Thursday 11 June 2015

Jump before you’re pushed: the CJEU rules on the voluntary departure of irregular migrants

Steve Peers

For the first time, the CJEU ruled yesterday (in its judgment in Zh and O) on the provisions of the EU’s Returns Directive (the main set of rules governing the expulsion of irregular non-EU migrants) concerning ‘voluntary departure’. The word ‘voluntary’ is a euphemism here, of course:  there’s still a legal obligation for the migrant to leave, underpinned by the threat of force. But nevertheless it still makes a big difference to the people concerned whether they have a chance to leave the country under their own steam. If they aren’t given that chance, they are likely to be woken up in their homes in the middle of the night, arrested, detained in jail, and restrained on their journey to their country of origin or transit by an armed officer. Some are injured or die during this process. So it’s far better to jump than to be pushed.

But when do irregular migrants have the choice to do so? The Returns Directive makes it the normal rule to give them a period for voluntary departure, for a period of between seven and thirty days.  This time must be extended if necessary in individual cases, for instance whether there are children in school. But there are exceptions: Member States may decide not to grant this period, or to curtain it to less than seven days, in three cases: where there’s a ‘risk of absconding’; where ‘an application for a legal stay has been dismissed as manifestly unfounded or fraudulent’; and if the person concerned ‘poses a risk to public policy, public security or national security’.

If one of these exceptions apply, the removal must then be carried out by national officials, and the Directive in principle requires the migrant to be issued with an entry ban. (It’s still an option for a Member State to issue an entry ban in cases of voluntary departure). Migrants who have the chance of voluntary departure are entitled to family unity, emergency health care and education in the meantime, and it’s implicit that they would not normally be detained.

The Zh and O judgment concerns the third of the exceptions from the rule of giving a period for voluntary departure: the exception for ‘public policy’, et al. Last year’s judgment in Mahdi, discussed here, touched on the first exception (the ‘risk of absconding’), in a different context (the grounds for detention). Zh and O was about two separate cases, and the Dutch courts asked three questions to clarify the meaning of the public policy exception.


The national court wanted to know whether the ‘public policy’ exception had the same meaning as the similar provisions in the EU’s citizens’ Directive, and also the EU Directives on family reunion and long-term resident non-EU citizens. First of all, the CJEU said that the exception had to be interpreted ‘strictly’. It confirmed that the three exceptions to the rule of voluntary departure were the ‘only’ ones allowed. A Member State has to ‘prove’ that there is a risk to public policy. Secondly, the voluntary departure rule aimed, among other things, to protect the ‘fundamental rights’ of the persons concerned during the expulsion process.

So while Member States ‘retain the freedom’ to decide on the concept of public policy, they did not have full latitude to determine the concept without any control by the Court. Here the CJEU referred ‘by analogy’ to case law on the EU citizens’ Directive. So the exception had to be applied on a ‘case-by-case basis’, to decide if the ‘personal conduct’ of the migrant ‘poses a genuine and present risk to public policy’. This meant the suspicion of committing a criminal act, or even a criminal conviction, could not by itself justify the conclusion that a ‘public policy’ risk exists.

On the other hand, the ‘public policy’ exception could still apply where an appeal against a criminal conviction had not yet been decided, or where there was no conviction, as long as ‘other factors’ justified the use of that exception. What are those other factors? The Court referred to the ‘nature and seriousness’ of the act and ‘the time which has elapsed since it was committed’. So the national court had to consider that in one case, the migrant was actually not trying to stay in the Netherlands without authorisation, but was on his way out (travelling to Canada) when he was stopped. In the other case, the migrant had been accused of domestic abuse, but it was relevant that there was nothing to substantiate that accusation.

Finally, the Court ruled that there did not have to be a separate assessment of the question of limiting voluntary departure; that issue could be considered when making the initial return decision. The Court reiterated its prior judgment in Boudjlida (discussed here), when it ruled that the migrant must have the opportunity to be heard on the question of whether voluntary departure ought to be granted.


The Court’s analysis in this judgment has broader implications. First of all, unlike the Advocate-General’s opinion, the Court drew an analogy between the concept of ‘public policy’ in the EU citizens’ Directive and in the Returns Directive. It should follow that the public policy exceptions in the EU’s legal migration legislation (and not just in the two other Directives referred to by the Court) should be similarly interpreted.

Secondly, the Court’s general approach to the exceptions to the rule of voluntary departure is surely equally relevant to the other two exceptions from that rule: the risk of absconding and the manifestly unfounded or fraudulent application to stay. So those other exceptions must be strictly interpreted; Member States have the burden of alleging them; and migrants can object to their application during a form of hearing.

Thirdly, a criminal conviction or suspicion does not by itself trigger the ‘public policy’ exception. But they can be considered along with other factors. The Court did not suggest that the factors which it referred to (departing the country, limited credibility of an allegation) were the only factors to take into account. So there might well be others in other cases. Presumably, for instance, it would conversely be relevant if a migrant’s battered wife has been admitted to hospital. A prior history of irregular migration or criminal convictions (and conversely, the absence of any such prior history) might also be relevant.

More broadly, the Court’s approach, expressly linking the opportunity for voluntary departure with the protection of human rights, properly takes account of the dramatic impact of forced removal on individual migrants. Its judgment does not limit the underlying obligation for irregular migrants to leave the European Union. But it rightly tempers that obligation with a consideration for the basic humanity of the people being removed.


Barnard & Peers: chapter 26

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