the EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia – although those States all except the UK and Ireland are obliged to take part in Schengen eventually. It also means non-EU countries associated with Schengen: Norway, Iceland, Liechtenstein and Switzerland.

As for the countries whose citizens will be subject to travel authorisation, that’s all non-EU countries which are a) not subject to a visa obligation for their citizens to visit the EU and b) do not have a free movement arrangement with the EU. So it follows that the new travel authorisation law will apply to British citizens who visit the EU after Brexit – unless they are visiting Ireland or the other EU countries not yet fully applying the Schengen rules. As an exception, though, the law will not apply (even if the new system is ready) to the UK during the post-Brexit transition period, because (as discussed here) it will be applying free movement with the EU during that time.  (Despite the weird claim in one newspaper, this has nothing to do with whether the UK has some form of customs union with the eU).

This new development fits into the broader framework of UK/EU immigration arrangements after Brexit, as I discussed in an earlier post. While UK citizens will very likely not be subject to short-term travel visas (that would be inconsistent with EU visa policy on wealthy and/or nearby countries), they will be conversely (on the basis of the law as it stands) be subject to the new travel authorisation law and other EU border control laws as non-EU citizens without free movement rights, including the loss of fast-track lanes at external borders. It would be possible for the UK and EU to negotiate a reciprocal exception to this, but that depends on the willingness of both sides to do so. It’s not clear if the UK is interested yet, or whether the EU would be willing to talk if it were.

It is absurd to argue that the application of the new law to UK citizens is a form of “punishment” by the EU. The UK government wants the UK to be a non-EU country without a free movement relationship, and the EU (as it stands) will therefore treat the UK like any other non-EU country without a free movement relationship. In fact the UK will be treated better than the many non-EU countries whose citizens are subjected to a visa requirement. Some Leavers should apologise for previously claiming that the likely application of the ETIAS to the UK after Brexit was “scaremongering”; likewise some Remainers should retract their assertion that tourist visas will definitely be required for UK citizens after Brexit. (Spoiler: neither will).

Remember, though, that the new law is not just relevant to the UK, but also to many other non-EU countries, including the USA, Canada, Australia, New Zealand, Japan, South Korea, Israel, and many States in the Caribbean, Latin America and neighbouring the EU to the east. A full list of non-visa countries can be found in Annex II to the EU visa list Regulation.

The new law will also apply to non-EU citizens subject to an optional visa exemption by Member States, namely re school pupils, refugees and armed forces’ members under certain conditions, along with non-EU family members of EU citizens who do not have residence cards on the basis of EU free movement law.

On the other hand, it will not apply to some other non-EU citizens:  refugees and stateless persons in a Member State; non-EU family members of EU citizens with a residence card; persons with residence permits from a Schengen state, uniform (Schengen) visas or national long-stay visas; nationals of European micro-states (Andorra, Monaco and San Marino and holders of a passport issued by the Vatican State or the Holy See); those who hold a border traffic permit subject to EU law when they travel within the local border traffic area; those subject to the optional visa requirement or exemption for holders of diplomatic or other official passports or travel documents issued by international organisations or certain international transport or emergency workers; those subject to the optional visa requirement because they are carrying out paid work; and non-EU citizens moving between Member States on the basis of EU law on intra-corporate transferees (discussed here) or on students and researchers (discussed here).

For UK citizens living in the EU27 states before Brexit, their rights on the basis of the Brexit withdrawal agreement (discussed here) will need to be evidenced by a residence permit from a Schengen states if they want to take advantage of these exemptions when coming back to the Schengen countries.

When will the new travel authorisation system apply?

The new Regulation will likely be formally adopted in a couple of months’ time.  While it will technically come into force twenty days after its formal adoption, the database needed to run the system take time to set up. So it will only begin operations when the Commission decides that other proposed EU laws on the interoperability of databases have entered into force, various implementing measures have been adopted, and there has been a successful comprehensive test of the system. It’s too early to say when this will be, but experience shows that several years may be necessary.

For the first six months after the system starts operations, its use will be optional and there will be no need to have a travel authorisation. The Commission may extend that for a further period of six months, renewable once. After that point, there will be a six months’ grace period when border guards may exceptionally allow people to enter without a valid travel authorisation. The Commission may extend this for another six months.

Process for the applicant

An applicant for travel authorisation must apply via a website or a mobile app “sufficiently in advance of any intended travel”, or, if they are already present in a Schengen State, “before the expiry of the validity of the travel authorisation”. If they already have a valid travel authorisation, they can apply for the next such authorisation as from 120 days (about four months) before it expires.  The system must “automatically inform” holders of travel authorisation via e-mail about the upcoming expiry of their authorisation, and the prospect of applying for a new one. Applications won’t have to be lodged by the potential traveller, but can instead be lodged by a company authorised to act on his or her behalf.

The application form has to include the applicant’s name, date of birth, place and country of birth, sex, nationality, parents’ names, travel document information, home address, e-mail and phone number, education level, occupation (which may be followed by a further request for information about an employer or where a student is studying), and Member State of first intended stay. Applicants must also answer whether they have: been convicted of a specified criminal offence over the last ten years (or the last twenty years, in the case of terrorist offences), and in which country; or “stayed in a specific war or conflict zone over the previous ten years and the reasons for the stay”; or been required to leave the territory of a Member State or any country on the EU visa whitelist over the last ten years.  If they answer yes to any of those questions, they will have to answer a further set of questions (yet to be determined). Each application will cost €7, but that fee will be waived for those under 18 or over 70, and applicants who are family members of EU citizens.

After the application is made, the data will be compared automatically to data in databases including the Schengen Information System (SIS), the planned Entry/Exit System (EES), the Visa Information System (VIS), the Eurodac database (which concerns asylum seekers and some irregular migrants), Europol data, and Interpol databases. The purpose of these checks is to determine whether: the travel document has been stolen, lost, misappropriated or invalidated; the person is listed in the SIS to be denied entry or wanted for arrest for extradition or as a missing person, potential witness or person subject to surveillance; a travel authorisation has been refused, revoked or annulled or there is a refusal based on the EES or the VIS; the travel document matches an application with different identity data; the applicant is a current or previous overstayer (ie did not leave on time when the permitted period of stay expired); there are matching data in Interpol, Europol or Eurodac files; or whether there are extradition or entry refusal data on the parent of a minor.  The application will also be checked against a watchlist and risk indicators. A number of these rules are waived for family members of EU citizens, in light of their rights under free movement law.

If this process does not result in any “hit”, then the travel authorisation will be issued automatically. If there is a hit, then the application is further examined to see if the hit was false. If it was genuine, then national authorities must examine the application further and decide on whether to issue the travel authorisation. This might entail asking the applicant further questions or consulting other Member States or Europol. The deadline for deciding on each application is 96 hours (four days), unless further information or an interview is required; in that case the deadline is extended to 96 hours after the further information is provided, or 48 hours after the interview is held.

When assessing applications, there will be profiling of applicants based on screening rules to be determined, which will be based on statistics indicating: “abnormal rates of overstayers and refusals of entry for a specific group of travellers”; “abnormal rates of refusals of travel authorisations due to a security, illegal immigration or high epidemic risk associated with a specific group of travellers”; “correlations between information collected through the application form and overstay or refusals of entry”; “specific security risk indicators or threats identified by” or “abnormal rates of overstayers and refusals of entry for a specific group of travellers” concerning a Member State, which must be “substantiated by factual and evidence-based elements”; or “information concerning specific high epidemic risks provided by Member States” along with “epidemiological surveillance information and risk assessments” produced by the WHO or the EU disease prevention agency.

These rules will be set out in Commission acts implemented by Frontex, which shall then “establish the specific risk indicators” based on: age range, sex, nationality; country and city of residence; level of education; and current occupation. However, these “specific risk indicators” must be “targeted and proportionate”, never based solely on sex or age nor on “information revealing a person’s colour, race, ethnic or social origin, genetic features, language, political or any other opinion, religion or philosophical belief, trade union membership, membership of a national minority, property, birth, disability or sexual orientation”.

Furthermore, there will be a “watchlist” of those “who are suspected of having committed or taken part in a terrorist offence or other serious criminal offence” or of those who may commit such offences in future, where there are “factual indications or reasonable grounds, based on an overall assessment of a person”, to believe that. (Note that “serious criminal offences” is defined as the 32 crimes listed in the EU law establishing the European Arrest Warrant, if they could be punished by at least three years in jail). The watchlist information shall be entered by either Europol or Member States, and shall consist of names, birth date, travel documents, home address, e-mail address, phone number, information on an organisation, or IP address. Listings in the watchlist cannot duplicate an alert that has already been issued in the SIS. The listings must be reviewed at least once a year.

Granting or refusing a travel authorisation

If there are “no factual indications or reasonable grounds based on factual indications” to believe that the applicant “poses a security, illegal immigration or high epidemic risk”, then a travel authorisation will have to be issued. It will be possible to issue an authorisation but with a flag to recommend that the traveller is interviewed by border guards at the border. The travel authorisation will be valid for three years, unless the travel document expires before that date.

Conversely, a travel authorisation application will have to be refused if the applicant: “used a travel document which is reported as lost, stolen, misappropriated or invalidated in the SIS”; “poses a security risk”; “poses an illegal immigration risk”; “poses a high epidemic risk”; is subject to a SIS alert to refuse entry; failed to reply to a request for additional information or attend an interview. It will also have to be refused if “there are reasonable and serious doubts as to the authenticity of the data, the reliability of the statements made by the applicant, the supporting documents provided by the applicant or the veracity of their contents”.

In that case, applicants will have the right to appeal, against the Member State that decided on their application in accordance with its national law. Furthermore, a previous refusal will not necessarily lead to a refusal of the next application, which will have to be considered separately on its own merits.

In either case, the applicant must be notified of either the positive or negative decision on the application, with information on either the conditions for travel to the EU or the grounds for refusal and information on the appeal process. Details of the decision will be added to the ETIAS database.

It will be possible to annul or revoke a travel authorisation. The basis for annulment is that “it becomes evident that the conditions for issuing it were not met at the time it was issued”, while an authorisation must be revoked “where it becomes evident that the conditions for issuing it are no longer met”. In either case, the decision must be taken on the basis of the usual grounds for refusal, the applicant must be notified of the grounds, there will again be an appeal right for the person concerned, and details will be added to the ETIAS database. An applicant may also ask for the authorisation to be revoked.

As with Schengen visas, there will be a possibility to issue a a travel authorisation with limited territorial validity, “when that Member State considers it necessary on humanitarian grounds in accordance with national law, for reasons of national interest or because of international obligations” even if the travel authorisation has not yet finished or has been refused, annulled or revoked. It will only be valid for 90 days, not the usual three years.

Given that transport companies have obligations if they carry passengers without immigration authorisation, the new law will give them the power to check the ETIAS database, to see if their passengers who need it have a valid travel authorisation. The database will also be available to border guards, to immigration authorities, national law enforcement bodies and Europol.

The ETIAS data will be kept in the database for the period of validity if an authorisation is granted, or five years from the last failed application if not. An applicant can consent to another three years of retaining the data in order to facilitate later applications. The general EU rules on data protection will apply to the processing of personal data in the system. Data cannot be transferred to non-EU countries, except to Interpol or for the purposes of facilitation of expulsion or where there is an imminent security risk, subject to detailed conditions.  

Comments

The new law will, if applied as planned, become a regular feature in the lives of those travelling to the EU, from the UK and many other States besides. For those who spend ten or twenty minutes making an application every three years and get travel authorisation after paying a €7 fee, there is limited hassle factor.  For those who fail to apply on time, or whose application is rejected, the hassle will be vastly greater, particularly if the refusal complicates their family or professional life.

On that point, the grounds for refusal are rather murky. The refusal of travel authorisation due to prior convictions for serious crimes, well-evidenced security risks or prior significant breaches of immigration law is reasonable, but the new law also refers vaguely to several levels of algorithms and profiling which have yet to be developed.  Recent events have called into question such use of “big data” more than ever; and “computer says nah” is not a good enough answer to an applicant, in particular for citizens of the UK or other neighbouring States who are more likely to have strong personal and professional links with the EU.

Barnard & Peers: chapter 26, chapter 27

Photo credit: GTP headlines

*This blog post was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Torture victims and EU law

Professor Steve Peers, University of Essex

What happens if an asylum seeker faces severe mental health problems that cannot be treated in the country of origin?  Today’s judgment of the ECJ in the MP case, following a reference from the UK Supreme Court, goes some way towards answering this question.

Background

The issue what we might call “medical cases” for asylum first of all arose before the European Court of Human Rights. In a series of judgments, that Court clarified whether the ban on torture or inhuman or degrading treatment, set out in Article 3 of the European Convention on Human Rights (ECHR), prevented people from being sent back to a country where there was no effective medical care.  Essentially, it ruled that such an argument could only be successful in highly exceptional cases, in particular where the person concerned was critically ill and close to death.

However, while these judgments addressed the question of non-removal for persons in such serious conditions, they did not rule on the issue of the status of asylum, or other types of migration status, for the persons concerned. This issue was the subject of two linked ECJ judgments (M’Bodj and Abdida) in 2014, which I discussed here. In short, the ECJ said that the persons suffering from severe health problems could not invoke a right to “subsidiary protection” on the basis of the EU’s qualification Directive, even though one of the grounds for such protection was facing a “real risk” of torture or inhuman or degrading treatment in the country of origin. That was because subsidiary protection was only intended for cases where the harm was directly caused by humans.

So do “medical cases” only have the right to non-removal on the basis of Article 3 ECHR? Not quite; because the ECJ also said that the EU’s Returns Directive, which governs the position of irregular migrants, could be relevant. In an ambitious interpretation of that Directive, the Court ruled that it could be invoked to prevent removals in “medical cases”, including the suspensive effect of an appeal against removal; moreover the Directive conferred a right to medical care and social assistance for the persons concerned in such cases.

Subsequently, at the end of 2016, the European Court of Human Rights revisited its case law on “medical cases”, lowering the very high threshold that had previously applied before individuals could invoke Article 3 ECHR.  In Paposhvili v Belgium (discussed here), it extended that case law also to cover cases of:

removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.

It should be noted that while the “first phase” EU qualification Directive (which includes the same definition of “subsidiary protection” as the 2011 version) applies to the UK and Ireland, the Returns Directive does not.  

Judgment

The ECJ began by stating that in order to invoke a claim to subsidiary protection on grounds of torture, it was necessary to show that such treatment would occur in the country of origin in future. While MP had suffered torture in Sri Lanka in the past, that was “not in itself sufficient justification for him to be eligible for subsidiary protection when there is no longer a real risk that such torture will be repeated if he is returned to that country”. Although the qualification Directive states that past serious harm “is a serious indication” there is a real risk of suffering such harm in future, “that does not apply where there are good reasons for believing that the serious harm previously suffered will not be repeated or continue”.

The Court then turned to MP’s health issues, noting that he “presently continues to suffer severe psychological after-effects resulting from the torture” and that “according to duly substantiated medical evidence, those after-effects would be substantially aggravated and lead to a serious risk of him committing suicide if he were returned to his country of origin”. It stated that this provision of the qualification Directive “must be interpreted and applied” consistently with Article 4 of the EU Charter of Fundamental Rights, which set out an “absolute” right to be free from torture or other inhuman or degrading treatment. This Charter right corresponded to Article 3 ECHR, so “the meaning and scope of the rights are the same”, as set out in Article 52(3) of the Charter.  So the ECJ followed the case law of the ECtHR on Article 3 ECHR, referring specifically to the revised test on “medical cases” set out in Paposhvili, and adding that when applying Article 4 of the Charter, “particular attention must be paid to the specific vulnerabilities of persons whose psychological suffering, which is likely to be exacerbated in the event of their removal, is a consequence of torture or inhuman or degrading treatment in their country of origin”.

It followed that the Charter, interpreted in light of the ECHR, “preclude[s] a Member State from expelling a third country national where such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders, particularly where, as in the present case, such deterioration would endanger his life.” It also recalled its previous ruling on “medical cases” and the Returns Directive.

But since the courts in the UK had already ruled out MP’s removal, the non-removal point was not relevant. Rather the issue was whether MP is entitled to subsidiary protection. Here the ECJ recalled its prior ruling that “medical cases” were not normally entitled to subsidiary protection, but noted that M’Bodj concerned a victim of assault in the host Member State, whereas MP was tortured in the country of origin and the after-effects would be exacerbated in the event of return. Both of these factors are relevant when interpreting the qualification Directive; but “such substantial aggravation cannot, in itself, be regarded as inhuman or degrading treatment inflicted on that third country national in his country of origin, within the meaning of” the Directive.

What about the lack of medical care for after-effects of torture in the country of origin? The Court reiterated its position that a right to subsidiary protection “cannot simply be the result of general shortcomings in the health system of the country of origin”, and that “deterioration in the health of a third country national who is suffering from a serious illness, as a result of there being no appropriate treatment in his country of origin, is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection”.

But on this point, it was crucial that this was not an “ordinary” example of a “medical case”, but one deriving from torture. The preamble to the qualification refers to taking into account international human rights law considering the subsidiary protection definition; and so the ECJ interpreted the UN Convention Against Torture (UNCAT) for the first time in its case law. In particular, the Court examined Article 14 of that Convention, which gives torture victims a right to redress and rehabilitation.

Overall, the Court insisted on a separation between UNCAT and refugee law, by analogy with the distinction between refugee law and the international law of armed conflict (the Geneva Conventions) which it had previously insisted upon in its judgment in Diakité. This was because the UNCAT system and refugee law pursue different purposes. So it followed that:

…it is not possible, without disregarding the distinct areas covered by those two regimes, for a third country national in a situation such as that of MP to be eligible for subsidiary protection as a result of every violation, by his State of origin, of Article 14 of the Convention against Torture.

So not every violation of Article 14 of UNCAT leads to subsidiary protection. But that implies that some violations do. The Court went on to clarify:

It is therefore for the national court to ascertain, in the light of all current and relevant information, in particular reports by international organisations and non-governmental human rights organisations, whether, in the present case, MP is likely, if returned to his country of origin, to face a risk of being intentionally deprived of appropriate care for the physical and mental after-effects resulting from the torture he was subjected to by the authorities of that country. That will be the case, inter alia, if, in circumstances where, as in the main proceedings, a third country national is at risk of committing suicide because of the trauma resulting from the torture he was subjected to by the authorities of his country of origin, it is clear that those authorities, notwithstanding their obligation under Article 14 of the Convention against Torture, are not prepared to provide for his rehabilitation. There will also be such a risk if it is apparent that the authorities of that country have adopted a discriminatory policy as regards access to health care, thus making it more difficult for certain ethnic groups or certain groups of individuals, of which MP forms part, to obtain access to appropriate care for the physical and mental after-effects of the torture perpetrated by those authorities.

So there are two cases where subsidiary protection would apply, due to intentional deprivation of care: the authorities are “not prepared” to fulfil their UNCAT obligations of rehabilitation to a person at risk of suicide following from torture suffered in that country; or there is discriminatory policy “making it more difficult” for certain groups to obtain such treatment. These criteria are non-exhaustive (“inter alia”). The evidence to be considered to this end is “all current and relevant information, in particular reports by international organisations and non-governmental human rights organisations”. Again, the sources of evidence are non-exhaustive (“in particular”).

Comments

At first sight, the Court’s judgment sticks to the framework developed in its prior case law: there is no right to subsidiary protection in “medical cases”, except where care is deliberately refused. But look closely, and it’s clear that the Court has developed that case law in important ways in today’s judgment.

First of all, the definition of “medical cases” is now wider, since the Court explicitly adopts the revised interpretation of Article 3 ECHR from recent ECtHR case law. Secondly, in torture cases, the Court has elaborated what factors to consider to determine if inadequate health care would be intentionally withheld in the country of origin. If the asylum seeker is suicidal due to the after-effects of torture carried out in that country, then if that country is either “not prepared” to fulfil UNCAT obligations of rehabilitation to such persons or has a discriminatory policy “making it more difficult” for certain groups to obtain care would amount to an “intentional” deprivation of health care, there is a right to subsidiary protection. The first of these grounds is unique to torture victims, but the second ground should arguably be relevant to any “medical cases”.

Thirdly, the Court has fleshed out the back-up obligation of non-removal for “medical cases” even in the event that subsidiary protection is not granted, insisting that it is an EU law obligation based on the Charter, alongside its prior ruling that the Returns Directive rules it out. This is particularly relevant for the UK and Ireland, given that they are not covered by the Returns Directive. In fact it is not obvious at first sight how EU law – and therefore the Charter – applies in those countries to such cases, if the persons concerned have no right to subsidiary protection. Arguably the link to the grounds for subsidiary protection set out in the qualification Directive is sufficient; but the Court should have spelled this out.

In the Member States bound by the Returns Directive, the finding that the Charter applies to prevent such removal simplifies the process of guaranteeing the non-removal of “medical cases”. Furthermore, it should be recalled that the case law on that Directive guarantees health care and medical assistance.

Overall, then, today’s judgment has gone some way to ensuring greater protection, where necessary, for the most vulnerable migrants: torture victims and the terminally ill.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapters I:5, I:7

Photo credit: The Guardian Nigeria

Windrush: Violating data protection law under the guise of protecting it

Matthew White, PhD candidate Sheffield Hallam University.

Introduction

There have been numerous reports of Windrush Generation Commonwealth citizens being denied health care, detained, losing jobs and threats of deportation. Nick Nason describes the Windrush Generation as Commonwealth citizens from the West Indies who were invited to the UK after WWII to address the shortage of workers at the time. There was a time when West Indians enjoyed total freedom of movement. Nason notes that s.2(2)(b) of the Commonwealth Immigrants Act 1962 exempted from immigration controls those who arrived with their parents and were under 16. And this is still true for children who arrived prior to 1 January 1973, as Nason puts it, they are ‘in the UK legally.’   

The issue for the Windrush Generation arises due to successive immigrations laws, the 2014 and 2016 Immigration Acts. Both are designed to create a ‘hostile environment’ to ‘to make life so difficult for individuals without permission to remain that they will not seek to enter the UK to begin with or if already present will leave voluntarily.’ These new Acts required proof of one’s right to be in the UK, and would be denied access to key services (see above) if there was no evidence of this. It is this denial of access to services that has brought this shameful chapter in British history to light to the point where the Prime Minister, Theresa May had to apologise to Caribbean leaders. The sincerity of said apology is open to question given that vital protections for the Windrush Generation were removed from the 2014 Act and were warned about the implications of Act in question.

Destroying personal data on data protection grounds

On 17 April 2018, the Guardian reported that an Home Office ex-employee revealed that it had ‘destroyed thousands of landing card slips recording Windrush immigrants’ arrival dates in the UK, despite staff warnings that the move would make it harder to check the records of older Caribbean-born residents experiencing residency difficulties.’ The decision to do so occurred in 2010 on the grounds that ‘[t]hese slips provided details of an individual’s date of entry but did not provide any reliable evidence relating to ongoing residence in the UK or their immigration status.’

The Home Office then relied upon data protection law to justify deletion by arguing that keeping personal data for longer than necessary was in breach of data protection principles. More specifically, Robert Peston tweeted that the Home Office relied upon the Fourth and Fifth data protection Principles found in Schedule 1 of the Data Protection Act 1998 (DPA 1998).

The actions of the Home Office in relation to the destruction of personal data does not just have implications with regards to the DPA 1998 but also under the European Convention on Human Rights (ECHR), particularly Article 8 which provides that:

1.      Everyone has the right to respect for his private and family life, his home and his correspondence.

2.      There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

According to the European Court of Human Rights (ECtHR) Grand Chamber (GC) in S and Marper (ECHR, 4 December 2008) the ‘protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention’ [103]. The mere storage of personal data interferes with Article 8 [67]. The GC continued that ‘domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent’ with Article 8 [103]. The Home Office’s position on not storing personal data for longer than is necessary is consistent with the ECtHR’s approach [ibid], but this would be classed as subsequent [67, 121] use and thus is still an Article 8 issue.

The first requirement under Article 8 is whether the deletion of personal data was ‘in accordance with the law.’ This requires there to be some basis in domestic law [193]. One could argue the DPA 1998 itself provides the domestic law basis for deletion, but the ECtHR has previously held that it does not have to assess ‘the quality of the applicable data protection framework in the abstract and must rather confine itself as far as possible to examining the particular consequences of application of its provisions in the case before it’ [81]. This is due to the fact that reliance on the DPA 1998 does not guarantee an action to be ‘in accordance with the law’ [207]. The ECtHR has stressed that applicable laws must provide:

[C]lear, detailed rules governing the scope and application of the relevant measures; as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for their destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness at each stage of its processing [75].

Therefore, the legal basis for the destruction of personal data in the context to which the Home Office relies becomes severely weakened. The DPA 1998 does not define the scope and application with clear, detailed rules as to when the Home Office is entitled to delete personal data, nor does it provide procedures for said destruction. The arbitrariness of the measure is apparent when it is clear that the Home Office deleted all said personal data en masse.

Moreover, even if one were to consider the DPA 1998 as the correct legal basis that is sufficient in ECHR terms, this does not answer the question as to why the Fourth Principle was used in this manner. The Home Office are essentially arguing that personal data held on Windrush Generation individuals were inaccurate, without actually taking reasonable steps to ensure the accuracy of said data in contravention of Schedule 1, Part II (7)(a) of the DPA 1998. When the domestic authorities do not even observe their own law, this would also violate Article 8 [45-9]

The lawful basis in this context is strongly linked to whether a measure satisfies the ‘quality of the law’ in which a law should be accessible to the person concerned and foreseeable to its effects [50]. This is usually satisfied when a law is published [52-3]. However it has been argued that the vagueness of the DPA 1998 provides an insufficient legal basis for the destruction of personal data in this context. In arguing so, it cannot be said the law is accessible, because there is no law to access, which in and of itself would violate Article 8 [69-70].

Regarding foreseeability, this is described as formulating the law:

[W]ith sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise [95].

The level of precision ‘depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed’ [96]. The DPA 1998 was designed to cover the protection of (sensitive) personal data, but not specifically in the immigration context, thus its Principles are not precise [98]. The DPA 1998 would not indicate to any Windrush Generation individual as to when or under what circumstances their personal data may be deleted by the Home Office, thus not providing sufficient clarify on the scope of their discretion.

Again, the arbitrariness of the Home Office’s actions is apparent when it destroyed thousands of landing card slips in 2010. For example, when would it be necessary to delete landing card slips? Would it be when the Home Office could guarantee that an individual would no longer require it to demonstrate they came as a child before 1973? It would be contrary to the rule of law if the Home Office used its power in an unfettered manner [62]. The exercise of power by the Home Office ‘was arbitrary and was based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability’ thus amounting to a violation [86, 89].

This discussion on the unlawfulness of the Home Office’s reliance could have stopped at the end of the last paragraph, but it is important to consider the case of Kurić and others v Slovenia (ECHR, 13 July 2010) as it shares similarities with the Windrush Generation scandal. The applicants in this case complained before the ECtHR that the erasure of their names from the Register of Permanent Residents made them aliens overnight which denied them ‘civil, political, social and economic rights’ [319].

The applicants had been living in Slovenia for years, and most of them decades, some were even born there [356]. The applicants did not enter Slovenia as immigrants but as settled citizens [357]. Moreover, the applicants had a stronger residence status than long-term migrants and those seeking to enter or remain [357]. Although not identical, the erasure of landing cards made it more difficult for Windrush Generation individuals to prove they had a right to live in the UK, and due to this lack of proof they could be denied healthcare, jobs, bank accounts etc.

In that case, the ECtHR reiterated previous case law in that Article 8 is interfered with when the ‘persons concerned possess strong personal or family ties in the host country which are liable to be seriously affected by application of the measure in question’ [351]. They continued that the right to establish and develop relationships, embracing social identity, having social ties with the community all fall within the meaning of Article 8 [352]. Moreover, Article 8 is interfered with when one faces expulsion and having their citizenship arbitrarily denied [352-3]. Finally, the UK Government has positive obligations to respect Article 8 [354].

Due to the cumulative failings of Slovenia, the ECtHR concluded there was a violation of Article 8 [376]. The ECtHR did not decide whether the Article 8 violation was due to the measures not being ‘in accordance with the law’ pursued a legitimate aim or was ‘necessary in a democratic society,’ so the same approach will be taken to argue that in the cumulative, Article 8 has been violated. When one considers that landing cards had been destroyed arbitrarily in 2010, the Home Office claimed these had no impact on the rights of the Windrush Generation. This claim is contested by two Home Office whistle blowers arguing that the landing cards had been a useful resource. The whistle blower’s account is supported by the Border Force where its notes state that ‘Information from a landing card may be used by an entry clearance officer in making a decision on a visa application.’ Destroying landing cards allowed Home Office staff to tell those concerned that they had no record of arrival dates which would lead to the denial of services and at worst, deportation.

Moreover, citing data protection law as a reason for the destruction of personal data appears cynical due to the amount of personal data that is kept anyway and the fact that the same Government is seeking to create an immigration exemption in the new Data Protection Bill (Schedule 2, Part 1, (4). The Home Office also explained that it considers alternative evidence such as tax records, utility bills and tenancy agreements as evidence of ongoing residency. However, if one can be denied work, have bank accounts frozen and be denied tenancy, then this evidence could also be difficult to provide. The cumulative effect of denial of services to the threat of (or actual) deportation, the deletion of flying cards and the spurious reasoning behind it would amount to a violation of Article 8.

The racist elephant in the room

Nason asked whether the overt racism from the 1960s-80s has simply been replaced ‘by a more insidious, state-endorsed hostility in the name of immigration control.’ A group of NGOs published a report on the ‘hostile environment’ noting that its very nature is discriminatory and thus encourages discriminatory or even racist behaviour. Former Home Office employees detail how the ‘hostile environment’ changed the attitude of staff to the point where they enjoyed catching out Windrush individuals without evidence. James Moore argues that this is what happens when you let dog-whistle racism go mainstream.

Article 14 of the ECHR details how the enjoyment of rights contained in the ECHR must be protected in a non-discriminatory manner. The grounds for discrimination are non-exhaustive but include race, colour, national or social origin and birth. Any one of these can be relevant to the Windrush Generation. Article 14 only works in combination with another substantive Convention Right, in this instance Article 8 [84]. Article 14 requires a difference in treatment to those in an analogous or similar situation [66]. The ECtHR have maintained that:

[A] difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group…may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent [184].

The Windrush Generation have as much right to be here as any other UK citizen, yet they are the ones that a targeted under the ‘hostile environment.’ Given that the Home Office destroyed landing cards, removed key protections that could have avoided this. One could argue the actions of the UK Government are more than just indirect discrimination because the discriminatory intent arises for the poor reasoning for destruction of flying cards to the lack of reasoning for removing key protections. The Government has no objective reasonable justification for this difference in treatment and thus amounts to discrimination [196]. Moreover, the Windrush Generation are being treated as though they are immigrants. This engages a different type of discrimination issue under Article 14, a Thlimennos discrimination which notes that:

The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different [44].

There is no objective reasonable justification on any of the discriminatory grounds and thus amounts to a violation of Article 14 in conjunction with Article 8 [208-210]. Thus, under the ECHR, the racist and discriminatory elephant in the room is glared upon with distain.

Conclusions

This post has highlighted that the dubious reasoning as to why the Home Office destroyed crucial information that could have helped prevent some of the tragedies of the Windrush Generation is flawed, logically and legally. Not only is it flawed, reliance on data protection grounds in ECHR terms would amount to using Article 8 as a shield, and for the UK Government to do so would raise serious questions regarding Article 17 (the abuse of rights). Not only is the Home Office’s actions and reasoning in violation of Article 8, it violates Article 8 on the ground of defending it. There is a bigger issue which highlights the resurfacing of racism and discrimination in a new form which violates Article 8 in conjunction with Article 14. The ‘hostile environment’ has provided a platform and has legalised discrimination and racism, the destruction of landing cards in 2010 can be seen as the first steps towards this, and the removal of key protections for the Windrush Generation in the 2014 Act  is no accident either. The ‘hostile environment’ is the problem and the recent outrages shows that there are ‘resources of hope, but time is running out – we are at five minutes to midnight.’

Photo credit: www.sas.ac.uk

Salvation outside the church? The ECJ rules on religious discrimination in employment

Dr Ronan McCrea, Senior Lecturer in Law, University College London

Background

The Court of Justice has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.

In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:

‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’

Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.

As discrimination in employment on grounds of religion is regulated by EU law, in the form of Directive 2000/78 (which also bans discrimination on grounds of disability, age or sexual orientation in employment), when the case came before the Bundesarbeitsgericht (Federal Labour Court) it decided to make a reference to the Court of Justice to clarify the interpretation of EU law. The key issue in the reference was whether the scope of the exemption from the duty not to discriminate on grounds of religion or belief granted by German law to religious organisations was compatible with Directive 2000/78.

The issue of exemptions from the prohibition on discrimination on grounds of religion for religious employers is addressed by Article 4(2) of the Directive which states:

‘…. in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.’ (emphasis added).

The relevant German law implementing the directive provided that:

‘….a difference in treatment based on religion or belief shall also be admitted in the case of employment by religious societies, by institutions affiliated therewith, regardless of legal form, or by associations whose purpose is to foster a religion or belief in the community, where a given religion or belief constitutes a justified occupational requirement, having regard to the employer’s own perception, in view of the employer’s right of autonomy or by reason of the nature of its activities.’ (paragraph 9(1) of the Allgemeine Gleichbehandlungsgesetz, emphasis added).

This legislation, has been interpreted in the light of the German constitutional guarantee that states:

‘Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.’ (Grundgesetz Article 140).

This has meant that the consistent approach of the German courts has been that the decision as to whether a particular role within a religious organization needs to be limited to those of a particular faith was for the religious employer to take. The role of the courts has been limited to plausibility review, on the basis of a religion’s self-conception defined by belief.

The national court harboured doubts as to whether the approach of German law in allowing the religious employer to determine for itself, subject only to plausibility review by the courts, whether its beliefs required a particular role to be reserved to those of a particular faith, was compatible with the directive and therefore made a reference to the Court of Justice under Article 267.

The Ruling: A More Balanced Approach Needed

The Court of Justice’s ruling made it clear that German law had gone too far by allowing such a wide scope for religious employers to determine for themselves whether a particular job could be reserved to those of a particular faith.

It noted that Article 4(2) of the Directive allowed the discrimination on grounds of religion only if having regard to the nature of the activity concerned or the context in which it is carried out, ‘religion or belief constitute[s] a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos’ and concluded that:

‘if review of compliance with those criteria were, in the event of doubt as to that compliance, the task not of an independent authority such as a national court but of the church or organisation intending to practise a difference of treatment on grounds of religion or belief, [this provision of the Directive] would be deprived of effect.’

Interestingly, although the employer had cited both the guarantee of freedom of religion or belief (Article 10 of the Charter of Fundamental Rights) and Article 17 of the Treaty on the Functioning of the European Union, which provides that the Union ‘The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’, the Court also relied heavily on constitutional principles to bolster its conclusion that excessive leeway had been granted to religious employers by German law.

The Court noted that Directive 2000/78 was merely a ‘specific expression, in the field covered by it, of the general prohibition of discrimination laid down in Article 21 of the Charter’ (which sets out a general ban on discrimination). It also noted that that when an individual establishes before a national court facts from which it may be presumed that there has been direct or indirect discrimination then, under Article 10 of the Directive, it is for the respondent to prove that there has been no breach of that principle. Thus, the need under Article 47 of the Charter to provide effective judicial protection of EU law rights meant that restricting the ability of the national courts to review the decision of an employer to impose a discriminatory requirement would be contrary to EU law.

Next, the Court held that the objective of Article 4(2) of the Directive was to ensure “a fair balance” between the autonomy rights of religious organisations and the right of workers to be free from discrimination. The Directive “sets out the criteria to be taken into account in the balancing exercise” and in the event of a dispute it must be possible for the balancing exercise to be reviewed by a national court. For the Court, the commitment to respecting the status of religious organisations in Article 17 of the Treaty could not change this conclusion.

That article’s function was:

‘to express the neutrality of the European Union towards the organization by the Member States of their relations with churches and religious associations and communities […] [and] is not such as to exempt compliance with the criteria set out in Article 4(2) of Directive 2000/78 from effective judicial review.’

Guidance on the Test to Be Applied

Having found that the German legislation was not compatible with the Directive the Court then had to address two further interesting issues. First, it had to give guidance to the national court on the question of how the ‘fair balancing’ ought to be carried out and then it had to advise on how to implement the consequences of its finding in the case.

In relation to how to carry out the ‘fair balancing’ the Court had to walk a tightrope. It acknowledged that under ECHR case law, states are precluded from assessing the legitimacy of the beliefs of a religious organization. However, it also had to ensure that the imposition of an occupational requirement relating to religion or belief was, in the words of the Directive ‘genuine, legitimate and justified, having regard to [the] ethos [of the religious employer]’. Thus it had to decide how to recognize the necessarily subjective requirements of the ethos of the employer, with the seemingly objective requirements of the ‘genuine, legitimate and justified’ test.

The Court adopted an approach that is significantly more objective than the approach taken in German law. It set out a test under which religious organisations must show an ’objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned.’ Thus, in order to meet Article 4(2)’s requirements that the difference in treatment on grounds of religion be ‘genuine, legitimate and justified’ the Court held that:

‘To be considered ‘genuine’: ‘professing the religion or belief on which the ethos of the church or organisation is founded must appear necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise by the church or organisation of its right of autonomy.’

To be considered ‘legitimate’ it found that the national court must ‘ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy.’

And to be considered justified the CJEU set down that ‘the church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.’

Finally, although a proportionality requirement is not included in the text of Article 4(2) (and is included in other Articles of the Directive), the Court held that as proportionality is a general principle of EU law, the exemption given by Article 4(2) is to be read as being subject to a proportionality requirement.

Applying the Ruling

Given the possibility of a clash between German law and the requirements of the Directive the German court asked for guidance on how it should proceed if it proved impossible to interpret domestic law so as to comply with the Directive (bearing in mind the contra legem exception in the Marleasing line of case-law on the indirect effect of Directives; ie a national court cannot be required to interpret national law consistently with a Directive to the extent of ignoring the express wording of national law).

The Court seemed to doubt that an interpretation consistent with EU law was impossible, noting that the duty to interpret national law consistently with EU law included a duty for national courts ‘to change their established case-law where necessary’ (referring to the DI judgment on age discrimination, discussed here). However, it went on to say that should consistent interpretation prove impossible then the Court should disapply national law and give effect to the relevant EU law rights itself.

It justified this position on the basis that Directive 2000/78 did not establish the right to equal treatment. Rather it sets out a framework for combatting discrimination on various grounds. The right to equal treatment is, the Court held, a general principle of law and is enshrined in Article 21 of the Charter. Given that Article 47 of the Charter requires that adequate judicial protection be given to such rights, national courts have to ensure ‘the judicial protection deriving for individuals from Articles 21 and 47 of the Charter and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.’ This develops earlier case law on the issue of when the Charter itself does (and does not) have direct effect, in particular the AMS case discussed here; and it confirms the UK case law on the direct effect of Article 47 (Vidal-Hall and Benkharbouche, discussed here and here).

Conclusion

The Court of Justice has given a notably constitutionalized interpretation of the Directive in this case. It has relied on the Charter and general principles of law to read a proportionality test into Article 4(2) that did not appear in the text. It has insisted on proportionality as the framework within which the ‘fair balancing’ of the autonomy rights of religious employers and equal treatment rights of employees must take place.

This approach is in tension with recent trends in the caselaw of the Strasbourg Court. In cases such as Fernandez Martinez v Spain, the Court of Human Rights had moved away somewhat from the balancing of rights seen in its earlier caselaw and had moved closer to the ‘ministerial exemption’ model used in the United States, under which religious organisations have an absolute exemption from non-discrimination laws in respect of roles that include religious functions. Given the strong emphasis placed on proportionality by the EU legal order, unsurprisingly, in Egenberger, the Court of Justice has clearly come down in favour of the balancing approach (see R. McCrea “Singing from the Same Hymn Sheet? What the Differences between the Strasbourg and Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination and the Secular State” Oxford Journal of Law and Religion (2016) 5(2) 183-210, 198-99).

The Court’s insistence that EU non-discrimination law merely codifies a self-executing (and horizontally directly effective) constitutional general principle of non-discrimination law represents a continuation of the controversial line of cases beginning in Mangold which has attracted significant criticism, including from national courts given the potential for legal uncertainty that such an approach involves. Here, the Court of Justice has made it clear that the EU’s constitutional commitment to proportionality means that religious bodies may only impose discriminatory conditions on employees when it is proportionate to do so and national courts must be empowered to ensure religious employers do not exercise their right to discriminate in a disproportionate way.

This is in tension with the approach adopted by the German legislature which, in the light of German constitutional guarantees of religious autonomy, gave very restricted powers to the courts to second guess the decisions of religious bodies in this way. Given that EU and German constitutional norms appear to be in tension with each other in this way it will be interesting to see how this ruling is applied by the national court. The German constitutional provisions on religious autonomy go all the way back to the Weimar constitution and are taken very seriously, though it may be an exaggeration to view them as constituting the kind of core ‘constitutional identity’ that might trigger a refusal by the German courts to give primacy to EU law.

Barnard & Peers: chapter 9, chapter 20

Photo credit: Wikimedia Commons