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

Professor Steve Peers, University of Essex

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

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

EU law background

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

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

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

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

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

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

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

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

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

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

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

Background to the case

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

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

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

Judgment of the CJEU

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

In the Court’s view:

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

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

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

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

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

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

If this assessment establishes that

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

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

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

Comments

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

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

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

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

Barnard & Peers: chapter 13

Photo credit: newstarkafala.org

The EU’s commitment to combatting violence against women: rhetoric or reality?

Catherine Briddick, Martin James Departmental Lecturer in Gender and Forced Migration at the Refugee Studies Centre of the University of Oxford - @CateBriddick

Background

The EU has, at its heart, a legal commitment to combat discrimination, including that based on sex, and to promote gender equality. It has however, been subject to sustained and justified criticism for its failure(s) to live up to these commitments, particularly in relation to its treatment of migrant and refugee women. The announcement by the Commission in 2016 that the EU would sign and conclude (ratify) the Council of Europe Convention on Preventing and Combatting Violence Against Women (the Istanbul Convention) was, therefore, warmly received by activists and academics alike.

 

The Istanbul Convention, for readers unfamiliar with it, is only the second international, legal instrument to focus on violence against women and the role of that violence in maintaining women’s inequality. The purposes of the Convention (set out in Article 2) are to protect women from all forms of violence and to prevent, prosecute and even eliminate violence against women and domestic violence. To achieve these purposes the Convention imposes on Parties a comprehensive range of obligations including that they:

-          adopt integrated, co-ordinated and properly resourced policies and programmes to challenge gender inequality, monitor and respond to violence against women (Istanbul Convention, Chapter II);

-          prevent violence through education, training and awareness-raising (Chapter III);

-          protect and support victims via a range of non-legal and legal measures (Chapters IV, V and VI);

-          investigate, prosecute and punish offenders (Chapter VI);

-          grant autonomous and/or renewable residence permits to migrant women who are victims of violence (Article 59); and,

-          ensure that refugee women’s claims for protection and dealt with in a gender-sensitive way (Arts 60 and 61).

Significantly, the rights and protections the Convention provides victims are to be secured by Parties without discrimination on any ground, including migration or citizenship status (Article 4(3)).

In force since 2014, the Convention has, at the time of writing, been ratified by thirty-three States (including Germany, Austria, Denmark, France, Italy, Spain, Sweden and Turkey) and signed by many others, including the UK.

The EU’s current approach

The Istanbul Convention itself envisages EU accession (Article 75), something that the EU can do to the full extent of its competences, as this blog has already discussed. The procedure to be followed involves the Council, following a Commission proposal and the consent of the European Parliament, adopting a decision which concludes the agreement. The agreement must identify the legal bases for the EU’s accession, bases derived from the EU’s legal competence (its ability or power) to act in a particular field. Once ratified, this agreement is binding on the institutions of the EU and EU Member States, to the extent that the EU has concluded the treaty. You can read more about this process here.

The EU’s competence in relation to violence against women is extremely broad. The legal bases under the Treaty on the Functioning of the European Union (TFEU) identified by the Commission in its Proposal for the Council on the conclusion of the Istanbul Convention were:

Article 16 (data protection), Article 19(1) (sex discrimination), Article 23 (consular protection for citizens of another Member State), Articles 18, 21, 46, 50 (free movement of citizens, free movement of workers and freedom of establishment), Article 78 (asylum and subsidiary and temporary protection), Article 79 (immigration), Article 81 (judicial cooperation in civil matters), Article 82 (judicial cooperation in criminal matters), Article 83 (definition of EU-wide criminal offences and sanctions for particularly serious crimes with a cross-border dimension), Article 84 (non-harmonising measures for crime prevention), and Article 157 (equal opportunities and equal treatment of men and women in areas of employment and occupation).

The Commission argued that it was appropriate to base a Council Decision signing the Istanbul Convention on Articles 82(2) and 84 TFEU because the ‘predominant purpose’ of the Convention is to prevent crime and protect victims. Selecting these bases would enable the EU to ‘exercise its competences over the entirety of the Convention’. Accordingly, the Commission’s draft Council Decision refers to Article 82(2) and Article 84 TFEU and refers to the EU signing up to the Convention as a whole.

The Council, however, took a radically different approach to that proposed by the Commission, taking not one but two decisions to sign the Convention in May 2017.

The first decision refers to Article 82(2) and Article 84 TFEU but states in Article 1 that:

The signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters is hereby authorised, subject to the conclusion of the said Convention (emphasis added).

The second decision identifies Article 78(2) TFEU (on the establishment of a Common European Asylum System) as its legal base, stating in its Article 1 that the signing of the Convention is ‘with regard to asylum and non-refoulement’ (again, emphasis added).

These decisions limit the legal obligations the EU will accept in relation to the Istanbul Convention only to those that concern judicial cooperation in criminal matters and to asylum and non-refoulement (not, for example, European Union free movement law).

These decisions not only diverge from the Commission’s proposal, but also from the EU’s position in relation to the UN Convention on the Rights of Persons with Disabilities (the CRPD). The Council decision which signed the CRPD signed the Convention as a whole and took as its legal basis the EU’s commitment to non-discrimination.

(Update: in April 2019, the European Parliament decided to ask the Court of Justice about legal issues relating to the EU's proposed conclusion of the Istanbul Convention).

Commentary

Readers of this blog can be forgiven for asking if any of the above really matters. The obligations that the EU is planning to assume under the Istanbul Convention are significant, even if they are more limited than many hoped for and anticipated. EU action in either of the two areas it has signed up to could yield significant improvements in the way that violence against women is responded to, at both an EU and national level.  

Well it does matter, for at least two reasons.

First, EU free movement law disadvantages women, including women who have been subject to violence. To take just one example, as this blog and I have argued, the CJEU’s shameful decision in NA (which concerned Article 13 of the Citizens Directive), left a third-country national woman whose EU citizen husband subjected her to domestic violence and then left the UK, without a secure migration status. Article 59 of the Istanbul Convention requires Parties to grant autonomous and/or renewable residence permits to victims of violence in a broader range of circumstances than that currently provided for by EU law, potentially improving the position of women like NA whose migration status is (or was) dependent on their partner. The EU’s decision not to sign up to this provision means that women who are subject to violence whose migration status is determined by EU law will continue to face considerable hardship.

Second, the Convention itself and the holistic approach it adopts to violence and discrimination against women have been attacked and undermined by States who are either Parties or signatories to it.  Some States, including Poland, Latvia, Lithuania and Croatia have sought to limit the obligations the Convention imposes by making impermissible and potentially invalid declarations / reservations to it. In Bulgaria the process of ratifying the Istanbul Convention has been halted following a controversial judgement from its Constitutional Court that the Convention contradicts Bulgaria’s constitutional protection of women as mothers. The Commission has expressed concern about these developments and has sought to encourage States to ratify the Convention fully and without delay, highlighting its own role as a potential enforcer of the Convention where EU competences are involved. The EU’s ability to provide either political leadership or legal support on these issues is, however, hampered by its own partial and highly selective engagement with the Convention. Not only is the EU open to allegations of hypocrisy, but its own actions give succour to, rather than challenge, the conduct of the very States whose behaviour it seeks to influence.

Can the Council’s position be challenged?

Whether the Council’s two decisions will actually lead to the EU engaging with the Istanbul Convention in the very limited way described here is, as yet, far from clear.  

The European Parliament has stated that it ‘regrets’ the Council’s approach because it raises ‘legal uncertainties as to the scope of the EU’s accession, as well as concerns regarding the implementation of the Convention’. The Parliament has recommended instead ‘a broad EU accession to the Convention without any limitations’. It is not known whether the Parliament’s ‘regret’ will extent to withholding its agreement to the Council’s decisions.

The decisions could also be subject to legal challenge. The Commission has successfully challenged a Council decision to enter into a legal agreement with a third country on the grounds that it did not proceed on the correct legal bases. A similar challenge, based on the arguments the Commission advanced in its Proposal (as discussed briefly above) or, more persuasively in my view, on the grounds that the EU’s legal response to violence against women should be based in its commitment to combat sex discrimination, may well yield success.

The Istanbul Convention is monitored and enforced by a committee, the Group of Experts on Action against Violence against women and Domestic Violence (GREVIO) via a reporting and inquiry procedure. The EU’s approach to the Istanbul Convention could also be challenged by GREVIO or another Party to it. Article 75 of the Istanbul Convention refers to the Convention as a whole being open for signature, not parts of it whilst Article 73 provides for a dispute mechanism to be created if Parties disagree over the application of its provisions.

At the time of writing the EU’s (stalled) ratification of the Istanbul Convention is being considered by the Council working party on Fundamental Rights, Citizens’ Rights and Free Movement of Persons (FREMP). This scrutiny is being accompanied by a concerted, EU-wide campaign in support of the Istanbul Convention and the EU’s full ratification of it. Over the next few months we will be able to gauge the impact of these processes, as the EU proceeds (slowly) to conclude the Convention. We will then find out whether the EU’s rhetoric on violence against women is any more than that. 

Barnard & Peers: chapter 9, chapter 20

JHA4: chapter I:5

Photo credit: Council of Europe

CS and Rendón Marín: Union Citizens and their Third-Country National Parents – A Resurgence of the Ruiz Zambrano Ruling?

Maria Haag, PhD Researcher, European University Institute (Florence, Italy) & Michigan Grotius Research Scholar, University of Michigan Law School (Ann Arbor, Michigan)

Background

Five years ago, the CJEU delivered its infamous Grand Chamber decision in C-34/09 Ruiz Zambrano. It held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union” (para 42, emphasis added). This 'genuine enjoyment'-protection had two consequences. First, Union citizens could rely on Article 20 TFEU against their Member State of nationality without having previously made use of their rights to free movement and thus bypassing the Court's general lack of jurisdiction in 'purely internal' situations. Secondly, Member States were precluded from denying a right of residence to third-country national ('TCN') parents or caretakers of minor citizens of that Member State, as these children would otherwise be forced to leave the territory of the EU and thus no longer able to make use of the rights granted by Union citizenship.

Shortly after the delivery of this ground-breaking judgment, the Court of Justice proceeded to interpret Ruiz Zambrano very narrowly in a series of cases (C-434/09 McCarthy, C-256/11 Dereci and Others, C-40/11 Iida, C-356&357/11 O. and S., C-87/12 Ymeraga and Others, C‑86/12 Alokpa and Moudoulou and C-115/15 NA) leading many to wonder about the original significance of the Ruiz Zambrano decision. In contrast to Ruiz Zambrano, these subsequent cases mostly concerned the significance of Article 20 TFEU in a host Member State. The Court held that the applicants fell outside the scope of Article 20, even if they had never moved to another Member State, i.e. had been born in a Member State other than their Member State of nationality and had never left. The most recent cases – C-304/14 CS and C-165/14 Rendón Marín – however, Ruiz Zambrano decision, fully address the right under Article 20 TFEU in the home Member State. On the 13th of September 2016, the Grand Chamber delivered these two decisions in which it considered the effect of a criminal record of a TCN parent on his or her derived residence right under Article 20 TFEU and to what extent this right can be derogated on grounds of public policy or public security.

C-304/14 CS: facts and judgment

The case in CS concerned a Moroccan national, who resided in the UK together with her British national son. In 2012, she was convicted of a criminal offence and given a prison sentence of 12 months. Following her conviction, she was notified of her deportation liability. Her subsequent application for asylum was denied. Upon her appeal, the First-tier Tribunal (Immigration and Asylum Chamber) found that her deportation would violate her child's rights under Article 20 TFEU. The Home Secretary was granted permission to appeal this decision before the Upper Tribunal, which asked the CJEU, under which circumstances the expulsion of a TCN caretaker of a Union citizen could be permitted under EU law and whether Article 27 and 28 of the Directive 2004/38 (the ‘citizens’ Directive’, which sets out the main rules on EU citizens who move to another Member State) had any effect in this case.

In its two-part decision, the Court firstly answered the question whether a TCN parent of a Union citizen has a derived right of residence in the home Member State under Article 20 TFEU and, secondly, if such a right can be limited on grounds of public policy or public security.

The Court first firmly restated its holding in Ruiz Zambrano. It explained that Article 20 TFEU "precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens" (para 26; citing Ruiz Zambrano para 42). Furthermore, this means that "a right of residence must … be granted to a third-country national who is a family member of [a minor Union citizen] since the effectiveness of citizenship of the Union would otherwise be undermined, if, as a consequence of refusal of such a right that citizen would be obliged in practice to leave the territory of the European Union as whole" (para 29). CS thus had a derived right of residence under Article 20 TFEU in her son's home Member State.

Secondly, the Court held that, as a general rule, such a derived residence right can be derogated for reasons of public policy or public security: "where the exclusion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security … that decision could be consistent with EU law" (para 40, emphasis added). However, a deportation decision cannot be made "automatically on the basis solely of the criminal record of the person concerned" (para 41). Thus the UK legislation at issue, which obliges the Home Secretary to make a deportation order of any non-national who is sentenced to a period of imprisonment of 12 months or more, establishes "a systematic and automatic link between the criminal conviction of a person … and the expulsion measure" (para 44) and therefore violates EU law. Instead, it is for the national courts to weigh up "the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the child at issue and his state of health, as well as his economic and family situation" (para 42, emphasis added).

Furthermore, derogations for reasons of 'public policy' or 'public security' must be interpreted strictly and decisions are subject to review by the EU institutions (para 37). Lastly, and most notably, the assessment of the individual situation must take account of the principle of proportionality and the rights protected in the Charter of Fundamental Rights of the European Union ('CFREU'), especially Article 7 on the right to respect of private and family life and Article 24(2) on the obligation of consideration of the child's best interests (paras 48 and 49).

C-165/14 Rendón Marín: facts and judgment

The facts in Rendón Marín are very similar to the ones in CS and essentially raise the same question, presumably why the Court decided these cases on the same day and why Advocate General Szpunar did not give separate opinions in these cases, but combined the two. Rendón Marín concerned a Colombian national father, who lived in Spain together with his Spanish national son and his Polish national daughter. His application for a residence permit was rejected due to his criminal record. The crucial difference between the facts of the two cases is that Mr Rendón Marín has a Union citizen daughter who lives in a host Member State and a son who lives in his home Member State. There thus exists a cross-border element in the situation of his daughter, but not in his son's (For further discussion on the cross-border element, see C-200/02 Zhu and Chen, especially para 19.).

The part of the Court's decision concerning the son's circumstances – a Spanish national in Spain – is almost identical to the Court's judgment in CS. In fact, some of the paragraphs can be found in exactly the same wording in both decisions (the two cases also had the same rapporteur, Allan Rosas). Interestingly, the Court in Rendón Marín mentioned the possibility of moving to Poland, as this is the Member State of nationality of Mr Rendón Marín's daughter. Whilst the Court noted the applicant's objection that the family had no ties to Poland, it did not go into this discussion. (See, in contrast, footnote 109 in Advocate General Szpunar's Opinion in CS and Rendón Marín. For more on this, see also Advocate General Wathelet's Opinion in NA, paras 112-117.) Here the Court simply holds that "it is for the referring court to check whether … the parent who is the sole carer of his children, may in fact enjoy the derived right to go with them to Poland and reside with them there" (para 79, citing Alokpa and Moudoulou paras 34-35). The Court therefore did not deny that moving to Poland could be a possible solution in case of the father's deportation from Spain.

As for the legal status of the daughter, the Court held that, as a Polish national and Union citizen, she could rely on Article 21 TFEU and the Directive 2004/38 to grant her a right of residence in Spain (para 44). Furthermore, the Court stated that if the daughter fulfils the conditions laid down under Article 7(1) Directive 2004/38 (i.e. having sufficient resources and comprehensive health insurance) then the derived right of residence of Mr Rendón Marín, her father and sole caretaker, cannot be refused (para 53). Whilst this derived right of residence can be limited for reasons of public policy or public security (para 57), EU law precludes such limitations on "grounds of a general, preventive nature" (para 61). Instead, it is for the national courts to do a similar weighing-up exercise as laid out in CS (see Rendón Marín, paras 59-66). Derogations from derived rights of residence on the basis of Article 20 TFEU and Article 21 TFEU thus presumably have to withstand the same test.

Comment

After a longer period of silence on this issue, the Court in these cases seems at the very least willing to explore the scope of Ruiz Zambrano. (The Court should soon decide another case, Chavez-Vilchez, which raises some further important questions about the scope of that judgment). The two recent judgments, whilst they in some sense appear to diminish the scope of Ruiz Zambrano even further, can also be seen as a restatement of the fundamental significance of the original judgment.

The cases following the Ruiz Zambrano decision made it very clear that protection under Article 20 TFEU is only applicable to a very small number of people in "very specific situations" (Rendón Marín para 74; CS para 29): essentially only to minors who reside with their TCN parents in their home Member State. CS and Rendón Marín both confirm this, but also clarify that a very high level of protection is granted to those Union citizens who fall within the scope of the 'Ruiz Zambrano-protection'. In fact, the substantive protection against expulsion is equivalent to that of EU citizens (and their family members) who move to another Member State (the Court refers to concepts found in the EU citizens’ Directive and its predecessors, as well as relevant case law), although it is not clear if the same procedural protection applies. 

The Court certainly does not exclude the possibility that "in exceptional circumstances" (CS para 50) a criminal and dangerous parent who poses a threat to a Member State's public policy or public security could be deported. Even if this means that his or her Union citizen children are forced to leave EU territory and thus deprived of the genuine enjoyment of their EU citizenship rights. Nevertheless, the Court insists on a very stringent test before such a decision can be taken.

Most notably, the Court refers to the EU's Charter of Fundamental Rights and stresses the fact that a deportation decision needs to take account of Article 7 and Article 24(2) of the Charter (see CS paras 36 and 48; Rendón Marín paras 66 and 85). In Dereci, the Court had previously held that "if the referring court considers … that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter" (Dereci, para 72). In that case the Court had decided that the circumstances fell outside the scope of EU law, and that it was therefore beyond its jurisdiction to consider a violation of the Charter. In both CS and Rendón Marín, the Court found that the applicants' circumstances fell within the scope of EU law and thus that the Charter applied.

It is also interesting to compare the protection granted in C-135/08 Rottmann against the deprivation of the legal status of Union citizenship altogether and the protection granted in CS and Rendón Marín against being deprived of the genuine enjoyment of the Union citizenship rights by means of a parent’s expulsion to a non-EU state. Whereas in Rottmann, the Court held that a decision to withdraw someone's nationality needs to respect the principle of proportionality (Rottmann, para 59), in CS and Rendón Marín it established a list of criteria that need to be observed. Curiously, the Rottmann-test therefore appears to be narrower than the one established in CS and Rendon Marin, even if the potential outcome in circumstances like Rottmann, i.e. statelessness, might be much more serious for the individual concerned.

In its decision in CS, the Court cites the European Court of Human Rights (ECtHR) judgment in Jeunesse v the Netherlands. The EU Court states in paragraph 49:

"[A]ccount is to be taken of the child's best interests when weighing up the interests involved. Particular attention must be paid to his age, his situation in the Member State concerned and the extent to which he is dependent on the parent (see, to this effect, ECtHR, 3 October 2014, Jeunesse v. the Netherlands, CE:ECHR:2014:1003JUD001273819, §118)."

Jeunesse v. the Netherlands, which was decided by the Strasbourg court in 2014, concerned a Surinamese national, who lived with her Dutch national husband and children in the Netherlands without a valid residence permit. The applicant argued that the refusal to allow her to reside in the Netherlands infringed her right to respect of her family life under Article 8 ECHR. The facts of this case are very similar to the ones in Dereci, in which the Court of Justice held that such a denial of residence right did not conflict with EU law. The ECtHR, however, came to the conclusion that the Dutch authorities had failed "to secure the applicant's right to respect for her family life as projected by Article 8 of the Convention" (Jeunesse v the Netherlands, §122).

So what does the reference to this judgment mean? First and foremost, the CJEU clarifies and stresses the utmost importance of taking account of the children's best interests in these deportation decisions. Secondly, it signals the Court's commitment to taking the fundamental rights of those who fall within the Ruiz Zambrano-protection very seriously.

Finally, the fact that the Court treats the situation of the daughter and the son separately in Rendón Marín reaffirms the Court's findings in previous cases that a Union citizen in a host Member State first has to rely on Article 21 TFEU before Article 20 can be applied. In the NA judgment, which the Court delivered at the end of June 2016, it held that one first has to examine whether the citizen and their TCN caretaker have a right of residence under secondary EU law. Only if there is no such right, can Article 20 TFEU apply.

The NA case concerned a Pakistani national mother who lived in the UK with her German national children where she was refused a right of residence. The Court decided that because it had already held that both the children and their TCN mother had a right of residence in the host Member State under Article 12 of Regulation No. 1612/68 (paras 52-68), which guarantees children of current and former workers the right to access to education in the host Member State, with corollary residence rights for those children and their parents (for more, see CJEU decisions in C-480/08 Teixeira and C-310/08 Ibrahim). Article 20 TFEU did not confer a right of residence in the host Member State. It is clear that the protection under Article 20 TFEU is one of last resort. Whilst the Court in NA and Rendón Marín does not directly rule out the possibility that the Ruiz Zambrano-protection might apply in a host Member State, it now almost seems impossible. It appears that that protection can only be granted by the home Member State.

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo credit: cpkidsmountainclimbers.wordpress.com

Domestic violence and free movement of EU citizens: a shameful CJEU ruling

Steve Peers

EU laws on the free movement of EU citizens don’t give non-EU citizens rights in their own name. Rather, non-EU citizens can only gain rights under those laws if they have a family link with an EU citizen. This creates an obvious problem in cases of domestic violence committed by an EU citizen against a non-EU citizen family member. If the non-EU family member breaks the family link in order to flee the violence, there could be a risk of expulsion. So the victims might stay with their abusers due to a fear of removal from the country, which might include separation from their children.

However, there are provisions of EU law that mitigate this risk. It has long been the position (since the CJEU judgment in Diatta) that non-EU citizens can remain in the same country as their EU citizen spouse following a separation. Their position only changes after divorce.

Upon divorce, the EU citizens’ Directive (which sets out most of the rules governing EU citizens who moved to another Member State) provides specific protection. As a general rule, they can remain if the marriage has lasted three years, including one year in the host State. They can also stay if they have custody of the children, or access to them in the host State. Finally, they can also stay if ‘this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage…was subsisting’. In any of these cases, they can later get permanent residence status.

The recent judgment in NA was the first time the Court of Justice has interpreted the specific rule on domestic violence cases. It follows last year’s judgment in Singh, where the Court first interpreted the general rule about divorce. Both cases raised the same underlying issue: what happens if the EU citizen leaves the host State before the divorce is finalised? Does that departure immediately end the non-EU citizen’s status under the citizens’ Directive, trumping the retention of their residence that would otherwise apply during their separation and (probably) their subsequent divorce from their spouse?  

According to the Court of Justice, it does. This reasoning was an unconvincing interpretation of the general rule in Singh, and it is a particularly unconvincing interpretation of the special rule on domestic violence victims, taking insufficient account of the social context of this rule. While the victim in NA was able to rely on other provisions of EU law, not all victims will be able to. The Court of Justice should therefore rethink its position if the case arises – particularly in light of the EU’s planned signature of the Istanbul Convention on violence against women.

The judgment

The case concerned the status of a Pakistani woman who moved to the UK with her German husband. (The judgment will no longer be relevant to the UK if the country leaves the EU without an agreement on the continued free movement of people. However, it will still be relevant to other Member States). Her husband worked in the UK, and the couple had two daughters, both of whom are German citizens. She left the household due to domestic violence, and her husband left the country shortly after that, before any divorce proceedings began. She subsequently sought permanent residence status in the UK.

Did she retain rights under the citizens’ Directive? As noted above, the Court said she did not. It simply followed Singh, ruling that rights for the non-EU family member ended the moment the EU citizen left the country, unless divorce proceedings had begun beforehand. It gave three reasons. First, the wording of the relevant clause referred only to divorce. Second, the context was the ‘exceptional’ case where a non-EU citizen retained a right to stay despite no longer being a ‘family member’ of an EU citizen living in the same Member State. Third, the Court referred to the ‘aims’ of the law. In its view, the EU legislature had declined to make provision for cases where the EU citizen had departed the Member State, and the original proposal referred to possible ‘blackmail accompanied by threats of divorce’, with ‘safeguards’ only ‘necessary…in the event of final divorce’, as the right of residence is ‘not at all affected’ by a ‘de facto separation’.  

So she had no rights under the citizens’ Directive. However, the Court then examined two other arguments for her stay. First, the Regulation on free movement of workers says that the children of EU workers are entitled to access education. The Court had previously ruled that this entailed a right for the children to stay even if the worker had left, along with a corollary right for the parent caring for them to stay as well. The UK court questioned whether this rule applied even if (as in this case) the children only started school after the worker had left the country; the Court of Justice confirmed prior case law that it did. It was sufficient that the children were resident at some point while one parent was working in that Member State.

Finally, the Court examined a two-fold argument for NA’s right to stay on the basis of the EU Treaties. The first leg of this argument invoked Ruiz Zambrano, the well-known 2011 CJEU judgment which said that non-EU family members of EU citizen children who had not moved within the EU could derive a right to stay based on their children’s rights as EU citizens not to be deprived of the benefits of their EU citizenship. But the Court said that Zambrano was irrelevant to NA, since it only applied as a default, where no EU legislation could protect the legal status of the person concerned.

The second leg invoked the general right of free movement of EU citizens set out in the Treaties. But the Court ruled that the Treaty right was subject to secondary legislation. Applying the citizens’ Directive, NA’s EU citizen children could stay if they had ‘sufficient resources’, which could be derived from a parent. There was then a corollary right for a parent to stay with them – reaffirming case law going back to the Court’s well-known Chen and Zhu judgment.

Comments

In this case, Ms NA got to stay in the country – but that wasn’t actually the issue. She was seeking rather the right to permanent residence, but at first sight she will not obtain that. That right applies to a family member who retains a right of residence under the citizens’ Directive following divorce (among other cases). But it’s not clear if it applies to those who are resident only as a corollary to their children under the Directive. And it certainly does not apply to those who are only resident on the basis of the Regulation on free movement of workers, rather than the Directive: the Court said as much in its Alarape judgment.

The bigger problem with this judgment is the scope it opens to Member States to remove the victims of domestic violence from their territory. Ms NA only got the right to stay on the basis of her care for the children, not as a victim of domestic violence. So a victim without children would not have such protection. Also, rather arbitrarily, a victim whose husband had been self-employed, rather than a worker, would not benefit from the free movement of workers Regulation (see the Czop judgment). Moreover, the Court skipped over the point that her second child had not yet been born at the time when her husband left the country. The judgment would not help those victims whose children had been abducted by the husband when he returned to his home State, or who did not have parental responsibility for the children.

The logic of the Court’s analysis is deeply flawed. First, it isn’t self-evident that the rule on divorce is trumped in the event of separation: the EU legislature simply didn’t explain which rule takes precedence in that case. Secondly, the numbers of non-EU citizens with the right to stay will still remain ‘exceptional’, even if it is extended to cover also the (hopefully) small numbers of cases where an EU citizen perpetrates domestic violence against a non-EU citizen and then leaves the country before divorce proceedings start.

Thirdly, the Court’s analysis of the aims of the EU legislation is clearly absurd. True, the right of residence is ‘not at all affected’ by a ‘de facto separation’ – as long as the EU citizen spouse remains in the country. If the EU citizen spouse leaves, according to the Court’s own interpretation, the right of residence isn’t just ‘affected’ – it instantly vanishes entirely. So in that case ‘safeguards’ would be ‘necessary’. Otherwise there could be ‘blackmail accompanied by threats’ of departure, rather than divorce. Did the EU legislature really intend to make that fine distinction: it’s terrible to threaten a non-EU spouse in one case, but perfectly acceptable in the other? Does the humanity of our response to domestic violence rest on that technicality?

This analysis is shared by the Advocate-General’s opinion, which notes that the loss of status ‘could be used as a means of exerting pressure…to wear the victim down psychologically and, in any event, to engender fear of the perpetrator’. The Court’s interpretation could also complicate criminal proceedings, and deprive the victim’s derived right of its effectiveness. Overall that interpretation is ‘manifestly contrary to the objective of legal protection pursued by’ the citizens’ Directive.

Two final points on the broader context. First, the Istanbul Convention on violence against women, which the Commission has proposed that the EU sign, provides for a right of residence in domestic violence cases (see Article 59). There’s no reference to any distinction based on whether the perpetrator has left the country or not. Neither is there any such reference in the explanatory memorandum to the Convention. And why the hell should there be? Who cares where the perpetrator is, in this context? The sole purpose of the Convention – like the relevant clause in the citizens’ Directive – is obviously to help the victim.

Secondly, let’s examine the law from the perspective of the actual victim in this case. She could have preserved her position by bringing divorce proceedings before her husband left the country. But she had just fled her home, five months pregnant with an eleven-month old child. She may well have faced problems relating to work, benefits or accommodation. And on top of all this, the Court of Justice gives the nod to the Home Office to question her immigration status.

With all due respect, this is one of the most shameful judgments in the Court’s long history. It should be revisited at the earliest opportunity, in particular if the EU has concluded the Istanbul Convention in the meantime.

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo image: Telegraph.co.uk

Judicial control of Detention: A deceptive upheaval?

Marie-Laure Basilien-Gainche

Professor in Law

University Jean Moulin Lyon III
Member of the Institut Universitaire de France

Last Thursday 5 June 2014, the third Chamber of the Court of Justice of the European Union (CJEU) published its decision in the Mahdi case (available in French and Bulgarian, but not yet in English) that offers one more time some clarification about the way the so-called Return Directive must be interpreted: it is the eighth time the Court of Luxembourg has shed some light on some provisions of this Directive (Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals).

In its famous previous cases, the Court of Luxembourg answered preliminary questions concerning the Directive. Although the Italian Tribunale di Rovigo asked the CJEU to interpret many different provisions of the Return Directive in the Sagor case (CJEU, 6 December 2013, C-430/11), the referring national judges in the other cases asked questions on a specific provision of the Directive: Article 2 in the Arslan case (CJEU, 30 May 2013, C-534/11); Article 8 in the Achughbabian case (CJEU, 6 December 2011, C-319/11); Article 12 in the Filev & Osmani case (CJEU, 19 September 2013, C-297/12); and Article 15 in the Kadzoev case (CJEU, 10 November 2009, C-357/09 PPU), in the El Dridi case (CJEU, 28 April 2011, C-61/11 PPU), and in the G. & R. case (CJEU, 10 September 2013, C-383/13).

The  interpretation of the same provision was again at stake in last week’s Mahdi judgment: the Bulgarian judge (Administrativen sad Sofia-grad) asked numerous detailed questions to the CJEU concerning Article 15 of the Return Directive, particularly its paragraphs 3 and 6, in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union. It should be noted that the French judges that have recently decided to stay their proceedings and to refer to the Court of Justice for preliminary rulings on the Directive, might be inspired by the way such a Bulgarian court addressed its questions. Actually, the requests for a preliminary ruling the Tribunal de grande instance de Bayonne lodged on 15 April 2013 in the Raquel Gianni Da Silva v. Préfet des Pyrénées-Atlantiques case (C-189/13) and the Tribunal administratif de Pau lodged on 6 May 2013 in the Khaled Boudjlida v. Préfet des Pyrénées-Atlantiques case (C-249/13) appear to be rather vague and elusive, so much so we can wonder whether the Court will be able to give some unequivocal answers that would effectively push the French juridical order to be in conformity with the Return Directive provisions.

The Mahdi case concerns a Sudanese national, who was arrested in Bulgaria for not possessing a valid identity document, and against whom a return decision (see Article 8 of the Return Directive) and an entry ban (see Article 11 of the Return Directive) were issued. Being detained in the detention center of Busmansti in order to let the Bulgarian administration organize and proceed to his removal, Bashir Mohamed Ali Mahdi agreed initially to benefit from a voluntary departure (see Article 7 of the Return Directive), before refusing such a solution. Meanwhile, the Sudanese authorities refused to deliver M. Madhi the needed travel documents, so the director of the Busmantsi detention center (direktor na Direktsia «Migratsia» pri Ministerstvo na vatreshnite raboti) proposed that he be released (see Article 15 § 4 of the Return Directive) and subjected to a less coercive measure instead of detention (see Article 15 § 1 of the Return Directive).

Nevertheless, the national administrative hierarchy opposed the proposition of the detention center director. Thus Bashir Mohamed Ali Mahdi remained in the Busmansti center, during all the first period of detention that cannot last more than six months (see Article 15 § 5 of the Return Directive). At the expiration of such a period, the detention center director asked the administrative judge (Administrativen sad Sofia-grad) to extend the detention period (see Article 15 § 6 of the Return Directive), because of the lack of cooperation M. Mahdi showed and the difficulties the administration encountered in obtaining the necessary documentation from the Sudanese ones. As discussed below, these are the only grounds in the Directive for a possible extension of immigration detention of a third-country national (TCN) beyond six months.

The Bulgarian administrative judge did not answer to positively to the administration demand; instead he sent a request for a preliminary ruling to the CJEU as he wondered how paragraphs 3 and 6 of Article 15 of Directive 2008/115/EC had to be understood. The first of these provisions states: “In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority”. The second provision states: “Member States may not extend the [six-month] period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries”.

Actually, all the questions the referring judge addressed to the Court concern the detention of the illegally staying third-country national whose removal is pending (see the view of Advocate General Szpunar Maciej). Four points are dealt by the CJEU. The first one concerns the formal and substantial requirements which the decision that extends the period of detention must fulfil: even though Article 15 § 21 of the Return Directive deals with the initial detention decision stating that “Detention shall be ordered in writing with reasons being given in fact and in law”, the Court of Justice asserts that such requirements also have to be satisfied by the later decisions that extend the detention of the illegally staying third-country national.

The Madhi decision also deals with three other points that must be emphasised: 1) the intensity of judicial control of the decision that extends the detention period; 2) the reasons why the TCN is detained and remains in detention; 3) the issuing of a residence authorization when there is no reasonable prospect of removal.

1 - The intensity of judicial control of the decision that extends the detention period

The extension of a detention measure and the nature of the control the judicial authority has to exercise on it have been the subject of previous preliminary rulings of the CJEU. In the Arslan case (CJEU, 30 May 2013, C-534/11), it has been asserted that such an examination must rely on “an assessment on a case-by-case basis of all the relevant circumstances” (§ 63). In the G. & R. case (CJUE, 10 September 2013, C-383/13), the CJEU stated that “where the extension of a detention measure has been decided in an administrative procedure in breach of the right to be heard, the national court responsible for assessing the lawfulness of that extension decision may order the lifting of the detention measure only if it considers, in the light of all of the factual and legal circumstances of each case, that the infringement at issue actually deprived the party relying thereon of the possibility of arguing his defence better, to the extent that the outcome of that administrative procedure could have been different” (§ 45).

These positions of the CJEU didn’t appear to provoke any juridical earthquakes: the interpretations emphasise first that the judicial control must be exercised taking into account all the factual and legal circumstances of the considered case (which sounds quite obvious), and second that such a control can lead to an annulment of the administrative decision that extends the detention for violating the right to be heard only if the respect of such a right would have led to a different result (which seems to restrain the significance of the procedural safeguards).

The decision the CJEU stated in the Madhi case however clearly enhances the scope of the control which the judicial authority has to exercise upon the administrative decision that lengthens the detention of illegally staying TCN against whom removal orders are issued (§ 62). First, the Court doesn’t only assert the judicial authority has to examine the request for an extension of detention with regard to all the factual and legal circumstances of each case; it also insists upon the need for the judicial authority to take into account “all” the circumstances, including even the circumstances which the administrative authority did not transmit or present.

Second, the Court states that the judicial authority can not only refuse the extension of the detention, but also can decide that the illegally staying TCN must instead be the subject of a less coercive measure. This point is particularly important because in Bulgaria (and in France too), the judge doesn’t exercise a full control over the detention extension measure.

However, the Court’s judgment is less constructive as regards to the appreciation of the reasons why an illegally staying TCN can be detained and remain in detention.

2 - The reasons why the TCN is detained and remains in detention

According to the CJEU in the Mahdi case, the fact that the person concerned does not have a valid identity document does not justify the lengthening of detention , and does not constitute by itself a ‘risk of absconding’, which is one of the grounds for detaining that person initially (§ 69). Nonetheless, the Court leaves the national judge free to take into account such an element to decide upon the extension of detention. This is disappointing because a ‘risk of absconding’ is one of the grounds to detain asylum-seekers under the ‘Dublin’ rules and the EU’s reception Directive, so though this might lead to a violation of the international and European rules which recognize and guarantee the right of asylum (compare Article 15 § 1 of the Return Directive to Article 28 of Regulation (EU) n°604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) and Article 8 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast)). Moreover, in some countries (such as France) asylum-seekers are treated as irregular migrants (and so are subject to the Returns Directive as such) because of a long delay in recognizing an application for asylum.

It is with impatience and anxiety that we wait for the preliminary ruling the CJEU will give in the Z. Zh. case (C-554/13),  in which the Court will answer some questions sent by the Raad van State (Netherlands) lodged on 28 October 2013 about the way the ‘risk of absconding’ can be or must be defined.

The clarification which the CJEU gave in the Sagor case (CJEU, 6 December 2013, C-430/11) that the risk of absconding must be assessed on the basis of “an individual examination” of the TCN’s case (§ 41) is indeed really insufficient to frame the practices the Member States which have developed to widen the notion excessively: for instance, the French law – Article 39 of the Loi n° 2011-672 relative à l’immigration, à l’intégration et à la nationalité – claims that there is a risk of absconding that justifies detention and the refusal of a period of voluntary departure as in nine different situations, six of which do not seem in conformity with the EU law.

If the risk of absconding can justify the initial detention of an illegally staying TCN, his/her lack of cooperation (as we have seen above) can justify the decision to detain him orher for more than six months. The Madhi case offered the CJEU the opportunity to clarify the meaning of the phrase “a lack of cooperation by the third-country national concerned” (Article 15 § 6 of Directive 2008/115/EC) in this context. The situation of Bashir Mohamed Ali Mahdi is quite clear: he did not hold any valid identity document when he was arrested and he did obtain such a document from his national state authorities afterwards. Can such a situation be considered as a lack of cooperation by Mr. Mahdi?

The answer of the Court could have been more neat and clear. Indeed, the CJEU avoids the problem, asserting that it is not competent to examine the facts of the case, and that only the national judge can answer such a question, as far as it is a question of fact. However, the Court does develop one interesting point which must be emphasised: “a lack of cooperation by the third-country national concerned” can result only from the behavior of the TCN, insofar that the delays and difficulties his/her national state demonstrates in delivering the documentation necessary for his/her removal cannot be blamed upon him or her (§ 85).

3 - The issuing of a residence authorization when there is no reasonable prospect of removal

Do national authorities have to issue of a residence authorization to the illegally staying TCN when there is no reasonable prospect for his/her removal? On this point, the CJEU’s position is even more deceptive. The Court concedes the possibility for the Member States to refuse a legal residence to unremovable TCNs, therefore maintaining them in a precarious irregular legal status (we can think here of the French law that makes a quite cryptic distinction between the “droit au séjour” (right to reside) and the “maintien sur le territoire” (right to stay on national territory)).

Admittedly, the return Directive deals with the removal measures issued against illegally staying TCNs, not with the residence card offered to such TCNs if they cannot be removed. But somehow, the CJEU does not confirm the position the Commission has asserted since the negotiations of the Return Directive began: that EU law offers a simple alternative between proceeding to the removal of the irregular migrants or giving them a residence authorization. The question must be asked how much the CJEU’s position can affect the effectiveness of the return Directive, since it means that large numbers of persons will remain on national territories who cannot be removed, but who do not have a fully-fledged right to reside. Similarly the Court’s insistence that national courts have extensive control over detention decisions is undercut by its willingness to give them a great deal of leeway to decide whether someone ought to be initially detained, and whether that detention can be renewed.

Barnard & Peers: chapter 26