A candle in the dark: the CJEU rules against criminalising parents for smuggling their children

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Bologna, taken by Ввласенко, via Wikimedia Commons

Introduction

The world is increasingly bleak for those concerned about civil liberties, poverty or climate change – including for those concerned about the right to asylum and the rights of migrants more generally in Europe. Constraints on those rights have reached the point where a law supposedly intended to combat wicked gangs of people smugglers ended up potentially being applied to criminalise a mother who applied for asylum for assisting her little girl to enter a Member State illegally with her.

In today’s judgment in Kinsa, the Court of Justice ruled that this interpretation of EU law went too far. But there’s a twist: there’s a proposal to amend the legislation, tabled a few months after the Kinsa case was referred to the CJEU, and Member States tried to foresee the Court’s judgment, taking the opportunity to build themselves an escape route to get around it. Yet there’s a further twist here: today’s judgment implicitly appears to be aware of the Member States’ plans, and subtly attempts to block that escape route. It’s the latest move in an unstated game of cat-and-mouse between the EU legislature and judiciary. But above and beyond these games, the Court’s judgment also has broader implications for the highly controversial relationship between criminal law and immigration and asylum law.

 

Background

Current law

The current EU law on smuggling of migrants – or, more precisely, the facilitation of illegal entry or stay – is set out in two parallel linked laws adopted in 2002: a Directive setting out the prohibition on facilitating illegal entry or stay, and a Framework Decision providing for criminal offences based on the prohibition. According to the 2002 Directive, Member States must impose ‘appropriate sanctions’ on anyone who ‘intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’ (illegal entry), and anyone ‘who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens’ (illegal stay; italics added).

While the prohibition on assisting illegal stay is subject to the requirement that such assistance must be ‘for financial gain’, the prohibition on facilitating illegal entry is not. However, the Directive goes on to say that any Member State ‘may decide not to impose sanctions’ in ‘illegal entry’ cases, ‘by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned’.

The Framework Decision then requires Member States to penalise the facilitation of illegal entry or illegal stay (as defined in the Directive) via the  criminal law, although the level of that penalty is only set out for the most serious cases (where the offence was committed as part of an organised crime group, or ‘while endangering the lives of the persons who are the subject of the offence’). However, it includes a safeguard for asylum:

This framework Decision shall apply without prejudice to the protection afforded refugees and asylum seekers in accordance with international law on refugees or other international instruments relating to human rights, in particular Member States' compliance with their international obligations pursuant to Articles 31 and 33 of the 1951 Convention relating to the status of refugees, as amended by the Protocol of New York of 1967.

Proposed law

The Commission’s proposal to replace the two 2002 measures with a single Directive would make a number of changes to that law, but I’ll focus on the scope of criminalisation of assistance (for a full discussion of the proposal and the Member States’ response to it, see my analysis here).

On this point, the obligation to criminalise either illegal entry or illegal stay would be limited to ‘financial gain’ cases, and the preamble clarifies that these elements of the offence:

…will usually not be fulfilled when it comes to assistance among family members or the provision of humanitarian assistance or the support of basic human needs. Third-country nationals should not become criminally liable for having been the subject to such criminal offences. Moreover, it is not the purpose of this Directive to criminalise, on the one hand, assistance provided to family members and, on the other hand, humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with legal obligations.

A version of the current asylum safeguard would also appear in the preamble:

Member States should apply this Directive in accordance and in full compliance with the 1951 Convention Relating to the Status of Refugees as amended by the Protocol of New York of 1967, obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights.

However, this is only the Commission’s proposal. EU legislation must also be agreed by the Council (ie Member States’ representatives) and the European Parliament. According to the Council’s version, agreed last December (after the Advocate-General’s opinion in the Kinsa case, but before today’s judgment) the preamble expressly reserves the possibility for Member States to criminalise support not motivated by financial benefits (new text underlined):

Assistance of unauthorised entry, transit or stay in the Union should constitute a criminal offence at least when there is a link with an actual or a promised financial or material benefit. This is without prejudice to the way in which Member States deal in their national law with facilitation conducts for which an actual or a promised financial or material benefit is not a constituent element of the offence.

A wholly new recital in the preamble makes the point even more clearly (italics are mine):

This Directive is an instrument of minimum harmonisation. As a consequence, Member States are free to adopt or maintain legislation providing for a broader incrimination than what is set out in this Directive, in the interests of enhancing the effectiveness of the fight against migrant smugglers. Member States should ensure that intentionally assisting a third-country national to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals constitutes a criminal offence at least where the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit. However, since this Directive is an instrument of minimum harmonisation, Member States are free to criminalise such conduct when no financial or another material benefit has been provided.

And the Commission’s proposed recital stating that family members should not themselves be criminalised, is replaced by a recital giving Member States more leeway to do just that:

Nothing in this Directive should be understood as requiring the criminalisation, on the one hand, of assistance provided to close family members and, on the other hand, of humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with the applicable national and international legal framework.

For its part, to date the European Parliament has not yet agreed its negotiation position on the issue, although there is a draft report on the proposal that exempts humanitarian assistance from criminal liability, and is critical of criminalising family members in the preamble:

(7a) Where an individual or organisation offers assistance to migrants through actions which are selfless and from which no financial or other material benefit is derived, or which are based on the principles of humanity, neutrality, impartiality and independence, then those actions should not be criminalised. Such actions may include the carrying out of search and rescue operations in accordance with international law, assistance to family members, assistance to third-country nationals in situations of danger or distress, the provision of legal assistance, medical assistance, healthcare, housing, shelter, clothing, food and water to third-country nationals or supporting third-country nationals in asserting their rights.

However, it remains to be seen whether the majority of MEPs support the draft report.

 

The Kinsa case

The mother being prosecuted in this case came originally from the Congo, flying to Bologna, Italy from Casablanca, with an 8-year-old and a 13-year-old girl (one was her daughter; the other was her niece, who she was looking after since the girl’s own mother died). (Some of the facts are omitted from the Court’s judgment; there’s more detail in the summary of the national court reference) Although she and the children did not enter via an unsafe vessel across the Mediterranean, they all travelled on false passports, and the Italian authorities decided that she should be prosecuted for breach of the EU Directive and Framework Decision, as implemented in national law, because she assisted the girls’ entry. She subsequently applied for asylum (the fate of that application is unknown).

In the criminal case, the national court had doubts that the EU legislation or its national implementation was compatible with the EU Charter of Fundamental Rights, particularly given that there was no mandatory exclusion for humanitarian assistance. It therefore asked the CJEU if the EU legislation was invalid, or alternatively if EU law precluded Italian law’s implementation of it on this point.

According to the Advocate-General’s opinion, the EU Directive was valid, and obliged Member States to criminalise a mother in these circumstances, although Member States must impose lower penalties in such cases, due to the Charter rule on proportionality of criminal penalties.

The CJEU took a radically different view.

It began by noting that EU legislation should be interpreted in conformity with the Charter as far as possible, in effect redrafting the national court’s questions to focus on Articles 7, 18 and (added by the Court) 24 of the Charter (respectively the rights to family life and asylum and rights of the child).

Interpreting the wording of the Directive, in the Court’s view, the prohibition of assistance to illegal entry was broad; it neither expressly included or excluded its application to those who assisted the illegal entry of children they had effective custody over. But the Court rejected the application of the prohibition of assistance to such cases, for several reasons.

First of all, it was inconsistent with the objectives of the EU law, which concerned assistance to illegal immigration, not the exercise of parental responsibility.

Secondly, this would contradict the right to family life (in particular the family unity of parents and children) and the rights of the child set out in the Charter (the right to protection and care, the best interests of the child, and the right of contact with parents); the latter right is also relevant to decisions addressed to adults which have major consequences for children. As the explanations to the Charter state, the UN Convention on the Rights of the Child (CRC) is relevant too; and that Convention refers to parents or guardians having the primary responsibility for children. It followed that the prohibition in EU law could not apply in these circumstances, even if the mother herself entered unlawfully.

Moreover, the Court ruled that applying the prohibition in such cases would undermine the ‘essence’ of these fundamental rights (see Article 52 of the Charter), given that a parent or guardian is simply exercising their responsibility to look after the children.

Thirdly, applying the prohibition to such case would breach the right to asylum in the Charter too; this right was relevant given the mother’s subsequent asylum application. Both the Charter and (as we have seen) the EU legislation concerned require compliance with the Refugee Convention. In particular, the Court referred to Article 31 of that Convention (also referred to explicitly in the EU legislation), which states that:

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1 [ie the definition of ‘refugee’], enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Similarly, the Court referred to a number of related points: the obligation set out in the Schengen Borders Code to apply that Code in accordance with human rights, the Refugee Convention, and non-refoulement; the right to submit an asylum application despite any illegal stay, after which the stay could not be considered illegal until a first-instance decision on the application; the prohibition on Member States dissuading an applicant for applying for asylum, without reasonable justification (on the last two points, referring to its judgments in Commission v Hungary (Reception of applicants for international protection), Commission v Hungary (Criminalisation of assistance to asylum seekers) and Commission v Hungary (Declaration of intention prior to an application for asylum); it’s fair to assume that the Hungarian government’s observations in the Kinsa case were unpersuasive); the EU reception conditions Directive and qualification directive refer to the best interests of the child and family unity; and the Final Act to the Refugee Convention refers to family unity of refugees too.

So, in the Court’s view, as an asylum-seeker the mother could not be prosecuted either for her own illegal entry or for accompanying her daughter and niece.  

Fourthly, the Court noted that – as the Commission, and indeed many critics of EU law in this field point out – a narrower reading of the obligation to criminalise for assisting illegal entry is confirmed by the protocol on smuggling of migrants, attached to the UN Convention on organised crime, which the EU and Member States have ratified, and which the EU legislation was intended to give effect to. The Court noted that the intention of the protocol is to criminalise the smuggling of migrants, while protecting the rights of those migrants. However, it also points out that other conduct, such as trafficking in people or sexual exploitation of children, could be criminalised.  

Finally, the Court addressed remedies. Its interpretation of the EU legislation had addressed the argument that this legislation might be invalid for breach of human rights. As for the national law, Member States could not breach fundamental rights when implementing EU law; so when transposing the 2002 Directive, they could not include conduct not covered by it, in breach of Articles 7 and 24 the Charter. In any event, the Court ruled that those provisions of the Charter were, in effect, directly effective; if a national court could not interpret national law consistently with the Charter, it would have to disapply that conflicting national law, ie the principle of supremacy/primacy (referring to Egenberger on enforcing Charter equality rights; on that judgment see here). The judgment did not comment on whether or not Article 18 of the Charter could be used in the same way.

 

Comments

There’s…a lot to unpack here. I’ll discuss in turn: the family life and rights of the child aspects of the judgment; its broader implications for asylum and immigration law; and the even broader legal and political context of the Court’s judgment.

Family life and rights of the child

The Court’s first point (distinguishing between control of irregular migration and parental responsibility) is solely connected to the parent/child relationship, but its second point (the Charter rights to family life and rights of the child, plus the CRC) is potentially broader – as there are family relationships other than the parent/child link. Although the Court’s analysis of the issues is understandably focussed on the facts of this case, there may be other circumstances where it might be relevant by analogy: assistance for other family members, or assistance from a parent already on the territory. The Court’s strong emphasis on the rights of the child aspects (covering all three paragraphs of Article 24 of the Charter, plus the CRC) could be relevant to other issues besides irregular entry; and the very strong remedy – disapplying national law in breach of Articles 7 and 24 of the Charter – could be applicable to many EU law issues inside and outside the scope of immigration or asylum law. And the Court’s ruling that this issue goes to the ‘essence’ of the rights in question makes it impossible to justify a limitation on those rights. (The Court doesn’t discuss whether or not the restriction goes to the essence of the right to asylum or not)

Having said that, the issue of humanitarian assistance goes beyond family relationships: the impulse to rescue strangers is distinct from a mother’s (or father’s) love for their child. In the context of revising the EU legislation on this issue, could the EU legislature simply leave the possible criminalisation of family support out of the law altogether – leaving Member States free to decide whether to criminalise it, untroubled by the constraints of EU law, because they would not be implementing it? Equally, could they evade those constraints as regards humanitarian assistance generally – as the Council’s negotiation position on the Commission’s proposal to amend the law seeks to do – by simply leaving the issue outside the scope of that law? With one bound, could the Member States be free?

Not so fast. While the CJEU could perhaps have confined its analysis to the family life and rights of the child points, it did not – choosing also to answer the national court’s questions about the right to asylum, and doing so in a particularly broad way.

Right to asylum

The mother’s subsequent application for asylum is crucial to the impact of this case – giving the national court the opportunity to ask about the Charter right, thus allowing the CJEU to wax lyrical about a wide swathe of EU asylum and border control law, plus the Refugee Convention.

Starting with the Convention, the Court’s willingness to refer to and apply Article 31 of the Convention – ruling out the prosecution of the mother for illegal entry even though the national court did not ask about that (it’s not even clear if she was charged for it) – is striking. The Court has perhaps forgotten that back in 2014, in the case of Qurbani (discussed here) it claimed that it had no jurisdiction to interpret Article 31 of the Convention. This was very unconvincing, given the express or implied references to that Article in EU law (in the main text of the smuggling Framework Decision and implicitly in the human rights safeguard in the borders code, both referred to in this judgment; Article 31 is also mentioned in the preambles to other EU asylum law), and its obvious relevance to criminalisation of immigration.

Having finally worked up the enthusiasm to discuss Article 31, the Court applies it without much analysis – possibly because it was not even asked about criminal penalties for the mother’s own illegal entry, or perhaps because of the other legal factors it mentioned before reaching its conclusion that she could not be prosecuted for her own illegal entry or for assisting that of the children.

But let’s look at the Article 31 issues in this case. The Court obviously (and surely correctly) assumes that criminalisation of illegal entry constitutes a ‘penalty’ for the purposes of Article 31; the definition of ‘penalty’ is an issue as regards other restrictions following illegal entry, though. The Court also assumes that asylum-seekers – not only recognised refugees – are covered by Article 31.  Another key issue in the interpretation of Article 31 is the meaning of ‘coming directly’: here, the summary of the facts indicates that the family originated in Congo but flew to Italy from Morocco, and the details of their travel to Morocco are not mentioned. Arguably the Court has implicitly accepted that an asylum-seeker must still be regarded as ‘coming directly’ even though they went through an intermediary country, but does this only apply if direct flights were unavailable? (We don’t know if they were). Or if the asylum-seeker only transited there, or the stay was otherwise brief? Perhaps the story of refugees trapped in Casablanca, desperately trying to obtain documentation to travel further abroad, would be a good idea for a film.

Whether the mother’s life or freedom was threatened on Convention grounds is the issue to be decided in her substantive asylum application (she’s fleeing domestic violence, which was the subject of an important CJEU judgment last year). She’s certainly present without authorisation, and appears to have presented herself to the authorities without delay (although this may be more of an issue in other cases). Arguably, seeking asylum is in itself a ‘good cause’ for illegal entry or presence, although national interior ministries might well contest that. And the Court does not even mention Article 31(2) of the Convention, on restrictions on movement or possible movement to other countries – although these issues might arise in relation to detention cases (the mother was only detained for one day), or ‘safe third country’ arguments.

This detailed analysis of Article 31 may be begging the question, though, because, as mentioned already, the Court also mentioned a series of other legal factors in its assessment of possible criminal penalties. So presumably Article 31 is not the only issue to be taken into account in such cases, and the finer points of interpreting it sit alongside other issues to be interpreted (the borders code human rights safeguard; the legality of an asylum-seeker’s stay until the first instance decision, which is explicitly set out in EU asylum procedures law; and the prohibition of dissuading asylum applications). And while the Court does mention family unity and the rights of the child in this context, most of the points it makes here are relevant to any asylum application, and also to other types of assistance to asylum-seekers (cf the Court’s reference to the previous judgment against Hungary for criminalising assistance to asylum-seekers). The Court seems to have taken the opportunity arising from this specific case to reach some very general findings about criminalisation and border control in the context of asylum.

All of this encourages national courts to send the EU court further questions to clarify these points, in an environment where asylum-seekers’ access to the territory and the asylum procedure is often very difficult on the ground. But what about the EU legislature?

As noted already, the Member States’ negotiation position on the proposed new Directive on smuggling of persons takes the issue of family assistance in particular, and humanitarian assistance in general, outside the scope of the smuggling law, leaving it up to Member States to determine whether to criminalise such forms of assistance or not. But on the face of it, the Court’s judgment has thwarted this cunning plan – at least in cases where the assistance is offered to, or by, an asylum seeker. For the Court has linked its interpretation also to the Schengen Borders Code (where the human rights safeguard was untouched by amendments last year), (implicitly) the asylum procedures law, the reception conditions directive, and the qualification law – along with the Refugee Convention. So even if Member States win the battle on this point as regards the smuggling of migrants law, the Court has opened four more fronts – and its rulings on the point not only interpret secondary law, but also largely link that interpretation to EU primary law (the Charter, plus the quasi-primary law of the Refugee Convention – linked to the Charter and the EU Treaties). 

Nor could the Member States argue that the future Directive sets minimum standards only, leaving them free to criminalise what they want above that level, because the Kinsa judgment insists that the EU Charter constrains Member States' implementation of the law regardless.

The legislative mouse seems to have been caught by the judicial cat.

Finally, the Court’s interpretation of the UN Protocol is unhelpful for the border control industrial complex too. The Court is correct to point out that the protocol only requires the criminalisation of smuggling in the context of organised crime, although the judgment exaggerates the extent to which the protocol protects migrants’ rights. Again, these are general points not limited to family assistance, or even humanitarian assistance more generally; they could equally apply to criminalising the migrants as such.   

The broader context

Trying to fire a legal weapon devised to combat organised crime at the desperate mother and aunt of two young girls offers us a moment of rare moral clarity. The facts in this case are so sympathetic that the ruling in her favour may not be as controversial as if the facts had been somewhat different. Nevertheless, the CJEU eschewed the opportunity to limit its judgment to such compassionate cases, instead providing fuel for much more general legal challenges to border controls on human rights grounds, even apparently undercutting an attempt to legislate an escape from EU law constraints.

And the Court is surely well aware of the political environment in which it delivered its judgment. Even setting aside the assault on immigration and asylum rights across the Atlantic, the judgment comes shortly after a group of Member States’ leaders delivered a broadside against the case law of the European Court of Human Rights in immigration cases. The CJEU is a different court, but it’s unlikely that these leaders are too thrilled with its asylum and immigration case law either. Yet its response to this broadside was not to surrender and prepare to be boarded. It was to fire back.  

It’s not certain what the full scope of this judgment is; it’s unlikely that every CJEU migration judgment will be as liberal; and it’s possible that Member States may find a way to circumvent this judgment anyway – perhaps by simply ignoring it, as they do with pushbacks. But the judgment is at least a sign that all is not yet lost. In an increasingly dystopian world, it is at least a flicker of hope.

Further reading - for a comparative law angle, the Supreme Court of Canada's R v Appulonappa judgment 

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

Professor Steve Peers, University of Essex

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

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

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

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

The basic EU rules on family reunion

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

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

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

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

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

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

The judgment

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

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

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

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

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

Comments

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

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

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

Barnard & Peers: chapter 26

JHA law: chapter I:5, I:6

Photo credit: Ackah law

Guardianship, free movement and the rights of the child: the SM judgment

Professor Steve Peers, University of Essex

*This blog post builds on research which contributed to the forthcoming second edition of The EU Citizenship Directive (OUP, 2019), co-authored by me, Elspeth Guild and Jonathan Tomkin

When is a child a ‘family member’? Many people regard others they love dearly as children, parents or other relatives, but the law is rather stricter. This strictness is particularly important where children are involved, in order to ensure their welfare, and where it impacts on immigration law. Moreover, different countries have different approaches to the legal definition of family members. All these issues come to a head in today’s judgment of the CJEU in SM, a case concerning the intersection between EU free movement law and the family law of non-EU countries.

EU law background

The EU’s citizens’ Directive sets out the main rights of EU citizens and their family members to move to other EU countries. It defines family members as including, in Article 2(2)(c):  

the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)

It also refers separately to ‘beneficiaries’ of the Directive, in Article 3(2):

2.      Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a)      any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

The people listed in Article 3(2) are referred to in UK law implementing the Directive as ‘extended family members’, and I will use that term for brevity’s sake. In contrast, I’ll refer to the Article 2 family members, including ‘direct descendants’, as ‘core’ family members.

CJEU case law has touched on the definition of core family members several times, for instance clarifying the concept of ‘dependants’ in Article 2(2)(c): see most recently the CJEU judgment in Reyes, discussed here). But the Court had never been asked to clarify the meaning of ‘direct descendants’, although it had ruled when interpreting previous free movement legislation that children include an EU citizen’s step-children (Baumbast).

As for extended family members, previous CJEU case law (Rahman and Banger) clarified that they have in principle a less far-reaching right than core family members. While core family members have a right to enter and reside, for extended family members ‘entry and residence has only to be facilitated by that Member State’. So the Directive ‘does not oblige the Member States to grant every application for entry and residence submitted by persons who show’ that they fall within the scope of Article 3(2). However, the Court said it was ‘clear from the use of the words “shall facilitate” that that provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence’ by other third-country nationals, on applications by extended family members. This obligation meant that Member States had to ‘make it possible’ for the extended family members to ‘obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons’. When examining such an application, the authority concerned had to ‘take into account of the various factors that may be relevant in the particular case, such as’ the factors specifically listed in the preamble to the Directive – namely ‘their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’

Moreover, in light of the reference to national legislation in Article 3(2), and in the absence of more specific rules in the Directive, the Court ruled that each Member State ‘has a wide discretion as regards the selection of factors to be taken into account’. But there is a core substantive obligation for Member States: their legislation must ‘contain criteria which are consistent with the normal meaning of the term “facilitate” ’—presumably as defined by the Court—‘and of the words relating to dependence used in Article 3(2), and which do not deprive that provision of its effectiveness’. Finally, the Court conceded that Article 3(2) was not directly effective, although ‘an applicant is entitled to a judicial review of whether the national legislation and its application have remained within the limits set by that Directive’. The subsequent judgment in Banger elaborated upon these procedural rights.

Background to the case

According to the UK Supreme Court judgment which referred questions to the CJEU, this case concerns a French couple married in the UK, who were married in 2001 but were unable to have children of their own. They went to Algeria and applied for the guardianship of a child by means of application of the kafala family law system (the term is also used to refer to a controversial system of migrant worker sponsorship, but this case only concerns family law). Under the Islamic approach to family law, adoption as such is not permitted, but kafala instead provides for a form of guardianship, and is particularly applied for the benefit of orphaned or abandoned children.

The Algerian authorities deemed the French couple suitable guardians, and they were soon accorded guardianship of a girl abandoned at birth (called ‘Susana’ by the Supreme Court: I’ll use that name rather than the impersonal ‘SM’). The husband returned to the UK to work, while the wife stayed in Algeria to look after Susana, seeking to obtain entry clearance for her. The UK authorities refused on the grounds that this was not an adoption as such, and so a long dispute through the legal system got underway.

At first instance, the immigration tribunal ruled in favour of the UK authorities, holding that Susana was neither a core family member or extended family member. On appeal, the Upper Tier tribunal ruled that she was an extended family member. The authorities appealed in turn to the Court of Appeal, which ruled that she was neither. The Supreme Court gave leave to appeal on the ‘extended family member’ point, but subsequently decided to consider both points. Ultimately, Lady Hale’s judgment (with which the other judges agreed) concluded that it was obvious that Susana was an extended family member, but decided to ask the CJEU whether she was a core family member.

Judgment of the CJEU

First of all, the Court noted that the Directive ‘makes no express reference to the law of the Member States for the purpose of determining the meaning and scope of’ the term ‘direct descendant’. Next, it followed (in line with the Court’s usual approach) that ‘the need for a uniform application of EU law and the principle of equality require that the terms of that provision must normally be given an independent and uniform interpretation throughout the European Union’. In the absence of any definition of ‘direct descendant’, the term should be interpreted considering ‘not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part’.

In the Court’s view:

the concept of a ‘direct descendant’ commonly refers to the existence of a direct parent-child relationship connecting the person concerned with another person. Where there is no parent-child relationship between the citizen of the Union and the child concerned, that child cannot be described as a ‘direct descendant’ of that citizen for the purposes of Directive 2004/38.

Elaborating further, ‘[a]lthough that concept primarily focuses on the existence of a biological parent-child relationship,’ the aim of the citizens’ Directive is to facilitate free movement rights, and so therefore it must be ‘construed broadly’, including the core family member definition. That meant ‘it covers any parent-child relationship, whether biological or legal’, including adopted children. However, it did not extend to a guardianship system which did not create a legal parent-child relationship.

However, the Court went on to confirm that Susana fell within the concept of an extended family member, as the relevant definition in the Directive is ‘capable of covering the situation of a child who has been placed with citizens of the Union under a legal guardianship system such as Algerian kafala and in respect of whom those citizens assume responsibility for its care, education and protection, in accordance with an undertaking entered into on the basis of the law of the child’s country of origin’. The Court reiterated Member States’ discretion in such cases as referred to in previous cases, but considerably narrowed the discretion on the facts of this case.

This was because of the right to family life in Article 7 of the EU Charter of Rights, which has the ‘same meaning and scope’ of the corresponding right in the European Convention on Human Rights. Case law of the European Court of Human Rights had confirmed that the child-guardian relationship under the kafala system ‘may fall under the definition of family life, having regard to the time spent living together, the quality of the relationship, and the role which the adult assumes in respect of the child’ (referring to Chbihi Loudoudi and Others v. Belgium). Article 8 ECHR ‘protects the individual against arbitrary action by the public authorities and requires those authorities, where the existence of a family tie has been established, to enable that tie to be developed and to establish legal safeguards that render possible the child’s integration in his family’ (referring to Harroudj v. France and Chbihi Loudoudi).

Furthermore, Article 24 of the Charter obliges Member States to ‘take into consideration the best interests of the child’. It followed that when exercising their discretion as regards admission of extended family members, national authorities have to make ‘a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking account of all the interests in play and, in particular, of the best interests of the child concerned’. This assessment has to ‘take into consideration, inter alia, the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship which has developed between the child and its guardians and the extent to which the child is dependent on its guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child.’

Conversely, the assessment has to ‘take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking’. But these risks can’t simply ‘be assumed’ just because the process of the Algerian kafala system ‘is less extensive’ than the adoption procedure in the State where the EU citizens are living, or because Algeria has not signed up to the 1996 Hague Convention on parental responsibility. Rather, it was necessary to weigh such factors up against the other factors which the Court set out.

If this assessment establishes that

the child placed under the Algerian kafala system and its guardians, who are citizens of the Union, are called to lead a genuine family life and that that child is dependent on its guardians, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence as one of the other family members of the citizens of the Union for the purposes of Article 3(2)(a) of [the citizens’ Directive], read in the light of Article 7 and Article 24(2) of the Charter, in order to enable the child to live with its guardians in their host Member State.

This analysis ‘applies a fortiori’ where the refusal to admit the child meant that one of the child’s guardians is in practice prevented from living together in a Member State because one of them needs to stay in a non-EU State to care for the child. As noted above, these were the facts in this case.

Finally, the Court declined to answer the Supreme Court’s separate question about refusing to admit a child if there was a risk of abuse, exploitation or trafficking, because the question was only raised in the event that Susana was considered a core family member. In any event, it should be noted that the Court referred to such issues being considered as part of the assessment of the application to admit Susana as an extended family member.

Comments

The Court’s confirmation that adopted children are covered by the concept of ‘direct descendant’ is not surprising, although it raises the question as to what happens if there are divergences between the adoption rules in the State where the child was adopted and the Member State in which the child lives now. Then again, the previous case law applying free movement law to cover step-children already raised questions (not yet answered) about the interaction between family law and free movement law (ie, who has custody of the step-child), on top of the long-standing case law about the impact of divorce and separation upon free movement rights (see most recently the CJEU’s NA judgment of 2016, which I discussed critically here). One quite striking feature of the Court’s ruling is its apparent assertion that only a parent-child relationship could fall within the concept of ‘direct descendant’: this is, with respect, not consistent with the obvious meaning of the words, as evidenced by the Supreme Court’s assumption that it could also cover grand-children.

The ruling that the term ‘direct descendants’ could not apply to guardianship followed from the Court's definition of ‘direct descendants’ to mean a parent-child relationship, given that the kafala system deliberately does not classify the child’s guardians as parents. Despite that, the French couple in this case understandably sought to bring Susana within the scope of the ‘direct descendants’ concept, because they believed that otherwise the UK would retain residual discretion not to admit her as an extended family member.

This brings us to the most remarkable aspect of the Court’s ruling: the removal of the Member State’s discretion to admit Susana, on condition that the assessment of the factors was positive. Susana’s case appears to fall within the scope of the factors the Court refers to as part of that assessment (the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship with the guardians, the degree of dependency, and the assumption of responsibility for the child). It’s impossible from the outside of this case to know if the risks of abuse or trafficking exist, although of course in the best interests of the child the Court was right to confirm that the assessment should examine whether such factors are present. In other cases with different circumstances, the factors may point to a different conclusion than they do in this case. And today’s judgment raises the interesting question of whether there might be reduced discretion to refuse entry in other extended family cases too – notably cases involving children or partners, and where the impact of refusal might similarly be to prevent free movement rights from being exercised.

Finally, it’s worth putting this case in the broader context. For eight-year old Susana, abandoned at birth by her parents, her guardians have been litigating nearly her entire life to secure her right to stay with them in the UK. It took six years of litigation before four levels of the judicial system before they could confirm that the UK was even obliged to consider her application.  Now the CJEU rules that (depending on the assessment) the UK may be obliged to let her stay. But that’s mainly because of the EU Charter of Rights; and this may be the last judgment concerning the UK and the Charter. If you seek its monument, look at this little girl’s case.   

Barnard & Peers: chapter 13

Photo credit: newstarkafala.org

Love wins in the CJEU: Same Sex Marriages and EU free movement law

Professor Steve Peers, Law School, University of Essex

Today’s CJEU judgment in Coman was the Court’s first ruling on same-sex marriages for the purposes of EU free movement law.  (For a discussion of the background, see the earlier blog post by Alina Tryfonidou). Mr Coman, a Romanian citizen, had married his husband, a US citizen, in Belgium while residing there. He tried to return to Romania with his husband, but Romania refused residence to the latter, as (like about half of the EU Member States) it does not recognise same-sex marriage. But did EU free movement law give Mr Coman the right to family reunion with his spouse nonetheless?

In the Court’s view, which took a subtly different approach than the Advocate-General’s opinion, the answer was yes. First of all, following established case law, the Court ruled that EU free movement law doesn't apply directly to a Romanian citizen in Romania and his family member, since the EU citizens’ Directive only applies to EU citizens living in another Member State. However, that law applies by analogy, since Mr Coman had moved to another EU Member State and then returned to his Member State of nationality.

In particular, the Court invoked its 2014 ruling in O and B (discussed here), which clarified when family reunion rights applied in this scenario. It’s necessary to have “genuine residence” in another Member State, meeting the conditions for residence longer than three months set out in the citizens’ Directive (see paras 26 and 28 of today’s judgment).

But was Mr Coman’s American husband within the scope of the definition of “family member”, which includes a “spouse” (a term not further defined in the citizens’ Directive)? The Court reaffirmed its prior case law that a “spouse” was “a person joined to another person by the bonds of marriage”. Crucially, it then ruled that “the term ‘spouse’ within the meaning of” the Directive “is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned.” While the Directive expressly permits host Member States to apply their own law when admitting registered partners, it makes no such provision regarding spouses, so such a possibility was implicitly ruled out.

The Advocate-General’s opinion made the same point in a different way, arguing  for a uniform EU-wide meaning of the word “spouse” and taking account of the trend inside and outside the EU toward recognition of same-sex marriage. On one issue, however, the judgment and the opinion differ: the opinion refers to recognition of a marriage wherever it was celebrated (para 49, referring to prior CJEU case law), while the judgment refers several times to a marriage concluded in a Member State (paras 33, 35 and 36).

Anticipating the objections from Member States that do not permit same-sex marriage, the Court reiterated that marital status “is a matter that falls within the competence of the Member States and EU law does not detract from that competence”. In particular, “Member States are thus free to decide whether or not to allow marriage for persons of the same sex”. But that freedom had to be exercised consistently with EU law, in particular the right to free movement. Allowing Member States to apply their own law to the residence of non-EU same sex spouses “would have the effect that the freedom of movement of Union citizens who have already made use of that freedom would vary from one Member State to another, depending on whether such provisions of national law exist”.

Next, the Court dealt with the objections of those Member States who had argued that there were “public policy” or “national identity” grounds to refuse admission of same-sex spouses, where they did not recognise the existence of such a concept in national law. On this point, the Court repeated its case law that the “public policy” exception to free movement has to be interpreted strictly, applying “only if there is a genuine and sufficiently serious threat to a fundamental interest of society”. That high threshold was not met here, because recognition of a marriage for these limited purposes “does not undermine the institution of marriage in the first Member State, which is defined by national law”, and “does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex”. Rather, it is “confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law”. For the same reasons, such an obligation “does not undermine the national identity” of Member States.

The Court added that any measure restricting free movement rights also has to comply with human rights guaranteed by the EU Charter of Rights, which has to be interpreted consistently with the European Convention on Human Rights. According to the case law of the European Court of Human Rights, “the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation.”

In light of its judgment on the meaning of “spouse”, the Court had no need to define what a “partner” was, for the purpose of interpreting either the core definition of “family member” or the “extended family member” rules in Article 3 of the Directive. The Advocate-General’s opinion had argued for a Plan B: if Mr Coman’s husband was not a "spouse" due to Romanian law, he had to be considered a partner or other family member under Article 3. In principle there was a downside to that approach, since the CJEU has ruled that there is no right of admission for extended family members (see the judgment in Rahman; also the pending case of Banger, on whether returnees can invoke Article 3 by analogy as regards their extended family members). However, the opinion argued that due to the marital bond recognised by another Member State, there would be no discretion to refuse admission in this case.

Comments

This judgment falls short of the general requirement to establish same-sex marriage recognised in the US Supreme Court judgment in Obergefell. Inevitably so: the CJEU lacks the jurisdiction to rule on the marriage laws of Member States as such. The ruling only applies to free movement issues – and with some further limitations. Nevertheless it will likely be celebrated (or decried) as part of a more general development of extending same-sex marriage rights across (and outside) the EU.

In order to trigger the application of EU free movement law as regards a same sex marriage, there needs to be movement between Member States. So movement within the UK, from jurisdictions in Great Britain (where same sex marriage is recognised) to Northern Ireland (where it is not) will not count. (In any event, in light of Brexit, anyone anxious to have their same sex marriage recognised in Northern Ireland will have to meet the relevant conditions before the end of the post-Brexit transition period: see discussion here). Moreover, the judgment concerns residence, rather than marriage as such. The residence status of a same sex spouse of an EU citizen who is also an EU citizen is unlikely to be disputed.

Furthermore, the Court (unlike the Advocate-General) laid down two further limitations. It restricted its ruling to marriages concluded within a Member State. At best, it could be argued that the legal position where a same sex marriage was celebrated outside the EU was left open by the Court. Secondly, it made a point of emphasising that a period of at least three months genuinely residing in another Member State was necessary to trigger the rules: couples seeking to overcome the restrictions of their national law will have to spend some time abroad in order to do so. A gay Gretna Green – or a lesbian Las Vegas – will have to offer flats to rent, not just rooms for the night.

With these restrictions, and the Court’s obvious concern to answer the anticipated objections of some Member States (and their courts), the ruling may seem rather grudging to those supporting equal marriage. But such a conclusion would be jumping the gun.  Those who have a same-sex registered partnership, or an unregistered partnership within the scope of Article 3 of the Directive, will be able to invoke the judgment’s strong emphasis on free movement and human rights in support of their claims.  The Court could have chosen the easier option offered by the Advocate-General as Plan B – giving same-sex spouses a right to stay on the basis of Article 3, without defining them as a spouse – but it did not.  There’s a case to be made for reassuring – and eventually persuading – the opponents of equal marriage, rather than lecturing and overruling them.

And there’s a broader perspective too, quite apart from the legal technicalities. In light of the history of pink triangles and Stonewall riots, of chemical castration and teenage suicides, of hatred, bigotry and persecution, the right to move across the European Union with a marriage recognised as an equal affirmation of family life can only be welcomed.

Barnard & Peers: chapter 13, chapter 9

Photo credit: UK Student Life