Friday, 22 January 2021

Analysis 5 of the Brexit Deal: Environment and Climate Provisions

 



 

Markus W. Gehring, University of Cambridge; J.S.D. (Yale), LL.M. (Yale), Dr jur. (Hamburg), MA (Cantab). This short piece shares thoughts with the Marios Tokas and Markus W. Gehring, Briefing 4: The UK’s Draft Position - Exploring the basis for negotiation with the EU, CISDL Legal Brief 2020

 

Introduction

 

With the beginning of the new year, the relationship between the UK and the EU was fundamentally reset as the Brexit transition period ended and the new EU-UK Trade and Cooperation Agreement (TCA) came provisionally into force. This blog post looks at the provisions of the TCA on environment and climate change, following on from four earlier analyses on this blog, on: an overview of the TCA; the social security provisions; human rights; and dispute settlement.

 

This new agreement is not just the first ‘less free trade’ agreement, but also contains a number of important innovations that are not normally found in free trade agreements (FTAs). This paper offers an initial, tentative review of the TCA and compares it with the UK and EU draft agreement texts on matters relating to the environment, particularly climate change.

 

It is worth noting that the TCA leaves the (limited) climate cooperation in the Withdrawal Agreement untouched. The Withdrawal Agreement recognised the need for close climate cooperation, particularly in the Ireland/Northern Ireland Protocol (Backstop) and includes a carbon price as an important element. However, it does not mandate the full participation of Northern Ireland in the EU Emissions Trading System outside the energy sector.

 

Despite the Political Declaration mandating no more than a discussion about climate cooperation, “both Parties could choose to safeguard strong climate legislation within a side agreement or a chapter of a new UK-EU trade deal.” As we indicated in 2019, much inspiration could be drawn from existing FTAs through ‘[a] combination of the most robust provisions – that ensure full compliance with the Paris Agreement and the highest level of ambition”, which could have the “potential to blaze a trail for deep climate cooperation in future free trade agreements, potentially for all Paris Agreement Parties around the world.” (Markus Gehring and Freedom-Kai Phillips, ‘Legal Options for Post-Brexit Climate Change and Energy Provisions in a Future UK-EU Trade Agreement’ (European Climate Foundation Paper, 2019)) The resulting set of TCA provisions is innovative in that it constitutes the “first trade agreement to make the climate crisis a ‘make-or-break issue” (See my comments to The Independent)

 

Preambles

 

Environmental protection and climate change feature prominently in the TCA Preamble. While the text of the preamble is similar to that of other EU FTAs, the TCA is the first EU FTA to immediately elevate climate change as an essential element of the agreement:

 

REAFFIRMING their commitment to democratic principles, to the rule of law, to human rights, to countering proliferation of weapons of mass destruction and to the fight against climate change, which constitute essential elements of this and supplementing agreements

 

Due to its prominence in the preambular text, reneging on climate commitments by either party could lead to a material breach of the treaty and a subsequent suspension or termination. Notably, the three dimensions of sustainable development, namely the economic, social, and environmental dimensions, as underlined in the preamble are resonant of both the EU treaties and previous FTAs. The second relevant preambular paragraph is a new addition and uses language agreed to in the Withdrawal Agreement Political Declaration, underlining high levels of environmental protection and climate change ambition as priorities, while ensuring a level playing field for “open and fair competition and sustainable development”. Preambular language has proven to be a significant element of trade agreements, particularly in light of the WTO DSB in the US-Shrimp dispute, where preambular language was used to add colour and shading to their interpretation of Art. XX GATT.

 

Material Breach

 

Article COMPROV.5 declares the fight against climate change as a one of the bases for cooperation alongside democracy, the rule of law, human rights and the non-proliferation of WMDs. Further, Article COMPROV.12 affirms that Article COMPROV.5(1) is an essential element of the partnership established by the TCA as well as “any supplementing agreement.”

 

In the May 2020 EU Draft, the collective goal of combating climate change was elevated to a guiding principle, informing the operation of the entire treaty and was consequently placed at its beginning. This strongly worded provision, with mandatory language, was left almost unchanged in the TCA; the only slight change incorporated the gender-neutral language of “human-caused” climate change, as opposed to “man-made climate change” found in the EU draft, with no difference to its material meaning.

 

The language is one of the strongest found in any trade agreement, declaring that “climate change represents an existential threat to humanity”, requiring each Party to “respect the Paris Agreement and the process set up by the UNFCCC and refrain from acts or omissions that would materially defeat the object and purpose of the Paris Agreement.” Both trading partners also commit to be advocates of the fight against climate change in international fora.

 

Essential elements are important when determining suspension or termination of a treaty in international law. The TCA contains also Article INST.35 on the fulfilment of obligations described as “essential elements”: a provision that displaces in part the customary principles contained in the Vienna Convention on the Law of Treaties. It allows either party to suspend or terminate the TCA or any subsequent agreement in whole or in part after a specific process which mandates consultations and qualifies the invocation of a breach of an essential element. The provision singles out the Paris Agreement and helpfully clarifies that “an act or omission which materially defeats the object and purpose of the Paris Agreement shall always be considered as a serious and substantial failure for the purposes of this Article” meaning that it makes it somewhat easier to invoke the provisions when the object and purpose of the Paris Agreement is breached.  The TCA has thus become the first instance in which climate change is an essential element of a trade treaty. While the issue might be seen as essential for association agreements leading to EU Membership, this could potentially be the first agreement, provisionally in force, to contain climate change as an essential element, that is, a make-or-break issue.

 

Level playing field

 

Under ‘Title XI: Level Playing Field for Open and Fair Competition and Sustainable Development’, environment, climate change, and sustainable development more broadly, play a key role. The title is a slight misnomer as the obligations in these fields consist of non-regression obligations rather than any form of dynamic alignment, or indeed level playing field. The TCA, however, contains a quasi-unilateral set of measures that the Parties could adopt if divergence in these fields becomes too great in terms of ‘rebalancing measures’, subject to dispute settlement provisions.

 

Three different chapters of the level playing field title are relevant: the non-regression rules (chapter 7), the rebalancing rules (chapter 9), and the sustainability rules (chapter 8).

 

Environment and climate (Chapter 7)

 

This chapter groups some of the provisions on climate change and emission trading that the EU had proposed, subject to consultation, a panel of experts and, more importantly, a Panel of experts for non-regression areas.

 

It delineates the areas of law that determine the “environmental levels of protection”, to include laws in the majority of the most significant areas of current EU legislation such as industrial emissions, air quality, nature and biodiversity conservation, waste management, marine and aquatic environment, chemicals, agricultural environmental impacts. Non-EU laws are only included if they are ‘common’ to the Member States meaning that not the highest level found in any of the Member States will be used but rather the UK would have to prove that a Member State law is common which might be very difficult to prove in the expert or arbitration process.  

 

There is a separate definition of the “climate level of protection”, somewhat controversially defined in part as the reduction and removal of greenhouse gases emissions: “for the Union, the 40 % economy-wide 2030 target, including the Union’s system of carbon pricing [and] for the United Kingdom, the UK’s economy-wide share of this 2030 target, including the United Kingdom’s system of carbon pricing.” In law, that means a 37% reduction by 2030 based on 2005 levels for the UK.

 

Neither of these definitions reflects the new ambitions agreed within the EU of 55% reduction, nor do they align with the announced 68% reduction from 1990 levels for the UK. Evidently, this leaves some room for discretion for both trading partners with regard to their 2030 targets. Unfortunately, the 2050 objective is currently described in Art. 1.1.3 of Title XXI (Level Playing Field) as just an ambition: “Each Party reaffirms its ambition of achieving economy-wide climate neutrality by 2050”. The climate change definition also includes “the phase-out of ozone depleting substances”.

 

Article 7.2.2 contains one of the strictest formulations of a non-regression provision by adopting mandatory language prohibiting the weakening or reduction of levels of environmental or climate protection as defined in Art. 7.1 “below the levels that are in place at the end of the transition period”, including “by failing to effectively enforce its environmental law or climate level of protection”, with the sole caveat that this regression should not occur “in a manner affecting trade or investment.”

 

In my view this is a strong provision, despite the nominal caveat, as WTO panels have repeatedly interpreted “affecting trade” in the GATT and GATS as having an economic impact without any qualitative level beyond de minimis, for example in cases like China – Publications and Audiovisual Products:

 

The word 'affecting' covers not only measures which directly regulate or govern the sale of domestic and imported like products, but also measures which create incentives or disincentives with respect to the sale, offering for sale, purchase, and use of an imported product 'affect' those activities.” Panel Report, China – Publications and Audiovisual Products, para. 7.1450.

 

 

or EC – Bananas III:

 

“[t]he ordinary meaning of the word 'affecting' implies a measure that has 'an effect on', which indicates a broad scope of application. This interpretation is further reinforced by the conclusions of previous panels that the term "affecting" in the context of Article III of the GATT is wider in scope than such terms as 'regulating' or 'governing'.217 (emphasis added, footnote omitted).” Appellate Body report, EC — Bananas III, para. 220.

 

Art. 7.3 obligates both parties to “have in place an effective system of carbon pricing” and suggests that they give serious thought on linking their respective carbon pricing systems to preserve the system’s integrity and possibly increase its effectiveness. It is worth highlighting that both sides are now committed to a carbon price for “from electricity generation, heat generation, industry and aviation.” This commitment could support the ICAO CORSIA implementation or indeed domestic carbon pricing of aviation between both parties. It does not include shipping but then the EU discussions on expansion of the ETS to shipping are still ongoing but could start in 2023.

 

In keeping with the aim of not wanting to be bound by EU law, the parties agreed to be bound instead by “the internationally recognised environmental principles”: principles to which they are committed through various multilateral environmental agreements: Particularly, “(a) the principle that environmental protection should be integrated into the making of policies, including through impact assessments; (b) the principle of preventative action to avert environmental damage; (c) the precautionary approach referred to in Article 1.2(2) [Right to regulate, precautionary approach and scientific and technical information]; (d) the principle that environmental damage should as a priority be rectified at source; and (e) the polluter pays principle.” The final provision could be interpreted as a stronger formulation of the TFEU’s “polluter pays” formulation, which simply states that the “polluter should pay”. 

 

Non-regression obligations include enforcement of environmental laws, including the obligation of each Party to ensure that “domestic authorities competent to enforce the relevant law with regard to environment and climate give due consideration to alleged violations of such law that come to their attention” and that “those authorities shall have adequate and effective remedies available to them, including injunctive relief as well as proportionate and dissuasive sanctions, if appropriate; and national administrative or judicial proceedings are available to natural and legal persons with a sufficient interest to bring actions against violations of such law and to seek effective remedies including injunctive relief, and that the proceedings are not prohibitively costly and are conducted in a fair, equitable and transparent way.” (Article 7.5) These commitments are similar to the boarder Aarhus Convention access to justice obligations but include injunctive relief, costs and include the administrative not just the judicial process. The previous proposals about the independence of the Office for the Environment in the EU draft text was also dropped.

 

The enforcement of level playing field provisions follows a special panel process. The special rule on dispute settlement (Article 7.7) highlights that in place of the general dispute settlement rules, Articles 9.1 to 9.3 of the level playing field provisions apply, which still includes the possibility of trade retaliation if the non-regression rule is breached.

 

Rebalancing

 

What makes these provisions particularly significant is the inclusion of the level playing field provisions, now called “Article 9.4: Rebalancing”. While both parties recognise that each Party has the right to determine its own “future policies and priorities with respect to labour and social, environmental or climate protection, or with respect to subsidy control, in a manner consistent with each Party’s international commitments, including those under this Agreement,” they also acknowledge that “significant divergences in these areas can be capable of impacting trade or investment between the Parties in a manner that changes the circumstances that have formed the basis for the conclusion of this Agreement”, as similarly stated in the Political Declaration.

 

If “material impacts on trade or investment arise as a result of significant divergences between the Parties”, Art. 9.4.2. gives each Party the right to take rebalancing measures that are strictly necessary and proportionate to address such a situation.  Even though this instrument is predominantly relevant for future divergence and does not considerably affect the non-regression obligations, it ensures that if one Parties goes further than the other it could adopt “rebalancing” measures in the future. While these would be automatic, they are reviewable by an arbitration process. It should be highlighted that “material impacts” should be seen as a relatively high barrier, meaning that every future divergence will not necessarily qualify for rebalancing measures. On the other hand, and given that there is an arbitration process available, any significant departure in the fields of labour and social, environmental or climate protection, or with respect to subsidy control could, in the future, qualify for “rebalancing measures.”

 

Environment and Sustainable Development (Chapter 8)

 

Unlike chapter 7 of the LPF provisions or the rebalancing rules, this Chapter is not subject to normal dispute settlement. It should be noted, however, that it is subject to both consultation and the well-known EU ‘panel of experts’ process, which several other EU FTAs have introduced. Generally, we should not underestimate the latter in its ability to shine a light on environmental shortcomings, as it can be quite important in practical terms.

The trade and environment provisions in the TCA in Chapter 8 are extensive. While the UK draft text was essentially not used, its influence is evident in the formulation of the provision on forests where present and future generations are mentioned:

 

“Article 8.7: Trade and forests

 

1. The Parties recognise the importance of conservation and sustainable forest management for providing environmental functions and economic and social opportunities for present and future generations, and the role of trade in pursuing that objective.“

 

The provisions which integrate the sustainable development goals into the objectives of the “Chapter 8 on Sustainable Development” follows the EU Draft closely in its provisions on forests, biodiversity and climate change. A blackline reveals that the parties of the TCA weakened the language compared to the EU draft text by introducing in the provision of 8.5 on “Trade and Climate Change”:

 




Similarly, the provision on trade and biodiversity was changed, employing less binding and more optional language.


 


 


A dedicated provision in the main agreement, recognizing the importance of climate change, was derived from Art 2.42 of the EU Draft, as well as paragraphs 18, 75, and 76 of the Political Declaration, to a lesser extent. Like many other EU FTAs, the EU Draft would have committed both parties to “effectively implement the United Nations Framework Conventions on Climate Change, and the Paris Agreement of 2015 adopted thereunder.” This content can be traced to the EU-Japan Agreement, which was the first FTA to contain a comprehensive commitment to implementing the Paris Agreement. Under EU-Japan, each party commits to work together to realise UNFCCC aims, take steps to meet the objectives of the Paris Agreement, and promote trade as a means of reducing greenhouse gas (GHG) emissions and achieving climate-resilient development. Similarly, the EU Draft provision also envisioned a transition to a low GHG economy and climate resilient development. In addition, the Draft employed innovative language, extending climate commitments to encompass EU-UK cooperation on:

 

“Trade-related aspects of climate change policies and measures bilaterally, regionally and in international fora, as appropriate, including in the UNFCCC, the WTO, the Montreal Protocol on Substances that Deplete the Ozone Layer, the International Maritime Organisation (IMO) and the International Civil Aviation organization (ICAO)” (Art. 2.42 para. 3 EU Draft).

 

Article 8.5.3 does not mandate cooperation as such but now obligates the Parties to ‘work together to strengthen their cooperation’; but all EU proposed fora for climate cooperation were included in the TCA.

 

Conclusions

 

In sum, TCA contains the most far-reaching commitments toward sustainable development beyond broad facilitation and cooperation provisions, going considerably further than the more recent EU FTAs. The combination of elevating climate change to an essential element of the treaty, strong non-regression provisions and future balancing measures mean that in this field the TCA is trailblazing.

Barnard & Peers: chapter 22, chapter 26

Photo credit: MichealisScientists, via Wikimedia Commons

‘You have children together but your marriage is fake’: Marriages of convenience, UK courts and EU free movement law



Aleksandra Jolkina, PhD in Law, Queen Mary University of London

 

Over the past two decades, the UK authorities have grown increasingly suspicious towards in-country marriages between mobile EU citizens and third-country nationals with an unstable or irregular residence status. In a widespread climate of Euroscepticism, such arrangements are frequently denounced as ‘marriages of convenience’, entered into to help foreigners circumvent British immigration law. This contribution will consider how the concept of marriages of convenience is interpreted by UK courts, what implications this may have for families of EU citizens living in the country and how the situation will change post-Brexit.  

Background

The underlying reason for the UK government’s concerns about the perceived abuse has been the growing gap between two sets of rights - the EU Citizenship Directive, on the one hand, and restrictive British immigration law, on the other. Since the beginning of free movement, every EU citizen was provided the ability to reside in the host Member State with his or her spouse, irrespective of the latter’s nationality. The central logic behind these rules is that the absence of such a right would create obstacles to EU citizen’s relocation to another Member State, as well as hinder their integration into the host society.

The generous EU approach, however, soon began to sharply contrast with the relevant developments in UK domestic family reunification law. Seeking to limit the number of TCN family migrants who could not be selected in the same way as foreign labourforce, the UK significantly tightened up the rules for admission of family members of British nationals and settled persons.

In 2012, the UK introduced the so-called ‘minimum income requirement’ for their own nationals who wished to live in the country with their TCN spouses. To sponsor a foreigner, one now needs either to have significant savings or earn at least £18,600 per year (plus extra for sponsoring children), a threshold that is impossible to meet by a large share of the UK’s adult working population. Apart from that, the couples are required to provide extensive evidence that their relationship is ‘genuine and subsisting’, such as joint rental or mortgage agreements, utility bills, bank statements, photos or correspondence.

Furthermore, the ‘no-switching rule’, introduced with a view to tackling marriages of convenience involving UK citizens, prohibits non-EU nationals with short-term leave to remain from switching to the marriage category within the UK and requires them to leave the country and apply from abroad. The burden of proof in family reunification cases rests with the applicant, and, unless a human rights claim is made, the negative decision of the Home Office is not subject to appeal.

Meanwhile, family members of mobile EU citizens obtain residence rights in the UK automatically without having to leave the country or satisfy any additional requirements. As held in the CJEU judgment in Metock, this principle applies even if the non-EU party was previously irregularly present in the relevant Member State.

Since the restrictive domestic measures could not be applied to Indian or Albanian spouses of Polish or Spanish nationals, the UK government began to denounce the Citizenship Directive as a ‘loophole’ enabling otherwise undesirable non-EU nationals to regularise their status via marriages of convenience. This discourse is backed up by often sensationalist media reports exposing ‘the world of fake marriages’ where vulnerable Eastern European women are claimed to be exploited by marriage ‘fixers’ and third-country national men.

UK case-law analysis

Although the Citizenship Directive permits Member States to derogate from free movement rights in cases of abuse, such as marriages of convenience, this concept is defined narrowly, and the relevant provision is to be interpreted strictly. The present contribution briefly outlines the main findings of my study on how the issue is approached by UK courts – in particular, whether and to what extent the concept of marriages of convenience is interpreted in conformity with EU law.

To answer this question, I have conducted an analysis of 110 recent Upper Tribunal (UT) Immigration and Asylum Chamber decisions in cases where TCN spouses of mobile EU citizens were previously refused entry or residence in the UK on the grounds that their marriage was found to be one of convenience. The rulings examined were delivered between July 2016 and July 2019 and selected using the keywords ‘marriage of convenience’ or ‘sham marriage’ in conjunction with ‘EEA’. In addition, I have explored several high-profile cases on the issue, delivered by the former Asylum and Immigration Tribunal, the Court of Appeal, the High Court of England and Wales, and the Supreme Court.

Although my study focuses on First-tier Tribunal (FtT) decisions brought on appeal, the number of judgments analysed has made possible not only to provide a comprehensive overview of the UT approach to the issue, but also to identify the most problematic practices of lower courts. The key issues that arise in this context are outlined below.

Definition of marriages of convenience

One of the most problematic aspects is the definition of marriages of convenience. The crucial constraint on the concept, which is imposed by both the Citizenship Directive and the CJEU, is the narrow ‘sole purpose’ test. It implies that the acquisition of a residence status must be the only aim of the marriage, rather than one among many.

In other words, the term ‘marriages of convenience’ under the Directive shall be understood as purely artificial arrangements having no content other than an immigration motive. This is logical, given the fact that the state typically privileges marriage when it comes to family reunion and many couples get married just to be able to lead a family life in one country, its choice often affected by various factors, including economic ones. The fact that an immigration advantage may be a consequence of marriage or even the principal motive for it does not mean that that the parties do not intend to lead a family life.

The analysis of case-law suggests that very few judges attempt to establish a legal definition of marriages of convenience. This, in turn, undermines legal certainty and frequently leads to adverse outcomes. Those who do attempt to define a marriage of convenience, however, often struggle with providing a correct definition of the phenomenon in the context of the EU free movement law.

In numerous situations FtT judges appeared to be unaware of EU law and erroneously relied on the domestic immigration law instead, requiring the marriage to be ‘genuine and subsisting’. Yet even where the judges rightly focused on the position at the point of entry into marriage, the ‘sole purpose’ definition was frequently substituted by the ‘primary purpose’ approach, which is inconsistent with EU law. In two High Court judgments (Molina and Seferi & Anor), this has even led to a paradoxical finding that a marriage of convenience may be entered into by a couple in a genuine relationship.

Burden of proof

Another key issue concerns the establishment of the burden of proof. Under EU free movement law, systematic checks of marriages are prohibited, and the burden of proof of identifying marriages of convenience rests with the national authorities.

To begin with, it has long been confirmed by UK courts that the legal burden of proof in EU cases lies with the Home Office. A line of rulings can be distinguished in this regard, starting from the much-quoted UT decision in Papajorgji, delivered in late 2011, and ending up with the more recent Supreme Court judgment in Sadovska. In many cases, however, the FtT wrongly refers to the domestic immigration provisions instead and/or requires an applicant to demonstrate that their marriage is ‘genuine and subsisting’, claiming that the burden of proof lies on the non-EU national involved. In such situations, the Upper Tribunal normally allows the appeal.

Yet even where the judges do show awareness of the relevant case-law, the application of the test in practice appears problematic. In a number of judgments, FtT considered that in cases of ‘well-founded’ suspicions, the legal burden of proof rests with the non-EU national. In several cases, such decisions were set aside by the UT; yet there are disappointing examples when the Upper Tribunal did concur with the FtT.

In the case of Ahmed, the FtT judge found that a marriage was one of convenience inter alia because she considered the appellant’s lack of knowledge about his wife’s family was inconsistent with that ‘normally expected of a husband’. This is a highly normative and subjective position that was rightly criticised by the UT, particularly given that the wife explained that they did not talk about her father or brother due to ‘abuse issues during her childhood’. The appeal was consequently remitted to the FtT for re-hearing.

In Habib, both tribunals drew adverse inferences from the fact that the couple had a joint bank account and bills in joint names, opining that it was ‘part of a package’ to convince the Home Office that their marriage was genuine. In Jamil, the UT judge commented that a marriage that lasted for three years was ‘on any way brief’. This, together with other questionable evidence, made him believe it was one of convenience. In a number of cases, the FtT dismissed the claims inter alia on the grounds of their biased assessments of the photographic evidence. The judges tend to complain about the low number of photographs submitted or label them as ‘staged’. As a result, couples may feel pressured to take many pictures together even if they would not do so in normal circumstances, and then risk being considered not ‘genuine’ because of showing either too much or too little affection.

Furthermore, some judges placed significant weight on cultural differences between the spouses, a highly discriminatory position that is in no way linked to the purpose or content of the marriage. As the UT reasonably argued in Nasreen, it was unclear why the FtT judge doubted that a Bangladeshi-Italian couple developed a relationship at a takeaway restaurant where he worked, and she was a customer, and they found they had a lot in common despite their different backgrounds.

Likewise, judges tend to act as language and communication experts, evaluating the parties’ language skills and their ability to converse. In one case, the FtT judge dismissed the appeal on the grounds that the appellant’s responses to the questions were ‘incredibly vague’ and the English of the principal – ‘wholly inadequate’. This led the judge to conclude that the spouses were unable to converse, a finding also accepted by the UT. In another case involving a Pakistani-Portuguese couple, the FtT found that the marriage was one of convenience because the couple gave inconsistent evidence and the wife spoke ‘very little’ English, a finding that paradoxically outweighed the fact that the couple had a son. Although the wife said in evidence that her husband spoke very slowly to her, the judge held that ‘the level of the EEA sponsor’s knowledge of English is so low that a meaningful communication and conversation cannot be held between them’, as well as erroneously relied on the ‘genuine and subsisting’ relationship test. The UT reasonably argued that it was unclear how the judge proceeded to receive evidence from the wife without an interpreter and ultimately held that his analysis was ‘tainted by legal error on the grounds of perversity’.

Focus on cohabitation and/or present state of the relationship

The issue of the evidential burden of proof is closely linked to another problematic approach adopted by the courts. When performing marriage checks, Member States must respect a key principle established by the CJEU. As the Court held in Diatta and Ogieriakhi, as long the marriage is not officially terminated, the TCN spouse continues to benefit from the Directive even where the parties do not live together under one roof or are no longer in a relationship. The CJEU approach is reasonable, for it is not for the state authorities to decide how the spouses should arrange their marital life or make judgments on the quality of their relationship.

However, in their case-law, UK courts rarely show awareness of the relevant CJEU rulings. Instead, tribunals tend to dwell extensively on the current nature of the relationship, placing the main focus on cohabitation as evidence of its genuineness.

In several cases, the UT upheld the decision of the Home Office in concluding that the appellant’s marriage was one of convenience. For instance, in Gjana, both tribunals reached this conclusion because the EU citizen spouse went for a holiday to her home Member State. The FtT judge, in particular, considered it ‘noteworthy that she went for the month and not a shorter holiday so that she could spend time with her husband’ and placed weight on the fact that it happened shortly after the couple moved into the same accommodation. In the view of the judge, this suggested that ‘her family visit was of more importance to her and undermine[d] that claim that this is a genuine relationship’. This view was also upheld by the UT. Such an approach is striking in its subjectivity and clearly breaches EU law – both the evidential burden test and the CJEU case-law in Diatta and Ogieriakhi.

Another problematic category of cases is those where the relationship has deteriorated, or the spouses have chosen to maintain separate accommodation due to their work arrangements. In De Vera, the Home Office refused to grant the TCN spouse a residence card after not having encountered the couple at their declared home address. During the hearing, the FtT judge placed weight on the fact that the appellant had said that she lived ‘on and off with her husband’, as well as expressed surprise by the fact that she was working in Essex, some distance from their marital home in the London borough of Hounslow. Although she did return to Hounslow for four days a week, the judge claimed that such an arrangement was ‘wholly inconsistent with the appellant and her husband being a young couple who wish to spend their lives together in a genuine marriage’, suggesting that she should have been able to find a job nearer to where she lived in London. This finding was rightly dismissed by the Upper Tribunal as purely speculative, particularly in view of the explanation of the appellant about the difficulty of finding work and accommodation. The marriage was ultimately found not to be one of convenience. Yet, although the UT rightly dismissed the erroneous conclusions of the FtT by reference to the extensive evidence produced by the couple, it did not refer to the CJEU case-law which would have further strengthened its argument.

In a number of cases, a residence permit was revoked on the sole basis that the Home Office found that the spouses had separated, but their divorce was still pending. In Iqbal, the relevant Home Office decision was subsequently upheld by both the FtT and the UT. In some cases, however, the UT has rightly confirmed that even if the couple is estranged, under EU law, the status of a family member might only change with divorce.

Cases involving children

One of the most controversial group of cases involve pregnancy and childbirth, factors which make the finding that a marriage is one of convenience particularly problematic. Out of the 110 UT judgments analysed, 12 (over 10 per cent) involved marriages where the FtT did not accept these factors as evidence of their genuineness; in four of them, the UT concurred with the FtT assessment.

In some cases involving children, the judges wrongly approached the issue of the burden of proof and applied an incorrect definition of marriages of convenience. In Rehman, the FtT wrongly stated that there was an evidential burden on the claimant to address reasonable suspicions, and also wrongly referred to the ‘predominant purpose’ test. The judge then upheld the Home Office finding that the marriage was one of convenience; in the view of the FtT, the fact of childbirth could not alter this conclusion, given the non-EU national spouse’s ‘continued dishonesty’ (he was considered not truthful concerning his studies). The UT considered this reasoning flawed. In Virk, the Home Office concluded the marriage in question was one of convenience despite the pregnancy of the EU principal who was subjected to intimidating and intrusive questioning. The appeal was consequently dismissed by the FtT. The UT held that the FtT judge misapplied the burden of proof test by failing to address significant concerns by the couple as to the conduct of the interviewer and not giving weight to their explanations of the discrepancies. The decision was ultimately set aside.

In Gjura, the FtT went as far as to suggest that the non-EU spouse fathered a child solely to obtain an immigration status. This finding seems even more disturbing, provided that the judge did accept that both parties were involved in the upbringing of the child. It nonetheless placed weight on other factors, such as ‘scant evidence’ of the couple living together, their perceived inability to easily communicate when they first met, and the fact that they gave different addresses to the registrar when recording the birth of their child. It is remarkable that the FtT findings were upheld by the UT, which considered that the ‘main’ purpose of marriage was to obtain an immigration advantage.

In a similar case of Khan, the FtT accepted that the non-EU national involved was a ‘caring and loving parent’ of his child, yet concluded that the marriage was one of convenience because of his ‘dreadful’ immigration history and several discrepancies identified in the marriage interviews. The judge strikingly noted that the appellant had ‘further sought to strengthen his position in the UK by conceiving a child with the sponsor’ and expressed doubts that his intentions had been ‘honourable or genuine’. The UT rightly concluded that the FtT did not carry out a balanced assessment of all the evidence, focusing on the negative and failing to give due weight to the positive factors. The decision was therefore set aside.  Moreover, in a number of cases, the judges questioned the paternity of the child conceived during the marriage, contrary to the presumption in English family law.

What happens after Brexit?

Given the importance of the fundamental EU rights at stake, I argue that national authorities should attempt to take every precaution to minimise the risk of an erroneous decision and state intrusion into the lives of EU citizens. This, however, does not seem to be a perspective endorsed by the British government and courts. The validation of the hostile Home Office practices by so many judges is deeply disturbing. The adverse decisions, most of which have been delivered in breach of EU law, created hardship for couples involving EU citizens, and as a consequence, may have seriously hindered the latter in exercising their free movement rights. Of course, this can be partly explained by the lack of education and training of the UK judiciary on the relevant aspects of EU law. Notwithstanding that, it also calls into question the good faith of the judges who rely on their biased and discriminatory assumptions to disrupt the family life of EU citizens instead of facilitating it.

The post-Brexit developments in the UK give little reason for optimism. In essence, the British government has ultimately succeeded in its endeavours to deprive EU citizens of the generous family reunion rights guaranteed to them under EU law. The end of the transition period on 31 December 2020 has effectively created two groups of EU citizens who are now covered by separate sets of rights.

Nationals of EU Member States who move to the UK after this date fall into the scope of British immigration law. By contrast, those who were living in the UK before 31 December 2020 will continue to enjoy their residence rights on the same terms and under the Citizenship Directive. The same rights are reserved for their non-EU spouses, provided that the latter were already living in the UK on the basis of the Treaty provisions by the end of the transition period and continue to do so thereafter. Foreign spouses who were residing outside the country by the cut-off date can also join the EU principal on the condition that their marriage was registered before 31 December 2020 and is still valid. Such guarantees are provided to this group by the EU-UK Withdrawal Agreement (as discussed here), incorporated into the British law by the Withdrawal Agreement Act, discussed here. All beneficiaries of the Act are required to make an application under the so-called EU Settlement Scheme, designed to confirm their status.  

This, consequently, means that in the next few years British courts will continue to deal with appeals brought by TCN spouses of EU citizens covered by the Act. It is expected that this type of cases will mostly concern applications for pre-settled or settled status or retained right of residence following divorce.

Families of EU citizens covered by the Act will also continue to benefit from EU law safeguards the states must respect when targeting perceived marriages of convenience. It, however, remains to be seen how these rules are implemented in practice. My case-law analysis has shown that UK courts frequently struggled to differentiate between mobile EU citizens and British nationals already, long before the UK left the EU. Creating an additional distinction between EU citizens benefiting from the Act and those equated to full-fledged foreigners is thus likely to add further confusion, eventually resulting in erroneous decisions and disruption of the families involved.

Barnard & Peers: chapter 26

Art credit: Pierre-Marie Bayle, The Wedding Procession

Wednesday, 20 January 2021

When data protection authorities dispute jurisdiction under the GDPR ‘one-stop-shop’: the AG opinion in Facebook Belgium

 



Lorna Woods, Professor of Law, University of Essex

 

Introduction

 

Like their comic-book counterparts, the national data protection authorities in EU Member States, given their super regulatory powers by EU legislation, sometimes pause in battling high-tech villains – to fight with each other instead. To resolve such conflicts of jurisdiction, the GDPR created a one-stop-shop system to determine which authority could bring proceedings in principle.

 

This case is the first judicial test of the one-stop-shop in the GDPR and its lead supervisory authority (LSA) mechanism, according to which the main responsibility with the EU for regulating a data controller under the GDPR falls to the regulator of the jurisdiction in which the controller has its main establishment (Article 56 GDPR).  While Article 56 establishes the idea of the lead supervisory authority based on the location of the controller’s main establishment, it operates without prejudice to Article 55 GDPR, which gives each national supervisory authority competence to regulate, and other provisions envisage that, even when not a lead supervisory authority, national supervisory authorities retain some interests in regulation.  Further, the GDPR envisages cooperation between the national supervisory authorities.  The question here is about the circumstances in which this residual competence may be exercised.  The question arises against a backdrop in which some differences in approach to regulation can be detected and perhaps some distrust between the different national supervisory authorities (as also illustrated with the difficulties in agreeing the fine for Twitter in relation to a data breach that lead to the first decision of the European Data Protection Board (EDPB) under Article 65 GDPR).

 

Facts

 

The Belgian data protection authority commenced proceedings against Facebook in its local courts, alleging that Facebook had unlawfully collected and used personal data relating to the private browsing information of Internet users in Belgium, through the use of cookies and the like (and there was some discussion as to whether the technologies in issue actually fell ratione materiae within the GDPR as opposed to the e-Privacy Directive).  Although initiated under the Data Protection Directive, given the length of time the matter is now concerned with the GDPR and on that basis Facebook argued that the Belgian data protection authority was no longer competent because Facebook fell within the jurisdiction of the Irish Data Protection Commission (DPC).  The matter was referred to the Court of Justice, specifically referring to legal proceedings against Facebook Belgium in respect of the cross-border processing of personal data that took place after the GDPR has become applicable, given that the data-processing entity was Facebook Ireland Ltd.

 

Opinion

 

The Advocate General’s opinion in this case (Case C-645/19 Facebook Belgium v Gegevensbeschermingsautoriteit, Opinion 13 January 2021) sought to chart a middle ground between the two positions argued before the court as to whether only the LSA may take action. While he agreed that the primary responsibility lay with the LSA, in his view the consequences of that position were not as extreme as Facebook sought to claim. 

 

The Advocate General took a literal and systemic approach to the interpretation of Article 56 (referring also to Recital 124 in the GDPR preamble) to find that the LSA has general competence over cross-border data processing.  Any role for other national supervisory authorities is exceptional [45]-[46].  The fact that Article 56, which sets up the LSA mechanism, is said to operate without prejudice to Article 55, attributing competence to the various national supervisory authorities, does not change this position. Such an interpretation would deprive Article 56 of any meaning [52].  This is incompatible with the importance ascribed to the LSA mechanism by where it is placed: the second provision in the relevant section of the regulation, before all the other general provisions on ‘tasks’ and ‘powers’ in that section. Significantly, Chapter VII (cooperation) refers back to Article 56.

 

In the view of the Advocate General, the GDPR makes it ‘clear that that is meant to be the procedure to be followed when enforcement action against cross-border processing is necessary’ (emphasis in original) [56]. Consequently, the term ‘without prejudice’ does not refer to competence but refers to the fact that ‘all supervisory authorities naturally retain the general powers assigned to them by virtue of Article 55 (and Article 58) of the GDPR’ [57].  The Advocate General therefore confirmed the approach of the EDPB in Opinion 8/2019 which views Article 56(1) as an ‘overriding rule’ and as ‘lex specialis’ taking priority over the general rules of competence in Article 55 in the circumstances specified in Article 56. To take the approach put forward by the Belgian data protection authority would frustrate the purpose of the GDPR as found in recital 10, and return the position to that under the Data Protection Directive.

 

It was also argued that Article 58(5) means that all supervisory authorities must be able to start judicial proceedings against any potential infringement of the data protection rules affecting their territory, irrespective of the (local or cross-border) nature of the processing; the one-stop shop mechanism applies only to administrative action.  The Advocate General criticised this interpretation for, again, taking one provision in isolation and out of context.  Article 58(5) of the GDPR sets out ‘powers that are to be given to all supervisory authorities without exception’ but ‘does not regulate the situations and manner in which that power to bring proceedings is to be exercised’ [65].  The distinction between judicial and administrative proceedings was unjustified in the light of the text and structure of Article 58 as a whole. The interpretation proposed by the Belgian data protection authority ‘would not allow a supervisory authority to (administratively) investigate, prepare, process, and decide, but would allow it instead immediately to bring judicial proceedings before a court’ [71], which is netiher reasonable nor appropriate.

 

The Advocate General then supported his arguments through a teleological and historical interpretation of the GDPR and its emphasis to avoid fragmentation (Recital 9), incoherence and double regulation.  The one stop shop mechanism was the means introduced to achieve this goal.  However, the Advocate General noted that the Commission’s original proposal for a very strict idea of the one stop shop gave rise to discussions with the Council and the Parliament, leading to the introduction of a number of exceptions, including a concern to emphasis the proximity between data subjects and the relevant supervisory authorities. [85] The Advocate General described this process as turning the one stop shop mechanism ‘into a more balanced two-pillar mechanism’  with an enhanced role for the other supervisory authorities [87].

 

The third approach to interpreting the GDPR adopted by the Advocate General is that of a Charter -oriented approach, to ensure maximum protection of Articles 7, 8 and 47 of the EU Charter of Fundamental Rights. The Advocate General criticised what in his view was an assumption that a high level of protection requires a multiplicity of authorities that may enforce compliance with the GDPR.  Rather, a high level of protection requires a coherent framework, as seen in recitals 7, 9 and 10 GDPR, for coherent application of the rules.  In the view of the Advocate General

 

a coherent and uniform level of protection certainly does not preclude that protection from being placed at a high level. It is simply a question of where that uniform yardstick should be set [97].

 

A second issue relating to rights concerns the proximity of the complainant and the relevant national supervisory authority and its impact of the right of that individual to complaint (as in Article 78 GDPR). This is specifically so given that the data subject has the right to choose where to launch legal action under Article 79 between the courts of the Member States where the controller or processor has an establishment or where the data subjects reside.  The position would be slightly more difficult as regards the right to challenge the action (or inaction) of a national supervisory authority: such actions should be brought before the courts of the Member State where the supervisory authority is established. (Article 78 and Recital 143). The Advocate General however envisaged that a complaint could be lodged with the complainant’s home supervisory authority, whether or not that authority is the LSA so safeguarding the right to the data subject to take action in his or her home jurisdiction [104].  The Advocate General accepted that this structure may lead to practical problems though these at the moment lie in the realm of conjecture.

 

The Advocate General finally considered concerns about a risk of under-enforcement.  First and specifically as regards criminal enforcement, the Advocate General commented that while the cooperation and consistency mechanisms

 

are obligatory for the supervisory authorities, they do not apply to other Member States’ authorities, in particular those charged with the task of prosecuting criminal offences (emphasis in original) [110].

 

More generally, and in the view of the Advocate General, more importantly the GDPR does not operate so as to make the LSA the sole enforcer in cross border situations. The system is built on cooperation and consensus (Article 60(1)) and persistent disputes are referred to the EDPB to the extent that ‘the LSA’s position in that regard is no stronger than that of any other authority’ [111]. The GDPR also contains provisions to deal with regulatory inertia. The Advocate General suggests two enforcement routes, though he accepts that both are cumbersome and potentially paper tigers:

 

-          a supervisory authority may request another supervisory authority to provide ‘information and mutual assistance in order to implement and apply the GDPR as provided in Article 60 and a failure of the LSA to respond would give rise  by virtue of Article 61 to a right on the part of the requesting authority to ‘adopt a provisional measure on the territory of its Member State in accordance with Article 55(1)’, triggering the urgent processes under Article 66.

-          Article 64 provides a mechanism whereby matters producing effects in more than one Member State  are brought to the EDPB, though it is not clear what the legal effect of such a decision would be.

 

If under-enforcement turns out to be a real problem, for example where the one stop shop mechanism ‘were to lead to regulatory ‘nests’ for certain operators who, after having effectively chosen their national regulator themselves by accordingly placing their main establishment within the Union, rather than being monitored, they would in fact be shielded from other regulators by a specific LSA’ [124], then the entire system would be ripe for major revision. The GDPR is still in its infancy, however, and it would be a bad idea for the Court to fundamentally alter the GDPR structures without evidence.

 

Thus, the GDPR permits the supervisory authority of a Member State to bring proceedings before a court of that State for an alleged infringement of the GDPR with respect to cross-border data processing, despite not being the LSA, provided that it does so in the situations and according to the procedures set out in the GDPR [140]. The position does not change depending on whether the controller has a secondary establishment in another Member State [143]. Nor does it matter whether the national supervisory authority commences legal proceedings against the controller’s main establishment or against the establishment situated in its own Member State [147]. In this, the Advocate General dismissed an argument based on Article 55(1) that a national supervisory authority can only act within its own state, and therefore only against local establishments; the territorial element relates to the effects of the data processing [152].  By creating a central point for enforcement the LSA mechanism implies that the LSA must be able to take action against actors established other than in its territory [155].  Finally, the Advocate General confirmed that Article 58(5) has direct effect as well as direct applicability.

 

Comment

 

Both sides had claimed victory in this opinion. Facebook emphasises the re-iteration of the LSA mechanism and the Belgian authorities point to the fact that the Advocate General made clear that the LSA is not the sole enforcer in such cases.   If the Court follows its Advocate General, this should give some comfort to those operating in multiple jurisdictions that they will not continue to face the difficulties of multiple and potentially incoherent enforcement found under the Data Protection Directive.  Nonetheless, the result of the GDPR is not a simple, bright-line allocation of jurisdiction to one national supervisory authority.

 

Firstly, there are moreover a number of exceptions to the LSA mechanism, which also reflect the ‘two-pillared’ nature of the enforcement system.  These arise when:

 

-          supervisory authorities act outside the material scope of the GDPR;

-          the processing is necessary for compliance with a legal obligation, in the public interest or in the exercise of official authority;

-          processing is carried out by controllers that have no establishment in the European Union;

-          a national supervisory authority other than the LSA considers that there is an urgent need to act in order to protect the rights and freedoms of data subjects (Art. 66 GDPR); or

-          the LSA decides not to handle the case.

 

Beyond this, however, the Advocate General emphasised the importance of cooperation within the system, implicitly pointing towards the need towards an EU settlement on the question of standards that lies in the shadows of this case (see eg. para 97). An LSA cannot ride roughshod over the views of other relevant national supervisory authorities; this is potentially a prophylactic against the creation of ‘nests’ for privacy averse data controllers. The approach to interpretation, while it allowed the Advocate General to bring through the delicate balance between potentially conflicting concerns, reflects approaches typically adopted in the interpretation of EU law, emphasising the purposive approach.  In any event, the Opinion drew out the existence of possible mechanisms by which the failure of an LSA to act – whether through choice or because of resourcing – could be challenged and decisions of the other national regulatory authorities/EDPB put in place.  In this, the Opinion is a welcome review of the mechanisms in the GDPR, a set of systems which are complex and not necessarily easily understood.

 

In terms of enforcement of the GDPR, it is important to remember that enforcement does not lie in the hands of the national regulatory authorities alone; and the Opinion reminds us of this in terms both of direct enforcement of data subjects’ rights but also in terms of challenging the inaction of a national supervisory authority. Here the choice of jurisdiction is not determined by the LSA mechanism.  Strategic litigation, including some forum shopping, may still be possible.

 

Given the starting point for this case was the use of cookies the question of the relationship between the e-Privacy rules and the GDPR arises.  The Advocate General confirmed that more than one legislative instrument could apply. This then raises the question of jurisdiction and whether such overlap might undermine the one stop shop – though this difference might be addressed through the revision of the e-Privacy regime (a process which has been fraught with delay).  A similar question might arise in relation to criminal law enforcement.

 

Where this leaves Facebook and the Belgian authorities is not yet clear. This is of course an opinion, not the judgment of the Court.  While the Court usually follows the opinion of its Advocate General it is not obliged so to do.  Moreover, action against the Irish DPC, the LSA as regards Facebook, has settled a judicial review action brought by Max Schrems in respect of the DPC’s failure to stop data transfers to the US. While this is action, it does not cover exactly the same issues brought by the Belgian authorities.

 

 

Tuesday, 19 January 2021

Asylum Seekers subject to ‘Dublin procedures’ have a right to work under EU Law

 



Liam Thornton, Associate Professor, UCD Law School*

 *Reblogged with permission from Liam Thornton’s blog.


The Court of Justice of the European Union last week held in the K.S decision that Ireland’s 2018 Reception Regulations  do not comply with the 2013 EU Reception Conditions Directive. Persons subject to a potential transfer under the Dublin system have a right to enter the labour market in Ireland where:

-          No decision on their substantive protection claim (not the Dublin transfer issue) has issued within nine months. As the person is subject to a Dublin transfer process, and a substantive protection claim is not being progressed, this iu essence provides a right to enter the labour market within nine months. This right only ceases when the transfer to the EU member state responsible for determining the protection application occurs.

-          The person is not responsible for the delay in progressing the Dublin procedures/transfer.

-          Taking legal action to challenge a Dublin transfer decision is not a delay attributable to the person challenging the Dublin transfer decision; this is simply an exercise of legal rights explicitly provided to protection applicants under the Dublin III Regulation.

Background

Irish law on right to enter the labour market for protection seekers, the 2018 Reception Regulations, sought to create two categories of protection seeker. First, a person for whom a substantive decision on their protection claim would be issued, and who was entitled to enter the labour market (after 9 months if no decision was issued by then). Second, a person who is potentially subject to transfer to another EU Member State under the Dublin Regulation. This person would be entitled to all reception rights, excluding the right to seek to enter the labour market.

The Irish High Court was of the view that the denial of right to enter the labour market for protection applicants subject to a potential Dublin removal was permitted under the 2013 Directive. Mr Justice Humphreys also stated that the applicants were the ones responsible for delay in processing their Dublin transfer, as they had taken court action to prevent transfer to another EU Member State. However, the judge did make a preliminary reference to the Court of Justice of the European Union to seek clarification as to whether his interpretation of law was correct. In the meantime, Judge Humphreys invited the International Protection Appeals Tribunal to follow his interpretation.

Tribunal Member Cindy Carroll in the International Protection Appeals Tribunal declined to follow the approach of Mr Justice Humphreys and stated that EU law was relatively clear on the issue: those subject to a potential Dublin transfer had an entitlement to enter the labour market, once meeting all other conditions. The context to both cases and my analysis of how the Court of Justice would rule can be found in my May 2020 article in European Public Law here (open access version here).

The 2013 Reception Conditions Directive provides that a protection seeker can seek to enter employment, where a first instance decision on their protection claim has not been rendered within nine months. In 2018, Ireland opted in to this Directive, providing (in essence) the first time that protection seekers could seek and enter employment in Ireland. However, the Irish transposition Regulations, purporting to give effect to the Reception Directive, did not grant persons subject to a potential Dublin transfer an entitlement to seek and enter employment.

Advocate General de la Tour, who issued his opinion on the case in September 2020, stated that protection seekers subject to a potential Dublin transfer are entitled to access the labour market, and Ireland could not argue that a protection seeker was ‘frustrating’ their removal to another EU Member State by legally challenging the transfer decision. This is essence was the same approach adopted by the International Protection Appeals Tribunal.

The Court of Justice Decision

The Court of Justice of the European Union has held that there is only one type of protection applicant in European Union law, who is entitled to all reception rights and to access the labour market under the Reception Directive 2013. This is clear from long standing case law of the Court (see Cimade). This interpretation is bolstered by the recitals to the Reception Conditions Directive which emphasise the importance of dignity and self-sufficiency to all requesting international protection, regardless of whether it is in the Dublin process or the substantive determination of the protection claim process.  While the access to the labour market is not included within the 2013 Reception Directive definition of ‘material reception conditions’, access to the labour market is a broad ‘reception right’ referred to elsewhere in the Directive.

The Court of Justice rejected the attempt by the Irish High Court to interpret the Reception Directive as permitting the denial of freedom to enter the labour market to protection applicants who did not lodge their protection claim in the first EU Member State of entry, as

…[N]o provision of the Dublin III Regulation requires an applicant for international protection to lodge his or her application with the Member State of first entry

A protection applicant who appeals a first instance decision that s/he be removed from say Ireland is not responsible for delays in courts determining the matter. The High Court had sought to fix all persons challenging a Dublin transfer decision as ‘abusing rights’ and should not be entitled to access the labour market. As the Court of Justice noted, the Dublin III Regulation explicitly provides a right for such an applicant to challenge a Dublin Transfer decision. The Court of Justice states:

….the EU legislature did not intend that judicial protection enjoyment by applicants…should be sacrificed to the requirement of expedition.

The Court of Justice has made clear that where a protection applicant subject to a Dublin transfer decision is appealing such a decision, s/he continues to have an entitlement to work.

In essence, the Court of Justice has upheld the well thought out and expert approach that the International Protection Appeals Tribunal would have adopted, but for the decision of the Irish High Court in K. S. This Court of Justice decision is in no way surprising, and even the most cursory engagement with past Court of Justice case law on reception conditions and the Dublin Regulation would have led a decision maker/judge to the same conclusion provided by the Court. Another feature of note in this case (not solely applicable to access to the labour market issues), is the decision of the Court of Justice, that when interpreting Irish asylum and protection law that is based on Ireland’s opt-in to EU asylum and protection directives, decision makers and judges, where appropriate, may seek legal clarification by reference to Directives that Ireland has not opted into.

What happens now?

The 2018 Regulations clearly need to be amended so as to confirm with Ireland’s freely accepted obligations under European Union law. However, the decision of the CJEU is so clear, that in processing permissions to enter the labour market by protection applicants (subject to Dublin procedures), decision makers in INIS, Department of Justice must ignore the 2018 Regulations and apply EU law directly. (The labour market access permission system remains with Justice, rather than with Children, Disability, Integration and Equality). Rather than waiting for proceedings to conclude in the High Court or the International Protection Appeals Tribunal, this right is effective immediately. It therefore may be appropriate for a fresh labour market access permission to be requested by protection applicants whose rights are now recognized by this ruling, alerting decision makers to their obligations under EU law due to this decision.

More broadly, this decision may have impacts well beyond Ireland, as it clarifies (yet again!) that all protection applicants enjoy all reception rights under the Reception Conditions Directive 2013.

**Note: I am not a legal practitioner and am unable to offer individual advice to people who may be impacted by this decision, please ensure you contact your legal representative.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: RTE.ie