The Asymmetry in the Right to Free Movement of European Union Citizens: the Case of Students

Francesca Strumia*, Connor Brown**

 *Lecturer in Law, University of Sheffield

** LLB Law European and International, University of Sheffield

This post reflects the preliminary results of a research project conducted as part of the Sheffield Undergraduate Research Experience programme (SURE). It also builds on a presentation at the International Society of Public Law (ICON-S) annual conference in New York on 2nd July 2015

INTRODUCTION

Concerns for strained public resources, weakened trans-national solidarity and disaffection with the idea of ‘ever closer union’ in Europe have made a first victim in public debate: the free movement of persons. This fundamental freedom at the basis of the project of integration conjures up all the above worries: the guarantee of non-discrimination of European Union migrants regardless of their nationality seems a costly one for Member States to uphold; the ‘minimum degree of solidarity’ that free movement of the non-economically active calls for could not resonate less with the European Union public; and if intended as a right for citizens, rather than just for workers, free movement evokes a ‘federalist’ idea of Europe that is heresy in a union that wants to be looser rather than closer. On this background it is easy to see how what was once the ‘dream’ of free movement has become, in many respects, the ‘nightmare’ to paraphrase the title of a 2014 editorial in the Common Market Law Review.

But how far does the ‘nightmare’ go, legally speaking? Two cases decided in the last few months, Dano and Martens, offer a viewpoint in this respect. The two cases have little in common: one is about ‘welfare tourists’, the other is about students; one was much talked about, the other raised little attention. However they do share one element: they reconfirm a difference in treatment between claims against host Member States and claims against home Member States, difference that has come to characterize the law on free movement of European Union citizens. The former claims are subject to stricter conditions - Dano re-emphasizes that a non-economically active migrant does not have a right to reside in a host Member State, let alone a right to non-discrimination there, if she is a burden for the host Member State (see further discussion of Dano here). The latter are more strongly protected - Martens confirms that rigid residence requirements for exportable study grants are a disproportionate way for Member States of origin to avoid financial burdens.

The result is an asymmetry, in cases involving mobility of the non-economically active, between protection of a right to entry (i.e. the right to reside in a host Member State and claim benefits there on a non-discrimination basis) and protection of a right to exit (i.e. the right to leave and export benefits and entitlements from a home Member State). In part, this asymmetry descends from the very evolution of the Court’s free movement test, from one looking for discrimination to one looking for hindrance to movement, and in particular for “any national measures which even though applicable without discrimination on grounds of nationality, are capable of hindering or rendering less attractive the exercise by community nationals of the fundamental freedoms guaranteed by the treaty” (CJEU judgment in Government of the French Community and the Walloon Government v. Flemish Government). The way the test plays out in non-workers cases signals in any case a shift in the understanding of relevant free movement rights – a shift that leads to question for whom free movement is a financial burden, to what extent it involves transnational solidarity and how close is the union that it reflects.

This asymmetry emerges with peculiar clarity in the law on student mobility, of which Martens was the latest expression. This is a particularly significant field for free movement of persons as it has been the forefront of legal change in the context of the evolution of free movement from a right for workers to a right for citizens. In addition, encouraging student mobility is a self-standing Treaty objective (art 165(2) TFEU).  In numerical terms, the importance of student mobility is also on the rise. Between 2002 and 2012, the number of EU students studying in a EU country other than their own (or in a non-EU EEA country or EU candidate country) underwent an 87% increase, from 354,200 to 663,700, and in a single year between 2011 and 2012 it increased by 23%, from 540,900 to 663,700 (Eurostat data).

THE ASYMMETRY IN THE STUDENTS’ CASE LAW

Upon exploring students’ case law it seems, on a prima facie basis, that the asymmetry reigns true in how the law treats on the one hand certain “entry-type claims” - e.g. residence in a host Member State for purposes of study and right to obtain maintenance aid in a host State, and certain “exit-type claims” - e.g. portable study finance and tax relief in the home Member State for study fees paid in a host Member State. In the former respect, secondary legislation (Directive 2004/38, the citizens’ Directive) recognizes, implementing early case law (Raulin), a right to reside for students, however this is subject to resources and sickness insurance requirements; and maintenance aid is only available to EU students after five years of residence in the host Member State. In the latter respect, case-law has recognized the students’ right to export study grants from a Member State with which they can show a genuine link, and students and their families are entitled to claim tax relief in the home Member State for fees paid in a host State. A counter-trend element is education fees: EU students are entitled to equal treatment with host State nationals in this respect, which arguably strengthens their claim to entry. This is however in keeping with early case law pre-dating the advent of European Union citizenship (Gravier).  Beyond the prima facie contrasts, the Court’s reasoning differs in applying a similar test to claims on the entry and exit side: this is clear in cases concerning respectively maintenance loans and grants in a host State, and portable study finance.

Maintenance Loans/Portable Study Finance

Residence requirements to obtain maintenance aid or to export study finance are at best a hindrance to free movement, and may also be discriminatory. However, in order to avoid migrant students becoming an unreasonable financial burden, it is in principle legitimate for Member States to offer study finance only to students who have demonstrated a degree of integration into the paying State’s society (Bidar). In practice however what is a proportionate requirement for these purposes differs, in the Court’s case law, for host States and home States. In cases on maintenance aid in a host State, the Court has upheld a rigid five year residency rule as a necessary and sufficient means to prove integration (Förster). A fixed pre-determined requirement protects legal certainty, according to the Court.

In cases on portable study grants, the Court takes a different view. It finds all kinds of pre-determined residence requirements – three-year residence (Prinz and Seeberger), permanent residence in home State or grant limited to host State of permanent residence (Thiele Meneses), three-out-of-six-previous years (Martens), disproportionate. The same three-out-of-six rule had been the subject of an infringement proceeding in 2012 in which it was found to be a discriminatory violation of free movement of workers. Interestingly, in the relevant case (Commission v Netherlands) the rule had been considered from a right to entry perspective (entry of migrant workers in the Netherlands and equal treatment in respect of study finance).

What the court suggests in relevant cases is a more flexible approach to assessing integration: taking into account not only length of residence but also qualitative links such as nationality, educational history, family, employment, language skills and other social and economic factors. The court also corroborates its stricter scrutiny of relevant residence requirements by emphasizing the very importance of students’ and teachers’ mobility to the project of integration (art 6(e) and 165(2) TFEU), an element in whose respect the court remains silent in host State maintenance aid cases.

Genuine Links and Financial Burdens

As a result the same court that goes along with host Member States’ reluctance to support entrant students if not after years of residence, is unwilling to hinder students who wish to export entitlements. In particular, an unspoken implication of the Court’s approach is that nationality is an important alternative to residence in proving attachment, to the point that nationals may be allowed to export study finance even from home States they have barely ever entered (Thiele Meneses, involving a German national who grew up in Brazil; Martens, involving a Dutch national who had spent more time in Belgium than in the Netherlands).

Further, the court’s approach indicates that the Member States’ interest in avoiding systemic financial burdens has a different weight when opposed to claims from incoming students than when opposed to claims from outgoing students. This is confirmed in cases on tax relief in a home Member State in respect of school and university fees paid in a host Member State. A Member State can cap relevant tax relief to the same amount applicable for national fees however it cannot completely exclude tax relief for fees paid in another Member State (Schwarz and Gootjes Schwarz; Zanotti). Even if in such situation, no part of the paid fees, whether paid to public or private institutions, will accrue to the coffers of the tax-relieving State.  

Home-Coming Schemes

In a recent case concerning students-family members of frontier workers, Giersch, the Court has given a hint that may suggest a change of direction even in cases regarding students unrelated to migrant workers.  The Court has indicated that promotion of high rates of education among the resident population and promotion of the economy are legitimate State interests; and that a requirement for students in receipt of portable study finance to go back to reside and work in the paying Member State upon graduation is an appropriate means to this end. Recognition of similar home-coming requirements as legitimate restrictions to free movement of students would alter the current balance between right to exit and right to entry. By coupling the right to exit with a duty to return, similar requirements would thwart the natural evolution of a student’s right to leave a Member State into the right to enter and become integrated in another one. This may result into an impediment to free movement of workers. While any conclusion would be premature, it seems likely that the Court would take a highly contextual approach in assessing proportionality of similar requirements (the hint came in a case regarding Luxembourg, a Member State with an unusually low rate of highly educated residents, and a unusually high non-resident working population).

IMPLICATIONS

The asymmetry that emerges in student mobility case law could be articulated, with the necessary adaptations, also in other fields.  This asymmetry has two implications that warrant further research. A first implication is in terms of the financial burden of free movement. Who bears the brunt of free movement in this sense, between home and host States, depends in the case of students. For instance, Member States that are large recipients and moderate senders of EU migrant students may find free movement lucrative: sending Member States will pay for study finance, and the host Member State will gain in fees. An example to explore comes to mind: the United Kingdom, which in 2012 sent about 17,000 students to other EU/EEA/EU candidate countries, and received about 200,000 from other EU/EEA/EU candidate countries (Eurostat data). This in turn suggests further reflection on the nature and reach of transnational solidarity in the EU: on what kind of affiliation model does it really depend (D. Thym) and to what extent should it be tied to the nature of the involved social benefit (F. De Witte) rather than to the position of the involved individual. A second implication is in terms of the meaning of European Union citizenship and its relation to nationality. European Union citizenship is often considered a threat and a weakening factor for the rights and the image of national citizenship (according to Gareth Davies, ‘residence is the new nationality’ in light of European Union citizenship). In this sense it is one of the more ‘federalist’ achievements of the integration project. Actually at least as regards free movement of students, European Union citizenship rather reinforces national citizenship. It makes rights tied to national citizenship exportable and thus extends the reach of national citizenship across its national borders. The flip side of this implication is that renouncing European Union citizenship or losing it would have the effect of shrinking national citizenship back within its original boundaries. 

Further Reading

Francesca Strumia, ‘Individual Rights, Interstate Equality, State Autonomy: European Horizontal Citizenship and its (Lonely) Playground in Trans-Atlantic Perspective’

 (forthcoming in Dimitry Kochenov (ed) EU Citizenship and Federalism: the Role of Rights,

CUP 2015)

Floris De Witte, ‘Who Funds the Mobile Student? Shedding Some Light on the Normative Assumptions Underlying EU Free Movement Law’ (2013) 50 C.M.L.Rev. 203

Daniel Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Rights for Economically Inactive Union Citizens’ (2015) 52 C.M.L.Rev. 17

Gareth Davies, ‘“Any Place I Hang my Hat” or Residence is the New Nationality’ (2005) 11 E.L.J. 43

Barnard & Peers: chapter 13

Photo: Francesca Strumia

Is a temporary Grexit legally possible? EMU as the Hotel California

Steve Peers

According to press reports, while today’s Eurogroup meeting, called to consider a possible new bail-out plan for Greece, was taking place, the German government was leaking a plan for a ‘temporary Grexit’. Before considering the political or economic merits of this idea, there’s an obvious question: is this legally possible? In a word: No.

It’s not legally possible simply because a permanent Grexit isn’t legally possible, and so a temporary one isn’t either. I’ll briefly recap the reasons why, based on my recent blog post. There’s no reference in the Treaties to any power of a Member State to leave EMU once it joins, or of the EU institutions to remove that Member State from EMU, whether it agrees to that or not. A Member State can leave EMU by leaving the EU, but there’s no Treaty power to throw a Member State out of the EU, or to suggest that any Member State might ever be under the obligation to leave.

This week, Andrew Duff suggested that it might be possible to use the existing Treaties to arrange a Grexit. In his view, the power set out in Article 140(2) TFEU to decide on a Member State’s admission to the EU is reversible. However, this view is not legally tenable. Article 140(2) is only a power to join the euro, not to leave it. This interpretation is reinforced by Article 140(3) TFEU, which refers to the ‘irrevocable’ fixing of exchange rates. Overturning a decision made to join the euro by qualified majority vote (on the basis of Article 140(2)) would not be enough; it would also be necessary to overturn the exchange rate decision made by unanimity on the basis of Article 140(3). So Greece would have to consent – even if any of this were legally possible.

Some might suggest that the CJEU would simply ignore the plain words of the Treaty and accede to political reality, as it did in the cases of Pringle (on the ESM bail-out treaty), and Gauweiler (on ECB bond-buying). But those cases concerned measures which were intended to save monetary union, and which had broad support from Member States. A forced Grexit (temporary or not) would meet neither criterion. And much as many Germans hate to admit it, there is a textual basis to the rulings in Pringle and Gauweiler: the Treaty did not expressly ban loans to Member States, and it implicitly permits the ECB to buy government bonds on the secondary markets. The argument for a forced Grexit does not even have a fig leaf to hide its obvious illegality.

Nor can the Greeks be forced out by the actions of the ECB. The Treaty ban on forced exit from EMU must logically rule out measures which have the same result in practice. And even the measures which the ECB has taken to date (never mind others which it might take in future) are highly questionable, and are already being legally challenged, as I blogged earlier today. We can’t assume that the CJEU will always back the legality of the ECB’s actions: the UK won a case against it earlier this year, and the Commission beat it in court years ago as regards the application of EU anti-fraud law.

So can anything be done legally to change the current position? As I suggested in my earlier blog post, it would be possible to amend the Treaties, or to somehow engineer proceedings that challenged the legality of Greek EMU membership from the outset, or the legality of Greek debts; or (more precariously) to use Article 352 TFEU (the residual powers clause of the Treaties) to regulate the effects of a Grexit that had already taken place de facto.

But let me offer another suggestion: it could arguably be legal to adopt a measure based on Article 352 which nominally retains Greece’s status as an EMU member, but exempts it from some of the normal rules applicable to EMU members. This has the advantage of bending rules a little without breaking them entirely. Since Article 352 requires unanimous voting, it avoids the economic and political problem with Duff’s proposal: throwing a Member State out of EMU by a qualified majority would show the world that the EU’s monetary union is very fragile indeed. Using Article 352 would ensure that Greece consents to whatever happens to it.

I won’t thrash out the details now of what this might entail. But some have pointed out that, for instance, Scotland has no official legal tender, but pounds are simply accepted as currency in practice. It might similarly be arguable that the euro would remain nominally legal tender in Greece, but some sort of parallel currency, not formally legal but accepted for certain purposes, could be introduced for a limited period.

I’m not suggesting that this is the best solution, either legally, economically or politically. In my view, the least bad solution would be a fresh bail-out deal with rather less austerity, or (since that’s not realistic) acceptance of the current Greek offer (including debt restructuring) with an independent advisory board to oversee and make suggestions for its detailed implementation. Only if that idea fails (which currently seems possible) should a more radical fall-back position be considered.

Metaphors about Greece have been done to death (and I’m afraid I’ve contributed to this myself). So let’s sum this idea up with a lyric from a famous rock song: Greece can check out of EMU any time it likes, but it can never leave.

Barnard & Peers: chapter 19

Photo credit: The Eagles

The legal challenge to ECB restrictions on Greek bank accounts – and how you can help

Steve Peers

Many EU citizens have watched with sympathy and concern as Greek citizens have been limited to withdrawing €60 a day in the last two weeks. This restriction results from a restriction imposed by the European Central Bank (ECB) on the emergency liquidity assistance which it provides to Greek banks.  

Apart from the human impact, there are grave legal, political and economic doubts about the ECB’s action. One of the central purposes of a central bank is to function as a lender of last resort to banks – and the ECB is signally failing to do that here. Also, the ECB’s actions give the impression that it is trying to influence the Greek political debate on austerity and membership of the Eurozone – a role which is well outside the Bank’s remit. The banking restrictions obviously damage the Greek economy, and so limit its ability to pay back its creditors in future.  They have nothing to do with the Bank’s task of fighting inflation, and they undermine its broader role in supporting the EU’s economic growth. (For a fuller critique, see here (paywalled); on the legal background, see here). Arguably these restrictions – or further restrictions which the ECB might impose – could lead toward a de facto ‘Grexit’ from monetary union, which is ruled out by EU law (see my discussion here).

It’s possible to challenge the ECB’s actions via the national courts, which can refer the issue to the CJEU, such as in the recent Gauweiler case (discussed here). They can also be challenged in the EU courts, such as in the UK’s recent successful challenge (discussed here). The case law takes a broad view of what ECB acts can be challenged, except where it acts as part of the ‘Troika’ which negotiates bailout conditions, when neither the Bank nor the Commission can be challenged in the EU courts. But the ECB’s restriction of assistance to Greek banks did not fall within the scope of its role in the Troika.

National governments such as Greece can go directly to the EU courts to challenge ECB actions. Other challengers besides the EU institutions would have satisfy standing rules: ‘direct and individual concern’, or (if they are challenging a non-legislative act which does not entail implementing measures) ‘direct concern’. Arguably it would be easy for a Greek bank to satisfy those rules.

In the absence of a legal challenge from a Greek bank or the Greek government, an individual depositor has brought a legal challenge to the ECB’s recent actions before the EU General Court. You can find the full text of the claim here. The ECB might restore assistance if there is a deal in the near future, but it is still worth challenging its actions, so it cannot do this (or threaten to do it) in future.

Obviously there is a possible problem with standing, although a parallel challenge could be brought in the Greek courts. The plaintiff welcomes any advice or support – contact info@alcimos.com. Or you can leave comments on this blog post.

Barnard & Peers: chapter 19

Photo credit: www.2oceansvibe.com

Integration Requirements for family reunion: the CJEU limits Member States’ discretion

Steve Peers

Many Member States have, in recent years, required non-EU citizens who would like to join their family members in the EU to pass a form of integration test first. The EU’s family reunion Directive, which governs the position of family members who want to join non-EU citizens, expressly gives Member States the option: family members ‘may be required to comply with integration measures’. However, in the cases of the family members of refugees and highly-skilled migrants who have an EU Blue Card, the integration measures can only be applied after they come to the country.

What are the limits – if any – on Member States’ discretion to impose such requirements? The CJEU answered that question for the first time today, in its judgment in K and A.

Judgment

The Dutch government has implemented the family reunion Directive with an integration requirement: a test on Dutch language and society. There are exceptions for ‘very special individual circumstances’. Family members must pay €350 to take the course, and €110 to buy the study pack. The case concerns citizens of Nigeria and Azerbaijan who had argued that they should be exempt from the course on health grounds, but the Dutch authorities rejected their arguments. They challenged those decisions before the Dutch courts, which asked the CJEU to interpret the Directive.

The Court begins by repeating prior case law which stated that Member States must admit family members to their territory if they meet the conditions set out in the Directive. It then confirms that Member States can indeed impose an integration requirement on applicants for family reunion before entry, unless they are joining a refugee. But the Court applies prior case law by analogy (Chakroun, on the minimum resources requirement in the Directive) to insist that the ‘integration’ condition must be interpreted strictly, and that Member States cannot use it to undermine the main purpose of the Directive: facilitating family reunion.

Next, the Court invokes the principle of proportionality. In this case, it means that any integration measures must be linked to the actual purpose of facilitating family members’ integration. As in its recent P and S judgment on integration measures for long-term resident non-EU citizens (discussed here), the Court accepts that a test on the host State’s language and society is a legitimate way of ensuring integration.

However, the Court emphasises that the conditions relating to the integration requirement can’t exceed its aims. This would ‘in particular’ happen if the requirement ‘were systematically to prevent’ family reunion even though, ‘despite having failed the integration examination, they have demonstrated their willingness to pass’ it and ‘have made every effort’ to do so. The integration tests cannot be aimed at ‘filtering’ family members, but instead must actually help them integrate.

The Court went on to require Member States to consider ‘specific individual circumstances, such as the age, illiteracy, level of education, economic situation or health’ of a family member, ‘in order to dispense’ them from the integration test where those circumstances make the family member ‘unable to take or pass that examination’. Otherwise the test would create a ‘difficult obstacle’ to the family reunion right, and circumvent the requirement to make a ‘case-by-case’ decision on applications. Overall, then, Dutch law on integration measures went beyond the limits imposed by EU law (as interpreted by the Court), since the hardship clause in the Dutch law set out fewer exceptions from the integration requirement than EU law allowed.

Finally, the Court ruled (as in prior judgments on long-term residence) that the Dutch fees were too high, also forming an obstacle to the effective exercise of family reunion, in conjunction with travel costs, considering that they had to be paid also when the test was retaken.

Comments

It should be noted that the family reunion Directive doesn’t apply to the UK, Ireland or Denmark. It also doesn’t apply to the non-EU family members of EU citizens. Those people are either outside the scope of EU law (if they join an EU citizen in that citizen’s own Member State), or fall within the scope of the EU citizens’ Directive (if they join an EU citizen in a different Member State). The citizens’ Directive doesn’t allow for any integration requirement. Family members of Turkish citizens are also in a different situation: as discussed here, there is a ‘standstill’ requirement on new restrictions on their family reunion. So new integration requirements can only be introduced on public interest grounds.

Turning to the judgment, it’s no surprise that the Court upheld the validity of integration measures requirements in principle. They are expressly provided for in the legislation and there’s a sound argument that it makes sense for newcomers who aim to settle in a country to learn its language and about its society. But it’s also a potential limit on the right to family reunion.

The Court’s judgment does a good job trying to balance these conflicting principles. Although the Court unfortunately doesn’t mention the right to family life, that right nonetheless suffuses this judgment, as the Court identifies a public interest reason to restrict that right and then subjects this restriction to the principle of proportionality.  So the integration tests must be genuine, not simply an attempt to reduce numbers of new entrants. The Court even suggests that those who are genuinely willing to pass the test and made the effort to do so ought not to be denied family reunion, presumably even if they have not actually passed it.

Indeed, this is a non-exhaustive list of when the principle of proportionality applies (‘in particular’). There is a requirement to consider individual cases and again, the list of circumstances which the Court insists that Member States consider (age, illiteracy, education, finances and health) is not exhaustive (‘such as’). The Court also comes down hard again on the high fees charged to migrants by the Dutch government.

This judgment will be particularly useful to those migrants who have lower incomes and those who come from developing countries, where the level of education is not always as high. (Unlike the Advocate-General, the Court does not discuss the exception from the integration test in Dutch law for migrants from some wealthy countries). While there are good reasons to expect migrants to learn their host country’s language and to know about its culture – for both the sake of both migrants and the host country’s society – there is also a powerful argument that spouses, parents and children should be able to enjoy family life together. In significantly limiting States’ ability to insist that people pass an integration test before they can live with their loved ones, the Court has made the right choice.

Barnard & Peers: chapter 26

Photo credit: vorige.nrc.nl

The Missing Piece in the European Agenda on Migration: the Temporary Protection Directive

Meltem Ineli-Ciger, PhD Candidate, University of Bristol Law School[1]

The EU’s Temporary Protection Directive entered in force in 2001 and was the first EU directive on international protection adopted after the Treaty of Amsterdam entered into force in 1999. The Temporary Protection Directive has introduced a practical and efficient framework to deal with mass influx situations by formalising and harmonising the protection standards to be introduced in mass influx situations. Yet, the Directive has so far never been implemented; the Council considered activating it when the number of asylum-seekers from Iraq and Afghanistan rose in the beginning of 2000s but no decision finally ensued (see Klug, in Further Reading). Similarly, the Directive was not implemented following the substantial influx of asylum-seekers fleeing the Arab Spring conflicts which overwhelmed the asylum capacities of the Member States at the external borders of EU (see Nascimbene and Di Pascale, in Rurther Reading). As for the recent migrant crisis in the Mediterranean, there is no mention of the Temporary protection directive in the European Agenda on Migration. This post argues that the Temporary protection directive could have been, and still can be, implemented as part of a more effective response to cope with the irregular arrival of mixed flows through Mediterranean and it should be incorporated to the EU Agenda on Migration (for the latest on that Agenda, see here).

Lack of implementation of the Directive in the past 14 years

The Temporary Protection Directive has an activation mechanism; for the Directive to be activated, in other words, for it to be implemented, the existence of a mass influx situation has to be established by Council decision adopted with a qualified majority (Art 5(1) of the Directive). The activation process of the Directive can be triggered by a Member state. Upon a State’s request, the Commission can propose activating the Directive. Nonetheless, such a proposal has to be discussed and adopted by the Council with a qualified majority vote (recital 14 and Art 5 of the Directrive). While the European Commission is the only EU organ that can submit such a proposal, and is the only organ that has the right to propose specific groups that will receive temporary protection, the Council has the exclusive authority to determine these groups (see Arenas, in Further Reading).

The Directive defines such a mass influx situation as the “arrival in the community of a large number of displaced persons, who came from a specific country or geographical area, whether the arrival in the Community was spontaneous or aided, for example through an evacuation programme” (Art 2(d)). Although the existence of a mass influx is the key for the activation of the Directive, the term ‘arrival of large number of displaced persons’, formulated to indicate the existence of mass influx, is very vague (as Arenas notes). However, the Commission proposal can be explored in order to clarify the meaning of the term ‘mass influx’. This notes:

Influx must be from the same country or geographical area […] the number of people must be substantial[…]the gradual arrival of asylum-seekers, refugees or displaced persons from a single country or region of origin cannot in itself justify the introduction of such temporary protection. However, a point may come at which the movement of people, gradual at the outset, intensifies in such a way that it becomes massive and the normal asylum system is unable to absorb the flow.

In view of this statement and taking into account that one of the initial purposes for drafting the Directive was “avoiding a total bottleneck in national asylum systems”, the inability of the national asylum system to cope with large groups of people seeking refuge is an important indicator of the existence of a mass influx situation. As seen from the Proposal, the possibility of cumulative influx is not disregarded by the Commission. Thus, the gradual arrival of persons seeking refuge to the member states when it disrupts the operation of national asylum systems can indicate the existence of a mass influx situation.

Although these conclusions can be drawn in view of Article 2 of the Directive and the Commission proposal, it should be noted that, until now, the Directive has not been activated when the asylum capacities of Greece, Italy and Malta have been overwhelmed by the arrival of asylum seekers from Iraq, Syria and North African states (see Nascimbene and Di Pascale). I believe two reasons can, so far, be identified for the non-implementation of the Directive.  The first is the difficulty in securing a qualified majority vote in the Council in the face of an influx situation which only seriously affects a limited number of Member States. A qualified majority decision is not easy to achieve when a situation seriously affects only a limited number of Member States. The second is the belief shared by many Member States that activation of the Directive may create a ‘pull factor’ for migrants seeking entry to the EU (see Klug and Ineli-Ciger). Having said that, non-implementation of the Directive so far shows that the activation of the Directive is, more than anything, a political process which depends on the agreement of the majority of the Member States.

Can the Temporary protection directive be implemented to cope with mixed flows?

Under Article 2 of the Temporary protection directive, people fleeing armed conflict, violence, and systematic human right violations are among those intended to be protected within the Directive. In addition to this, the Commission proposal refers to the Directive as a document to deal with the large-scale influx of ‘asylum seekers’. Among mixed flows, there is a substantial number of persons who would fall under the category of Article 2 of the Temporary protection directive. Thus, as long as the Council determines that arrival of the discussed mixed flows constitutes a mass influx situation, I believe there is no obstacle for the Directive to be invoked to cope with mixed flows or to protect a smaller subcategory of persons such as those fleeing armed conflict, violence and systematic human rights violations.

Do the mixed flows arriving by sea in Europe constitute a mass influx situation?

Thousands die every year in the Mediterranean Sea trying to reach European shores. According to the UNHCR, “[i]n mid-April 2015, 800 people died in the largest refugee shipwreck on record, highlighting a staggering increase in refugees and migrants dying or missing at sea”, and [vii] the number of refugees and migrants arriving by sea in Europe was 219 000 in 2014 (137,000 as of June 2015). It is crucial that we acknowledge that these people are not mere economic migrants but many among those are fleeing war, violence and human rights violations. These numbers may seem insignificant compared to two million Syrians being protected in Turkey. Yet, we need to also take into account that reception and asylum capacities of Greece and Italy.

The collapse of the Greek asylum system and the consequences of this collapse are evident from the judgments in N.S  and M.S.S. v. Belgium and Greece. In one of its recent judgments (Tarakhel v. Switzerland, discussed here and here), the ECtHR decided that, although the situation in Italy is not the same as Greece, it raises serious doubts as to the current capacities of the Italian asylum system.[viii] As evident from these judgments, the lack of solidarity in the EU in addition to the unfair asylum distribution criteria provided in the Dublin Regulations have increased the asylum pressure on states including Greece, Italy and Malta and, as a result, the reception capacities and quality of protection offered in these states to asylum seekers have diminished.

States at the external borders of the Union are under constant pressure and have been seeking assistance from the EU to find solutions to these arrivals. So far, the EU has, however, not been able to formulate and implement a comprehensive plan to secure the safety of irregular migrants and refugees arriving by boat and some Member States cannot provide persons seeking refuge adequate reception conditions as prescribed by EU Law. Considering the high number of persons arriving at the shores of Italy and Greece irregularly by sea to seek refuge each month and the inadequate reception and asylum capacity of these states, can we still say there is no mass influx situation? No we cannot. In light of these points, it is possible define the ‘mixed flows’ arriving by sea in Europe as a mass influx situation.
         

The added value of implementing the Temporary protection directive to cope with the mixed flows arriving by sea in Europe

The added value of implementing the Temporary Protection Directive to cope with the irregular arrival of ‘mixed flows’ lies within its flexible eligibility criteria and its broad personal scope; its fine harmonization and formalization of the protection standards to be offered to temporarily protected persons, as well as its burden sharing mechanism.

Given the categories of persons who may fall within the scope of the Directive – i.e., refugees and persons fleeing armed conflict, violence, and human rights violations – it can be concluded that the Directive has the potential to protect a broad range of individuals coming to the EU when a mass influx situation occurs. Therefore, if the Temporary protection Directive is activated, refugees and persons fleeing armed conflict, violence and human rights violations can be protected within the Directive’s framework as a group for up to three years.

The Directive provides a temporary protection status that confers temporary residence permits, emergency health care, shelter, social benefits, education for minors as well as limited access to the labour market and a limited right to family reunification. And these entitlements suggest better protection standards compared to what asylum seekers and migrants receive at present in Greece and Italy (see MSS and Tarakhel). A substantial number of the Member States, instead of implementing temporary protection under a formalized regime, have so far opted to introduce national temporary protection statuses. A European Migration Network (EMN) Study indicates that, Austria, Belgium, Greece, Ireland, Italy, Poland and Spain grant temporary protection under national statuses. Under these national statuses, there are many discrepancies, especially in the level of rights provided to the status holders. The EMN Study also notes that, the standard of protection provided under these national temporary protection statuses has been lower than the ones prescribed by the Temporary protection directive. In the light of this, implementation of the Temporary protection Directive can improve protection that is afforded to persons fleeing armed conflict, violence and human rights violations in Europe.

On a positive note, the Temporary protection directive has its own burden sharing mechanism. Article 25 of the Directive allows for the transfer of protection beneficiaries between Member States following a voluntary offer from one of them and provided the transferees give their consent to such a transfer. Under Article 25 of the Directive, in cases when the declared capacity of a State is exceeded because of the number of persons who have arrived on its territory, the Council can take appropriate action and provide additional support to those Member States that are affected more than others. The Council is, in this respect, free to introduce any measure with regard to burden sharing. The efficiency and success of the burden sharing mechanism established under the Directive will, therefore, greatly depend on the measures that the Council adopts and how well these measures are executed by Member States. Yet, if the Council adopts measures necessary to ensure equitable burden sharing, the burden sharing mechanism of the Directive may offer a more equitable and efficient system than the Dublin system. Thus, Temporary protection directive can lead to more effective burden sharing between member states.

Conclusion

Many authors acknowledge that implementation of the Temporary protection directive could have improved and still can improve the response of the European States as well as the EU to the refugee crisis in Iraq and Syria, and implementation of the Directive could also provide better protection for Iraqis and Syrians fleeing war and violence (see Akram et al and Orchard et al). Agreeing with their view and advancing this idea,  I argue that implementation of the Temporary protection directive can help member states to more effectively cope with the ‘mixed flows’ and provide better protection for persons in need of international protection among mixed flows arriving by sea in Europe. Having said that, the Directive alone will not be able to solve all the problems related to mixed flows. However; it can be a part of the solution and provide important benefits to persons seeking refuge in the EU.

In the light of this added value of implementing the Temporary Protection Directive to cope with the mixed flows arriving by sea in Europe, I argue that the Temporary protection directive should be part of the EU Agenda on Migration.

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[1] This post builds on M. Ineli-Ciger, ‘Has the Temporary Protection Directive Become Obsolete? An Examination of the Directive and its Lack of Implementation in View of the Recent Asylum Crisis in the Mediterranean’ in C. Bauloz, M. Ineli-Ciger, S. Singer, V. Stayanova (eds), Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common Asylum System (Brill/ Martinus Nijhoff Publishers 2015) 225.

Further Reading 

A. Klug, ‘Regional developments: Europe’ in A. Zimmermann (ed) the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (OUP 2011)133.

B. Nascimbene, A. Di Pascale, ‘The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in North Italy from North Africa’ (2011) 13 EJML 346, 347.

N. Arenas, ‘the Concept of ‘Mass Influx of Displaced Persons’ in the European Directive Establishing the Temporary Protection System’ (2005) 7 EJIL 447.

Barnard & Peers: chapter 26
Photo credit: IOM

EU visa policy: A dash for growth?

Steve Peers

Historically, EU visa policy has principally concerned itself with controlling the risk of irregular migration and possible threats to security, balanced against EU foreign policy objectives. But in the last few years that policy has increasingly come to take account of economic growth (most notably as regards the EU tourism industry). This reorientation was launched in a Commission communication of 2012, and is already reflected in the last set of changes to the EU’s visa ‘whitelist’, which now includes trade and investment among the criteria for liberalising visas. Indeed those most recent amendments applied this policy by moving Peru and Colombia onto the visa waiver whitelist in return for signing a trade deal with the EU.

Will this policy also impact upon the EU’s visa code, which sets out the detailed rules for visa applications? Last year, the Commission proposed an overhaul of the code, alongside a parallel proposal for a ‘touring visa’ for those who wanted to stay for more than three months in the Schengen area (but for no more than three months in any one Schengen State). I have previously examined two specific issues relating to the visa code proposal: the position of EU citizens’ family members, and the possibility of developing the (implied) rules on humanitarian visas. The following analysis completes my comments (for now). It’s based on my ongoing work on the fourth edition of EU Justice and Home Affairs Law.

Visa code proposal

The proposal to overhaul the visa code keeps the basic structure of the code intact, but suggests a number of significant amendments. It doesn’t affect the issue of who does or doesn’t need a visa to visit the EU in the first place. The code only applies to States fully applying the Schengen system: 22 EU Member States (excluding the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria, although the latter four States must apply it someday when they join Schengen), and four Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

It should be recalled that the CJEU has already ruled, in its judgment in Koushkaki (discussed here) that anyone who meets the criteria to obtain a Schengen visa set out in the visa code is entitled to one. The proposal wouldn’t change that case law either.

There’s a long list of proposed amendments, but the main aim of the proposal is to simplify the process of applying for a Schengen visa. So the obligation to appear in person to apply in a consulate would be dropped, except for when the applicant has to be fingerprinted for registration in the Visa Information System database (once every five years). Already only 30% of applicants appear in person, since most countries have outsourced the collection of visa application information to private companies. There would be revised rules determining which Member State consulate is responsible for each application, to make sure that each applicant will be able to apply for a visa without having to travel to a consulate in another country. Applicants could apply for a visa up to six months in advance (at present, the rules only allow them to apply up to three months in advance).

Checks on whether applicants have accommodation, means of subsistence and an intention to return would be relaxed if they were regular travellers with a ‘clean’ immigration record (this could be checked in the Visa Information System). Applicants would no longer have to obtain travel medical insurance, and Member States would have to make decisions more quickly. The rules on waiving the €60 visa application fee would become uniform, so that (for instance) there would be no fee for children under 18, researchers or diplomats. Regular travellers with a clean record would have a right to a multiple-entry visa, with a three year validity rising to five years (currently such visas might be valid for as short as six months). There would also be more possibilities to apply for visas at borders; at the moment this is a highly exceptional rule which mainly applies only to seafarers.

The European Parliament has not yet issued a draft report on either proposal, but the Council was initially unenthusiastic. A report earlier this year indicated that many Member States questioned the liberal proposed rules on multiple-entry visas, as well as the abolition of the medical insurance requirement, because of ‘large numbers of medical bills left unpaid’. Many also objected to shorter time periods for the application, and for any facilitation for EU citizens’ family members. A few opposed the proposed additional mandatory fee waivers. More recently, a redraft of part of the text shows that Member States were willing to accept the multiple-entry visa rules if the criteria were stricter, as well as some (but not all) of the fee waivers, while retaining the medical insurance requirement.

Touring visa proposal

Currently a number of Member States have separate deals with third states such as the USA or New Zealand, allowing the nationals of those States to add together a series of short stays in individual Schengen States. But this only applies to a fairly limited number of third countries. The Commission proposal would simplify this system, replacing it with a common Schengen-wide approach. It estimates that while only about 120,000 people would benefit from this proposal, they are relatively ‘big spenders’, and so the net benefit to the EU economy would be €1 billion.

A touring visa could be issued for up to one year, with a possible further extension to two years. It would also apply to the citizens of countries like the USA who did not normally need short-term visas, since their planned total stay in the Schengen area with a touring visa would exceed the normal limit which would usually apply (90 days in a 180-day period). The EU’s Visa Information System database would apply, except that non-visa nationals like Americans would not have to give fingerprints. Also, the normal visa code rules (as amended by the separate proposals) would apply, with derogations. For instance, there would be no applications at borders; the first Member State the touring visa applicant would enter would be competent for the whole application; and sickness insurance would be required.

Again, the Council shows limited enthusiasm for this proposal, with some Member States preferring to maintain their bilateral deals and some concerned about security risks.

Comments

Overall, the Commission’s proposals have much to recommend them. They would ease the hassle that many would-be visitors face when they apply to come to the EU: cutting the costs for families and researchers, ensuring that an application could be made more easily, and streamlining the process considerably for frequent visitors who have shown that they can be trusted.

The proposals would benefit the EU economy, too, if the Commission’s estimates are correct. On top of the estimated €1 billion boost to the economy from the touring visa proposal, the accompanying Commission paper on visa policy suggests that the economic boost from the changes to the main visa code may be between €4 to €12 billion, with 80,000 jobs created.

So it is striking that these proposals have not impressed Member States much, with some suggesting that costs would increase from the visa code proposal. It is hard to see how the costs to consulates would increase overall, since there would be fewer visa applications to process in light of the longer validity of multiple-entry visas. However, it is possible that the cost would increase for some Member States individually, if those Member States become responsible (under the revised rules) for a greater share of visa applications. If any Member State has to incur considerable extra costs processing applications for applicants who won’t spend much time on its territory, it would be reasonable to consider compensating that Member State for those costs out of the EU budget, or arranging for bilateral compensation from the Member States which the applicants mainly go on to visit. As for unpaid medical bills, the Commission argues that such bills aren’t run up entirely by visitors with Schengen visas.

While that particular point about cost (to a different part of national budgets) may possibly have some merit, the objections against facilitating travel for EU citizens’ family members have none. Such facilitation is anyway an obligation under the EU citizens’Directive; all that the Commission’s proposals do is spell out what that entails, for the sake of legal certainty. And there can be no valid objection about irregular migration risks as regards core family members, given that EU citizens have the right to move to another Member State with those members of their family.

Time will tell, when the European Parliament develops its response to these proposals and begins to negotiate with the Council, whether the personal and economic benefits of the Commission’s proposal can survive the objections of national interior ministries. Much may depend on whether other ministries (foreign and economics) intervene to ensure that there is a broader perspective on what modern visa legislation should seek to do.

Barnard & Peers: chapter 26