Penalising Refugees: when should the CJEU have jurisdiction to interpret Article 31 of the Refugee Convention?

Yewa Holiday

PhD Candidate at Queen Mary, University of London researching Article 31 of the Refugee Convention and prosecutions of asylum seekers and refugees in the UK.

The CJEU has held in  Qurbani (Case -481/13) that it does not have jurisdiction in relation to the interpretation of Article 31 of the 1951 Refugee Convention and its 1967 Protocol.  Article 31(1) states that refugees (which includes asylum seekers) must not be penalised by states which have ratified the Refugee Convention for entry or presence without authorisation if they ‘present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ The article also requires that the refugee comes ‘directly’ from a country where his life or freedom was threatened in the sense of Article 1 of the Refugee Convention.[1] This cautious conclusion arose from the request by the Bamberg Higher Regional Court, Germany of a preliminary ruling under Article 267 TFEU in relation to criminal proceedings against Mr Mohammed Ferooz Qurbani for forgery of documents, illegal entry, unauthorised stay and unauthorised stay without a passport. It is arguable that Qurbani is a missed opportunity to address the questions raised by the Bamberg Higher Regional Court which demonstrate the importance and continuing relevance of Article 31(1) protection for asylum seekers and refugees.

Mr Qurbani is an asylum seeker from Afghanistan. He had used the services of a ‘human trafficker’ to travel through Iran and Turkey to Greece. He then flew on 17 August 2010, using a false Pakistani passport which he obtained from another ‘human trafficker’, to Munich where he was arrested when he presented the false passport. Mr Qurbani immediately claimed asylum (the application remains outstanding).  On 11 April 2011, the Warzburg Public Prosecution Service applied to the Local Court for a penal order against Mr Qurbani in relation to the above offences. The order was challenged by Mr Qurbani.  On 4 February 2013, the Local Court acquitted him of all charges and noted that the right of asylum, contained in the German constitution, prevented Mr Qurbani being convicted of unauthorised stay and unauthorised stay without a passport; and the exemption from penalties provided for in Article 31 of the Refugee Convention applied to the offences of unauthorised entry and forgery of documents. The Public Prosecution Service appealed on a point of law to the Bamberg Higher Regional Court arguing that Article 31(1) was not applicable because Mr Qurbani had not entered Germany from a state of persecution but had passed through another member state, namely Greece. It was also argued that Article 31(1) concerns only unauthorised entry and could not therefore deprive the German authorities of the possibility of punishing offences connected to that entry. The Higher Regional Court stayed the proceedings and referred three questions to the CJEU for a preliminary ruling. Firstly, the Bamberg Court wanted to know whether the suspension of penalties in Article 31(1) included offences which were additional to illegal entry, such as the forgery of a passport when the forged passport was not necessary to apply for asylum in Germany. The second question was whether the use of human traffickers precluded reliance on Article 31(1). The final question was whether the factual requirement in Article 31(1) of coming ‘directly’ from a territory where the life or freedom of the person concerned was threatened, was to be interpreted as meaning that that element was satisfied if the person concerned first entered another Member State (in this case, Greece) from where he continued to another Member State (Germany) in which he sought asylum.

Article 31 does not find a direct counterpart anywhere in EU legislation. Article 14(4) and (5) of the 2004 EU Qualification Directive provides for situations where member States might revoke or decline to grant refugee status, such as if there are ‘reasonable grounds’ that the person is a danger to national security, and Article 14(6) provides that such persons are nevertheless entitled to the rights set out in the Refugee Convention, including Article 31. The CJEU also considered the relevant German law (paragraph 267(1) of the Criminal Code). The CJEU noted that there was no clause conferring jurisdiction on it by the Refugee Convention and the CJEU could only interpret Article 31 if this was covered by Article 267 TEU. However, the CJEU (citing TNT Express Nederland, paras. 58 and 59) could only provide interpretations by way of preliminary ruling if the law or rules were part of EU law. While international agreements concluded by the EU were thereby part of the EU legal order and could therefore be the subject of a preliminary ruling, the CJEU did not have jurisdiction to interpret, in preliminary ruling proceedings, international agreements concluded between member states and non member countries. The CJEU would only have jurisdiction to interpret such a convention where the EU had assumed the power previously exercised by the member states in the field in which the international agreement was concluded and therefore provisions of the convention would bind the EU. Although EU legislation had been adopted in the field to which the Refugee Convention applied as part of the implementation of a Common European Asylum System, member states had retained certain powers within this field, specifically, in relation to Article 31. The court therefore did not have jurisdiction to interpret Article 31 notwithstanding Article 78 TFEU and Article 18 of the Charter of Fundamental Rights of the European Union. The CJEU noted that while it accepted it had jurisdiction to interpret the provisions of the Refugee Convention to which EU law made reference (referring to Bolbol (C-31/09 EU:C:2010:351); and Abed El Karem El Kott and Others (C-364/11, EU:C:2012:826)), no reference to any rule of EU law had been made in Mr Qurbani’s case and his case did not raise any issue under Article 14 of the 2004 EU Qualifications Directive.  

Comment

It is disappointing that the court concluded that it did not have jurisdiction in relation to Article 31 in this case.  The CJEU recognised that it might have jurisdiction in a future case in relation to Article 31, for example, if issues were raised relating to article 14 of the 2004 EU Qualifications Directive. The second-phase reception condition Directive and the Dublin III Regulation both mention Article 31 of the Convention in their preambles. This is in the context of the detention of asylum-seekers which relates to Article 31(2) rather than Article 31(1). This suggests that Article 31 could also be interpreted by the CJEU in this context. However, it can be argued that Qurbani did have jurisdiction. Article 3a of the Schengen Border Code (in force 19 July 2013) refers to compliance with the Refugee Convention generally. Article 3 of the same Code applies to any person crossing an internal or external border of a state ‘without prejudice to:…(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.’  Article 5 refers to the requirement of valid documents and visas for third country nationals. Article 7 refers to the falsification of travel documents.  Article 4(3) refers to the imposition of penalties for the unauthorised crossing of external borders (although it adds ‘at places other than border crossing points or at times other than the fixed opening hours’).  It would seem to be at least implicit that Article 31 of the Refugee Convention would be relevant to the obligation in the Code to impose penalties for crossing the borders without authorisation.

The questions raised by the German court remain unanswered by the CJEU but I have provided some provisional answers below.  

Is Article 31(1) of the Refugee Convention applicable to the forgery of documents which take place when a forged passport is presented to a police officer on entry to Germany by air, when the forged passport is not necessary to apply for asylum?

It is not necessary to present a passport, forged or otherwise, to claim asylum. However, claiming asylum would be impossible for many if they did not have recourse to false documents. This was recognised in the 1949 UN Study on Statelessness and a 1950 Memorandum by the UN Secretary-General which both stated that refugees fleeing from their country were rarely in a position to obtain and use (genuine) passports or obtain visas into the country of refuge. The Secretary-General’s draft convention therefore contained the novel Article 24(2) which corresponded to what later became Article 31(1). Illegal entry includes the use of false or falsified documents while illegal presence includes, as noted by Goodwin-Gill, ‘the use of other methods of deception, clandestine entry (for example, as a stowaway), and entry into State territory with the assistance of smugglers or traffickers’. In the UK, it was accepted in Adimi, and subsequent cases such as Mateta, that the exemption from penalties in Article 31(1) applied to the use of false passports. Similarly, in Asfaw, the then House of Lords recognised that an offence of attempting to obtain services by deception (that is, when transiting the UK, trying to get on a plane to claim asylum elsewhere) was caught by Article 31(1) of the Refugee Convention. Article 31 is applicable to Mr Qurbani’s presentation of the forged passport at Munich airport (as indeed it would be to all the offences with which he was charged).

Does the use of human traffickers preclude reliance on Article 31 of the Refugee Convention?

The use of false passports and travelling without a passport are inextricably linked with the use of smugglers and traffickers. The use of the term human traffickers by the German court is interesting. In the UK, the language used by the courts is usually ‘agent’. In reality, the term trafficker or smuggler is probably more appropriate. In some UK cases, the facts appear to raise issues that the asylum seeker has been trafficked (for example, Sadighpour) but it is rare for this to be raised in the court. In other cases (for example, Mateta), the refugee is under the control of an agent who decides on the route, the means of travel, when and where the person will stay and the country of asylum. Refugees do not usually have a choice in how they flee. To decide that refugees cannot rely on the prohibition in Article 31 if they rely on traffickers would therefore render Article 31 useless as a form of protection for asylum seekers and refugees.

Can a person who enters a first member State (Greece) but then goes on to apply for asylum in a second member state (Germany) come within the phrase coming ‘directly’ from a territory where the life or freedom of the person concerned was threatened in Article 31 of the Refugee Convention?

The short answer to the final question is ‘Yes!’ In considering a stay or transit in an intermediate country, what must be assessed is whether the asylum seeker or refugee is able to obtain protection there. The Conference of Plenipotentiaries which negotiated the Refugee Convention was particularly concerned with the subsequent movement of refugees after they had reached safety. However, this cannot be interpreted to mean that a refugee cannot move on subsequently if in fact he or she does not obtain protection in the country of first or subsequent stay. Mr Qurbani travelled via Iran and Turkey before reaching Greece. Iran has ratified the Refugee Convention. However, there are barriers to obtaining (and retaining) refugee status in Iran for Afghani asylum seekers. For example, Human Rights Watch has described in a 2013 report how it is ‘virtually impossible’ for newly arrived Afghan asylum seekers to lodge asylum claims in Iran. In any case, if Mr Qurbani was in transit under the control of an agent or trafficker, he would not have been in a position to claim asylum. Turkey has also ratified the Refugee Convention but it has limited its application to refugees coming from Europe. It has traditionally had a temporary protection refugee regime for non-European refugees, such as Afghanis, which runs parallel to UNHCR procedures. In April 2013, Turkey enacted a Law on Foreigners and International Protection. However, this maintains the geographical limitation. In relation to Greece, the CJEU, in NS & Others, held that EU Member States cannot return asylum seekers to countries, such as Greece, where they would be at risk of ill-treatment contrary to Article 3 of the ECHR. The ECrtHR, in MSS v Belgium and Greece held there to be deficiencies in the Greek examination of the applicant’s asylum claim and a consequent risk that he would be returned directly or indirectly to his country of origin; and the applicant was exposed to conditions of detention and living conditions which violated Article 3 of the ECHR. It would therefore appear that a country such as Greece cannot be said to be a place where an asylum seeker may obtain protection from persecution such as would preclude reliance on Article 31. This argument was accepted in cases such as Mateta and Jaddi. In Norway, following a judgment of the Norwegian Supreme Court (see also ECRE) on 24 June 2014, new guidelines exempt from prosecution refugees who have made necessary stops in other safe countries before reaching Norway. Previously, Norwegian police interpreted this as exempting from prosecution only those asylum seekers who had not passed through any other ‘safe country’ during transit.

            Prosecutions of asylum seekers and refugees occur in the UK, Germany and Norway (with local differences). There may be prosecutions in other countries. What Qurbani highlights is the restrictive interpretation being placed on Article 31(1) by European governments and the continuing relevance of Article 31(1).

Barnard & Peers: chapter 26

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[1] At the time it was drafted, this reference to Article 1 meant that it applied only to events occurring before 1 January 1951. The ‘coming directly’ phrase was inserted at the request of the French at a late stage because France was concerned that Article 31 would apply to others who had no connection with the events occurring before January 1951. It is debatable how relevant the phrase is after the coming into force of the 1967 Protocol which has removed this temporal limitation.

Is obesity a disability?

Katharina Ó Cathaoir, PhD Fellow, University of Copenhagen

Is obesity a disability? Advocate General Jääskinen addressed this loaded question yesterday 17 July 2014, in his anticipated opinion in Kaltoft v. Municipality of Billund. The case has garnered media attention with practitioners and journalists concerned by the implications for employers and health. The AG’s opinion is non-binding. The Court will issue its own judgment in the next few months, which will be binding on EU member states. However, in general, the Court tends to follow the AG’s opinion, although it is free to depart therefrom.

What is obesity?

An adult is classified as having obesity if he or she has a body-mass index (BMI) of over 30 (mass kg/ height m2). In most European states, the rate of obesity has doubled in the last twenty years. On average at least 17% of the adult European population is obese. As a result, the public, and state and interstate bodies increasingly look for solutions to the obesity “epidemic”.  Generally, obesity is linked to lack of physical activity and the consumption of too many calories. However, environmental factors, such as walkability, ability to afford and access healthful food, and opportunities to exercise may contribute. There is evidence of a link between low socio-economic status and obesity. Long term weight loss, although possible, is not maintained by everyone.

Facts of the case

Kaltoft worked as a child minder for 15 years with the Municipality of Billund. For the entirety of this time Kaltoft was obese, weighing no less than 160kg. During a period of one year he was provided with financial assistance by the Municipality to attend fitness and physical training sessions. He also unsuccessfully pursued bariatric surgery. Contrary to what has been reported, it has not been established that Kaltoft was dismissed due to his obesity. This will be a matter for the Danish court to decide following the preliminary ruling of the CJEU. Furthermore, Kaltoft, in a BBC interview, denied that he was unable to tie the children’s shoelaces as had been reported. Instead, both parties appear to maintain that Kaltoft was fully capable of fulfilling his position.

Mr Kaltoft was not formally given reasons for his dismissal although the Municipality contends it was due to a decline in the number of children making use of the service. Mr Kaltoft, however, alleges that his obesity was broached at his dismissal hearing and declared a reason for the decision. As a result, Mr Kaltoft argued that he had been unlawfully discriminated against due to his obesity and sought damages. The Danish court referred four questions to the CJEU for preliminary ruling.

Question 1: Is it contrary to EU law, as expressed, for example, in Article 6 TEU concerning fundamental rights, generally or particularly for a public-sector employer to discriminate on grounds of obesity in the labour market?

The AG succinctly opined that obesity does not fall under any general prohibition of discrimination under EU labour discrimination law. Jääskinen considered that the Charter of the Fundamental Rights of the EU did not apply as Denmark was not implementing EU law as such. The sufficient degree of connection with EU law above and beyond the fact that “matters covered are closely related, or one of those matters has an indirect impact on the other” was not met. Furthermore, as Articles 10 and 19 TFEU, as well as Directive 2000/78 (the employment equality Directive, which bans discrimination in employment on grounds of disability, age, religion or sexual orientation), Council Directive 2000/43/EC of 29 June 2000 (the race equality Directive) etc., address specific, exhaustive grounds of non-discrimination. These could not be seen as establishing a general prohibition against discrimination. Thus, the AG rejected a more expansive interpretation of discrimination in EU law as argued by Kaltoft.

Having swiftly disposed of the first three questions (the second two were nullified by the first answer in the negative), the AG engaged in a detailed analysis of the concepts of disability and obesity.

Question 4: Can obesity be deemed to be a disability covered by the protection provided for in Council Directive 2000/78EC… and if so, which criteria will be decisive for the assessment as to whether a person’s obesity means specifically that that person is protected by the probation of discrimination [on] grounds of disability as laid down in that directive?

The AG excluded the possibility that obesity per se would amount to a disability under Directive 2000/78. However, obesity of a certain severity may amount to a disability, provided it fulfils the criteria laid out in case law.

It should be emphasized that there is limited support for obesity per se as a disability. In the United States, in many states, obesity must be accompanied with a physiological condition to qualify as a disability. However, the Equal Employment Opportunity Commission (EEOC) has stated that “severe obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment” and has succeeded on this basis in a number of federal cases. Thus, obesity must reach a higher, more extreme threshold to be a disability per se.

Classifying obesity as a disability

Disability is not defined by the Employment Equality Directive. However, the Directive must, as far as possible, be interpreted consistently with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The AG followed the definition of disability offered in previous case law:  

“A limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.”

This limitation must be long term. The AG, as in the aforementioned case, relied heavily on the UNCRDP and acknowledged disability as an evolving concept.

Thus, the AG concluded that “mere” obesity is insufficient to amount to a disability, instead “most probably only WHO class III obesity, that is severe, extreme or morbid obesity, will create limitations, such as problems in mobility, endurance and mood”.

The AG also stated that it would be absurd if the individual’s ability to carry out his work excluded him from the Directive. Thus, the long term condition must cause limitations “in full and effective participation in professional life in general on equal terms with persons not having the condition”. This may be due to “physical and or psychological limitations”.

Interestingly, the AG also addressed the issue of the origin of the disability. Whether the person’s obesity can be traced to his own behaviour or an external factor was deemed irrelevant. The AG pointed out that many other disabilities may occur due to negligence or risk taking and avoid the moral spotlight.

The implications of disability

Under the EU Employment Equality Directive, an employer has a duty to reasonably accommodate an employee with a disability. Article 5:

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to provide training for such a person, unless such measures would impose a disproportionate burden on the employer. When this burden is, to a sufficient extent, remedied by existing measures as an element of disability policy in the Member State, it should not be considered disproportionate.”

Thus, the duty is not absolute and the employer may show as a defence that accommodation would impose a “disproportionate burden”. Furthermore, as the AG highlighted, the employer is not required to maintain an individual who cannot “perform the essential functions of the post”. Thus, some of the panic regarding the wide reaching ramifications of the decision appears exaggerated.

Recital 20 of the Preamble suggests such accommodation could include “premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources”. However, the assessment will depend on the particular individual.

The Preamble also gives some guidance with regard to assessing whether any particular accommodation amounts to a disproportionate burden in Recital 21:

"To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance."

Comment

In Against Health; How Health became the new Morality, Kirkland and others condemn the use of “health” to make value judgments and moral assumptions on an individual. The approach of the AG, in concentrating on the functionality of the individual, instead of causality and responsibility, avoids this. However, some commentators fear that tackling obesity discrimination may serve to support or normalise obesity. Will large numbers of employers now be subject to costly implications? Is it insulting to deem a potentially “curable” condition a disability? With the “fight” against obesity staunchly declared, is it contrary to public health to describe obesity as a disability requiring protection from discrimination? Will this opinion medicalise obese individuals and further remove their sense of personal responsibility?

The experiences of obese persons should not be ignored. Discrimination in employment and healthcare is well documented and appears to be increasing. The AG has adopted a balanced position whereby only severe obesity could be a disability on its own. In reality, this covers only a small percentage of obese persons, especially considering the long term requirement. The majority of obese persons seek to lose weight but some, like Kaltoft, despite efforts, fail to do so. Factors such as diet and preventability play into other recognised disabilities, such as diabetes.

It is contended that stigma and discrimination should never be in the arsenal of a state’s public health policy. Indeed, it appears that shame is a major factor that inhibits persons with obesity from engaging with health care professionals and exercise. Thus, stigma is unlikely to decrease the number of obese persons. Furthermore, having a disability should not be seen as infantilising but instead encouraging full equal participation.

Conclusion

The opinion will prove too moderate for some and extreme for others. While the AG did not go so far as to declare obesity per se a disability, he did suggest extreme obesity could be a disability. Despite showing an understanding influenced by a rights based approach, labelling people with obesity of a certain severity needs further exploration. It does not seem fully clear as to why the AG in particular identified Class III obesity as the only category per se justifying recognition as a disability. Further explanation as to what limitations separate an individual with a BMI of 39 from a BMI of 40 is needed. Furthermore, employers must avoid stigmatising or insensitive identification of employees on the basis of physical characteristics, no matter how well intentioned. 

Update: the CJEU gave its judgment in this case in December 2014. See discussion here.

Barnard & Peers: chapter 20 

Data protection rights and administrative proceedings

Steve Peers

What rights do asylum-seekers have as regards data protection law? This issue was clarified in today’s CJEU judgment in YS and M and S, which could also have broader relevance for any case which involves access to documents in the context of administrative procedures.

Both cases involved asylum-seekers in the Netherlands, who sought access to file notes concerning their case. However, they did not rely on the EU’s asylum procedures Directive, which states that asylum-seekers must be given the reasons for negative decisions and are entitled to access reports about the interviews held with them, but does not make mention of access to any other document. The second-phase procedures Directive, applicable to applications made after 20 July 2015, adds a right of access to country-of-origin information and expert advice which was used in making a decision on the asylum-seeker’s case, but still does not extend to a right to the entire file.

So they invoked the data protection Directive instead. The first question in this respect was whether the legal analysis in the file concerning their case was ‘personal data’ within the meaning of the Directive. According to the CJEU, it was not, for although that analysis ‘may contain personal data, it does not in itself constitute such data within the meaning of’ that Directive. That analysis ‘is not information relating to the applicant for a residence permit, but’ rather ‘information about the assessment and application by the competent authority of that law to the applicant’s situation’, based on the personal data available to the authorities.

The Court further opined that this was consistent with the purpose of the Directive, which was to ensure the right to privacy, including the check on the accuracy of the data and the correction of inaccurate data. A different approach would amount to ‘the right of access to administrative documents’, which was not the point of the Directive. It justified its analysis by analogy with the Bavarian Lager judgment, in which it had ruled that the Directive did not have the purpose of opening up the transparency of EU decision-making.

The second point was the extent of access to the personal data (as defined by the Court) which was being processed. On this point, the CJEU rejected the argument that the entire file document had to be made available, and instead stated that it was sufficient to give data subjects an intelligible summary of the personal data being processed.

Finally, the national court had asked about the possible application of Article 41 of the Charter, which sets out the right to good administration. The CJEU distinguished its prior case law, and asserted that this Charter right applied only to EU bodies, not to national administrations. But the right to good administration could still be invoked against national authorities as a general principle, as distinct from a Charter right.

Comments

The Court’s analysis of the main data protection issues here is not very convincing. There is nothing in the text of either the data protection Directive or the asylum procedures Directive that would suggest a distinction between administrative documents which contain personal data, and other types of collection of personal data. Quite clearly asylum-seekers do have an interest in knowing how their personal data is being processed in respect of an analysis of their application, and of correcting that personal data if it is correct.

To argue that the data protection Directive does not give access to administrative documents is a straw man argument. The question is not whether it aims to give access to all administrative documents, but only whether it gives access to those which contain personal data. The comparison with the Court’s Bavarian Lager judgment makes no sense either, for in that case data protection formed an express exception to the EU legislation on access to documents, and the two rights were in conflict.

The Court’s judgment on the second point is more convincing, in light of the wording of the data protection Directive, which only requires an intelligible summary of the personal data being processed to be made available.

Finally, the Court’s analysis of Article 41 of the Charter is a brave attempt to clear up the prior inconsistencies and confusion on this point, for instance in its recent judgment on procedural rights as regards subsidiary protection applications. Undeniably the Charter provision does only apply to EU bodies, not to Member States, but the Court nevertheless guarantees that the right to good administration can be claimed against the latter by clarifying that the right to good administration is nonetheless a general principle of EU law.

This is, apparently, the first time that the Court has confirmed that some rights are not in the Charter, but are protected as general principles of EU law. This raises important questions as to which other rights might be protected in that way, what the difference between the parallel rights to good administration might be, and whether the general principles have a different legal effect than Charter rights. But in the specific context of asylum proceedings, and more generally in many other areas of EU law, it is useful that the Court confirmed that applicants can still enforce (by a different means) the right to good administration against national authorities.

Barnard & Peers: chapter 8, chapter 9, chapter 26

What would happen to EU nationals living or planning to visit or live in the UK after a UK exit from the EU?

Helena Wray, Reader in Law at Middlesex University and editor of Journal of Immigration Asylum and Nationality Law

As the election approaches and the Conservative Party flirts ever more extravagantly with leaving the EU, it is a good moment to reflect on what life would be like after an exit for the 2.3 million EU citizens already living in the UK and for those who might wish to come in future.

As Steve Peers pointed out in his blog entry on the effects of exit on UK citizens living in Europe, immigration from within the EU has become one of the major causes of grievance for Euro-sceptics particularly since the accession of poorer Eastern European states (the irony is that it was the a Euro-sceptic government headed by Margaret Thatcher that promoted enlargement of the EU to include Eastern Europe). The difficulty for them however is that a pick-and-mix approach, in which French, Italian or German EU citizens can continue to enter freely but Czechs, Romanians and Bulgarians cannot, will be the most difficult outcome to achieve.

The possible options are:

1. The UK becomes a member of the European Economic Area or negotiates an agreement similar to that between the EU and Switzerland, permitting free movement for workers, self-employed and self-sufficient (including students) on a non-discriminatory basis. This possibility is regularly canvassed as part of a looser free-trade arrangement after exit. These arrangements however include the free movement rights that exist within the EU and their replication could well be made a precondition by the EU for any broader free trade agreement. However, it is precisely these rules that have proved so contentious because they permit the entry of EU citizens from the poorer, mainly Eastern European member states. Even if some negotiation were possible, the EU would not agree to an arrangement that discriminated between the different EU member states. In order to maintain the free entry of prosperous German and French citizens, the UK would still have to permit the admission of the apparently unsuitable Bulgarians and Romanians. It would also have lost most of its ability to influence the overall direction of free movement laws.

2. The UK negotiates bilateral free movement or other agreements with individual member states. This seems an unlikely scenario given the cumbersome and time-consuming nature of such proceedings, and the likely unwillingness of member states to enable the UK to use such a divisive tactic after the disruption of an exit. If they did take place, negotiations would have to proceed on the basis of reciprocity to be politically acceptable and member states are bound by the EU’s immigration policy on visas and admissions which provides a minimum floor of rights for third country nationals in certain situations such as long residence or in cases of family reunification; these would therefore have to be reflected in the UK’s own laws at least so far as these states are concerned. While these EU rights may be less open than those the UK would be ready to offer to the most prosperous member states, that would not necessarily be the case for poorer states. As an EU member state, the UK has succeeded in maintaining its opt-out from the EU’s immigration policy towards third country nationals. There is an irony in the prospect of the UK finding itself bound by such laws, at least in respect of some countries, as a consequence of exit.

3. More likely than the second possibility and more satisfactory in immigration control terms than the first is for the UK to apply its national immigration laws to all EEA citizens and it is this scenario that will be considered in the rest of this blog entry. Legally speaking, such a change would not be difficult to make, requiring only repeal of s 7(1) of the Immigration Act 1988, which provides that leave to enter or remain in the UK under the Immigration Act 1971 is not required by a  person who is entitled to enter the UK by virtue of EU rights. The practical consequences however would be enormous.

EU citizens (and their family members) already in the UK: In practice, it is likely that the position of these individuals would be agreed during the negotiations for exit. If not, those who already possess the right to permanent residence might retain that status or be switched to indefinite leave to remain. Indefinite leave offers fewer protections against deportation than permanent residence and this would raise some interesting questions under both human rights (assuming the UK remained party to the Convention) and domestic law in the event of an attempt to deport. Those who had not yet met the conditions for permanent residence could, in theory, be required to qualify under domestic law or face removal. This is likely to be difficult for most given the narrowness of domestic law as discussed below. Removing or changing the status of these individuals is likely to lead to legal challenges as they see their plans to live in the UK long-term demolished or the terms of residence adjusted to their detriment long after they had acted in the expectation of a particular route to residence (see, for example, the cases of R (on the application of HSMP Forum Ltd) v SSHD [2008] EWHC 664 (Admin) and R (on the application of HSMP Forum (UK) Ltd) v SSHD [2009] EWHC 711 (Admin)). Given this and the numbers involved, the government would have to find an acceptable policy for dealing with these individuals. It is likely therefore that most of those EU citizens who are already exercising their Treaty rights in the UK would be permitted to remain while they continue to exercise those rights, with the prospect of obtaining permanent residence or indefinite leave in due course. Those who are not exercising their rights, usually the unemployed, would however become easier to remove permanently as they would no longer have enhanced rights under Directive 2004/38. The interpretation of free movement rights would therefore continue to be relevant for many years following exit, although the UK would be unable to influence either its legislative or jurisprudential evolution.

EU citizens (and their family members) who wish to come to the UK: These individuals would be subject to the full force of British immigration law, in particular the immigration rules. While these are binding on the government, thereby providing some measure of predictability, they are byzantine and change repeatedly. Applications are expensive to make and carry a high risk of refusal, particularly from poorer countries. Evidential requirements are complex and highly prescriptive. Appeal rights are limited and are set to be restricted still further when new provisions in the Immigration Act 2014 are implemented.  Applicants whose exclusion is deemed conducive to the public good, who have been convicted of criminal offences (other than minor ones), have made or been the subject of false representations or have previously breached immigration control (except in minor ways) will be refused as may those who provide incomplete information or documentation, have committed a recent minor offence or whose admission is viewed as problematic in other ways. Once present in the UK, they remain liable to deportation in a range of circumstances.

The process of entering the UK would become more complicated and time-consuming, even for a for a short meeting or weekend visit.  While some EU member states may be exempted from visa requirements for visits, they would still need to satisfy the immigration authorities on entry and all EU citizens would be subject to the long queues at entry points that are currently faced by those from outside the EU. In theory, EU citizens could be asked to establish that they meet all the requirements for entry as a visitor to the UK, including funds, intention to return and lack of intention to work, before being admitted.

All EU citizens would need to obtain a visa if they wish to come to the UK for long term purposes such as for work, study or family reunification. This is expensive and requires the supply of biometric information. It is often difficult to meet the substantive criteria for entry in these categories, a consequence of the current policy to reduce net migration.

·   
Work and Self-Employment: Opportunities for unsponsored highly skilled migration under Tier 1 have now almost entirely disappeared. The ‘Exceptional Talent’ scheme permits a maximum of 1,000 admissions a year by those who are already world leaders or likely to become so in their field. Entrepreneurs with access to capital may enter to establish a business as may those with very large sums of capital (at least £1 million) available for investment. Most admissions for work are now under Tier 2 of the Points-Based System. This requires an approved sponsor, a minimum salary and a job offer either in a shortage occupation or a post which has already been advertised to the domestic job market and failed to recruit. Temporary employment and artistic and sporting engagements are covered by Tier 5 and also require a sponsor. The over-elaborate requirements of Tier 5 have been widely criticised as inhibiting cultural and other exchanges, problems which would now affect all those coming from the EU as artists, sportspeople religious workers or charitable volunteers.

·         Study: Students coming from the EU would no longer be eligible for home fees or loans and would have to obtain a student visa under Tier 4. They would have to be sponsored by an approved institution, may enter only for full-time courses and may spend only a certain number of years in the UK as a student. They would also need to meet the criteria for the issue of a student visa including the financial requirements, showing that they or their parents have access to thousands of pounds held in approved bank accounts and that they can speak English to the satisfaction of the entry clearance officer.  They would be able to work only as approved by the terms of the student visa and their sponsor would have to monitor their attendance and report suspected non-compliance in the same way as for non-EU students.

·         Family: It is now almost impossible for an elderly parent or other dependent relative to enter the UK to live with a UK-settled sponsor and this would apply to EU citizens who wish to join their adult children or other family members in the UK. Children could still join both parents, subject to financial and accommodation criteria, but, where one parent lives outside the UK, it would no longer usually be possible for an EU citizen child to join the UK parent. EU spouses and partners would be required to establish the genuine nature of their relationship and their intention to live together.  The provisions in the Immigration Act 2014 which provide for the investigation of suspected sham marriages and possible prohibition of the marriage would also apply to marriages involving EU citizens. Partners would have to show adequate accommodation and that the UK sponsor earns at least £18,600 pa, demonstrated in the manner required by the rules.  As almost half of the UK population is unable to meet the income requirement (more in many regions), it would become much more difficult for UK citizens marrying EU citizens to live with their partner in the UK.

·         Indefinite leave: It is usually more difficult to obtain indefinite leave to remain under domestic law than it is to obtain permanent residence under EU law. As already mentioned, there is a greater liability to revocation of indefinite leave and deportation than under EU law. It is therefore a less secure status than permanent residence.

Conclusion

Those advocating the exit of the UK from the EU as a solution to unwanted intra-EU immigration do not seem to have grasped the unpalatable nature of the alternatives even in the terms of their own anti-immigration agenda. Maintaining the benefits of free access to Europe for UK citizens will almost certainly involve accepting inward movement from the entire EU on terms which are similar to those existing today but accompanied by the loss of influence that an exit implies. Alternatively, the UK can choose an isolationist position and apply domestic immigration controls to EU citizens. The price will be the loss of innumerable business, educational and cultural opportunities as movement from Europe becomes more difficult, and likely increased difficulties for UK citizens who may no longer take for granted their own privileged access to Europe for work, education, holidays or retirement.

Barnard & Peers: chapter 2, chapter 13

Open letter on the UK's Data Retention and Investigatory Powers Bill

Tuesday 15^th July 2014

To all Members of Parliament,

Re: An open letter from UK internet law academic experts

On Thursday 10 July the Coalition Government (with support from the Opposition) published draft emergency legislation, the Data Retention and Investigatory Powers Bill (“DRIP”). The Bill was posited as doing no more than extending the data retention powers already in force under the EU Data Retention Directive, which was recently ruled incompatible with European human rights law by the Grand Chamber of the Court of Justice of the European Union (CJEU) in the joined cases brought by Digital Rights Ireland (C-293/12) and Seitlinger and Others (C-594/12) handed down on 8 April 2014.

In introducing the Bill to Parliament, the Home Secretary framed the legislation as a response to the CJEU’s decision on data retention, and as essential to preserve current levels of access to communications data by law enforcement and security services. The government has maintained that the Bill does not contain new powers.

On our analysis, this position is false. In fact, the Bill proposes to extend investigatory powers considerably, increasing the British government’s capabilities to access both communications data and content. The Bill will increase surveillance powers by authorising the government to;

·         compel any person or company – including internet services and telecommunications companies – outside the United Kingdom to execute an interception warrant (Clause 4(2));

·         compel persons or companies outside the United Kingdom to execute an interception warrant relating to conduct outside of the UK (Clause 4(2));

·         compel any person or company outside the UK to do anything, including complying with technical requirements, to ensure that the person or company is able, on a continuing basis, to assist the UK with interception at any time (Clause 4(6)).

·         order any person or company outside the United Kingdom to obtain, retain and disclose communications data (Clause 4(8)); and

·         order any person or company outside the United Kingdom to obtain, retain and disclose communications data relating to conduct outside the UK (Clause 4(8)).

The legislation goes far beyond simply authorising data retention in the UK. In fact, DRIP attempts to extend the territorial reach of the British interception powers, expanding the UK’s ability to mandate the interception of communications content across the globe. It introduces powers that are not only completely novel in the United Kingdom, they are some of the first of their kind globally.

Moreover, since mass data retention by the UK falls within the scope of EU law, as it entails a derogation from the EU's e-privacy Directive (Article 15, Directive 2002/58), the proposed Bill arguably breaches EU law to the extent that it falls within the scope of EU law, since such mass surveillance would still fall foul of the criteria set out by the Court of Justice of the EU in the Digital Rights and Seitlinger judgment.

Further, the bill incorporates a number of changes to interception whilst the purported urgency relates only to the striking down of the Data Retention Directive. Even if there was a real emergency relating to data retention, there is no apparent reason for this haste to be extended to the area of interception.

DRIP is far more than an administrative necessity; it is a serious expansion of the British surveillance state. We urge the British Government not to fast track this legislation and instead apply full and proper parliamentary scrutiny to ensure Parliamentarians are not mislead as to what powers this Bill truly contains.

Signed,

Dr Subhajit Basu, University of Leeds

Dr Paul Bernal, University of East Anglia

Professor Ian Brown, Oxford University

Ray Corrigan, The Open University

Professor Lilian Edwards, University of Strathclyde

Dr Theodore Konstadinides, University of Surrey

Professor Chris Marsden, University of Sussex

Dr Karen Mc Cullagh, University of East Anglia

Dr. Daithí Mac Síthigh, Newcastle University

Professor David Mead, University of East Anglia

Professor Andrew Murray, London School of Economics

Professor Steve Peers, University of Essex
Julia Powles, University of Cambridge

Professor Burkhard Schafer, University of Edinburgh

Professor Lorna Woods, University of Essex

The CJEU transforms family reunion for Turkish citizens

Steve Peers

In this week’s judgment in Dogan, the Court of Justice in effect established a new set of rules for family reunion for most Turkish citizens living in the EU – although those rules will still differ in each Member State.

The case concerned Mrs. Dogan’s application to come to Germany to live with her husband, after spending thirteen (by now sixteen) years apart. She was refused on the grounds that her German language skills were not satisfactory, for even though she passed the relevant language test, her written German was not satisfactory due to illiteracy.

This raised two legal issues. First of all, since her husband ran a business in Germany, did the national rule breach the 1970 Protocol to the EU/Turkey association agreement, which prohibits new restrictions on establishment or the provision of services? Secondly, did the national rules comply with the EU’s family reunion Directive, which permits Member States to require family members to comply with ‘integration measures’?

The Court of Justice decided to answer only the first question. This means that its ruling is only relevant to Turkish nationals, rather than all third-country nationals. Having said that, Turkish nationals make up a large proportion of all third-country nationals in the EU, and the Court’s judgment on this point applies to all Member States, including the UK, Ireland and Denmark, which do not apply the family reunion Directive.

However, it should be noted that the Advocate-General’s opinion also argued that the integration requirement breached the family reunion Directive (see discussion here), and that there is another case before the CJEU which raises this issue (notably the K and A case; see further the Commission's recent guidance on the Directive, discussed here).

The judgment

Previously, the CJEU had held that the standstill on new restrictions on establishment and provision of services was binding, had direct effect, and prevented any new measures making it more difficult to exercise self-employment or provide services. But the previous case law only concerned those persons who were actually self-employed or providing services. Could it extend also to the rules regulating the family members of such persons?

The CJEU said it could. In the Court’s view, where the national law made family reunion ‘difficult or impossible’, the establishment of a self-employed person could be ‘negatively affected, since that person would ‘find himself [or herself] obliged to choose between his [or her] activity in the Member State concerned and his [or her] family life in Turkey’. In this case, the national rule made family reunion more difficult, and so violated the standstill clause.

Finally, the Court noted that a measure infringing the standstill clause could be permissible, if it could be ‘justified by an overriding reason in the public interest’, and was ‘suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it’. In this case, assuming that the objectives of the national law (preventing forced marriages and promoting integration) were overriding reasons in the public interest, the national law failed the proportionality test, since the refusal of an application on linguistic grounds was automatic, without taking account ‘of the specific circumstances of each case’.

Comments

In order to assess the impact of the Court’s ruling, it is necessary first of all to determine its scope. The geographical scope, as noted already, is all Member States. Also, while the family members of Turkish nationals will usually reside in Turkey, the judgment should logically apply also if those family members reside in another third State, or in a Member State. Although in the latter case, it is possible that EU immigration law, such as the long-term residents’ Directive, might also apply, that legislation is without prejudice to more favourable rules in treaties between the EU and third States.

The temporal scope, as established in the previous Dereci case, is 1973 for the first nine Member States (the date of entry into force of the 1970 Protocol to the association agreement), and the date of joining the EU for all other Member States. That means that the national law in force on that date regarding family reunion cannot be made worse for those joining Turkish nationals. Moreover, as established in Toprak and Oguz, if the national law is made more liberal after that date, the standstill also prevents any reversion to the more restrictive law.

Next, what is the personal scope of the judgment? There are three facets to this issue: the sponsor (ie the Turkish citizen in the EU); the family members who seek to join them; and issues of nationality law.

For the Turkish citizen in the EU, the standstill which the Court discussed here also applies to providers of services, but not (as the Court established in Demirkan) to recipients of services. There is also a parallel standstill relating to Turkish workers: according to Article 13 of Decision 1/80 of the EU/Turkey Association Council, the rules on access to employment of Turkish workers and their family members cannot be made more restrictive either. The case law on this provision (see most recently the Demir judgment) makes clear that the standstill on workers and the standstill on establishment must be interpreted the same way (although for the first nine Member States, the standstill on workers took effect in 1980, rather than 1973). In particular, the standstill on workers applies to measures concerning their first admission. It must logically also apply to rules on the first admission of the worker’s family members, since workers, like self-employed persons, would otherwise face a choice between carrying on with employment in a Member State and enjoying family life in another country.

As for family members, while this case concerned spouses, it would logically apply to any other family member as well (Mrs. Dogan had also originally applied for two of the couple’s four children to be admitted also). Simply put, the Turkish citizen in the EU could equally face a choice between his or her economic activity and family life with unmarried partners, children, parents or other family members as well.

Next, as for issues of nationality, one question is whether the primary right-holder and/or the family members concerned can still rely on the rule, if they are dual citizens of Turkey and another country. This question appeared to be answered by the CJEU in Kahveci and Inan, in which it ruled that dual citizens of Turkey and a Member State can rely on the EU/Turkey association rules. But in the pending case of Demirci, concerning social security, an Advocate-General has recently argued that dual citizens cannot invoke the rules. The CJEU will likely clarify this issue soon.

Another nationality-related question is whether third-country national family members of Turkish nationals (in this context, meaning family members who are not nationals of Turkey or a Member State) are covered by the standstill rules. It is clear that they are, by analogy with the recent judgment in Dulger.

Next, what is the material scope of the judgment? In other words, what type of rules relating to family reunion are covered? The test is whether the national rule makes family reunion difficult or impossible. This is apt to cover waiting periods, in-country applications, income requirements, fees for applications (see the Sahin judgment), age limits for spouses or children, and accommodation or sickness insurance rules. Furthermore, the standstill should equally apply as regards different categories of sponsors: for instance, more favourable rules that apply to groups such as refugees, long-term residents or highly-skilled workers cannot be made more restrictive either.  

Finally, what about the possibility of justification? The CJEU did not rule directly in this case as to whether prevention of forced marriages and integration were possible grounds of justification, although in Demir it ruled that prevention of irregular immigration could be such a ground. An example of a new rule which could surely be justified would be a ban on admission of family members if they have received a five-year prison sentence, as compared to a ten-year threshold previously. On the other hand, it seems doubtful that a national rule which simply aims to reduce the numbers of Turkish persons’ family members entering the country can be justified, in light of the overall objective of the association agreement of eventually providing for free movement of people and preparing for Turkish accession.

In any event, it is clear from the Dogan judgment that even if a new national restriction is justified, refusals cannot be automatic and must take account of individual cases. The requirement that the restrictions be ‘suitable’ also suggests that they must be the only possible means to achieve their end. More generally, it is surely the case that like any derogation from EU law, such restrictions and their application must also be judged in light of the EU Charter, namely the right to family life and rights of the child. 

Barnard & Peers: chapter 24, chapter 26