A boost for family reunification through the Dublin III Regulation? The CJEU on the right to appeal refusals of take charge requests

 

 

 

Mark Klaassen, Leiden University

Photo credit: DFID 

An unaccompanied minor has the right to appeal the refusal of a take charge request by the receiving Member State. This is the conclusion of the Court of Justice of the EU (CJEU) in the I. & S. judgment. The preliminary question posed by the District Court of Haarlem in the Netherlands was interesting from the outset because the Dublin III Regulation itself does not provide for such right to appeal. The take charge request procedure functions between two Member States and the individual asylum seeker is not a party to this procedure. The referring court essentially asked the CJEU whether the right to an effective remedy as protected by Article 47 of the Charter of Fundamental Rights obliges the Member States to provide for an appeal procedure against the refusal of take charge requests. In this blog, I discuss the reasoning of the Court and the implications for the application of the Dublin III Regulation.

 

The applicant is an Egyptian national who applied for asylum in Greece as an unaccompanied minor. His uncle lives in the Netherlands and the applicant would like to join him there as well. Based on the Dublin III Regulation, Greece made a take charge request to the Netherlands. As prescribed by Article 8(2), Greece deems that the Netherlands is responsible for handling the asylum request of the applicant. The Netherlands had refused the take charge request because it deemed that the applicant did not substantiate the existence of family ties with his uncle. Greece requested the Netherlands to reconsider the refusal, but this request was denied. The applicant and his uncle started proceedings against the refusal before the Dutch courts. The administrative appeal was declared inadmissible by the Dutch authorities because the Dublin III Regulation does not provide for a right to appeal the refusal of a take charge request. In the appeal against this, the referring court asked preliminary questions to the CJEU.

 

Based on Article 27(1) Dublin III Regulation, an asylum seeker has the right to appeal a transfer decision made by the sending State. But when the receiving State refuses a take over or take charge request, no transfer decision is made at all. The CJEU observes that even though Article 27(1) does not provide for a right to appeal the refusal of a take charge request by the receiving State, it does not exclude the possibility that such right to appeal exists. The Court refers to its earlier case law to conclude that the Dublin III Regulation is not only an instrument that functions between the Member States, but that it is also intended to afford rights to asylum seekers. Based on this assertion, the Court ruled in Ghezelbash that asylum seekers must be able to appeal the application of the criteria which determine which Member State is responsible to deal with an asylum request.

 

In the present judgment, the Court also applies this reasoning to the refusal of a take charge request of an unaccompanied minor. According to the Court, the legal protection of an asylum seeker may not be dependent on the acceptance or refusal of a take charge request (para 41).That would hinder the effectiveness of the right of the unaccompanied minor asylum seeker to be reunified with the family member lawfully residing in the receiving Member State (para 42). The Court holds that based on the right to an effective remedy, an asylum seeker has the right to appeal both the wrong application of the criteria, as well as the refusal of a take charge request (para 45). Furthermore, the right to appeal the refusal of a take charge request is also based on the right to respect for family life and the best interests of the child, as protected by respectively Article 7 and 24(2) Charter. An asylum seeker has the right to invoke the protection of these rights and therefore a procedure must exist to do so (paras 47-49). The family member residing in the receiving Member State does not have the right to appeal the refusal of a take charge request. The Court reasons that Article 27 does not grant appeal rights to the family member at all and therefore the family member also does not have the right to appeal the refusal of a take charge request.

 

This judgment makes it necessary for the Member States to provide for the possibility to appeal the refusal of a take charge request to the authorities of the receiving Member State. This is a novelty in EU asylum law. The Court does not give further guidance on this appeal procedure. In his Opinion, Advocate-General Emiliou observes that in the absence of concrete guidance in the Regulation itself, the appeal procedure falls within the procedural autonomy of the Member States, which is limited by the principle of effectiveness. The AG argues that this principle requires that the asylum seeker is informed of the reasons for the refusal of the take charge request. The AG deems it most appropriate if the authorities of the sending Member State inform the asylum seeker of the reasons of the refusal by the receiving Member State. Even though the Court has not made this explicit, in my view the reasoning of the AG is still applicable. Not informing the asylum seeker of the reasons for a refusal would undermine the effectiveness of the right to appeal because the asylum seeker would not know on what grounds the take charge request has been refused. Furthermore, the receiving Member State is already obliged to motivate the refusal of the take charge request to the sending Member State based on Article 5(1) Commission Regulation (EC) No 1560/2003. As the applicant is residing in the sending Member State at the moment that the take charge request is refused, it seems the most appropriate solution that the authorities of that Member State inform the applicant of the reasons of the refusal of the take charge request by the receiving Member State and the procedure to appeal this refusal. This, however, requires coordination between both Member States involved.

 

Having established that under the Dublin III Regulation an asylum seeker has the right to appeal the application of the criteria (Ghezelbash) and the refusal of a take charge request (I. & S.), a remaining question is whether an asylum seeker has the right to appeal against the refusal of a sending Member State to make a take charge request in the first place. In my view, the reasoning of the Court in I. & S. can be applied to that question as well. The Dublin III Regulation aims to provide concrete rights to asylum seekers and lists the criteria for determining the responsible Member State. An asylum seeker, however, is dependent on the sending Member State to make a take charge request. If the sending Member State simply refuses to make a take charge request, for whatever reason, the Dublin III Regulation does not provide the asylum seeker the possibility to appeal against this refusal. In my view, even though Article 27 Dublin III Regulation only grants the right to appeal a transfer decision, reading the criteria from the Regulation as rights for asylum seekers implies that refusing to apply the criteria would undermine the right of the asylum seeker to be transferred to a Member State where a family member is legally present. For this reason, asylum seekers must be able to challenge the refusal to make a take charge request.

 

The reasoning of the Court is also interesting in the light of the current negotiations regarding the reform of the Dublin system. Article 33(1) of the Proposal for a Regulation on asylum and migration management (COM(2020) 610 final) provides for a limitation of the right to appeal. It states that the scope of the legal remedy shall be limited to the risk of ill-treatment within the meaning of Article 4 Charter and the application of the criteria relating to family life. This proposal from the Commission is an attempt to limit the effects of the Court’s ruling in Ghezelbash. By repeating Ghezelbash and emphasising that the right to appeal is based on the Charter of Fundamental Rights in the I. & S. judgment, it seems unlikely to me that the Court would deem limiting the scope of the legal remedy to be lawful.

 

Considering that because of the structure of EU asylum law, family members with an asylum background often find themselves in different Member States, in practice the Dublin III Regulation can function as an instrument to bring families together. By placing family ties at the top of the pyramid of criteria in the Dublin system, this was also the intention of the EU legislature. The judgment of the CJEU in I. & S. makes clear that a refusal of a take charge request may violate fundamental rights and therefore a legal remedy must be made available by the Member States. This gives asylum seekers an extra tool to enforce the application of the Dublin criteria to reunite with family members.  

Discriminating against families: Italian family benefits before the ECJ

 

 

Virginia Passalacqua, post-doctoral researcher in EU law, Utrecht University

 

In Italy, if you are a multimillionaire and you just had a baby, the State gives you 960 euros. However, if you are, say, the non-EU domestic employee of such a millionaire and you also just had a baby, the State gives you zero.

How is this possible? Thanks to Italian legislation that for 20 years has discriminated systematically against foreign families. No wonder, these families are also poorer compared to Italian ones: 25% of them were in absolute poverty in 2020, against 6% of Italian ones.

In July 2020, the issue of discriminatory criteria for access to family benefits arrived before the ECJ, thanks to a reference by the Italian Constitutional Court (ICC), currently pending (O.D. and others, C-350/20).

This is the fourth time that the ECJ is asked to assess Italian discriminatory criteria to access family benefits (after Martinez Silva, VR, and WS). But this time, the ECJ is called to interpret a new legal parameter: Art. 34.2 of the Charter of Fundamental Rights of the EU (the Charter). Can this be a game-changer?

The relevance of Art. 34.2 of the Charter has been questioned by commentators: admittedly, secondary norms are sufficient to declare the Italian law incompatible with EU law. Yet, it is argued that the ECJ should not miss this opportunity to clarify that migrants’ equal access to benefits is a fundamental right in the EU, providing guidance both to the Italian top Court and to the lawmaker.

 

The dispute before the ICC and the preliminary question

 

The facts of the case are rather simple. O.D. and seven other TCNs applied for family benefits, either assegno di maternità or bonus bebè, alias maternity and childbirth allowance.

The maternity allowance exists since 2001 and is granted to low-income women that do not receive a job-related maternity allowance. Instead, the childbirth allowance was introduced in 2014 to support families with a newborn. This was originally granted only to low-income families, but a 2019 amendment made all families eligible; still, the amount of the allowance varies according to their income (from 960 to 1920 euros p/y).

The Italian National Institute for Social Security (INPS) refused to grant O.D. and others the maternity and childbirth allowances because only Italian nationals, EU citizens, and TCN long-term residents are eligible under Italian law. Instead, the applicants are single permit holders: legally residing TCN workers whose status is regulated by the Single Permit Directive 2011/98/EU.

O.D and others challenged such refusal on the grounds that it entailed discrimination and was contrary to EU law. Indeed, Art. 12 of the Single Permit Directive imposes to Member States to grant single-permit holders equal treatment with nationals in several areas, including “branches of social security, as defined in Regulation (EC) No 883/2004”. They argued that the two allowances must be considered as social security and that they are equally entitled to them.

The applicants, supported by ASGI - a pro-migrant association, won all the proceedings against INPS before first and second-instance courts, until they reached the Italian Supreme Court. This decided to refer their cases to the ICC for a constitutionality assessment, which, in turn, decided to make a preliminary reference to the ECJ, under the consideration that this is an area “marked by the growing influence of EU law”.

The preliminary reference asks whether the childbirth and maternity allowances can be considered as branches of social security under Regulation 883/2004 so that they would fall in the scope of application of Art.12 Directive 2011/98 and Art. 34.2 of the Charter, which grants equal treatment to any legally resident person in matters of social security and social advantage.

I will tackle these issues in order.

 

Are the maternity and childbirth allowances to be considered as social security under Regulation 883/2004?

 

Arguably, EU law and case law leave little space for interpretation on this question. The ECJ has consistently held that to understand whether a benefit falls within the scope of Regulation 883/2004 we need to look at its “constituent elements”, i.e. “its purpose and the conditions for its grant, and not on whether it is classified as a social security benefit by national legislation” (UB C-447/18, at 22).

First, the benefit’s purpose must be related to one of the risks listed in Art. 3 of Regulation 883/2004, among which appear “maternity and equivalent paternity benefits” and “family benefits”, defined as “all benefits in kind or in cash intended to meet family expenses” (Art. 1).

Second, the benefit must be granted automatically on the basis of objective criteria, without any individual or discretionary evaluation of personal needs (Martinez Silva, at 22).

Both maternity and childbirth allowances are granted on the basis of objective criteria (i.e. income and the birth of a new child) and give economic support to families. They perfectly match the ECJ definition of social security, and this is why all first and second-instance Italian courts upheld the applicants’ view and granted them equal access to the allowances as required by Art. 12 of the Single Permit Directive.

INPS and the Italian government, however, advanced an exception in respect to the childbirth allowance. They argued that its goal is to incentivizing birthrate, rather than meeting family expenses; this would be confirmed by the fact that (from 2019) the childbirth allowance is a universal benefit, granted to all families and not only to low-income ones.

But this point too had already been addressed by the ECJ, in the case law on free movement of workers. In Reina, the Court assessed whether a German measure (“childbirth loan”) could be legitimately reserved to German nationals on the grounds that it was aimed “to make up the relative deficit in births among the German population in relation to the foreign population”.

Unsurprisingly, this chauvinistic argument did not convince the ECJ. The Court stated that the sole fact that a social measure pursues a demographic aim is not enough to exclude it from the scope of application of EU law and that social security and advantages must be granted equally to EU migrants (Reina at par 15; Commission v. Greece, C-185/96, at 34). Ironically enough, in the case of Reina the discriminated family was of Italian nationality.

 

Art. 34.2 of the Charter: a hollow hope or an added value?

 

As mentioned, the Italian Constitutional Court’s decision to invoke Art. 34.2 of the Charter was met with skepticism by commentators, who deemed it superfluous and of questionable relevance (Giubboni, 2021). This is because, as previously shown, secondary law is sufficient to declare unlawful the exclusion of single permit holders from the beneficiaries of the two allowances. So, does the Charter lack any added value?

Upon a closer look, the answer is no. Art. 34.2 of the Charter states:

Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices.

This provision does present at least three important advantages. First, it refers to both social security and social advantages, while Art. 12 of the Single Permit Directive refers only to social security. Second, it grants equal treatment to all migrants residing legally, without making distinctions based on status. Third, it confers to the migrants’ right to equality a fundamental status in the EU.

The concreteness of the first two advantages is tempered by their limited scope of application (the Charter applies to Member States only when they implement EU law) and by their being subject to limitations under EU and national law. Instead, the third advantage, abstract as it is, is more significant.

In a context where even the European Social Charter grants migrants only limited access to social benefits (see Art. 19), the broad scope of Art. 34.2 sounds revolutionary. This confirms that, despite the (often valid) criticisms against the restrictive EU migration policy, fighting discrimination against migrants is a hallmark of the EU.

Indeed, the ECJ has fought discrimination against (EU and TCN) migrants for decades, pioneering the idea that equality is a necessary precondition for inclusion and integration (Kamberaj, at 90).

The case of O.D. and Others offers the ECJ the opportunity to clarify the fundamental nature of the principle of equal access to benefits for TCN migrants, which so far has been relegated to an ‘ordinary legislative function’ (Muir, 2020, at 121). This would pursue not only a rhetorical function, but it would provide guidance amidst a very confusing “polycentric” adjudication practice (Kilpatrick, 2014).

Especially in Italy, national courts have suffered from a lack of uniform interpretation when adjudicating migrants’ equal treatment (also because of the ‘dual preliminarity’ controversy, Lazzerini 2020). And the ICC denounced this situation in its reference: “The sheer number of pending disputes is testament to the serious uncertainty concerning the meaning to be ascribed to EU law.”

Moreover, Italian norms in many parts contain discriminatory provisions against migrants, and a current proposal to reform family benefits features again discriminatory selection criteria, despite a pending Commission infringement on the matter.

The ECJ evaded its obligation to interpret Art. 34.2 once (in the case of UB, C-447/18). This time, it should state clearly that migrants’ equal access to benefits is a fundamental principle of the Union, sending a powerful message to the Italian Constitutional Court and the Italian lawmaker.

 

Conclusion

 

The preliminary reference in the case of O.D. and Others speaks of an alarming phenomenon. In Italy, TCN families in need have been denied equal access to social benefits for decades, and the childbirth allowance reached a low point in this respect: it is universally granted to all but to TCN migrants.

Against this background, the preliminary reference in the case of O.D. and Others offers an important opportunity. The ECJ has a long tradition of fighting discrimination and constitutionalizing equality. In the case of O.D. and Others, its ruling can acquire erga omnes effect thanks to the follow-up ICC judgment.

The EU Court should not miss this opportunity for stating out and loud that equality is a fundamental principle of the EU also when it comes to TCN migrants, which cannot be disposed of by the erratic will of the government of the day.

 

Barnard & Peers: chapter 26

JHA4: chapter I:6

Photo Credit: Guiseppe Milo, via Wikimedia Commons

Family reunion,the rights of the child and effective remedies: latest CJEU judgment

Professor Steve Peers, University of Essex

For parents of teenagers, it’s always later than you think, and time is forever slipping through your fingers. But imagine what it’s like for parents who can never live with their children, due to the arbitrary viciousness of immigration law. A first step unseen. A first word unheard. A school play unwitnessed. And even if the immigrant parent moves heaven and earth to comply with the conditions for family reunion in immigration law, it’s possible that just as the children might be able to join their parents, time runs out for their application because they come of age – leaving only the unbearable emptiness of a nest that was never full.

Family reunion for non-EU families in the EU is governed by the EU’s family reunion Directive, which provides for admission of children who are not at the age of majority. But what if an application is made before the child reaches that age, but is decided later?

Two years back, the Court of Justice decided such a case as regards an unaccompanied minor with refugee status, who turned 18 just after applying for asylum: the A and S judgment, discussed here. The Court ruled that as long as an asylum seeker applied for asylum before turning 18, the special rules in the Directive which provide for obligations to admit the parents of unaccompanied minor refugees still apply (assuming, of course, that refugee status was granted). However, that left open the question of what approach to take to other family reunion applications, where there is no such special rule, and in any event the date of an application for asylum would be irrelevant. (While the Directive does apply to refugee parents, it doesn’t logically follow from A and S that the date of their application for asylum should be decisive).

The recent judgment in BMM has addressed this issue – taking a humane approach to the issue of what happens when a child comes of age during the application process.

The basic EU rules on family reunion

The EU’s family reunion Directive sets minimum standards, so states can be more generous if they wish. It mainly concerns reunion of spouses and minor children with a non-EU sponsor; admission of further family members is optional in most cases. It does not apply to the UK, Ireland and Denmark. However, it will apply to family reunion of UK citizens in the EU (besides those living in Ireland and Denmark) after the post-Brexit transition period, when the UK is no longer covered by EU free movement law, unless (a) they are covered by the withdrawal agreement, if the sponsor moved before the end of the transition period (see discussion here), or (b) EU free movement law still applies, because the UK citizen is a family member of an EU citizen who has moved between Member States; or (c) national law only applies, because the UK citizen is a family member of an EU citizen who has not moved between Member States (a French citizen in France, for instance).

The standard rules in the Directive require that: the sponsor has a residence permit valid for at least one year, and has “reasonable prospects” of obtaining permanent residence; the family members must reside outside the territory when the application is made (although Member States can derogate from that rule); “public policy, public security or public health” are grounds for rejection; conditions relating to accommodation, sickness insurance and “stable and regular resources” may be imposed; Member States may require “integration measures”; and there can be a waiting period of two years of lawful stay of the sponsor before family reunion takes place.

There are also exclusions from the scope of the Directive. It does not apply at all to: asylum seekers; persons with temporary protection; persons with subsidiary protection on the basis of national or international law; and, as noted above, family members of EU citizens (whether they have moved within the EU or not). Implicitly it does not apply to irregular migrants, since by definition they do not have a residence permit with the prospect of long-term residence, until and unless Member States decide to regularise their status.  Member States can choose to extend the Directive to those categories of persons (except those covered by free movement law) if they wish. 

Member States can set lower standards than the Directive, where it allows for such derogations, although this is subject to detailed conditions. These derogations exist as regards: children over 12, who arrive separately from the rest of the family; minimum ages for the sponsor or spouse; children over 15; and a waiting period of three years.

The Court of Justice has ruled on the Directive several other times, as regards: its validity in light of human rights concerns (EP v Council); its application to dual EU/non-EU citizens (O and S); the sufficient resources condition (Chakroun and Khachab); the minimum age of spouses (Noorzia, discussed here); integration conditions (K and A, discussed here, and K); the application of the Directive by analogy to family reunion with “home State” EU citizens (C and A) and persons with subsidiary protection (K and B, discussed here); loss of a residence permit due to fraud which the family member was unaware of (YZ and others); documentation in refugee cases (E); the public policy exception (GS and VG); the definition of dependent family members of refugees (TB); and the consequences of a late decision by the administration (X).

As well as the special rules for refugee family reunion set out in the original Directive, subsequent EU legislation contains more favourable rules for the family reunion of other groups of non-EU citizens: holders of an EU Blue Card for highly-skilled workers (discussed here); intra-corporate transferees (discussed here); and researchers (discussed here). The proposal to amend the Blue Card law (discussed here) would enhance these rules further.

The judgment

The sponsor in the MBB case is a citizen of Guinea with refugee status – although the case concerns the general rules in the Directive, rather than the special rules on applications by refugees. Applications for family reunion with the sponsor’s three children were rejected, and the sponsor challenged those rejections in court. The first instance court refused to consider the legal challenges, on the grounds that the children were now grown up. On appeal, the appellate court decided to ask the CJEU questions about the interpretation of EU law in the circumstances, given the differences between the position of unaccompanied minor refugees in the AS case and the general rules in the Directive.

According to the CJEU, while the Directive left it to Member States to determine the age of majority as regards the general rules on applications (it’s set at 18 where the applicant is an unaccompanied minor refugee), it does not refer to national law as regards when to determine when that condition is satisfied. Member States should not have any discretion on the latter point, because EU law should have a uniform interpretation when it does not refer to national law, taking account of the context and objective of the legislation. The objective of this law is ‘to promote family reunification’, and it respects fundamental rights, including the right to family life and the rights of the child (to maintain a relationship with parents) in the EU Charter of Rights. So the Directive ‘must be interpreted and applied in the light of’ the Charter, including the best interests of the child.

If applications ‘timed out’ once a child became an adult, national authorities and courts might be tempted to run down the clock, ‘and could thus act in a way which would jeopardise the very rights of those minors to family reunification’, following the A and S judgment. Indeed, in this case, it took three years and nine months for the first instance court to rule; and ‘such processing times do not appear to be exceptional in Belgium’: the Belgian Government admitted that the average court waiting time is three years, and this case ‘had not been regarded as a priority by that court’ despite the ages of the children concerned. So using the date of the administrative decision would not be in accordance with the best interests of the child. Nor would applicants be treated equally, since the success of their application would be determined by how fast the administration or court decided the application.

Next, the Court ruled on a remedies point. Did the right to bring a legal challenge to a rejection, interpreted in light of the right to an effective remedy in the Charter, mean that a national court cannot simply dismiss a claim as inadmissible purely because a child ‘has reached majority in the course of the court proceedings’?

The Court ruled this out. In its view, the child still had an interest in proceedings, since the application had to take account of the age of the child at the time when the application was made. While there was no time limit for the court to give its ruling, and Member States have ‘some discretion’ as regards rules on legal challenges to rejections of an application for family reunion, Member States are still required to comply with the Charter right to an effective remedy before a tribunal. This meant that legal challenges must be ‘effective and real’. Therefore they ‘cannot be dismissed as inadmissible solely on the ground that the child concerned has reached majority in the course of the court proceedings’.

Comments

Both the substantive and procedural elements of the Court’s judgment give strong protection to family life. Its unqualified ruling that the age of the child when the application is made is decisive will guarantee that parents of teenagers cannot lose the right to family reunion purely because of national administrative or judicial tardiness. This compensates somewhat for the Court’s own decision in X, which failed to provide for an effective remedy (the automatic grant of a residence permit) in the event of a late decision on a family reunion application by the administration.

On that point, the Court’s insistence on effective remedies in the context of this Directive is relevant above and beyond the issue of timing out applications by children. The confirmation that the Charter applies to effective remedies in the context of family reunion is not surprising in light of other recent judgments (on asylum law and on visa applications, for instance), but it is always useful to put to rest any doubt on the issue. This principle has general application – so, for instance, strict time limits, or limitations on the scope of judicial review or the remedies which courts can order, could be challenged as a violation of the Charter, in any family reunion case within the scope of the Directive, not just those involving children. Again, the Court has reaffirmed its interpretation of EU law based on a rights-based reasoning, rather than the control-based approach taken by many Member States and the EU institutions during the supposed “migration crisis”.

More broadly, the Court’s reaffirmation of the importance of the rights of the child when interpreting the legislation could be relevant to interpreting other aspects of the family reunion law, as well as many other EU immigration and asylum laws: for instance, the returns Directive, the asylum procedures Directive, the reception conditions Directive, and the Dublin rules on responsibility for asylum seekers. (Note that conversely, EU criminal law legislation on child suspects’ rights – discussed here – does explicitly address this issue, setting out rules on this point similar to the Court’s family reunion judgments in its Article 2(3)).

Barnard & Peers: chapter 26

JHA law: chapter I:5, I:6

Photo credit: Ackah law

The effectiveness of the right to family reunion of refugees: An analysis of the K. & B. ruling of the CJEU

Mark Klaassen, Assistant professor at the Institute of Immigration Law at Leiden University

Introduction

For most EU Member States (the UK, Ireland and Denmark have opted out), family reunion between non-EU citizens residing on their territory and their non-EU citizen family members living abroad is governed by Directive 2003/86. This Directive includes a more favourable regime for refugees seeking family reunion, which Member States may limit to family relationships which predate entry to the Member State. These exceptions include the waiver of a number of conditions for family reunion: the optional derogation for those over 12; the conditions relating to accommodation, sickness insurance and “stable and regular resources”; and the waiting period. The rules on evidence of family relationships are also relaxed, in the event that documentary evidence is unavailable. Finally, the optional “integration measures” requirement can only be applied after family reunion, whether the family relationship existed before entry or not. 

However, Member States may limit the application of this more favourable regime as regards the waiver of the conditions relating to accommodation, sickness insurance and stable and regular resources if the sponsor or family members have “special links” with a non-EU country where family reunion is possible, or if the application for family reunification was lodged within a period of three months after refugee status has been granted. This latter competence is laid down in the last sub-paragraph of Article 12(1) of the Directive.

But how must the Member States deal with applications for family reunification by beneficiaries of international protection which are lodged after this three months period? This is essentially the question in Case C-380/17 K. & B., that was submitted to the Court of Justice of the EU (the Court) for a preliminary ruling by the Council of State – the Dutch court of highest instance in immigration matters.

In this blog I will first sketch the implementation of Article 12(1) of the Directive in the Netherlands. Then I will discuss the cases that have led to the preliminary reference. After that I will summarise the ruling of the Court. Finally I will discuss the implications of the ruling for the family reunification of refugees. Note that the judgment also confirmed the Court’s jurisdiction to interpret the Directive for the family reunion of persons with subsidiary protection in the Netherlands, even though they are excluded from the scope of the Directive, because the Netherlands has chosen to apply the Directive to them in the same way as refugees. I will not elaborate on the jurisdiction issue further.

Family reunification of refugees in the Netherlands

In the Netherlands there is a one-status system, meaning that no distinction is made between refugee status and subsidiary protection status. This has implications for the implementation of the Directive. Beneficiaries of subsidiary protection are excluded from the Directive. However, as no distinction between refugees and beneficiaries of subsidiary protection is made in Dutch asylum law, all beneficiaries of international protection are eligible for family reunification pursuant to the implementation of the Directive. From the moment that international protection is granted, the sponsor has three months to make the application for family reunification of family members that were left behind in the country of origin. In case the application is made within this three month period, no substantive requirements for family reunification are imposed, as is required by Article 12(1) Directive. Also, no administrative fee is charged for making the application.

When the application is made after the three months period has passed, the application is rejected. Only in very exceptional circumstances is an application lodged outside of the three months period accepted – even though there is no legal basis for that in Dutch law. In making the determination whether such special circumstances apply, the Dutch authorities neither take the best interests of the child (Article 5(5) Directive) nor the specific individual circumstances of the case (Article 17 Directive) into account. A sponsor with international protection status is eligible to submit a “regular” application for family reunification outside the three month period. In regular applications, the substantive requirements – which are based on Article 7(1) of the Directive – are fully applicable.

The applicants in K. and B.

Applicant K. is the Afghan mother of an unaccompanied minor in the Netherlands. The minor sponsor has been granted international protection in the Netherlands on 14 February 2012. As an unaccompanied minor, the legal guardian was assigned to the sponsor. The sponsor applied to be reunited with his mother on 27 November 2013. From the order of reference, it appears that his legal guardian did not inform the applicant of the possibility to apply for family reunion. The application was rejected because it was not made within the three month period after being granted international protection.

An appeal was lodged with the District Court of Zwolle, which ruled in favour of the applicant. Referring to the best interests of the child as laid down in Article 3(1) of the UN Convention on the Rights of the Child and the case law of the European Court of Human Rights on Article 8 ECHR (the right to private and family life), the District Court held that the Secretary was bound to make an individual assessment of the competing interests involved in the case. The Secretary appealed the decision of the District Court to the Council of State, which is the referring court in this case. In the order of reference to the Court, the Council of State blames the sponsor – who was fifteen years old on the moment the application was lodged – for not informing himself of the three months’ period in which the application for family reunification must be made. The Council of State deems that it was reasonable to attribute the lack of information provided by the legal guardian to the minor sponsor.

Applicant B. is the baby daughter of an Eritrean national who was granted international protection in the Netherlands on 23 September 2014. The sponsor applied to be reunited with his wife and baby daughter on 22 January 2015. The application was lodged one month after the three month period had elapsed. The applicant appealed the rejection of his application to the District Court of Amsterdam. His appeal was rejected on 24 June 2016, upon which he lodged a subsequent appeal to the Council of State. The reason for the late submission of the application was a misunderstanding between the sponsor and the Dutch Refugee Council, which has a formalised role in assisting beneficiaries of international protection in making an application for family reunification. He misinterpreted a conversation with the Dutch Refugee Council. In the order for reference to the Court, the Council of State attributes the misunderstanding to the applicant.

These two cases are no exceptions. In 2014 the Advisory Committee on Migrations Affairs – an independent Committee that advises the Dutch Government and Parliament on immigration law and policy – expressed the view that the absolute character of the three months’ period is problematic. The Committee held that it is important that beneficiaries of international protection are swiftly reunited with their family members, also in view of the integration in Dutch society. The Committee advised the Dutch government to proactively ask each beneficiary of international protection whether they want to apply for family reunion and to introduce a hardship clause for situations in which an application is made outside the three months’ period.

The ruling of the Court

The Court rules that the EU legislature has explicitly allowed the Member States to apply the conditions from Article 7(1) Directive to refugees who apply for family reunification after the time limit from Article 12(1) has elapsed (para 46). Based on that, the Member States are allowed not to process applications made after the three months’ period has elapsed under the more favourable rules for refugees but under the general rules instead (para. 47).

According to the Court, the EU legislature did not regulate on the procedure to be followed regarding out of time applications (para. 55). Therefore, the principle of procedural autonomy applies, which is limited by the general principles of equivalence and effectiveness (para. 56). The latter principle requires that the national procedure may not render the rights conferred by the Directive impossible in practice or excessively difficult. Concerning the application of the three month period, the Court finds that rejecting an application for not being made within the three month period does not per se render the exercise of the right to family reunification impossible in practice or excessively difficult when a fresh application can be lodged in which the conditions of Article 7(1) are applicable (para. 59). In this manner, the right to family reunification can still be safeguarded (para. 60). The Court notes that this is not the case in situations in which the late submission of the application is objectively excusable (para. 62).

In this regard, the Member States must fully inform the applicant of the consequences of rejecting the application for non-compliance with the three month period. Besides that, the Member State must inform the applicant how the right to family reunification can nevertheless be effectively realised (para. 63). The Court concludes by remarking that even though the Member States are allowed to impose the requirements of Article 7(1) Directive in case an application is lodged after the three months’ period has elapsed, the other provisions of the Chapter on family reunification of refugees still apply (para. 64-65).

Analysis: A pyrrhic victory for the Dutch government?

The ruling of the Court means that the distinction that is made in Dutch immigration law between the family reunification of beneficiaries of international protection and “regular” family reunification can be maintained. However, in the application of the “regular” family reunification regime, the fact that a sponsor has been granted international protection must be taken into account (para. 53). In the refugee family reunification procedure, there must be a codification of the requirement to not apply the three months’ period in cases in which it was objectively excusable that the application was lodged out of time.

This is the second ruling of the Court on family reunification of refugees in the Netherlands. In the A. & S. judgment (discussed here), the Court held that an unaccompanied minor who is considered a minor on the moment that he lodged the application for international protection has the right to family reunification with family members that were left behind in the country of origin. Essentially that case also considered the procedural autonomy of the Member States to regulate where the Directive does not provide for procedural rules. The Court held that to make the right to family reunification dependent on the moment on which the domestic authorities grant international protection would call the effectiveness of the protection provided for by the Directive into question (A. & S., para 55).

It is also in line with the interpretation of the Court with other provisions of the Directive. In Chakroun, the Court held that the competence of the Member State to require the sponsor to demonstrate stable, regular and sufficient resources may not be used in a manner which would undermine the effectiveness of the right to family reunification (Chakroun, para. 43). The Court confirmed this position in O., S. & L., in which the Court strongly emphasised the role of fundamental rights in determining the competence of the member states in imposing the requirement of stable, regular and sufficient resources (O., S. & L., para. 80). In that case, the Court held that “[i]t is for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned. (para. 81)”  

The K. & B. judgment has demonstrated that even when an application was made outside the three month period laid down in Article 12(1) Directive, the effectiveness of the right to family reunification of a person with international protection may not be undermined by the application of the conditions of Article 7(1) Directive. This conclusion might sound obvious, but nevertheless has far-reaching implications.

To what extent can it be expected from the applicants in this case to comply with the stable and regular sufficient resources requirement? In order to answer this question, it is interesting to take a look at the drafting history of the Directive. In the initial proposal of the European Commission, refugees were always exempted from the substantive conditions, as “[r]efugees and persons enjoying subsidiary protection, given the overriding reasons why they have had to flee their country of origin and cannot lead a normal family life, cannot be subjected to the same additional conditions without their right lead a family life being imperilled” COM/1999/638 final. Even though the EU’s qualification Directive gives them a right to seek employment, beneficiaries of international protection start with an enormous backlog on the labour market, so requiring them to comply with the requirement of stable and regular sufficient resources could undermine the effectiveness of the right to family reunification. In this context, the reasoning of the Court in O., S. & L. that “a balanced and reasonable assessment of all the interests in play” must be conducted, is of utmost importance.

It must be noted that this assessment is different from the balancing of interests under the ECtHR case law on Article 8 ECHR, as the Directive grants a subjective right to family reunification. The question which must be assessed it whether imposing the stable and regular sufficient resources requirement would undermine the effectiveness of the Directive. The question is not (as under the ECtHR case law) whether a fair balance has been struck between the individual interest and the interests of the state to control immigration.

Lastly, as noted above, Article 12(1) allows the Member States to impose the conditions of Article 7(1) in case an application is lodged after the three month period has elapsed. This does not include the requirement to comply with integration measures from Article 7(2) Directive. This means that refugees can never be subjected to the requirement to pass a pre-entry integration exam in the country of origin, also in cases in which the application is lodged outside the three month period.

Barnard & Peers: chapter 26

JHA4: chapter I:6

Photo credit: AP/Boris Grdanoski

Think of the children: the ECJ clarifies the status of non-EU parents of EU citizen children living in their own Member State

Professor Steve Peers

What immigration rights do non-EU citizens have under EU law? There are three main areas of EU law that address this issue: EU immigration and asylum law; EU treaties with non-EU countries; and EU free movement law. The latter area of law is focussed on EU citizens’ right to move between Member States, and so only covers non-EU citizens if they are family members of EU citizens who have moved to another Member State. Those rules also apply by analogy where an EU citizen with a non-EU family member has moved to another Member State, then moved back to that citizen’s home Member State. (These are known as Surinder Singh cases: see this discussion of the ECJ’s most recent ruling on such cases, from 2014).

But what if an EU citizen has a non-EU family member, but has never moved to another Member State? Such cases fall outside the scope of EU free movement law. They will therefore in principle fall solely within the scope of national law, unless either EU immigration and asylum law or EU treaties with non-EU countries apply (they usually will not). But in a limited number of cases, there is a fourth category of EU law which might apply to them: EU citizenship law.

This principle was first set out in the 2011 judgment in Ruiz Zambrano, which concerned Belgian children living in Belgium with two non-EU parents. The ECJ ruled that expelling the non-EU parents would in effect would result in the departure of the children from the EU, thereby risking the ‘genuine enjoyment of the substance’ of those children’s EU citizenship rights.

Subsequent ECJ case law (discussed here) made clear that this principle is apparently restricted to the non-EU parents of EU citizen children living in their home State. Cases very similar to Zambrano – two non-EU parents of an EU child – are rare, because Member States now rarely, if ever, confer nationality upon children simply because they are born on the territory. However, there are rather more cases where: a) a home-State EU citizen marries a non-EU citizen, b) their child gets home-State citizenship because one of her parents is a home-State citizen; and c) the parents’ relationship ends.

In those cases, Ruiz Zambrano still potentially applies, as long as the non-EU parent is the ‘primary carer’ for the home-State EU citizen child. In that case, removing this parent to a non-EU country would in effect force the EU citizen child to leave the EU as well.  But when exactly does the ‘primary carer’ test apply? The ECJ clarified this issue in today’s important judgment in Chavez-Vilchez and others.

Judgment

Chavez-Vilchez and others concerned a number of non-EU parents of Dutch children in the Netherlands, who sought to argue that they were primary carers of those children, and so entitled to residence in accordance with the Ruiz Zambrano judgment. The Dutch government argued that they could not automatically be considered primary carers if it was possible for the other parent, ie the Dutch citizen, to take care of the children:

…the mere fact that a third-country national parent undertakes the day-to–day care of the child and is the person on whom that child is in fact dependent, legally, financially or emotionally, even in part, does not permit the automatic conclusion that a child who is a Union citizen would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. The presence, in the territory of the Member State of which that child is a national or in the territory of the Union, as a whole, of the other parent, who is himself a Union citizen and is capable of caring for the child, is, according to the Netherlands Government, a significant factor in that assessment (para 66)

While the Court of Justice agreed that the non-EU parents could not automatically be considered as primary carers where the home state EU citizen child was dependent upon them, the Court’s approach was more open. It began by restating prior case law: the key issue was ‘who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent’ (para 68). It then reiterated, following Zambrano, that dependency was particularly significant (para 69). Then it added new detail on how to assess dependency:

…it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of that charter (para 70).

For the purposes of such an assessment, the fact that the other parent, a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium. (para 71; emphases added)

The Court went on to answer questions from the national court about the burden of proof in Zambrano cases, which were connected with the substantive test to be applied. The Dutch government had argued:

…the burden of proof of the existence of a right of residence under Article 20 TFEU lies on the applicants in the main proceedings. It is for them to demonstrate that, because of objective impediments that prevent the Union citizen parent from actually caring for the child, the child is dependent on the third-country national parent to such an extent that the consequence of refusing to grant that third-country national a right of residence would be that the child would be obliged, in practice, to leave the territory of the European Union (para 74).

Although the ECJ accepted that the burden of proof lay upon the non-EU parent (para 75), it also ruled that national authorities ‘must ensure that the application of national legislation on the burden of proof’ in such cases ‘does not undermine the effectiveness’ of EU citizenship rights (para 76). This meant that the authorities had to make ‘the necessary inquiries’ to find out where the EU citizen parent lived, ‘whether that parent is, or is not, actually able and willing to assume sole responsibility for the primary day-to-day care of the child’ and whether the EU citizen child was dependent upon the non-EU parent (para 77).

In effect, the Court ruled that while the non-EU citizen must make a prima facie case, national authorities share some of the burden to investigate some aspects of the case. Again, the substantive test applicable is less stringent than urged by the Dutch government.

Comments

Today’s judgment clarified a number of issues relating to Zambrano cases, following on from last year’s judgments in CS and Rendón Marín (discussed here) which clarified when non-EU Zambrano parents could be expelled for public policy reasons. While the 2016 judgments referred to the child’s best interests, age, situation and dependency (referring to case law of the European Court of Human Rights), today’s judgment also refers to ‘physical and emotional development’, ‘emotional ties’ to both parents, and the effect of separation on the child. All of these are factors relating to the child, not to the non-EU parent; but all of them nevertheless concern the child’s links with that parent.  

The Dutch government’s desired focus on the capability of the EU citizen parent takes a back seat to the child’s best interests, as further elaborated by the Court. This will protect more non-EU parents, but in a differential way. Oddly, the Court’s case law does not take express account of situations of joint custody, or the more general argument that the child’s best interest will usually be to maintain strong relationships with both parents (assuming they are not negligent or abusive).

Could it also be argued that the requirement of always seeking to identify a ‘primary carer’ is problematic from the point of view of gender equality?  Due to the division of labour relating to child care in practice, the Court’s rulings would classify more non-EU mothers than non-EU fathers as ‘Zambrano carers’; but the expulsion of those fathers will only increase the childcare demands on the EU citizen mother who remains, as well as disrupt the child’s right to maintain a relationship with his father. Of course, the presence of the parent who looks after a child day-to-day is essential; but children love the parent who kicks the ball as well as the parent who cooks the meal.

The procedural aspects of the Court’s judgment are interesting, but raise further questions: is there a right to appeal, to a decision within a reasonable time, to a lawyer, to legal aid? In last year’s judgments, the Court of Justice referred to concepts from EU free movement law and its relevant case law when discussing the substantive test for expelling Zambrano carers; but it made no such cross-references today. The long-term immigration status of the parent is also an open question, although Zambrano noted that there should be access to employment to make the residence rights of the parent effective.

Finally, a Brexit point: the draft EU position for negotiating acquired rights does not appear to cover Zambrano carers. From a technical point of view, this is logical because the case law concerns (from the UK’s perspective) non-EU parents of UK citizens who have not moved within the EU. So no free movement rights have been acquired; we are rather talking of EU citizenship rights which will necessarily be lost when the UK ceases to be a Member State, since citizenship of the EU is defined as deriving from the nationality of a Member State. But from a human point of view, any deterioration in legal status could damage or even shatter the family lives of the children concerned. Zambrano carers should therefore be protected ideally in the Brexit talks, or failing that by the UK unilaterally.


See also further reading on UK Zambrano case law by Charlotte O'Brien and Desmond Rutledge

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo credit: German embassy London

Don’t think of the children! CJEU approves automatic exclusions from family benefits in Case C-308/14 Commission v UK

Charlotte O'Brien, Senior Lecturer, York Law School 

The Court of Justice’s retreat from the zone of Member States’ welfare systems hastens. Having once suggested that citizenship is ‘destined to be our fundamental status’, and provides the basis for a ‘degree of financial solidarity’, the Court had established that EU nationals falling into temporary difficulties would be entitled to some amount of support from a host state, depending on how ‘deserving’ the claim seemed to be.

But the Court has shifted away from notions of citizenship, so there may never be such a thing as a reasonable burden. Having established that EU migrants claiming social benefits can in principle be subject to a right to reside test not applied to own nationals in Brey, the Court found in Dano that a case-by-case assessment where someone was deemed to have moved for the ‘sole’ purpose of claiming benefits was not necessary. This was expanded in Alimanovic and Garcia Nieto to suggest that jobseekers were not entitled to a case-by-case assessment either.  In Commission v UK we see the CJEU’s desires to accommodate the UK’s discriminatory tendencies rather usurp the applicable legal framework.

The key tensions at the heart of the case – the discriminatory effects of the right to reside test, and its application to family benefits – are glossed over in a brief judgment. The Brey and Dano principles are imported into Regulation 883/2004 (which concerns the coordination of social security in cross-border cases) and applied to family benefits, while the burden of proof is reversed so that a discriminating Member State is presumed to be acting lawfully if they brandish the ‘public finances’ trump card.  

The decision finds that the UK is entitled to apply the ‘right to reside’ test to claimants for Child Benefit and Child Tax Credit; UK nationals automatically fulfil the test, while EU national claimants must show that they fulfil the conditions of Article 7 of Directive 2004/38 (which sets out the main rules on EU citizens moving to another Member State). In short, they must be workers, or have retained worker status, or be the family members of EU national workers. This analysis addresses four issues that stand out in the judgment: (i) the extension of the ‘right to reside’ principle, in paragraph 44 of Brey, to override Article 4 in regulation 883/2004, and the implications for other benefits; (ii) the issue of direct versus indirect discrimination and the reversal of the burden of proof on the issue of justification; (iii) the failure to differentiate between different ‘types’ of economic inactivity, jettisoning proportionality, extinguishing EU citizenship, and ignoring the rights of the children; and (iv) the finding that the UK does not ‘systematically’ check EU nationals’ right to reside.    

(i) Distilling a fundamental principle from para 44 of Brey

 

Article 4 of Regulation 883/2004 states:

“Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.”

In Brey, the Court sidestepped this equal treatment requirement, by finding that the benefit at issue was social assistance. This was material to the lawfulness of the right to reside test – the questions were inextricably interlinked, and the nature of the benefit ‘must be examined in the context’ of the right to reside question. The right to reside test was a lawful means to avoid undue burdens on the ‘social assistance system’.

The classification of the benefit was important in Brey. But in Commission v UK classification is treated as irrelevant – and one sentence in Brey (there is ‘nothing to prevent, in principle, the granting of social benefits to Union citizens who are not economically active being made conditional upon those citizens meeting the necessary requirements for obtaining a legal right of residence in the host Member State’) is made to do a lot of legwork – finding that all benefits can be subject to a discriminatory right to reside test. Article 4 Regulation 883/2004 does not get a look in other than to state that it has not been infringed.   

 

The Court found that the Regulation deals with competence, not eligibility for benefits. But this is too simplistic. The Regulation does govern aspects of eligibility – stating that place of residence cannot be a deciding factor in many cases; stating that conditions as to insurance must be capable of being discharged by insurance in other Member States, and so on; and it provides in Article 4 a principle of equal treatment for persons subject to the Regulation. 

Family benefits are ‘pure’ social security. There is no basis for finding that they fall within the ‘social assistance’ exclusions of Directive 2004/38, or for finding that the primary law requirement of equal treatment in Article 18 TFEU should not apply. There is no specific provision in the Treaty or secondary law excluding Union citizens from equal treatment with regard to family benefits. They are squarely in the material scope of Regulation 883/2004, and so subject to the equal treatment provision therein. In this way the Regulation offers some protection to the children in migrating families, since they are typically subjects rather than agents of migration, and it has usually been accepted that they should not be penalised for changes in their parents’ work status.

Several provisions might therefore plausibly prevent the application of a right to reside test to Union citizens claiming a family benefit. But the Court’s reasoning is short and simple – it quotes the Brey statement. One sentence in a judgment that dealt with a different category of benefits, where the material part of that decision is not being followed, is arguably of insufficient legal weight to displace a presumption of equal treatment, in the absence of a Treaty provision or express secondary law provision to do the displacing.

The end, contradictory, result, is that the limitations of Directive 2004/38 are independent of the provisions of Regulation 883/2004, so the Directive can adopt a wider definition of social assistance, but the equal treatment provision in Regulation 883/2004 is bound by limitations written into Directive 2004/38 – limitations intended for different benefits. This judgment imports the personal scope of Directive 2004/38 into Regulation 883/2004. But that Regulation has a deliberately wider personal scope. The ECJ made clear that the Regulation’s predecessor, Regulation 1408/71, was not confined to people in employment in Dodl and Oberhollenzer. Regulation 883/2004, far from narrowing the scope of Regulation 1408/71, was enacted to “replace and extend” that instrument. Recital 42 refers explicitly to ‘the new category of non-active persons, to whom this Regulation has been extended’. Here, the Court’s finding that such persons will not be left without a competent state, just without benefit eligibility, is a little simplistic. Extrapolating that logic, domestic rules may well exclude such people (falling into Article 11 (3)(e)) from the whole material scope of the Regulation – in which case, for what is that State competent, and why have a category 11(3)(e) at all, other than to point to whose rules of exclusion apply?  

The implications of the judgment could have ramifications throughout the EU, for States that have not yet adopted such tests, and for States that have so far limited them to benefits with an element of social assistance, who might conceivably roll them out further. It could steepen the welfare cliff edge for those who have been working but who fall out of work (or have been a family member of a worker and cease to be so). It could result in excluding a number of workers who cannot adduce sufficient evidence that their activities meet nationally-imposed definitions of work – e.g. meeting hours or earnings thresholds continually over a prolonged period of time. And it could result in deepening child poverty for vulnerable children, whose welfare might otherwise have received some protection from the coordination scheme. It endorses ‘hand-to-mouth’ citizenship.

(ii) Direct versus indirect discrimination and reversing the burden of proof

The Commission claimed that the rule created direct discrimination but the Court did not engage with that claim. It simply reiterated the Brey point, that there is nothing to prevent right to reside tests, then added that where such tests are adopted a Member State ‘commits indirect discrimination’.

But the condition is directly discriminatory. Only EU nationals must provide evidence of a right to reside. Only EU nationals can be excluded from entitlement due to economic inactivity. The application of an extra condition to non-nationals was recognised as being directly discriminatory in Grzelczyk.

The Court slightly confuses things by pointing out that a ‘residence condition’ is indirectly discriminatory. But the right to reside test is not a residence condition. It is a requirement to be economically active and is only applied to EU nationals.

On finding instead that indirect discrimination was at issue, the Court turned to the question of justification.

Typically, where a potential infringement has been made out, it is up to the infringer to demonstrate that their actions are justified (see O’Flynn and Groener). The Member State must show that they are pursuing a legitimate aim, that the means are proportionate and appropriate, and do not go beyond what is necessary.   

The justification requirement was rather swiftly dealt with, as the Court shied away from the judicial kryptonite that is the mention of public finances. In spite of mounting evidence that fears of benefit tourism are misplaced, no evidence of a threat to public finances was required for this aim to be accepted as legitimate. The Court did not ask whether the test itself was proportionate or appropriate. Instead it asked whether the checks conducted as part of the test were proportionate and appropriate.

And here it shifts the burden of proof to the Commission. The Court summarised the information provided by the UK noting that claimants must provide a ‘set of data’, and further checks are carried out ‘only in specific cases’ and ‘only in the event of doubt’.

But the judgment does not tell us how much data is required of claimants, how many ‘specific’ cases lead to further checks, or how many cases involve ‘doubt’; the repeated use of the word ‘only’ without these statistics tells us nothing about scale or proportionality. 

Instead it is up to the Commission to show that  ‘such checking does not satisfy the conditions of proportionality, that it is not appropriate for securing the attainment of the objective of protecting public finances or that it goes beyond what is necessary to attain that objective.’

(iv) Dismissing the rest of Brey: jettisoning proportionality, extinguishing EU citizenship, and ignoring the children

Given the reliance placed upon para 44 in Brey, para 45 is conspicuous by its absence; it added ‘However, it is important that the requirements for obtaining that right of residence… are themselves consistent with EU law’.

And in Brey the Court found that EU law precluded the automatic barring of economically inactive persons from entitlement to benefits without assessment of their individual circumstances. Relevant circumstances included the duration of residence, amount of income, amount and duration of benefit claimed, etc.

This is the proportionality route to entitlement – where Union citizenship in theory offers a safety net for those who fall between the categories in Directive 2004/38. It allows for some differentiation based on circumstances, recognising that the label of ‘economic inactivity’ can mask a wide range of residence, economic and integration histories, and benefit claims may represent a wide range of claims of varying degrees of reasonableness.

In recent cases we have seen the Court retreat from this approach, finding that a case-by-case assessment was not necessary where the claimant at issue might be a benefit tourist, or where she was a jobseeker. Here, this aspect of Brey goes unmentioned, other than when summarising the Commission’s argument that the test is ‘an automatic mechanism that systematically and ineluctably bars claimants’ from benefits.

The Court did not engage with this argument. It appeared to consider automatic exclusion inherently lawful: ‘As the United Kingdom submitted at the hearing, legality of the claimant’s residence in its territory is a substantive condition which economically inactive persons must meet in order to be eligible for the social benefits at issue’.

The absence of an alternative ground for eligibility for those deemed economically inactive is striking in EU law terms, (even if it is rather old news in the UK), since it marks a departure from the ‘real link’ case law, whereby nearly-blanket rules had to have some proportionality-based exceptions. And it sends any Union citizenship-based right to equal treatment (Article 18 TFEU) up in smoke. It permits treating all ‘economically inactive’ migrants as equally worthless, regardless of their degree of integration into society, regardless of their, or their family’s employment history, and regardless of the circumstances that have led to a loss of worker status. And it permits the total erasure of children’s rights from the factors to be considered, even though it is their rights and their welfare being contested – Child Benefit and Child Tax Credit are specifically designed to address costs of protecting child welfare. In a report analysing recent welfare changes, the UN Committee on the Rights of the Child has already expressed ‘serious concerns’ about the UK’s imposition of cuts to tax credits ‘regardless of the needs of the households’ concerned. The right to reside test goes further, being not merely a cut but a disentitlement for affected children, even if they were born in the UK and have no significant links with their State of nationality.   

The Brey formulation treated as so pivotal, permitting right to reside tests, had itself rested on a series of EU citizenship cases, which established and developed the ‘real link’ concept. Para 44 cited Martinez Sala, Grzelczyk, Trojani, Bidar and Förster, all of which precluded the use of blanket rules, and all of which required some assessment of circumstances of the case.

So the reliance upon the Brey formulation becomes even less persuasive, in light of the departure from all of the authorities upon which that formulation rests. Cases establishing the rights attendant upon EU citizenship cannot credibly be used to make those rights and that status disappear.   

(v) The systematic verification obfuscation

Article 14(2) of Directive 2004/38 allows Member States to verify whether the residence conditions set out in that directive are met ‘in specific cases where there is a reasonable doubt’, adding that such verification ‘shall not be carried out systematically’.

As noted above, the Court found that the checking done by the UK did not amount to systematic verification. But this finding would have been helped by some analysis of Article 14(2) and the distinction between permitted checks and prohibited verification.

The government’s own announcements suggest there is something systematic going on. The government announced in 2014 that restrictions to benefits for EU nationals would be ‘augmented by additional HMRC compliance checks to improve detection of when EEA migrants cease to be entitled to these benefits. The checks will apply to all EEA migrant claims’. The Budget made clear that these checks would be applied to ‘new and existing awards’. In responding to a Freedom of Information request, the government confirmed that it had been carrying out ‘increased compliance checks’, issuing letters ‘targeted at EU/EEA Nationals’ requesting further information and/or evidence to check that claimants met entitlement conditions for Child benefit and Child Tax Credit.

Moreover, claimants face routine requirements for ‘documentary evidence’ of entitlement, and a ‘wide range of checks and an annual review’ in all cases of cross-border claims. It is difficult to know what would infringe Article 14(2).

To summarise, this judgment seems driven by the teleology noted in the Advocate General’s Opinion – to avoid offending the UK government at all costs. The difficulty is that the legal framework does not very easily bend to the desired outcome. The Court has seized upon one sentence in a previous judgment, and clung to it as providing all the necessary authority to override any conflicting legal principle. The Court avoids dwelling too much on the relative weight of legal principles, by simply skipping the analysis. Article 4 of Regulation 883/2004; Article 18 TFEU; the prohibition of direct, as opposed to indirect discrimination; the appropriateness of the right to reside test; the effects of Brey with regard to proportionality; EU citizenship; Article 14(2) of Directive 2004/38… they get little, if any, attention. Primary law and secondary law are presumptively displaced in the face of a fragment of a judgment that the Court is choosing not to follow – a fragment taken out of context, and pitted against the authorities upon which it is based.

The Court has missed an opportunity to engage in a principled and honest review of the directly discriminatory nature of tests that impose conditions of economic activity on EU nationals but not on own nationals. That in itself is not surprising, since the legal fiction that such tests are indirectly discriminatory seems to be the pragmatic acceptance of a politically necessity. But in allowing such tests to seep beyond protection of the ‘social assistance system’ and to govern eligibility for all benefits related to ‘public finances’, in dismissing the equal treatment provisions in primary and secondary law, in importing conditions to curb the personal scope of Regulation 883/2004, in reversing the burden of proof for justification, and deferring to the public finances trump card, the Court has divined from recent case law a higher, fundamental principle of exclusion, and a default of discrimination. The children of economically inactive EU nationals are now, in EU terms, officially irrelevant, since right to reside tests that exclude them wholesale from entitlement get the green light, with no requirements for citizenship, real links or proportionality to play a part. This may seem an inevitable result of the prevailing political wind, but a little more discipline would have been welcome, to address the legal bases that were engaged, and to keep the judgment more carefully confined. Instead what we have is light on authority, but sweeping in its potential reach and detrimental effects upon Union citizenship and on EU national children.     

Barnard & Peers: chapter 13

Photo credit: www.telegraph.com