CJEU case law on EU citizenship: normatively consistent? Unlikely! - A response to Davies’ ‘Has the Court changed, or have the cases?’

Alexander Hoogenboom, PhD, MSc. LL.M. Senior Policy Officer at the Dutch Healthcare Authority and associate researcher at the Institute for Transnational and Euregional cross border cooperation and Mobility, Faculty of law, Maastricht University. The position taken in this paper solely reflects the views of the author.

Introduction

Recent case law of the Court of Justice on EU citizens’ access to benefits has been seen by some as a restrictive turn compared to prior case law, in response to a rise in populism. However, the article by Davies in a recent special issue of the Journal of European Public Policy is to be commended for its original take on this alleged ‘turn to restrictiveness’. The goal of his article is, as I see it, questioning whether the Court has indeed recently become stricter (in the sense of more State-friendly, less Union citizen-friendly) in response to the populist turn in the European political landscape. In that vein, Davies submits, contrary to what he sees is the main thrust in the scholarship, that the court has been ‘normatively consistent’ (see also this research paper he authored) and that the perceived difference in recent litigation outcomes from the golden years of Union citizenship are due to the litigants being less ‘deserving’ of access to benefits provided by the host Member State: ‘what goes in will provide an overwhelmingly plausible explanation of the outcomes on its own’.

This argument is supported by relying on a methodology for measuring the ‘deservedness’ of the litigants based on a set of indicators: the ‘good behaviour’ of the applicant, the possibility for exceptional harm should the benefit be denied, the possible cost to society resulting from the grant of a benefit (e.g. because it is long-term or applies to a large category of persons), whether granting the benefit would mandate a particular positive outcome and whether the State was somehow at fault for the specific conundrum that the litigant finds him or herself in.  The more ‘deserving’ (high contribution to society, low cost), the greater the likelihood of a litigant-positive result.

Applying these criteria to a selection of case law, Davies proceeds to show that indeed, the Dano’s (never worked, never integrated, lacked resources for self-support) of the world seem to be less deserving of benefits than the Sala’s (long-term legal resident, child benefit denied due to a technicality by an inconsistent state). (On the Dano case – the first judgment showing the perceived turn toward a stricter approach – see the discussion here).

There are, however, a few issues one could take with this approach. In part, it is questionable whether the facts as available to scholars of EU law decisions allow one to accurately apply the proposed test – especially given that the publication of the Reports for the Hearing was abolished since 2012 (see also para 119 of the AG opinion in Breyer). This is exacerbated, as Davies admits, by the fact that a negative outcome throws its shadow forwards: one then tends to present the facts in such a way as to support the later conclusion.

In part, it is questionable whether deservedness is objectively verifiable: after all, one could also argue that the rise of populism or say an economic crisis – the ‘times we live in’ – simply provide a different kind of lens through which to view the migratory Union citizen. The same fresh-faced youth enrolling in higher education in a Member State different from the one of his nationality can be cast as a self-improving, future productive member of that society (compare to Gravier, para 24) or as a welfare-abusing, locust-like creature eating his or her fill and subsequently returning from whence he or she came (see the main arguments by Belgium and Austria in the the judgment in Bressol).

However, the main challenge I would like to level is that the methodology suggested is applied to an incomplete ‘data set’ (the cases), in part due to selection bias (the focus in the article on the cases ‘most discussed’).

Grzelczyk by another name: The curious case of Förster

The case of Grzelczyk is among those used by Davies to support his thesis: his particular circumstances ‘paint a sympathetic picture’. A hard-working young Frenchman, resident in Belgium for some time and whose claim to financial support finish his last few months of study would seem altogether reasonable. Indeed, the Court, while leaving it to the national court to make the final decision, seemed to suggest he should be so entitled.

Nonetheless, the Court was not so generous in Förster. Jacqueline Förster was a German national who grew up in a town not far from the Dutch border. She moved to and resided in the Netherlands from March 2000 onwards – partly to be with her Dutch boyfriend. There, she enrolled into a teacher training programme and later in a course on educational theory at the Hogeschool van Amsterdam. In the period 2000-2002 she undertook various part-time jobs, until she engaged in full-time paid practical training at a Dutch school providing secondary education for children with special needs (October 2002 – June 2003). After her practical training she did not engage in gainful employment until July 2004. She graduated from her course that summer.

At stake was the intermezzo period: the Dutch Student Benefit Authority (then called IB-Groep) assessed in 2005 that she had not been eligible for study maintenance assistance in the second half of 2003 and ordered her to repay the amounts received.

It would seem to me that Ms. Förster ticked practically the same as mr. Grzelczyk. Measuring her ‘deservedness’ according to the matrix suggested by Davies we find:

-       Good behaviour: self-support initially (three years), enrolled in studies and contributing to Dutch society even during her studies in her practical training period. Advocate-General Mazàk moreover made the explicit point that she did not seem to have moved with the goal of claiming benefits.

-       Exceptional harm: Although the withdrawal of the benefit was retroactive, when assessing her right to access the benefit as matters stood in 2003 one could plausibly maintain that, as with Grzelczyk, non-access to the benefit would have made the completion of the degree much more difficult.

-       The support requested covered only a limited time: at issue was a six-month period only.

-       Limited cost of the support: As with Grzelczyk, this aspect is hard to estimate.

-       Positive outcomes: the completion of the degree would enable her to contribute to Dutch society and economy as a teacher.

-       State at fault: One could make the argument that given the fact that they had initially granted her the benefit and only much later (some one and a half years) took the final decision to recover the amount, should count against the Dutch state.

Finally, in addition to these elements from Davies’ deservedness matrix, the applicant had a relationship with a Dutch national and given her work, presumably, spoke fluent Dutch – both elements that the Court in other cases has found relevant when assessing eligibility to benefits (see Prinz and Seeberger, for instance).

All in all, one would assume, from the methodology applied that this applicant should be successful, or that should have led to a ‘discretionary-result-with-a-hint-in-favour-of-the applicant’. Yet, she categorically lost her case, notwithstanding the suggestion by the Advocate-General to consider the circumstances of the case along the lines suggested above. Yes, the conclusion was (partly) mandated by the EU citizens’ Directive 2004/38, but the Court certainly did not ‘bend over backwards to find exceptions to [this] restriction’ as his matrix would predict.

The big turnaround: Commission v Austria and Commission v the Netherlands

The cases of Commission v Austria and Commission v the Netherlands are perhaps even more glaring. The issue concerned a travel benefit aimed at students attending higher education. In the Austrian case, decided in 2012, Austria argued that it could refuse access to the benefit where the Union citizen in question had not yet obtained a right to permanent residence (a five-year prior residence requirement in practice). In contrast, the Court found that all persons enrolled in higher education should have automatic access.

The case is somewhat hard to fit into the matrix, but intuitively one could argue that the Court was not swayed by the hypothetical good behaviour of potential beneficiaries (no prior residence requirements, no integration), nor was the benefit for a limited time (it could last the entire study period), all persons enrolled in higher education persons were eligible (no ‘limited costs’) and it is hard to imagine an ‘exceptional harm’ had the benefit been denied to the hypothetical applicant. Notwithstanding this apparent lack of deservedness, however, a positive outcome for the hypothetical beneficiaries.

In 2016, in Commission v the Netherlands, the Court reached the opposite conclusion. The benefit at issue was in all respects the same as at stake in Commission v Austria (Table taken from A. Hoogenboom, Balancing Student Mobility Rights and National Higher Education Autonomy in the European Union (BRILL, 2017)):

	Austria	The Netherlands
Nature of the benefit	Fee reduction for the use of public transport (grant)	Free use of public transport on some days of the week; reduced fees on the other days (conditional grant)
Apparent purpose	To facilitate access to education	To facilitate access to education
Provision	Commercial public transport operators	Commercial public transport operators
Financing	The individual governments of several Länder	Central Dutch government
Recipient	Student	Student
Eligibility	Enrolment higher education Parents in receipt of Austrian family allowances	Enrolment in higher education. Student in receipt of Dutch studiefinanciering

Here the Court decided that the Netherlands could restrict the benefit along the terms suggested by Austria in the earlier case. It stretched the limits of consistency by trying to distinguish the latter case with a bizarre reference to the difference in national classification of the benefit, despite it being settled case law that such classifications are irrelevant - a point the Court itself made in Commission v Austria.

So here we initially have a judgment against the State and in favour of the Union citizen, whereas the matrix would likely predict a judgment in favour of the State. Four years later the Court came, on largely the same facts, to the opposite conclusion. This should not be seen as a (late) vindication of the matrix however, since the Court formally distinguished the latter case from the former, meaning that both cases continue to be good law.

Conclusion

Whereas the line of inquiry presented in Davies’ paper is an interesting one, it cannot account adequately account for the existence of Förster and the Commission v Austria/Netherlands saga. Apparently deserving applicants get rejected, and the same benefit with a similar hypothetical user base gets a different legal treatment in the space of a few years. Two possible explanations suggest themselves:

-       The Court is not consistent. This would mean that Davies’ hypothesis is disproven.

-       The matrix presented, by which the court supposedly measures deservedness, is flawed. This goes to the methodology used and means that we simply haven’t found calculus that the Court uses.

It would seem to me that the existence of both Commission v Austria and Commission v the Netherlands as ‘good law’ seems to hint at the former. In any case, however, to argue that the Court of Justice is normatively consistent, on the basis of the analysis carried out by Davies, is a bridge too far.

Barnard & Peers: chapter 13

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Fair Movement of People: Emergency Brake (Part 3)

Catherine Barnard and Sarah Fraser Butlin*

*The authors are both at the University of Cambridge and funded by the ESRC’s UK in a Changing Europe programme. An expanded version of some of these arguments can be found in Barnard and Fraser Butlin, ‘Free movement v. Fair Movement: Brexit and Managed Migration (2018) 55 Common Market Law Review 203

Introduction

In the first two blogs (here and here) in this series we began to outline our notion of ‘fair movement’. In the first blog we argued for a clear linkage between the ability to migrate into the UK and undertaking an economic activity.  In the second blog we argued that current restrictions on the principle of equal treatment should be utilised, particularly residence requirements, before allowing access to social security benefits.  This final blog focuses on the third element of the proposed scheme: the emergency brake provisions. We argue that combining our approach to equal treatment with an emergency brake would achieve a managed but flexible approach to migration.  This approach reflects both the origins of free movement and other existing agreements, including with EEA states. Such an approach based on fair movement may, therefore, be acceptable to the EU in a future trade agreement while at the same time go some way to meeting the concerns of UK voters. As with the previous two blogs, we locate our arguments in the context of the original discussions about the shape of free movement rules to show continuity between what we propose and what the EU has considered in the past.

Origins of Free Movement

Although the question of an emergency brake was a difficult issue during the discussions establishing the Common Market, the need to restrict free movement in certain circumstances was a consistent theme.  Thus, a note by the Inter-Governmental Committee (IGC) in November 1955 recognised the need for certain safeguarding clauses in case of an influx of a workforce that would cause a particular risk to certain industries in a particular country.  This reflected the concerns of several delegations: the French delegation was worried that migration should be limited according to the capacity of the member state to absorb migrant workers; Luxembourg was concerned about its ability to implement free movement of workers, given its social and demographic structure; and Belgium had concerns about the burden created by possible large scale migration.

The Spaak report of 21 April 1956, which provided the foundations for the negotiations establishing the Common Market, supported earlier proposals for the gradual introduction of free movement by way of a 1% increase in migrant worker numbers each year. However, the report also noted the reluctance of workers to move, even within one country and this indicated that some sort of controlled migration might not in fact be necessary.  Ultimately, it seems that this latter view won the day: the final version of Article 48 EEC on free movement of workers (now Article 45 TFEU) included no reference to quotas, nor to a gradual introduction of free movement nor an emergency brake. 

Nevertheless, the history of the provision shows that the possible need for an emergency brake of some sort was a concern for many of the delegations, albeit that so little migration occurred between 1957-2004 that any further discussion of an emergency brake on migration proved unnecessary. The world has since changed. While continued free movement would be what the EU would like, political realities indicate change is needed. So we ask: Is there a way of facilitating free movement while meeting the political need to take back some control of migration? We argue there is and existing agreements provide the way.

Existing agreements

Some people have suggested that an emergency brake of some sort can be read into the express derogations of the Treaty. However, we focus on four other agreements which, we argue provide a more secure template for an emergency brake provision.

Firstly, Article 112 of the European Economic Area (EEA) Treaty contains a broad safeguard clause:

If serious economic, societal or environmental difficulties of a sectoral or regional nature liable to persist are arising, a Contracting Party may unilaterally take appropriate measures under the conditions and procedures laid down in Article 113.

Article 112(2) adds that ‘Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Agreement.’ Article 113 EEA prescribes the procedure for triggering the procedure, involving the notification of Contracting Parties and consultation with the EEA Joint Committee.  When exceptional circumstances requiring immediate action exclude prior examination, protective measures may be applied.  Safeguard measures that are taken must be reviewed every three months with a view to their abolition or to the limitation of their scope of application. A safeguard clause of this kind has been borrowed for the purposes of the Northern Ireland/Ireland Protocol in the draft Withdrawal Agreement.

Secondly, the EEA agreement did contain one specific limitation on free movement of people for the tiny state of Liechtenstein. Before Liechtenstein joined the EEA, the EEA Council recognised that it was vulnerable to excessive migration due to its very small inhabitable area.  Upon joining the EEA, temporary measures were put in place allowing Liechtenstein to impose ‘quantitative limitations’ on immigration until 1 January 1998.  Towards the end of the transitional period, no permanent solution had been found and Liechtenstein unilaterally invoked Article 112 EEA.  On 17 December 1999 it was decided that the ‘specific geographical situation’ of Liechtenstein still justified the maintenance of certain conditions on the right to taking up residence. Text was added to the EEA Agreement, providing that EEA citizens may take up residence in Liechtenstein but were required to have a residence permit if they were remaining for more than 3 months of the year or to take up employment or other permanent economic activity. A permit was not required for those providing cross-border services. A quota for residence permits was applied although no permit is required to be able to work in Liechtenstein, only to reside there. These arrangements are reviewed every five years.

Thirdly, Switzerland has introduced a new provision giving priority for local hires following the Swiss Referendum in February 2014. The Swiss electorate had voted to amend the Swiss Constitution to limit immigration through quotas and restrict the rights of foreign nationals to permanent residence, family reunification and access to social benefits. This was incompatible with the bilateral EU Agreement on Free Movement of Persons within the EU and the EU reacted by suspending Switzerland’s participation in the EU research and student programmes, Horizon 2020 and Erasmus+.

Lengthy negotiations followed and eventually on 16 December 2016 a new law was adopted, coming into force in the summer of 2018, giving priority to Swiss-based job seekers, that is, both Swiss and foreign nationals registered with Swiss job agencies, in sectors or regions where the unemployment rates are higher than average. ‘Higher than average’ unemployment has been defined as the 12 month average unemployment rate plus 5 percentage points.  During the transitional period, this will rise to being the 12 month average unemployment rate plus 8%.  In those sectors or regions, an employer must advertise any role with the central employment agency for five working days. Only after that period, may the job be advertised through all the usual channels and the employer may recruit from abroad.  An employer will be fined for non-compliance.

Fourthly, the text of the (now defunct) New Settlement Agreement, negotiated by David Cameron with the EU in February 2016, contained not only provision for an emergency brake on benefits but also a potentially significant provision of a putative emergency brake on the volume of migration:

Whereas the free movement of workers under Article 45 TFEU entails the abolition of any discrimination based on nationality as regards employment, remuneration and other conditions of work and employment, this right may be subject to limitations on grounds of public policy, public security or public health. In addition, if overriding reasons of public interest make it necessary, free movement of workers may be restricted by measures proportionate to the legitimate aim pursued. Encouraging recruitment, reducing unemployment, protecting vulnerable workers and averting the risk of seriously undermining the sustainability of social security systems are reasons of public interest recognised in the jurisprudence of the Court of Justice of the European Union for this purpose, based on a case by case analysis. (emphasis added)

So where is the emergency brake? It is buried in the language. According to the orthodoxy, direct discrimination can only be saved by express derogations, indirect discrimination can be saved by a broader range of objective justifications. The striking feature of the Brussels text is that it does not restrict objective justifications (or ‘overriding reasons of public interest’ as they are referred to) to indirectly discriminatory measures. This might suggest that even directly discriminatory measures could be justified on the grounds of ‘encouraging recruitment’ and ‘reducing unemployment’. This might suggest that there was scope to read into the New Settlement Agreement a means of developing the EU’s own emergency brake on the volume of migration.

We therefore argue that there are models for what might become the UK’s emergency brake. How might they be applied in the context of a model based on fair movement?

IV The Future?

We would call for the introduction of an emergency brake, not at national level but at regional level, perhaps at the level of devolved administrations or other regional groupings, to take account of the substantial variation in the needs of the regions. At present Scotland is calling for more migration, parts of England less so. Thus, an emergency brake mechanism would need to apply on a regional basis. Relying on both economic data (such as labour market criteria e.g. relative levels of unemployment, demands for unemployment benefits, wage levels), demand for public services (e.g. population growth, population churn, waiting lists) and political experience (e.g. what constituents are saying through the ballot box and in person at surgeries), these regions could make a request to national government to impose restrictions on migration for a time limited period. These restrictions might be sectoral, based on skill levels, or more general and for a defined period of time.  The operation of the registration system outlined in blog 1 would be the vehicle for controlling those who could work in a particular area.

Who might pull the emergency brake?  There is clearly a need for both an objective evidence base for its application such as economic data. However, given the highly politicised nature of the issue, the decision of when to pull the emergency brake could not simply be left to a body separate to the Government.  Nevertheless, we would suggest that there would also need to be certain safeguard provisions in place requiring minimum objective indicators in the economic data to be met before any subjective political decision might be made. The EU is unlikely to concede on any such mechanism without a dual control by the EU. So a mechanism like the one in Article 113 EEA would also need to be established.

Would such mechanisms satisfy Leave voters or would they regard them as merely window dressing? Much depends on the seriousness with which the mechanism is regarded, the rigorousness of the objective criteria and the willingness of local politicians to engage.

V.Conclusions

For purists, what we are proposing does serious damage to the principles of free movement of persons.  We know that. However, we recognise that, following Brexit, the UK will no longer be in the EU’s paradigm of free movement. While universities and other big employers have benefitted from free movement, we recognize that politically free movement is unlikely to be the outcome of the negotiations (except possibly for a short transitional period).   The economic benefits of migration are not in doubt but we recognize that the political will for continued free movement is simply not there. 

In our scheme, we seek to square that circle and offer some, admittedly crude, options for a way forward.  What we propose is a scheme which demonstrates to the British public that the government is taking back control of migration while at the same time offering flexibility for those employers, including farmers and those in the hospitality sector, who argue they need access to EEA workers but without facing the bureaucracy and costs associated with a full blooded visa regime.

Some might argue that our proposed scheme, discussed across the three blogs, is not so different from the current free movement rules as applied in the UK. We disagree. First, our proposal for fair movement introduces a registration scheme and requires those registering generally to be engaged in economic activity. Second, we have argued that economic activity must be accompanied by a meaningful salary threshold or have a relatively high skill level. Third, our scheme would allow restrictions on access to social security benefits. Fourth, we argue that there should be an emergency brake which is not currently available under EU law.

We recognize that a scheme which is neither free movement nor highly restrictive access risk pleasing noone but at the moment there is little else on the table. We also recognise that concerns about migration are many and varied and that they interconnect with concerns about other policy choices: cutbacks in public services, the failure of the planning system to deliver sufficient and affordable housing to meet local needs, and the failure of the enforcement agencies (where they exist) to ensure that EU workers’ employment rights are enforced.

The system we propose would show that the UK is responding to the basic calls to take back control of immigration, while giving the government time to tackle the deeper seated, more intractable problems concerning lack of skills and training in the UK and the need to provide proper funding for public services.

Barnard & Peers: chapter 27

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Fair movement of people: equal treatment? (Part Two)

Catherine Barnard and Sarah Fraser Butlin*

*The authors are both at the University of Cambridge and funded by the ESRC’s UK in a Changing Europe programme

Introduction

In the first blog (here), we argued that a future UK/EU migration policy should be based around the notion of fair – not free – movement. One element of this would be a work permit scheme dependent on having genuine employed or self-employed activity (or sufficient resources for migrants and their families), accompanied by a simplified registration scheme, based on the scheme already used for Croatian migrants.

A second element of our scheme would include possible restrictions on the principle of equal treatment in respect of both work and access to benefits.  We suggest that the UK needs to utilise the restrictions on equal treatment that already exist in the Citizens’ Rights Directive 2004/38 while developing the restrictions on the equal treatment principle contained in the Brussels New Settlement Agreement negotiated by David Cameron in February 2016.  We suggest that this may (eventually) be acceptable to the EU because it reflects both the origins of the free movement provisions in the EU and a political realisation that free movement is less popular than it was for Western EU states. Anything negotiated for the UK might offer a path for Austria, Denmark, Germany and other Member States to restrict access to benefits to EU migrants in the first years of their arrival.

II Origins of Free Movement and the equal treatment principle

The 1948 Paris Treaty saw free movement as a way of optimising a natural resource, namely labour, but one which was subsidiary to the objective of seeking full employment for national workers. However, it was also clear that where host States chose to use migrant workers, they had to ensure that migrants enjoyed satisfactory conditions, albeit not necessarily equal treatment. Nevertheless within a year, the five signatory States (Belgium, France, Luxembourg, the Netherlands and the UK) of the Brussels Treaty recognised the need for equal treatment of migrant workers in relation to social security and concluded the Multilateral Convention on Social Security. 

In 1951, the Treaty founding the European Community for Coal and Steel (ECSC) made provision, by way of Article 69(1), for non-discrimination on the grounds of nationality in the coal and steel industries of workers of proven qualifications, subject to the “limitations imposed by the fundamental needs of health and public order”. 

Thus, even before formal discussions about the establishment of the Common, now Single, Market, had begun, ideas of equal treatment of migrant workers and the interrelationship between free movement of labour and social security provision were already in play as a means of facilitating the free movement of labour. In the proposals of the Inter-Governmental Conference (IGC) in June 1956, free movement was to be defined as ‘the right to present oneself in any country of the Community to the posts advertised and to remain in that country if a job is actually obtained’ and this was without ‘any restriction which does not apply to national workers themselves’ i.e. they had to enjoy the principle of non-discrimination which was delivered by Article 45(2) TFEU.

Scroll forward through the ensuing half century and the principle of equal treatment is extended to those EU migrants who were not fully economically active (students, the retired and persons of independent means (PIMs)), and even those without resources by a combination of the Citizens’ Rights Directive 2004/38 (CRD) and the Treaty provisions including those on EU citizenship.

The CRD already contains limits on the right to equal treatment. For those who are not economically active, they are not entitled to equal treatment in respect of social assistance (benefits for the very poor) for the first three months, nor are they entitled to equal treatment in respect of student grants and loans until they have been in the host country for 5 years. The five year restriction on students grants and loans also applies to those who are economically and semi-economically active. Nevertheless, those who are economically active enjoy equal treatment from day one in respect of all other matters. However, the principle of equal treatment has always allowed states to impose, say, a one-year residence requirement before receiving a benefit although only if the residence requirement can be objectively justified and is proportionate.

Notwithstanding the possibilities open to the UK to restrict equal treatment, these limitations were not sufficient for many UK voters. In the run-up to the referendum in the UK there were concerns about EU workers claiming equal treatment in respect of in work benefits such as tax credits. There was particular concern about equal treatment for those who were not economically active. The EU ‘benefit scrounger’ became the bogeyman of the UK’s referendum.

III Recent Court of Justice jurisprudence on citizenship

There were signs that the Court of Justice (CJEU) had started to listen to these concerns, especially about equal treatment for those not economically active. For example, in Collins the CJEU held that a habitual residence requirement prior to claiming a benefit could be objectively justified by the need to ensure that there was a genuine link between the applicant for an allowance and the geographic employment market in question. This decision chimed with a broader recognition by both the Tory and Labour parties that there was a need for “fair contribution” before benefits should be paid.

In Dano (discussed here) the Court suggested that, in the case of a person who was not economically active, the right of lawful residence, acquired by demonstrating possession of comprehensive sickness insurance and sufficient resources, as required by the CRD, was a precondition to the enjoyment of the principle of equal treatment. The Court held expressly that benefit tourism would not be encouraged. 

In Commission v UK (discussed here) the Court confirmed that there was nothing to prevent the grant of social benefits to Union citizens who were not economically active being made subject to the substantive condition of a right to lawfully reside in the Member State.

Thus, the recent case law puts considerable power in the hands of the host Member States: individuals can be excluded from even relying on the equal treatment principle if they do not satisfy the requirements of the CRD. Even if they do satisfy those requirements, states can still impose residence requirements as a precondition to entitlement to benefits, provided those residence requirements are justified and proportionate, and states can impose checks to verify this. There were signs that the Court was beginning to let states take back some control of its welfare states.

IV        “New Settlement” agreement

Some of the restrictions on the principle of equal treatment and benefits recognised by the Court were incorporated in David Cameron’s now defunct ‘New Settlement’ or Brussels Agreement, negotiated with the EU in February 2016. It effectively codified the CJEU’s decisions in Dano and, another case decided at much the same time, Alimanovic (discussed here): Member States could refuse to grant social benefits to people who did not have sufficient resources to claim a right of residence or who were solely entitled to reside because of their job search. 

However, more significantly the Brussels Agreement introduced the idea that there could be an emergency brake on in-work benefits. The agreement proposed amending Regulation 492/2011 ’to take account of a pull factor arising from a Member State’s in-work benefits regime‘ in order to ‘provide for an alert and safeguard mechanism that responds to situations of inflow of workers from other Member States of an exceptional magnitude over an extended period of time’. A Member State wishing to use the mechanism would notify the Commission and the Council that ‘such an exceptional situation exists on a scale that affects essential aspects of its social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services’.

The proposed mechanism was for the Commission to examine the notification and for the Council to authorise the member state, by way of an implementing act, to restrict access to in-work welfare benefits ‘to the extent necessary’ for a total period of up to four years from commencement of employment.

The rules were sophisticated but needed some careful explaining and, as anyone involved in the referendum discovered, the need to explain meant the debate was lost. However, we suggest that the Brussels agreement, which never came into force following the Leave vote, may help inform any future agreement with the EU in respect of limiting the equal treatment principle.

V. The equal treatment principle in the model of fair movement?

So what might the new scheme of equal treatment look like under our proposed immigration regime? In just the way that the founder Member States recognised that there should be some limits on equal treatment for migrants, we accept that there needs to be some limits on that equal treatment in order to respect the concerns expressed in the referendum. Following the model of the Croatian scheme, proposed in the previous blog, a Croatian national becomes entitled to social security after 12 months of authorised work. This might be the starting point for the new scheme. However, under the Croatian scheme, those in authorised work are entitled to means-tested benefits. Under any new scheme the UK might argue for no means tested benefits such as tax credits for 12 months. More radically, the UK might want to return to the model proposed in the New Settlement Agreement where in-work benefits for those on the lowest pay be phased in over four years of residence.

VI.       Conclusions

Given what was achieved by the Brussels negotiations, together with the jurisprudence of the Court of Justice, is it possible to envisage some form of evolving concept of fair movement, providing a flexible but controlled approach to migration that is strongly aligned to the needs of the labour market, as those negotiating the original version of the Treaty advocated? We are advocating the utilisation of tools already found in the CRD and possibly in the New Settlement Agreement. The rights would apply to those EU/EEA nationals in a recognised category – as a (genuine) worker (as defined in the previous blog, with minimum income thresholds and hours of work?), a self-employed person or a service provider.

EU/EEA nationals could also move as a student or a person of independent means, both needing to show comprehensive sickness insurance and sufficient resources, terms which should be more substantively defined. And they should be registered in the place of residence, with relevant documentation proving their entitlement which employers would need to check before offering work, higher education establishments would check before admission and providers of public services would need to check before offering those services. Once entitlement is established, the principle of equal treatment is applied but phased as the CRD currently provides and nuanced as in the case law of the Court of Justice and in accordance with the terms of New Settlement Agreement.  In particular, the use of residence requirements as a limitation on access to social security benefits would enable the Government to challenge criticisms of “benefit tourism”.

We would suggest that this tempering of the free movement of persons would achieve a balance between the political, social and cultural concerns about immigration with a desire for fairness to EEA migrants. It draws on some of the old thinking: the early drafters of European documents on free movement grappled with some of the issues that are now being faced in the UK. While equal treatment has been at the core, it is a notion which has long been qualified both by the EU’s secondary legislation and the case law of the Court.

Barnard & Peers: chapter 27, chapter 13

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Love wins in the CJEU: Same Sex Marriages and EU free movement law

Professor Steve Peers, Law School, University of Essex

Today’s CJEU judgment in Coman was the Court’s first ruling on same-sex marriages for the purposes of EU free movement law.  (For a discussion of the background, see the earlier blog post by Alina Tryfonidou). Mr Coman, a Romanian citizen, had married his husband, a US citizen, in Belgium while residing there. He tried to return to Romania with his husband, but Romania refused residence to the latter, as (like about half of the EU Member States) it does not recognise same-sex marriage. But did EU free movement law give Mr Coman the right to family reunion with his spouse nonetheless?

In the Court’s view, which took a subtly different approach than the Advocate-General’s opinion, the answer was yes. First of all, following established case law, the Court ruled that EU free movement law doesn't apply directly to a Romanian citizen in Romania and his family member, since the EU citizens’ Directive only applies to EU citizens living in another Member State. However, that law applies by analogy, since Mr Coman had moved to another EU Member State and then returned to his Member State of nationality.

In particular, the Court invoked its 2014 ruling in O and B (discussed here), which clarified when family reunion rights applied in this scenario. It’s necessary to have “genuine residence” in another Member State, meeting the conditions for residence longer than three months set out in the citizens’ Directive (see paras 26 and 28 of today’s judgment).

But was Mr Coman’s American husband within the scope of the definition of “family member”, which includes a “spouse” (a term not further defined in the citizens’ Directive)? The Court reaffirmed its prior case law that a “spouse” was “a person joined to another person by the bonds of marriage”. Crucially, it then ruled that “the term ‘spouse’ within the meaning of” the Directive “is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned.” While the Directive expressly permits host Member States to apply their own law when admitting registered partners, it makes no such provision regarding spouses, so such a possibility was implicitly ruled out.

The Advocate-General’s opinion made the same point in a different way, arguing  for a uniform EU-wide meaning of the word “spouse” and taking account of the trend inside and outside the EU toward recognition of same-sex marriage. On one issue, however, the judgment and the opinion differ: the opinion refers to recognition of a marriage wherever it was celebrated (para 49, referring to prior CJEU case law), while the judgment refers several times to a marriage concluded in a Member State (paras 33, 35 and 36).

Anticipating the objections from Member States that do not permit same-sex marriage, the Court reiterated that marital status “is a matter that falls within the competence of the Member States and EU law does not detract from that competence”. In particular, “Member States are thus free to decide whether or not to allow marriage for persons of the same sex”. But that freedom had to be exercised consistently with EU law, in particular the right to free movement. Allowing Member States to apply their own law to the residence of non-EU same sex spouses “would have the effect that the freedom of movement of Union citizens who have already made use of that freedom would vary from one Member State to another, depending on whether such provisions of national law exist”.

Next, the Court dealt with the objections of those Member States who had argued that there were “public policy” or “national identity” grounds to refuse admission of same-sex spouses, where they did not recognise the existence of such a concept in national law. On this point, the Court repeated its case law that the “public policy” exception to free movement has to be interpreted strictly, applying “only if there is a genuine and sufficiently serious threat to a fundamental interest of society”. That high threshold was not met here, because recognition of a marriage for these limited purposes “does not undermine the institution of marriage in the first Member State, which is defined by national law”, and “does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex”. Rather, it is “confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law”. For the same reasons, such an obligation “does not undermine the national identity” of Member States.

The Court added that any measure restricting free movement rights also has to comply with human rights guaranteed by the EU Charter of Rights, which has to be interpreted consistently with the European Convention on Human Rights. According to the case law of the European Court of Human Rights, “the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation.”

In light of its judgment on the meaning of “spouse”, the Court had no need to define what a “partner” was, for the purpose of interpreting either the core definition of “family member” or the “extended family member” rules in Article 3 of the Directive. The Advocate-General’s opinion had argued for a Plan B: if Mr Coman’s husband was not a "spouse" due to Romanian law, he had to be considered a partner or other family member under Article 3. In principle there was a downside to that approach, since the CJEU has ruled that there is no right of admission for extended family members (see the judgment in Rahman; also the pending case of Banger, on whether returnees can invoke Article 3 by analogy as regards their extended family members). However, the opinion argued that due to the marital bond recognised by another Member State, there would be no discretion to refuse admission in this case.

Comments

This judgment falls short of the general requirement to establish same-sex marriage recognised in the US Supreme Court judgment in Obergefell. Inevitably so: the CJEU lacks the jurisdiction to rule on the marriage laws of Member States as such. The ruling only applies to free movement issues – and with some further limitations. Nevertheless it will likely be celebrated (or decried) as part of a more general development of extending same-sex marriage rights across (and outside) the EU.

In order to trigger the application of EU free movement law as regards a same sex marriage, there needs to be movement between Member States. So movement within the UK, from jurisdictions in Great Britain (where same sex marriage is recognised) to Northern Ireland (where it is not) will not count. (In any event, in light of Brexit, anyone anxious to have their same sex marriage recognised in Northern Ireland will have to meet the relevant conditions before the end of the post-Brexit transition period: see discussion here). Moreover, the judgment concerns residence, rather than marriage as such. The residence status of a same sex spouse of an EU citizen who is also an EU citizen is unlikely to be disputed.

Furthermore, the Court (unlike the Advocate-General) laid down two further limitations. It restricted its ruling to marriages concluded within a Member State. At best, it could be argued that the legal position where a same sex marriage was celebrated outside the EU was left open by the Court. Secondly, it made a point of emphasising that a period of at least three months genuinely residing in another Member State was necessary to trigger the rules: couples seeking to overcome the restrictions of their national law will have to spend some time abroad in order to do so. A gay Gretna Green – or a lesbian Las Vegas – will have to offer flats to rent, not just rooms for the night.

With these restrictions, and the Court’s obvious concern to answer the anticipated objections of some Member States (and their courts), the ruling may seem rather grudging to those supporting equal marriage. But such a conclusion would be jumping the gun.  Those who have a same-sex registered partnership, or an unregistered partnership within the scope of Article 3 of the Directive, will be able to invoke the judgment’s strong emphasis on free movement and human rights in support of their claims.  The Court could have chosen the easier option offered by the Advocate-General as Plan B – giving same-sex spouses a right to stay on the basis of Article 3, without defining them as a spouse – but it did not.  There’s a case to be made for reassuring – and eventually persuading – the opponents of equal marriage, rather than lecturing and overruling them.

And there’s a broader perspective too, quite apart from the legal technicalities. In light of the history of pink triangles and Stonewall riots, of chemical castration and teenage suicides, of hatred, bigotry and persecution, the right to move across the European Union with a marriage recognised as an equal affirmation of family life can only be welcomed.

Barnard & Peers: chapter 13, chapter 9

Photo credit: UK Student Life

Expelling EU citizen war criminals: no sympathy from the ECJ

Professor Steve Peers, University of Essex

If an EU citizen (or his or her family member) has been excluded from being a refugee, in what circumstances can he or she be expelled from a Member State? The ECJ clarified this issue in its K and HF judgment last week: its first ruling that touches on the relationship between EU (and international) refugee law and EU free movement law.

There’s a good reason why these two areas of law haven’t interacted previously in the Court’s case law: EU law itself tries to keep them apart. A Protocol attached to the EU Treaties, aiming to facilitate the extradition of alleged terrorists between Member States, says that in principle EU citizens cannot apply for asylum in another Member State, due to the presumption in that Protocol that each Member State ensures sufficient human rights protection.

However, there are exceptions to that general rule, and there are people it doesn’t cover. The exceptions in the Protocol are: a) the asylum seeker’s Member State of nationality invokes the “emergency” derogation from parts of the European Convention of Human Rights (ECHR); b) if the EU Council is considering whether to sanction the asylum seeker’s Member State of nationality for breaches of EU values; c) if the EU has already sanctioned the asylum seeker’s Member State of nationality for breaches of EU values; or d) if a Member State decides to do so unilaterally for another Member State’s national, in which case it must inform the EU Council and presume that the application is manifestly unfounded, without prejudice to the final decision on the application.

The people not covered by the Protocol include: EU citizens who obtained refugee status before they became EU citizens (for instance, because their State of nationality joined the EU); non-EU family members of EU citizens; those who apply for or obtain subsidiary protection status, as distinct from refugee status; and the citizens of some non-EU countries associated with the EU (Norway, Iceland, Switzerland and Liechtenstein), who have free movement rights but are not EU citizens. The recent ECJ ruling concerned people from the first two of these categories.

Exclusion from being a refugee

Some asylum seekers fail to satisfy the authorities that they meet the definition of “refugee” set out in the UN (Geneva) Refugee Convention. Quite apart from that, some asylum seekers are excluded from being a refugee under that Convention (and under the corresponding provisions of the EU’s qualification Directive), because their behaviour is considered so reprehensible that they do not deserve fully-fledged international protection, even if they are facing persecution on one of the grounds set out in the Convention. More precisely, Article 1.F of the Convention excludes:

any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The ECJ has interpreted the exclusion clause in the EU qualification Directive in its judgments in B and D and Lounani (discussed here), ruling inter alia that the second and third exclusion clauses can apply to terrorist offences, although exclusion must be assessed in each individual case, meaning that membership of a group listed as “terrorist” in EU foreign policy sanctions against terrorists does not automatically trigger the exclusion clause. Similarly, participating in a terrorist group, as defined by EU criminal law on terrorism, does not automatically trigger the exclusion clause either. Instead, there must be direct involvement by the person concerned in such offences, as further explained by the Court. Furthermore, there is no additional “proportionality” or “present danger” test for exclusion, and the exclusion clause is mandatory: ie Member States cannot assert a right to apply higher standards and give someone refugee status if they fall within the exclusion criteria. Finally, assisting with recruitment, organisation or transport of “foreign fighters” can also lead to exclusion, as it constitutes a form of “participation” in the terrorist acts covered by the exclusion clause.

However, it should be noted that even if a person is excluded from being a refugee, they are still protected against being removed to a country where they would face a real risk of torture or other inhuman or degrading treatment, according to the case law on Article 3 ECHR and the corresponding Article 4 of the EU Charter of Fundamental Rights. The ECJ reaffirmed as much recently in its judgment in MP (discussed here). But this non-removal obligation falls short of refugee status (which usually follows from recognition as a refugee) because it does not entail a fully-fledged immigration status including rights like access to employment and benefits.

Expelling EU citizens and their family members

The grounds for restricting free movement rights for reasons of “public policy or public security” are set out in the EU citizens’ Directive. The basic rule is that restrictions “shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.” Furthermore, “[t]he personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.”

Before expelling a person covered by the Directive on such grounds, Member States are obliged to “take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.” For those with permanent residence, there is a higher threshold to justify expulsion: “serious grounds of public policy or public security”. And for those who have resided in that Member State for the previous ten years, or who are minors, the threshold for expulsion is higher still: “imperative grounds of public security”.

The judgment

The Court’s judgment brought together two separate cases. In the first case, K, a dual citizen of Croatia and Bosnia-Herzegovina, had arrived in the Netherlands and applied for asylum in 2001 and 2011. Both applications were rejected. Subsequently, after Croatia joined the EU in 2013, the applicant was declared (in light of his EU citizenship) to be an “undesirable immigrant”, in light of the prior finding that he knew about and participated in war crimes and crimes against humanity in the Bosnian army. Since over twenty years had passed since that time, the issue was whether such conduct was a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” within the meaning of the EU citizens’ Directive, taking account of the other factors referred to in the Directive.

In the second case, HF, an Afghan citizen excluded from being a refugee in the Netherlands, applied for a residence card in Belgium as the family member of an EU citizen (his Dutch daughter). His application was refused on the basis that the information about his exclusion, which the Dutch authorities had shared with their Belgian counterparts, showed that he could be denied free movement rights.

The Court first examined whether exclusion from being a refugee necessarily met the standard for restriction of free movement rights. It recalled its prior case law, holding that “public security” could include both internal security (including “a direct threat to the peace of mind and physical security of the population of the Member State concerned”) and external security (including “the risk of a serious disturbance to the foreign relations of that Member State or to the peaceful coexistence of nations”). Applying these principles to the facts, the Court accepted that Member States could consider that damage to international relations, the risk of contacting EU citizens who had been victims of war crimes could be considered threats to public policy and public security. Restricting those persons’ free movement rights could also contribute to ensuring “protection of the fundamental values of society in a Member State and of the international legal order and to maintaining social cohesion, public confidence in the justice and immigration systems of the Member States and the credibility of their commitment to protect the fundamental values enshrined in Articles 2 and 3 TEU”.  The Court added that the acts and crimes which led to exclusion from being a refugee “seriously undermine both fundamental values such as respect for human dignity and human rights, on which, as stated in Article 2 TEU, the European Union is founded, and the peace which it is the Union’s aim to promote, under Article 3 TEU”.

Nevertheless, the Court ruled that exclusion from being a refugee should not always lead to restriction on free movement rights. There must still be a “case-by-case assessment” which shows that “the personal conduct of the individual concerned currently constitutes a genuine and sufficiently serious threat to a fundamental interest of society”. This assessment must “take into account the findings of fact made in the decision of exclusion from refugee status taken with respect to the individual concerned and the factors on which that decision was based, in particular the nature and gravity of the crimes or acts that that individual is alleged to have committed, the degree of his individual involvement in them and the possible existence of grounds for excluding criminal liability such as duress or self-defence.” Furthermore, that examination “is all the more necessary” if, such as in these cases, “the person concerned has not been convicted of the crimes or acts that were relied on to justify the rejection, in the past, of his asylum application”.

The Court showed willingness to relax its usual insistence of looking closely at the EU citizen’s present threat, noting that in some cases “it is also possible that past conduct alone may constitute such a threat to the requirements of public policy”. In the case of war crimes, although “the time that has elapsed since the assumed commission of those acts is, indeed, a relevant factor….the possible exceptional gravity of the acts in question may be such as to require, even after a relatively long period of time, that the genuine, present and sufficiently serious threat affecting one of the fundamental interests of society be classified as persistent”. Equally, the Court de-emphasised the requirement that the person concerned was likely to reoffend, ruling that:

…however improbable it may appear that such crimes or acts may recur outside their specific historical and social context, conduct of the individual concerned that shows the persistence in him of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, such as human dignity and human rights, as revealed by those crimes or those acts, is, for its part, capable of constituting a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society...

Yet the person’s rights to private and family life and the principle of proportionality still had to be weighed against such threats.

Next, the Court reiterated that an expulsion decision has to consider “with due regard to the principle of proportionality…inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in the host Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with the host Member State.”

Yet the lengthy period of time spent on the territory in the Dutch case was not enough to qualify for the especially high level of protection against expulsion for EU citizens resident for ten years (“imperative grounds of public security”). For as the Court had recently ruled in B and Vomero, such special status was only attainable if the person concerned had already qualified for permanent residence (based on five years’ legal residence); and residence on national law grounds other than those set out in the citizens’ Directive or its predecessor laws did not count to that end (see Ziolkowski). It appeared that K could not show residence on an EU law basis, but only a national law basis, and therefore was not going to qualify for any extra degree of protection against expulsion.

Comments

The Court’s judgment is focussed on those excluded from refugee status on the basis of Article 1.F of the Refugee Convention. The wording of the ruling does not confine itself to the “war criminal” ground of exclusion, and so it applies to persons excluded from being a refugee on any of the Article 1.F grounds. It should logically be relevant if any EU law issues are raised about handing over any person to the International Criminal Court, or any ad hoc UN criminal tribunal, for prosecution for war crimes et al. But does it have any broader application?

First of all, it definitely applies to those who might apply for refugee status on what might be called the “Palestinian track” set out in Article 1.D of the Convention, since the general rules on exclusion also apply to such cases: see the ECJ’s El Kott judgment (para 76).

Secondly, it is questionable whether it applies to all cases of exclusion from subsidiary protection status, given that such exclusion is also possible for less serious behaviour than as regards refugee recognition. In particular, the qualification Directive allows for exclusion from subsidiary protection status on grounds of a “serious crime”, or in fact any crime which would be punishable by imprisonment in the Member State concerned.

Thirdly, it may be arguable whether the judgment is relevant by analogy to revoking refugee status due to criminal behaviour or a security risk (relevant in pending ECJ cases, discussed here), or to refusing a residence permit or travel document on national security or public order grounds, where the ECJ has ruled that a lower threshold applies (see the ruling in HT, discussed here).

Next, the judgment might be relevant to cases where a Member State seeks to revoke its nationality (and therefore EU citizenship) from a person, for instance due to their activities as a “foreign fighter”. (On the reviewability of such decisions as a matter of EU law, see Rottmann and the pending case of Tjebbes).

Could the judgment even be relevant by analogy to “ordinary” EU citizens, where there is no link to refugee law issues? At first sight no, because the Court’s focus is on the Refugee Convention’s exclusion clause. However, its willingness to consider that especially vile prior behaviour can outweigh an assessment of present threat and likely future conduct could arguably be relevant where an EU citizen has been convicted of crimes such as child abuse, rape, murder, or terrorism.

The judgment continues the Court’s established trend of disdain for criminality by EU citizens or their family members. In this case, its concern for crime victims is particularly striking; but here it strikes a discordant note in referring only to the victims of war criminals who are EU criminals living in EU Member States. For this overlooks the likely existence also of non-EU victims, both those who sought protection in a Member State and those in the war criminal’s state of origin, if he or she is referred there. Or rather, the surviving victims: the returning war criminals will likely cast a long shadow over the graves of those whom they murdered.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Human Rights Watch