Beyond Blue Passports: UK/EU immigration after Brexit

Professor Steve Peers, University of Essex

In the last few days, there has been much debate about the UK government’s intention to ‘return’ to blue British passports after Brexit. It’s unfortunate that there have been false statements on both sides of the argument – that the change in passports will cost extra money (the contract was due for renewal anyway) and that the EU forced the UK to apply the burgundy colour (there’s only a non-binding Resolution on this issue).

Some prefer the idea of a change in colour due to Brexit, but the issue isn’t about ‘sneering’ at people who might prefer one passport colour to another. In fact, aesthetically I prefer my previous UK passport colour (which was black, not blue). But a passport should be judged not by the colour of its cover but by the content of the rights it confers.

In that light, it’s a good moment to review the rules on visits and long-term immigration to the EU that will likely apply to UK citizens after Brexit. This is an update of a previous post from 2014 on this issue, except it should be noted that there will likely be separate rules on UK citizens who already live in the EU27 states on Brexit Day – on the basis of the withdrawal agreement, as partly agreed earlier this month. I have discussed that partial deal separately and so I won’t discuss that category of people further again here. My focus is on UK citizens who are still in the UK on that point (and who do not also have the citizenship of an EU27 country).

There are several general points at the outset. First, it seems likely that a transition period will be agreed as part of the withdrawal agreement (see discussion here). This may well mean that EU free movement law continues for a short period longer to apply between the UK and the EU after Brexit Day. Those who move during the transition period will likely be treated the same as those who moved before Brexit Day, although this has yet to be confirmed.

Secondly, EU immigration law (by which I mean the EU laws generally governing the immigration status of non-EU citizens) does not apply to all Member States. In particular, the rules relating to short-term visas and borders (and aspects of irregular migration) deriving originally from the Schengen open borders agreement don’t apply to the UK or Ireland. They only partly apply to Romania, Bulgaria, Cyprus and Croatia (although those States are meant to join in future) and have been extended outside the EU, to Schengen associates: Norway, Iceland, Liechtenstein and Switzerland. The rules relating to longer-term legal migration and asylum apply to all Member States except Ireland and Denmark, but not to any non-EU countries (other than the Dublin rules on which State to apply for asylum in, which apply to the Schengen associates). 

Crucially, this means that immigration between the UK and Ireland after Brexit isn’t directly affected by any of the laws discussed in this blog post. Also EU free movement law will still apply to UK citizens who are family members of EU citizens who move to another Member State. 

Thirdly, the following analysis is based on EU law as it currently stands, as it is applied to countries like the UK post-Brexit: ie, relatively wealthy non-EU countries which do not have free movement with the EU. I’ll indicate where the law is currently being revised. It’s possible that some special post-Brexit deal on some or all aspects of immigration, falling short of free movement, might be agreed between the EU and UK after Brexit. While this prospect can’t be discussed in detail, since the UK government has not indicated whether it would even wish to seek such an agreement and so there’s no indication of what the content might be (or whether the EU would agree to it), I’ll discuss this prospect generally in a final section.

Finally, while some might try to argue that any new difficulty for UK citizens moving or travelling to the EU after Brexit would constitute some form of ‘punishment’ by the EU, this would be profoundly dishonest. The UK government seeks – as most Leave voters supported – to become a non-EU country without free movement after Brexit. Ending free movement law necessarily means that it’s not only harder for EU citizens to visit and stay in the UK, but also the other way around: the clue is in the words ‘free movement’. It should not be too much to hope that people have the integrity to accept the responsibility for the consequences of the outcome which they advocated.

Visas and border controls

‘Visas’ are an issue for both longer-term immigration and short-term travel; here I’ll discuss short-term travel, which (like border controls) has been fully harmonised by the EU as part of the Schengen process. While it’s sometimes argued that UK citizens will face short-term visa requirements to visit the EU after Brexit, the current law of the EU (the visa list Regulation) suggests that they will not (as I discuss in more detail here). That’s because it’s EU policy not to apply visa requirements to fairly wealthy non-EU countries, or to most neighbouring EU states, provided that the countries concerned reciprocate by not imposing visa requirements on EU citizens.

However, the EU is planning to set up an electronic travel advance authorisation system (ETIAS). I previously discussed this idea here; in the meantime, the legislation to establish ETIAS has been proposed by the Commission, agreed by the Council and is now under negotiation with the European Parliament. The text as agreed by the Council (and the most recent EP/Council negotiation text) would apply the ETIAS to all non-EU countries without free movement, therefore including the UK. Some in the UK would like to do set up a parallel system after Brexit, which would apply to EU citizens in return. (Note: I assume that during any transition period in the withdrawal agreement, the UK will temporarily be defined as a non-EU country which does apply free movement. The focus here is on what happens after that).

What about queues at border controls? At present, the Schengen borders code sets up a fast track solely for those with EU citizenship or nationality of a state with a free movement deal (see Articles 8 and 10). So UK citizens will no longer be fast-tracked at those borders after the end of free movement rules, unless the UK and EU negotiate an unprecedented special arrangement. Those who assert with certainty – like this MP – that nothing will change as regards longer border queues are therefore misstating the legal position. The comparison with Switzerland by the same MP is even more bizarre, given that Switzerland has signed up not only to free movement but also to the Schengen system.

UK citizens will also be subject to the planned EU entry-exit system, on the basis of newly adopted legislation, once that system is set up.  Again, that system, which will take records of all those entering and leaving the EU, will apply to all non-EU countries without a free movement agreement.  Similarly, UK citizens who have a record of criminal offences or immigration law breaches will be subject to entry bans for the entire EU enforced by means of the Schengen Information System (which is being revised), for the same reasons.  (The UK currently participates in other aspects of that System, as regards exchanges of criminal law and policing information, but it remains to be seen if this remains the case after Brexit: see further discussion here).

Long-term migration

Of course there will still be some UK citizens moving to EU countries on a long-term basis after Brexit. The point is that they (like EU citizens moving in the other direction) will no longer have the right to do so on the very liberal terms set out in free movement law, but instead will be moving on the basis of more restrictive rules set out in national law. On the EU side, those national laws have been partly harmonised by EU law. (Retirement of UK citizens in the EU will be entirely subject to the national laws of Member States).

First of all, as regards moving for work, there is EU legislation on highly-skilled non-EU migrants (the ‘Blue Card’ Directive, currently being revised as discussed here); the single permit Directive, which sets out common rules for equal treatment of non-EU migrants allowed to work; the Directive on seasonal workers (discussed here); and the Directive on intra-corporate transferees (discussed here). To some extent, this legislation sets only minimum standards or allows Member States to set up parallel national regimes.  

As regards students and researchers, a revised EU law (discussed here) will apply from 2018 (so before Brexit). UK students will lose the right to equal treatment as regards tuition fees and admission in EU universities that they currently enjoy as EU citizens (unless otherwise agreed). However, according to ECJ case law (discussed here) non-EU students must be admitted if the (more stringent) standards in the current version of the EU legislation on non-EU students are met. (There’s no reason to think that case law won’t apply to the newer version of the law).

Family reunion for UK citizens who move to the EU will also be harder after Brexit, whether their family are UK citizens or citizens of other non-EU countries, on the basis of the standards in the EU’s family reunion Directive. While Member States can set higher standards than the Directive, they often do not do so.

Finally, what about asylum? EU citizens are all but banned from applying for asylum in other Member States (the exception is discussed here), but UK citizens will no longer be EU citizens after Brexit. Like the UN Refugee Convention, EU refugee law (which is currently being revised: see discussion here) defines a refugee as person who is outside their country of origin due to a genuine fear of persecution by reason of race, religion, nationality, political opinion or particular social group. Persecution is defined as entailing some form of violence or other severe restriction on human rights. As things stand, despite obnoxious headlines from the UK’s most toxic newspapers, those calling for murder of Remain supporters are a tiny extreme fringe and there is no sign that the UK government is unable or unwilling to respond to any further violence which they might commit. Nor is there any move to lock up or ban the free speech of Remain supporters. Let’s hope this always remains the case.

Irregular migration

Finally, it should be noted that UK citizens who breach the immigration law of the EU and/or its Member States – which would obviously be more likely after Brexit as less liberal rules would apply – would be subject to the EU’s Returns Directive, which governs many aspects of the process of removing non-EU citizens who are not legally resident. This Directive has been subject to a relatively liberal interpretation by the ECJ, as I discuss here), but nevertheless it is rather more restrictive than the rules on expulsion or detention as set out in EU free movement law.

Special deal?

Could the EU and UK sign as special deal on immigration after Brexit? (I am leaving aside the likely transition period in the withdrawal agreement). As regards visas and borders, this would likely be an agreement with the entire EU, since the degree of harmonisation in this field means that the ECJ would likely rule that the EU has exclusive competence. In practice, the EU has been willing to sign treaties with non-EU countries on links with the border agency Frontex, and on visa waiver and readmission treaties. Would the EU be willing to go further, and (for instance) agree reciprocal non-application of the electronic travel authorisation rules on each side?

On legal migration, the EU has harmonised the law less and the Treaties reserve a national competence regarding the numbers of non-EU citizens admitted to work. Moreover, EU legislation in this field usually expressly states that Member States can enter into bilateral treaties with non-EU countries.  So any agreement would either be ‘mixed’ (needing ratification by the EU and its Member States), or purely bilateral between the UK and individual Member States. In some cases the EU has been willing to sign an association agreement with non-EU countries which contains limited rules on immigration.

More broadly, the issue of whether the UK and EU should sign a special immigration deal after Brexit may form part of the broader talks, with some in the UK willing to offer a trade of limited preferential labour market access in return for bigger access to the EU services market, for instance. Others might be unwilling on principle to offer any commitment regarding immigration. One factor that shouldn’t be overlooked is that such a deal would be reciprocal – preserving equally some possibility of facilitated immigration for UK citizens to the EU, not only the other way around.

*This blog post was supported by an ESRC priority grant on "Brexit and UK/EU immigration policy"

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:3, I:4, I:5, I:6, I:7

Photo credit: Telegraph

Tell me what you see and I’ll tell you if you’re gay: Analysing the Advocate General’s Opinion in Case C-473/16, F v Bevándorlási és Állampolgársági Hivatal

By Nuno Ferreira (Professor of Law, University of Sussex) and Denise Venturi (PhD student, Scuola Sant Anna, Pisa)*

Hungary in the spotlight again

Hungary has been in the spotlight for all the wrong reasons for quite a while. From legislation targeting ‘foreign-operating universities’ to border walls to keep refugees from entering Hungarian territory, the populist right-wing government of Viktor Orban has been sparking outrage in many sectors of Hungarian society, and the European institutions. The most recent reason for alarm again relates to migration and refugees, an area of widespread criticism of Hungarian authorities. Building on extremely hostile policies towards refugees that have been admonished by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), Hungarian authorities now intend to resort to highly dubious means to assess the applications  of individuals claiming asylum on grounds related to their sexual orientation. It was already public knowledge that this category of claimants was subjected to poor treatment by the Hungarian authorities, but recent events suggest that the authorities have reached  a new low.

The most recent incident came to the public knowledge through a reference for a preliminary ruling to the CJEU by the Hungarian Administrative and Labour Court Szeged on 29 August 2016 in the Case C‑473/16, F v Bevándorlási és Menekültügyi Hivatal (the ‘F case’). The case concerns a Nigerian national who had submitted an application for international protection in Hungary based on his sexual orientation, and dealt with the use of projective personality tests and other means for ‘proving’ sexuality. The Hungarian domestic court posed two questions to the CJEU, essentially asking whether the application of Article 4 of the ‘qualification Directive’ on the definition of refugee status (Council Directive 2004/83/EC), in the light of the right to dignity in Article 1 of the Charter of Fundamental Rights of the European Union (EU Charter), precludes forensic psychologists’ expert opinions based on projective personality tests from being used in asylum adjudication relating to LGBTI (lesbian, gay, bisexual, trans and intersex) claimants. Should that possibility be precluded, the referring Court then asks whether the asylum authorities are prevented from examining by expert methods the truthfulness of these claims.

The questions thus refer to the interpretation of particular provisions of Council Directive 2004/83/EC. Yet, the material facts under analysis in the case referred to the CJEU occurred in April 2015, so (as the national court acknowledged) the law that applies to the facts and that needs to be interpreted in this case is the successor to Council Directive 2004/83/EC – Directive 2011/95/EU of 13 December 2011 (the recast Qualification Directive) – which Member States had to apply by 21 December 2013. (Note that this recast Directive could be replaced by a Regulation in future, as discussed here).

Following the hearing on 13 July 2017, Advocate General Wahl delivered his Opinion on 5 October 2017. The focus of our analysis will be on this Opinion, but first it is important to recall the case law the CJEU has already produced on sexual orientation and gender identity (SOGI) claims of asylum. Indeed, this is the third case the CJEU has dealt with on SOGI-related asylum claims, and we expect this third case to better reflect international standards than the previous two, particularly in the light of the EU Charter and UNHCR Guideline No. 9.

Third time lucky?

The CJEU dealt with Sexual Orientation and Gender Identity (SOGI) asylum claims for the first time in the joined cases C-199/12 to C-201/12, X, Y and Z v. Minister voor Immigratie en Asiel. Despite some shortcomings,  this decision expressly recognised that persecution on the basis of sexual orientation can give rise to refugee status under the ‘particular social group’ ground of the 1951 Refugee Convention (which is reproduced in the qualification Directive). It was however one year after X, Y and Z that the CJEU was called to provide guidance on evidentiary standards in SOGI asylum claims in another case concerning three gay men seeking asylum on the basis of their sexual orientation, who were not deemed credible (Joined Cases C-148/13 to C-150/13, A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014, discussed here). The CJEU was asked whether the Charter, in particular Articles 3 (right to the integrity of the person) and 7 (respect for private and family life), as well as Article 4 recast Qualification Directive, which sets out some general rules for assessing asylum claims, posed certain limits on national authorities when verifying an asylum seeker’s sexual orientation.

This judgment is important as it establishes some core principles on credibility and evidence assessment; however, the Court could have offered more positive guidance in that regard. At the outset, the CJEU found that although the applicants’ mere declarations are not sufficient per se to establish their sexual orientation, authorities are bound by certain limits when assessing a SOGI asylum application. Notably, such assessment must be conducted on an individual basis and must not be based merely on stereotypes, which is a mistake too often committed by decision-makers in SOGI cases. Nonetheless, the CJEU did not completely overrule the use of stereotyped notions, but considered them a useful element in the overall assessment. As for evidence, the Court precluded the recourse to detailed questions on sexual practices and to ‘tests’ to establish applicants’ sexual orientation in light of Articles 1 (human dignity) and 7 of the EU Charter. It also banned the production in evidence of films showing the applicant’s engagement in same-sex activities. Finally, the CJEU also affirmed that late disclosure of an applicant’s sexual orientation as the main reason for the asylum claim, does not per se impinge on the applicant’s credibility.

In a nutshell, the Court gave a ‘black list’ of what authorities cannot do, but it did not provide any clear guidelines of what, they should do to assess SOGI asylum claims. Notably, the Court made it clear that there is no room for evidence that, by its nature, infringes human dignity and which does not have any probative value. This prohibition, the Court argued, cannot be circumvented even if it is the applicant’s choice to submit such evidence, as this would incite other applicants to do the same, creating a de facto requirement. While the Court’s judgement in X, Y and Z fully establishes the possibility of recognising SOGI applicants as refugees, the Court’s findings in A, B and C constitute the backdrop against which the F case will ultimately be decided.

‘Tell me what do you see… is it gay enough?’

The F case has put back on the CJEU’s agenda the evidentiary standards to be applied in SOGI asylum cases. Several contentious practices have been criticised throughout the years in this context, from the use of stereotyped questioning to authorities resorting to practices of no medical or psychological value such as phallometry, whereby reactions of gay male asylum claimants to watching pornography were supposed to indicate their sexual preferences. Despite such practices having been highly criticised both by the UNHCR and NGOs, the F case makes it clear that they persist in different ways.

The precise tests in question in this case are the ‘Draw-a-Person-in-the-Rain’ test, Rorschach test and Szondi test. Such projective, drawing tests attempt to elicit information that ‘patients’ may struggle or prefer not to verbalise otherwise, helping psychologists to form an opinion about individuals’ personality, emotional well-being and mental health. These tools are generally contentious, even if they go on being used by psychologists routinely in most countries. Their use to determine one’s sexuality is fundamentally abhorrent, thus simply not considered by the relevant literature or reputable professionals.

AG Wahl recognises how scientifically discredited such tests are in relation to sexual orientation matters, citing an American Psychological Association 2009 report. The question of whether one is gay or not is, itself, poorly framed, as one’s sexual orientation can lie somewhere along a complex continuum and change over time. Attempts to determine one’s sexuality objectively have invariably been held to be ‘junk science’, for relying on baseless stereotypes. As Weber has rightly stated in the context of the recent debates around using Artificial Intelligence (AI) to determine one’s sexuality on the basis of one’s face, such pseudo-scientific efforts are attempts to impose coherence on individuals and fail to recognise that the ‘homosexual’ and the ‘heterosexual’ are historically constructed figures. Crucially, Weber worries that such type of AI ‘junk science’ will be used in the West in the context of SOGI asylum.

The tests in question in the F case assume that individuals with a particular sexual orientation have certain personality traits, which not only is patently false, but also runs against the prohibition on stereotypical decision-making established by A, B and C. At the oral hearing in this case, the Hungarian authorities tried to justify the use of these tests with the A, B and C judgment. The argument ran as follows: as the judgment precluded questions about claimants’ sexual orientation, the authorities had to resort to tests. The problem with this assertion is that it is based on a false premise: the judgment in A, B and C did not prevent authorities from asking any questions about claimants’ sexual orientation, but simply precluded certain questions and practices that clearly breach the dignity of the individual.

Although both the Commission and the Hungarian authorities suggested in the oral hearing that these tests should be allowed because they only constitute an element of the overall assessment of the asylum claim and may lead to the confirmation of the credibility of the applicant, the exact opposite happened in this case. Indeed, the test was used by the Hungarian authorities to discredit the applicant’s account and deny him international protection (par. 10-11 of the Opinion). In other words, a ‘junk science’ approach to decision-making was used to prevent the claimant from being recognised as refugee. Unfortunately, AG Wahl’s Opinion fell far short from precluding such tests.

The Advocate General’s Opinion

In his Opinion, AG Wahl rightly frames this case as one that is very clearly about using psychologists’ expert opinions in assessing the credibility of claimants. The provision at the centre of this debate – as framed by the referring questions – is Article 4(5) of the recast Qualification Directive, which discharges applicants from the need to prove their asylum claims through documentary or other evidence when a range of conditions is fulfilled, including the applicants having made a genuine effort to substantiate their claims, having offered a satisfactory explanation for the lack of further evidence, and having provided an overall credible account. Based on this provision, the applicant used the oral hearing to highlight that there was no need for any further tests in his case, because there were no inconsistencies. The Hungarian authorities counter-argued that there were contradictions in the applicant’s statement (without specifying exactly which contradictions), so it was necessary to probe its veracity.

Another EU law instrument turns out to play a more important role in this Opinion, namely Directive 2013/32/EU (the recast Asylum Procedures Directive). Indeed, the Qualification Directive establishes the general rules to follow in terms of evidentiary standards in asylum cases, in particular Article 4, but it is Article 10(3) of the Asylum Procedures Directive that determines that Member States’ asylum authorities should reach individual, objective and impartial decisions, and that they have the possibility to seek expert advice to assist in their decision-making. On this basis, AG Wahl proceeds by considering the benefits of involving psychologists in the adjudication process (para. 33-34), but is also very clear about the impossibility of a psychologist determining an applicant’s sexual orientation based on personality tests (par. 36). Nonetheless, AG Wahl goes on to analyse under which circumstances such tests can nevertheless be admitted, thus effectively accepting them.

AG Wahl tries to soften the blow of admitting the tests in question by stating that consent is required, and that the tests need to be carried out in a way that is compatible with the rights to dignity and to respect for private and family life (Articles 1 and 7 of the EU Charter and Article 8 of the European Convention on Human Rights). Although AG Wahl expressly acknowledges the difficulties in withholding consent in the context of an asylum claim, he does not seem to find it problematic that – in his own words and in a likely violation of the applicant’s rights under EU law – the ‘applicant’s refusal [to consent to the tests] may have certain consequences that the applicant himself has to bear’ (par. 45). In other words, refusing a test with no probative value that could violate applicants’ rights may lead to the refusal of their asylum claim – a highly disproportional and unfair outcome, we would argue.

The Opinion goes on to further qualify the admissibility of such tests by questioning the probative value of examinations based on dubious science or used in the wrong context (par. 48). And yet, AG Wahl also offers domestic courts a wide margin of appreciation in this regard, by stating that it is not for the CJEU to assess such tests. Having seen how the tests in question had been used in relation to a gay male applicant to deny him asylum, it is patently unwise to offer domestic authorities such leeway in asylum cases relating to sexual orientation. The fact that AG Wahl refers to the right to an effective remedy (Article 47 of the EU Charter) and to the freedom of domestic courts to depart from the ‘findings of the expert’ (par. 50) may be an implicit suggestion that the domestic court in this case should differ from the experts’ opinions and feel free to grant asylum to the applicant. Yet, that is clearly insufficient to appease the legitimate concerns of asylum seekers in similar situations, since they will be at the mercy of (administrative and judicial) authorities who may happily offer probative value to ‘junk science’ detrimental to their asylum claims.

AG Wahl’s Opinion accepting in principle the use of projective personality tests in cases involving asylum claims on the basis of sexual orientation is deeply disconcerting. On the one hand, he clearly doubts the usefulness or appropriateness of such tests (even referring to Principle 18 of the Yogyakarta Principles protecting individuals from medical abuses based on sexual orientation or gender identity), and he alerts domestic courts to the possibility of disregarding them even when they are carried out. On the other hand, he does recommend that such tests should be allowed (even if with a range of supposedly helpful caveats), thus abandoning claimants to the mercy of potentially unsympathetic domestic authorities. Equally disconcerting is the fact that nowhere in the AG’s Opinion is there a reference to the principle of the benefit of the doubt: although it may not be strictly necessary to refer to this principle in this context, its absence is striking for leaving out of the equation an essential element of the evidentiary standards in refugee law (para. 203-204 of the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status). It is submitted that the focus of the Opinion should have been on the line of questioning that should have been used, such as per UNHCR Guideline No. 9.

he Opinion in this case could have much more simply asserted, as AG Sharpston did in her Opinion in A, B and C (largely followed by the CJEU), that ‘medical [or psychological, we would add] tests cannot be used for the purpose of establishing an applicant’s credibility, as they infringe Articles 3 and 7 of the Charter’ (par. 61), and that applicants’ consent is both essentially irrelevant and questionable (par. 67). Instead, AG Wahl offers poor guidance to the CJEU.

‘Projecting’ this Opinion onto the CJEU’s Judgment

In the F case, the CJEU will be called upon to interpret EU law with regard to the evidentiary assessment of SOGI asylum cases in a more targeted way than it did in A, B and C. Predicting a Court’s verdict is something one should try to avoid; however, the relevance of the issues at stake in the F case allows us to contemplate some potential scenarios. First, the CJEU has the option to build on and expand its approach in A, B and C and therefore construe its whole reasoning on the basis of respect for the EU Charter, particularly Article 1. In this sense, psychological personality tests to evaluate sexual orientation would be precluded, as the prohibition set forth by the CJEU in A, B and C is arguably not limited to physical examination, but extends more generally to all ‘“tests” with a view to establishing […] homosexuality’.

Secondly, should the CJEU follow the AG’s opinion, it would need to carefully construe how it is possible to ensure that psychologists’ expert opinions are truly limited to an evaluation on the general credibility, and not just a loophole to pave the way to unreliable psychological assessments of sexual orientation.

Further, the Court should make sure that any such expert opinions on credibility are not used as ‘lie detectors’ based on preconceived assumptions – otherwise we could well resort to Harry Potter’s veritaserum for all asylum claims. Moreover, the CJEU would need to explain how genuine consent can be sought, since the option of taking tests that are not compulsory but seen as useful for credibility assessment would put pressure on other applicants to take the tests, thus undermining the validity of any consent obtained.

Finally, should the CJEU agree with the use of projective personality tests in SOGI asylum claims, it would compromise the progressive steps previously taken in this area – a slippery slope we strongly hope the Court will not enter. The CJEU has already spelled out, in A, B and C, some of the crucial elements for deciding the present case; now, it is a matter of entrenching those elements, so as not to leave room for ambiguity or for the use of evidentiary means that are in breach of asylum seekers’ dignity and fundamental rights.

The authors wish to thank the useful comments provided by Dr Carmelo Danisi and Dr Moira Dustin on previous drafts of this text.

*Reblogged with permission from the EUMigrationlaw blog

Barnard & Peers: chapter 9, chapter 26

JHA4: chapter I:5

Photo credit: Wikimedia Commons

The EU and the Spanish Constitutional Crisis

Cecilia Rizcallah, Research Fellow at the Belgian National Fund for Scientific Research affiliated both to Université Saint-Louis Bruxelles and Université libre de Bruxelles

Background

Spain is facing, since more than a month now, a constitutional crisis because of pro-independence claims in Catalonia. These claims resulted in the holding of an independence referendum on 1 October 2017, organized by the Spanish autonomous community of Catalonia’s authorities, led by its President Mr. Carles Puigdemont. According to Barcelona, 90% of the participants voted in favor of Catalonia’s independency on a turnout of 43%.

Several weeks before the holding of the referendum, the Spanish Constitutional Court held that such plebiscite was contrary to the Spanish Constitution, and it was therefore declared void by the same Court. The Spanish central Government moreover firmly condemned this act and suspended Catalonia’s autonomy, on the basis of Article 155 of the Spanish Constitution which allows the central Government to adopt “the necessary measures to compel regional authorities to obey the law” and, thereby, to intervene in the running of Catalonia.

EU’s Incompetency in Member States’ Internal Constitutional Affairs

During these events, a contributor to the New York Times wondered “Where is the European Union?”. The Guardian stated “As Catalonia crisis escalates, EU is nowhere to be seen”. EU authorities’ restraint can yet easily be explained, at least, from a legal point of view. Indeed, the European Union has in principle neither the competence, nor the legitimacy, to intervene in its Member States’ internal constitutional affairs. Article 4.2 TEU incidentally underlines that the EU shall respect Member States’ “national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government” and that it “shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State”. The President of the Commission, J.-C. Junker stated that it was “an internal matter for Spain that has to be dealt with in line with the constitutional order of Spain” but however noted that in case of separation of Catalonia from Spain, the region would consequently “find itself outside of the European Union”. 

Puigdemont’s  Departure for Brussels

Theoretically, the EU has thus no legal standing to intervene in the Spanish constitutional crisis. Recent events have, however, brought the EU incidentally on stage.

Mr. Puigdemont, the deposed leader of Catalan authorities, left Barcelona for Brussels several days ago, where he declared he was not intended to seek asylum and that he would return in Spain if judicial authorities so request, provided he was guaranteed conditions of a fair judicial process. In the meanwhile, the State prosecutor decided to start proceedings against Mr. Puigdemont and other officials of the ousted Catalan government for rebellion, sedition and embezzlement and demanded to the judge in charge of the processing charges to issue a European arrest warrant (hereafter EAW) for Mr. Puigdemont and four other members of his former cabinet, after they failed to appear at the High Court hearing last Thursday.  The EAW was issued by the Spanish judge last week. EU law has thus been relied upon by Spanish authorities to respond to its internal crisis, because of the departure of several Catalan officials to Brussels, which constituted, at the outset at least, nothing more than a lawful exercise of their free movement rights within the Schengen area.

Mr. Puidgemont and the other people subject to a EAW presented themselves to Belgian authorities, which decided to release them upon several conditions including the prohibition to leave the Belgian territory. A Belgian Criminal Chamber has as of now two weeks to decide if they should be surrendered to Spain or not.

The Quasi-automaticity of the European Arrest Warrant System

According to Puidgemont’s Belgian lawyer, the former Catalan leader will agree to return in Spain provided that he will be guaranteed respect of his fundamental rights, including the right to an impartial and independent trial. He moreover underlined that Puidgemont will submit itself to Belgian judicial authorities which will have to assess whether or not these conditions are met.

The system of the EAW, however, entails a quasi-automaticity of the execution by requested authorities of any Member State. Indeed, because it relies upon the principle of mutual trust between Member States, requested authorities may not, save in exceptional circumstances, control the respect by the requesting State of fundamental values of the EU, including democracy and human rights. The Council Framework Decision 2002/584 of 13 June 2002, which establishes the EAW includes a limitative list of mandatory and optional grounds for refusal which does not include a general ground for refusal based on human rights protection (Articles 3 and 4). Indeed, only specific violations or risk of violations of fundamental freedoms justify the refusal to surrender, according to the Framework Decision. As far as the right to a fair trial is concerned, the Framework Decision does not include possibilities to rebut the presumption of the existence of fair proceedings in other Member States except when the EAW results from an in abstentia decision and only under certain conditions (Article 4a).  

A strong presumption of respect of EU values underlies EU criminal cooperation and the ECJ has, as of now, accepted its rebuttal on grounds of human right not included in the main text of the Framework Decision only where a serious and genuine risk of inhuman and degrading treatment existed for the convicted person in case of surrender (see the Aranyosi case, discussed here). In that respect, the lawyer of the other Catalan ministers who are already in jail has lodged a complaint for mistreatment of them, but more elements will be required to refuse the execution on the EAW on this basis.

Indeed, according to the Court of Justice, “the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention”. Moreover, the domestic judge must also “make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State” before refusing the execution of the EAW (Aranyosi, paras 89 and 92).

Furthermore, the possibility to refuse to surrender persons convicted for political offences – which is traditionally seen as being part of the international system of protection of refugees - has been removed from the Convention on Extradition between Member States of the European Union concluded in 1996 – which is the ancestor of the current EAW system - precisely because of Member States’ duty to trust their peers’ judicial system. Interestingly, the removal of this ground for refusal had been required by Spain when it faced difficulties to obtain the extradition of Basque independentists who were seeking for protection in Belgium. The Spanish government pleaded that the ground for refusal for political infractions constituted a hurdle to criminal cooperation within the EU which was at odds with the trust that Member States should express to each other (see E. Bribosia and A. Weyembergh, “Extradition et asile: vers un espace judiciaire européen?”, R.B.D.I., 1997, pp. 69 to 98).

In the current state of EU law, no option for refusal of execution of the EAW concerning Mr. Puidgemont seems thus to exist. It is noteworthy, however, that the EAW system may, as a whole, be suspended, when the procedure provided for by Article 7 TEU is initiated if there is a (clear risk of) violation of the values referred to in Article 2 TEU on which the Union is founded, including human rights, democracy and the rule of law. Although some people have called for the initiation of this mechanism, the reliance on Article 7 is very unlikely to happen politically: it needs at least a majority of four fifths at the Council just to issue a warning, and the substantive conditions of EU values’ violations are very high.

Nonetheless, Belgium has included in its transposing legislation (Federal Law of 19 December 2003 related to the EAW) an obligatory ground of refusal – whose validity regarding EU law can seriously be put into question -  if there are valid grounds for believing that its execution would have the effect of infringing the funda­mental rights of the person concerned, as enshrined by Article 6(2) of the TEU (Art. 4, 5°). Triggering this exception will however result, in my view, in a violation of EU law by the Belgian judge since the ECJ has several times ruled that the grounds for refusal included in the Framework Decision were exhaustive and that a Member State could not rely upon its national human rights protection to refuse the execution of a EAW which respects the conditions laid down in the Framework Decision (Melloni).  Another option for the Belgian judge will be to make a reference to the ECJ for a preliminary ruling in order to ask whether, in the case at hand, the presumption of conformity with EU fundamental rights in Spain may be put aside because of the specific situation of Mr. Puidgemont.

The Quasi-Exclusion of the Asylum Right for EU Citizens

Besides asking for the refusal of his surrender to Spanish authorities, Mr. Puidgmont could - at least theoretically – seek asylum in Belgium on the basis of the Refugee Convention of 1951, which defines as refugees people with a well-founded fear of persecution for (among other things) their political opinion (Article 1.A.2).

However, Spain also requested – besides the removal of the ground for refusal to surrender a person based on the political nature of the alleged crime in the European Extradition Convention of 1996 – the enactment of Protocol No 24, on asylum for nationals of Member States of the European Union, annexed to the Treaty of Amsterdam signed in 1997. This Protocol practically removes the right of EU citizens to seek asylum in other countries of the Union.

Founding itself on the purported trustful character of Member States’ political and judicial systems and the (presumed) high level of protection of fundamental rights in the EU, the Protocol states that all Member States “shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters” (Art. 1). Any application for asylum made by an EU citizen in another Member State shall therefore be declared inadmissible, except if the Member State of which the applicant is a national has decided to suspend temporarily the application of the European Convention on Human Rights in time of emergency (Article 15 of the ECHR; note that it’s not possible to suspend all provisions of the ECHR on this basis) or if this Member State has been subject to a decision based on Art. 7.1. or 7.2. TEU establishing the risk or the existence of a serious and persistent breach by the Member State of EU values referred to in Art. 2 TEU.

A Member State may also decide, unilaterally, to take an asylum demand into consideration at the double condition that it immediately informs the Council and that that the application shall be dealt with on the basis of the presumption that it is manifestly unfounded.  This last derogation has been invoked by Belgium which has adopted a declaration stating that it would proceed to an individual examination of each asylum demand of a EU citizen lodged with it. To comply with EU law, it must however consider each application manifestly unfounded rendering the burden of the proof very heavy for the EU citizen asylum seeker.  Belgian alien’s law provides for an accelerated procedure for asylum when the individual comes from an EU country (Article 57/6 2 of the Belgian Aliens Act) but statistics nevertheless show that about twenty asylum demands from EU citizens where declared founded in 2013 and 2014 by Belgian authorities.

The EU Brought on Stage…  

In both cases, the refusal to execute the EAW or the granting of an asylum right to Mr. Puidgemont would result from the consideration that the Spanish judiciary does not present the basic and essential qualities of independence and impartiality to adjudicate the case related to Catalan independence activists. This observation would likely result in a major diplomatic dispute between the two countries and, more widely, in the EU. Indeed, the consideration made by Belgium and/or the ECJ that Spain would not respect fundamental values of the EU in treating the case of Catalonia would jeopardize the essential principle of mutual trust between Member States, which is relied upon in criminal, asylum but also in civil judicial cooperation. The Spanish constitutional crisis could thereby potentially call into question the whole system of cooperation in the European Area of Freedom Security and Justice.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter I:5, chapter II:3

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A Pyrrhic victory? The ECJ upholds the EU law on relocation of asylum-seekers

Professor Steve Peers

How should the EU deal with the perceived ‘migrant/refugee crisis’? It has done a number of things, but back in September 2015, when the numbers of arrivals were peaking, it did something truly remarkable – requiring Member States to relocate 160,000 asylum-seekers from the ‘frontline’ states of Italy and Greece, which were bearing most of the burden of new arrivals.

In fact, this took the form of two separate decisions, as I discussed in detail at the time. The first decision was relatively uncontroversial, since it concerned only 40,000 people and Member States had agreed to admit them by consensus. But the second decision, concerning the other 120,000 people, was adopted against the objection of several Member States and set out mandatory quotas for admission. This led to legal action by Slovakia and Hungary to challenge this decision before the ECJ (see discussion of the Slovak challenge here).

This week, the ECJ ruled against this legal challenge, following soon after the opinion of its Advocate-General, who took the same view. As we shall see, this case brings into sharp relief the conflict between effectiveness and legitimacy in EU law – and indeed between effectiveness as a legal principle and practical effect on the ground.

The Court’s judgment

The Court gathered the legal arguments into three main areas: the ‘legal base’ (ie whether the EU had the power to adopt the second relocation decision at all); the procedure followed to adopt the decision; and the substance of the decision, in particular as regards the principle of proportionality.

Legal base

The ‘legal base’ for the adoption of the decision was Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). This clause has been around since the Maastricht Treaty, being amended by the Amsterdam and Lisbon Treaties; but it had never been used before September 2015. It says that if ‘one or more Member States’ face ‘an emergency situation characterised by a sudden inflow’ of non-EU citizens, the Council (Member States’ interior ministers) may ‘adopt provisional measures’ to benefit those Member States, on a proposal from the Commission after consulting the European Parliament (EP). The default rule of qualified majority voting in the Council implicitly applies. So do the opt-outs for the UK, Ireland and Denmark.

First of all, the Court rejected the argument that the relocation decision was a ‘legislative act’, sticking to the strict definition of legislative acts set out in the Treaties. In short, the decision was not a legislative act because the Treaty doesn’t define it as one. It followed from this that there was no obligation for the Council to consult national parliaments or to meet in public when adopting the decision.

Next, the Court ruled that it was possible for this non-legislative act to amend existing legislation, namely the Dublin III Regulation on responsibility for asylum-seekers. Taking a broad view of the power conferred by Article 78(3), ‘provisional measures’ could amend legislative acts for a limited period, as long as they do not amend legislation permanently. That was the case here, since the decision only applied for two years and related to a specified and limited number of people.

The Court also ruled that the decision was ‘provisional’ in that it only applied for two years. A shorter period might not have been enough time to address the crisis, and the previous limitation to six months had been removed when the Treaty was amended, suggesting an intention by Treaty drafters to give the EU more flexibility. While anyone who obtained refugee status would in principle keep that status after the decision ceased to apply, that did not mean the decision wasn’t provisional, since obtaining long-term status is inherent in the idea of asylum policy. The amount of time it might take to adopt legislation by comparison was irrelevant.

Then the Court ruled that the influx of asylum-seekers was sufficiently large to count as ‘sudden’ for the purposes of Article 78(3), and the link between the influx of people and the emergency was strong enough to say that that emergency was ‘characterised’ by the influx. 

Procedural issues

First, the Court rejected the argument that the decision breached the guidelines set by the European Council (Member States’ leaders), which have a specific power to set such guidelines as regards Justice and Home Affairs (JHA) law. It pointed out that those guidelines only related to the first, uncontested, relocation decision, then went on to point out that the European Council could not constrain either the Commission’s power to propose measures or the Council’s power to adopt them by a qualified majority. As for the alleged breach of the EP’s prerogatives, while it must be reconsulted if there is an essential change to the Commission’s proposal – and the removal of Hungary from the list of beneficiaries was such an essential change – it had been informed of that essential amendment to the text before it voted.

Moreover, the Commission had consented informally to the Council’s change to its text – which is a requirement for the Council to vote by qualified majority. Also, the Court took a flexible view of the rules on languages used in the Council. Only the main texts under consideration, not all amendments to them, need to be available in all EU languages.

Substantive issues

The Court rejected the arguments that the decision was not suitable to obtain its objectives. True, as Commission reports have pointed out, not many asylum-seekers have actually been relocated, but that could not be foreseen at the time – and that was implicitly partly the fault of the plaintiff Member States for not implementing the decision in practice. (The Advocate-General’s opinion dismisses this “I killed my parents, give me sympathy as a poor orphan” line of argument more bluntly).

In the Court’s view, the Council could not be limited to financial support alone and so had the power to set mandatory quotas against Member States’ wishes. Also the Court claimed that the EU’s existing temporary protection Directive (which was adopted in 2001 to deal with future crises, but never actually used) could not have worked as an alternative, since it only provided for protection where asylum-seekers are located – so implicitly did not provide for relocations between member States.

Next, the Court rejected Hungary’s argument that given the large numbers of asylum-seekers it was receiving, it should not have been allocated any more – given that Hungary had expressly argued that it did not want any relocation of asylum seekers from its territory, it was in effect estopped from arguing that it was overburdened that it could not accept any more of them. (The Opinion sets out the hilarious argument that while Hungary ‘continues to form part of the Member States that support’ Italy and Greece, it ‘does so in a different way from the other Member States’ by, er, not actually helping Italy and Greece at all.)

Furthermore, the Court rejected the argument that the EU rules violated the Geneva (Refugee) Convention by potentially forcing asylum seekers to leave the country where they were located, pointing out that this did not subject them to refoulement to an unsafe country but only changed which Member State their application for asylum would be considered by.

Finally, the Court rejected Poland’s arguments as an intervener. In particular, the argument that Member States which are ‘virtually ethnically homogeneous, like Poland’ should not receive migrants was rejected, both because it infringed the principle of solidarity and because considering ‘the ethnic origin of applicants for international protection’ would be ‘clearly contrary to EU law and, in particular, to Article 21 of the Charter of Fundamental Rights of the European Union’, which guarantees non-discrimination on grounds of (among other things) ethnic origin.

Comments

The Court’s judgment is suffused by the principle of solidarity between Member States on asylum and immigration matters, as set out in Article 80 TFEU (the Advocate-General’s opinion, even more so). To that end, it gives the EU broad powers, and wide discretion to use them, to address the perceived crisis. 

Most of the Court’s arguments are convincing. It would indeed be hard to address a large influx of people without amending EU legislation temporarily, given the wide scope of that legislation and the broader context of establishing a ‘common European asylum system’.  But the Court is right to ensure that this power is not unlimited, by insisting that any emergency measure can only be temporary and limited in scope. This means that any future measure more ambitious than the 2015 decision might be challenged for going beyond the limits set out by the Court. 

Note that the Court was not asked if Article 78(3) decisions can amend the Treaties temporarily, since the contested decision did not do so. The answer must surely be no, given the hierarchy of norms in EU law. So the general rules on EU asylum law set out in Article 78(1) TFEU – including the obligation to respect non-refoulement, the Geneva Convention, and other relevant (human rights) treaties – continue to apply when emergency measures are adopted. (This is implicitly confirmed by the Court’s willingness to consider the validity of the decision in light of the Geneva Convention). Article 78(3) cannot therefore be a route to address perceived crises by means of (for instance) detentions, interceptions or expulsions which would violate that Convention or the non-refoulement rule, or which would otherwise breach human rights law – including the EU Charter of Rights, which has the ‘same legal value’ as the Treaties.

Nor was the Court asked about the separate proposal to amend the Dublin III Regulation to set up a permanent system for addressing emergencies. This has a different legal base than Article 78(3), so perhaps an outvoted Member State could re-run the arguments that failed in this week’s judgments. However, the Advocate-General’s opinion supports the legality of this proposal too.

The Court’s rulings on the decision-making issues are also convincing, and are an implicit rebuke to those non-lawyers who argue that the European Council is the fount of all EU power. Then again, given Member States’ unwillingness to apply these decisions in practice, this saga confirms the argument that it is politically unrealistic for the EU to undertake very controversial ‘high politics’ policies – no matter how legally secure they are – without all participating Member States’ consent.

Odd as it may seem, there’s also a possible Brexit relevance to this judgment, since the EU’s negotiation position takes the form of guidelines adopted by the European Council and then negotiation directives adopted by the Council, and the Council ultimately concludes the withdrawal agreement by qualified majority. In the event that a Member State is outvoted when concluding the withdrawal agreement and so challenges the agreement arguing that the reference to the European Council requires acting by consensus, this judgment suggests by analogy that it’s the Council’s power to act by a qualified majority vote which is legally decisive.

On the substance of the legal challenge, it’s notable that the Court misinterpreted the temporary protection Directive, which does provide for potential transfers of beneficiaries between Member States. The real distinction between the two – as the Advocate-General’s opinion points out – is that the Directive makes such transfers conditional on the voluntary consent of Member States, whereas the contested relocation decision sets out mandatory quotas. In any event, there’s nothing in the decision to give priority to the ‘emergency’ route over the ‘temporary protection’ route: it’s the Council’s discretion which path (if any) to choose in the event of a perceived crisis.

It’s also striking that the Court rejected Hungary’s argument about the Geneva Convention, confirming judicially the view long implicit in EU legislation (but contested by some refugee advocates) that sending an asylum-seeker to another country which is sufficiently ‘safe’ to consider their application is not a breach of the Convention. (Cynics might suggest that Hungary advanced this argument in the hope that the ECJ would in fact reject it in these terms). Of course, this begs the question as to when a country is sufficiently ‘safe’ – an issue frequently litigated in the ECJ as regards other Member States but not (yet) as regards non-Member States.

That brings us to the Court’s response to the Polish intervention. The Court didn’t have to respond to that intervention, since it ruled that it was inadmissible. But it clearly wanted to, and did so in the strongest terms, ruling that Poland's argument would breach the principle of non-discrimination on grounds of ethnic origin. The Court’s approach comes across as a kind of ‘reverse dog whistle’ – saying “Get lost, you’re racist” as subtly as it could to a Member State. And it follows from the Court’s ruling on this point that any kind of Trump-like ‘Muslim ban’ would violate EU law too, since the Charter equally bans religious discrimination.

But such arguments won’t convince those with a frenzied obsession about ‘white genocide’, just as ruling that the quotas are legal won’t convince Member States (and not just the plaintiff Member States in this case) to apply the relocation decision, which is about to expire anyway. As noted above, this saga shows the tension between legitimacy and effectiveness in EU law sharply: the Court defends the decision’s legal legitimacy in light of the principle of effectiveness, but that decision’s political legitimacy has been ebbing away since it was first adopted. That latter form of legitimacy was not bolstered by adopting the decision against the opposition of several Member States – and indeed the Court’s ruling has now given them another stick with which to beat the EU in particular and ‘scary Muslim migrants’ more generally.  Meanwhile the EU has taken a different course towards the perceived crisis, working with Turkey and now Libya to reduce the numbers who reach the EU to start with – although nothing will satisfy those who believe that ‘none is too many’.

Barnard & Peers: chapter 26

JHA4: chapter I:5

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