The Irony of Brexit for Immigration Control

Daniel Thym, Professor of Public, European and International Law at the University of Konstanz

Immigration was a hot topic throughout the Brexit debate. ‘To take back control’ was a prominent slogan. In her Lancaster speech of January this year, Theresa May was adamant that control of immigration is a central objective of the ongoing Brexit negotiations: ‘The message from the public before and during the referendum campaign was clear: Brexit must mean control of the number of people who come to Britain from Europe. And that is what we will deliver.’

Many readers of this post will remember the ‘breaking point’ poster used by UKIP before the referendum with a picture of migrants and asylum seekers trotting across the Western Balkans. That poster was a tipping point in the debate. The EU was associated with chaos and open borders – both for EU citizens and third country nationals.

From a legal perspective, there is a certain irony in the ‘breaking point’ poster. My argument will be that while Brexit can facilitate legal control over the entry and stay of EU citizens, it need not necessarily make it easier for the UK to control the immigration of third-country nationals, including asylum seekers. It might even, paradoxically, render control of immigration by non-Europeans more difficult to some extent.

Status Quo: Extended Opt-out

The legal background of the irony is easy to explain: from a legal perspective, the UK has always retained widespread control of its external borders insofar as the entry and stay of third-country nationals is concerned, since the UK rejected to participate in the border-free Schengen area. It did not sign up to the Schengen Implementing Convention of 1990 and it secured an opt out when the letter was integrated into the framework of the European Union on the occasion of the Treaty of Amsterdam.

Moreover, successive British governments decided not to participate in most legislative initiatives on immigration, visas and border controls in the so-called area of freedom, security and justice, which have been adopted during the past 15 years and which have substantially reshaped the immigration law systems of countries in continental Europe. The UK does not participate, for instance, in the Family Reunion Directive, the Long-Term Residents Directive, the Blue Card scheme for highly qualified migrants or any other instrument facilitating the entry or stay of third-country nationals. The UK can decide autonomously the nationals of which country are subject to visa requirements, are allowed to take up employment or have to leave the UK. There is little primary or secondary law limiting UK sovereignty in this respect.

The situation is different for the ECHR and corresponding limits to state discretion, on the basis of Articles 3 and 8 ECHR, on the expulsion of those staying illegally, including suspects of terrorism. That is why Theresa May was promoting a departure from the ECHR (or at least a repeal of the Human Rights Act) when she was Home Secretary. Leaving the ECHR (or repealing the Human Rights Act) might have extended UK sovereignty over third-country national somewhat (albeit with a considerable constitutional price-tag attached). By contrast, leaving the EU won’t change much regarding immigration control.

Brexit: Loss of the Opt-in Option

What is more, the UK might even lose regulatory leverage post-Brexit insofar as immigration controls vis-à-vis third-country nationals are concerned. The underlying reason is simple: at the time of the Treaty of Amsterdam, the British government of Tony Blair secured not only an opt out from the Schengen regime. It also won an opt in option for all immigration, visa, asylum and border control measures, which are not inseparably linked to the abolition of border controls. This opt in option of was reinforced by the Treaty of Lisbon which established an hitherto unprecedented option of ‘cherry picking’ in the field of justice and home affairs legislation. The UK has used this opt in option quite extensively – and selectively – over the years, including during the time when Theresa May was Home Secretary.

This selective opt in practice focused on those measures enhancing the control powers of states, such as the Schengen Information System (SIS), in which the UK participates although it never signed up to order-free travel. The UK also subscribed to many EU measures against illegal immigration, while not being bound by the rules on legal migration. Most importantly, the UK participates in the Dublin regulation without, however, contributing to the solidarity measures, such as the relocation decisions on resettling 160,000 asylum seekers from Greece and Italy to other Member States. To be sure, the Dublin system was originally based upon a convention outside the EU framework, but it ceased to exist as an instrument of public international law when it was supplanted by EU legislation in which the UK participated.

In short, British participation in justice and home affairs was highly selective and lopsided: it enhanced state control without promoting the rights of migrants and refugees. As a member of the EU, the UK could use the justice and home affairs Protocols to enhance control of its external borders towards other Member States through à la carte participation. The irony is that Brexit will reverse these dynamics.

The Future: Reversed Dynamics

In the post-Brexit legal environment, the UK will not be able to decide any longer to participate in Dublin and the SIS by means of a simple declaration notifying the Council that it wants to exercise the opt-in option. Instead, the UK will have to negotiate with the EU post-Brexit whether it will be allowed to participate – and these negotiation will be defined, like any negotiation, by a quid pro quo, by reciprocal give-and-take.

Thus, the UK might have to pay a price for being allowed to participate in the Dublin IV Regulation or the Schengen Information System in the future – something it got for free in the past. The EU could demand, for instance, that the UK contributes to the relocation of asylum seekers from Greece or Italy. If that happened, Brexit would entail into the opposite of what UKIP had hoped for when it put up the ‘breaking point’ poster.

That need not happen, of course. The UK could decide, alternatively, to stay out of Dublin or it could negotiate a cross-sectoral package deal. The price the EU may wish to extract from the UK for continued Dublin participation may relate to any other policy field.

One thing, however, seems certain: the UK will not get Dublin for free any longer – like Switzerland, which was allowed to join Dublin under the condition that it subscribed to border free travel within the Schengen area at the same time. Ever since, border controls have been abolished between Germany and Switzerland. That, to me, is the irony of Brexit for immigration law sensu stricto: it might become more difficult for the UK to control the entry and stay of third-country nationals.

Barnard & Peers: chapter 27, chapter 26, chapter 13

JHA4: chapter II:6

Photo credit: Horizon magazine

CS and Rendón Marín: Union Citizens and their Third-Country National Parents – A Resurgence of the Ruiz Zambrano Ruling?

Maria Haag, PhD Researcher, European University Institute (Florence, Italy) & Michigan Grotius Research Scholar, University of Michigan Law School (Ann Arbor, Michigan)

Background

Five years ago, the CJEU delivered its infamous Grand Chamber decision in C-34/09 Ruiz Zambrano. It held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union” (para 42, emphasis added). This 'genuine enjoyment'-protection had two consequences. First, Union citizens could rely on Article 20 TFEU against their Member State of nationality without having previously made use of their rights to free movement and thus bypassing the Court's general lack of jurisdiction in 'purely internal' situations. Secondly, Member States were precluded from denying a right of residence to third-country national ('TCN') parents or caretakers of minor citizens of that Member State, as these children would otherwise be forced to leave the territory of the EU and thus no longer able to make use of the rights granted by Union citizenship.

Shortly after the delivery of this ground-breaking judgment, the Court of Justice proceeded to interpret Ruiz Zambrano very narrowly in a series of cases (C-434/09 McCarthy, C-256/11 Dereci and Others, C-40/11 Iida, C-356&357/11 O. and S., C-87/12 Ymeraga and Others, C‑86/12 Alokpa and Moudoulou and C-115/15 NA) leading many to wonder about the original significance of the Ruiz Zambrano decision. In contrast to Ruiz Zambrano, these subsequent cases mostly concerned the significance of Article 20 TFEU in a host Member State. The Court held that the applicants fell outside the scope of Article 20, even if they had never moved to another Member State, i.e. had been born in a Member State other than their Member State of nationality and had never left. The most recent cases – C-304/14 CS and C-165/14 Rendón Marín – however, Ruiz Zambrano decision, fully address the right under Article 20 TFEU in the home Member State. On the 13th of September 2016, the Grand Chamber delivered these two decisions in which it considered the effect of a criminal record of a TCN parent on his or her derived residence right under Article 20 TFEU and to what extent this right can be derogated on grounds of public policy or public security.

C-304/14 CS: facts and judgment

The case in CS concerned a Moroccan national, who resided in the UK together with her British national son. In 2012, she was convicted of a criminal offence and given a prison sentence of 12 months. Following her conviction, she was notified of her deportation liability. Her subsequent application for asylum was denied. Upon her appeal, the First-tier Tribunal (Immigration and Asylum Chamber) found that her deportation would violate her child's rights under Article 20 TFEU. The Home Secretary was granted permission to appeal this decision before the Upper Tribunal, which asked the CJEU, under which circumstances the expulsion of a TCN caretaker of a Union citizen could be permitted under EU law and whether Article 27 and 28 of the Directive 2004/38 (the ‘citizens’ Directive’, which sets out the main rules on EU citizens who move to another Member State) had any effect in this case.

In its two-part decision, the Court firstly answered the question whether a TCN parent of a Union citizen has a derived right of residence in the home Member State under Article 20 TFEU and, secondly, if such a right can be limited on grounds of public policy or public security.

The Court first firmly restated its holding in Ruiz Zambrano. It explained that Article 20 TFEU "precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens" (para 26; citing Ruiz Zambrano para 42). Furthermore, this means that "a right of residence must … be granted to a third-country national who is a family member of [a minor Union citizen] since the effectiveness of citizenship of the Union would otherwise be undermined, if, as a consequence of refusal of such a right that citizen would be obliged in practice to leave the territory of the European Union as whole" (para 29). CS thus had a derived right of residence under Article 20 TFEU in her son's home Member State.

Secondly, the Court held that, as a general rule, such a derived residence right can be derogated for reasons of public policy or public security: "where the exclusion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security … that decision could be consistent with EU law" (para 40, emphasis added). However, a deportation decision cannot be made "automatically on the basis solely of the criminal record of the person concerned" (para 41). Thus the UK legislation at issue, which obliges the Home Secretary to make a deportation order of any non-national who is sentenced to a period of imprisonment of 12 months or more, establishes "a systematic and automatic link between the criminal conviction of a person … and the expulsion measure" (para 44) and therefore violates EU law. Instead, it is for the national courts to weigh up "the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the child at issue and his state of health, as well as his economic and family situation" (para 42, emphasis added).

Furthermore, derogations for reasons of 'public policy' or 'public security' must be interpreted strictly and decisions are subject to review by the EU institutions (para 37). Lastly, and most notably, the assessment of the individual situation must take account of the principle of proportionality and the rights protected in the Charter of Fundamental Rights of the European Union ('CFREU'), especially Article 7 on the right to respect of private and family life and Article 24(2) on the obligation of consideration of the child's best interests (paras 48 and 49).

C-165/14 Rendón Marín: facts and judgment

The facts in Rendón Marín are very similar to the ones in CS and essentially raise the same question, presumably why the Court decided these cases on the same day and why Advocate General Szpunar did not give separate opinions in these cases, but combined the two. Rendón Marín concerned a Colombian national father, who lived in Spain together with his Spanish national son and his Polish national daughter. His application for a residence permit was rejected due to his criminal record. The crucial difference between the facts of the two cases is that Mr Rendón Marín has a Union citizen daughter who lives in a host Member State and a son who lives in his home Member State. There thus exists a cross-border element in the situation of his daughter, but not in his son's (For further discussion on the cross-border element, see C-200/02 Zhu and Chen, especially para 19.).

The part of the Court's decision concerning the son's circumstances – a Spanish national in Spain – is almost identical to the Court's judgment in CS. In fact, some of the paragraphs can be found in exactly the same wording in both decisions (the two cases also had the same rapporteur, Allan Rosas). Interestingly, the Court in Rendón Marín mentioned the possibility of moving to Poland, as this is the Member State of nationality of Mr Rendón Marín's daughter. Whilst the Court noted the applicant's objection that the family had no ties to Poland, it did not go into this discussion. (See, in contrast, footnote 109 in Advocate General Szpunar's Opinion in CS and Rendón Marín. For more on this, see also Advocate General Wathelet's Opinion in NA, paras 112-117.) Here the Court simply holds that "it is for the referring court to check whether … the parent who is the sole carer of his children, may in fact enjoy the derived right to go with them to Poland and reside with them there" (para 79, citing Alokpa and Moudoulou paras 34-35). The Court therefore did not deny that moving to Poland could be a possible solution in case of the father's deportation from Spain.

As for the legal status of the daughter, the Court held that, as a Polish national and Union citizen, she could rely on Article 21 TFEU and the Directive 2004/38 to grant her a right of residence in Spain (para 44). Furthermore, the Court stated that if the daughter fulfils the conditions laid down under Article 7(1) Directive 2004/38 (i.e. having sufficient resources and comprehensive health insurance) then the derived right of residence of Mr Rendón Marín, her father and sole caretaker, cannot be refused (para 53). Whilst this derived right of residence can be limited for reasons of public policy or public security (para 57), EU law precludes such limitations on "grounds of a general, preventive nature" (para 61). Instead, it is for the national courts to do a similar weighing-up exercise as laid out in CS (see Rendón Marín, paras 59-66). Derogations from derived rights of residence on the basis of Article 20 TFEU and Article 21 TFEU thus presumably have to withstand the same test.

Comment

After a longer period of silence on this issue, the Court in these cases seems at the very least willing to explore the scope of Ruiz Zambrano. (The Court should soon decide another case, Chavez-Vilchez, which raises some further important questions about the scope of that judgment). The two recent judgments, whilst they in some sense appear to diminish the scope of Ruiz Zambrano even further, can also be seen as a restatement of the fundamental significance of the original judgment.

The cases following the Ruiz Zambrano decision made it very clear that protection under Article 20 TFEU is only applicable to a very small number of people in "very specific situations" (Rendón Marín para 74; CS para 29): essentially only to minors who reside with their TCN parents in their home Member State. CS and Rendón Marín both confirm this, but also clarify that a very high level of protection is granted to those Union citizens who fall within the scope of the 'Ruiz Zambrano-protection'. In fact, the substantive protection against expulsion is equivalent to that of EU citizens (and their family members) who move to another Member State (the Court refers to concepts found in the EU citizens’ Directive and its predecessors, as well as relevant case law), although it is not clear if the same procedural protection applies. 

The Court certainly does not exclude the possibility that "in exceptional circumstances" (CS para 50) a criminal and dangerous parent who poses a threat to a Member State's public policy or public security could be deported. Even if this means that his or her Union citizen children are forced to leave EU territory and thus deprived of the genuine enjoyment of their EU citizenship rights. Nevertheless, the Court insists on a very stringent test before such a decision can be taken.

Most notably, the Court refers to the EU's Charter of Fundamental Rights and stresses the fact that a deportation decision needs to take account of Article 7 and Article 24(2) of the Charter (see CS paras 36 and 48; Rendón Marín paras 66 and 85). In Dereci, the Court had previously held that "if the referring court considers … that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter" (Dereci, para 72). In that case the Court had decided that the circumstances fell outside the scope of EU law, and that it was therefore beyond its jurisdiction to consider a violation of the Charter. In both CS and Rendón Marín, the Court found that the applicants' circumstances fell within the scope of EU law and thus that the Charter applied.

It is also interesting to compare the protection granted in C-135/08 Rottmann against the deprivation of the legal status of Union citizenship altogether and the protection granted in CS and Rendón Marín against being deprived of the genuine enjoyment of the Union citizenship rights by means of a parent’s expulsion to a non-EU state. Whereas in Rottmann, the Court held that a decision to withdraw someone's nationality needs to respect the principle of proportionality (Rottmann, para 59), in CS and Rendón Marín it established a list of criteria that need to be observed. Curiously, the Rottmann-test therefore appears to be narrower than the one established in CS and Rendon Marin, even if the potential outcome in circumstances like Rottmann, i.e. statelessness, might be much more serious for the individual concerned.

In its decision in CS, the Court cites the European Court of Human Rights (ECtHR) judgment in Jeunesse v the Netherlands. The EU Court states in paragraph 49:

"[A]ccount is to be taken of the child's best interests when weighing up the interests involved. Particular attention must be paid to his age, his situation in the Member State concerned and the extent to which he is dependent on the parent (see, to this effect, ECtHR, 3 October 2014, Jeunesse v. the Netherlands, CE:ECHR:2014:1003JUD001273819, §118)."

Jeunesse v. the Netherlands, which was decided by the Strasbourg court in 2014, concerned a Surinamese national, who lived with her Dutch national husband and children in the Netherlands without a valid residence permit. The applicant argued that the refusal to allow her to reside in the Netherlands infringed her right to respect of her family life under Article 8 ECHR. The facts of this case are very similar to the ones in Dereci, in which the Court of Justice held that such a denial of residence right did not conflict with EU law. The ECtHR, however, came to the conclusion that the Dutch authorities had failed "to secure the applicant's right to respect for her family life as projected by Article 8 of the Convention" (Jeunesse v the Netherlands, §122).

So what does the reference to this judgment mean? First and foremost, the CJEU clarifies and stresses the utmost importance of taking account of the children's best interests in these deportation decisions. Secondly, it signals the Court's commitment to taking the fundamental rights of those who fall within the Ruiz Zambrano-protection very seriously.

Finally, the fact that the Court treats the situation of the daughter and the son separately in Rendón Marín reaffirms the Court's findings in previous cases that a Union citizen in a host Member State first has to rely on Article 21 TFEU before Article 20 can be applied. In the NA judgment, which the Court delivered at the end of June 2016, it held that one first has to examine whether the citizen and their TCN caretaker have a right of residence under secondary EU law. Only if there is no such right, can Article 20 TFEU apply.

The NA case concerned a Pakistani national mother who lived in the UK with her German national children where she was refused a right of residence. The Court decided that because it had already held that both the children and their TCN mother had a right of residence in the host Member State under Article 12 of Regulation No. 1612/68 (paras 52-68), which guarantees children of current and former workers the right to access to education in the host Member State, with corollary residence rights for those children and their parents (for more, see CJEU decisions in C-480/08 Teixeira and C-310/08 Ibrahim). Article 20 TFEU did not confer a right of residence in the host Member State. It is clear that the protection under Article 20 TFEU is one of last resort. Whilst the Court in NA and Rendón Marín does not directly rule out the possibility that the Ruiz Zambrano-protection might apply in a host Member State, it now almost seems impossible. It appears that that protection can only be granted by the home Member State.

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo credit: cpkidsmountainclimbers.wordpress.com

Keeping up with the (Turkish) family: integration requirements for family reunification in Genc

Silvia Adamo, Postdoctoral Fellow, bEUcitizen – Barriers to European Citizenship/Faculty of Law, University of Copenhagen

What are the legitimate expectations regarding integration before family reunion in a Member State, and what is the position of Turkish citizens in that equation? The EU Directive on family reunion for third-country nationals gives Member States an option to impose such integration requirements before entry of the family members, and the CJEU dealt with the limits to the discretion of Member States in imposing such requirements in a 2015 judgment (K and A, discussed here). Moreover, in the Dogan judgment of 2014 (discussed here), the Court assessed the reach of the standstill clause in the protocol to the Association Agreement between EU and Turkey in relation to the conditions for family reunification for self-employed Turkish nationals. There’s an important distinction between the two legal instruments: all Member States are bound by the EU/Turkey association agreement, whereas the UK, Ireland and Denmark opted out of the family reunion Directive.

In that context, the Dogan case attracted the attention of the Danish Ministry of Justice. After all, Turkish nationals are the largest immigrant group in the country, and the issue of family life with a third country national in Denmark is very controversial. In a legal note commenting on the case shortly after the judgment in Dogan, the Ministry found that the national rules on family reunification (significantly restricted since 2002) could be evaluated as constituting new and more stringent conditions that are not allowed to be introduced for Turkish nationals, in light of the standstill clause. (Note that the protocol to the association agreement has applied since 1973 for the first nine Member States – such as Denmark and the UK – but at the date of accession for the 19 Member States which joined the EU later). At the same time the Ministry did not advise to amend them. Instead, it assessed that there were ‘doubts’ as regards the reach of the restriction test, including the proportionality test, for the manifold requirements for family reunification in Denmark. One of the requirements to fulfil for family reunification is that of potential for successful integration (for the child) and of achieved integration (for the sponsor parent).

The question that has now found its way to the courtroom is the following: Can a Member State require Turkish children to fulfil a successful integration evaluation, before granting them family reunification with their economically active parent? The CJEU recently answered this question in the Genc case. Its judgment is relevant to family reunion with Turkish nationals in all Member States – and would apply by analogy to other forms of new restrictions on family reunion with Turkish citizens besides integration requirements.

Facts

Mr. Genc is a Turkish national born in 1991. His father moved to Denmark in 1997 and obtained a permanent residence permit there in 2001. After the divorce of his parents, his father had obtained legal custody over him; however Mr. Genc continued to live in Turkey with his grandparents. In 2005, when he was fourteen years old, he applied for family reunion with his father in Denmark, who was at the time in active employment.

Mr. Genc’s application was denied in 2006 by the Danish Immigration Service, and again in 2007, by the Ministry of Integration. The reasons for the denial were twofold: having lived in Turkey all his life and being able to speak only Turkish, the Ministry stated that Mr. Genc had no possibility of establishing sufficient ties with the Danish society to allow a successful integration. The other reason given was that his father was not considered well integrated either, and thus he was referred to continue family life through visits to his son in Turkey, as he had been doing already.

Mr. Genc brought the case to the court of first instance and later to the Eastern Regional Court, which decided to refer the case to the CJEU in 2014. The Danish national courts are generally reluctant and not particularly active in referring cases to the CJEU, but since the Dogan case had stirred the waters around the conditions for family reunification for Turkish nationals, the time was ripe to submit to the Court’s evaluation the condition for successful integration before family reunion – at least as far as this group of foreign nationals is concerned.

The Danish Aliens Act establishes that a residence permit can be granted upon application to a child under the age of fifteen who wants to live with the parent having full or partial custody, but only if the child has not established her own family yet. The sponsor parent living must be the holder of either Danish citizenship, citizenship in one of the Nordic countries, refugee status, a permanent residence permit, or a temporary residence permit that has the possibility of becoming permanent. Other conditions are: self-sufficiency (the sponsor parent should not be receiving State help or social security subsidies); adequate housing; no conviction for abuse against children; and respect for the best interest of the child. Different conditions may apply for refugees.

Finally, the requirement for successful integration demands that if the child and one of her parents are living in their home country or another country, the residence permit will be given only if she already has, or has had, a possibility to obtain such an attachment to Denmark that will constitute a basis for a successful integration. The integration requirement is only applied when more than two years pass from the moment a parent becomes eligible to apply for family reunification to when s/he finally files the papers.

Judgment

The referring court formulated four questions, requesting clarification on the earlier case law of the CJEU on the standstill clause vis-à-vis the Dogan judgment. As a whole, the questions referred reflected the doubts expressed in the Ministerial note and concerned the restriction test and proportionality assessment of the integration requirement for family reunification with respect to Article 13 of Decision No. 1/80 on the development of the Association Agreement (prohibition on introducing new restrictions on the conditions of access to employment to legally resident and employed nationals). Unlike the standstill considered in the Dogan case, this standstill relates to workers, not self-employed persons, and has applied since 1980 for the first nine Member States.

The CJEU decided to consider the questions referred together, and to focus on evaluating whether the integration requirement in Danish law was to be considered a new restriction. The Court started by affirming that the situation in question related to the freedom of Turkish workers within the EU, and thus it was covered by Article 13 of Decision 1/80. The CJEU then affirmed that its interpretation in Dogan that applied the standstill obligation to spouses could also be transposed to other family members, since restrictions to family reunification would affect the exercise of the economic freedom of (in this case) workers.

Thus the CJEU insists on the fact that -national legislation that restricts family reunification for Turkish workers is covered by the standstill clause, denying that this is equal to granting a right to family reunification or a right of establishment and residence for family members (para 44–45).

In order to sustain the exercise of the economic activity of Turkish nationals, a requirement that further restricts the possibility of obtaining family reunification must be considered a new restriction. As such, according to the Court’s case law since Demir, national provisions that impose conditions more stringent than the ones applicable at the time of entry into force of Decision No. 1/80 can only be allowed if the requirement is justified on public interest grounds, and is proportional, i.e. apt to achieve a legitimate objective and not going beyond what is necessary in order to attain it. In fact, after Dogan and the reach of the standstill requirement there established, any new integration requirements for family reunion can only be introduced on the grounds of public interest.

The Court invokes Article 79 (4) TFEU, which refers to the prospect of EU measures on integration of non-EU citizens, to establish that an integration objective can indeed constitute an overriding reason in the public interest (para 55– 56). However, the Danish law at stake in this case did not pass the proportionality test. In the eyes of the Court, the two year deadline which imposes the integration requirement is not indicative of the potential for successful integration of the child, nor of the intentions of the parents as regards ‘shielding’ their children from the host country’s society (of note is also the opinion of Advocate General Mengozzi on the non-existence of correlation between a prolonged stay in a third country and the possibilities for integration, at para 48–49 of the opinion). To the contrary, the deadline imposed does not consider the individual circumstances of the case, may lead to automatic and systemic refusals of family reunification which are not suitable to be appealed, and may lead to discrimination against children in similar situations.

Comments

Denmark introduced the requirement of successful integration for family reunification with children in 2004. The rules had a dual objective: to get rid of the practice of children’s so called ‘re-education journeys’ to the parents’ homeland, as well as to prevent children from being left outside of Denmark as long as possible before they reach adult age, in order to be educated and influenced by their homeland’s culture, traditions, values, and norms. The maximum age at which a child living abroad can obtain family reunion was lowered to fifteen years old. In order to make sure that those children who would live in Denmark as adults would be integrated, they are expected to relocate with their parents as early as possible in order to be exposed to the national culture, language, norms, and values, especially through schooling.

From a critical perspective, the objections that can be raised against the national law are essentially three.[1] First, when applying the requirement for successful integration, the lack of the integration of the sponsor parent weighs more than the appraisal of the integration potential of the child. Integration in Danish law is connected to participation in the labour market, but also to assimilation of national values and norms. Unemployed and non-integrated immigrants are rarely granted the possibility to be family reunited with their children in Denmark. Family sponsored migration from non-Western countries has been reduced via a string of convoluted rules that have diminished this channel of legal migration. Integration requirements are in this context employed in order to limit migration via family reunification.

Second, as also noted by the CJEU, the national authorities have employed a narrow and literal interpretation of the rules, funding the evaluation on the detailed requirements listed in the  preparatory work to the national law (duration of stays in Denmark and in the home country, in which country the child has spent most of her upbringing and gone to school, which language the child speaks, etc.). This limits the discretionary power of the authorities and impairs genuinely considering the individual circumstances of the case, including the best interest of the child. The requirement of the potential for a successful integration thus looks more like a legal construction that renders possible the automatic rejection of family reunification applicants that have spent too many years in their parents’ home country and who do not speak Danish, and where the parent has not been able to prove that s/he is well integrated.

Third, the requirement will always be applied to children of eight years or older, where the child has stayed with the other parent outside of Denmark, when more than two years have passed since the parent could legally apply for family reunification. In these cases, it will be impossible to fulfil the requirement of potential for successful integration. In this optic, integration becomes a key factor for evaluating also the best interest of the child. The child's legal status is made dependent on the parent's, and the instrumental interpretation of the principle of the best interest of the child entails that it is the opportunity for the child to develop a social connection to the host country’s culture and society which weighs more than the possibility to live with a parent. Yet, this also means denying family reunification to children as young as eight years old.

In this light, the limits of the Genc judgment are two, in my view: First, it only concerns Turkish nationals, possibly leaving space for continuing to enforce the arbitrary and non-proportional integration requirement onto other third country nationals and their children. The second limit is that it only concerns employed Turkish nationals, perhaps regrettably highlighting that the right to family life is precluded for non-economically active citizens. A week after Genc, the CJEU held the same stand and stated in Khachab that a national rule requiring a (non-EU and non-Turkish) sponsor parent to be in possession of sufficient resources (basing that prediction on previous income) before granting family reunification is compatible with the Family Reunification Directive. Hence at the same time that the protection of the family life of Turkish workers in the EU appears to increase, other third country nationals may still experience discrimination and limits to their family life.

Barnard & Peers: chapter 26

JHA4: chapter I:6

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[1] Adamo, S. What is ‘A Successful Integration’? Family Reunification and the Rights of Children in Denmark. Retfærd. Nordic Journal of Law and Justice, Year 39, Volume 1/152, 2016, 38–58.

Irreconcilable Differences? Divorce and departure of EU citizens under the Citizens’ Directive

 

Steve Peers

What happens when a marriage between an EU citizen (who has moved to another Member State) and a non-EU citizen ends, after the EU citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce and departure), but those rules appear to conflict with each other nearly as much as divorcing couples do. An Advocate-General’s opinion today in the important case of Singh addresses these issues (there is a reference pending from the UK on these issues also). But unfortunately, this opinion is fundamentally flawed, and the Court of Justice should take an entirely different approach than the one which the Advocate-General recommends.

Background

EU free movement legislation, in the form of the Citizens’ Directive, gives EU citizens the right (subject to certain conditions) to move to another Member State, joined or accompanied by their spouse and other specified family members. But what happens if that marriage ends? According to the CJEU case law beginning with Diatta, a ‘spouse’ remains a spouse (and therefore still entitled to derived free movement rights, if that spouse is a non-EU citizen) even if the couple in question is separated, up until the date when the divorce becomes final. After the divorce, the Court ruled in case law starting with Baumbast that since the Regulation on free movement of workers gives the children of EU workers (or former workers) a right of access to education, they were entitled to stay on the territory to exercise that right, and the non-EU parent who cared for that child had a right to stay too (regardless of any divorce from the EU citizen), otherwise the child’s right would be ineffective.

Other cases where a marriage between an EU citizen and a non-EU citizen end are regulated by the citizens’ Directive. Article 12(2) of that Directive provides for the non-EU family members to retain residence rights in some cases if the citizen dies. Article 12(3) provides for the non-EU family members to retain residence rights if there are children left behind who are still studying, where the EU citizen dies or leaves the host Member State. Article 13(2) then specifies the right to remain of non-EU family members, in the event of divorce or end of a registered partnership. There are four alternative possibilities for retaining the right of residence in this case. The first possibility allows the right to be retained if the marriage or partnership has lasted at least three years, including at least one in the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After five years’ legal residence, the non-EU family members obtain permanent residence status; the complications arise in the period beforehand).

The Singh case, referred from the Irish courts, concerns three divorcing couples. In each case, the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and then initiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The opinion

The Advocate-General states that Article 12(3) of the Directive sets out an exhaustive list of cases where a non-EU family member can retain residence rights after an EU citizen leaves the host Member State (presumably leaving aside the Regulation on free movement of workers, which is only relevant when there are also children involved). Conversely, the Advocate-General believes that Article 13 ‘is intended, in principle, to apply only to cases where both spouses are still residing in the host State until the time of the divorce’. If the EU legislature had wanted to create an exception to the rules on departure for cases relating to divorce, it would have done so expressly.  So Article 13 can only apply where a divorce claim is made before the EU citizen leaves the host Member State. Articles 12 and 13 can only be applied together in the cases referred to in Article 12(3), ie where the EU citizen has departed and there are children in education. This analysis is supported for reasons of legal certainty: it cannot be clear when an EU citizen departs that a marriage will end in divorce or not.

Therefore, in the Advocate-General’s view, once an EU citizen departs from that State without first initiating divorce proceedings, the non-EU citizen left behind loses the right to reside under EU law. On the other hand, if the divorce proceedings are initiated before the EU citizen leaves that Member State, then Article 13(2) applies and the non-EU ex-spouses will retain a right to stay if they meet the other conditions set out there. She admits the inequity in distinguishing between these two cases. However, problems could be avoided if the non-EU citizen accompanied the EU citizen, or began divorce proceedings in the host Member State before the EU citizen left.

She also rejects any relevance of the right to family life and private life referred to in Article 7 of the EU Charter of Fundamental Rights, since there is no family life to protect any longer in the case of a divorce. However, the Charter would protect the position of a non-EU spouse in an ‘intact’ marriage with an EU citizen who had moved to another Member State.

Finally, the opinion confirms prior case law to the effect that an EU citizen can also rely on resources provided by his or her non-EU family member in order to qualify for free movement rights.

Comments

With great respect, this opinion is highly problematic. The starting point is an over-literal interpretation of the relationship between the rules on departure and divorce in the EU citizens’ Directive. This leads the Advocate-General to suggest an interpretation which fails to take account of the consequences of her argument, and leads to results which were surely not intended by the EU legislature.

Let’s start with the purportedly literal interpretation of the Directive. In fact, there is nothing in the wording of Article 12(3) (like the words ‘only’ or ‘except where’) that clearly indicate that it sets out an exhaustive list of cases where non-EU citizens get to stay despite the EU citizens’ departure. We can turn the Advocate-General’s argument on its head here: if the EU legislature had wanted to create an exception to the rules on divorce for cases relating to departure, it would have done so expressly. Anyway, two of the four grounds for obtaining legal residence in the event of divorce (access to children and custody of children) will usually cross over with the grounds to remain after departure referred to in Article 12(3). If Article 12(3) were the only ground for the right to stay after departure, the reference to these cases in Article 13(2) is therefore largely redundant.

As for the argument based on legal certainty, applying a rule based on ‘departure’ of an EU citizen simply does not create any such certainty either. The Advocate-General herself argues for an exception where a marriage is intact despite a cross-border separation, but how can we know if that is the case?  How long a period in another Member State is necessary to count as a ‘departure’? What if the EU citizen decides to come back to the host State? What about cases where the EU citizen steps outside for the proverbial pack of cigarettes – and then goes missing?

Furthermore, the substance of the Advocate-General’s own argument is legally unclear. She mostly refers generally to the departure on an EU citizen from a Member State taking precedence over the rules on divorce set out in Article 13(2). But at one point, she makes a distinction based on whether the divorce application was filed before or after the EU citizen left the host Member State. Which is it? It’s a crucial distinction, because for the other three categories of cases where non-EU citizens retain residence rights despite a divorce (custody of children, access to children, domestic violence), there’s no reference to when the divorce proceedings were initiated. Anyway, her acceptance that the timing of the application for divorce might be relevant for the interpretation of the rules on departure undercuts her basic argument that Article 12(3) constitutes the only basis for non-EU citizens retaining a right of residence following the EU citizen’s departure.

What about the Advocate-General’s suggested solutions? It would be highly awkward, to say the least, to expect the estranged non-EU spouse to accompany his or her family member to another Member State, even though (according to the CJEU’s case law) they would not have to live under the same roof in that country. In any event, the family member would not have a right (under EU law) to accompany an EU citizen who moved to a third country (besides those covered by EU free movement rules: the EEA states and Switzerland). And it would be outrageous to conclude that the estranged non-EU spouse should follow an EU citizen in domestic violence cases.

The Advocate-General doesn’t mention the possibility that the non-EU family member could obtain rights under the EU’s long-term residence Directive, by adding periods of prior legal stay in that Member State to the time spent as the family member of an EU citizen. But not all non-EU citizens have had such a period of prior legal stay; and that Directive anyway does not apply to the UK, Ireland and Denmark.

The prospect of the non-EU spouse bringing divorce proceedings first depends on the interpretation of the EU’s rules on civil jurisdiction, which give jurisdiction to the courts of the Member State where one or both spouses are ‘habitually resident’. But that term is not defined in the Regulation, and so it might be argued that the courts of the host State, at least in some cases, will not have jurisdiction. Anyway, it is not unreasonable to expect the non-EU citizen concerned to devote his or her efforts to saving the marriage – and it’s even possible that he or she is unaware of the problems in it (where an EU citizen is having an affair, for instance).  Also, for the reasons already set out, this possibility should logically only apply where the Directive refers to the initiation of divorce proceedings. But that would mean that bringing proceedings first could not benefit those with custody of children, access rights to children or domestic violence issues.

Finally, it should be noted that the Advocate-General’s interpretation of the EU Charter analysis is simply wrong: Article 7 (which corresponds to Article 8 of the ECHR) does not apply only as regards family life, but also private life. This includes all the relationships which a foreigner has built up in a State, even if he or she no longer has family members there: see the Slivenko judgment, for instance.

So what is the correct approach to this issue? Admittedly, the Directive is very unclear about the relationship between divorce and departure. But the rules on divorce would lose much of their effet utile if they ceased to apply simply because the EU citizen left the country – particularly given that the whole point of EU law in this field is to promote such free movement in the first place. The best way to reconcile the two sets of rules is to rule Article 13(2) can confer a right of residence where a divorce application has been lodged within a reasonable period after the EU citizen has left the country. That’s undeniably vague. But the Directive is full of vague rules, such as the need to assess whether there is a reasonable prospect of finding employment, or to apply a case-by-case assessment of those convicted or crimes or applying for social assistance. And, as pointed out above, the Advocate-General’s alternative of relying upon the amorphous concept of ‘departure’ isn’t any more precise anyway.

 

Picture credit: salon.com

Barnard & Peers: chapter 13

The new Directive on intra-corporate transferees: Will it enhance protection of third-country nationals and ensure EU competitiveness?

Lucia Brieskova, PhD candidate at Oxford Brookes University

This post sets the scene for the new EU directive in the area of legal labour (economic) migration - the Intra-Corporate Transfers Directive (ICTD) - in three sections: a) it explains why this Directive was introduced and its relationship with the other EU directives in the area of economic migration; b) it outlines the main novelties brought about by this Directive; and c) it highlights some of the potential issues. These potential issues will be further developed and analysed in the subsequent posts.

A.      BACKGROUND

The EU Commission introduced the Proposal for ICTD in July 2010 as a part of a comprehensive package of different measures, which were proposed in the Policy Plan on Legal Migration of 2005, the European Pact on Immigration and Asylum, (adopted in 2008) and further endorsed by the Stockholm Programme (adopted by the EU Council in December 2009), which called for the adoption of an overall European policy on migration. In addition, the Europe 2020 strategy contemplated that a well-structured legal immigration policy will have a role to play not only in filling shortages of the labour markets and enhancing the competitiveness of EU but also in helping to face demographic challenges which most of the Member States face or will face in the near future.

To be more specific, the 2005 Policy Plan on Legal Migration sketched out the EU Commission's vision on how a common policy on economic migration should be further developed by scheduling the adoption of several legislative proposals (directives) on economic migration between 2007 and 2009. As a result, the ICTD was adopted as a new legislative instrument of the EU common policy on legal migration. It complements three already existing Directives, also introduced as a result of the 2005 Policy Plan on Legal Migration:  the 2009 EU Blue Card Directive on highly qualified workers setting out the admission criteria for and the rights of highly qualified third country national (TCN) workers (discussed here), the 2011 Single Permit Directive on TCN workers legally residing in an EU Member States; and the 2014 Seasonal Workers Directive.

The EU Commission, backed up by some Member States in the Council, disagreed with the European Parliament as regards some issues, for example, the right of equal treatment of ICTs and the rights of their family members.  After lengthy negotiations (4 years), the text of the ICTD is a compromise between the EU Council and EU Parliament, where EU Parliament accepted a number of EU Council proposals, for instance in relation to the equality of treatment of ICTs. The EU Council adopted the ICTD on 13 May 2014, following a positive vote in the EU Parliament in April. The ICTD was published in the Official Journal of the European Union on 27 May 2014 and entered into force on 28 May 2014. Now the 25 participating EU Member States have 30 months to transpose this Directive (by 29 November 2016). As with other EU policies on legal migration of third-country nationals, the UK, Denmark and Ireland are opting out of this Directive.

It remains to be seen how the Member States will implement this Directive into their national legal systems and whether this Directive and its national implementation will contribute to or hinder the protection of TCNs within the EU and whether it will contribute to the enhancement of the EU’s competitiveness.

B.      NOVELTIES

So what is new in the EU legislation relating to the area of economic migration after the introduction of the ICTD? Firstly, it covers a group of TCN migrant workers not yet protected by any of the existing EU economic migration directives; secondly it provides for “mixed” set of rules as regards the equality of rights of ICTs; thirdly it creates a unique intra-EU mobility scheme for ICTs; and lastly it offers favourable rights for family members.

Aims, Scope & Eligibility

The aims of the ICTD are threefold: a) it should make it easier and quicker for multinational companies to temporarily assign highly skilled TCNs to subsidiaries situated in the Member States; b) it should facilitate intra-corporate transferees’ (ICTs) mobility between Member States during their transfer; c) it lays down a common set of rights for ICTs when working in the EU in order to avoid their exploitation and distortion of competition.

The ICTD will facilitate intra-corporate transfers of managers, specialists and trainee employees to the EU by setting up transparent and harmonised conditions for admission, residence and work. To be eligible for an intra-corporate transferee permit, managers and specialists must have worked at least 3 up to 12 uninterrupted months for the multinational company immediately preceding their transfer. For trainee employees this period is 3 to 6 uninterrupted months. Member States retain the right to set the volumes of admission of ICTs who apply to be admitted to their territory. The permit will be valid for a maximum of 3 years in the case of managers and specialists and 1 year for trainee employees.

The Directive also aims to have speedy application procedures with easily available information about the new ICT permit and fast-track application processes, with only complex cases taking the maximum 90 days allowed for review.

Equal Treatment Rights

The ICTD provides for equality of treatment rights with nationals of Member States as regards remuneration. The rationale for granting equal treatment with nationals to ICTS as regards remuneration is the aim of ensuring that companies established in a third country will not be able to benefit from lower labour standards, thereby distorting competition. Therefore, Member States must request, as a ground for admission, that the remuneration granted to the ICTs is not less favourable than the remuneration granted to nationals occupying comparable positions.

Under the provisions of the ICTD, the ICTs are to be treated on equal footing with another group of migrant workers – posted workers – as regards the terms and conditions of employment other than remuneration (such as maximum work periods or safety at work). This means that these terms and conditions of employment in the Member State to which the ICT will be transferred will be governed by the laws of his or her country of origin (the sending third country). According to the ICTD the reason for this is that the ICTD should not give undertakings established in a sending third country any more favourable treatment than undertakings established in an EU Member State, in line with Article 1(4) of the Posted Workers Directive (96/71/EC).

The ICTD also sets out a clear list of rights for ICTs in relation to freedom of affiliation to a trade union, recognition of diplomas, and access to public goods and services, except housing.

Lastly, equal treatment between ICTs and nationals applies to branches of social security, in practice, in particular to benefits related to sickness, invalidity and old-age. However, EU Member States can make an exemption where the national law or a bilateral agreement with the host Member State establishes that the laws of the country of origin of the ICT will apply. Also, Member States may decide not to grant family benefits to ICTs who stay less than 9 months in the EU.

Intra-EU Mobility Scheme

The intra-EU mobility provisions in the ICTD mean a significant and unique development in comparison with national systems which do not permit ICTs to work in subsidiaries established in another Member State. This is the first work permit that will allow TCNs, under certain conditions, to work in several Member States for entities belonging to the same group of undertakings. Responding to the strong mobility needs of this type of TCN migrant workers, ICTs are not required to obtain the Schengen visas. Subject to a number of conditions, they can enter, stay and work in the Member States other than the one to which they were initially admitted. The ICTD distinguishes between short-term (less than 90 days in any 180 day period) and long-term (more than 90 days) mobility.

Family Members’ Rights

During the negotiations the EU Parliament succeeded in including crucial provisions in the ICTD as regards the rights of family members of ICTs.  This was advocated for with a view to removing an important obstacle to accept an assignment in the EU, meaning that the family members of ICTs will be able to accompany the ICTs at the start of their assignment, if they apply at the same time. In addition, the family members are also entitled to be employed or self-employed in the host Member State throughout the duration of the ICT’s transfer.

C.      POTENTIAL ISSUES

It remains to be seen how Member States will implement the ICTD in their national laws in the next two years given that the ICTD only sets minimum standards and includes a number of optional (“may”) clauses. For some Member States, the implementation process will mean modifying visa procedures, whereas others Member States will have to construct an intra-corporate transfer process from scratch. The challenge will be making sure that each Member State agrees to very similar definitions and terms for visas, so that there is not a wide variation among them.

Moreover, one issue of particular concern is intra-EU mobility for ICTs, where the ICTD includes a number of optional requirements (“may” clauses) that Member States may impose and thus also different variants of the scheme for Member States to adopt, which could render the scheme rather complicated. Furthermore, the conditions for assignments lasting longer than 90 days are much stricter than those for short-term transfers lasting less than three months.

In addition, it would appear that the ICTD is likely to impede the wider principle of equal treatment that must be at the core of all EU legislation in the field of migration – TCNs should be treated on equal footing with nationals of Member States. The ICTD contains provisions, advocated for by the EU Council and opposed by the EU Parliament, by which TCN workers employed in the EU in the framework of the intra-corporate transfers would enjoy a protection of rights granted to posted workers. Thus, the equal treatment will be limited to the core provisions of the contentious Posted Workers Directive (PWD). This means that the legislation of the sending third country will be applicable rather than the legislation of the host EU Member State. It was reasoned that ICTs should not be treated more favourably than posted workers by granting ICTs rights equal to those of EU nationals, which would suggest that the ICTD assumes that intra-corporate transfers and postings of workers are of the same or similar character.

However, the ICTD and PWD belong to different legislative spheres. The postings of workers function within the EU single market in support of the provision of services, whereas the intra-corporate transfers are aimed at allowing multinational companies to efficiently utilise their human capital. It is possible to argue that these provisions of ICTD are likely to lead to the bypassing of the EU labour legislation and national labour protection, which was the case with the PWD (see the Laval judgment). Thus, the equal treatment of ICTs could be endangered as potentially laws from any sending third country may be applicable to their situation. Consequently, TCNs could be afforded less protection and be subjected to the different forms of exploitation.

Barnard & Peers: chapter 26