The CJEU Gets Brexit Done: New Judgment on Extradition from Ireland to the UK after Brexit

 

 

Professor Steve Peers, University of Essex

 

The CJEU this week delivered its first judgment on the impact of Brexit (as far as the EU side is concerned) since the UK has left the EU – swiftly following last week’s Advocate General’s opinion (which I discussed here; I’ve adapted some of that blog post in this one) in response to fast tracked questions referred from the Irish Supreme Court (on appeal from the Irish High Court’s judgment).

 

Background

The Court’s judgment concerns extradition from Ireland to the UK under both the withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The former treaty provides that the internal EU legal framework for simplified extradition – the European Arrest Warrant (EAW) law – still applied between the UK and EU during the transition period set out in that agreement, which lasted from 1 February 2020 to the end of that year. (As an exception, three Member States refused to hand over their own citizens, but Ireland was not one of them). 

After that point, the separation provisions of the withdrawal agreement applied: the EAW law still applies if a fugitive was arrested on the basis of that law before the end of the transition period. If the EAW was issued before that date, but the fugitive was not arrested in time on the basis of the EAW law, the subsequent TCA provides that its extradition rules – which are similar, but not identical, to the EAW law – apply. (The TCA rules also apply to extradition requests first sent after the transition period ended, and the judgment in this case is also relevant by analogy to those requests too).  

The case is about two fugitives arrested in Ireland on the basis of British EAWs, who challenged their extradition to the UK. Both EAWs were issued during the transition period, but one EAW led to an arrest before the end of that period, hence the separation provisions kicked in, and the EAW law applies fully to the case. In the other case, the arrest took place after the end of this period, and so the TCA rules apply. The fugitive in the former case was already convicted and sentenced to eight years in prison, whereas the fugitive in the latter case was subject to a pending prosecution for fourteen alleged criminal offences.

Both two fugitives argued that they could not be subject to these rules in the two treaties, because even though Ireland agreed to both treaties in the EU Council, that country did not exercise a formal opt in as set out in the Justice and Home Affairs protocol relating to Ireland (and previously also applying to the UK) attached to the EU Treaties. If they had been successful, their challenge would have complicated not only extradition but other forms of criminal law cooperation between Ireland and the UK set out in the withdrawal agreement and TCA, in both directions (ie Irish requests to the UK too). It could also have impacted on criminal law cooperation between the UK and Denmark, which has a similar (but not identical) opt in protocol. (Criminal law cooperation would not entirely have ended, however, because there are other international treaties that would have applied as a default, although they do not simplify cooperation as much as the treaties with the EU do).

Judgment of the Court

The judgment first examines the scope of Article 50 TEU, noting that it has the twin objectives of ‘first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion’ (referring to the Wightman judgment, discussed here). The Court continued:

50      It is in order to be able to attain that objective effectively that Article 50(2) TEU confers on the European Union alone competence to negotiate and conclude an agreement laying down the detailed rules for withdrawal, since that agreement is intended to regulate, in all the areas covered by the Treaties, all questions relating to the separation between the European Union and the State withdrawing from it.

51      It was therefore pursuant to that competence that the European Union was able to negotiate and conclude the Withdrawal Agreement, which provides, inter alia, in relations with the United Kingdom, for the continued application of a significant part of the EU acquis, in order to reduce uncertainty and, to the extent possible, minimise disruption caused by the fact that, on the date of withdrawal, the Treaties cease to apply to the departing State, as is apparent from point 4 of the guidelines adopted by the European Council at its special meeting of 29 April 2017 following the United Kingdom’s notification under Article 50 TEU.

The Court also noted that there may be a contradiction between the procedure for the EU Council to conclude an international treaty in other circumstances – which may entail a unanimous vote – and a withdrawal agreement, where Article 50 TEU provides for a qualified majority vote. In the Court’s view, it followed that:

54      Since the withdrawal agreement is intended to cover all of the fields and issues referred to in paragraph 50 above, and since it is not possible to add to Article 50(2) TEU legal bases laying down procedures which are incompatible with the procedure laid down in paragraphs 2 and 4 of that article (see, to that effect, judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C‑180/20, EU:C:2021:658, paragraph 34 and the case-law cited), it must be concluded that only Article 50 TEU, as an autonomous legal basis independent of any other legal basis set out in the treaties, can ensure that all of the fields falling within the scope of those treaties are treated consistently in the Withdrawal Agreement, thus enabling the withdrawal to take place in an orderly manner.

Furthermore, there would be ‘uncertainty’ because Ireland, having agreed to participate in the EAW system with the UK, ‘would be treated as if it had never participated in it’. This outcome ‘would be difficult to reconcile with the objective of reducing uncertainty and limiting disruption so as to enable an orderly withdrawal’.

As for the TCA, which was concluded on the basis of Article 217 TFEU (the power for the EU to conclude association agreements), the Court recalled its case law that Article 217 ‘empowers the European Union to guarantee commitments towards third countries in all the fields covered by the TFEU’. It followed that:

58      Agreements concluded on the basis of that provision may therefore contain rules concerning all the fields falling within the competence of the European Union. Given that, under Article 4(2)(j) TFEU, the European Union has shared competence as regards Title V of Part Three of the TFEU [ie EU competence as regards justice and home affairs], measures falling within that area of competence may be included in an association agreement based on Article 217 TFEU, such as the TCA.

Did the inclusion of extradition issues within the TCA require an additional legal basis relating to criminal law cooperation, besides that of an association agreement? While the case law states that the competence over association agreements can be used ‘only on condition that that measure relates to a specific area of EU competence and is also founded on the legal basis corresponding to that area’, that case law ‘concerned not the conclusion of an association agreement but the adoption of a decision on the position to be taken, on behalf of the European Union, within a body set up by such an agreement’; in such circumstances, where a decision could be adopted ‘by qualified majority without the participation of the European Parliament… the addition of a specific legal basis was necessary in order to ensure that any more stringent procedural requirements specific to the area concerned would not be circumvented’. This is distinct from an association agreement as such:

62      By contrast, since the conclusion of an agreement such as the TCA does not relate to a single specific area of action but, on the contrary, a wide range of areas of EU competence with a view to achieving an Association between the European Union and a third State, and the conclusion of such an agreement requires, in any event – in accordance with point (a)(i) of the second subparagraph of Article 218(6) TFEU and the first sentence of the second subparagraph of Article 218(8) TFEU – a unanimous vote and the consent of the European Parliament, there is no risk, as regards the conclusion of such an agreement, of more stringent procedural requirements being circumvented.

Nor did the prior case law on using multiple legal bases where a measure pursues multiple objectives apply, in the Court’s view. The Court recalled its case law taking a broad view of the scope of the EU’s development policy powers, and extended that approach to cover association agreements:

65      Those considerations also apply mutatis mutandis to association agreements whose objectives are designed in a broad manner, in the sense that the measures required in order to pursue those objectives concern a wide range of areas of EU competence.

66      That is precisely the case with regard to the TCA, since, as the Council submitted in its observations, in order to ensure an appropriate balance of rights and obligations between the parties to the agreement and to secure the unity of the 27 Member States, that agreement had to have a sufficiently wide scope.

67      Accordingly, in view of the wide scope of the TCA, the context of its adoption and the unequivocal declarations made by all the institutions and Member States involved throughout the negotiations on the withdrawal of the United Kingdom from the European Union, the inclusion in that agreement, alongside rules and measures falling within many other areas of EU law, of provisions falling within Title V of Part Three of the TFEU forms part of the general objective of that agreement, which is to establish the basis for a broad relationship between the Parties, within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties’ autonomy and sovereignty.

68      The surrender mechanism established by the TCA contributes to the pursuit of that objective, the Parties having indicated, in recital 23 thereof, that their cooperation relating to, inter alia, the investigation, detection and prosecution of criminal offences and the execution of criminal penalties would enable the security of the United Kingdom and the European Union to be strengthened. It follows that the TCA cannot be regarded as pursuing a number of objectives or as having several components, within the meaning of the case-law referred to in paragraph 63 above.

 

Comments

First of all, the Court’s approach to the scope of Article 50 is a logical application of its prior ruling that the purpose of Article 50 is partly to provide for an ‘orderly withdrawal’, as the Treaties cease to apply to the withdrawing State (note that the cessation of the Treaties to that country is not just an assertion in European Council guidelines, as the Court seems to imply, but is set out in Article 50 itself). This logically entails that the withdrawal agreement has a broad scope, covering ‘all the areas covered by the Treaties’ – because the withdrawal may raise issues as regards ending membership in any of those areas. The judgment implicitly confirms competence to conclude the transition period (‘the continued application of a significant part of the EU acquis’), also referring to ‘all questions relating to the separation’, in the context of ‘reduc[ing] uncertainty and, to the extent possible, minimis[ing] disruption’ (emphasis added). 

Although there is no reference to the potentially permanent system set up by the Northern Ireland protocol – which goes beyond purely transitional or ‘winding up’ rules – the Court’s judgment does point toward that direction, notably the reference to applying some EU law and to ‘all questions’ concerning withdrawal.

Secondly, as for association agreements such as the TCA, the judgment builds upon prior case law, and reflects the requirement for unanimity of Member States in the Council to conclude them – which is an even stronger guarantee for Member States than as regards development policy treaties (which can be concluded by a qualified majority in the Council). It appears, however, that the specific provisions in an association agreement should be linked to the objective of that particular agreement – although note that the Court’s description of the broad general objective of the TCA is not a frolic by the judges, but comes from the purpose of the treaty as agreed by the parties (see Article 1 of the TCA), which was quoted earlier in the judgment.

Finally, it is notable that while the Court confirms that the withdrawal agreement had to be concluded by the EU without participation of the Member States (para 50: ‘Article 50(2) TEU confers on the European Union alone competence to…’ – emphasis added), the Court does not comment on the fact that – unusually for association agreements – the TCA was also concluded by the EU without the Member States also becoming parties alongside it. However, the overall tenor of the judgment seems favourable to the EU only being a party to this agreement too (see the Council legal service opinion on this point). Given the Court’s explicit reference to the shared competence of the EU over justice and home affairs, it might reasonably be inferred from this judgment that, as the Council legal service argued, the EU alone may conclude association agreements when they include provisions on shared competence – or the Council may instead to conclude them alongside the Member States in such cases. 

Of course, the EU and the UK continue to argue about the interpretation, application and revision of the Northern Ireland protocol to the withdrawal agreement. Nevertheless, the Court’s firm conclusion that the EU had extensive powers to conclude the two key treaties relating to Brexit should address most or all complications that some had argued limited the powers of the EU to conclude those treaties. In that sense, at least as far as the EU is concerned, the Court of Justice has Got Brexit Done.

 

 

Barnard & Peers: chapter 26

JHA4: chapter II:2, chapter II:3

Photo credit: Jimmy Harris, via Wikimedia commons

The considerable contribution of British lawyers to EU (migration) law

 

Kees Groenendijk, Professor Emeritus, Radboud University Nijmegen, Netherlands.

The final sentence of press release 10/20 on the consequences of the UK’s withdrawal from the EU for the Court of Justice reads: “The Court of Justice pays tribute to the major contribution of all its former British members to European integration in general and to the case-law of the Court of Justice and the General Court in particular.” After all dramatic statements on the behaviour of British politicians during the 47 years the United Kingdom was a Member State of the EEC and the EU, it may be right to take a minute to consider the British contribution to EU law, and EU migration and free movement law in particular.

Together with their Irish colleagues, the five British judges and the five British advocates-general who were members of the Court since 1973 with their experience as practising common law lawyers unmistakably contributed to the gradual development of that Court, modelled in the 1957 Treaty of Rome after the French Conseil d’Etat, towards a more open and dynamic court. The President of the Court in his speech at the farewell ceremony for the last British judge praised the British members for their pragmatism, common sense and their inimitable sense of humour. He also recalled that the Court only after the arrival of the British and Irish judges started to cite previous case-law in its judgments “because such citations did not necessarily form part of the legal traditions of the six original Member States” – though without adopting a strict rule of stare decisis.

The British judges and advocates-general

Francis Jacobs, the longest serving advocate-general (1988-2006), in his conclusions frequently and ardently pleaded for the protection of human rights and of individual rights in Community law, even if his pleas were not always immediately accepted by the Court (Fordham I.L.J (29) 2005, p. 690-715). His handbooks contributed to Community law being taken serious in the UK and elsewhere inside and outside Europe – among others The European Convention on Human Rights (Oxford UP 1975), The Court of Justice of the European Communities (Sweet & Maxwell 1977) and The Sovereignty of Law: the European Way (Cambridge UP 2007).

The first British judge, John Mackenzie Stuart, born, advocate and judge in Scotland, served 16 years in Luxembourg. As President of the Court he stimulate the establishment of the General Court, to which part of the Court of Justice’s tasks were transferred. His successor, Gordon Slynn, previously served seven years as Advocate-General. Judge Slynn’s successor David Edward, the second Scottish judge, at the occasion of the farewell of his successor wrote an interesting and topical essay entitled “EU and the Separation of Member States” on separatist [secessionist?] movements in Catalonia, Scotland and Flanders (Fordham I.L.J. (36) 2012, p. 1-18).

The penultimate British judge, Konrad Schiemann, was born in 1937 in Berlin. He survived the RAF bombardments on that city. Shortly after the War he migrated as an orphan to family in London. His colleagues at the Court of Appeal at his appointment in the Court in 2004 asked him what for heaven’s sake he was going to do in Luxembourg. Possibly the thrust of his answer was given in a speech in 2012 under the title The EU as a Source of Inspiration: in 1957, the year the EEC-Treaty was signed and twelve years after the end of the Second World War, displaced persons were still living in camps. The last DP camp in Western Europe closed in 1959. Judge Schiemann was aware of the EU as a guarantee against the human misery and disruption of war.

Among lawyers on the continent the last British A-G, Eleanor Sharpston, is known for her original and lucid conclusions. Her conclusion in the Vethanayagam case (C-680/17) case clearly illustrated that the Court could have chosen for an interpretation of the clause on remedies in the Visa Code which would have supported the rights of many visa applicants and their effective remedy against a visa refusal rather than allow Member State to impede access to such remedy. The UK government proposed to continue Sharpston’s tenure during the transitional period after Brexit during which, there would no longer be a British judge in the Court of Justice, whilst it may still rule on references of UK courts on free movement rights of Union nationals in the UK on the basis of the Withdrawal Agreement. But Barnier, on behalf of the EU, was uncompromising [unyielding?]. After the appointment of a Greek successor on her chair by the 27 remaining Member States in September 2020, she started cases against the Council and the Member States before the General Court which within a few weeks ingloriously ended in her own Court, illustrating that divorce always hurts.

In his farewell address the last British judge, Christopher Vadja, son of a Hungarian (refugee?) father and a German mother, reminded that the UK soon after it joined the EU recognized the important role of the Court of Justice for the development of EU law. The judgment in Defrenne v. SABENA (C-43/75) where the Court held the clause on equal pay for men and women in the EEC-Treaty to be directly applicable, provided an early lesson. Between 1973 and 2016 (the year of the Brexit referendum) the UK intervened in 281 cases in support of one of the parties and presented observations in 718 preliminary references from other Member States, more than any other Member State. “This policy of active engagement with the Court was to the benefit not just of the UK, the Court and the development of European law generally but also of many generations of English barristers, including myself, who were instructed to represent the UK.” One could add that his UK tradition contrasts with the practice of other States entrusting only a limited group of government officials with the representation in Luxembourg, thus restricting the distribution of knowledge of Union law among their national bar.

Until the mid-1990s during the oral hearings the lawyers would read out their pleadings and then go home. The experience of the last British judge in the General Court: “I recollect sad hearings from the old times in Luxembourg when days of preparation and hours of pleadings elicited not a single question.” (….) “[UK] judges are accustomed to test propositions verbally by asking provocative questions.” The British members stimulated their colleagues to put question to the parties. That tradition did not end with the departure of the UK: see a report on the Grand Chamber hearing on 12 October 2020 in the reference by a Dutch court on the independence of Polish courts and the European Arrest Warrant (C-354/20 PPU and C-412/20 PPU).

Judge Vadja also pointed to the limited public access to the hearings of the Court the hearing of the Wightman case on the question whether a Member State had the right to unilaterally revoke its Article 50 notification to withdraw from the EU a maximum of 300 persons could be present in the Grand Salle in Luxembourg. He contrasted this with the 300,000 persons who viewed the first day of the proceedings before the UK Supreme Court on that court’s live stream of the first Miller case on the equally important question whether the Article 50 notification required parliamentary approval and the more than 12 million views of the hearing before the UK Supreme Court of the second Miller case on the prorogation of the UK Parliament. Implicitly, he stressed the importance of the adage ‘Justice should be seen to be done’. Judge Vadja concluded his comparison with: “For my part, I look forward to the day when I can watch my former colleagues in action from the comfort of a sofa anywhere in the world.”

Common law principles, common history and current practice in Luxembourg

The President of the General Court in his address to his departing British colleague Ian Forrester stressed the important contribution of the common lawyers in the court in emphasising  the need for due process and procedural fairness. In his words: “Due process should prevail, even in terrorist cases. As Ian told us repeatedly, due process not only serves the cause of the defendant, but also the interest of the administration, for the very simple reason that procedural safeguards lead to better decision making. (…)  [T]he common law tradition adds a specific procedural dimension to the concept of fairness: the executive is a party before the judge as any other party. There is no reason why public authorities should, as a rule, benefit from privileged procedural positions, either as an appellant or as a defendant. This also applies when it comes to issues like access to evidence used in court proceedings.”

Judge Forrester, also from Scotland, started his farewell address with a short history lesson in French:

“Je vais vous parler de l’histoire, du droit européen, et de notre cour.  Mon père est né en 1899 et a fait l’entrainement d’un officier d’artillerie mais n’a jamais été déployé en France.  Un oncle a servi en Gallipoli.  Un cousin est mort en Birmanie. Une histoire familiale assez typique.  Nous avons tous rencontré ceux aujourd’hui fort âgés qui ont des témoignages étonnants de guerre et de conflit.  Deux juges de la Cour de Justice ont constaté qu’ils s’opposaient lors de la même bataille en Italie pendant notre dernière guerre civile européenne.  L’ancêtre d’un autre juge était soldat dans la bataille de Waterloo.  Un collègue me disait juste après le référendum en 2016 que ses deux grands-pères étaient soldats sur les deux côtés lors de la Bataille de la Somme.  Robert Schumann, fondateur, est né en Alsace-Lorraine, soldat allemand pendant la première guerre, français pendant la deuxième. Les guerres ont marqué notre continent.”

Judge Vadja used the occasion of his departure to give outsiders a look in the kitchen in Luxembourg. In an extensive interview he gave an insight in the work of a judge and the processing of cases inside the Court of Justice from the distribution of cases till the drafting of a judgment, including useful advice for lawyers pleading before the Court.

The amicus curiae and the independence of Polish judges

Less than two months after Brexit, the Court of Justice was confronted with the typical Anglo-Saxon legal concept of the amicus curiae, the expert outsider who upon request of the judge or on his own initiative provides the judge with relevant information for making her decision. In the ECtHR, which from its inception had more common law influence, the amicus curiae has a considerable history, codified in rules on third party intervention in Article 36(2) ECHR and Article 44(3) of the ECtHR Rules of Procedure. UNHCR, Amnesty International and Human Rights Watch, among others, regularly act as amicus curiae in proceedings in Strasbourg.

In the closed system of participants in proceedings before the Court of Justice the amicus curiae until recently was unknown. Its absence forces UNHCR to publish its observations on questions of interpretation of EU asylum instruments pending before the Court of Justice in notices distributed on the internet and in that way reaching the Court – or alternatively, produced as an annex to the observations of the lawyer of the asylum seeker (see fn 13 of the AG’s conclusion in Diakité, C-285/19).

The Grand Chamber of the Court in its judgment of 26 March 2020 in two joined references by Polish courts on the serious threats to the independence of judges in Poland, summarizes the main points of three letters of the Polish Ombudsman to the Court. The Ombudsman, who was not a party in those cases, in his letters pointed among others to the recent Muzzle Law, which considerably strengthens the new disciplinary regime for judges. That law was introduced with the aim to nullify the effet of the AK and others judgment of the Court of 19 November 2019 on the lack of independence of  new disciplinary chamber (“Chamber of Extraordinary Control and Public Affairs”) of the Polish Supreme Court. The Ombudsman referred to  the A-G’s conclusion that the Court did not have sufficient factual and legal material to enable it to rule on those requests. He described the growing number of disciplinary proceedings and administrative measures and the adoption of disciplinary measures against judges. Further, the Ombudsman informed the Court of Justice that the Polish National Prosecutor recently brought an action before the disciplinary chamber of the Supreme Court to waive immunity for the judge who made the reference for a preliminary ruling in one of the joined cases.

The Court of Justice noted that its Statute and Rules of Procedure do not provide for the interested parties referred to in Article 23 of the Statute to submit observations in response to the A-G’s Opinion. But it also observed that the Court “may at any time, after hearing the Advocate General, order the reopening of the oral procedure in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information, or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to have a decisive influence on the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.” The Court concluded that in this case it had sufficient information and that the new facts relied on by the Ombudsman “are not of such a nature as to have a decisive influence on the decision which the Court is called upon to give” (paras 27-30 of the judgment). The Court held the two references inadmissible because interpretation of the EU law provisions concerned was not necessary for deciding the disputes in the main procedures. After reaching that conclusion, however, the Court extensively reasoned that not being exposed to disciplinary proceedings or measures for bringing a matter before the Court, which is exclusively within their jurisdiction, constitutes a guarantee that is essential to judicial independence (paras 54-59 of the judgment).

Even, if the information provided by the Ombudsman did not have “decisive influence” on the outcome of the case, apparently, the Court considered that information to be relevant. The reference to Article 83 of the Rules of Procedure may well be the first step in the direction of the amicus curiae in Luxembourg. A month later, in April 2020, the Court of Justice ordered Poland to suspend pending disciplinary cases and stop bringing new case before the disciplinary chamber (C-791/19). That order was ignored by the Polish authorities and the disciplinary chamber.

Tenacious negotiators

At the Hohenheimer Tage zum Migrationsrecht, the annual meeting of German immigration, I often heard German friends complain about the tenacious  UK lawyers in the Council Working Groups during the negotiations on free movement, social rights or some of the asylum instruments. My standard reply was that the UK negotiators may be persistent, but once an EU instrument is adopted, the UK, generally, applied it far better than the Member State who simply copy past the instrument in their national law and leave every else unchanged in practice.

A sad example of this persistent negotiating is the reduction of the protection against expulsion of Union citizens on public order grounds. In 2004 the Council unanimously agreed to reinforce that protection in the Articles 27 and 28 of Directive 2004/38, adopted on the day before the accession of ten new Member States to the Union. Since 2008, the UK repeatedly pleaded in the EU Council of Ministers to give Member States more room for expulsion after a criminal conviction. Sometimes other West-European Member States joined this British plea (see Council document 15903/08 of 8 November 2008 and Council document 10313/13 of 31 May 2013). Each time such proposals met with opposition from the Commission and got insufficient support in the Council.

In the 2016 pre-Brexit-referendum-deal between PM Cameron and the European Council (discussed here), that Council agreed and the Commission promised to propose a considerable ‘softening’ of the public order clauses in Directive 2004/38, in case the UK remained in the EU. Finally, the UK achieved its aim during the Brexit negotiations. For EU nationals in the UK and for British nationals in the EU with residence rights under the EU-UK Withdrawal Agreement the protection against expulsion on public other grounds will be reduced to the level of the national legislation for conduct occurred after 2020 (Article 20 of the withdrawal agreement: see discussion here). This full renationalisation clearly limits the acquired rights of the millions of Union citizens who used their free movement rights to and from the UK before 2021. 

British courts, lawyers and legal academics

The references by British courts made an important contribution to the development of the rules on free movement of Union citizens. A quarter of all CJEU judgments in that field in 2008-2019 were given in answer to preliminary references by British judges. Especially, their questions concerning the right of permanent residence provide for in Directive 2004/38 (Dias, Alarape, Onuekwere and Lounes, discussed here) and on the admission of durable but unregistered partners of Union citizens (Rahman, Banger and S.M., discussed here) have produced some clarity and focus attention in several Member States on their rights. A bill implementing the last three judgments is currently pending in the German Bundestag. Almost half of the judgments of the Court of Justice concerning the rights of third-country national family members of EU citizens were given in answer to questions from British courts (V. Passalacqua, Legal mobilisation and the construction of EU migration law, Florence 2020, diss EUI, p. 8).  

Many of those questions originated in the minds of active UK lawyers, supported by their Immigration Law Practitioners’ Association (ILPA). Their activities also resulted in the provision on self-employed Turkish citizens in the EEC-Turkey association law were taken seriously (in Savas, Tum & Dari and Tural Oguz) by the Court and, subsequently in Member States. The AIRE Centre (Advice on Individual Rights in Europa) demonstrated how an NGO can stimulate test cases in Luxembourg. Since 1993, this London based organisation provided legal assistance and acted as party, intervenor or amicus curiae in more than hundred cases on human rights or migration before both European courts (for instance, the AIRE Centre acted as amicus curiae in the case on the border gate around Melilla, which resulted in ECtHR 13 February 2020, app. 8675/15 (N.D. and N.T. v. Spain), see point 100 and 160-163), and among those are ten cases before the Court of Justice on free movement or on Dublin since 2010.

Leading handbooks on EU migration law or on the EU Charter of Fundamental Rights written or edited by UK academics such as Cathryn Costello, Elspeth Guild and Steve Peers, will be gratefully used by lawyers and judges in the EU long after Brexit. The influence of almost five decades of membership of the same legal order cannot be brushed away, however gladly some politician would desire.

The greater the scope of the level playing field agreed in the future agreements between the EU and the UK, the greater the chance that EU law will remain a voluntary or compulsory subject at British law faculties, if only because people, businesses and institutions in the UK will continue to have to deal EU law rules. It will be for the lawyers in the remaining Member States to honour and profit from the contributions of their British colleagues, until the time is right for a new rapprochement.

Photo credit: Unlock

Guardianship, free movement and the rights of the child: the SM judgment

Professor Steve Peers, University of Essex

*This blog post builds on research which contributed to the forthcoming second edition of The EU Citizenship Directive (OUP, 2019), co-authored by me, Elspeth Guild and Jonathan Tomkin

When is a child a ‘family member’? Many people regard others they love dearly as children, parents or other relatives, but the law is rather stricter. This strictness is particularly important where children are involved, in order to ensure their welfare, and where it impacts on immigration law. Moreover, different countries have different approaches to the legal definition of family members. All these issues come to a head in today’s judgment of the CJEU in SM, a case concerning the intersection between EU free movement law and the family law of non-EU countries.

EU law background

The EU’s citizens’ Directive sets out the main rights of EU citizens and their family members to move to other EU countries. It defines family members as including, in Article 2(2)(c):  

the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)

It also refers separately to ‘beneficiaries’ of the Directive, in Article 3(2):

2.      Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a)      any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

The people listed in Article 3(2) are referred to in UK law implementing the Directive as ‘extended family members’, and I will use that term for brevity’s sake. In contrast, I’ll refer to the Article 2 family members, including ‘direct descendants’, as ‘core’ family members.

CJEU case law has touched on the definition of core family members several times, for instance clarifying the concept of ‘dependants’ in Article 2(2)(c): see most recently the CJEU judgment in Reyes, discussed here). But the Court had never been asked to clarify the meaning of ‘direct descendants’, although it had ruled when interpreting previous free movement legislation that children include an EU citizen’s step-children (Baumbast).

As for extended family members, previous CJEU case law (Rahman and Banger) clarified that they have in principle a less far-reaching right than core family members. While core family members have a right to enter and reside, for extended family members ‘entry and residence has only to be facilitated by that Member State’. So the Directive ‘does not oblige the Member States to grant every application for entry and residence submitted by persons who show’ that they fall within the scope of Article 3(2). However, the Court said it was ‘clear from the use of the words “shall facilitate” that that provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence’ by other third-country nationals, on applications by extended family members. This obligation meant that Member States had to ‘make it possible’ for the extended family members to ‘obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons’. When examining such an application, the authority concerned had to ‘take into account of the various factors that may be relevant in the particular case, such as’ the factors specifically listed in the preamble to the Directive – namely ‘their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’

Moreover, in light of the reference to national legislation in Article 3(2), and in the absence of more specific rules in the Directive, the Court ruled that each Member State ‘has a wide discretion as regards the selection of factors to be taken into account’. But there is a core substantive obligation for Member States: their legislation must ‘contain criteria which are consistent with the normal meaning of the term “facilitate” ’—presumably as defined by the Court—‘and of the words relating to dependence used in Article 3(2), and which do not deprive that provision of its effectiveness’. Finally, the Court conceded that Article 3(2) was not directly effective, although ‘an applicant is entitled to a judicial review of whether the national legislation and its application have remained within the limits set by that Directive’. The subsequent judgment in Banger elaborated upon these procedural rights.

Background to the case

According to the UK Supreme Court judgment which referred questions to the CJEU, this case concerns a French couple married in the UK, who were married in 2001 but were unable to have children of their own. They went to Algeria and applied for the guardianship of a child by means of application of the kafala family law system (the term is also used to refer to a controversial system of migrant worker sponsorship, but this case only concerns family law). Under the Islamic approach to family law, adoption as such is not permitted, but kafala instead provides for a form of guardianship, and is particularly applied for the benefit of orphaned or abandoned children.

The Algerian authorities deemed the French couple suitable guardians, and they were soon accorded guardianship of a girl abandoned at birth (called ‘Susana’ by the Supreme Court: I’ll use that name rather than the impersonal ‘SM’). The husband returned to the UK to work, while the wife stayed in Algeria to look after Susana, seeking to obtain entry clearance for her. The UK authorities refused on the grounds that this was not an adoption as such, and so a long dispute through the legal system got underway.

At first instance, the immigration tribunal ruled in favour of the UK authorities, holding that Susana was neither a core family member or extended family member. On appeal, the Upper Tier tribunal ruled that she was an extended family member. The authorities appealed in turn to the Court of Appeal, which ruled that she was neither. The Supreme Court gave leave to appeal on the ‘extended family member’ point, but subsequently decided to consider both points. Ultimately, Lady Hale’s judgment (with which the other judges agreed) concluded that it was obvious that Susana was an extended family member, but decided to ask the CJEU whether she was a core family member.

Judgment of the CJEU

First of all, the Court noted that the Directive ‘makes no express reference to the law of the Member States for the purpose of determining the meaning and scope of’ the term ‘direct descendant’. Next, it followed (in line with the Court’s usual approach) that ‘the need for a uniform application of EU law and the principle of equality require that the terms of that provision must normally be given an independent and uniform interpretation throughout the European Union’. In the absence of any definition of ‘direct descendant’, the term should be interpreted considering ‘not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part’.

In the Court’s view:

the concept of a ‘direct descendant’ commonly refers to the existence of a direct parent-child relationship connecting the person concerned with another person. Where there is no parent-child relationship between the citizen of the Union and the child concerned, that child cannot be described as a ‘direct descendant’ of that citizen for the purposes of Directive 2004/38.

Elaborating further, ‘[a]lthough that concept primarily focuses on the existence of a biological parent-child relationship,’ the aim of the citizens’ Directive is to facilitate free movement rights, and so therefore it must be ‘construed broadly’, including the core family member definition. That meant ‘it covers any parent-child relationship, whether biological or legal’, including adopted children. However, it did not extend to a guardianship system which did not create a legal parent-child relationship.

However, the Court went on to confirm that Susana fell within the concept of an extended family member, as the relevant definition in the Directive is ‘capable of covering the situation of a child who has been placed with citizens of the Union under a legal guardianship system such as Algerian kafala and in respect of whom those citizens assume responsibility for its care, education and protection, in accordance with an undertaking entered into on the basis of the law of the child’s country of origin’. The Court reiterated Member States’ discretion in such cases as referred to in previous cases, but considerably narrowed the discretion on the facts of this case.

This was because of the right to family life in Article 7 of the EU Charter of Rights, which has the ‘same meaning and scope’ of the corresponding right in the European Convention on Human Rights. Case law of the European Court of Human Rights had confirmed that the child-guardian relationship under the kafala system ‘may fall under the definition of family life, having regard to the time spent living together, the quality of the relationship, and the role which the adult assumes in respect of the child’ (referring to Chbihi Loudoudi and Others v. Belgium). Article 8 ECHR ‘protects the individual against arbitrary action by the public authorities and requires those authorities, where the existence of a family tie has been established, to enable that tie to be developed and to establish legal safeguards that render possible the child’s integration in his family’ (referring to Harroudj v. France and Chbihi Loudoudi).

Furthermore, Article 24 of the Charter obliges Member States to ‘take into consideration the best interests of the child’. It followed that when exercising their discretion as regards admission of extended family members, national authorities have to make ‘a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking account of all the interests in play and, in particular, of the best interests of the child concerned’. This assessment has to ‘take into consideration, inter alia, the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship which has developed between the child and its guardians and the extent to which the child is dependent on its guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child.’

Conversely, the assessment has to ‘take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking’. But these risks can’t simply ‘be assumed’ just because the process of the Algerian kafala system ‘is less extensive’ than the adoption procedure in the State where the EU citizens are living, or because Algeria has not signed up to the 1996 Hague Convention on parental responsibility. Rather, it was necessary to weigh such factors up against the other factors which the Court set out.

If this assessment establishes that

the child placed under the Algerian kafala system and its guardians, who are citizens of the Union, are called to lead a genuine family life and that that child is dependent on its guardians, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence as one of the other family members of the citizens of the Union for the purposes of Article 3(2)(a) of [the citizens’ Directive], read in the light of Article 7 and Article 24(2) of the Charter, in order to enable the child to live with its guardians in their host Member State.

This analysis ‘applies a fortiori’ where the refusal to admit the child meant that one of the child’s guardians is in practice prevented from living together in a Member State because one of them needs to stay in a non-EU State to care for the child. As noted above, these were the facts in this case.

Finally, the Court declined to answer the Supreme Court’s separate question about refusing to admit a child if there was a risk of abuse, exploitation or trafficking, because the question was only raised in the event that Susana was considered a core family member. In any event, it should be noted that the Court referred to such issues being considered as part of the assessment of the application to admit Susana as an extended family member.

Comments

The Court’s confirmation that adopted children are covered by the concept of ‘direct descendant’ is not surprising, although it raises the question as to what happens if there are divergences between the adoption rules in the State where the child was adopted and the Member State in which the child lives now. Then again, the previous case law applying free movement law to cover step-children already raised questions (not yet answered) about the interaction between family law and free movement law (ie, who has custody of the step-child), on top of the long-standing case law about the impact of divorce and separation upon free movement rights (see most recently the CJEU’s NA judgment of 2016, which I discussed critically here). One quite striking feature of the Court’s ruling is its apparent assertion that only a parent-child relationship could fall within the concept of ‘direct descendant’: this is, with respect, not consistent with the obvious meaning of the words, as evidenced by the Supreme Court’s assumption that it could also cover grand-children.

The ruling that the term ‘direct descendants’ could not apply to guardianship followed from the Court's definition of ‘direct descendants’ to mean a parent-child relationship, given that the kafala system deliberately does not classify the child’s guardians as parents. Despite that, the French couple in this case understandably sought to bring Susana within the scope of the ‘direct descendants’ concept, because they believed that otherwise the UK would retain residual discretion not to admit her as an extended family member.

This brings us to the most remarkable aspect of the Court’s ruling: the removal of the Member State’s discretion to admit Susana, on condition that the assessment of the factors was positive. Susana’s case appears to fall within the scope of the factors the Court refers to as part of that assessment (the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship with the guardians, the degree of dependency, and the assumption of responsibility for the child). It’s impossible from the outside of this case to know if the risks of abuse or trafficking exist, although of course in the best interests of the child the Court was right to confirm that the assessment should examine whether such factors are present. In other cases with different circumstances, the factors may point to a different conclusion than they do in this case. And today’s judgment raises the interesting question of whether there might be reduced discretion to refuse entry in other extended family cases too – notably cases involving children or partners, and where the impact of refusal might similarly be to prevent free movement rights from being exercised.

Finally, it’s worth putting this case in the broader context. For eight-year old Susana, abandoned at birth by her parents, her guardians have been litigating nearly her entire life to secure her right to stay with them in the UK. It took six years of litigation before four levels of the judicial system before they could confirm that the UK was even obliged to consider her application.  Now the CJEU rules that (depending on the assessment) the UK may be obliged to let her stay. But that’s mainly because of the EU Charter of Rights; and this may be the last judgment concerning the UK and the Charter. If you seek its monument, look at this little girl’s case.   

Barnard & Peers: chapter 13

Photo credit: newstarkafala.org

Brexit, asylum and the rights of the child: clarification from the CJEU

Professor Steve Peers, University of Essex

What effect does Brexit have on asylum issues? That was one of the issues in a recent judgment of the CJEU, responding to a request from the Irish High Court which apparently affected a number of cases pending in Ireland. The judgment further addressed issues relating to the rights of child asylum-seekers, and the degree of discretion a Member State has under the EU’s Dublin rules on allocation of responsibility for considering asylum applications.

Judgment

The case concerned a family of three asylum-seekers. Two had previously held visas in the UK, and the third was their child, born in the UK. When the UK visas expired, they travelled to Ireland, and applied for asylum there.  The Irish authorities decided that the UK was responsible for the claim, and requested the UK to take charge of the asylum seekers; the UK accepted.

Also the Irish authorities refused to apply the ‘sovereignty’ clause in the EU Dublin rules, which gives every Member State the option to decide whether to take responsibility for an asylum application even if that Member State would not normally be responsible for it. The asylum seekers objected to this due to health issues with two family members and the imminence of Brexit, and appealed to the High Court, which asked the CJEU several questions about applying the Dublin III Regulation in these circumstances.

First, the CJEU ruled that it was irrelevant that Brexit is pending, applying its previous judgment (discussed here) in the context of the European Arrest Warrant, that EU law remains fully applicable to the UK until Brexit Day. Equally, the CJEU repeated its prior case law (see, for instance, Halaf) that the ‘sovereignty’ clause left ‘absolute discretion’ to each Member State to decide when to implement it. It followed that the Member State was not obliged to apply this clause purely because Brexit is pending.

Second, the CJEU ruled that it did not breach EU law for the decision on responsibility under the Dublin rules to be made by one part of the Irish government (the Refugee Applications Commissioner), while the decision on the sovereignty clause was left to another part of the government (the Minister for Justice and Equality). In the Court’s view, there was nothing in the Dublin III Regulation to require these decisions to be made by the same part of the national administration, or require any specific part of the administration to make those decisions. Indeed, the Regulation refers to ‘authorities’ in the plural at several points.

Third, the CJEU ruled that the general reference in the Dublin III Regulation to the ‘best interests of the child’ did not limit Member States’ discretion as to whether or not to apply the sovereignty clause.

Fourth, in the Court’s view there was no right to a separate appeal against the decision not to apply the sovereignty clause. Rather, the Dublin III Regulation only required an ‘appeal against a transfer decision, or a review, in fact and in law, of that decision, before a court or tribunal’. This did not ‘expressly’ extend to an appeal against the refusal not to apply the sovereignty clause, and the Court refused to find an implied right of appeal in such cases, because ‘the objective of the rapid processing of applications for international protection and, in particular, the determination of the Member State responsible, underlying the procedure established by the Dublin III Regulation…discourages multiple remedies’. The EU Charter principle of effective judicial protection was not infringed, because the refusal to use the sovereignty clause could always ‘be challenged at the time of an appeal against a transfer decision’.

The Court added more on Brexit in this context, noting that ‘the mutual confidence and presumption of respect, by the Member States, for fundamental rights, continues in full force and effect in [the UK] until the time of its actual withdrawal from the European Union.’ While an asylum transfer under the Dublin rules, following the Court’s case law, cannot take place if ‘there are substantial grounds for believing that that notification would result in a real risk of that applicant suffering inhuman or degrading treatment in that Member State, within the meaning of Article 4 of the Charter’, the notification of leaving the EU ‘cannot, in itself, be regarded as leading to the person concerned being exposed to such a risk’.

Explaining its reasoning, the Court referred to the previous case law on the assumption that States part of the Dublin system – including non-EU States (Norway, Iceland, Switzerland and Liechtenstein) – ‘observe fundamental rights, including the rights based on the Geneva [Refugee] Convention and the 1967 Protocol, namely the principle of non-refoulement, and on the ECHR, and, therefore, that those Member States can have confidence in each other as regards respect for those fundamental rights’, given that all these States are parties to the two Conventions and the 1967 Protocol to the Refugee Convention. In fact:

the continuing participation of a Member State in those conventions and that protocol is not linked to its being a member of the European Union. It follows that a Member State’s decision to withdraw from the European Union has no bearing on its obligations to respect the Geneva Convention and the 1967 Protocol, including the principle of non-refoulement, and Article 3 ECHR.

Finally, the CJEU ruled that the Dublin III Regulation creates an assumption that the best interests of the child mean that the child’s situation is indissociable from that of its parents. Indeed, this is explicitly set out in the Regulation. The Court set out the consequence that ‘it is only where it is established that such an examination carried out in conjunction with that of the child’s parents is not in the best interests of that child that it will be necessary to treat the child’s situation separately from that of its parents.’

Comments

The Court’s ruling on Brexit is unsurprising in light of its previous ruling on the UK remaining covered by EU law until Brexit day. There are no direct implications of this judgment for what happens after Brexit day as regards the UK and EU asylum law, particularly the Dublin rules – an issue which I discussed recently here. However, the Court’s reference to non-EU countries participating in the Dublin rules on the condition that they are parties to the ECHR and the Refugee Convention reaffirms that there is no EU law requirement for non-EU countries to participate in the rest of EU asylum law in order to participate in the Dublin system. On the other hand, UK withdrawal from the ECHR and/or the Refugee Convention might make cooperation with the EU in this field (and, as regards the ECHR, other fields) more difficult. 

Of course, the EU and UK might nevertheless be unable to reach agreement on the UK’s post-Brexit (or post-withdrawal agreement transition period) connection with the Dublin rules for political reasons.  As I have pointed out already, the EU/UK political declaration on their future relationship says nothing about asylum.

As for the sovereignty clause issue, the Court’s ruling leaves intact the Irish government’s arrangements for dealing with that clause separately from determination of responsibility for asylum claims, and also leaves that government free to refuse to apply the sovereignty clause without facing an immediate appeal. While that refusal could still be challenged subsequently, as part of a challenge to a transfer decision, it is not clear what substantive challenge could be made to such a refusal, as a matter of EU law – given that the Court re-emphasised the total discretion of a Member State when applying the clause, and added that even the obligation to consider the best interests of the child has no impact upon that discretion.

However, presumably it should be possible in this challenge to raise issues of national law as regards the exercise of that discretion – to argue whether any national law procedural or substantive rules governing the exercise of the discretion were correctly applied, and in particular whether the decision was in compliance with the national constitution.  

Finally, it should be recalled that the 2016 proposal to redraft the Dublin rules in light of the perceived ‘refugee crisis’ (discussed here) would drastically curtail use of the sovereignty clause, in order to prevent further decisions to take responsibility for large numbers of asylum-seekers (such as the German government’s decision in 2015), due to the consequential impact of such decisions on other Member States. It remains to be seen whether that proposal can be agreed at all – and if so, whether Member States would be willing to give up the considerable freedom of action which the clause gives them.

JHA4: chapter I:5

Barnard & Peers: chapter 26, chapter 27

Photo credit: www.kingsinn.ie