Unemployment, residence rights, social benefits at three crossroads in the Tarola ruling

Francesca Strumia, Senior Lecturer, University of Sheffield School of Law*

*This post draws in part on research supported by a Research Fellowship at the Collegio Carlo Alberto in Torino

Overview

Last week’s CJEU ruling in Tarola, responding to a preliminary reference from the Irish Court of Appeal, interprets yet another cryptic provision of the Citizenship Directive, art. 7(3) on retention of worker status. The ruling sits at the intersection of EU law on free movement of workers, and on free movement of citizens. It is about rights descending from the status of worker. Yet it concerns the situation of unemployed persons at the periphery of workers’ status, whose condition stretches into citizenship territory. For these reasons, the case provided an opportunity for the Court to blend the assertive approach of its case law on workers with the cautious attitude it has adopted in its recent case law on non-economically active citizens. The resulting judgment adds yet another chapter to the tormented story of access to social benefits in the context of free movement.

Analysis

Mr. Tarola, a Romanian national, worked in Ireland in either an employed or self-employed capacity for several periods of a few weeks each in 2007, 2013 and 2014. In 2013 and 2014 he applied there for jobseeker’s and welfare allowances. His applications were refused on the ground that absent proof of ability for self-support and absent a sufficiently long employment record he had not demonstrated habitual residence in Ireland. In the resulting litigation, Mr. Tarola argued that he had the right to reside in Ireland for the six months following a two-week period of employment in July 2014 under art. 7(3)(c) of the Citizenship Directive. The argument did not convince the High Court, however it raised attention at the Court of Appeals that referred to the CJEU.

The referred question revolved around the interpretation of article 7(3)(c). More precisely, paraphrasing Advocate General Szpunar, the question was whether a Union citizen who works in another Member States for two weeks otherwise than on a fixed-term contract and then becomes involuntarily unemployed retains the status of worker and the right to residence that comes with that status.

Article 7(3)(c) of the Citizenship Directive is particularly convoluted. It provides for the retention of the status of worker for no less than six months in two hypotheses not clearly distinguished until yesterday’s ruling. The first situation is fairly straightforward: duly recorded unemployment following termination of a fixed-term contract of less than a year in duration. The second is more nebulous. The text refers in this respect to a person having ‘become involuntarily unemployed during the first twelve months’ and having registered as a job-seeker. The court found in particular that the text left two aspects undetermined: (i)  the type of activity or contract in whose context a person became involuntarily unemployed and 2) the context of the ‘first twelve months’ phrase, whether first twelve months of any employment contract, of a fixed-term contract, of residence in the host Member State, or else (par. 35). 

The court’s solution was that the provision allows retention of the status for workers “in all situations in which a worker has been obliged, for reasons beyond his control, to stop working in the host Member State before one year has elapsed, regardless of the nature of the activity or the type of employment contract entered into for that purpose”. (par 48) This interpretation was drawn from the context, purpose and origin of the provision of art. 7(3)(c).

With regard to context, the court noted that the provision sits within article 7, providing overall for the right of residence, and its retention, for all those who have exercise an activity in an employed or self-employed capacity. As affirmed in Prefeta, retention of that right is granted on the assumption that the citizen is available and able to re-enter the labor market within a reasonable period. (par 39-40) The court added that, within the broader context of the gradation of the right to residence that the Citizenship Directive operates, article 7(3) establishes a gradation also for retention of the status of worker. This gradation is based among others on reasons for inability to work and on the initial duration of the period of activity. On the top grade are those citizens who are unable to work because of accident or illness, because of undertaking vocational training, and because of having remained involuntarily unemployed after having worked for at least one year. All of these retain the status without time limits. On a lower grade are those who have worked for less than one year and who can retain the status for as long as the Member States like, provided this is not less than six months. (par 43-45)

In terms of purpose, the court observed that the offered interpretation of art. 7(3)(c) satisfied the general objective of the EU Citizenship Directive, namely strengthening the right of movement and residence, without undermining its further objective of protecting the Member States’ finances from undue burdens. The interpretation was also consistent with the specific objective of article 7(3) of the Directive, described in previous case law (e.g. Gusa) as that of protecting the right of residence of persons “who are in the absence of work due to circumstances beyond their control”. (par 49-50)

Finally as to the origins of art. 7(3)(c) the court found that its reading of the provision mirrored the intention of the drafters. The travaux preparatoires indicated indeed that the second part of art. 7(3)(c) had been added in the draft directive so as to extend protection to workers in involuntary unemployment after less than a year regardless of the type of contract covering their activity. (par 53)

The ruling concluded with a dictum inspired by the AG opinion and with a note to the referring court.  The dictum is that persons residing on the basis of the Citizenship Directive, including those retaining the right to reside under art 7(3), are entitled to equal treatment with nationals. Hence if national workers who have worked only for a short period of time are excluded from social benefits, the exclusion applies also to migrant EU citizen workers. The note to the referring court was that it was accordingly for it to determine, in light of national law, whether Mr Tarola was entitled, under the principle of equal treatment, to the social benefits he was seeking.

Comment

At least three aspects in this judgment are worthy of note. A first one is the way the court treats the citizenship directive. A second one is the court’s note on entitlement to social assistance. A further one is the balancing exercise the ruling performs between protection of movement and residence rights and protection of state finances. These elements, respectively, help situate the judgment at three crossroads: the one between the law on free movement of workers, and the law on free movement of citizens; the one between EU law on equal treatment, and national law on welfare assistance; and the one between competing objectives pursued by EU free movement law.

With regard to the Citizenship Directive, the court sticks to the rule of interpretation it promises up front. The directive cannot be interpreted restrictively. And indeed the court offers a quite broad interpretation of its relevant provision. That the provisions of the Citizenship Directive require broad interpretation is no novelty. The court has repeated this rule of interpretation again and again in several cases. Yet in recent years it has not always as enthusiastically applied the same rule (a recent example is the SM case, treated here; a slightly older one is Singh and others).  The court’s approach in Tarola is the result of a special conjuncture: the court is de facto ruling on the rights of a non-economically active citizen, but it is formally dealing with a worker-it is not in question indeed that Mr. Tarola meets the EU law definition of worker (par. 25)-. This allows the court to intersect, if not the law, the interpretive approaches belonging to two different strands of its case law: the assertiveness of its case law on workers, and the caution of its recent case law on non-economically active citizens.  Echoes of the former allow the court to deliver, from a relative comfort zone, a result that bears on the social protection of Union citizens.

The caution that characterizes the case law on non-economically active returns, on the other hand, through the court’s drawing of a clear boundary between right to equal treatment and entitlement to social assistance. In the final dictum, the court emphasizes that the right attached to a worker’s, or citizen’s, right to residence, is one of equal treatment. Retention of the status of worker, and of the corresponding right to reside, does not necessarily mean entitlement to obtain social assistance. It simply means entitlement to apply for it, and obtain the same response as a national would get. This sounds as a reminder, and a word of reassurance, to the Member States that they are free to organize their welfare systems as they wish. At the same time the court gives the Member States a gentle nudge: if they do not like paying benefits to those who have worked too little, they had better say so in national law.

The gentle nudge to the Member States ultimately reflects the court’s endeavor to take into account, and balance in Tarola, two competing objectives of the Citizenship Directive. One is the objective of strengthening the right to move and reside for all Union citizens (witness to the case standing at the crossroads of workers and citizenship law, the court refers in reporting those objectives to citizens in one sentence, to workers in the next, par 49-50). The other is the objective to ensure that the Member States’ social security and social assistance systems are not placed under an undue burden. The tension between these two objectives underpins the entire case law on social benefits provision in the context of free movement. This brings the Tarola ruling closer to the line of cases that from Trojani descends to Dano and its progeny. The tension in that case law, however, is not always as clearly acknowledged and as carefully addressed as here. In this respect, Tarola might signal a further turn in a doctrine that has experienced several twists. It may be the first sign of the taking on, on the part of the court, of a more coherent role in reconciling the conflicting objectives of the law on free movement.

Barnard & Peers: chapter 13

Photo credit: BIMIreland.ie

Trick or Treaty? The legal issues of the second extension of the UK’s EU membership

Professor Steve Peers, University of Essex

With the second Brexit day deadline of April 12 only two days away, last night leaders of EU Member States, meeting as the European Council, decided to grant the UK a second extension of its EU membership, possibly up to Halloween this year. The key provisions in the formal decision extending membership for the second time provide that:

Article 1

The period provided for in Article 50(3) TEU, as extended by the [first extension decision], is hereby further extended until 31 October 2019.

Article 2

This decision shall enter into force on the day of its adoption. 

This decision shall cease to apply on 31 May 2019 in the event that the United Kingdom has not held elections to the European Parliament in accordance with applicable Union law and has not ratified the Withdrawal Agreement by 22 May 2019.

The preamble to the decision also notes that if the withdrawal agreement is ratified, Brexit day could be earlier. More precisely: ‘the withdrawal should take place on the first day of the month following the completion of the ratification procedures or on 1 November 2019, whichever is the earliest’. Also, the preamble calls for a review in June, but doesn’t provide for the possibility of cutting the extension short at that point.

The date of 31 October was not chosen for its scary implications as such: it’s the last day in office of the current European Commission, although this point isn’t explicitly made in the European Council decision. Ending the UK’s membership therefore avoids a UK Commissioner taking office (and so also avoids the awkward question of whether the number of Commissioners should be reduced to prevent this happening).

This fresh extension followed from the previous European Council decision extending membership after the original Brexit Day of March 29, which I previously discussed in detail here (see also the relevant conclusions of the European Council, adopted on March 21). This blog post examines the details and legal issues arising from the second extension, adapting some of the points already made in the previous blog post on the first extension where relevant.

EU law issues

The starting point for discussing extensions of membership is Article 50(3) TEU, which provides, as regards a Member State withdrawing from the EU:

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Unanimity can still apply despite abstentions (Article 235 TFEU), and the European Council can, if necessary, act by written procedure (see its Rules of Procedure). (In the event, as with the first extension decision it seems that neither was necessary). The Member State concerned has to agree to the text of the relevant European Council decision, and the UK indeed agreed to the second extension decision, as it had agreed to the first one. There’s no formal role for the European Parliament or national parliaments. Article 50(3) is silent on whether or not there can be multiple extensions, but obviously the EU and UK assume that this is legally possible.

The first extension decision provided for two variations for extending membership beyond the original Brexit Day of 29 March 2019, depending on whether the House of Commons approved the proposed withdrawal agreement by that date. If that had happened, UK membership would have been extended until 22 May 2019. Since it did not happen, the second variation applied: membership was extended for only two weeks to 12 April 2019, and the UK had to ‘indicate a way forward before 12 April 2019, for consideration by the European Council’.

The two dates referred to were linked to the upcoming elections for the European Parliament, on May 23-26, as noted in the preamble to the first extension decision. This is because 22 May is the last day before the elections, and 12 April is the last day to give notice of the poll in the UK. There was a legal debate over whether the UK could be exempted from taking part in these elections (for details, see my blog post on the first extension), on which the EU has taken the view that there cannot be an exception. The second extension decision takes the same approach, forcing an early end to the UK’s EU membership on 31 May if the UK has neither held the European Parliament elections on time, nor ratified the withdrawal agreement by 22 May. However, it should be noted that, as discussed below, the UK has taken the legal steps to hold the elections.

This obligation to hold the elections is a specific application of the general rule: as the preamble to the decision on the second extension confirms that, as in the first extension, the UK has the same rights and responsibilities as it would ordinarily have as a Member State otherwise. Indeed, the preamble explicitly observes that the UK can revoke its notification of intention to leave the EU unilaterally (see the CJEU’s Wightman judgment). This continues the principle established in two earlier CJEU rulings (discussed here and here), in which the Court confirmed that the UK remained a fully-fledged Member State throughout the main two-year period after notifying its intention to leave the EU. In other words: Membership means Membership.

However, the preamble to the second extension decision conversely rows back on this somewhat, in that it also refers to the principle of ‘sincere cooperation’ applicable to all Member States, by virtue of Article 4 TEU. But the wording suggests that this principle might apply differently as regards a withdrawing Member State. More precisely, the preamble states that (emphases added):

The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.

So the EU says that the UK must be a full Member State for the purposes of the European Parliament elections, but not exactly a full Member State for some other purposes. If only there were a fruit-based or dessert-based analogy to describe this approach.

However, there’s no precise legal obligation attached to the reference to sincere cooperation clause. And what exactly could the UK do to obstruct the business of the EU anyway?  First of all, let’s look at the EU institutions. Member States do not have a veto on the major appointments to the EU institutions to be made later this year: Mr Juncker became Commission President despite the UK’s opposition (joined by Hungary), and Mr Tusk was re-elected as European Council President despite the opposition of Poland.  There’s no veto on appointing the rest of the Commission this autumn either, although Member States do act unanimously when appointing CJEU judges or renewing their terms. As regards the Commission in particular, the implications aren’t fully fleshed out: the UK and UK MEPs will still presumably have a vote for the new Commission, since those votes would normally take place before November 1, but would it follow that also the UK should nominate a Commissioner who might not even take office?

Could the UK obstruct the functioning of those institutions? First, although this is not mentioned in the extension decision, the European Council conclusions note that the EU27 can meet informally without the UK:

the 27 Member States and the Commission, where appropriate together with other institutions, bodies, offices and agencies of the Union, will continue to meet separately at all levels to discuss matters related to the situation after the withdrawal of the United Kingdom

This suggests an informal arrangement, where the EU27 might agree in principle on future developments which will apply after Brexit day, with any legal texts to be adopted officially once the UK has left.

Secondly, it should be noted that the EU institutions do less work than usual between May and October of an election year (ie the term of most of the extension decision), since the European Parliament (EP) focusses on the elections and their aftermath and the outgoing Commission is winding its activities up. But there are some activities. However, the Commission, EP and CJEU do not act by unanimous vote, and the EU institutions’ rules of procedure don’t provide for filibustering (ie discussing an issue endlessly to stop debate). Nigel Farage rarely shows up for long enough to filibuster anyway.

The possibility for obstruction exists more in the Council (made up of ministers) and the European Council (made up of Presidents and Prime Ministers). The Council usually (but not always) decides by qualified majority voting (QMV), while the opposite is true of the European Council.  For QMV, the UK vote has to count in some way (except where the UK opts out), and asking the UK to abstain accomplishes nothing, since UK abstentions would in effect count as a vote against. However, it’s rare that so many Member States oppose a proposal that the UK has the swing vote (for a current example, see the controversial copyright directive, which the UK could block if it abstained or voted against).

The UK could, of course, block everything where it has a veto.  This particularly applies to taxation, accession to the EU, Treaty amendment, foreign and defence policy, and major decisions on the budget. But budget decisions are due to be agreed next year, after the second extension decision will run its course, and applicant Member States are all a long way from joining the EU. While the UK could block steps in the ongoing accession negotiations (like opening or closing ‘chapters’ in the negotiations), the EU27 and the applicant State (like the EU27 internally) might simply decide agree in principle on those steps while awaiting Brexit day.

As regards Treaty amendments, there are no discussions of amendments underway or planned imminently. The UK can’t block any amendment process getting started, but its agreement would be necessary for any Treaty amendments to come into force. If there were interest from other Member States in such negotiations, the UK could abstain from the discussions, and ratification of any agreed text could get underway in the EU27, with the proviso that the process could only be completed on or after Brexit Day.

It’s also possible to use simplified procedures to amend certain parts of the Treaties, but any significant Treaty change by such simplified means still requires unanimity of Member States. Unlike fully-fledged Treaty amendments, simplified Treaty amendments are a live issue. The Commission has proposed extending QMV on aspects of foreign policy, as well as on taxation in general and energy and environmental taxes in particular. (Update: the Commission also proposed to drop unanimity for aspects of employment law on April 16th). The environmental tax paper also suggests giving the European Parliament more powers as regards EU law on nuclear energy, but this requires an ordinary Treaty amendment (which the Commission suggests should happen after 2025). Again, the UK could block these proposals as long as it’s a Member State, while the EU27 could agree on them (if they are interested) in principle pending Brexit day, and adopt them after that.

UK legal issues

The UK gave effect to the first extension as a matter of UK law by means of a Statutory Instrument, in accordance with s 20 of the EU Withdrawal Act 2018, which sets out a process to change ‘exit day’. Some have queried the legality of this process, and there’s a pending court case challenging the first extension (although see the counter-argument by Professor Mark Elliott).

Since the first extension was granted, as noted already, the House of Commons voted down the withdrawal agreement a third time. But there have been other legal developments. The Commons made two attempts to hold ‘indicative votes’ to find a Brexit outcome that would command majority support – but no outcome did. Since the Commons had also indicated its opposition to leaving the EU without a deal, the government changed its strategy of trying to pass the withdrawal agreement with Conservative and Democratic Unionist Party votes.

Instead, as the Prime Minister announced on 2 April, she would instead hold discussions with the Labour party, with a view to amending the declaration on the future relationship with the EU.  She would also seek a short second extension of membership from the EU, while planning to table the bill to implement the withdrawal agreement with a view to ratifying it by 22 May, thus avoiding taking part in European Parliament elections. To that end, on April 5 the government sent a request to the EU for an extension until June 30. Since it is possible that European Parliament elections might have to be held, the government also adopted the order which is legally necessary to hold them on May 23.

Furthermore, Parliament decided to take control of the legislative agenda from the executive temporarily and quickly pass a new law, the EU Withdrawal Act 2019. Among other things, it requires the government to seek an extension of membership from the EU, and on that basis, the Commons approved the government’s motion to set June 30 as the intended date. It also simplifies the process of approving another change to ‘exit day’ in UK law, which will be relevant imminently when giving effect to the second extension decision in UK law. (Update: the secondary legislation changing the exit day to October 31 has since been adopted,) While the passage of the Act attracted controversy, ultimately the outcome differs little from the government’s policy. I’ll leave it to political commentators to discuss the broader political impact of the Act. It should be noted that despite the passage of the Act, one MP, Bill Cash, has queried the legality of a second extension. With respect, his arguments about the frustration of the intent of Parliament ignore the 2019 Act as well as the prospect of extension of membership set out in the 2018 Act. But it would not be surprising to see these arguments litigated.

Finally, it’s useful to consider the second extension decision in its political context, although only a brave observer could argue they know what will happen in UK politics in the near future with any certainty.  An extension to October leaves just enough time for a referendum, and lots of time for a general election. It also leaves enough time for a Conservative party leadership contest, although a new Prime Minister would, without an election, face the same arithmetic in the House of Commons, regardless of their Brexit views. While the Conservative party formally cannot challenge its leader before December, it may try to find a way to do so indirectly. The results of local elections at the start of May and (if held) European Parliament elections at the end of May might alter the political dynamics. A new Queen’s Speech is due in June, which will entail the Conservative party renegotiating its confidence and supply arrangement with the DUP, as well as yet another opportunity to submit the withdrawal agreement to the vote. The delay to Brexit might provide the opportunity to pass further Brexit-related legislation, as well as conclude some ‘rollover’ treaties with non-EU countries.

As for the impact on EU/UK relations, while the second extension decision reiterates that the EU is not willing to reopen talks on the withdrawal agreement, and furthermore states that the extension period should not be used to negotiate the future relationship as such, the European Council conclusions expressly state a willingness to renegotiate the non-binding political declaration on that relationship. Renegotiating the latter depends on successful conclusions of talks between the Conservative and Labour parties, which many believe is an unlikely prospect. A general election might change the situation, but the government is not keen on one. There might remain a lack of a parliamentary majority for anything else (simple revocation, no deal, another referendum) if there’s no election. Time will tell if the UK can find any way out of the current Brexit deadlock.

Photo credit: bored panda

Barnard & Peers: chapter 27

Travelling to the EU after Brexit: Schengen visa waivers for UK citizens

Professor Steve Peers, University of Essex*

*Supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'.

Yesterday, the European Parliament (EP) and EU Council finally agreed on a proposal to waive visa requirements for UK citizens travelling to the EU after Brexit, whether the UK leaves the EU with a deal or not. This still needs to go through the formal steps of approval by the European Parliament and Council, but it’s unlikely that the law will be rejected at this point. (An EP committee has already voted for it. Update: so has the EP plenary and the Council, and the law was published in the EU Official Journal on April 12).

The final version of the law, which will amend the main EU Regulation setting out which countries’ nationals do and don’t need a visa to travel to the Schengen States, is straightforward. It will add the UK to the so-called ‘white list’ of countries whose nationals don’t need a visa to travel to the Schengen States, for a period of 90 out of 180 days. It will also put travel documents issued by the Gibraltar authorities on the whitelist, with a footnote asserting that Gibraltar is a ‘colony’ of the UK.  (Update: see the UK statement on this). Any Brexit supporters upset about this perceived injustice to Gibraltar may wish to consider that it is only happening in the first place because the UK is pursuing a policy which the vast majority of Gibraltarians voted against.

The footnote on Gibraltar differs from the European Parliament’s position on the proposal. However, during negotiations, the EP agreed with the Council’s position on this point, while in return the Council agreed with the EP position inserting slightly stronger language on the requirement of reciprocity (ie, the UK is expected, like every other country on the visa whitelist, not to impose a visa requirement for any EU country. This is unproblematic, as it’s UK government policy not to impose visas for these States).

The law will apply to all EU countries except Ireland, which has a common travel area with the UK and opts out of EU visa policy and related laws. While several other EU countries are not fully part of the Schengen area yet (Cyprus, Croatia, Romania, and Bulgaria), these countries apply the Schengen rules on visa lists. The law will also apply to non-EU countries associated with Schengen (Norway, Iceland, Switzerland and Liechtenstein).

It should be noted that a short-term visa waiver is for visits only: it does not constitute free movement of people between the UK and EU. The EU’s visa Regulation leaves it up to each Member State to decide on whether to require a visa for ‘paid activity’, a term which is not further defined in the legislation or in CJEU case law. The rules of the World Trade Organisation equally leave it up to each WTO Member whether to impose a visa requirement for provision of services. So UK citizens carrying out paid activity in the EU after Brexit – or vice versa – may face further hurdles, depending on the national law of the EU Member States on the one hand and the UK on the other (the EU has not harmonised Member States’ immigration laws on non-EU citizens on this issue).

Longer-term residence by UK citizens in the EU (leaving aside Ireland) will not be impossible after Brexit, but nor will it be as easy as under the free movement rules. Rather it will be subject to the national law of EU Member States, as partly harmonised by EU law (on issues such as single work/residence permits, highly-skilled workers (Blue Card), family reunion, intra-corporate transferees, seasonal workers, students and researchers, and long-term residence).

Also, the visa waiver will not exempt UK citizens from the full application of other border control laws of the EU. This means that in principle UK citizens will be subject to going through the slower lanes at passport controls, to the EU’s entry-exit and travel authorisation systems when operational, and to UK citizens potentially being listed for refusal of entry in the Schengen Information System due to previous criminal convictions, security concerns or breaches of immigration law. Note that the travel authorisation system is not technically a visa as such: although it is a form of advance control of entry, the cost, length of validity and simplicity of application is easier than for a travel visa.

It’s sometimes argued that applying the ordinary border controls rules to UK citizens is a form of ‘punishment’ by the EU, but this is not remotely a serious argument: unless otherwise agreed, the UK will be treated the same as any other non-EU country with a visa waiver and without a free movement arrangement with the EU, which is what the UK government chose to define the Brexit vote as meaning. It is the obvious corollary of the ‘take back control of borders’ slogan used by Leave campaigners. The real punishment is suffered by those who have to listen to the whining of people who are unable to take responsibility for the obvious and predictable consequences of their own decisions.    

Note that if the withdrawal agreement is ratified, free movement will still apply between the UK and the EU until the end of 2020, although this transition period might be extended by a single period of one or two years. In this scenario, the visa waiver will only really be relevant after that point, when (contrary to some false claims) free movement of people will end, unless the UK decides that, contrary to current UK government policy, it is willing to agree to a free movement system after all. The withdrawal agreement will also protect the status of UK citizens in the EU living there before the end of the transition period, which will otherwise primarily be left to national law of the Member States, as discussed here.

Finally, it should be noted that like other EU legislation on Brexit, this legislation is unilateral. Sometimes the EU agrees visa waiver treaties with non-EU States (for instance, with several Commonwealth States or Brazil), and sometimes it doesn’t, but exempts them on its own initiative, subject to an expectation of reciprocity (for instance, the USA, Canada and Japan). This isn’t a visa waiver treaty, so it’s not up to the UK to agree. And the UK does not have a vote on the law while a Member State either, because it opts out of Schengen visa policies.

Barnard & Peers: chapter 26, chapter 27

JHA4: chapter I:4

Photo credit: ETIAS.com

Citizens of Somewhere Else? EU citizenship and loss of Member State nationality

Professor Steve Peers, University of Essex*

*This blog post is adapted in part from the forthcoming second edition of The EU Citizenship Directive (OUP, 2019), co-authored by me, Elspeth Guild and Jonathan Tomkin

Member States’ rules on the acquisition or loss of nationality are in principle a national competence. But this issue is nevertheless central to EU law, because citizenship of the EU is based on having the nationality of a Member State, according to Article 20(1) TFEU:

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

So in light of the importance of Member State nationality to EU citizenship, can the loss of Member State nationality be reviewed for compliance with EU law? The recent judgment in Tjebbes was the latest of the CJEU’s rare opportunities to rule on this issue, and offers some important clarification of the law.

Background

The first ruling of the Court of Justice on nationality issues was Micheletti. In this case, one Member State’s authorities were reluctant to recognize the nationality of another Member State which Mr Micheletti had acquired, given that he was also (and initially) a national of a non-EU State. The CJEU started by recognizing that ‘[u]nder international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality’ (emphasis added). This wording left the door slightly ajar for possible scrutiny of Member States’ nationality laws, by hinting that Community (now EU) law might place some constraints on national sovereignty on this issue.

However, it took nearly twenty years before the Court began to elaborate on such constraints. In the meantime, in the judgment in Kaur, the Court referred to the principle that Member States could define their own nationals, referring to a ‘principle of customary international law’ to this effect. According to the Court, this left the UK free to define ‘several categories of British citizens whom it has recognised as having rights which differ according to the nature of the ties connecting them to the United Kingdom’. The rights of these persons were defined in a declaration to the UK’s Treaty of Accession, which was updated later following changes in British nationality law, but that declaration did not deprive anyone of any EU law rights, for ‘[t]consequence was rather that such rights never arose in the first place for such a person’.

Subsequently, in the case of Rottmann, the Court began to set out limits to national control of the loss of nationality, as regards a person who (unlike Ms Kaur) had enjoyed the status of EU citizenship, but then was deprived of it. Mr Rottmann was an Austrian citizen and resident by birth, who later moved to Germany following the start of an investigation against him for serious fraud. He applied for and obtained German nationality, with the result that he lost Austrian nationality. But once the German authorities found out about the previous proceedings in Austria, which Mr Rottmann had not disclosed to them, they began the process of withdrawing his German nationality; and it did not appear that he met the criteria for the reacquisition of Austrian nationality either.

The CJEU began by agreeing that in line with a declaration to the TEU and the Edinburgh Decision of Member States’ heads of government of 1992, Member States had competence to determine who their nationals were. However, even if a matter falls within national competences, the exercise of those competences must have due regard to EU law. In this case, the ‘situation of’ an EU citizen who ‘is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status’ of EU citizenship conferred by the Treaties ‘and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law’.

Therefore the CJEU could rule on the ‘conditions in which a citizen of the Union may, because he loses his nationality, lose his status of citizen of the Union and thereby be deprived of the rights attaching to that status’. This ‘does not compromise the principle of international law previously recognised by the Court’ that Member States ‘have the power to lay down the conditions for the acquisition and loss of nationality’; rather it ‘enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union’, such as ‘in particular’ a withdrawal of naturalization as in the Rottmann case, ‘is amenable to judicial review carried out in the light of [EU] law’.

In Mr Rottmann’s case, a withdrawal of nationality due to deception could be compatible with EU law, since it was in the ‘public interest’ and ‘it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality’. Withdrawal of nationality on such grounds was provided for by international law, in particular the 1961 Convention on the Reduction of Statelessness and the Council of Europe’s European Convention on Nationality. It was therefore up to the national court to determine the proportionality of the decision in light of national and EU law. On this point, the national court had to ‘take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family’ as regards the loss of EU citizenship rights, assessing ‘in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality’. While EU law did not ban the withdrawal of nationality before the person concerned obtained again his original nationality – ie there was no apparent ban on making the person concerned stateless – the national court had to consider whether ‘the principle of proportionality requires the person concerned to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin’. Finally, the Court made clear that ‘the principles stemming from this judgment’ as regards the effect of EU law on national powers in the area of nationality law ‘apply both to the Member State of naturalisation and to the Member State of the original nationality’.

What is the impact of the Rottmann judgment? First of all, as for the scope of the judgment, it did not seem to be relevant in this case that Mr Rottmann had previously exercised free movement rights; the Court referred to the loss of EU citizenship status in principle, not to the particular impact upon people who had moved within the EU pursuant to the citizens’ Directive or other provisions of EU law.

Secondly, what substantive rules apply? The Court accepts the loss of citizenship can be justified on ‘public interest’ grounds such as deception, subject to the application of the principle of proportionality. However, it did not indicate how the public interest should be weighted as compared to the individual interest in retaining EU citizenship in this particular case. While the Court confirmed its analysis in Rottmann by reference to the Council of Europe Convention on Nationality and the 1961 Convention on the Reduction of Statelessness, it should be noted that the former Convention has been ratified by fewer than half of the Member States, and only a slim majority of Member States have ratified the latter. In fact, ten Member States have not ratified either treaty.

Finally, procedurally, on the facts of Rottman there had to be a ‘reasonable period of time’ to pursue the re-acquisition of the original nationality, as an aspect of the principle of proportionality. However, while the Court mentioned judicial review there were no further details besides a reference to the national court’s obligations to apply the principle of proportionality, and no specific mention of administrative procedural rights.

The latest judgment

Tjebbes concerns four different applicants: a dual citizen (since birth) of the Netherlands and Canada; a Dutch citizen from birth who acquired Swiss nationality via marriage; her daughter, a dual Dutch and Swiss citizen from birth, who was listed on her mother’s passport when a child; and an Iranian national from birth who acquired Dutch nationality.  Each of them, when residing outside the EU, applied for a Dutch passport, but the authorities ruled that they had lost Dutch nationality automatically due to residence outside the EU. This resulted from Dutch law which provides for such loss after ten years’ residence abroad, if the person concerned has the nationality of another State. That loss could be prevented by residing in the EU for a year before the nationality was lost, or by obtaining a declaration regarding the possession of Netherlands nationality or a travel document or Netherlands identity card. There are also special rules on minors, entailing loss of Dutch nationality to correspond with the parent’s loss of that status.

The national court had doubts about the notion of a general rule on loss of nationality (as distinct from a decision to strip a person of nationality in an individual case, as in Rottman), as well as the specific issues relating to loss of nationality by children, and so asked the CJEU to rule on whether the Dutch rules are compatible with EU law.  The Court’s analysis began by specifically pointing out that none of the persons concerned had moved within the EU. So its judgment is concerned with EU citizenship as such, rather than loss of free movement rights.

Reiterating the basic points of Rottmann (loss of nationality has to be consistent with EU law, but a Member State can legitimately ‘protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality’, the Court accepted that in general:

when exercising its competence to lay down the conditions for acquisition and loss of nationality, it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. It is also legitimate for a Member State to wish to protect the unity of nationality within the same family.

Applying that principle to the facts of this case, the ten-year absence criterion in Dutch law ‘may be regarded as an indication that there is no such link’. As for children, ‘the lack of a genuine link between the parents of a child who is a minor and the Kingdom of the Netherlands can be understood, in principle, as a lack of a genuine link between the child and that Member State’.

This interpretation was supported (as in Rottmann) by the Convention on the Reduction of Statelessness which provides for the possible loss of nationality ‘in similar situations’ as long as the person concerned ‘does not become stateless’. The latter risk was ruled out by Dutch law. Also as in Rottmann, the Council of Europe Convention on Nationality is relevant: providing that nationality can be lost in the event of ‘no genuine link between that State and a national habitually residing abroad and, in the case of a minor, for children whose parents lose the nationality of that State’.

The applicable safeguard (a request within the 10-year period for the issuing of a declaration regarding the possession of Netherlands nationality, a travel document or a Netherlands identity card, interrupting the 10-year period) was also relevant.

However, again as in Rottmann, national authorities and national courts had to assess whether the loss of the nationality of the Member State (and therefore EU citizenship) respects the principle of proportionality, as regards ‘the consequences of that loss for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law’. In particular, loss of nationality ‘by operation of law  would be inconsistent with the principle of proportionality’ if there was no possibility for ‘at any time an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law’, which could, ‘where appropriate’, mean that the person concerned could ‘recover his or her nationality ex tunc in the context of an application by that person for a travel document or any other document showing his or her nationality’. In practice, Dutch law includes this safeguard. It must entail:

an individual assessment of the situation of the person concerned and that of his or her family in order to determine whether the consequences of losing the nationality of the Member State concerned, when it entails the loss of his or her citizenship of the Union, might, with regard to the objective pursued by the national legislature, disproportionately affect the normal development of his or her family and professional life from the point of view of EU law. Those consequences cannot be hypothetical or merely a possibility.

The examination of proportionality must ensure that the national authorities and national courts assess whether the loss of nationality is consistent with the EU Charter of Rights, particularly the right to family life (Article 7 of the Charter) and the obligation to take into consideration the best interests of the child (Article 24). As regards the individual circumstances to be considered, it’s likely to be relevant that the persons concerned:

would be exposed to limitations when exercising his or her right to move and reside freely within the territory of the Member States, including, depending on the circumstances, particular difficulties in continuing to travel to the Netherlands or to another Member State in order to retain genuine and regular links with members of his or her family, to pursue his or her professional activity or to undertake the necessary steps to pursue that activity.

It’s also relevant that the person concerned ‘might not have been able to renounce the nationality of’ a non-EU country, and whether there’s a ‘serious risk, to which the person concerned would be exposed, that his or her safety or freedom to come and go would substantially deteriorate because of the impossibility for that person to enjoy consular protection under Article 20(2)(c) TFEU in the territory of the third country in which that person resides’.

There are particular safeguards for minors: the administrative and judicial authorities must ‘take into account, in the context of their individual examination’, the possibility that loss of nationality resulting from the loss of nationality by a parent ‘fails to meet the child’s best interests as enshrined in Article 24 of the Charter because of the consequences of that loss for the minor from the point of view of EU law.’

Comments

In many respects, Tjebbes confirms the Court’s ruling in Rottmann: national competence to regulate loss of nationality (and therefore EU citizenship) subject to minimum standards developed by the Court due to the importance of EU citizenship; taking account of international treaties as a source of those minimum standards; broad deference to national determination as to what the grounds of loss of nationality should be; a proportionality test which must take account of individual circumstances, including those of family members; and the requirement of judicial control.

However, a number of points are further developed or new. First of all, it’s now clear beyond any doubt that loss of nationality of a Member State raises issues because of the consequential loss of EU citizenship regardless of whether the persons concerned have exercised free movement rights. Secondly, in Tjebbes the Court seems more concerned to avoid the persons concerned becoming stateless.

Thirdly, the Court confirms that the issues which Member States may consider legitimate are not just the public interest concerns arising from the deception in Rottmann, but also the simple lack of residence within the EU for a sufficient period of time. (The Court does not comment on the hypothetical prospect of loss of nationality due to the exercise of free movement rights within the EU, but this would obviously be highly problematic in that it would penalise the use of free movement rights, and therefore deter their exercise. The Court does not comment on the possible relevance of the EU/Swiss free movement treaty as regards one of the persons concerned). It was arguably already implicit from Rottmann that Member States can sanction even more serious offences such as terrorism with a loss of nationality (and therefore EU citizenship).

Fourthly, the Court accepts that nationality can be lost by means of a general rule, not just as a consequence of an individual decision. However, it considers it essential that the general rule on loss be complemented by a general safeguard – in this case, the possibility of forestalling the loss of nationality via an application for an identity document during the ten-year period. Fifthly, in both cases, the Court places strong emphasis upon a review of the proportionality of the loss of nationality, although the standards applicable are necessarily partly different. In both cases, the individual consequences must be assessed, but instead of ‘whether that loss is justified in relation to the gravity of the offence committed by that person’ (Rottmann), the test in Tjebbes is a disproportionate effect on ‘the normal development of his or her family and professional life from the point of view of EU law’, although the argument on this issue cannot be purely hypothetical.

Furthermore, the Court requires the assessment to consider limitations on the exercise of free movement rights and consular protection (which are surely inevitable, except as regards Swiss citizens – although again, the Court does not mention the EU/Swiss treaty) including difficulties in travel to the EU (possibly a bigger issue if a visa requirement would be imposed, as in the case of Iran as distinct from Canada or Switzerland) as regards family links or professional activity. For minors, it is hard to see how the best interests of the child are served by the child’s loss of EU citizenship despite any decision by that child to leave the EU as an adult. Sixthly, the Court emphasises not only judicial control, but also the obligations of the administrative authorities. Finally, the Court places significant stress on the EU Charter of Rights, which it did not mention in Rottmann.

However, there are still a number of uncertain issues. The Court’s degree of concern about the risk of statelessness seems to vary from the relative indifference in Rottmann to the implied safeguard in Tjebbes.  This leaves the important question of the degree of certainty of obtaining the other country’s nationality (an issue in UK case law and disputes) undecided. Also, it’s still unclear how relevant the two international treaties the Court refers to in both cases might be – given that a number of Member States have not ratified one or both of them.   One wonders also if various limits on judicial review or stemming from administrative procedure might be challenged for breach of effectiveness.

Of course, there’s a limit to how much the case law on this issue can develop if the Court keeps receiving about one case per decade. It’s possible that the Court will soon get more though, if the UK soon becomes a non-EU State. This raises a variety of issues, most obviously whether UK nationals – who were citizens of the EU until Brexit Day – lose EU citizenship on that date (unless they hold the nationality of a remaining Member State)? The orthodox view is that they do, on the basis of the Treaty wording: ‘Every national of a Member State shall be a citizen of the Union.’ The obvious implication is that when your State of nationality ceases to be a Member State, you are no longer a citizens of the Union. This interpretation is reflected in the wording of the draft withdrawal agreement, which distinguishes between UK nationals and EU citizens, defining the latter as citizens of Member States but not listing the UK as a Member State. It also is implicit in the case law of the Court of Justice on loss of EU citizenship, which is based on the assumption that EU citizenship is lost when a person loses the nationality of a Member State. This is arguably a quite different issue from a country ceasing to be a Member State.

The counter-argument is that the Treaty only sets out the means of acquiring EU citizenship, not losing it. It follows that Brexit cannot remove EU citizenship from those UK nationals who already had it. A Dutch court initially decided to ask the CJEU to clarify these issues (see discussion here), but an appeal court decided to block the case. The question might at some point be resolved by the CJEU one way or the other. 

Brexit will also raise other issues. In Member States that remove their nationality from citizens resident outside the EU, the UK’s non-EU status will bring more of their citizens within the scope of this rule. At the very least, should time spent in the UK when it was a Member State be ignored for the purpose of this rule? Or should the rule only apply to nationals who move to the UK after Brexit? This raises the broader question of whether time spent in the UK before Brexit day continues to have effect for the purposes of EU citizenship and free movement law (ie for those EU27 citizens who married a non-EU citizen in the UK and then returned to their State of nationality).

More generally, given the importance of nationality to the essence of national sovereignty, the absence of power for the EU to harmonise laws in this field, the TEU declaration and the Edinburgh decision, there’s a strong case that the Court’s case law interfering with the national rules on the loss of national citizenship is unjustifiable in principle. However, this is vitiated by the great deference which the Court gives to Member States on this issue in its case law. Ultimately, the importance of this case law may be as an essential safeguard against any drift towards authoritarianism in a Member State which might want to strip government critics of their nationality for defying the ‘will of the people’. The problem is that any government already inclined to flout the rule of law so flagrantly may well ignore the CJEU’s rulings too. But this is a paradox to explore another day.

Barnard & Peers: chapter 13

Photo credit: igamingtimes.com

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