Foreign policy sanctions and criminal law harmonisation

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Pierre Blaché, via Wikicommons

*This blog post draws upon and updates research for the 5th edition of EU Justice and Home Affairs Law (OUP, 2023)

Late last year, the EU Member States and the European Parliament agreed upon a Directive to harmonise criminal law as regards EU foreign policy sanctions.  (Update: the Directive was officially adopted in April 2024, and published in the EU Official Journal afterwards) This followed barely a year after the EU Council adopted a decision to extend EU criminal law competence to cover those sanctions. This blog post updates a previous post that discussed both the 2022 decision on competence and the initial Commission proposal for a Directive that has now been agreed in principle.

The Decision extending competence

As noted in the previous post – and discussed in more detail there – the 2022 Decision extending EU competence was the first use of the EU’s power to extend the list of crimes which it had competence to harmonise, as set out in Article 83 of the Treaty on the Functioning of the European Union (TFEU). The previous list of crimes was: ‘terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime’.

That competence involves not only the ‘definition of criminal offences’ but also ‘sanctions’, ie the length of jail terms and/or other sanctions that can be imposed as part of the criminal law. However, these are ‘minimum rules’ – meaning that Member States can add to them as part of their criminal law.

Since the Treaty of Lisbon entered into force in 2009, the EU has adopted Directives regarding most of the ten Eurocrimes, in most cases replacing older forms of EU law adopted before the Treaty of Lisbon entered into force. The exceptions are arms trafficking, corruption, and organized crime – although there are pre-Lisbon EU laws concerning the latter two crimes, a proposal from 2023 to update the law regarding corruption, and other EU legislation concerning firearms that falls short of adopting criminal sanctions for arms trafficking. In any event, as we shall see, some arms trafficking will fall within the scope of the newly agreed EU Directive on criminal law and EU foreign policy sanctions.

The legal context: EU foreign policy sanctions

As discussed in more detail in the previous blog post, there is a body of EU law already in this field, based on the EU’s powers to adopt Decisions on foreign policy sanctions (along with other foreign policy issues) on the basis of Article 29 of the Treaty of European Union (TEU), alongside Article 215 TFEU, which provides for most of those foreign policy sanctions to be paralleled in the form of ordinary EU law (in practice, Regulations).

Although Article 215 provides for qualified majority voting of Member States in the Council, the effective rule is actually unanimity, for that is the rule which applies in the foreign policy provisions of the TEU (with marginal exceptions) to the adoption of the EU foreign policy measures which the Article 215 legislation gives effect to.  The Commission proposed a few years ago to drop unanimity here, but Member States didn’t bite. (They would have to agree unanimously to change the voting rule).

Over the years, there have been a lot of EU foreign policy sanctions and a lot of litigation – mostly direct challenges to the validity of the sanctions measures by the persons or companies (or even the States) concerned by them in the EU General Court. That Court’s judgments can be appealed to the CJEU; and national courts have occasionally asked the CJEU about the interpretation or validity of sanctions decisions too. (Although in general the CJEU has no jurisdiction over EU foreign policy measures – an exception which the Court has been slowly eroding for awhile – as an exception to the exception, the CJEU has its normal jurisdiction over foreign policy sanctions: see Article 275 TFEU).

The details of the Decision

A key point about the Decision extending EU competence is that it applies only to the breach of EU foreign policy sanctions. So the Decision does not give the EU power to harmonize criminal law as regards the breach of purely national foreign policy sanctions. The recently agreed Directive respects this distinction, applying only to EU sanctions.

However, the competence – and the recently agreed Directive – are not limited to breach of EU foreign policy sanctions relating to the Russian invasion of Ukraine, even though that invasion was the reason why the Decision and the Directive were adopted and agreed. In fact, the Commission proposal for the Decision noted that the EU has forty sanctions regimes, applying not only to countries but also ‘targeting proliferation and use of chemical weapons, cyberattacks, human rights violations and terrorism’. (For more details, see the Council website, especially its sanctions map). The anti-terrorism sanctions have been around for awhile, attracting high profile litigation such as cases involving Mr Kadi or Hamas; the human rights sanctions are fairly new, but will sometimes cross over with other sanctions – see, for instance, the sanctions against Putin’s erstwhile allies, the Wagner Group, for human rights breaches (along with links to other EU sanction measures).

In terms of the type of sanctions covered, the preamble to the Decision, as well as the recently agreed Directive, also makes clear that this is broad, applying not only to economic sanctions such as restrictions on trade or financial relations, but to bans on entry into the territory (which are also already given effect to by listing the sanctioned people in the Schengen Information System) and to arms embargoes. 

The agreed Directive

Basic rules

The recently agreed Directive has similarities to other Directives in this area – see, for instance, the Directive on harmonization of criminal law as regards terrorism. But there are also some new elements compared to other Directives; and in any event, it is the EU’s first foray into adopting criminal law relating to EU foreign policy sanctions.

It should be stressed that (as the preamble to the Decision confirms) the Directive will not make breaches of EU foreign policy sanctions criminal for the first time in most Member States. Just as with issues like terrorism and drug trafficking, these were already crimes in most national laws before EU law came along. But the details of the national laws probably differed more before the EU got involved; the point of the EU’s involvement is to harmonize the national laws somewhat. 

Member States will have to apply the Directive one year after its formal adoption (update: the deadline in the published Directive is 20 May 2025). This is longer than the six months proposed by the Commission, but less than the two year deadline usually applicable to Member States applying Directives.  

As noted already, just like the Decision on competence, the Directive will not be limited just to sanctions against Russia, but will apply to EU foreign policy sanctions across the board.

Denmark has an opt out of EU criminal law adopted after the Treaty of Lisbon, while Ireland opted in.

Definition of crimes

The agreed Directive will require Member States to criminalize nine types of breach of EU sanctions, which can be summarised as: making funds available to sanctioned persons; failing to freeze funds of sanctioned persons; enabling the entry or transit of a person covered by an entry ban deriving from EU sanctions (in effect, an immigration law offence that might overlap with the pre-existing EU law on facilitation of illegal entry and residence – itself subject to a recent proposed replacement); entering into transactions with sanctioned entities; trading in goods or services covered by EU sanctions; providing financial services despite an EU law sanction; providing other services banned by sanctions law; circumvention of sanctions; or abusing exceptions to the sanctions laws.

Member States will have an option (not in the Commission proposal) to exempt from criminalisation breaches involving sums less than €10k, although where multiple such minor breaches are linked, Member States must accumulate them so that they might reach the €10k threshold that way. (This threshold does not apply to entry bans, presumably because a financial threshold is irrelevant)

In every case, an intentional breach will have to be criminalized; and in one case (trade in arms or dual use goods subject to sanctions), ‘serious negligence’ resulting in the breach will have to be criminalized too. The Commission had proposed that ‘serious negligence’ should be criminalised in most cases.   

There is a novel clause on the position of lawyers advising those accused of sanctions breaches, which differs somewhat from the Commission’s proposal:

Nothing in paragraph 1 shall be understood as imposing an obligation on legal professionals to report information that they receive from, or obtain on, one of their clients, in the course of ascertaining the legal position of their client, or performing the task of defending or representing that client in, or concerning, judicial proceedings, including providing advice on instituting or avoiding such proceedings

There is also an exemption for goods or services provided for persons in need or humanitarian aid, although usually EU sanctions law has its own exceptions for those cases anyway.

Inchoate offences of incitement and (in most cases) attempts are also criminalized, as is aiding and abetting.

Penalties

Member States will have to provide for a maximum possible penalty of at least five years for most of the main offences (not the inchoate offences), and one year for most of the rest of the main offences – subject to a threshold of €100,000 being involved (which can again be satisfied by a linked series of offences). No financial threshold will apply in two cases: breaches of entry bans and trade in sanctioned arms or dual use goods. Furthermore, a three year maximum possible penalty applies to breaches of entry bans.

More generally, as regards the commission of any of the offences defined by the Directive, Member States will be obliged to provide for additional penalties, such as fines, withdrawal of permits, and even (a novelty for EU criminal law) a temporary ban on running for office.

Legal persons are subject to liability, too, and must be subject to penalties such as shutting down the business or withdrawal of its licences. This is a longer list than usually provided for in EU criminal law Directives. The Directive will go further than usual in specifying the amount of possible fines, including basing them on annual turnover (a method previously applied in non-criminal areas of EU law, such as competition law and the GDPR).

Criminal liability must be aggravated in certain cases (such as organized crime, breach of duty by a public official or a professional, obstruction of justice, or prior convictions in this field), and mitigated in others (where the offender ‘flips’ on his or her criminal associates).

Other provisions

Criminal jurisdiction would apply, as usual under EU criminal law Directives, to acts committed on the territory, on a ship or aircraft with a national flag, or by nationals. Member States will have an option to apply liability to habitual residents.

Unusually, there will be rules on limitation periods, ie when Member States would be out of time to bring a prosecution or enforce a sentence. In most cases the limitation period would be five years, with a possibility for derogation to at least three years where the period can be interrupted by specified acts. Previously Member States have only agreed to regulate this issue via EU law as regards fraud against the EU budget (although the agreed Directive on environmental crime contains limitation rules, and the proposal on violence against women would also address this point).

Finally, there would be links to other EU law (besides, obviously, the sanctions laws themselves). The proposal would link up with EU criminal law on money laundering and confiscation (the latter now also being amended), plus there is a novel link to the EU legislation on whistleblowers: that law must also apply to protect those in a company or organization who tip off the authorities about breaches of sanctions. Conversely, there is no proposed amendment of the law on the European Arrest Warrant – even though breach of EU foreign policy sanctions is not on the list of crimes where the dual criminality condition for extradition must be waived. However, prosecution or sentences for sanctions breaches will sometimes fall within areas where dual criminality has to be waived (like terrorism or organized crime); and the dual criminality condition is more likely to be met as a result of the harmonization Directive anyway (it may even be met already, simply by virtue of the foreign policy sanctions measures themselves). 

Comments

It is hard to assess the likely impact of the Directive, for several reasons.

First of all, it is difficult to see what impact the Directive will have in practice without more detail on what changes would be made to national law as a consequence of its adoption. As noted already, while the Directive will bring about some harmonisation, Member States already have some criminal laws on the books in this field.

Secondly, a key issue with criminal law – just as with non-criminal forms of regulation of conduct – is that its effectiveness depends upon the resources and expertise necessary to investigate and bring prosecutions. On this point, the prospect of extending competence to the European Public Prosecutor’s Office (EPPO) to include breaches of EU foreign policy sanctions was raised by the German and French justice ministers. This would be important but has not been raised again since the Directive was proposed. (Extensions of EPPO competence need unanimous agreement of Member States, although some Member States have opted out of the EPPO; the Commission’s proposal to extend its competence to terrorism has not been agreed so far).

An extension of EU competence might be seen as an EU power-grab, but it is notable that it is an exception: over fourteen years after the Lisbon Treaty came into force, it is the only such extension of competence to date. By contrast, as noted above, Member States have not yet agreed an earlier proposal to extend the list of Eurocrimes to cover hate speech and hate crimes, or agreed the proposal to drop unanimous voting for some foreign policy measures; nor have they agreed to drop unanimity in a number of other areas which the Commission proposed years ago.  

It is striking to see some novel points (for EU criminal law) in this Directive: the specific rule on lawyers; the penalty of a ban on running for office (obviously relevant because politicians might be tempted to, and be in a position to, breach the sanctions); the more detailed regulation of financial penalties a la other areas of (non-criminal) EU law; the obstruction of justice point; and the link with the whistleblowers law. It is only the second time that the EU has agreed to regulate limitation periods (although the revised environmental crime directive, also including similar provisions, was agreed essentially simultaneously).

It is also significant to see the singling out of arms trade in breach of sanctions for stricter treatment in several respects, given the EU’s reluctance to regulate this issue as a Eurocrime to date. In the context of foreign policy sanctions, it makes sense to treat the arms trade more seriously, given its more direct contribution to the death and injury which the EU sanctions aim to end.

The extension of competence is also best understood as part of the EU’s response to the Russian invasion of Ukraine – which has also prompted developments as regards the start (in principle) of accession negotiations, the use of EU defence powers, and the first-ever use of the long-dormant temporary protection Directive. By itself, the extension of EU competence and the use of those criminal law powers will not end the invasion – and, as noted already, the agreed Directive applies to other EU sanctions too. Nor does it address the criticism that that those sanctions are too little and too late. But it may make some contribution to the effective implementation of those sanctions which have been established to oppose the invasion, and in any event it sends a political message that the EU is stepping up their enforcement.

Lock ‘em up: the proposal to amend the EU’s Returns Directive

Steve Peers, Professor of Law, University of Essex

One of the key EU laws regulating migration is the Returns Directive, now nearly ten years old, which regulates the main aspects of irregular migration by non-EU citizens. It requires Member States in principle to issue a return decision to every non-EU citizen not authorised to be on their territory, and to enforce that decision by removing the person concerned. In some cases, irregular migrants should be given a period for voluntary departure, so they won’t be subject to forced removal. Member States are required to issue entry bans to many of those subject to a return decision, but must provide for basic remedies to challenge expulsion. There are also rules on the grounds for detention of irregular migrants and their conditions during detention.

When it was adopted, NGOs supporting migrants believed that the Directive set an inexcusably low standard. However, in practice the CJEU has interpreted the Directive more liberally than some expected. I discussed this in detail in a paper published in 2015, and there have been several more CJEU judgments interpreting the Directive since then: Celaj (discussed here), Affum, Ouhrami, Gnandi and KA. For instance, the case law limits the use of the ordinary criminal law to jail irregular migrants, requiring Member States to use the administrative detention rules in the Directive in most cases. The jurisprudence also establishes a limited right to a hearing for irregular migrants (discussed here), and in some extreme cases provides for a basis to prevent expulsion of irregular migrants, and secure their basic rights to health care in the meantime (as discussed here).

The case law has been sufficiently liberal that in light of the perceived refugee ‘crisis’ of the last three years, it’s the EU Commission and Member States who are now concerned about the law, because in their view it is not stringent enough. This approach was set out in an ‘action plan’ and a recommendation issued by the Commission in 2017, as well as a revised Returns Handbook. They represented a change of tone from the 2014 Commission report on the implementation of the Directive, discussed here.

In 2014, the Commission urged Member States to apply the Directive generously, while in 2017 it recommended that they apply it as strictly as possible. But there are limits to the latter strategy without amending the legislation to lower standards, and today the Commission did just that, tabling a proposal to amend the Directive. To become law, it must still be agreed by the European Parliament and the Council (Member States’ interior ministers). It forms one of a number of measures proposed or adopted in recent years to strengthen migration control in light of the perceived crisis, including changes to the EU’s Frontex border agency (discussed here), and greater use of the EU’s Schengen Information System to enforce entry bans and expulsion orders (the agreed text is here).  Another proposal to give further powers to Frontex – including to assist more with expulsions – was also released today.

The UK, Ireland and Denmark opt out of this Directive – although it will apply to UK citizens in the participating Member States after Brexit, in the event that they are irregular migrants.

The new proposal

The first change in the proposal is to define ‘risk of absconding’. The effect of such a definition is to make it easier to refuse a prospect of voluntary departure, and correspondingly easier to justify detention. Reducing the number of people given the chance of voluntary departure will in turn increase the number of those subject to an entry ban.   

The list of cases which might constitute a risk of absconding is long (there are sixteen factors listed) and non-exhaustive (‘at least’). Some of the grounds are very broad (‘illegal entry’). Member States will have to apply these criteria on a case-by-case basis, but four of the grounds create a rebuttable presumption: using false documents et al; opposing expulsion violently or fraudulently; not complying with a measure like a reporting requirement; or violating an entry ban.

There’s a new obligation for irregular migrants to cooperate with the authorities, which reflects CJEU case law such as KA. The proposal does not, however, add the right to a hearing expressly into the Directive. Member States have a new obligation to issue a return decision as soon as a migrant loses a right to a legal stay, or an asylum seeker’s application is turned down at first instance. In theory this just repeats the underlying obligation to issue a return decision to all irregular migrants, but the Commission states that not all Member States do this. The issue of a return decision after a first-instance refusal of an asylum application takes account of the Court’s judgment in Gnandi: asylum-seekers cannot be regarded as irregular migrants until a refusal of their application at that stage. The implications of this for appeals are discussed further below.

Voluntary departure is tightened up. First of all, Member States need no longer give a seven-day minimum of time for an irregular migrant to depart. Secondly, the three cases where Member States can opt to refuse to give the irregular migrant a chance to leave voluntarily – risk of absconding, manifestly unfounded or fraudulent application for legal stay, and risk to public policy, public security and public health – are replaced by an obligation to refuse the chance of a voluntary departure in such cases. As noted above, the effect of this change is bolstered by including a wide definition of what might be considered as a risk of absconding. Although the CJEU has narrowly interpreted the exception for public policy, et al, as discussed here, this matters less now that the ‘risk of absconding’ ground is widely defined.

There’s a new obligation to try to confirm the identity of the irregular migrant who doesn’t have a travel document, and also to obtain such a document. The thinking is presumably that this should facilitate the expulsion process. Non-EU countries sometimes insist on such documentation before readmission, and as the Commission notes, its proposal is consistent with separate recent proposals to amend the EU’s visa laws (discussed here) to punish non-EU countries for non-cooperation.

Next, there’s a change to the rules on entry bans. Member States may impose an entry ban on an irregular migrant without making a return decision, if they detect the irregular migrant on his or her way out of the EU. This would not be an expulsion measure, but a means of trying to prevent the person concerned from coming back in future. Imposing an entry ban would only apply in such cases ‘where justified on the basis of the specific circumstances of the individual case and taking into account the principle of proportionality.‘

As noted above, there’s also an implied change to the rules on entry bans too. Since an entry ban must be imposed when an irregular migrant is refused the possibility of voluntary departure (subject to exceptions in individual cases), narrowing down the cases where voluntary departure is possible will have the knock-on effect that more entry bans are issued.  

Next, there’s a new obligation to set up a ‘return management system’, comparable to Member States’ obligations relating to border control and asylum. This will have no direct impact upon irregular migrants.

There are several changes to the rules on remedies. First, any remedy must be before a judicial authority, not an administrative authority. This implicitly takes account of recent CJEU case law on appeals against refusals to issue a visa (El-Hassani), where the Court said that the EU Charter of Rights requires judicial control of immigration decisions.

Next, a new clause states that failed asylum seekers have only one instance of appeal against a return decision, if they have already had effective judicial review within the asylum process. This transposes the recent Court judgment in Gnandi. A further new clause, also taking account of CJEU case law, states that where the irregular migrant has concerns about refoulement (being sent to an unsafe country), at last the first level of appeal must have suspensory effect, ie stopping removal from the country. The irregular migrant can ask for suspensory effect in the event of a further appeal, but the national court must rule on that request within 48 hours. Furthermore, these possibilities don’t exist where there have already been proceedings concerning asylum or legal migration status, unless there are new issues in the case. Finally, failed asylum seekers will have only five days to appeal a return decision.

The proposal then moves on to detention. There will now be three grounds for detaining irregular migrants, rather than two; and anyway this list will become non-exhaustive (the word ‘only’ will be deleted). The first ground – risk of absconding – will be broadly defined, as we have already seen. The second ground, which was already broadly defined, remains ‘avoids or hampers the preparation of return or the removal process’. The new ground is where the irregular migrant ‘poses a risk to public policy, public security or national security.’ This new ground matches one of the grounds to detain asylum seekers in EU asylum legislation, which the CJEU has interpreted narrowly (as discussed here); but this hardly matters when the other two grounds for detention are broadly defined, and the whole list is non-exhaustive.

Another change relates to time limits: Member States’ maximum time for detention must be at least three months. This will not mean that all irregular migrants must be detained for that long, only that this must be a possibility on the books as a maximum period of detention. The other current rules on detention time limits – six months as the normal time limit, a further twelve months as a possibility in special circumstances – are retained.

Finally, a new clause sets out special rules for failed asylum seekers at border posts, effectively derogating from some key standards in the Directive. They must be given a standard ‘tick-box’ form setting out the return decision, rather than a reasoned explanation. In principle there’s no chance for voluntary departure, except where the migrant holds a valid travel document (handed over to the authorities) and cooperates fully. Such migrants will have only 48 hours to appeal a return decision, and suspensive effect only applies where there are significant new findings or there was no effective judicial review already. Detention is apparently always justified, with a four-month time limit; but then the proposal provides for the regular time limits to be applied on top of this, if return is not possible.

Comments

This proposal is entirely concerned with facilitating the expulsion of irregular migrants, and detaining them to that end – in addition to imposing entry bans to make sure they do not return. The narrower possibilities to obtain a period of voluntary departure will mean surprise knocks at the door, detention time and forced removal for more irregular migrants. More legal challenges will be fast-tracked, with the time limits in this proposal arguably below the standards set by CJEU case law (see the Diouf judgment). More migrants will be detained, and the Member States with the most generous approach to detention time limits will have to be more stringent.

While the proposal does not directly affect the case law that limits Member States’ use of criminal law to detain irregular migrants, it will to some extent circumvent the limits in that case law indirectly, by giving Member States more powers to detain irregular migrants in the context of administrative law instead. Note, however, that the rules on detention conditions would not be changed; and the continued requirement to channel immigration detention largely away from the criminal law process should prevent the family separation we have seen in recent months in the USA, which results from applying criminal law detention to irregular migrants who are parents.

Will the proposal impact upon the declining rates of expulsion? (45% in 2016 and 36% in 2017, according to the Commission) It’s hard to tell, because there’s no proper impact assessment alongside the proposal: this is not evidence-based policy-making, or at least not transparently so. Some of the proposals might possibly backfire: for instance, if the consequence of an irregular migrant leaving the EU is being detected and then subjected to an entry ban, the irregular migrant concerned might just decide not to leave at all.

In any event, the effectiveness of expulsion policy depends partly upon cooperation of non-EU States, and this proposal can’t affect that – although, as noted above, there are other EU initiatives underway on that front. Detaining more people has a cost for national budgets, but this proposal overlooks this awkward fact. Anyway, without additional cooperation from outside the EU, constructing more detention centres will not by itself increase the rate of expulsion, but merely increase the cost of irregular migration for national budgets and the misery of the persons concerned.

Peers & Barnard: chapter 26

JHA4: chapter I:7

Photo credit: Robert Hickerson on Unsplash 

The EU Court of Justice rules on the Schengen Conundrum: a non-EU citizen with expulsion order in one Member State and a valid residence permit in another Member State

Professors Elspeth Guild, Queen Mary University of London and Kingsley Napley, and Steve Peers, University of Essex

What happens if a non-EU citizen has a residence permit from one Member State, but another Member State wants to expel him? The Court of Justice addressed this issue for the first time in its ruling last week in the case of E.

Background

This issue is complicated because there are two different relevant sources of EU law, which have not been linked very clearly. First of all, Article 25 of the Schengen Convention, as amended in 2010, states that if a Member State considers issuing a residence permit or long-stay visa, it shall search the Schengen Information System (SIS), which (among other things) contains a list of non-EU citizens banned from entry into the EU. Each listing is called an ‘alert’. If there is an alert on the person concerned, the Member State that wants to issue the residence permit or long-stay visa shall consult the Member State which issued the alert and ‘take account of its interests’, granting a residence permit or or long-stay visa only for ‘substantive reasons…notably on humanitarian grounds for by reason of international commitments’. If a residence permit or long-stay visa is issued, the alert in the SIS must be withdrawn, but the Member State which issued it can keep the person concerned on a national list of alerts. There’s also an obligation to check national records of long-stay visas or residence permits before issuing alerts.

A similar rule applies the other way around: if it turns out that an alert has been issued for a non-EU citizen who holds a residence permit or long-stay visa from another Member State, the Member State which issued the alert must consult the Member State which issued the residence permit or long-stay visa, to see if there are ‘sufficient reasons’ for withdrawing the permit. In these cases there is more discretion for the State which had already granted residence: there is no threshold to justify continuing the residence permit in force. If the residence permit or long-stay visa is not withdrawn, again the State issuing the alert must withdraw it from the SIS, but can keep the person on a national list of people banned from entry. It’s this second rule which was at issue in the E case.

But the Schengen rules concern only SIS alerts based on entry bans, not the issue of expulsion or the entry bans as such. Those issues are dealt with by the Returns Directive, which in principle requires Member States to expel non-EU citizens who are present irregularly. Usually they must be expelled to non-EU countries, but there’s an exception if they have a residence permit or other right to stay issued by a Member State. In that case they must go to that other Member State immediately. If they don’t comply, or if their immediate departure ‘is required for reasons of public policy or national security’, then they can be expelled directly to a non-EU country.

The Returns Directive also requires Member States to issue EU-wide entry bans in many cases where expulsion decisions have been issued. However, it does not expressly set out the obvious implication that this means an alert must be issued in the SIS. A Commission proposal from 2016 fills this gap. That proposal also incorporates the current rules on consultation where there is a conflict between an alert and a residence permit or long-stay visa, with some amendments. This proposal is likely to be agreed soon, as both the European Parliament and the Council adopted their negotiation positions on it late last year. A parallel proposal on use of the SIS at borders would also regulate the link between the Returns Directive and the SIS in its Article 24, and furthermore repeal Article 25 of the Schengen Convention. It remains to be seen whether the recent judgment might impact the discussions of the legislators on these proposals.

The Facts

A Nigerian national, E, who held a valid residence permit issued by Spain and had lived there for 14 years (and had family ties there) was convicted of a narcotics offence in Finland and sentenced to five years imprisonment (subsequently commuted to a suspended sentence). The Finnish authorities ordered E’s immediate expulsion to Nigeria on grounds of public order and national security together with an entry ban on his return. In accordance with their obligations under Article 25 of the Schengen Convention, the Finnish authorities contacted their Spanish counterparts to consult on whether there were sufficient reasons to withdraw the residence permit. The Spanish authorities did not respond.

On a second request by the Finnish authorities, their Spanish counterparts asked for a copy of the judgment convicting E (which the Finnish authorities sent). Thereafter, and following two unsuccessful attempts to consult the Spanish authorities, it seems that the Finnish authorities sought to carry out their order. In the meantime, E became irregularly present in Finland as he had stayed there more than 90 days out of the previous 180, which is the limit on movement of non-EU citizens (including those holding a residence permit from another Member State) under the Schengen system.  E appealed and the Finnish Supreme Administrative Court stayed the proceedings and asked the Court of Justice to clarify whether Article 25 CISA permits the expulsion to Nigeria of E without the completion of the mandatory consultations with the Spanish authorities.

The issue was complicated by the fact that Article 25 of the Schengen Convention on its face is designed to resolve conflicts between Member States regarding conflict between residence permits and SIS alerts. There is no obvious place for the individual in the process. So the Finnish court also asked whether E could rely on Article 25 CISA at all.

The Court’s reasoning

The first question the Court had to resolve was when consultations between States must take place. The Court had regard to the objective of Article 25 of the Schengen Convention. In its view this objective is ‘to avoid a contradictory situation in which a third-country national is both holder of a valid residence permit issued by a Contracting State and the subject of an alert for the purposes of refusing entry in the Schengen Information System’ (para 38). This objective must be read in conjunction with the principle of loyal cooperation in Article 4(3) TEU which means, according to the Court, that the consultation procedure should be initiated as quickly as possible (para 39). For this reason, the Court found that when a state is contemplating issuing an expulsion decision and entry ban on a third country national holding a valid residence permit from another Member State, the consultation should start as soon as possible and does not need to be delayed until a SIS alert has been made.

The Court decided the third and fourth questions together – rephrasing them as the issue of the failure to respond by the authorities of another Member State and what if any inferences the expelling Member State is entitled to draw as a result.  The first thing the Court noted is that the Schengen system only applies to short visits of 90 days out of every 180. Residence permits on the other hand are issued mainly under national law (para 41 – surprising considering how much of EU migration law has been made subject to Directives). As noted above, the Returns Directive in principle requires Member States to expel all non-EU citizens who are not (or no longer) lawfully present, but where the person concerned has a valid residence permit in another Member State, he or she must be entitled to travel to the Member State which issued the residence permit. He or she cannot be expelled to a third country (or his or her country of origin), except where he or she fails to return to the other Member State, or on grounds of national security or public policy (para 45).

So how to interpret the latter exception? The Court reminded the Finnish authorities that in determining whether a third country national is a public policy or national security risk, the ‘Member State is required to assess the concept of ‘risk to public policy’, within the meaning of Article 7(4) of Directive 2008/115 on a case-by-case basis, in order to ascertain whether the personal conduct of the third-country national concerned poses a genuine and present risk to public policy, bearing in mind that the mere fact that that national has been criminally convicted is not sufficient by itself to present such a risk’ (para 49). This refers to a prior judgment on the voluntary departure rules in the Returns Directive, discussed here; it’s striking that there’s a high threshold to apply the ‘public policy’ clause.  

Clearly, although the facts are a matter for the national court, the EU Court possibly had doubts about whether the conviction of E met the requirements for expulsion to a non-EU country. The Court acknowledged that the Finnish authorities could issue an alert (entry ban) against E but they would have to withdraw it if the Spanish authorities did not withdraw E’s residence permit. The Court recognised that the Spanish authorities had failed to respond to the requests of their Finnish counterparts in a reasonable period of time. But the consequences of that failure are not meted out on the individual. Instead the Court held that so long as the residence permit had not been withdrawn, irrespective of the failure of the Spanish to comply with their duties under the consultation procedure, the Finnish authorities are under an obligation to withdraw their alert to stop re-entry. At that point the Finnish are free to put the third country national’s details on their own national alert system to prevent re-entry into Finland, but this does not have EU wide consequences. (Note that the proposed new legislation on returns and the SIS would set a deadline to reply to consultation requests, but would still not expressly determine what happens if the Member State does not reply in time).

Finally, the Court addressed the first question – could E rely on the provisions of the Schengen Convention to prevent his expulsion to Nigeria, or are those provisions only legally binding (and accessible) to States? The Court found in favour of E – he is entitled to rely on the consultation procedure which gives rise to legal effects of importance to him (para 57). The reasoning of the Court was that as the consultation procedure is set out in a clear, precise and unconditional manner it is capable of giving rise to rights for individuals. Further, if in the consultation procedure, the state which issued the residence permit decides to maintain it, that also gives rise to a clear, precise and unconditional obligation on the expelling Member State to withdraw any alert to prevent re-entry into the Schengen area which it may have put in place (though it can keep a national re-entry ban in place) (para 59).

Commentary

This is a very interesting, if rather complex case. Three things are worth noting from it. First, as the Court has done in the case of the Dublin III Regulation, it has found that administrative provisions of EU laws which govern what states are supposed to do with people produce legal effects on which the affected people may rely. The individual can rely on EU law even where it is written in terms of inter-state procedures. The requirement is the same as that for direct effect – the provision must be clear, precise and unconditional.

Secondly, the Court gives priority to the residence permit which has not been withdrawn over the expulsion decision and entry ban. So long as a Member State does nothing to withdraw a residence permit, another Member State cannot expel outside the Union the third country national except on limited grounds (but can oblige him or her to go to the Member State which issued the residence permit). It does not matter that the Member State which issued the residence permit has failed to comply with the rules on consultation.

Thirdly, the complex intersection of the Schengen Convention, an agreement among Member States originally outside the scope of EU law and only integrated in an incomplete manner by the Amsterdam Treaty in 1999, and EU law proper – the regulations and directives – moves in the direction that the EU adopted measures are gradually replacing the provisions of the Convention. There is no ‘backward’ movement whereby Member States can ‘recover’ flexibility under the Convention which has been ruled out by subsequent EU law provisions. Indeed, this judgment demonstrates that EU law principles have prevailed over the intergovernmental nature of the Schengen Convention, not the other way around.

Barnard & Peers: chapter 26

JHA4: chapter II:3

Photo credit: The Real Agenda

The CJEU’s Ruling in Celaj: Criminal penalties, entry bans and the Returns Directive

By Izabella Majcher, Associate Researcher at Global Detention Project and PhD candidate in International Law at the Graduate Institute of International and Development Studies is Geneva.

In its ruling in the Skerdjan Celaj case (C-290/14), rendered on 1^st October 2015, the Court of Justice of the European Union (CJEU) addressed once again the relation between immigration and criminal law and in particular the compatibility of national penal measures imposed as a punishment for irregular migration with the EU Returns Directive. In the previous cases touching upon this issue, the Court assessed whether the Directive allowed states to penalize non-compliance with a return order or irregular stay itself with imprisonment (El Dridi and Achughbabian, respectively) and with home detention (Sagor) as a criminal law penalty (as distinct from administrative law detention, which is expressly regulated by the Directive). In turn, in Celaj the Luxembourg judges were requested to consider whether a criminal law sentence of imprisonment imposed for a breach of a re-entry ban was compatible with the Returns Directive.

As defined in Article 3(6) of the Directive, an “entry ban” means an “administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision.”

The Case

Mr Celaj was arrested by Italian police in August 2011 for attempted robbery. In April 2012 he was issued a removal order accompanied by a three-year entry ban and left Italian territory some five months later. Subsequently Mr Celaj re-entered Italy and was apprehended by the police in February 2014. The public prosecutor then brought criminal law proceedings against him and sought a term of imprisonment of eight months for the breach of the entry-ban. The District Florence Court, before whom the proceedings were brought, decided to stay the proceedings and refer the question to the Luxembourg Court for a preliminary ruling. The referring court asked the CJEU whether the Returns Directive precludes domestic legislation penalizing re-entry in breach of an entry ban with a prison sentence up to four years. The Court found that it does not.

The Court did not follow the Opinion of Advocate General (AG) Szpunar, issued in April 2015. The AG based his Opinion on the effectiveness and the main objective of the Returns Directive, which is the return of undocumented non-EU citizens. These arguments had been developed by the Court in a line of case-law addressing the relation between domestic penal sanctions and the Directive. Indeed, in El Dridi (§ 58) the Court ruled that imprisonment as a criminal law penalty for the failure to leave the country during the voluntary departure period was not compatible with the Returns Directive. In Achughbabian (§ 45) it found that the Directive also precluded imprisonment as a criminal law penalty for irregular stay itself if ordered prior to starting removal proceedings or during such proceedings. The underlying justification of the Court’s conclusions in both cases was that a term of imprisonment as a criminal law penalty would delay the removal of the person concerned and thus jeopardize the objective pursued by the Directive (El Dridi, § 59; Achughbabian, § 45). The ruling in Sagor (§ 45) shows that not only prison sentences but even home detention during return proceedings as a criminal law penalty risks delaying deportation and thus should not be imposed. The AG thus invited the Court to follow its well-established case-law and declare that imprisonment for a breach of entry ban as a criminal law penalty is incompatible with the Directive because it would delay return of the person concerned (§ 6).

Yet, the Court ruled that the Returns Directive does not preclude domestic legislation which provides for a prison sentence as a criminal law penalty for non-EU citizens who unlawfully re-enter the country in breach of an entry ban (§25 and 33). The CJEU did reiterate that the objective of the Directive would be undermined if removal would be delayed by a criminal prosecution leading to a term of imprisonment, as ruled in El Dridi, Achughbabian, and Sagor (§ 26). However, it found that the circumstances in the Celaj case were “clearly distinct” from those in El Dridi and Achughbabian. This distinction, in the Court’s opinion, was due to the fact that, unlike Mr Celaj, the non-citizens concerned in El Dridi and Achughbabian were subject to a first return procedure (§ 28). The Court also added that, in line with the second indent of its ruling in Achughbabian, the Directive does not preclude penal sanctions as a criminal law penalty to be imposed on a migrant who has been subject to a return procedure but stays in an irregular manner in the member state (§ 29).

Comments

Were the circumstances in Celaj so “clearly distinct” from those in El Dridi and Achughbabian to justify such a different conclusion? Does it fundamentally matter that those cases dealt with a first return procedure? Every return procedure regulated by the Directive has essentially the same goal – the swift removal of the non-EU citizen concerned. It appears thus irrelevant whether return is pursued because of irregular entry or irregular re-entry.

Under Article 6(1) of the Directive member states are required to issue a return decision to every migrant in irregular situation, subject to some exceptions. As highlighted by the AG (§ 42, 49, and 50), this duty is persistent and continuous. This means that each time a non-EU citizen finds himself or herself on the State territory without permission, the authorities should start a return procedure by issuing a return decision. Thus, in line with the rules under the Directive, a non-EU citizen who has re-entered the Member State unlawfully should be liable to a new return decision rather than criminal proceedings which may postpone his or her ultimate removal. This finding is also supported by the Court’s ruling in Achughbabian (§ 45) where it held that the obligation incumbent on states to conduct removal shall be fulfilled as soon as possible and thus states should not carry out criminal proceedings involving custodial penalties not only prior to the implementation of the return decision, but also prior to the adoption of such a decision.

Strikingly, the CJEU did not consider at all whether criminal proceedings against Mr Celaj would delay his return. This omission is hardly consistent with the Court’s well established case-law which attaches pivotal importance to the effectiveness of the procedures regulated under the Directive (El Dridi, § 55; Achughbabian, § 39; Sagor, § 32). It is easily foreseeable that after serving his prison sentence, Mr Celaj will be issued with a return decision. The term of imprisonment as a criminal law penalty will inevitably delay his return and thus jeopardize the very objective of the Returns Directive.

Likewise, the second, somehow auxiliary, argument advanced by the Luxembourg judges is not wholly convincing. True, in line with the second indent of the ruling in Achughbabian (§ 51) states may impose a criminal law prison sentence on a non-EU citizen to whom a return procedure has been applied but who stays in an irregular manner in the Member State. However, as pointed out by the AG (§ 61), to be compatible with the main part of the ruling, this conclusion should only cover situations where authorities did not succeed in returning the person concerned, who then continues to stay on the state’s territory. The second indent in the judgment in Achughbabian should thus have no bearing on Celaj where the non-EU citizen concerned left the country, thus return proceedings reached their goal. Following his irregular re-entry, he should be liable to a new return procedure.

The judgment in Celaj appears not consistent with the CJEU’s well-established jurisprudence on the interplay between domestic penal sanctions and the effectiveness of return policy as laid down in the Returns Directive. The Court relied on an apparent clear distinction between return proceedings imposed for irregular entry and subsequent re-entry in breach of an entry ban. As discussed above, the wording of the provisions of the Returns Directive, supported by the underlying objective of the Directive repetitively stressed in the Court’s previous rulings, does not warrant finding such a distinction. The “distinction” argument had been advanced by the European Commission and intervening governments during the proceedings. They stressed that the circumstances in re-entry cases are distinct because penal sanctions could be imposed to dissuade migrants from breaching re-entry bans (AG’s Opinion, § 46). So the “distinction” argument – which was central to the Court’s conclusion - relies on states’ deterrence-oriented concerns rather than considerations based on the provisions and objective of the Returns Directive. The ruling in Celaj seems thus to compromise on the effectiveness of the Directive in order to accord discretion to states to apply their domestic criminal provisions to deter and punish migrants for breaching re-entry ban.

What is the nature of the entry ban whose breach states are now explicitly allowed to punish with criminal law imprisonment? As noted above, Article 3(6) of the Directive defines an entry ban as a prohibition of re-entry to the host state (or other Member States) for a specified period of time. In Article 11(1) the Directive obliges states to impose an entry ban on a non-EU citizen who has not been granted the possibility of voluntary departure or has not complied with a return decision. Since the Directive provides for broad circumstances for refusal of a voluntary departure period (Article 7(4); see discussion of the case law on this issue here) and does not explicitly prohibit states from issuing a return decision on non-refoulement and family or private life grounds (the Directive merely allows states grant a residence permit on humanitarian or other reasons, in Article 6(4)), in practice Article 11(1) may entail that entry bans are imposed in a systematic way. This risk is amplified by the same provision as it allows states to apply a ban on re-entry also in “other cases.”

In practice, as the Evaluation on the application of the Returns Directive, commissioned by the European Commission, shows, the legislation of almost 40 percent of the countries bound by the Directive provides for an automatic application of entry bans on all return decisions. A recent European Migration Network’s study Good Practices in the return and reintegration of irregular migrants demonstrates the scale of the use of entry bans. In 2013 more than 125,000 entry bans were imposed in the EU. Compared to the total number of return decisions that year (see Eurostat), these figures evince that the member states accompany a considerable proportion of return decisions with entry bans, including Greece (almost 100 %), Poland (80 %), or Sweden (70 %). It appears thus that entry bans are systematically applied in practice.

States are free not to impose or withdraw an entry ban for humanitarian or other reasons (article 11(3)). They are however not obligated to waive the entry ban requirement in such cases - it lies within their discretion. While the Directive clarifies that entry bans shall not prejudice the right to international protection (Article 11(5)), this assertion should be translated into a clear obligation on states not to impose the ban where the protection from non-refoulement could be impaired. The severity of this entry ban is further strengthened by its length. The Directive allows a five-year duration of an entry ban (article 11(2)). The above mentioned Commission study highlights that the majority of states issue entry bans for this maximum permitted period of time. In addition, states may apply a longer ban (the time period of which is not limited by the Directive), if they judge that the person concerned represents a serious threat to public policy or national security (Article 11(2)).

Thus, potentially the majority of non-EU citizens liable to return are prohibited for prolonged periods to re-enter the host state or even the whole EU, if the entry ban has been registered in the Schengen Information System (SIS). An entry ban is thus a harsh and coercive measure, which is a deterrent in itself and potentially conflicts with migrants’ fundamental rights. It cannot be ruled out that a non-EU citizen will be obliged to re-enter, where prompted by his family links, disrupted by deportation, or changes in the situation in his country of origin. While, as noted above, states may withdraw an entry ban, they are nevertheless not obliged to do so. Imposition of a criminal law prison sentence for breach of an entry ban, as permitted in Celaj, appears thus disproportionate and unnecessary. States may use other available methods to punish this breach, such as an extension of an existing ban. More generally, criminalization of breaches of (administrative) immigration law risks creating a conflation between (non-punitive) immigration law and criminal law, with negative consequences for migrants, and an undue overburden to the criminal justice system.

Barnard & Peers: chapter 26

Photo credit: picture-alliance/ dpa, www.welt.de/regionales/muenchen/article120954974/Buergermeister-macht-Grenze-zu-Tschechien-wieder-zu.html

In light of the Dano judgment, when can unemployed EU citizens be expelled?

 

Steve Peers

Yesterday’s important CJEU judgment in Dano concerned an application for access to benefits, not expulsion. So it has no direct impact upon the latter issue. Nevertheless, it is possible that the judgment has an indirect impact on that issue, due to the Court’s interpretation of the EU citizens’ Directive.

Earlier this year, I wrote a detailed blog post on the issue of when unemployment could justify expulsions and entry bans of EU citizens. The following supplements that analysis in light of the Dano judgment.   

Rules on expulsion

The bulk of the rules on expulsion (and also denial of entry or exit) appear in Title VI of the EU citizens’ Directive, Articles 27-33. These rules concern expulsions or entry bans on grounds of ‘public policy, public security or public health’. However, they can’t be used to justify expulsions or entry bans of unemployed people, because Article 27(1) says that they ‘shall not be invoked to serve economic ends’.

Having said that, the Directive clearly does allow for the expulsion of unemployed EU citizens and their family members.  Article 15(1) states that some of the procedural rules applicable to expulsion on grounds of public policy, et al, ‘shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security and public health’ (my emphasis). On the other hand, the Directive clearly rules out entry bans for such persons: Article 15(3) states that ‘Member States may not impose a ban on entry in the context of an expulsion decision’ within the scope of Article 15(1).   

So when exactly can EU citizens and their family members be expelled other than on grounds of public policy, et al? Article 14(4) says that ‘an expulsion measure may in no case be adopted’ against EU citizens or their family members who are workers or self-employed persons, or who entered the territory as job-seekers, provided that (in the latter case) the EU citizens ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. So Member States can expel job-seekers, provided that the job-seekers fail to meet that particular condition.

What about former workers or self-employed persons, ie those who have lost their job in the host State? Article 7(3) specifies that the status of worker or self-employed person (and therefore, presumably, the protection against expulsion) is retained in a number of cases, such as retraining, or if the worker has worked for at least a year. Earlier this year, the CJEU confirmed that the list of cases where this status is retained is non-exhaustive: it also applies, for instance, to those who quit work due to maternity, for a limited period (see my analysis of the Saint-Prix judgment). But Member States could clarify in their national law that the status of worker or self-employed person is lost in any case where the Directive or the case-law permits it to be lost.

It should also be mentioned that once EU citizens or their family members become permanent residents, due to five years’ legal residence, they have full equal treatment as regards social assistance and need no longer meet the conditions which apply to the initial right of residence. So it obviously follows that they cannot be expelled on grounds of unemployment.

Another important rule in the Directive is Article 14(3), which specifies that ‘an expulsion measure shall not be the automatic consequence of…recourse to the social assistance system of the host Member State’ by the EU citizen or family member.

The impact of Dano

A key element of the Dano ruling was the scope of the equal treatment rule in the Directive, which applies to social assistance. The Court ruled that the equal treatment rule only applied where a person had a ‘right to reside’ under the Directive, ie the right to stay for an initial three-month period without any conditions besides holding a passport, or for a longer period if they are a worker, self-employed person, student or have ‘sufficient resources…not to become a burden on the social assistance system’. In the latter two cases, they must also have medical insurance; students must submit a declaration as regards sufficient resources. It should be noted that according to the Court’s case law, ‘sufficient resources’ need not be generated by the EU citizen himself or herself, but could be provided by someone else, such as a family member.

Does the Court’s ruling mean that persons without a ‘right to reside’ under these provisions of the Directive have no protection against expulsion? The answer is absolutely not: the judgment does not in any way prevent such persons from relying on the protection set out in Articles 14 and 15.

Let’s look at the reasons why that’s the case. First of all, there’s the wording of the judgment itself: the Court states that its ruling applies ‘so far as concerns access to social benefits’, as regards the ‘equal treatment’ rules. The Court is careful to refer to equal treatment and social benefits throughout its ruling, rather than exclusion from the scope of the Directive entirely.

Secondly, there’s the wording of the Directive, which the Court relies on to justify its ruling. The right to equal treatment in Article 24(1) applies to ‘all Union citizens residing on the basis of the Directive’. But no such qualification applies to Articles 14(3), 15(1) or 15(3).

Thirdly, there’s the overall logic of the Directive. As regards Article 15(1) and (3) in particular, since those who qualify for a right to reside cannot be expelled on grounds other than public policy et al, those provisions would have no meaning unless they applied to people who don’t have a right to reside. Similarly, since an application for social assistance could mean that the EU citizen loses a right to reside, Article 14(3) would have little or no relevance unless it applied to those without such a right.

Finally, the Court of Justice already ruled that EU law rules on expulsion protected those who did not have a right to reside under the EU free movement rules that preceded the Directive, in the Commission v Netherlands case. In particular, the Court ruled that:

To exclude from the benefit of those substantive and procedural safeguards [on expulsion] citizens of the Union who are not lawfully resident on the territory of the host Member State would deprive those safeguards of their essential effectiveness.

Logically the same applies here. Indeed, the rules on expulsions on grounds of public policy et al are also not limited in scope to those who have a ‘right to reside’ under the Directive, other than Article 28(2), which applies only to those who have permanent residence. This wording suggests an a contrario reading of the rest of the rules on expulsion.  

Types of residence in another Member State

It may sound odd to say that parts of the Directive (such as the expulsion rules) can be invoked by all EU citizens, whereas other parts of the Directive (such as the equal treatment rules) can be invoked only by those who have a ‘right to reside’ under it. But there are other circumstances in which EU citizens reside in another Member State, even if there is not a ‘right to reside’ under the Directive.

One such case is where they are children of a former worker, or the parent carer of such children. In that case, they will sometimes have rights not under the Directive, but under the separate Regulation on the free movement of workers (see the Alarape judgment).

Secondly, they might also have the right to reside under national law, but not EU law (see the Ziolkowski judgment), although their right to claim equal treatment as regards social assistance in such cases (developed since the judgment in Martinez Sala) seems to have been implicitly overruled by the Dano judgment, which links such equal treatment to the right to reside under the Directive only.

Thirdly, they might be residing irregularly on the territory of the host Member State.

Finally, they might have a child who has the nationality of the host State, due to a prior relationship with a national of that State. In that case, the interesting question arises whether there might be a parallel with the Ruiz Zambrano judgment, in which the Court ruled that the third-country national parent of an EU citizen child could not be expelled, since that would de facto result in the removal of an EU citizen from the territory of the EU. Could an analogous rule apply to the de facto removal of a national of the home Member State to the territory of another Member State? Or would that be unobjectionable, since the child in question would still, as an EU citizen, remain within the territory of the Union?

We can look forward to some interesting jurisprudence from the Court of Justice.

 

Barnard & Peers: chapter 13, chapter 16