Dialogue or disobedience between the European Court of Justice and the Danish Constitutional Court? The Danish Supreme Court challenges the Mangold-principle

Sune Klinge, PhD Fellow, Centre for Comparative and European Consitutional Studies, Faculty of Law, University of Copenhagen

Following the Court of Justice’s judgment in Case C-441/14 in the Ajos-case earlier this year, the Supreme Court of Denmark has handed down its judgment in the main proceedings. Despite the fact that the preliminary ruling left the Supreme Court with only two options; (1) apply national law in a manner that is consistent with the directive or (2) disapply any provision of national law that is contrary to EU law the Danish Supreme Court did neither. The Danish Supreme Court found that an interpretation consistent with EU law was not possible nor could the Supreme Court set aside national law since the Danish EU Accession Act did not confer sovereignty to the extent required for the unwritten EU principle prohibiting discrimination on the grounds of age to take precedence over national law. If the courts were to set aside national law they would be acting outside their constitutional limits to their competences as judicial power. Thereby the Supreme Court chose a third option and set aside the judgement from the CJEU.

This case from the Danish Supreme Court no. 15/2014 deals with the scope of Directive 2000/78 (the EU employment equality Directive) and the general principle of non-discrimination on grounds of age, adding another case to the ECJ’s Mangold and Kücükdeveci case law (on the requirement for national courts to suspend national law which breaches the principle of age discrimination) under Danish law.

The CJEU’s ruling in the Ajos-case has previously been discussed here. Consequently, only the main conclusions needed to fully understand the judgment in the main proceedings under Danish law will be revisited.

The Danish Supreme Court referred the following questions to the CJEU: The first question was related to the compliance of the national rules implementing the Directive and the application of the principle of non-discrimination on grounds of age. The second question formulated by the Danish Supreme Court referred to the balancing of rights and principles, and will be cited in full, since it contributes to the understanding of the judgment from the Danish Supreme Court last week:

“Is it consistent with EU law for a Danish court hearing an action in which an employee seeks from a private-sector employer payment of a severance allowance which, under the Danish law described in question 1, the employer is not bound to pay, even though that is contrary to the general EU principle prohibiting discrimination on grounds of age, to weigh that principle and the issue of its direct effect against the principle of legal certainty and the related principle of the protection of legitimate expectations and to conclude on that basis that the principle of legal certainty must take precedence over the principle prohibiting discrimination on grounds of age, such that the employer is, in accordance with national law, relieved of its obligation to pay the severance allowance and, in order to determine whether such a balancing exercise may be carried out, is it necessary to take into consideration the fact that the employee may, in appropriate cases, claim compensation from the Danish State on account of the incompatibility of Danish law with EU law?” (my underlining)

The CJEU openly rejected the solution offered by the Supreme Court, leaving it for the national courts to balance the EU principles against each other, and gave clear guidance on how the Supreme Court were to settle the case:

“EU law is to be interpreted as meaning that a national court adjudicating in a dispute between private persons falling within the scope of Directive 2000/78 is required, when applying provisions of national law, to interpret those provisions in such a way that they may be applied in a manner that is consistent with the directive or, if such an interpretation is not possible, to disapply, where necessary, any provision of national law that is contrary to the general principle prohibiting discrimination on grounds of age. Neither the principles of legal certainty and the protection of legitimate expectations nor the fact that it is possible for the private person who considers that he has been wronged by the application of a provision of national law that is at odds with EU law to bring proceedings to establish the liability of the Member State concerned for breach of EU law can alter that obligation” (my underlining)

On this basis the hearing before the Supreme Court took place 11 and 14 November 2016, and bearing the CJEU’s guidance in mind, the Supreme Court had to decide whether the private employer could rely on the Danish rules and not pay severance allowance to the employee.

As emphasized above in the quotation, the preliminary ruling left the Supreme Court with only two options; (1) applying national law in a manner that was consistent with the Directive or (2) disapplying any provision of national law that was contrary to EU law. The Danish Supreme Court did neither. The Supreme Court came to the conclusion that the national constitutional reservation had to take precedence over EU law according to the EU Accession Act.

Before entering into the extensive argumentation leading to this controversial conclusion, it is worth considering the circumstances and the dilemma of the Supreme Court leading to the decision to make a preliminary reference to the CJEU.

In the Danish case Ole Andersen from 12 October 2012 the CJEU found, that the Directive precluded national rules (same national rules as in the Ajos-case) regarding payment of severance allowance. Paragraph 2a(3) of the Danish Law on salaried employees held that:

No severance allowance shall be payable, if the employee will – on termination of the employment relationship – receive an old age pension from the employer and the employee has joined the pension scheme in question before attaining the age of 50 years.

The CJEU found that the Directive must be interpreted as precluding national legislation pursuant to which workers who are eligible for an old-age pension from their employer under a pension scheme which they have joined before attaining the age of 50 years cannot, on that ground alone, claim a severance allowance aimed at assisting workers with more than 12 years of service in the undertaking in finding new employment, and thereby overruling the national rule. 

In the national proceedings the Western High Court (the case was not tried at the Supreme Court) ruled in favor of the employee against a public authority as the employer – a vertical EU law relationship.

The question before the Supreme Court in the Ajos-case was if the same approach could be applied in a horizontal EU law relationship between two private individuals.

By referring the case to the CJEU, the Supreme Court highlighted a discussion carried out by the Advocates-General of the CJEU about the doctrinal basis of horizontal application of general EU principles.

Advocate General Kokott had in her opinion to the Ole Andersen-case questioned that the CJEU had relied directly on the general legal principle of the prohibition of age discrimination, stating that it was for the national court to set aside any provision of national law, which may conflict with that prohibition. She found in paragraph 22 that it appeared:

“to be a makeshift arrangement  for the purposes of resolving issues of discrimination in legal relationships between individuals, in which Directive 2000/78 is not as such directly applicable and cannot therefore replace national civil or employment law.”

The Advocate General also emphasized that the idea of an in-depth reappraisal and examination of the doctrinal basis of the controversial horizontal direct effect of general legal principles or fundamental rights between individuals were certainly appealing, but not necessary to resolve the case at hand.

Also Advocate General Trstenjak had in her opinion in the Dominguez-case reservations regarding legal certainty for private individuals and the risk of mixing sources of law as regard to directives as secondary law and general principles as primary EU law.

About the absence of legal certainty for private individuals she emphasized in paragraph 164, that

“the principle of legal certainty requires that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them. However, as it will never be possible for a private individual to be certain when an unwritten general principle given specific expression by a directive will gain acceptance over written national law there would, from his point of view, be uncertainty as to the application of national law similar to that experienced where a directive is directly applied in a relationship between private individuals”

The Danish Supreme Court raised the same concerns and by referring the Ajos-case to the CJEU aimed to find a solution by balancing the conflicting principles. By rejecting the solution by the Danish Supreme Court the CJEU offered no way out for the Danish Supreme Court, but to turn on a plate and apply EU law as told by the CJEU if compliance were to be secured.

The Danish Supreme Court did not act as expected; instead, they found their own way of solving the problem and securing legal certainty under Danish law.

The reasoning of The Supreme Court

Interpretation consistent with EU law

The Supreme Court held – in line with the formulation of its question to the CJEU in 2014 – that the legal position under Danish law was clear, and that it would not be possible to arrive at an interpretation of the national law that was consistent with the Directive as interpreted by the judgment of the CJEU in the Ole Andersen-case by using the methods of interpretation recognized under Danish law.

Reflecting on the application of the contra legem assessment made by the Supreme Court it is worth relating it to the harshly formulated paragraph 34 of the CJEU’s Ajos-judgment, where the CJEU stipulated, that:

“the national court [the Danish Supreme Court] cannot validly claim that it is impossible for it to interpret the national provision at issue in a manner that is consistent with EU law by mere reason of the fact that it has consistently interpreted that provision in a manner that is incompatible with EU law.”

This seems to reflect a different understanding by the CJEU of the concept of “contra legem”, and therefore the reasoning on that matter is given a strong voice in the Danish Supreme Court’s judgement. The Supreme Court explains in details that the legal position under Danish law was clear and was not only relying on the interpretation made by the Supreme Court itself. The position had been reaffirmed over the years since the Danish Parliament introduced the rule in 1971 and the Parliament kept the same wording of the provision in the later amendment in 1996. Consequently, the Supreme Court found that it could not change the legal position as the CJEU suggested by using the methods of interpretation recognized under Danish law.

Therefore, the Supreme Court found that it would be “contra legem” to interpret the national law in conformity with the Directive since the national legal position was clear. In this reasoning the Supreme Court and the nine judges acted unanimously.

The general principle of non-discrimination on grounds of age

In the second part of the judgement’s reasoning the majority of eight out of the nine judges came to the conclusion that the Supreme Court could not set aside national law since the Danish EU Accession Act did not confer sovereignty to the extent required for the unwritten EU principle prohibiting discrimination on the grounds of age to take precedence over national law.

The reasoning focuses on the lack of legal basis in the Danish EU Accession Act which is the Act that sets the limits of the conferred sovereignty to the EU in line with paragraph 20 of the Danish Constitution.

The Supreme Court went on to perform an in-depth analysis of the preparatory works of the Accession Act (travaux préparatoire) leading to Denmark joining the EU in 1972 and the subsequent amendments to the Accession Act.

The Supreme Court found that the Danish Parliament did not explicitly refer to the Mangold and Kücükdeveci case law in the preparatory works to the Lisbon Accession Act amendment. On this basis the Supreme Court arrived at the conclusion, that the CJEU did not have the competence or legal basis to give precedence to the unwritten principle prohibiting discrimination on grounds of age in a case where this was contrary to national law.

Reflecting further on the Mangold case of 2005, the Supreme Court also noted that the CJEU in the Mangold case law did not balance the legal certainty and the protection of legitimate expectations against the prohibition of discrimination on grounds of age. It is not clear if the Supreme Court finds that the result in the Mangold case would have been different if the CJEU had reflected on this balancing. By revisiting the finding in the CJEU’s Ajos case one could make the argument, that it would not have changed the result. 

The facts of the case – the dismissal of the employee - were before the Lisbon treaty entered into force the 1 December 2009. Consequently, the Supreme Court stressed that the application of any Charter provision since it was not legally binding and thereby disregarded the argument that the employee could rely on the Charter provisions.

After concluding that the Danish Accession Act does not provide legal basis in a horizontal relationship to give precedence to an unwritten EU law principle the Supreme Court adds:  

“If the Supreme Court in a situation like this were to set aside national law the Court would be acting outside their limits to their competences as judicial power.” (Translation made by the author)

And thereby, not only referring to the Accession Act and sovereignty but also to the separation of power in the Danish Constitution section 3 as it would require an act of parliament to amend the national rules and reassure compliance with EU law.

In the end it should be noted that one judge found that the EU law should take precedence over national law, and that there was no conflict with the Danish EU Accession Act following the Supreme Courts judgments in the Maastricht and Lisbon cases on sovereignty. The minority judge voted to follow the directions made by the CJEU.

Reflection and follow-up litigation

Last week’s judgement from The Danish Supreme Court can definitely be seen as disobedience as the CJEU’s guidance in the Ajos-case was very precise and gave the Supreme Court only two options, but the Supreme Court choose a third. Or it can be seen as contributing to the debate about the dialogue between the courts; it depends on the eyes of the beholder.

It surely adds a chapter to discussion on where the contra legem test is best performed; in the national law regimes or by the CJEU and it sets out the limits of the Danish Supreme Courts constitutional mandate in order to reassure compliance with EU law.

The likely aftermath of the case is also fascinating since the employee has brought an action against the Danish state claiming that the state is liable for the loss of severance pay. The liability case has been suspended on the decision from the Supreme Court.

Another possible outcome could be follow-up litigation from the EU Commission by launching infringement proceedings against Denmark as a Member State on the lack of effective legal protection under article 19 TEU or the duty of sincere cooperation under article 4 (3) TEU. In any case the Ajos-case will be revisited and have a major impact on the relationship between the EU and Denmark.

---ooOoo---

Please feel free to contact me if you want more information about the case or the related issues from a national Danish perspective. I am doing a PhD project about the horizontal effect of EU law and member state liability from a national Danish perspective. Before I joined Academia I was practicing lawyer at one of the leading law firms in Denmark working extensively with EU law.

Photo credit: wikipedia

Barnard & Peers: chapter 6; chapter 8; chapter 9; chapter 20

Can Member States seize asylum-seekers’ assets?

Kees Groenendijk (Professor Emeritus, Radboud University Nijmegen) and Steve Peers

In recent days, several EU and non-EU countries have been in the news for taking asylum-seekers' assets upon arrival. Is this compatible with EU law? We examine first of all national practice, then the legislative history of the relevant EU rules, then reach our conclusions.  

Denmark

In November 2015 the Danish government presented among a catalogue of 34 measures to discourage people from seeking asylum in Denmark, to introduce the possibility to confiscate cash, jewellery and other assets of asylum seekers in other to make them contribute in the costs of their reception. They proposal caused heated debate after a Minister suggested that wedding rings could be also confiscated. In January the Social-Democratic Party voiced that it would only support this proposal of the centre-right minority government, only assets above 1,340 euro could be confiscated. The new law is to be voted on 26 January.

Similar practices or rules are to be found in the national law of other Member States.

Switzerland, only few asylum seekers concerned

According to Dutch newspapers, Swiss legislation requires asylum seekers who enter the country with more than 1,000 Swiss francs have report and hand over the surplus to the Swiss authorities. The rule only covers money, not other valuables such as personal jewellery. Of the 45,000 asylum seekers coming to Switzerland in 2015, only 112 had to hand in a surplus, totalling around € 150,000 that year. Not really an impressive amount. Most asylum seekers, apparently, do not carry large amounts of money, once they arrive in Western Europe. Besides, under Swiss law beneficiaries of protection with income from employment, have to pay 10% of that income to contribute to reception costs during ten years.

Germany, an old practice?

The German legislation on reception of asylum seekers, the Asylbewerberleistungsgesetz, provides, already several decades that asylum seekers can be forced to contribute from their own assets and income to the cost of their reception. Asylum seekers have to declare their assets and income. The rules for applicant for public social assistance are applicable. From the assets only 200 euro and the goods necessary for exercising a profession or employment are exempted (§ 7(5) of the law). German national TV news reported on 21 January 2016 that in Bavaria asylum seekers were asked by the police to hand over their cash in excess of €750. In Baden-Wurttemberg the threshold is €350. The federal law leaves room for difference in application between the Lander. A spokesman of the Baden-Wurttemberg minister of integration stated that although cash was taken from refugees in individual cases following police spot-checks, searches are not carried out on every refugee. He was quoted as saying "In the context of a general police check it was established that individual refugees had cash with them" and "Refugees are not being systematically searched for cash or valuables".

Netherlands, only contributions from income not from assets

The Junior Minister for Immigration recently told the press that that he was not going to follow the Danish and German example and force asylum seekers to hand over small amounts of cash and jewellery. His spokesman explained this is not on the agenda right now, since we do not expect that it will reduce the influx.” (Volkrant 23 January 2016) Already for decades asylum seekers in the Netherlands if lawfully employed (only possible after six months and until an asylum status is acquired for 24 weeks per year only) have to pay the surplus above 185 euro of his monthly income as a contribution in reception costs.

Compatible with EU law?

Are such rules and practices on seizure of assets in order to contribute in reception costs compatible with EU law, and especially with the Reception Conditions Directive 2013/33? We do not deal here with the question whether such confiscation of valuables and jewellery is compatible with Article 1 of the First Protocol and Article 8 ECHR.

The relevant provisions are to be found in Article 17(3) and (4) of the 2013 recast Reception Conditions Directive, reading:

“3.   Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.

4.   Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time.

If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when those basic needs were being covered, Member States may ask the applicant for a refund.”

Identical provisions were already present in Article 13(3) and (4) of the original Reception Conditions Directive 2003/9. They returned unchanged in the 2013 recast of the Directive. In order to understand those provisions it may be useful to have a short look at their legislative history. The various drafts are set out in more detail in the Annex, but we will summarise them here.

Legislative history of EU rules on financial contributions by asylum seekers

The Commission in its proposal for the original 2003 Directive (COM(2001)181) inserted an Article 19 on financial contributions. Member States could require applicants who can afford to do so to contribute to the cost of their material reception conditions. The relevant decisions should be taken individually, objectively and impartially and reasons shall be given. An effective judicial remedy against such decisions should be available, making explicit reference to Article 47 EU Charter.

During the first negotiations on this Article reaction eight Member States made proposals for amendments. Six Member States proposed to refer to “the general principle of the real need of the applicant, which would lead to entitlement to material benefits” (document 11320/01, p. 33). Germany proposed that “some of the applicant's income should be protected in all cases”. That proposal only covered the asylum seeker’s income. But it implied that all the income above a certain threshold could be seized by a Member State. The Netherlands made a similar proposal linking the asylum seeker’s contribution to his income: “if the applicant has a certain income, a contribution may be asked of him to cover some or all of the costs”. Both proposals intended to regulate a possibly contribution in reception costs, but did not include the asylum seekers’ assets as an object of seizure.

In January 2002 the text of Article 19 was consolidated with two other Articles in a new Article 18, entitled ‘Financial means test’ (document 5300/02). The Dutch proposal, concerning contribution out of income from employment was included. The German proposal, implying that a Member State could seize all income above a certain fixed threshold, did not find its way in this and later versions of provisions on financial contributions by asylum seekers. During the negotiations in February 2002 this Article was considerably shortened (a.o. replacing the general means test by the condition that the applicants do not have sufficient means to cover their basic needs, and deleting the reference to income from employment) and it was renumbered Article 17 (document 6253/02). Only three Member States made suggestions: Portugal and Greece pleaded for more reduction of the reception conditions, once an asylum seeker or his family member had been allowed access to the labour market. Germany proposed to integrate Article 17 in the general Article on material reception conditions.

Early March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency (document 6906/02). Parts of the former Article 17 were now included in Article 13, apparently following German suggestion.

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3 of Article 13. Moreover, the words “for example if they have been working for a reasonable period of time” were added in par. 4, re-introducing an explicit link with participation in the labour market again (document 7802/02). This version of Article 13 of the amended proposal was accepted by Coreper and by the Council in 2002 and became part of the Directive adopted with unanimity on 27 January 2003.

In addition, the 2013 recast Directive now states that Member States can refuse or withdraw benefits if asylum-seekers have ‘concealed financial resources’ (Article 20 of the 2013 Directive). The CJEU, in its CIMADE and GISTI judgment, has ruled that Article 20 sets out an exhaustive list of grounds for reducing or withdrawing benefits.

Analysis

If this legislative history is combined with the general principles of EU law and the EU Charter, we conclude:

(1) The issue of financial contributions by asylum seekers in material reception costs from their own means was been discussed repeatedly during the negotiations on the Directive.

(2) This issue was discussed repeatedly also in relation to the access of asylum seekers to the labour market in the Member State and the income derived from such employment.

(3) The Directive allows Member States to impose a means test for access to material reception conditions, but this does not entail confiscation of assets. The test is not whether the asylum seeker has more than a certain fixed amount of money or assets, but whether the asylum seeker does have sufficient means to have a standard of living adequate for his health and to enable his subsistence.

(4) Since (a) the issue of financial contributions by asylum seekers in material reception costs is covered by the directive and (b) the Directive sets out minimum standards in order to avoid second movements between Member State (recitals 7 and 8), Member States are not allowed to apply less favourable rules only more favourable rules (see recital 15); the Court of Justice repeatedly held that Member States cannot introduce other conditions than those provided for in the EU Directive or Regulation, see the judgments in Ben Alaya, Koushkaki and Air Baltic. Also, by analogy with the CIMADE and GISTI ruling, the grounds in the Directive to refuse or regulate access to benefits are surely exhaustive.

(5) Article 13(3) allows Member States to make the grant of material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. It follows that such decision to exclude an asylum seeker from material reception conditions can only be made after the Member State first has established that applicants have sufficient means to have a standard of living adequate for their health and to enable their subsistence in the Member State. In accordance with the general principle of proportionality in EU law, it is questionable whether a Member State could refuse any access to the benefits system, just because an asylum-seeker has a small amount of cash or valuables. Access should only be refused where the applicant either has an ongoing alternative source of funds, or the asylum-seeker has so much wealth that he or she could live off it for a considerable period of time.

(6) Article 13(4) allows Member States to require applicants to contribute to the cost of the material reception conditions and of the health care, when the applicants have sufficient resources. The conditions of paragraph 3 explicitly apply here as well. The Commission with regard to Article 19 of its proposal rightly stated: “Decisions on applicants’ contribution should be taken individually, objectively and impartially and reasons must be given if they are negative in order to make possible their review as accurate as possible.”

While, in the final version of the Directive this clause applies to the reduction or withdrawal of benefits, not the obligation to contribute toward costs, the general principles of EU law still require that national administrative decisions linked to EU law must be fair (see the CJEU’s YS and M and S ruling on asylum procedures, discussed here; and the Mukarubega and Boudjliba judgments on the return of irregular migrants, discussed here). This means that any decision on asylum-seekers’ contributions has to be an individual decision giving reasons, taking into consideration the individual situation of each asylum seeker.

Such decisions must also comply with other general principles of Union law, in particular the principle of proportionality, which means that any confiscation of property must be necessary to achieve a genuine government end. It is hard to see how it is necessary to confiscate property when a less severe measure (delaying or curtailing benefit payments by an equivalent amount, in accordance with the rules on a means test) could achieve the same objective. Again, the principle suggests that asylum-seekers should only be required to contribute where applicants either have an ongoing alternative source of funds, or have so much wealth that they could live off it for a considerable period of time.

It must also be possible to challenge any decision made by a national authority on confiscation, in accordance with Article 47 (the right to an effective remedy) of the EU Charter of Fundamental Rights.

(7) In conclusion: a national rule allowing authorities to confiscate all means of an asylum seeker above a fixed amount, irrespective of the individual circumstance on the grounds mentioned in point 4 and 6 above is not compatible with Union law.

(8) Of course, Denmark and Switzerland are not bound by the Directive, Denmark because of its opt-out and Switzerland because it is not a Member State. Ireland opted out as well. But all other Members State are bound by Directive 2013/33 and the UK is opted in and is bound by the original Reception Conditions Directive 2003/9.

*The paragraph on Germany was amended on 27th January 2016 to add further detail.
Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo: Danish police officer and asylum-seeker

Photo credit: www.channelnewsasia.com

Annex

Legislative history of Article 13(3) and (4) of Directive 2003/9 = Article 17(3) and (4) of Directive 2013/33 on financial contributions by asylum seekers in reception costs

In the Commission’s proposal for the original 2003 Directive COM(2001)181 there was a separate Article 19 reading:

Article 19

Financial contribution

1. Member States may require applicants who can afford to do so to contribute to the cost of

their material reception conditions or to cover it. Decisions to provide material reception

conditions not free of charge shall be taken individually, objectively and impartially and

reasons shall be given.

2. Member States shall ensure that applicants have the right to bring proceedings before a court against the decisions referred to in paragraph 1 and that they have access to legal assistance.

The Explanatory Memorandum to this Article 19 read:

“This Article concerns the financial contribution applicants for asylum may be asked to

provide if they are provided with material reception conditions.

(1) This paragraph allows Member States to require applicants who can afford it to contribute

to the cost of their material reception conditions. The purpose is to meet the Council’s

concern regarding the requirement of “inadequate” resources of the applicants for

asylum. In any case Member States should ensure that applicants for asylum have the

possibility of being housed as even applicants with sufficient financial means might find

it impossible to find suitable housing. Decisions on applicants’ contribution should be

taken individually, objectively and impartially and reasons must be given if they are

negative in order to make possible their review as accurate as possible.

(2) In conformity with the Charter of fundamental rights (Article 47) and in line with the

case law of the Court of Justice, this paragraph ensures that the decisions taken according

to paragraph 1 can be reviewed by a judicial body (including an administrative judicial

body such as the Conseil d’Etat in France) at least in the last instance.”

The first reaction of Member States on this Article was in document 11320/01, p. 33:

“D/E/NL/P/S and UK: reference should be made to the general principle of the real

need of the applicant, which would lead to entitlement to material benefits.

D: some of the applicant's income should be protected in all cases.

NL: stipulate that if the applicant has a certain income, a contribution may be asked of him

to cover some or all of the costs.

D and UK: establish a general principle laying down that Member States may decide

whether or not the applicant requires material benefits.

L and A: make provision for the case in which an applicant is invited to stay in the territory

of a Member State by a national who, if applicable, has served as guarantor for the purpose

of obtaining a tourist visa. In this case, it should be possible to call on the national to

contribute to the costs.

A: reservation on the second sentence in that it creates an obligation to notify these

decisions in writing.

3 A and S: reservation on the financial aspects of legal assistance.

D and UK: a general provision on forms of appeal at the beginning of the Directive should

be sufficient.

In January 2002 the text of Article 19 was consolidated in a new Article 18, consolidating several provisions of the proposal (document 5300/02):

“Article 18 (consolidating Articles 14 bis, 15(4) and 19)

Financial means test

1. Member States may make the grant of all or some of the material reception conditions,

as well as the requirement that applicants and their accompanying family members

cover or contribute to the cost thereof, subject to a financial means test of applicants and

their accompanying family members in accordance with the provisions of this Article.

2. Member States may also reduce or withdraw material reception conditions within a

reasonable period after applicants or their accompanying family members commence an

employment activity in accordance with Article 13, applying the test established in

paragraph 1.

3. Applicants and their accompanying family members may be subject to one or more of

the measures provided for in paragraphs 1 and 2 when it is confirmed that they have

sufficient means.

4. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given.”

In February 2002 this Article was considerably shortened (a.o. deleting the means test and the reference to income from employment) and renumbered as Article 17, reading together with the footnote by Member States and the Commission (document 6253/02):

“Article 17 (formerly 18)1

Financial means criteria

1. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to cover their basic needs.

2. If it transpires that an applicant had sufficient means to cover these basic needs at the time

when material reception conditions were being provided, then Member States may ask these

to refund.2

3. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given. 3

1 D : this provision should be placed at the end of Article 15.

2 P, supported by EL, suggested adding the following :

"3. Member States may also reduce or withdraw material reception conditions within a

reasonable period after applicants and their accompanying family members have been

allowed access to the labour market in accordance with Article 13, applying the test

established in paragraph 1.

4. In the cases referred to in paragraph 3, if they are not financially independent, Member

States shall grant them the food allowance mentioned in Article 8 and access to basic

social care."

(present paragraph 3 would become 5).

3 Cion : reinsert a paragraph which was included in 12839/01 ASILE 49 (former

Article 14A(6)) :

"Member States shall ensure that before the decisions referred to in paragraph 2 are notified to

the applicants for asylum [and their accompanying family members] the other Articles of

Chapter III of this Directive are applied".

At its meeting on 5 and 6 March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency, document 6906/02. Parts of the former Article 17 were now included in Article 13, apparently following the suggestion made before by Germany with regard to that former Article 17.

Article 13

General rules1

1. Member States shall ensure that material reception conditions are available to applicants when they make their application.

2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health and the well-being of applicants.

Member States shall ensure that standard of living is met in the specific situation of persons

who have special needs, in accordance with Article 17, as well as in relation to the situation of

persons who are in detention.

3. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and well-being.2

4. Member States may require applicants to cover or contribute to the cost of the material

reception conditions and of the health care provided for in this Directive, pursuant to the

provision of paragraph 3, when the applicants have sufficient resources.

5. Material reception conditions may be provided in kind, or in the form of financial allowances or vouchers or in a combination of these provisions.

Where Member States provide material reception conditions in the form of allowances or

vouchers, their amount shall be set in accordance with the principles set for in this Article.

1 A : a general rule providing for exceptions to be applied by Member States in extraordinary

situations should be introduced.

2 B, D, F and P : the term "well-being" is s too vague and should be defined.

NL, S, UK : say "to enable their subsistence" instead of "to have a standard of living adequate

for their health and well-being".

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3. Besides the words “for example if they have been working for a reasonable period of time” were added in par. 4, introducing an explicit link with participation in the labour market again (document 7802/02).

This version of Article 13 of the amended proposal was accepted by Coreper and by the Council. It became part of the Directive adopted on 27 January 2003

Removal orders and the right to be heard: the CJEU fails to understand the dysfunctional French asylum system

 

 

Marie-Laure Basilien-Gainche

Professor in Law

University Jean Moulin Lyon III

Member of the Institut Universitaire de France

 

Introduction

 

The meaning of the right to be heard under the so-called Returns Directive (Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals) was recently under the scrutiny of the Fifth Chamber of the Court of Justice of the European Union (CJEU). After giving its interpretation on the application of the right to be heard as regards the decision to place a third-country national in detention (CJEU, 2^nd Chamber, 10 September 2013, M. G. & N. R. contreStaatssecretaris van VeiligheidenJustitie, C-383/13 PPU), the Luxembourg Court was asked to clarify how this right applied to irregular third-country nationals before a removal order was adopted against them. The Court did so in two new rulings, both following the opinion of the Advocate General Melchior Wathelet delivered on 25 June 2014: firstly, the judgment of 5 November 2014 in Sophie Mukarubega v. Préfet de police, Préfet de la Seine-Saint-Denis (C-166/13; see ML Basilien-Gainche& T Racho, ‘Quand le souci d’efficacité de l’éloignement l’emporte sur l’application effective des droits fondamentaux’ (18 November 2014) La Revue des droits de l’homme.); and secondly, on 11 December 2014, Khaled Boudjlida v Préfet des Pyrénées-Atlantiques, case (C-249/13).

 

It must be noticed here that the French Supreme Administrative Court did not wait until the CJEU answered these questions, which the CJEU had been asked by some French administrative jurisdictions of first instance (the Tribunal Administratif de Melun and the Tribunal Administratif de Pau respectively). Indeed the French Conseild’Etat defined its own position on the matter in a decision published last June (CE 4 juin 2014, M. A. B., App. No 370515) : the right to be heard does not require the administrative authorities to give to the third-country national the opportunity to present his own observations on the removal order at stake, insofar that he was able to be heard before the adoption of the decision refusing him a residence permit (« dans le casprévu au 3° du I de l'article L. 511-1 du code de l'entrée et du séjour des étrangers et du droit d'asile, où la décisionfaisant obligation de quitter le territoirefrançaisest prise concomitamment au refus de délivrance d'un titre de séjour, l'obligation de quitter le territoirefrançaisdécoulenécessairement du refus de titre de séjour ; que le droit d'être entendun'impliquealors pas quel'administration ait l'obligation de mettrel'intéressé à même de présenterses observations de façonspécifiquesur la décisionl'obligeant à quitter le territoirefrançais, dèslorsqu'il a puêtreentenduavantquen'intervienne la décisionrefusant de luidélivrer un titre de séjour » (para 7)).

 

Yet the CJEU recognizes the importance of the right to be heard, even though the Return Directive does not establish a specific procedure for hearing a third-country national before the adoption of a return decision. In particular, the CJEU concedes that the Directive does not “specify whether, and under what conditions, observance of the right to be heard of those third-country nationals [is] to be ensured” (decision, Mukarubeaga case, para 41). Why did the Court nevertheless recognise the right to be heard? Because “the procedural autonomy of the Member States together with the absence of a specific procedure in Directive 2008/115 cannot result in a third‑country national being deprived of the right to be heard by the competent national authority before the adoption of a return decision” (AG opinionWathelet, Boudjila case, para 56), as far as the right to be heard is considered by the CJEU as a fundamental right (1).

 

Anyhow, such a strong consecration of the principle of this right is not complemented by the a strong protection of its implications, deceptively depriving this right of all its substance (2). This was the position of the Court in its M. G. & N. R. decision, as it considered the consequences of the violation of the right to be heard as regards detention: according to the CJEU, the infringement of this right as regards the adoption of a decision to extend the detention period has to be sanctioned, if the outcome of that administrative procedure would have been different if the third-country national concerned had been heard (CJEU, 2^nd Chamber, 10 September 2013, M. G. & N. R. contreStaatssecretaris van Veiligheiden Justitie, C-383/13 PPU). The most recent judgments are also deceptive because they consume the substance of the right of be heard: insofar as the Court does not pay any attention to the factual circumstances of the administrative proceedings at stake, it fails give any consistency and thus any effectiveness to the right to be heard, to the great relief of the French government and certainly also of the other Member States.

 

1 – The legal basis of the right to be heard: a fundamental general principle

 

According to Advocate General Melchior Wathelet, the legal basis of the right to be heard had to be found in the Charter of Fundamental Rights of the European union (CFREU), more precisely in Article 41(2) on ‘Right to good administration’, which involves “the right of every person to be heard, before any individual measure which would affect him or her adversely is taken”. In his conclusions in both cases, the Advocate General asserted the applicability of this provision to the Member States, meaning that they have to respect it when adopting decisions falling within the scope of EU law (AG opinion, Mukarubega conclusions, para 56). In his view, it would be inconsistent and incoherent to consider that the wording of Article 41(1) CFREU (“Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union”) means that provision applies solely to the EU institutions and bodies, and therefore not to Member States even when applying EU law (ibidem): such an interpretation would affect the scope of the Charter as defined in its Article 51 (“The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law”).

 

This opinion of the Advocate General seems to be in conformity with the jurisprudence of the Court, particularly with its decision in the M.M.case (CJEU, 22 November 2012, C‑277/11; see ML Basilien-Gainche, ‘Protection subsidaire: Droit de l’étranger à êtreentendudurantl’instructiond’unedemande de protection subsidiaire’ (24 November 2012) La revue des Droits de l’Homme). After explaining that “the right to good administration includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions” (para 53), the CJEU asserted actually that Article 41(2) of the Charter was of “general application” (para 84). For sure, the wording of this statement must have been rather uncertain, as far as the CJEU did not follow the Advocate General on the question of the legal basis of the right to be heard in national proceedings.

 

But the Court did not follow the opinion on this point. Instead it ruled that “it is clear from the wording of Article 41 of the Charter that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union”, so much so “an applicant for a resident permit cannot derive from Article 41(2)(a) of the Charter a right to be heard in all proceedings relating to his application” (decision, Mukarubega case, para 44; decision, Boudjlida case, para 32). This does not mean that the right to be heard does not apply to the decisions adopted under Directive 2008/115/EC; it only means that the legal basis of such a right is not Article 41(2) CRFEU. The Luxembourg Court instead insisted that “observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent” (decision, Mukarubega case, para 42, citing CJEU, Sopropé, C-349/07, M.M., C‑277/11, and Kamino International Logistics, C-129/13 & C-130/13; decision Boudjlida case, para 30, citing Kamino International Logistics, C-129/13 & C-130/13, and Mukarubega, C-166/13); and hence that “such a right is however inherent in respect for the rights of the defence, which is a general principle of EU law” (decision, Mukarubega case, para 45; decision Boudjlida case, para 34).

 

Consequently, the CJEU affirms that the legal basis of the right to be heard which Member States have to respect during national proceedings, particularly those under Directive 2008/115/EC, has to be found not in the Charter of Fundamental Rights (Article 41(2)), but in the “fundamental principle of EU law” of the rights of the defence. This seems to illustrate one more time how shy the Court is to affirm the prevalence of the Charter, choosing rulings after ruling to base its decision upon the EU treaties or the principles of EU law more than upon the Charter. Moreover, even though the expression appeared before (ECJ, 28 March 2000, Dieter Krombach, C-7/98, para42 ; CJEU, 22 November 2012, M.M.,C-277/11, para 82 ; CJUE, 3 July 2014, Kamino International Logistics,C-129/13 & C-130/13, para 28), we can wonder if a hierarchy is appearing among the general principles of EU law, some such principles being elevating to the status of  “fundamental principle”: this should imply some consequences for the guarantee of their respect and to the sanction of their infringements, though we do not know of course how the case law will develop in future on this point. Furthermore, as far as the right to be heard is thus consecrated as a “fundamental principle of EU law”, Member States have to ensure its respect when they adopt measures which come within the scope of EU law and which significantly affect the interests of the considered addressees (decision, Mukarubega case, para 50; decision Boudjlida case, para 42).

 

Whereas the Court presents the right to be heard as part of the rights of the defence which constitute a fundamental principle of EU law, it does not fully guarantee the consequences of such an assertion regarding the scope of this right. This fundamental principle is exposed deceitfully by the CJEU with a highly restricted extent and content. As the Advocate General emphasises, “Article 52(1) of the Charter […] allows limitations on the exercise of the rights enshrined in the Charter, in so far as the limitation concerned is provided for by law, respects the essence of the fundamental right in question and, subject to the principle of proportionality, it is necessary and genuinely meets objectives of general interest recognised by the European Union”, so that “the rights of defence do not constitute unfettered prerogatives and may be restricted in certain circumstances” (AG opinion, Mukarubega case, para 53; AG opinion, Boudjlidacase, para 57).

 

So, although it is fundamental, the principle of the right to be heard can be limited. And in these two cases we can see how far and deep such limitations can go. In order to really understand the implications of the decisions of the CJEU, and consequently to truly appreciate the weakness (even ineffectiveness) of the right to be heard for third-country nationals concerning the adoption of removal orders against them, a presentation of the facts of each case is genuinely useful.

 

2 – The practical scope of the right to be heard: a really limited substance

 

The first decision concerns the case of Sophie Mukarubega, a Rwandan national, who entered France on 10 September 2009 in possession of a passport bearing a visa. She lodged an asylum application on 4 December 2009, and therefore held a temporary residence permit during the examination of her claim. By a decision of 21 March 2011, the Office français de protection des réfugiés et apatrides (OFPRA) rejected her application for asylum, after hearing her narrative retelling (the implications of a refusal of a residence permit or of an adoption a removal order were thus not at stake). She brought an action against that decision before the Cournationale du droit d’asile (CNDA): this was heard on 17 July 2012, but was dismissed by a decision adopted on 30 August 2012 and notified on 10 September 2012. On 20 September 2012, she presented herself to the aliens service of the Préfecture de Police de Paris, in order to bring the proof of her employment for 24 months and to apply for an admission for exceptional and humanitarian reasons; but she faced what French immigration law specialists call a “refusguichet”, as the administrative authorities did not let her access the office to present her application. It must be emphasized that these facts are not mentioned either in the opinion of the Advocate General or in the decision of the Court, though they are presented in the observations submitted on behalf of Sophie Mukarubega by her lawyer Bruno Vinay, and though they are of main importance to appreciate the real (in)effectiveness of the right to be heard in this case.

 

Yet, on the basis of the rejection of her asylum application, the Préfet de Police de Parison 26 October 2012 issued a refusal of residence permit and an obligation to leave the French territory against Sophie Mukarubega. However, she remained in the French territory, and tried to travel to Canada, using a fraudulently obtained Belgian passport on 4 March 2013. She was then arrested and detained in custody, so the Préfet de Seine-Saint-Denis adopted on 5 March 2013 a removal order without a period for voluntary departure because of the risk of absconding. She was thus placed in a detention centre.

 

Next, she was heard by the OFPRA (the date is not indicated), and by the CNDA (on 17 July 2012), but solely on the grounds for being granted an international protection status: these hearings did not deal with the questions of the importance of a residence permit or the consequences of a removal order. Strangely, the CJEU does not take into account such a main procedural element, whereas “procedural decisions are often the only vehicle for taking substantive rights seriously” (Hiroshi Motomura, ‘The curious evolution of immigration law : procedural surrogates for substantive constitutional rights’ (November 1992) Columbia Law Review 1656). Afterwards, she was heard – interrogated would be actually a more suitable word – during her custody: weirdly, the Court does assert that such “police interrogation”, as the Advocate General described it in his opinion (para 31), can be considered as an hearing, though the questions asked concerned the use of fraudulent documents and not the change in her situation registered since she applied for asylum three years before.It must be emphasized how puzzling the position of the Court is: it asserts that Sophie Mukarubega “was able effectively to submit her observations on the illegality of her stay”(decision, Mukarubega case, para 70). Hence the Court misunderstands the French immigration and asylum system, when suggesting that she was heard about her stay, as far as this issue was not discussed either at her hearings at the OFPRA and the CNDA, or at her police interrogation at the airport.

 

Furthermore, the CJEU does not pay any attention to the fact that a period of 30 months passed between the first and the second removal orders, during which some substantial changes occurred that modified the way Sophie Mukarubegas situation could have been appreciated by the national authorities. Only the Advocate General considers that element, but in a quite odd manner: he concludes that “It is for the referring court to verify whether the change since the filing of her application for asylum in her personal circumstances, alleged in that second case by Ms Mukarubega, constitutes a reason for rendering her situation legal under Article L.313-14 of the CESEDA”, before adding that “the referring court must ensure that the application in question was filed in good faith and does not merely constitute a delaying tactic by Ms Mukarubega with the sole intention of delaying or even jeopardising the procedure before the national authorities and the possible adoption of a return decision” (AG opinion, Mukarubega case, para 87). Moreover, the Advocate General quotes the French Government observations according to which “a third‑country national who has been refused a residence permit may, at any time, present himself at the prefecture in order to be heard there again for the purpose of submitting new evidence with a view to rendering his situation legal” (AG opinion, Mukarubega case, para 81): does the Advocate General realize that going to the prefecture for an irregular migrant is the best way to be apprehended and returned without his changed situation even being considered?

 

The Courts position is both clear and upsetting: as regards “the obligation to hear her specifically on the subject of the return decision before the adoption of that decision...a national authority is not precluded from failing to hear a third-country national specifically on the subject of a return decision where, after that authority has determined that the third-country national is staying illegally in the national territory on the conclusion of a procedure” (decision, Mukarubega case, para 82), because this “would needlessly prolong the administrative procedure, without adding to the legal protection of the person concerned” (decision, Mukarubega case, para 70). Meanwhile “the obligation of the Member States to combat illegal immigration must be maintained” (decision, Mukarubega case, para 71). From this perspective, the Court can affirm that “the adoption of a return decision is the necessary result of a decision determining that the person concerned is staying illegally” (decision, Mukarubega case, para 59), even though this assertion implies a lack of distinction between the different administrative decisions (the one on the asylum application, the one on the residence permit, the one on the removal order). It considers these to form part of the same administrative procedure, which is greatly questionable.

 

3 – The very thin substance of the right to be heard

 

While the Mukarubega case (C-166/13) reveals how limited the extent of the right to be heard is according to the Luxembourg Court, the Boudjlida case(C-249/13) exposes the Courts restricted view of the content of this right. Khaled Boudjlida, an Algerian national, entered France on 26 September 2007 in order to pursue higher education. As he held a ‘student’ residence permit that he renewed on an annual basis, his stay in France was lawful until 31 October 2012. Since he did not apply for a renewal of his last residence permit, he became then an irregular third-country national. On 7 January 2013, he applied to register himself as a self-employed businessman in order to establish a micro-business in the field of engineering.

 

While he was attending an appointment with the relevant authorities, he was asked on 15 January 2013 by the border police to come to their office to be questioned on the lawfulness of his stay. He voluntarily complied with that invitation: he was interviewed by the police on his circumstances with regard to his right of residence in France. The same day, the Préfet des Pyrénées-Atlantiques issued a decision imposing on him the obligation to leave the French territory, granting him a period of 30 days for his voluntary return to Algeria. He  introduced a remedy against this decision, claiming for its annulment before the Tribunal administratif de Pau. He claimed he was not in a position to analyse all the information relied on against him, since the French authorities did not disclose that information to him beforehand, did not allow him an adequate period for reflection before the hearing, did not offer him the benefit of a legal assistance, and only spent some 30 minutes interviewing him.

 

By deciding to stay the proceedings and to refer to the CJEUfor a preliminary ruling, the Tribunal administratif de Pau offered the opportunity to clarify the exact content of the right to be heard. Indeed, the French first instance administrative jurisdiction asked the Luxembourg Court if such a right includes, for the third-country national in respect of whom a decision falls to be taken as to whether he is to be returned, “the right to be put in a position to analyse all the information relied on against him as regards his right of residence, to express his point of view, in writing or orally, with a sufficient period of reflection, and to enjoy the assistance of counsel of his own choosing”. To this question, the Advocate General proposed answers that seem to deprive this right of any substance. Actually, he does not consider thatthe right to be heard can “be interpreted as meaning that the competent national authority is obliged, before, issuing a return decision, to supply the person concerned with the evidence on which it intends to base that decision and to seek that person’s observations in that regard after a period of reflection” (AG opinion, Boudjlida case, para 67); “that the length of the interview is a decisive factor” (AG opinion, Boudjlida case, para 76); and that Member States are “required to bear the costs of that assistance by providing free legal aid” (AG opinion, Boudjlida case, para 76).

 

Let us make here one remark about the length of the interview. Does anyone really think that 30 minutes in the case of Khaled Boudjlida and 40 minutes in the case of Sophie Mukarubega is enough time to assess the complexities of the situation of such third-country nationals? Can anyone accept that such interviews take place without a lawyer /counsellor and an interpreter?

 

Yet the Court follows the opinion of its Advocate General so much so we can wonder what the exact content of the right to be heard really is. This right does not include the right to prior notification of the authority’s argument (“it does not require a competent national authority to warn the third-country national, prior to the interview arranged with a view to that adoption, that it is contemplating adopting a return decision with respect to him, or to disclose to him the information on which it intends to rely as justification for that decision”, decision, Boudjlida case, para 69); the right to benefit from a period of reflection (“it does not require a competent national authority […] to allow him [the third-country national] a period of reflection before seeking his observations”, decision, Boudjlida case, para 69); the right to be provided with free legal assistance (“it does not require Member States to bear the costs of that assistance by providing free legal aid”, decision, Boudjlida case, para 71, as far as ““an illegally staying third-country national may have recourse, prior to the adoption by the competent national authority of a return decision concerning him, to a legal adviser in order to have the benefit of the latter’s assistance when he is heard by that authority”, decision, Boudjlida case, para 70).

 

First, we obviously have to be worried by the limitation the CJEU affirmed concerning the right to benefit from a legal assistance: its statement according to which the exercise of such a right must “not affect the due progress of the return procedure” and “not undermine the effective implementation of Directive 2008/115” (decision, Boudjlida case, para 70) might lead a national authority to refuse any legal assistance to an illegally staying third-country national, since such assistance would obviously aim to prevent the implementation of the removal orders. Second, more generally, the right to be heard appears to be a purely formal right without any substantive content. It is incredible that the Court asserts that there is a presumption that “the third-country national has the opportunity effectively to present his point of view on the subject of the illegality of his stay and the reasons which might, under national law, justify that authority refraining from adopting a return decision” (decision, Boudjlida case, para 69).How can the CJEU assert such an assumption? We have to ask the Court: when and where did these illegally staying third-country nationals have an effective opportunity to do this? ?

 

Conclusion

 

In these recent rulings, the CJEU restricts the extent and the content of the right to be heard for third-country nationals facing removal orders, so much so that this supposedly fundamental right appears to be nonexistent. The Court claims that such limitations upon the right correspond to “objectives of general interest pursued by” Directive 2008/115/EC and “do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed”(decision, Mukarubega case, para 53). How can we agree that restraining the scope of the right to be heard for irregular migrants pursues the objective of general interest of the fight against illegal migration, and is proportionate to the imperatives of achievement of such an objective? How deplorable for the Court to consecrate the fight against illegal migration! How dreadful for the Court to validate in this way the ‘legal fabric of illegality” (N de Genova, ‘The Legal Production of Mexican/Migrant Illegality’ (1996) 2/2Latino Studies 160-185; N de Genova, B Neilson & W Walters, ‘Foucault, Migrations, Borders’ (2011) 2/3MaterialiFoucaultiani149-213). Definitely, the political evil is found in the procedural details.