EU Referendum Briefing 4: Immigration

Steve Peers

Introduction

What impact does the UK’s membership of the European Union (EU) have on immigration and asylum? This post examines that controversial issue, looking in turn at migration to the UK by non-EU and EU citizens.

Non-EU migration

It’s central to distinguish between non-EU and EU migration in the referendum debate for two reasons. First of all, because while EU migration is obviously closely connected to the UK’s membership of the EU, non-EU migration is not. That’s simply because the UK has negotiated and used opt outs from EU laws on non-EU migration and asylum, particularly from the EU’s borderless Schengen zone. This means that the UK can control its borders with the rest of the EU as regards non-EU citizens, applying its own law to admit them or to refuse them entry. So it’s false to say that the UK has ‘lost control of its borders’ as far as non-EU migration is concerned.

As I noted in the first EU Referendum Briefing, these opt-outs could only be removed by a Treaty amendment which the UK government and parliament agreed to. Moreover, the Schengen opt-out can only be removed by a public referendum.   

Secondly, the distinction is important because non-EU migration actually accounts for a greater share of net migration to the UK than EU migration does, as demonstrated here:

Moreover, for those who would like to see net migration to the UK reduced to the level of (say) 50,000 or below 100,000, it is self-evident from this graph that leaving the EU will not, by itself, accomplish this. Even with no EU migration, non-EU migration alone would still be well above the 100,000 level, as we can clearly see. Conversely, some would like to see more non-EU migrants admitted to the UK. Fine: the UK can admit them any time it likes. It’s entirely the government’s decision not to. But doing so would clearly move the UK further away from a target of 100,000 migrants, even if the UK leaves the EU.

A small minority of non-EU citizens in the UK are covered by EU law. First of all, non-EU family members of EU citizens are covered by EU free movement law. However, the UK’s renegotiation deal (as discussed here) would allow it to restrict their numbers considerably, by tightening the rules on their entry.

Secondly, the UK opted into the ‘first phase’ of EU asylum law, in 2003-05. At that time, though, it had a veto over asylum law proposals, and used it to insist that the EU rules would not change UK law. Although the ‘Leave’ side claims that the EU court ‘controls Britain’s asylum system’, in fact the only British asylum cases which the EU court has decided concern the ‘Dublin’ system of allocating responsibility for asylum applications between EU countries.

This system allows the UK to insist that other Member States take back asylum-seekers who have entered their territory before they got to the UK. If the UK left the EU, it would no longer be subject to these Dublin rules, unless the EU agreed to sign a treaty with the UK to that effect. This is pretty unlikely, since the EU has only signed such treaties with countries like Norway and Switzerland, for the sole reason that those countries also signed up to be part of the Schengen area at the same time.

Let’s think about what all this means in practice. Some non-EU migrants who have travelled through the rest of the EU do attempt illegal entry into the UK, or would probably like to do so (those in Calais and Dunkirk, for instance). But why would that change if the UK left the EU? The people concerned wouldn’t suddenly lose all desire to come to the UK. Their intended illegal entry would not become harder in any way. It would be against the law – but it already is now. Brexit would not actually move the UK further away from the continent geographically. People do attempt illegal entry into non-EU countries, like the USA; and refugees flee to and stay in non-EU countries (like Turkey, Kenya or Lebanon) too.

Some on the Leave side have suggested that the UK is vulnerable to sexual assault from non-EU migrants on the continent. Let’s unpack that. None of the non-EU migrants concerned have the right of entry into the UK. The UK can simply refuse them entry at the border. In contrast, the Orlando killer was a US citizen, who could have come to the UK without a visa, on the basis of the UK’s visa waiver for US citizens.

It’s sometimes suggested that non-EU migrants in the rest of the EU will all gain EU citizenship and come to the UK shortly afterward. But as shown in three separate analyses – by Full Fact, BBC Reality Check, and Open Europe – gaining EU citizenship is very difficult for non-EU citizens. It requires a long wait, a clean criminal record and satisfaction of many other criteria. If non-EU citizens don’t have legal residence status, or their asylum application fails, they can be deported. Nearly 200,000 non-EU citizens are in fact expelled from the EU every year.  

Finally, let’s apply this analysis to this poster produced by some on the Leave side, unveiled last week:

No one on the poster has any right to enter the UK. All of them can be refused at the border. Brexit would change nothing in this regard – besides making it harder to remove to the EU those who do manage to enter illegally and apply for asylum. The prospect that many of them would gain EU citizenship and move to the UK is remote. 

So the poster is essentially unrelated to the referendum. As such, it is not an attempt at rational argument - but rather an appeal to irrational fear.

EU migration

In contrast, as noted already, the migration of EU citizens is indeed relevant to the referendum debate. Much of this debate is about the economic impact of EU migration, including its impact on public services. I’ll leave that side of the debate to the economists. But there are some important legal issues that should be clarified, related to access to benefits and exclusion on grounds of criminality. The key point is that the free movement of EU citizens, while generous compared to ordinary immigration laws, is not unlimited.

What are these limits? First of all, EU citizens have to meet the criteria to stay. The main legislation on the free movement of EU citizens – known as the ‘Citizens’ Directive’ – provides that EU citizens and their family members can move to another member state initially for a period of three months. But it also says explicitly that the EU citizen has no right to any social assistance benefits during this time. Indeed, the UK has removed EU job-seekers’ access to job-seekers’ allowance during the first three months of their stay.

After three months, the Citizens’ Directive says that EU citizens and their family members can stay subject to further conditions: they are either workers or self-employed; or have ‘sufficient resources’ not to burden the social assistance system, along with health insurance; or are students in a post-secondary institution, if they have health insurance and declare that they will not be a burden to the social assistance system. The EU court has confirmed that there is no right to stay just to obtain social assistance without ever working in the host country. Recently it also confirmed the UK government’s refusal to pay child benefit or child tax credit to those who did not qualify to stay.

It’s sometimes suggested that ‘500 million people can move to the UK’ under EU free movement law. Yes – if there were 500 million jobs for them to come and do. Or 500 million university places available. Or if all of those 500 million people had a small fortune stashed away. Obviously nothing like those numbers of jobs, university places or self-sufficient people exist.

What about EU migrants who come to the UK and look for work? David Cameron has suggested they can be automatically removed after six months if they don’t find work. This isn’t correct: the Citizens’ Directive says that they can stay if they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. But as mentioned already, they are not entitled to any benefits from the UK while looking for work. Also, they must meet the criteria of self-sufficiency, otherwise they would not be entitled to stay after three months anyway.

What if an EU migrant works in the UK for a time, then becomes unemployed? It is possible that they can retain status as a (former) worker, and therefore keep access to social assistance benefits. There are limits to this, however.  In particular, if the EU worker has been employed for less than one year in the UK, he or she would only retain ‘worker’ status for six months after becoming unemployed. At that point the UK can cut off access to their benefits, as the CJEU has confirmed.

Workers are entitled to equal treatment as regards benefits, including top-up benefits paid to those in work, which are a large part of the UK tax and benefit system. However, the deal on the renegotiation of the UK’s EU membership specifies that if the UK votes to stay in the EU, the current EU rules will be changed so that the UK can apply a four-year ban for workers from other EU member states on in-work benefits.

There renegotiation deal also says that the UK will be able to limit on the child benefit exported to EU workers with children in other member states, fixing the rate of that child benefit to the cost of living in the country of the children’s residence.

After five years’ legal stay on the basis of the Citizens’ Directive, EU citizens and their family members can obtain permanent residence status, meaning that they no longer have restricted access to social benefits.

As for criminality, it is sometimes suggested or inferred that the UK cannot refuse entry or expel EU migrants on criminal law grounds at all. This is clearly false. The Citizens’ Directive allows for expulsion, entry bans or refusal of entry for those who are a threat to ‘public policy, public security or public health’. There are limits, however. Restrictions must be proportionate and ‘based exclusively on the personal conduct of the individual concerned’. People cannot be excluded on general preventive grounds, but on ‘personal conduct’ which ‘must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.

British authorities can check on an individual’s police record after entry, and can also issue an entry ban preventing that person from coming to the UK in the first place. For those who are on the territory, there is greater protection against expulsion over time, but there is never any absolute ban on expulsion.

It has been suggested that the EU court has prevented 50 EU criminals from being removed from the UK. This is false. Any such judgments were made by UK courts or the European Court of Human Rights.

To prove that point, let’s look at a list of all the cases which the EU court decided on EU citizenship in the last five years. There are 53 cases, and only five of them concern expulsion or exit bans of EU citizens due to criminality. Of those five cases, just three concern the UK.  

In those five cases, the Court decided that: 

a) time spent in prison in the UK  by an EU citizen’s family member did not count toward getting permanent residence under EU law (Onuekwere); 

b) an EU citizen convicted of child cruelty could not count prison time toward a ten-year threshold giving extra protection against expulsion (G case);

c) the UK does not have to give an EU citizen information which could compromise national security during an expulsion proceeding (ZZ case);

d) people with a drug trafficking conviction can be banned from leaving the country (Gaydorov); and 

e) child abusers can be expelled on grounds of ‘public security’ even if they have been resident for over ten years (I case).

So in every single relevant judgment in the last five years, the EU Court confirmed that Member States could limit the rights of convicted criminals or terrorist suspects.

The ‘Leave’ side has referred to another supposed EU court ruling, about the daughter-in-law of a terrorist in the UK. In fact there is no ruling in that case yet – only the non-binding opinion of an ‘Advocate-General’. And according to that opinion, the person concerned can indeed be expelled, if a British court believes that she is a risk to public security.

It is also possible to expel EU citizens on grounds that they rely on social assistance.

One final point about the free movement of EU citizens. The Leave side has referred several times to the possibility of Turkey joining the EU. It’s sufficient to point out, as I discussed in a previous Referendum Briefing, that: a) every Member State has a veto on this; Turkey has agreed 1 out of 35 negotiating chapters, in 11 years of talks; and there would also be a lengthy period after Turkish accession before the free movement of persons applied.

Barnard & Peers: chapter 13

Credits - Meme: Pawel Swidlicki; Graph: The Independent; Photo: home.bt.com

Keeping up with the (Turkish) family: integration requirements for family reunification in Genc

Silvia Adamo, Postdoctoral Fellow, bEUcitizen – Barriers to European Citizenship/Faculty of Law, University of Copenhagen

What are the legitimate expectations regarding integration before family reunion in a Member State, and what is the position of Turkish citizens in that equation? The EU Directive on family reunion for third-country nationals gives Member States an option to impose such integration requirements before entry of the family members, and the CJEU dealt with the limits to the discretion of Member States in imposing such requirements in a 2015 judgment (K and A, discussed here). Moreover, in the Dogan judgment of 2014 (discussed here), the Court assessed the reach of the standstill clause in the protocol to the Association Agreement between EU and Turkey in relation to the conditions for family reunification for self-employed Turkish nationals. There’s an important distinction between the two legal instruments: all Member States are bound by the EU/Turkey association agreement, whereas the UK, Ireland and Denmark opted out of the family reunion Directive.

In that context, the Dogan case attracted the attention of the Danish Ministry of Justice. After all, Turkish nationals are the largest immigrant group in the country, and the issue of family life with a third country national in Denmark is very controversial. In a legal note commenting on the case shortly after the judgment in Dogan, the Ministry found that the national rules on family reunification (significantly restricted since 2002) could be evaluated as constituting new and more stringent conditions that are not allowed to be introduced for Turkish nationals, in light of the standstill clause. (Note that the protocol to the association agreement has applied since 1973 for the first nine Member States – such as Denmark and the UK – but at the date of accession for the 19 Member States which joined the EU later). At the same time the Ministry did not advise to amend them. Instead, it assessed that there were ‘doubts’ as regards the reach of the restriction test, including the proportionality test, for the manifold requirements for family reunification in Denmark. One of the requirements to fulfil for family reunification is that of potential for successful integration (for the child) and of achieved integration (for the sponsor parent).

The question that has now found its way to the courtroom is the following: Can a Member State require Turkish children to fulfil a successful integration evaluation, before granting them family reunification with their economically active parent? The CJEU recently answered this question in the Genc case. Its judgment is relevant to family reunion with Turkish nationals in all Member States – and would apply by analogy to other forms of new restrictions on family reunion with Turkish citizens besides integration requirements.

Facts

Mr. Genc is a Turkish national born in 1991. His father moved to Denmark in 1997 and obtained a permanent residence permit there in 2001. After the divorce of his parents, his father had obtained legal custody over him; however Mr. Genc continued to live in Turkey with his grandparents. In 2005, when he was fourteen years old, he applied for family reunion with his father in Denmark, who was at the time in active employment.

Mr. Genc’s application was denied in 2006 by the Danish Immigration Service, and again in 2007, by the Ministry of Integration. The reasons for the denial were twofold: having lived in Turkey all his life and being able to speak only Turkish, the Ministry stated that Mr. Genc had no possibility of establishing sufficient ties with the Danish society to allow a successful integration. The other reason given was that his father was not considered well integrated either, and thus he was referred to continue family life through visits to his son in Turkey, as he had been doing already.

Mr. Genc brought the case to the court of first instance and later to the Eastern Regional Court, which decided to refer the case to the CJEU in 2014. The Danish national courts are generally reluctant and not particularly active in referring cases to the CJEU, but since the Dogan case had stirred the waters around the conditions for family reunification for Turkish nationals, the time was ripe to submit to the Court’s evaluation the condition for successful integration before family reunion – at least as far as this group of foreign nationals is concerned.

The Danish Aliens Act establishes that a residence permit can be granted upon application to a child under the age of fifteen who wants to live with the parent having full or partial custody, but only if the child has not established her own family yet. The sponsor parent living must be the holder of either Danish citizenship, citizenship in one of the Nordic countries, refugee status, a permanent residence permit, or a temporary residence permit that has the possibility of becoming permanent. Other conditions are: self-sufficiency (the sponsor parent should not be receiving State help or social security subsidies); adequate housing; no conviction for abuse against children; and respect for the best interest of the child. Different conditions may apply for refugees.

Finally, the requirement for successful integration demands that if the child and one of her parents are living in their home country or another country, the residence permit will be given only if she already has, or has had, a possibility to obtain such an attachment to Denmark that will constitute a basis for a successful integration. The integration requirement is only applied when more than two years pass from the moment a parent becomes eligible to apply for family reunification to when s/he finally files the papers.

Judgment

The referring court formulated four questions, requesting clarification on the earlier case law of the CJEU on the standstill clause vis-à-vis the Dogan judgment. As a whole, the questions referred reflected the doubts expressed in the Ministerial note and concerned the restriction test and proportionality assessment of the integration requirement for family reunification with respect to Article 13 of Decision No. 1/80 on the development of the Association Agreement (prohibition on introducing new restrictions on the conditions of access to employment to legally resident and employed nationals). Unlike the standstill considered in the Dogan case, this standstill relates to workers, not self-employed persons, and has applied since 1980 for the first nine Member States.

The CJEU decided to consider the questions referred together, and to focus on evaluating whether the integration requirement in Danish law was to be considered a new restriction. The Court started by affirming that the situation in question related to the freedom of Turkish workers within the EU, and thus it was covered by Article 13 of Decision 1/80. The CJEU then affirmed that its interpretation in Dogan that applied the standstill obligation to spouses could also be transposed to other family members, since restrictions to family reunification would affect the exercise of the economic freedom of (in this case) workers.

Thus the CJEU insists on the fact that -national legislation that restricts family reunification for Turkish workers is covered by the standstill clause, denying that this is equal to granting a right to family reunification or a right of establishment and residence for family members (para 44–45).

In order to sustain the exercise of the economic activity of Turkish nationals, a requirement that further restricts the possibility of obtaining family reunification must be considered a new restriction. As such, according to the Court’s case law since Demir, national provisions that impose conditions more stringent than the ones applicable at the time of entry into force of Decision No. 1/80 can only be allowed if the requirement is justified on public interest grounds, and is proportional, i.e. apt to achieve a legitimate objective and not going beyond what is necessary in order to attain it. In fact, after Dogan and the reach of the standstill requirement there established, any new integration requirements for family reunion can only be introduced on the grounds of public interest.

The Court invokes Article 79 (4) TFEU, which refers to the prospect of EU measures on integration of non-EU citizens, to establish that an integration objective can indeed constitute an overriding reason in the public interest (para 55– 56). However, the Danish law at stake in this case did not pass the proportionality test. In the eyes of the Court, the two year deadline which imposes the integration requirement is not indicative of the potential for successful integration of the child, nor of the intentions of the parents as regards ‘shielding’ their children from the host country’s society (of note is also the opinion of Advocate General Mengozzi on the non-existence of correlation between a prolonged stay in a third country and the possibilities for integration, at para 48–49 of the opinion). To the contrary, the deadline imposed does not consider the individual circumstances of the case, may lead to automatic and systemic refusals of family reunification which are not suitable to be appealed, and may lead to discrimination against children in similar situations.

Comments

Denmark introduced the requirement of successful integration for family reunification with children in 2004. The rules had a dual objective: to get rid of the practice of children’s so called ‘re-education journeys’ to the parents’ homeland, as well as to prevent children from being left outside of Denmark as long as possible before they reach adult age, in order to be educated and influenced by their homeland’s culture, traditions, values, and norms. The maximum age at which a child living abroad can obtain family reunion was lowered to fifteen years old. In order to make sure that those children who would live in Denmark as adults would be integrated, they are expected to relocate with their parents as early as possible in order to be exposed to the national culture, language, norms, and values, especially through schooling.

From a critical perspective, the objections that can be raised against the national law are essentially three.[1] First, when applying the requirement for successful integration, the lack of the integration of the sponsor parent weighs more than the appraisal of the integration potential of the child. Integration in Danish law is connected to participation in the labour market, but also to assimilation of national values and norms. Unemployed and non-integrated immigrants are rarely granted the possibility to be family reunited with their children in Denmark. Family sponsored migration from non-Western countries has been reduced via a string of convoluted rules that have diminished this channel of legal migration. Integration requirements are in this context employed in order to limit migration via family reunification.

Second, as also noted by the CJEU, the national authorities have employed a narrow and literal interpretation of the rules, funding the evaluation on the detailed requirements listed in the  preparatory work to the national law (duration of stays in Denmark and in the home country, in which country the child has spent most of her upbringing and gone to school, which language the child speaks, etc.). This limits the discretionary power of the authorities and impairs genuinely considering the individual circumstances of the case, including the best interest of the child. The requirement of the potential for a successful integration thus looks more like a legal construction that renders possible the automatic rejection of family reunification applicants that have spent too many years in their parents’ home country and who do not speak Danish, and where the parent has not been able to prove that s/he is well integrated.

Third, the requirement will always be applied to children of eight years or older, where the child has stayed with the other parent outside of Denmark, when more than two years have passed since the parent could legally apply for family reunification. In these cases, it will be impossible to fulfil the requirement of potential for successful integration. In this optic, integration becomes a key factor for evaluating also the best interest of the child. The child's legal status is made dependent on the parent's, and the instrumental interpretation of the principle of the best interest of the child entails that it is the opportunity for the child to develop a social connection to the host country’s culture and society which weighs more than the possibility to live with a parent. Yet, this also means denying family reunification to children as young as eight years old.

In this light, the limits of the Genc judgment are two, in my view: First, it only concerns Turkish nationals, possibly leaving space for continuing to enforce the arbitrary and non-proportional integration requirement onto other third country nationals and their children. The second limit is that it only concerns employed Turkish nationals, perhaps regrettably highlighting that the right to family life is precluded for non-economically active citizens. A week after Genc, the CJEU held the same stand and stated in Khachab that a national rule requiring a (non-EU and non-Turkish) sponsor parent to be in possession of sufficient resources (basing that prediction on previous income) before granting family reunification is compatible with the Family Reunification Directive. Hence at the same time that the protection of the family life of Turkish workers in the EU appears to increase, other third country nationals may still experience discrimination and limits to their family life.

Barnard & Peers: chapter 26

JHA4: chapter I:6

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[1] Adamo, S. What is ‘A Successful Integration’? Family Reunification and the Rights of Children in Denmark. Retfærd. Nordic Journal of Law and Justice, Year 39, Volume 1/152, 2016, 38–58.

Violence against women: what will be the impact of the EU signing the Istanbul Convention?

Steve Peers

The scourge of violence against women is a serious human rights abuse and the worst form of sex discrimination. Several years ago, the Council of Europe (a body different from the EU) drew up the Istanbul Convention on this issue. It came into force in 2014, and currently applies to 20 countries, including 12 EU Member States (for ratification details, see here). Today, the EU Commission proposed that the EU sign and then conclude the Convention. What practical impact will that have on violence against women?

If the EU does sign and conclude (ie ratify) the Treaty, it will be the second human rights treaty binding the Union. The first is the UN Convention on the Rights of Persons with Disabilities. While most attention has been focussed on the EU’s attempt to accede to the European Convention on Human Rights (ECHR), which was essentially thwarted by the EU’s Court of Justice (CJEU) in 2014 (as discussed here), the EU’s capacity to sign up to other human rights treaties is also relevant. While the EU cannot sign up to older international human rights treaties, like the UN Covenants, because they are only open to States, newer treaties (like the Istanbul Convention) expressly provide for the EU to sign up to them – if it wishes.

Impact of EU ratification

Like many international treaties, the Istanbul Convention is a ‘mixed agreement’, meaning that (if the EU ratifies it), the treaty will bind both the Union and its Member States. EU ratification should have six main effects (I’ve updated this list from the previous post on the reasons why the EU should ratify).

First of all, the EU’s ratification of the Convention could provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe. It should be noted that the treaty is open for signature to non-EU countries: the 19 Council of Europe countries not in the EU (8 of them have ratified it already), as well as the 4 non-European countries (plus the Holy See) which took part in drawing it up.

Do you live in a country which hasn’t ratified the Convention? You can sign up to a campaign for the UK to ratify the Convention here. Please let me know of any other campaigns in the UK or any other country, and I’ll list them with a link in an Annex to this post.

Secondly, ratification could, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that Member States, would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to urge any countries to do so?

Thirdly, ratification of the Convention should enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation. While there’s no general EU criminal law on violence against women (on the case for such a law, see here), there are other relevant EU rules. In particular, the Commission proposal refers to EU free movement law, substantive EU criminal law relevant to violence against women, EU immigration and asylum law, and the EU law on crime victims’ rights, applicable from last autumn (on the content of the crime victims’ law, see discussion here). It should also mean that the Convention will already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence. The proposal is based on EU competence over victims’ rights, and would apply (if agreed) to every Member State covered by the crime victims’ law – meaning every EU country except Denmark.

In practical terms, that should mean that (for instance), EU law must be interpreted to mean victims receive a residence permit based on their personal situation, if the authorities consider it necessary (Article 59(3) of the Convention). That would apply to citizens of other Member States and their (EU or non-EU) family members, in all 27 Member States covered by the proposal. It would also apply to non-EU citizens in general, in the Member States which apply EU law on non-EU migration (ie the 25 Member States other than the UK, Ireland and Denmark, which have mostly opted out of such laws).  

For asylum cases, Article 60 of the Convention makes clear that gender-based violence is a ground of persecution. This is more explicit than the EU’s qualification Directive, which says that ‘gender-related aspects shall be given due consideration’, with further reference in its preamble to specific practices like genital mutilation. (Note that the UK and Ireland are covered by the first-phase qualification Directive, which has less precise wording on this issue; so the EU’s ratification of the Convention might have more influence in these countries).

As regards victims of domestic violence crimes (of any nationality and residence status), Chapter IV of the Convention, concerning support and protection, could in particular have an impact on the interpretation of the crime victims’ Directive in each Member State.

Fourth, since the CJEU will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this could promote a uniform interpretation of those provisions within the EU.  

Next, the relevant provisions of the Convention will be more enforceable if the EU ratifies it. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

Conclusion

For all the above reasons, the EU’s planned ratification can only be welcomed. It may not, by itself, prevent any act of violence from being committed, but it may accelerate a broader process of ratification (and corresponding national law reform) on this issue. And it may have the important practical impact of helping victims receive support or protection, particularly in the context of the law on crime victims, immigration or asylum.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter II:4, chapter I:5

EU Free Movement, Immigration and Asylum Law: 2014 in review

 

Steve Peers

Introduction

The issue of the free movement of EU citizens, as well as immigration and asylum from non-EU countries, has in recent years become one of the most contested issues in EU law. This blog post reviews the large number of legal developments over the last year in these two fields, assessing firstly the controversies over EU citizens’ free movement rights and secondly the tensions in EU immigration and asylum law between immigration control and human rights and between national and EU powers. It’s the second in a series of blog posts reviewing aspects of EU law in the last year; the first in the series (on criminal law) can be found here.

Free Movement Law

The case law of the CJEU on EU citizens’ free movement in 2014 was dominated by the themes of the limits to economic migration and equal treatment, in conjunction with EU citizens’ right to family reunion. On the first point, the most prominent judgment of 2014 was the Dano ruling (discussed here), in which the CJEU took a more stringent approach than usual in ruling that an EU citizen who had not worked or looked for work had no right to insist upon a social assistance benefit in the Member State that she had moved to.

As for the basic rules on qualification for EU free movement rights, the CJEU was not asked to rule in 2014 on the definition of EU citizenship. However, a pending case in the UK Supreme Court (discussed here) raises important questions about the extent of EU rules on the loss of national (and therefore EU) citizenship. The acquisition of EU citizenship also proved controversial, in the context of Malta’s sale of national (and EU) citizenship (discussed here).

Furthermore, EU free movement rights usually only apply to those who have moved between Member States. In two linked judgments this spring (discussed here), the CJEU clarified some important exceptions to that rule, as regards EU citizens who have moved to another country to be with their family members and returned, or who are cross-border workers or service providers. Next year, the CJEU will further clarify another important exception to that rule: the Ruiz Zambrano scenario when the non-EU parent of an EU citizen child is expelled to a third country, and the EU child has to follow, resulting in a de facto loss of their EU citizenship. The CS and Rendon Marin cases both ask the Court whether that case law applies to cases where the non-EU parent has been expelled following a criminal conviction.

For those EU citizens who do move between Member States, the CJEU delivered an important judgment in the case of Saint-Prix (discussed here), extending the concept of ‘former workers’ beyond the categories listed in the EU’s citizens Directive, to include also (under certain conditions) cases of pregnant women who gave up their jobs before the baby’s birth.

This judgment concerned the continued access to equal treatment in welfare benefits which former workers enjoy. Indeed, a new Directive on workers’ equal treatment (discussed here) was adopted in 2014, aiming to ensure the effective implementation of such equal treatment rights in practice. Next year, the CJEU will be called upon in the Alimanovic case to clarify whether the limits on EU citizens’ access to benefits set out in Dano also impact upon work-seekers, who have previously had limited access to benefits linked to labour market access. The Court will also soon rule on students’ access to benefits again in the case of Martens, where there has already been an Advocate-General’s opinion.

The issue of EU citizens’ right to family reunion was repeatedly addressed throughout the year, with the CJEU taking a consistently liberal view. It ruled for a generous interpretation of ‘dependent’ family members in Reyes (discussed here), and confirmed that separated spouses can still qualify for permanent resident status in Ogierakhi (discussed here). It also ruled in McCarthy (discussed here) that non-EU family members of EU citizens could not be subject to a ‘family permit’ requirement to visit the UK, but rather had to be exempt from the need to obtain a visa if they hold a residence card in the country which they live in. This judgment clarified that Member States could only claim that EU citizens were abusing free movement rights in individual cases. On this topic, the Commission produced a Handbook on the issue of 'marriages of convenience' (discussed here). Next year, the Court will be called upon to clarify the application of EU law to divorces (Singh), and for the first time, to same-sex relationships (Cocaj).

Finally, as regards the issue of derogations, the Court took a less generous view of cases involving criminal convictions, ruling in G and Onuekwere that time spent in prison in the host State did not count toward obtaining permanent residence status or the extra protection against expulsion that comes with ten years’ residence.  

Of course, the benefits of EU free movement law are not uncontested. Throughout the year, the debate on the merits of these rules in the UK intensified, to the point where Prime Minister David Cameron insisted that there had to be a major renegotiation of these rules as a key feature in the renegotiation of the UK’s membership of the EU. As I pointed out at the time (see discussion here), many of his demands will be difficult to agree, as they would require Treaty amendment.  

Immigration and Asylum law

There were important developments in all four areas of EU immigration and asylum law in 2014: visas and border controls; irregular migration; legal migration; and asylum.

Visa and borders

In the area of border controls, the EU adopted new legislation on maritime surveillance in the spring (discussed here), following a judgment of the CJEU invalidating the prior Council implementing measure on the same subject. This Regulation contains rules on search and rescue, as well as maritime surveillance and the accountability of Frontex, the EU’s border agency. But it does nothing to ensure the accountability of Member States for cases of ‘push-backs’ (illegal return to the country of origin from the high seas) where Frontex is not involved. Nor does it address illegal refusal of entry for asylum-seekers at the external land borders, as in the case of recent Spanish legislation applying to its North African enclaves.

To be fair, in recent years there have undoubtedly been far more cases of national operations which save migrants’ lives, in particular the Italian Mare Nostrum operation of 2013-14. However, that operation was wound down starting in autumn 2014, and replaced by a much more modest EU-led Operation Triton. It’s possible that more migrants will drown in the Mediterranean as a result.

The EU prefers to focus instead on ever-increasing controls at the external borders. But the negotiations on the EU’s smart borders proposals dragged on throughout 2014, with no agreement on the relevant rules likely before 2016. As for CJEU case law, the important Air Baltic judgment confirmed (following the 2013 judgment in Koushkaki, regarding the visa code) that EU rules on entry at the external borders are exhaustive, leaving no residual discretion to Member States. The Court’s other judgment in this field, on the EU’s passports regulation (the so-called Doktor U case), copied the EU legislature’s usual approach of prioritising border controls over individual rights (in this case, the right to present one’s own name in a passport).

In the area of visas, new legislation waived visa requirements for Moldova and then for a list of other countries (Peru, Ecuador, the United Arab Emirates, many tropical island States), subject (for most of these countries) to the negotiation of visa waiver treaties with the countries concerned. Treaties on visa facilitation with Armenia, Azerbaijan and Cape Verde entered into force, and the EU and Turkey began discussions on a visa waiver process.  Furthermore, the Commission proposed legislation to establish a new ‘touring visa’, and to overhaul the EU’s visa code, in order to encourage tourism and other legitimate travel (including new rules on Schengen visas for EU citizens’ non-EU family members, discussed here). Overall, the long-term trend of gradual liberalisation of the EU’s visa policy continued in 2014.

Irregular migration

The main focus in this field was the EU’s Returns Directive, with its detailed rules on many aspects of the expulsion process. Interestingly, while the CJEU’s case law prior to 2014 had focussed on the grounds for immigration detention (with the exception of the 2013 Filev and Osmani judgment, concerning entry bans), the case law this year was far more diverse. In the Mukarubega and Boujlida judgments (discussed here), the CJEU elaborated on the right to be heard in the administrative phase, before an expulsion order was issued to an irregular migrant.  The Court ruled that such a right existed even without an express mention in the Directive, although it then proceeded to limit the actual content of that right considerably.

Conversely, the Directive does contain some basic rules on judicial review of detention, and the CJEU interpreted these for the first time in the Mahdi judgment (discussed here). In particular, the CJEU enhanced judicial control over extension of the detention period, but did not clearly answer questions concerning review of the grounds for detention, notably the issue of whether there was a ‘risk of absconding’ purely because a person lacked an identity document.

The CJEU also gave its first ruling on judicial review of removal orders, in the Abdida case (discussed here). It insisted that legal challenges to removal had to have suspensive effect, where the irregular migrant alleged a serious risk to his or her health would result from return to the country of origin. Also, for the first time this judgment addressed the living standards of irregular migrants pending removal (in this case, Mr. Abdida was entitled to basic social assistance, despite the absence of rules on this issue in the Directive). It also confirmed that the list of issues which Member States had to take into account when applying the Directive, including ‘non-refoulement’ (among other grounds), could constitute a reason for non-removal, and took a liberal view of the interpretation of ‘non-refoulement’. In effect, the CJEU ruled that in some cases, the Directive could form the basis of a claim for a form of protection. But in the parallel case of M’Bodj (discussed below) it ruled that such cases did not fall within the scope of EU rules on asylum, and in the Mahdi judgment it ruled that in the ordinary case, irregular migrants who could not be removed gained no particular rights from the Returns Directive, in effect being left in limbo.

Next, the CJEU broke more important new ground in the cases of Bero and others (discussed here), for the first time ruling on detention conditions. It significantly limited the circumstances in which Member States could detain irregular migrants in prisons, rather than specialised detention centres.

Further important questions are pending before the CJEU. Next year, the Court will rule on the extent of Member States’ power to establish more favourable conditions for irregular migrants, by issuing them with fines instead of expelling them (Zaizoune).  It will also clarify the extent of the Member States’ obligation to give irregular migrants a period for voluntary departure (Zh and O). It will clarify whether the limits on the criminalisation of irregular migrants, as established by prior case law, also apply to those who stayed without authorisation (Celaj; the Court passed up a chance to answer this point in the 2014 ruling in Da Silva). And it will clarify the grounds for detention further, in particular interpreting when a ‘lack of cooperation’ by an irregular migrant can justify a longer period of detention (Mehrabipari).

The Returns Directive also received attention from the Commission and the European Migration Network in 2014. For its part, the Commission report (discussed here) offered some indications of how Member States applied the Directive in practice, although many details were missing.  There were further details of the practice regarding detention in particular in the Network report (discussed here). Overall, there were signs that Member States had increased their standards in some areas but lowered them in others. But the Commission’s failure to bring any infringement actions against Member States, or to issue guidance regarding the correct application of the Directive, was disappointing.

There were developments regarding other aspects of irregular migration in 2014. The Commission issued a report on national application of the Directive prohibiting employment of irregular migrants (discussed here), which indicated that Member States were applying that Directive’s coercive rules enthusiastically, but failing to fully apply its rules on protection of migrants’ rights. For its part, the CJEU confirmed that EU employment law applies to third-country nationals, including irregular migrants (see discussion here). Also, the Commission reported for a second time on the application of the EU rules on the immigration status of trafficking victims. Its report (discussed here) indicates that Member States are still unwilling to issue many residence permits to such victims, hindering the effective prosecution of cases.

Finally, the EU’s readmission treaties with Turkey, Armenia, Azerbaijan and Cape Verde also entered into force in 2014. This completes the network of EU readmission treaties to the east and south-east (with the exception of Belarus), and for the first time extends that network to an African state. The CJEU also strengthened the EU’s powers to include readmission clauses in development treaties (as discussed here), presaging more readmission rules in future.

Legal Migration

After four years’ discussion, the EU agreed new legislation on two aspects of labour migration in 2014, adopting legislation on seasonal workers and intra-corporate transferees (the latter directive is discussed here). There was also some progress on the 2013 proposal to amend the rules on students and researchers: the European Parliament adopted its position in the spring, and the Council position was agreed in December. Negotiations between the two branches of the EU legislature will get underway in 2015, but are likely to be difficult due to their radically different views (I’ll look at these positions in detail in a future blog post).

The Commission also reported for the first time on the EU’s flagship legislation on labour migration, the ‘Blue Card’ Directive. The report (discussed here) indicated that Member States were making great use of the many options in the Directive, diluting its intended purpose to serve as a means to attract highly-skilled migrants to settle in the EU. The new EU Commission intends to propose amendments to this legislation (discussed here) to ensure that it is better able to accomplish its goals.

The CJEU played a modest role in the development of EU law on legal migration in 2014, ruling on issues relating to family reunion, long-term residents and students. On family reunion, the CJEU delivered a very disappointing judgment in Noorzai (discussed here) on the calculation of waiting periods for spouses married before the age of 21, paying little account to its prior case law on the need to protect family life and interpret exceptions from the EU’s family reunion Directive narrowly. For the family members of Turkish workers, though, the Court insisted in Dogan (discussed here) on the application of a standstill clause, thereby exempting them from being subject to the more restrictive rules introduced in recent years – unless such rules could be justified on public policy grounds. Next year, the Court is due to rule on the key question of the limits to the imposition of integration conditions as a ground for family reunion (K and A case). The Commission issued some useful (if very belated) guidance on the application of the family reunion Directive (discussed here); it remains to be seen whether it takes any action to enforce the law.

In other areas, the CJEU ruled in Tahir that being a family member of a long-term resident wasn’t enough to become a long-term resident in one’s own right. The Court should rule next year on: when integration conditions can be imposed on long-term residents (P and S; the Advocate-General’s opinion is due in January already); on the scope of equal treatment for long-term residents (Van Hauthem), and on the extent of fees which Member States can charge to get such status (CGIL).

Next, the Court ruled that Member States have no residual discretion to create new conditions for the admission of non-EU students, in the Ben Alaya case (discussed here). This judgment arguably applies by analogy in other areas of EU immigration law too.

Finally, the Court repeatedly rejected arguments that the UK’s opt-out over immigration matters applied to social security matters, in particular as regards Switzerland (discussed here) and Turkey (I’ll come back to the latter case soon).

Asylum

The CJEU’s case law on the qualification directive (which governs the definition and content of refugee and subsidiary protection status) addressed a number of issues. In A, B and C (discussed here), it ruled out a variety of unpleasant methods of assessing the credibility of LGBTI asylum-seekers, while oddly leaving it open to Member States to ask questions based on stereotypes. In Diakite, it ruled that the EU rules on qualification for subsidiary protection, on grounds that there is a risk of a serious threat to a civilian in cases of ‘indiscriminate violence in situations of international or internal armed conflict’, should not be interpreted consistently with the similar provisions of international humanitarian law. It also clarified another ground for subsidiary protection in M’Bodj (discussed here), ruling that protection on grounds of facing ‘torture or other inhuman or degrading treatment’ did not apply where the person concerned would simply not receive medical treatment in his or her country of origin. Furthermore, Member States’ power to set ‘more favourable standards’ did not extend to permit them to give subsidiary protection as an option to such people. EU law could only apply in the context of the Returns Directive (see the Abdida case, discussed above). Early next year, the CJEU should give important rulings in the cases of T (regarding terrorism) and Shepherd (regarding a US citizen claiming asylum due to conscientious objection to the Iraq war); there is an Advocate-General’s opinion in both cases already.

As for the reception conditions Directive, the CJEU delivered a liberal ruling in Saciri (discussed here), affirming asylum-seekers’ right to family housing on the basis of a very generous interpretation of the Directive. In the area of asylum procedures, the Court clarified the relationship between refugee and subsidiary protection status in the MM case (discussed here), and took a narrow view of the application of data protection rules to the asylum process in Y and S (discussed here).

Finally, the CJEU did not rule on the Dublin system on responsibility for asylum claims in 2014, except to rule in the Qurbani case (discussed here) that it did not have jurisdiction to interpret Article 31 of the UN Refugee (Geneva) Convention on this context. But its approach was implicitly criticised by the European Court of Human Rights (ECtHR) in the Tarakhel ruling (discussed here). The CJEU quickly reacted with its quite bonkers judgment on the EU’s accession to the ECHR (discussed here), insisting that its peculiar notion of naïve mutual trust in each Member States’ asylum system should prevail over any possibility that the other Court might find a breach of human rights in individual cases. The Dublin system was also the focus of the sole legislative proposal on asylum in 2014 (discussed here), which sought to clarify the rules on unaccompanied minors.

Conclusions

In the area of free movement of EU citizens, the CJEU has made significant gestures to its critics this year, as regards the issue of ‘benefit tourism’ and on the limited legal rights of those who have been convicted of crimes. But it continues to take a robust view of equal treatment rights and of the definition and rights of EU citizens’ third-country family members, even in cases outside the traditional rules. If David Cameron is in a position after next year’s UK general election to insist upon renegotiation of the UK’s EU membership, this will be one of the key political issues facing the EU.

In the area of immigration and asylum, the tension between immigration control and human rights can be seen particularly in the EU’s continued strengthening of its border controls despite the large loss of life in the Mediterranean. It’s often suggested that a more developed EU external policy on asylum could reduce the number of lives lost, but there are many legal and political issues holding up such a resolution. This autumn, I attended a seminar on these issues: there was a consensus among the high-level government experts that an effective policy was simply not politically realistic.

Once non-EU citizens do reach the EU’s territory, however, the CJEU’s relatively liberal interpretation of the legislation on legal migration, asylum and even the Returns Directive means that they enjoy more rights than the initial critics of much of this legislation thought would be likely. Interestingly, the EU’s traditional economic objectives are being increasingly used as justification for the adoption of more liberal rules on visas and labour migration, not only by the EU legislature but also (in the Ben Alaya judgment) by the CJEU.

The Court’s rulings this year have confirmed that EU law constrains Member States’ discretion in this field significantly, not only establishing the exhaustive nature of the EU’s rules on border control on admission of students, but also setting a ceiling as regards the definition of refugee and subsidiary protection status and developing many new rules in the context of the Returns Directive. But there is an interesting new development: the CJEU has opened up a second front, defending EU rules also from any significant influence by international law. This is evident in several areas: the decoupling of the EU’s subsidiary protection rules from international humanitarian law; the ‘channelling’ of the ECtHR jurisprudence on medical cases into the Returns Directive instead of asylum law; the continued implicit snub to international soft law (this year, as regards the UNCHR guidelines on credibility assessment in LBGTI cases); and most obviously the CJEU’s barely suppressed rage at the ECtHR’s mild criticism of the dysfunctional Dublin regime. Time will tell what the effects of the Court’s hubris will be.

 

Barnard & Peers: chapter 13, chapter 26