The CJEU ruling in Changu: ‘If I’ve said it once, I’ve said it a thousand times: the Return Directive in conjunction with the Charter of Fundamental Rights does not oblige EU Member States to grant a right to remain to irregularly staying migrants’

 

 

Alan Desmond, University of Leicester

Kevin Fredy Hinterberger, Austrian Federal Chamber of Labour

Photo credit: Luxufluxo, via Wikimedia Commons

 

Introduction

The 2008 Return Directive sets out common standards and procedures for removal of irregularly staying third-country nationals (TCNs) by all EU Member States, except for Ireland and Denmark, and by the four Schengen states outside the EU, namely, Iceland, Liechtenstein, Norway and Switzerland. Since the Directive’s entry into force in January 2009, it has been the subject of an increasing number of important CJEU rulings that clarify the scope and substance of safeguards for TCNs facing removal, ranging from the right to be heard prior to adoption of a return decision, to the maximum period of detention allowed under the Directive.

While the self-evident focus of the Directive is on removal of irregularly staying migrants, Article 6(4) of the Directive provides that, instead of issuing or enforcing a return decision, a state may ‘at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay’ to an irregularly staying TCN. The recent ruling of the CJEU in Case C‑352/23 (Changu) maintains the Court’s stance that no provision of the Return Directive can be interpreted as requiring a member state to grant a residence permit to a TCN staying irregularly on its territory. Article 6(4) has no mandatory character and simply provides Member States with an option ‘to grant, for compassionate or humanitarian reasons, a right of residence, on the basis of their national law, and not EU law, to third-country nationals who are staying illegally on their territory’ (para 67). In this blogpost, however, we argue that Member States have to choose between the return procedure or regularisation. Both options for the Member States are equal in nature to the extent that they have the effect of ending the irregular stay (Hinterberger 2023, pp 98-99).

Background to Case C‑352/23 Changu

The applicant was a TCN who had been residing in Bulgaria since 1996. He had unsuccessfully lodged several applications for international protection and had been the subject of return decisions, the first dated 26 September 2005 and another dated 9 August 2017, which had never been enforced. The CJEU noted that there was no indication that this failure to enforce was due to obstacles to their execution or on health or humanitarian grounds (para 34). During his lengthy residence in Bulgaria the applicant had received different criminal convictions. He claimed that ‘because of the legal vacuum’ surrounding his stay in Bulgaria, ‘he had not had access to either health insurance or medical care’ (para 22).

The most recent rejection of the applicant’s request for international protection, in 2022, was upheld by the Administrative Court in Sofia. The Court in Sofia noted, however, that during the considerable length of his stay in Bulgaria, the applicant did not have any identity document and was often deprived of the necessary safeguards to ensure a dignified standard of living, in breach of Article 14 of the Return Directive. Article 14(1) obliges Member States, inter alia, to take into account certain principles in respect of persons whose return has been postponed, including provision of emergency health care and essential treatment of illness, and attention to special needs in the case of vulnerable persons. The Administrative Court also noted that the Bulgarian authorities had not complied with their obligation under Article 8 of the Return Directive to remove the applicant as soon as possible.

The Administrative Court referred six questions to the CJEU. In this blogpost we will focus on the core question concerning the Return Directive, namely, do Articles 1, 4 and 7 of the Charter of Fundamental Rights of the EU, read in conjunction with the Return Directive, oblige a Member State to grant a right to stay to a long-term irregularly-staying TCN on compelling humanitarian grounds? Hence, our argument in this blogpost draws on EU law combined with human rights law, rather than being solely based on EU law (Hinterberger 2023, pp 102-110).

 

Judgment

The CJEU delivered its judgment on 12 September 2024 without first receiving an Advocate General’s Opinion. In relation to the authorisation in Article 6(4) of the Return Directive, Member States may regularise the stay of an irregularly staying TCN ‘at any moment’. The Court found that this provision ‘does no more than permit Member States to grant, for compassionate or humanitarian reasons, a right of residence, on the basis of their national law, and not EU law’ to irregularly staying TCNs (para 67). This option to regularise is not transformed into an obligation by Articles 1 (dignity), 4 (prohibition of inhuman and degrading treatment) or 7 (right to respect for private and family life) of the EU Charter of Fundamental Rights, regardless of the length of residence of the TCN which the Court found in fact to be ‘irrelevant’ (para 68).

TCNs who have not been removed despite being the subject of a return decision are not, however, left in a situation of rightlessness; in particular, they are still within the scope of EU law. The CJEU noted that Article 14(1)(b) and (d) of the Return Directive requires Member States to ensure as far as possible that as long as removal is postponed, emergency health care and essential treatment of illness are provided, and the special needs of vulnerable persons are taken into account (para 73). Furthermore, the prohibition of inhuman or degrading treatment codified in Article 4 of the Charter obliges Member States to ensure that irregularly staying TCNs do not find themselves in situations prohibited by Article 4. This would arise where, for example, a person wholly dependent on State support endures ‘extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity’ (para 75).

Emerging divergence with the European Court of Human Rights?

The Court’s finding in Changu, while consistent with its earlier case law, arguably diverges with rulings delivered by the European Court of Human Rights (ECtHR) in response to complaints that expulsion of irregularly staying migrants would violate the Article 8 ECHR right to respect for private and family life, which is also enshrined in Article 7 of the Charter. This divergence is evident in two areas. Firstly, the CJEU in Changu found that the length of residence of the applicant in the host state was ‘irrelevant’ to the question whether the Charter may impose an obligation to regularise individuals falling within the scope of the Return Directive. The ECtHR, however, attaches significance to the length of an immigrant’s stay in her host state where she seeks to resist expulsion on the basis it would violate her right to family or private life (Desmond 2021). While this is just one factor amongst many taken into consideration by the ECtHR in its assessment of the proportionality of an expulsion measure, length of residence has been invested with significance in a number of ECtHR rulings finding against states’ decisions to expel irregularly staying migrants, including in the Grand Chamber decision in Jeunesse (2014). Indeed, ‘the extent of the ties in the contracting state’, a proxy for time spent in a state, is one of the staple factors taken into consideration in the ECtHR’s Article 8 expulsion cases involving irregularly staying migrants (Bast et al 2022, pp 198-203).

Secondly, there is no evidence that the Court in Changu drew any negative inferences from the failure to remove the applicant from Bulgaria, despite the imposition of a return decision in 2005, and a second in 2017. This contrasts with the approach of the ECtHR for which the failure of state authorities to act with the requisite promptness has helped to tip the balance in favour of irregularly staying migrants seeking to resist expulsion (Desmond 2021, pp 426-428). Thus, for example, in Nunez (2011) the Court rebuked Norway for allowing almost four years to elapse, after discovering in 2001 the unlawful nature of Mirtha Nunez’s stay, before ordering her expulsion. Similarly, in Kaplan (2014) the Court noted that after Kamran Kaplan’s conviction in December 1999 for aggravated assault the authorities took no specific measures to deport him for about six years. This occasioned the Court to observe, as it had in Nunez, that the expulsion order did not in any real way meet ‘the interests of swiftness and efficiency of immigration control that was the intended purpose of such administrative measures’ (para 95). In discussing the applicant’s 16-year stay in the Netherlands in Jeunesse (2014), the Grand Chamber noted that tolerance of her presence ‘for such a lengthy period of time, during which for a large part it was open to the authorities to remove her, in effect enabled the applicant to establish and develop strong family, social and cultural ties in the Netherlands’ (para 116). The passage of so much time in the Netherlands, and the substantial family and private life network facilitated thereby, played a key role in the Grand Chamber’s finding, by 14 votes to three, that expulsion would violate Article 8.

When read in light of this ECtHR line of case law, the finding of the CJEU in Changu that the applicant’s 26-year residence in Bulgaria was ‘irrelevant’ to the question of a right to regularisation is striking.

 

Could the Court have reached a different conclusion in Changu?

The finding of the CJEU in Changu is consistent with the CJEU’s earlier rulings concerning removal under the Return Directive including Mahdi (2014), Abdida (2014) and X (2022). There are, however, at least two complementary arguments that the Court should read the Return Directive as imposing an obligation to regularise irregularly staying TCNs who are not removed, firstly an effectiveness-based argument (Desmond 2020; Desmond 2022, p 147; Hinterberger 2023, pp 102-110) and, secondly, a human rights-based argument (Desmond 2015, pp 75-83; Bast et al 2022, pp 201-203).

The aim of the Return Directive to reduce the presence of irregularly staying migrants in the EU is inferable from the text of the Directive itself. Article 6(1) Return Directive requires Member States to issue a return decision to any irregularly staying TCN, a provision that has been interpreted by the CJEU to mean that Member States must ‘explicitly make provision in their national law for the obligation to leave the national territory in cases of illegal stay’. The aim is also evident in the view of the Commission that the Directive ensures that ‘a person is either legally present in the EU or is issued with a return decision’ (Commission Communication 2011, p 9). More recently, the Commission has referred to the obligation on Member States to take all necessary measures to ensure return (Commission Recommendation 2017, p 24). Both the Commission and the CJEU have repeatedly referred to the need to ensure the effectiveness of the EU’s return policy generally and of the Return Directive in particular. Both are demonstrably lacking in effectiveness, as evidenced by the fact that the majority of irregularly staying migrants are not issued with return decisions and the majority of those who do receive return decisions do not leave the EU (European Parliamentary Research Service 2019; Lutz 2018).

Regularisation, unconditionally open to Member States under Article 6(4), would allow TCNs who are not or cannot be deported to remain in the EU on a legal basis, thereby reducing the ongoing chasm between the number of return decisions issued and the number effected. Embracing regularisation would transform current return policy from one that is grossly ineffective to one which would have a greater likelihood of achieving the aim of lowering the number of irregularly staying migrants in the EU (Desmond 2020, p 6; Hinterberger 2023, p 357).

The human rights-based argument for regularisation is anchored in the belief that human rights considerations require a TCN to be allowed to remain lawfully in the EU instead of being expelled. These considerations include any family life a TCN may have in the host state, with which deportation would inevitably interfere. Similarly, the principle of the best interests of the child might mean that a child migrant should not be expelled to a country where her quality of life would be drastically lower than in the expelling state or that a TCN parent should not be expelled where expulsion would result in a separation of parent and child or removal of a child so as to accompany the deportee parent. Such considerations are, in fact, expressly acknowledged in the Directive and should, as set out in the Preamble, be primary considerations of Member States when implementing the Directive. 

The CJEU has explicitly held in cases such as Mahdi that there is no obligation on Member States under Article 6(4) to regularise TCNs for whom there is no longer a reasonable prospect of removal. Nonetheless, the explicit reference to human rights considerations in the Directive, the CJEU’s increasing reference to the EU Charter for Fundamental Rights and human dignity in its case law on the Directive and the wide concern with ensuring the effectiveness of the Directive and EU return policy all combine to produce a compelling argument for a regularisation obligation under the Return Directive in conjunction with the Charter of Fundamental Rights.