Fact-checking Nigel Farage: Will the EU’s asylum policies admit half a million terrorists?

Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party, argued that the EU’s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ‘Islamic State’ (Daesh) terrorists to send such killers to the EU via means of smuggling routes, and demanded that David Cameron veto the EU plans.

Do these claims make sense? Not in the slightest. First of all, the EU policy, as I discussed last week, is essentially to reaffirm the status quo.  The current limited maritime surveillance missions will be expanded, although it is not clear if they will amount to fully-fledged rescue missions. This probably means that more people will reach the EU, but this will only be for the reason that fewer of them will drown en route.

Once in the EU, they will be able to make claims for asylum – but that is no different to the current law. The EU’s plan does not involve any changes to EU asylum legislation; it simply calls on Member States to apply those laws.  The EU did commit to some form of direct resettlement of refugees from third countries – but EU leaders could not even agree on the tiny number of 5,000 refugees to be settled next year.

Farage would prefer a policy of returning people to the countries they left. In fact, asylum-seekers can already be returned to their countries of origin or transit, if it is clear when examining their application that those countries are safe. But in accordance with the UN (Geneva) Refugee Convention – which UKIP purports to support – they cannot be returned to an unsafe country. Libya, for instance, is clearly unsafe: there are widespread whippings, beatings, electric shocks and hangings of migrants. In any event, asylum-seekers who prove to be terrorists must be denied refugee status or other forms of protection status, as the CJEU has confirmed.

Farage demands that David Cameron veto the EU’s plans, but that simply isn’t possible, because the UK has an opt-out from EU asylum and immigration law. We can choose not to participate, and indeed the UK has already chosen not to participate in any of the second phase EU asylum measures, except for those which transfer asylum-seekers from the UK to other Member States. We can choose not to participate in any future measures too – although as noted already, the EU is not even planning any new asylum laws in response to the deaths. Since the UK has an opt-out, it does not have a veto. But in fact, no Member State has a veto on EU asylum policy. Most EU immigration and asylum law has in fact been subject to qualified majority voting since 2005. (Laws on legal migration were subject to unanimous voting until 2009; but the EU’s plan does not address legal migration issues).

As regards border control operations in particular, the UK doesn’t participate fully in the EU’s border control agency, Frontex. In fact, according to the EU Court of Justice, legally we can’t participate in Frontex, since we don’t participate in the full Schengen system of abolishing internal border controls. Instead we have an informal arrangement, for instance supplying some hardware to assist with the expanded surveillance operations. But even that sort of informal arrangement is under challenge in a case pending before the CJEU.

In some ways, Farage’s own policy runs its own risks. He has argued that Christians in particular should be admitted as refugees into the EU. As I have pointed out, this again violates the Geneva Convention that UKIP purport to support, since that Convention requires non-discriminatory application on grounds of religion, and it would also be unfeasible to distinguish between Christians and Muslims during rescue at sea. But if Christians are being resettled directly from areas afflicted by Daesh, the UKIP policy would provide the perfect opportunity for ISIS fighters to pretend to be Christian as a way to ensure entry into the EU.

As an assessment of terrorist methodology, Farage’s claims are also suspect. The bulk of Daesh atrocities have not been carried out in the EU, but in Syria and Iraq, as well as by affiliated groups in Libya and Nigeria.  Most of the people who have been linked to Daesh in Europe have been EU citizens who travelled to parts of the Middle East to participate in atrocities. Any migrants who were rescued from boats or who were resettled directly from conflict areas would presumably be disarmed of any weapons they were carrying en route. Of course, they might obtain weapons once they reached the EU; but since Farage is an outspoken critic of gun control, he is part of the problem, not of the solution, to that issue. As for the figure of half a million Daesh fighters coming to the EU, that's 20 or 30 times the CIA's estimate of the total number of all Daesh fighters.

Finally, Farage argues that the EU has cynically used the migrant deaths crisis to develop a comprehensive immigration and asylum policy. If only it had: in fact, the EU’s response is largely marginal and ineffectual. Indeed, Farage is throwing some huge stones inside this glass house. It is Farage who is trying to ‘weaponise’ the tragic deaths of hundreds of people, taking this opportunity to make an inaccurate and incoherent rant in the midst of an election campaign.

Who should get the vote in a Brexit referendum?

 

Steve Peers

“Nasty Yes won the referendum yesterday”

That was my initial response to the Brexit referendum of 1975, written precociously in my childhood diary. I rather suspect that a hundred or so miles away, in a rather posher diary, and in an infinitely posher school, David Cameron was writing exactly the same words.

Of course, we had different motivations for this youthful flirtation with the Dark Side. In my case, I was simply copying my parents’ left-wing opposition to the EU, which remained unabated even though my dad had been one of the very first British citizens to (briefly) exercise the free movement of workers to another Member State. (I remained in the UK with my mother, who was a third-country national; it’s lucky we didn’t end up as an EU law exam question).

On the other hand, David Cameron probably didn’t care much about the referendum at all, but felt he needed to write those (hypothetical) words in his diary so that right-wing Eurosceptic bullies would finally leave him alone. They didn’t.

Forty years later, it looks like we may have another Brexit referendum in the near future, depending (as things stand) upon the very uncertain result (and aftermath) of the general election due in May. I have already blogged here about the reasons why advocates of the EU should support such a referendum. My topic today is who should get the vote in a Brexit referendum; I suspect many on the pro-EU side won’t like my argument on this issue much either. But like my case for a referendum, I believe that the case I make here is a principled one – and ultimately, the pro-EU case can only legitimately be made upon principled foundations.

Although it’s not yet certain that a Brexit referendum is imminent, I am prompted to write now on the issue of the franchise due to comments on the weekend by Nigel Farage, the leader of the UK Independence Party, who said that only British citizens should get the vote in the referendum. It wasn’t clear whether he thought British expatriates in the EU (or elsewhere) should also get it.

The starting point should be the franchise rules that already exist, although they could be changed for a referendum (as they were for the Scottish independence referendum last year). Among the existing rules, it makes sense to focus on those for UK-wide elections, rather than those for local government or the devolved bodies in Scotland, Wales and Northern Ireland, since a Brexit vote would be held nationwide.

There are two nationwide templates to choose from. In general elections, all British, Irish and Commonwealth citizens can vote, as can any British expatriates if they have been away from the country (whether in the EU or elsewhere) for less than 15 years. In European Parliament elections, citizens of all European Union countries can vote.  (For more details, see here).

At first sight, it might seem attractive to argue (as many on the pro-EU side do) that all EU citizens in the UK should get the vote. The departure of the UK from the EU would certainly affect them fundamentally. Even though UKIP’s current official position is that all those legally present should get to stay, there’s no guarantee that this protection would exist in practice after Brexit. And giving all EU citizens the vote is not unprecedented for nationwide elections, as they have the vote in European Parliament elections. (Indeed, they have the vote in local elections too).

However, this argument should be rejected, for two reasons. First of all, European Parliament elections are different in principle from other nationwide votes. They determine who will be the UK’s Members of the European Parliament, but that is a multinational body with a role in EU-wide decision-making. Of course EU laws have an impact on the UK, but the European Parliament is not the place where decisions distinct to the UK as a separate state get made. In contrast, such decisions get made via means of direct democracy, in nationwide referendums, and more frequently via means of indirect democracy, via means of our vote for the national parliament. So it makes more sense for all votes on the future of the UK as a separate state to be subject to the same franchise rules. In fact, this is the practice: the Westminster voting rules (leaving aside members of the House of Lords) were applied to the 2011 referendum on a change to the electoral system, and in the recent private members’ bills (supported by the Conservative party) providing for a 2017 Brexit referendum.

The second argument is one of legitimacy. If the pro-EU side narrowly wins a Brexit referendum in which all EU citizens are allowed to vote, Eurosceptics will endlessly claim that the election was ‘stolen’ from them. I can already anticipate the reaction to this point: Eurosceptics will demand another referendum anyway. The historical parallels are legion: Quebec separatists demanded another referendum after they lost the first one in 1980; Scottish nationalists are already agitating for a second independence referendum; and the Eurosceptics of the 1970s took over the Labour party shortly afterward.

But the point is not to try to stop hardcore Eurosceptics arguing for another Brexit referendum. They are bound to do that. The point is to stop them winning the argument for another referendum in public opinion more broadly. The pro-EU side should aim to win that argument fairly, by ensuring that the upcoming Brexit referendum (if there is one) is, as far as possible, beyond reproach.  (Again, of course hardcore Eurosceptics are bound to reproach it if they lose; the battleground is mainstream public opinion). The result of a Brexit referendum is always likely to be seen as a little bit dubious in mainstream public opinion if it depends on the votes of people who don’t usually have the vote in general elections, given that EU citizens can only vote in EP elections in the first place because of EU law. A good historical parallel would be the Canadian election of 1917, which was won by a pro-conscription party in the midst of the First World War by disenfranchising conscientious objectors and enfranchising women, but only if they were related to servicemen. For good reason, this victory was regarded as illegitimate by those opposing conscription.

Furthermore it’s not impossible to convince the broader public that a fresh referendum is unnecessary, where there’s a good case that the earlier one was clearly legitimate. After all, while Quebec separatists did get to hold another referendum in 1995, they have not yet secured another one despite their very narrow loss on that occasion. The Eurosceptic takeover of the Labour party proved shortlived, since it contributed to splitting the party and its biggest electoral defeat since the 1930s.

Should the franchise be changed in some other way for a Brexit referendum? No, for the same reason: any special rule would look like an attempt to fix the result, possibly in a Eurosceptic direction. So the franchise should not be narrowed to British citizens only: Irish and Commonwealth citizens have the vote in general elections, so should have the vote for the Brexit referendum too. (Remember that Cyprus and Malta are in both the EU and the Commonwealth). So should British citizens living abroad, whether they are living in the EU or not. It can’t be assumed that they are all pro-EU voters, as my dad’s example shows. Some of them may even have left the UK because of a belief that there were too many immigrants there – displaying an obvious lack of appreciation of irony.

What if the general election mandate is changed anyway? There may indeed be a case to be made that only British citizens should vote in general elections. However, for good reasons, there is a tradition that changes to the franchise need broad support across the political spectrum, including the main opposition party. And it would clearly be obnoxious to shove through a change to the franchise in the last few weeks before a general election. If there is such broad support for changing the franchise after the next general election, the first time to apply the new rules should be the subsequent general election, not any Brexit referendum that might take place.

My argument above will disappoint those who believe strongly that EU citizens in the UK should have the vote on a matter that affects them so significantly. But the case against letting them vote in a Brexit referendum is also tactical: the complaints against it are more likely to lead to a further referendum in the near future, or even to increase the votes for the anti-EU side. Yet even if the net result of letting all EU citizens vote would be to increase the pro-EU vote, it would be wrong to give them the vote in principle. And if EU citizens are particularly keen to vote, they could always consider obtaining UK citizenship.

Postscript (10 May 2015):

The above analysis obviously becomes more relevant after the results of the UK general election, given that a referendum on EU membership now seems certain to happen in the near future. That doesn't give me any reason to change my view, but it's a good occasion to make two further points.

First of all, I would reiterate the case against changing the voting franchise at all for the EU referendum, no matter what the changes concern. So the UKIP argument that 'only UK citizens should have the vote' should also be rejected, because it is equally wrong in principle. If Commonwealth citizens and Irish citizens can normally vote on the key issues facing this country in general elections, why can they not vote on the question of EU membership? Excluding them would appear to be an attempt to bias the vote toward the anti-EU side. Similarly, while I am in favour of extending the vote to 16 and 17-year-olds, the EU referendum would be the wrong time to change the rules. Again, it would appear to be an attempt to fix the results, particularly in light of the bizarre UKIP argument that young minds have been polluted by EU colouring books featuring evil Euro-cows.

Secondly, I think there's a better way to put my argument of principle against allowing all EU citizens to vote in the EU referendum. The whole point of the referendum is to decide on the polity (ie the political identity) of the UK in the first place. Should we remain part of the EU or not? Allowing all EU citizens in the UK to participate in that decision would effectively mean that they are judges in their own case.

I can understand the concerns of EU citizens in the UK that they ought to have a vote in an issue which will affect them so directly.  One solution is to obtain UK citizenship. For those unwilling or unable to do that, they have every right to participate in the broader public debate to convince voters that EU membership makes an important contribution to the UK's economic prosperity, environmental protection. social justice, animal welfare and cultural identity - and in particular that migrants from the EU make a huge contribution to Britain's economic and social success.  

Second postscript (25 May 2015)

Press reports indicate that the UK referendum on EU membership will indeed essentially follow the general election franchise, and not extend the vote to citizens of other EU countries (besides Ireland, Cyprus and Malta) living in the UK. Some have questioned the legality of this, but there seems little ground to challenge it. The EU Treaties require Member States to give all EU citizens the vote in local and European Parliament elections, but there is no reference to other votes. Since the Treaties include the power (never used) to widen EU citizens' rights beyond those listed, it must therefore be presumed that the Treaty drafters did not intend to require Member States to extend voting rights in referenda (or in any other elections) in the absence of a decision to lengthen the list of rights attached to EU citizenship.  As for the ECHR, the First Protocol to the Convention requires States to hold 'free elections', but on the face of it this does not apply to referenda, and the case law does not suggest that voting must be extended to non-nationals in any event.     


Barnard & Peers: chapter 2

Photo credit: www.jonworth.eu
Meme: Steve Peers
Jumper design: Nigel Farage :)

Does EU law prohibit condoning discrimination against breastfeeding women?

Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party (UKIP) stated that while he had no personal objection to women breastfeeding in public, it should be for businesses to decide on their own rules. Perhaps they could ask breastfeeding women to “sit in a corner”. In any event, it shouldn’t be hard to breastfeed a baby in a way that wasn’t “openly ostentatious”.

He was referring to a case in which a restaurant asked a woman to place a napkin over her baby. Another café has recently suggested that women should breastfeed in the disabled toilets.

There’s an interesting legal dimension to this issue. First of all, is it legal to discriminate against breastfeeding women? Secondly, to what extent is it illegal even to encourage such discrimination, or at least to condone it? The latter is a fair description of Farage’s comments.

Discrimination against breastfeeding women  

As some press articles have pointed out, the Equality Act 2010 makes it illegal in the UK to discriminate against breastfeeding women in employment or public places like restaurants, subject to very limited exceptions. There’s an excellent summary of the law here, on the Maternity Action website. So businesses can’t make up their own rules on this issue, as Farage seemed to assume – although perhaps his point was that the law ought to change.

What about EU law? There are separate Directives concerning sex discrimination in employment, and sex discrimination as regards goods and services offered to the public, which would apply to restaurants. Neither of them explicitly bans discrimination as regards breastfeeding. But the Court of Justice of the European Union (CJEU) has long ruled that discrimination against pregnant women is discrimination on grounds of sex. Its reasoning is that even though not all women are, have been, or will become pregnant, only women can be pregnant, and so discrimination on grounds of pregnancy is therefore direct sex discrimination. Logically this reasoning applies by analogy to breastfeeding: even though not all women will become mothers, or breastfeed if they do, only women can breastfeed.

If this is correct, there’s a ban on discrimination against breastfeeding mothers right across the EU, and the UK’s law simply reflects its EU obligations. Of course, leaving the EU (UKIP’s key policy) would mean that the UK no longer had such obligations.

Endorsing or condoning discrimination

Of course, Nigel Farage didn’t himself insist that a breastfeeding mother had to cover herself with a napkin in a restaurant, or actually make a new mum sit in the corner. He merely said that he could accept it if businesses chose to do this – even though (which he didn’t mention) this would be illegal.

There’s an interesting line of case law of the CJEU on the circumstances in which publicly supporting discrimination gives rise to legal liability. First of all, in AGM COS.MET, a Finnish government official disparaged the safety of Italian lifts. Sales of the lifts promptly plummeted (as it were), and the manufacturer sued the Finnish government for damages. The CJEU ruled that the State would be liable for its official’s comments if, on the facts of the case, those comments were attributable to the State. One factor to consider was whether the State distanced itself from those comments. On this point, it’s interesting to note that David Cameron’s office immediately denounced Farage’s remarks yesterday. This is probably not an attempt to reduce the government’s legal liability, but rather a bid to hoover up the female votes that Farage apparently doesn’t really want that much. But the effect is the same.

So can there be liability for discriminatory comments by private individuals? In Feryn, the CJEU said that a business could be liable for stating publicly that it would not hire ethnic minorities, due to objections by its customers. That’s broadly similar to Farage’s point that other restaurant customers might be ‘embarrassed’ by ‘ostentatious’ breastfeeding. Perhaps it would distract their attention too much from gazing at Page 3 of The Sun.

Later on, in the Associatie Accept case, the CJEU ruled that a homophobic rant by the part-owner of a football club could give rise to liability for that club, if there was a perception that he had a significant influence on that club's policies. While Nigel Farage certainly seems to influence government policy generally, in this particular case David Cameron’s response to Farage's comments yesterday would rule that out.

So as things stand, Nigel Farage’s comments would not give rise to personal or state liability – although lawsuits against the restaurants that discriminate against breastfeeding women would be a different matter. And things would also surely change if Farage were the Deputy Prime Minister – although in that case, the UK’s EU membership and the Equality Act would likely not last very long in any event.


Cartoon: Los Angeles Times

Barnard & Peers: chapter 20