The Orbanisation of EU asylum law: the latest EU asylum proposals

Steve Peers

There have been a number of EU proposals to deal with the perceived ‘refugee crisis’ in Europe over the last year. The latest batch, issued this week, are perhaps the most significant to date. They concern three related issues: visas (notably a short-term Schengen visa waiver for Turkish nationals); Schengen (partly suspending the open borders rules for six months); and asylum (changing the Dublin system on responsibility for asylum seekers, and creating a new EU asylum agency). Further proposals on legal migration and other EU asylum laws are coming in the months ahead.

Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system. 

Background

The surge in the number of refugees and migrants coming into the EU since 2014 led initially to a discordant response from Member States, with Germany and Sweden initially welcoming the arrivals and Hungary trying to stop them. Last September, in a bid to modestly assist the ‘frontline’ border states of Greece and Italy with the large numbers of asylum-seekers, the EU adopted two Decisions on ‘relocation’ (discussed here), in principle taking up to 160,000 asylum-seekers off those countries’ hands and distributing them among other Member States. However, this ‘Plan A’ was ineffective, as some Member States refused to cooperate (even launching legal action) and the remainder relocated very few people.

So ‘Plan B’ was developed: an EU/Turkey deal whereby Turkey either prevented the large number of refugees on its territory from leaving, or readmitted them back from the EU if they did reach EU territory (which in practice usually means the Greek islands). To implement this, Greece agreed to treat Turkey as a ‘safe third country’ or a ‘first country of asylum’ under EU asylum law, with the result that claims were treated as inadmissible. As discussed earlier on this blog, this is a highly dubious interpretation of the law. To induce Turkey to cooperate, the EU agreed to spend money on the welfare of Syrian refugees in Turkey, and to drop the short-term visa requirement for Turkish citizens to visit the EU countries in the Schengen system. (It also agreed to open one more ‘negotiating chapter’ relating to Turkish accession to the EU, but this is a trivial concession: only one of these 35 chapters has been agreed to date, in 11 years of accession negotiations).

In the meantime, many Member States became concerned about the numbers of migrants and refugees reaching their territories, and so resumed checks on the previously open borders between Schengen states. However, under the relevant Schengen rules dating from 2013 (on which, see my thinktank report on the Schengen system here), the authority to do this will soon expire, unless the EU as a whole agrees to suspend the Schengen system for one or more periods of six months. This prospect has been mooted since December 2015 (as discussed in detail here).

So this week’s proposals aim to implement and entrench these policy developments: waiving the visa requirement for Turkey; allowing a limited suspension of Schengen; and amending the Dublin system to reflect the EU/Turkey agreement, to deter asylum-seekers from moving between Member States (allowing Schengen to be fully reinstated) and to incorporate a new version of the failing relocation rules.  All of these measures are related, but I will examine each of them in turn. 

Visas

There are three separate proposals to amend the EU visa list. All of them need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  The proposals, if adopted, would not apply to the UK and Ireland, which have their own laws on visa requirements (or waivers) for non-EU countries, due to an opt-out from the EU’s visa laws. That opt-out forms part of those countries’ overall opt-out from the Schengen system, which allows the UK to check people at its borders and refuse entry to non-EU citizens based (mostly) on UK law. It is therefore dishonest to suggest that the proposals would lead to an increased migrant influx into the UK. Indeed the UK’s withdrawal from the EU would not change the rules at all as regards non-EU citizens seeking to enter the UK from (the rest of) the EU – other than the small minority who apply for asylum or who are family members of EU citizens.

These proposals would, in turn: a) waive visa requirements for Turkish citizens; b) waive visa requirements for Kosovo; and c) make it easier to reimpose visa requirements in the event of immigration control issues. It should be noted that the Commission also recently proposed to waive visa requirements for Ukraine and Georgia; those proposals are still under discussion. All these proposals would, if adopted, amend the EU’s main law on visa lists, which dates initially from 2001. That law has been amended many times since, without any official codification of those amendments, but I have codified it unofficially here. Note that the visa waiver would apply to Turkish citizens, not to Turkish residents like the refugees from other countries living there.

The visa waiver for Kosovo is not linked to the overall refugee crisis, but rather to the policy of strengthening relations with EU neighbours, in part as an incentive for them to settle their own disputes. The Commission report on Kosovo fulfilling the requirements for visa waivers refers in particular to a recent border agreement between Kosovo and Montenegro. It also refers to meeting the requirements as regards readmission, reintegration, document security and organised crime.

As for Turkey, there is obviously a direct link with the EU/Turkey refugee deal. A fast-track visa waiver was promised to Turkey as part of that deal. But it is still subject to Turkey meeting the EU’s conditions. According to the Commission’s report, Turkey meets all but 7 of 72 requirements: the exceptions relate to issues like readmission, corruption, terrorism and document security, and the Commission believes that they will be fulfilled by the time the visa waiver is granted. In any event, the document security point is addressed by limiting the visa waiver to those with biometric passports. 

A longer staff working document elaborates on this assessment, but it is not convincing on several points. As regards asylum issues, it states that the obligation to lift the geographical limitation on the Geneva Refugee Convention (which means that Turkey only fully recognises Europeans as refugees) is met by Turkey because that country treats non-Europeans just as well as if they are refugees. But it skips over the lack of work permits for refugees who are not Syrians. It also concludes that Turkey does not refoule refugees to dangerous countries (as alleged by NGOs) simply by accepting Turkey’s word to the contrary. The Commission also waives the obligation for Turkey to ratify Protocol 7 to the European Convention on Human Rights, on the grounds that its national law offers equivalent protection. But if so, why be afraid of the supervision of the European Court of Human Rights on these issues? And it is only clear reading the staff working document that the (unresolved) concerns about ‘terrorism’ laws are actually concerns about misuse of terrorism law to crack down on freedom of expression. The main report does not even flag this as one of the most significant concerns. And the existence of these concerns gives the lie to the Commission’s argument (in an earlier proposal, still under discussion) that human rights in Turkey are so well protected as to classify Turkey as a ‘safe country of origin’ for asylum purposes.

The proposal to reimpose visa requirements more easily is implicitly linked to the Turkish visa waiver proposal, although in fact it could apply to any State on the visa waiver list (the ‘white list’). The current rules, dating from 2013, allow ‘emergency’ reimposition of a visa requirement by the EU Commission for a six-month period, renewable for another six months if the Commission proposes to amend the law to make this permanent. This temporary Commission decision can be blocked by Member States, but does not need the approval of the European Parliament. The grounds for it are ‘sudden and substantial’ increases in irregular migration, rejected asylum applications or rejected readmission applications from the country concerned.

There are some further details of these rules in the preamble to the 2013 law.  A ‘substantial’ increase is an increase above 50%, and a low rate of recognition of asylum applications constitutes 3% or 4%, although in either the Commission could choose to use a different number.  Reimposition of visas is not automatic: there is a diplomatic phase during which the Commission talks to the officials of the other country and warns them to take action in light of the impending threat.  The Commission will only propose reimposition if it is not satisfied with the outcome of these talks. So far it has not done so.

Basically the new proposal would make it easier to reimpose visas in several ways. First of all, it would no longer be an ‘emergency’ or ‘last resort’ decision, and the increases in irregular migration, rejected asylum applications or rejected readmission applications would no longer have to be ‘sudden’. Secondly, the reference period for examining the increased irregular migration, etc would no longer be over six months, but over two months. Third, the increase in asylum applications would no longer have to lead to ‘specific pressure’ on asylum systems; so there would need not be a large absolute number of asylum applicants from the country concerned, just a large relative increase in the number of applications.

Fourth, the rejected readmission applications would relate not only to citizens of the country concerned, but also to citizens of other countries who transited through that State’s territory. This is obviously aimed at enforcing the key feature of the EU/Turkey plan: the readmission of refugees to Turkey. Fifth, the possibility of triggering reimposition of visas as compared to the period before the visa requirement was dropped would now apply indefinitely, and would no longer expire after seven years. The immediate impact of this change would be on Western Balkans countries, where (apart from Kosovo) the EU waived visa requirements in 2009 and 2010. Sixth, the Commission can trigger the clause, not just Member States. It could act on the same grounds plus an additional ground of failure to apply a readmission deal with the EU as a whole.

Again, the final point aims at enforcing the EU/Turkey refugee deal. If Turkey does stop readmitting refugees, the EU can swiftly react by reimposing visa requirements. This works both ways, of course: if the EU threatens to reimpose visas on Turkish citizens on some other ground, such as an increase in Turkish citizens overstaying without authorization, then Turkey will likely refuse to take back refugees. Indeed, as discussed above, Turkey is threatening to do this if the EU does not waive the visa requirements in the first place – which accounts for the EU’s haste on this point.

Finally, a side issue (relating only to Turkey) is worth discussing. The EU/Turkey association agreement has a Protocol, signed in 1970, that sets a standstill on the free movement of services and freedom of establishment. That means the EU and its Member States can’t make the rules on these issues stricter than they were when the Protocol was signed. The CJEU has also ruled that if the rules are made more liberal than when the Protocol was signed, they can’t be made less liberal after that point without violating the standstill (Toprak and Oguz). While the standstill rule doesn’t apply to tourist visas (Demirkan), it does apply to visas for short-term economic activity (Soysal). 

So would the standstill rule in the association agreement prevent the EU from reimposing visas for economic activity by Turkish citizens? In its case law (see most recently Genc, discussed here), the CJEU has said that the standstill rule can be overridden on public interest grounds. So far the case law on this point has concerned integration of family members, although it could also be argued that the objective of preventing irregular migration is also a valid ground to override the standstill. In fact, the CJEU has been asked whether migration control objectives can override it, in the pending case of Tekdemir. However, this case won’t be decided until well after June (when Turkey wants the visa waiver in place); and like the earlier cases, it concerns legal migration. 

Schengen

The idea of suspending Schengen for up to two years was originally mooted back in December – as I discussed in detail at the time. The mechanics of the process, as I detailed there, have been grinding away for some time. Now we have nearly reached the final stage: a Commission Recommendation for a Council Recommendation to suspend Schengen. Once the Council adopts this (by a qualified majority of Schengen states), the suspension can go ahead.

However, the Commission has tried to limit this suspension in time and in space. It would only apply to Germany, Austria, Sweden, Denmark and Norway (where the unilateral authority to suspend border controls is about to expire), and only for an initial period of six months. The Commission argues that the tightening of EU immigration and asylum law should have had sufficient effect by then, so a further suspension would not be justified. Time will tell if this is true: the Schengen rules allow for three six-month extensions of the initial suspension.

For legal reasons, as I discussed in the earlier blog post, the suspension has to be based on blaming a Member State for insufficient control of its external borders. Obviously, the Commission has named Greece. But it has warm words for Greece’s efforts in the last few months, and flights to and from Greece to the Schengen zone will not be affected. This rather measured and proportionate approach contrasts with the Commission's asylum proposals - to which we now turn.

Asylum

Again, there are three separate proposals, all of which need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  First of all, the current Dublin III Regulation, which sets out rules determining which Member State is responsible for an asylum application, would be replaced by a new Regulation – which I will call ‘Dublin IV’. Secondly, the current Eurodac Regulation, which supplements the Dublin Regulation by providing for the storage and comparison fingerprints of asylum-seekers and those who crossed the border irregularly, will also be replaced by a new Eurodac Regulation. Thirdly, the current law establishing an EU agency known as EASO (the European Asylum Support Office), would be replaced by a new law creating an EU Agency for Asylum (the ‘EU Asylum Agency’).

This is just one batch of proposals: as the previous Commission communication from April (discussed here) set out, it will also soon propose new laws to amend the existing laws on qualification (definition) of refugees and people needing subsidiary protection status, asylum procedures, and reception conditions for asylum-seekers. In effect, this will amount to a third phase of the Common European Asylum System.

Currently, the UK and Ireland have opted in to the EU laws regarding Dublin, Eurodac and EASO. They opted out of the second-phase asylum Directives, but are covered by the first-phase Directives (except Ireland never opted in to the first-phase reception conditions Directive). Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) participate in these laws on the basis of treaties with the EU. It would be up to the UK and Ireland to decide whether to participate in the new proposals; if not, the current Regulations continue to apply. If they opt out of the discussions on the proposals, they could still opt in later after adoption of the legislation, if they find that the final result is more to their liking than they had feared at the outset. Denmark and the Schengen associates could refuse to participate, but in that case their treaties with the EU will automatically terminate.

In the event of Brexit, the UK would no longer be subject to any of the EU asylum laws it is now participating in, unless the EU and the UK negotiate an agreement to that effect. It should be noted that the EU has in practice only ever been willing to extend the Dublin rules to non-EU States if those States are also Schengen associates. (Indeed in some cases, the Dublin and Schengen association treaties have been negotiated as a package).

The EU Asylum Agency

I will start with the least contentious of the new proposals.

Currently, EASO has a number of practical cooperation tasks. In particular, it must: ‘organise, promote and coordinate’ the exchange of information and identify and pool good practice, as well as activities relating to country-of-origin information (ie, information about conditions in asylum seekers’ countries of origin), including gathering and analysis of that information and drafting reports on that information; assist with the voluntary transfer of persons granted international protection status within the EU; support training for national administrations and courts, including the development of an EU asylum curriculum; and coordinate and exchange information on the operation of EU external asylum measures. For Member States under ‘particular pressure’, the Office must gather information concerning possible emergency measures, set up an early warning system to alert Member States to mass influxes of asylum seekers, help such Member States to analyse asylum applications and establish reception conditions, and set up ‘asylum teams’.

For its contribution to the implementation of the Common European Asylum System, the Office gathers information on national authorities’ application of EU asylum law, as well as national legislation and case law on asylum issues. It also draws up an annual report on the situation regarding asylum in the EU. At the request of the Commission, the Office may draw up ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals.’ The Office can also deploy ‘asylum support teams’ on the territory of a requesting Member State, in order to provide ‘in particular expertise in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases’.

How would the EU Asylum Agency be different? As with the parallel proposal for a European Border Guard (discussed here), the Agency would not replace national administrations, but play a bigger role coordinating them.  The main changes are: an obligation to exchange information with the Agency; a stronger role in analysis of the situation of countries of origin, including advice on alleged ‘safe countries of origin’; the development of guidance on applying EU asylum law; monitoring of the Common European Asylum System, including the capacity of Member States to apply it; and increased operational and technical assistance for Member States. An indication of the bigger role for the Agency as compared to EASO will be the planned increase in staff – from about 150 to around 500.

Eurodac

The current Regulation requires Member States to take the fingerprints of all asylum-seekers and irregular border crossers over 14 years old. This information is then stored in the Eurodac computer system. Every asylum-seeker’s fingerprints are compared with those already in the system, to see if he or she has either applied for asylum already or crossed the border irregularly. This is taken as evidence as regards which Member State is responsible for the asylum application under the Dublin rules.

Eurodac can also be used for other purposes. In 2013, the Eurodac law was revised to give police forces and the EU police agency, Europol, limited access to the fingerprint data for the purposes of criminal investigations. Member States may choose to check the fingerprints of an irregular migrant against the system, for the purposes of identification, without storing that data.

The proposed new Regulation would make some key changes to these rules. First of all, it would significantly enlarge the amount of personal data that will be taken and stored. Member States will have to take information on children from the age of six (rather than fourteen), and facial images as well as fingerprints. Eurodac will also now store data on the names, nationalities, place and date of birth, travel document information. For asylum-seekers, it will store the EU asylum application number (see the Dublin IV proposal), as well as information on the allocated Member State under the Dublin rules, for the first time. For irregular border crossers and irregular migrants, it will store the date of the removal from the territory.

There will no longer be an option merely to check data on irregular migrants; rather Member States will be obliged to take and store this information. While the rules on police and Europol access to Eurodac data will not be changed as such (although the Commission will review those rules soon), there will be more personal data for them to access: they will be able to get facial image information, and more individuals will have their personal data recorded in Eurodac in the first place.

Secondly, it will be possible for fingerprint data to be taken not only by national officials, but also (as regards asylum-seekers and irregular border crossers) by the new EU Border Guard and EU Asylum agencies. Thirdly, while asylum-seekers’ data will still be retained for ten years, data on irregular border crossers will now be retained for five years – up from 18 months at present. Data on irregular migrants will also be retained for five years. The data will be marked if a Member State gives a residence permit to an irregular migrant. Finally, Eurodac data will now be made available to third countries for the purposes of return, on certain conditions, including a refusal to disclose if the person who has applied for asylum. But the non-EU country might guess that the person has applied for asylum; in fact the EU’s procedures Directive requires that country to be informed of this in some cases.

The Commission justifies these changes by the need to strengthen the EU’s return policy as regards irregular migrants, and to keep track of them if they make movements across the EU. It believes that taking fingerprints and photos of young children is justified for child protection reasons. Collecting personal data on facial images is justified because some persons refuse to have their fingerprints taken.

This proposal obviously raises huge data protection issues, and it will be important to see what concerns are raised by national data protection authorities, as well as the EU’s Data Protection Supervisor. The arguments about child safety should be independently assessed by child protection experts. It is conceivable that taking facial images would avoid the need to insist upon taking fingerprints coercively, but it’s not clear why the Commission believes that storing data on names, birthdates et al is justified. The use of Eurodac to underpin EU return policy obviates much need to use or expand the Schengen Information System (which currently contains data on non-EU citizens who are meant to be refused entry) for similar purposes, and raises the question of whether there need to be two different databases addressing the same issue. The choice between the two databases is particularly significant for the UK, since it will have access to the Eurodac returns data (if it opts in to the new proposal), but doesn’t have access to the immigration alerts in the Schengen Information System, and indeed can’t have access to those alerts unless (rather improbably) it fully joins Schengen. (However, the UK does have access to the criminal law alerts in the Schengen Information System, such as alerts on suspected terrorists: see my further discussion here. It could lose that access after Brexit, as I discuss here).

Dublin IV

As noted at the outset, the amendments to the Dublin Regulation essentially aim to entrench the EU/Turkey deal and to save Schengen by deterring secondary movements of asylum-seekers, while also making a fresh attempt to establish relocation rules. To accomplish each of these objectives, the Commission proposes an extreme solution which is probably legally and/or politically unfeasible.

Let’s examine each element in turn. In order to entrench the EU/Turkey deal (and possibly future heinous deals with countries like Libya), the proposal transforms a current rule which gives Member States an option to apply to state that a non-EU state is a ‘safe third country’ for an asylum applicant in accordance with the asylum procedures Directive, rather than send the applicant to another Member State or consider the application after a transfer from another Member State under the Dublin rules. The CJEU recently took a permissive view of this provision (Mirza). In place of this option, there would be an obligation to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before applying any of the rules on responsibility for applications. This confirms the current practice as regards asylum-seekers coming from Turkey to Greece, which aims to return as many of them as possible to Greece despite the dubious designation of Turkey as a ‘safe’ country for asylum-seekers.

This doesn’t matter much in cases where Greece would anyway be responsible for considering the application under the Dublin rules, because it was the first country where the applicants entered. (Moreover, due to recent closure of the Greece/Macedonia border and other controls and fences on internal and external Schengen borders, it’s now very difficult to leave Greece even for those asylum-seekers not in detention). But contrary to popular belief, that is not the only ground for assigning responsibility under the Dublin rules. There’s also an obligation to bring family members together, where one of the family members has status as a refugee or asylum-seeker or otherwise has legal residence in another Member State.

The Mirza judgment did not address whether these family rules take priority over the ‘safe third country’ option, but the Dublin IV proposal is clear.  If a case is inadmissible on the dubious ‘safe third country’ or ‘first country of asylum’ rules, then the Member State in question is responsible, regardless of the family or humanitarian clauses in the Regulation. It’s arguable that this is a breach of the right to family life set out in the EU Charter of Fundamental Rights. But it’s certain that this change completely undercuts the broadening of the definition of ‘family member’ contained in the Regulation – extending it to cover siblings and families formed after leaving the country of origin (while Syrians were living in Turkey, for instance). Those changes therefore amount to a legal ‘Potemkin village’ – a cynical façade intending to mislead a naive onlooker.

It might be argued that family members should not be encouraged to pay smugglers and take unsafe routes to reach their loved ones who are already in the EU. Fair enough – but in that case, the EU should take steps to ensure their safe passage (note that the EU’s family reunion Directive requires Member States to admit family members of refugees). There’s nothing in this week’s batch of proposals to do that. The EU’s informal arrangements with Turkey do provide for ‘nuclear family’ members as one category of Syrian refugees to resettle. But these arrangements are not binding and (at time of writing) not even officially published (see this entry in the Council register of documents). They only apply to the ‘nuclear’ family, and only for Syrians.

Next: the attempt to deter secondary movements of asylum-seekers, in order to reinstate the Schengen system. Most notably, there will be punishments for asylum-seekers who do not stay in the responsible Member State. In that case the asylum procedure will be accelerated, and they will lose all benefits (health, education, welfare and accommodation) except for emergency health care. (However, the grounds for detention of asylum-seekers in the Dublin Regulation will not change – though the future proposal to amend the reception conditions Directive might seek to amend the detention rules there instead.) This will overturn the CJEU ruling in CIMADE and GISTI, which was based on the right to dignity in the EU Charter. Let’s put it plainly: asylum-seekers who flout the Dublin rules will be left to starve in the streets – even children, torture victims and other vulnerable people. And fast-tracking their asylum application implicitly aims at refouling them to their country of origin, with only limited suspensive effect of any appeal to the courts.

The violations of the Charter don’t stop there. According to the CJEU case law on the current Regulation, unaccompanied minors can move to another Member State and apply there. This ruling (MA) is also based on the Charter (rights of the child), but the Commission wants to overturn that too – in the process trashing its own proposal dating from 2014. Again, any attempt to argue that this aims to protect children by deterring them from moving is undercut by the prioritisation of inadmissibility rules over family reunion rules (even for unaccompanied children), as well as the failure to insert rules to ensure that the Dublin family rules are actually applied (such as the recent UK ruling on a requirement for DNA tests). If the EU and its Member States care so much about asylum-seeking children, why have they detained so many in Greece in poor conditions, and shrugged as so many suffered in northern Greece – shirking the legal obligations which they accepted to relocate them?

Furthermore, the proposal limits both the substantive and procedural remedies for applicants. They will only be able to challenge a decision on the responsible Member State on the grounds that the asylum system has broken down, or that they should be with their family member. This overturns the opinion in the pending cases of Karim and Ghezelbash (although it is possible that the Court will not follow this opinion). Also, they will only have seven days to appeal: this risks a breach of the Charter right to an effective remedy, given that in the Diouf case the CJEU found that a 14-day time to appeal was acceptable.

The proposal doesn’t only aim to restrict asylum-seekers in order to ensure that Dublin works effectively; it will also restrict Member States to the same end. The essentially unlimited discretionary ‘sovereignty’ and ‘humanitarian’ clauses will be amended to severely limit the circumstances in which a Member State can examine an application that is not its responsibility. If Angela Merkel (improbably) wanted to repeat her open-door policy of summer 2015 in future, the proposal would make that illegal. Various deadlines for Member States to act would be speeded up (although Member States have said before that this is impractical). Conversely, other rules which limit Member States’ obligations will be dropped: there will be longer periods of responsibility after issuing a visa or residence permit, and responsibility for those who cross a border without authorisation, or who abscond or who leave the EU and then come back, will be endless.

This brings us to the relocation rules. These will be triggered once a Member State is responsible for more than 50% of the asylum applications which objective criteria (based on income and population) indicate that it ‘should’ be responsible for. In other words, if Greece ‘should’ be responsible for 50,00 asylum applications under those criteria, other Member States would be obliged to relocate asylum-seekers from Greece once it was responsible for 75,000 applications. But Member States can't relocate asylum seekers whose applications are inadmissible under the new rules discussed above, so this may have little impact on Greece anyway. Indeed, if the EU/Turkey deal breaks down, the combination of these rules would in principle put Greece in a worse position than it is currently. A new emergency relocation Decision would have to derogate from the Dublin rules again.

Then the proposal becomes truly surreal. The Commission suggests that Member States may opt out of relocating asylum-seekers, but they will have to pay €250,000 per asylum-seeker if they wish to do this. This is a fantasy on top of a fantasy. Member States have already shown that they are unwilling to apply the relocation Decisions of last September, or to adopt the proposal to amend the Dublin rules to this end that was tabled at that time. The idea of financial contributions in place of accepting individuals, whatever its merits, is perceived to be a ‘fine’ and was already rejected by Member States last year. That idea will not suddenly appear more attractive to Member States by doubling down on it, and suggesting a contribution set at an obviously absurd and disproportionate level, which the Commission does not even try to justify.

So why did the Commission jump the shark here? Perhaps someone in the Commission lost a bet. Or perhaps this is a legislative homage to the Belgian surrealist tradition of Magritte, et al. More seriously, it might be intended as a negotiating position. But such a ridiculous position will just backfire: it’s as if management started the latest pay talks with the unions by arguing that the workers should start paying the company for the privilege of working there. Or perhaps it’s a subtle way of addressing Greece’s debt problems: rejecting the relocation of a mere 10,000 asylum-seekers from Greece would transfer €2.5 billion to the Greek treasury – where it would rest briefly on its route to Germany. 

I have another theory, well known to followers of British politics. Maybe the €250,000/person proposal is the Commission’s equivalent of ‘throwing a dead cat on the table’. The phrase is borrowed – like the EU’s current asylum policy – from Australia. It means that if the political conversation is particularly damaging to a certain politician, an ally of that politician suddenly does or says something outrageous. Everyone will start talking about that outrageous thing, just as they would be talking about the unfortunate feline; which means that no-one is talking about the original issue any more.  In this case, it means that everyone is talking about the €250,000 – and no-one is talking about the suspension of Schengen, or of the families who would be split up, or the people who would be made hungry and homeless, by the Commission’s Dublin IV proposal.

Conclusion

The Commission’s proposals are not a done deal, of course. Some Member States and Members of the European Parliament have misgiving about a visa waiver for Turkey, on migration control or human rights grounds. MEPs fought for years for many of the provisions in the Dublin III Regulation (on family members and unaccompanied minors in particular) which the Commission now seeks to overturn. As I pointed out above, some of the proposed changes to the Dublin rules are highly vulnerable to challenge in the CJEU, if adopted. The red herring of a €250,000 sanction is already floating on the surface of the pond. And the whole EU/Turkey deal might anyway be overturned at the whim of Turkish President Erdogan – the only politician whose ego makes Donald Trump’s look small by comparison. Nevertheless, EU asylum policy is already becoming more Orbanised in practice, and I would expect at least some elements of the further Orbanisation proposed by the Commission to be adopted.

For over twenty-five years now, the EU and its Member States have been attempting to get the Dublin system to work. The continued abject failures of those attempts to get this pig to fly never seem to deter the next attempt to launch its aviation career.  With this week’s proposals, the Commission is in effect trying to get the poor beast airborne by sticking a rocket up its backside. It might be best to stand back.

Barnard & Peers: chapter 26

JHA4: chapter I:3, chapter I:4, chapter I:5, chapter I:7

Photo credit: JapanTimes.co.jp

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.

Goodbye, cruel world: visas for holidays after Brexit?

Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.  

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a report drawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant data as an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal records was set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fifty non-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23^rd?

Barnard & Peers: chapter 13, chapter 26

JHA4: chapter I:4

Photo credit: welcome2britain.com

The NHS, TTIP, and the EU referendum

Tamara Hervey, Jean Monnet Professor of EU Law, The University of Sheffield

Who would have thought that the NHS would be such a significant aspect of the debate on the UK’s membership of the EU?

With campaigns for the referendum on 23 June 2016 underway, all sorts of claims are being made about the effects of EU membership on the NHS, and people have been rightly wondering whether they are accurate. Here are some of the questions that I have been asked (others are covered here):

Q1.  What influence does the EU have on the NHS now – does the EU make decisions about our NHS?

Q2.  What – if anything – do EU membership; the Transatlantic Trade and Investment Partnership (TTIP); and the NHS have to do with each other?

Q3.  Assuming the EU agrees to the TTIP, how does EU membership impact, or not, on ‘privatisation’ of the NHS?

Q4.  How – if at all – would it be different if the UK left the EU?

Q5.  Would being in the EU prevent a future government from ‘renationalising’ the NHS?

In answering these questions, I want to make clear that this is not just an argument about facts, or a disagreement about how to interpret the data.[Note 1]

It is also a discussion about interpretation of texts. Those who are not lawyers may find this frustrating, and may be looking to lawyers to ‘just tell me, what is the legal position’. However, I will insist that the craft and professional skill of lawyers (in practice and in the academy) is to provide credible and convincing interpretations of legal texts, a matter on which there can be justifiable and mutually respected disagreement. Lawyers do not simply state ‘what is the law’. So my answers to the questions are – in that sense – not definitive.

However, the answers I give in this blog are based not only on my political convictions: I am convinced that, on balance, to remain in the EU is by far the best outcome from the June 2016 referendum. My interpretations are also based on over 20 years of researching and teaching EU law, and how it applies in health contexts. My collaborator Professor Jean McHale and I were among the first to think about health and EU law. Of course, I will also freely admit that I think my answers are the best interpretations of the legal texts.

In summary, here are my answers. The analysis supporting these conclusions follows below.

A1.  The EU does not tell our government how to run the NHS. Some EU rules affect the way in which the NHS may be run, but those rules are interpreted in ways which respect national decisions about how national health systems are organised and the values they express.

A2.  The EU and its Member States will be bound by TTIP, if it is agreed. To the extent that the TTIP rules apply to public national health systems across the EU, and to our NHS in particular, if we remain in the EU, the TTIP rules will apply. However, TTIP only applies where there is a market element to the provision of services. That means that it does not apply to some aspects of any of the national health systems in the EU, including our NHS. Even where it might apply to NHS services, it is still open to our government, which will likely have a veto over TTIP as an EU Member State, to negotiate a ‘reservation’ (opt out) from TTIP or parts of TTIP. And even where no reservation has been negotiated, TTIP still permits regulation limiting free trade for ‘legitimate policy objectives’.

A3.  Assuming the EU agrees TTIP, EU membership would not require continued existing ‘privatisation’ or further ‘privatisation’ of the NHS except to the extent that TTIP applies to national health services in general, and our NHS in particular, as outlined above.

A4.  If the UK left the EU, it would not be bound by TTIP, but as I’ve already said, TTIP is not the danger to the NHS that some people claim.  Anyway, the UK will seek a free trade deal with the US if it leaves the EU, raising the TTIP issues again, but outside the context of the EU’s respect for the ways European countries organise their national health.

A5.  No. Being in the EU does not prevent a future government from ‘renationalising’ the NHS.

The starting point in considering the EU’s influence on the NHS is that the NHS is a matter of national competence. Article 168 (7) of the Treaty on the Functioning of the EU clearly states that the organisation and delivery of health services is a national responsibility, not even a matter of shared competence between the EU and its Member States. Nothing in EU law requires governments to organise health systems in any particular way. Choices about the way our NHS works are national – they are the decisions of our government(s) [Note 2], enacted in law by our Parliament(s), and interpreted by our courts and administrative bodies. Other EU countries organise their health systems in very different ways, and are entitled to do so, although we share common values about national health systems.

That said, there are features of EU law that have an impact on aspects of our NHS. The Single Market – which is regularly cited as one of the main reasons to Remain – requires free trade in products and services across EU borders, and fair competition between market actors operating within the EU. EU law is based on market liberalisation: as its ‘better regulation’ shows. This has been heavily criticised from the political left, for instance, by those seeking to protect labour rights. But EU law also includes labour rights: for instance, all employers including hospitals must comply with EU rules on working hours. Note also that recently-commissioned legal advice to the Trades Union Congress is that remaining in the EU is a better way to protect labour rights than leaving.

For a long time, it was thought that EU rules applied only to private health service providers, so not to national health systems. But all EU Member States have elements of market provision within their national health systems – these are part of a broader liberalization agenda being promoted by the World Bank since the 1990s. EU law applies to those market actors in the NHS.

But it does so in ways that respect national decisions. EU law does this through three legal mechanisms:

·     In some instances, EU law leaves national health systems outside the scope of its application. For instance the Services Directive excludes health services altogether.

·    Relevant EU laws that do apply have significant exceptions for ‘services of general interest’ and health is such a service.

·      Restrictions on free movement of products or services that would otherwise breach free trade law, and cartel-like or monopolistic behaviour that would otherwise breach competition law, can be justified under EU law, if they are necessary to protect ‘legitimate public interests’ such as effective organisation of hospital care in a particular region.

In an analysis of scores of decisions of courts and competition authorities, across all the EU’s Member States, our Cambridge University Press book European Union Health Law found that the closer a health institution is to the ‘heart’ of a national health system, the more readily national preferences are respected through the way that EU rules are interpreted. Funding arrangements, hospitals, laboratories, blood and tissue centres all enjoy a protected position in EU law; pharmacies to some extent; dental clinics and opticians less so.

Like EU law, the TTIP (along with all other trade agreements) is based on an ideology of free trade. If such an agreement were to apply the ordinary rules of free trade to all sectors of the EU, then it would indeed represent a significant threat to the European ways of organising health services.

But it doesn’t.

All the EU Member States have national health systems based on dignity in terms of how patients are treated; solidarity in terms of how systems are funded; and equality in terms of access. So it is not surprising that the EU is negotiating a trade deal that will respect those values. Each government normally has a veto in EU trade deals: if we don’t get the deal we want in TTIP, our government could oppose it. [Note 3] What is intended by the parties to the agreement in TTIP (the EU, its Member States and the US) is important, because it is taken into account when interpreting the legal texts. Safeguards for public services are embedded in EU law, so they were probably assumed in the EU’s negotiating position with the US over TTIP from the start. We don’t have those early negotiating texts, so we can’t tell for sure.

But we do have the more recent negotiating texts – thanks to the response of the EU to significant grassroots pressure for transparency.[Note 4] The ways in which the latest (March 2016) texts express support for those European values in health services involve the scope of the agreement; exceptions; and justifications for departing from its general rules. 

·         Exceptions and justifications include:

·         The opening provision in the chapter of TTIP on services and investment liberalisation, which confirms that the EU, its Member States and the US may ‘adopt, maintain and enforce’ national measures that restrict services or investment liberalisation, as ‘necessary to pursue legitimate policy objectives’. In other words, states may adopt justifiable regulation. A non-exhaustive list of such regulatory policy objectives includes protecting public health; securing dignity, solidarity and equality within the NHS constitute such an objective.

·         Similarly, the ‘general exceptions’ clauses include agreement that nothing in the TTIP should be interpreted in such a way as to prevent the EU, its Member States, or the USA and its states, from adopting or enforcing measures ‘necessary to protect human … health’.

·         Neither of these provisions is explicitly about the NHS, but they will be taken into account when interpreting the TTIP should it apply to future US service providers or investors in the NHS. It is hard to think of a service of general interest with a stronger claim to legitimate and justifiable regulation.

·     The TTIP will include Annexes in which existing national laws ‘derogating’ from the liberalisation provisions (permitted exceptions to those rules), and areas in which individual national governments reserve the right to make future derogations, are listed. I say more about these ‘reservations’ below.

·      It’s important also to understand that non-discriminatory rules, such as a requirement to be licensed, quality standards, obligation to provide a universal service, or language proficiencies, are all allowed under TTIP – they are justifiable regulation. So none of these, or similar, aspects of the NHS would be affected.

·   The approach being proposed in TTIP to determining the scope of application of the services and investment provisions is a variant of ‘negative lists’, in which the EU and US will (if they can agree) explicitly exclude certain sectors from the TTIP.

·    TTIP will also probably include ‘standstill’ or ‘ratchet’ clauses, to prevent reintroduction of national rules restricting, eg foreign ownership of firms.

How should we interpret the TTIP provisions in the context of our NHS? A legal opinion prepared for Unite, based on the July 2015 negotiating texts, concluded that ‘TTIP proposes a real and serious risk to future UK government decision-making in the NHS’. (Incidentally, Unite’s position on the referendum is Remain.) The advice proposed ‘a blanket exception’ for the NHS in the main text of TTIP, or a reservation in one of its Annexes, as the solution. The negotiating texts explicitly reserve the right to make changes at any time prior to the conclusion of the negotiations, so such an exception or reservation could still be included.

But so far, the TTIP text does not do so. 

Austria, Germany, Greece and Italy all have explicit reservations in the text from the services and investment provisions of TTIP for existing rules about some health professions. France has a general reservation limiting the nature of legal entities through which foreign investors can provide health services.  But the UK hasn’t entered any reservations in either category in this part of the TTIP text. (Cyprus seems more worried about US hairdressers than the UK is about this. It has a reservation for hairdressing services.) In the context of market access, the UK’s reservation is only to state that ‘establishment for doctors under the National Health Service is subject to medical manpower planning’.  As should now be clear, these reservations clauses of TTIP express preferences of the UK government. They are not a function of the EU’s negotiation of TTIP per se.

The UK has entered reservations for possible future provisions which restrict cross-border provision of health services, pharmaceuticals, or medical and orthopaedical products, where the provider is not legally established or physically present in the UK. These could be used to restrict access of US-based firms to these aspects of the UK market in the future.

The EU itself has entered reservations for future provisions in the publicly funded or state supported health sector:

“with regard to the provision of all health services which receive public funding or State support in any form, and are therefore not considered to be privately funded …. The EU reserves the right to adopt or maintain any measures with regard to all privately funded health services, other than privately funded hospital, ambulance, and residential health services other than hospital services … with respect to requiring the establishment of suppliers and restricting the cross-border provision of privately funded hospital, ambulance, and residential health services other than hospital services …”.

The text here embodies the notion of European national health services, which regardless of exactly how they are funded, or the form in which state support is given, are not considered to be part of the ‘private’ sector. Market access under the TTIP is only for privately funded health services. This is consistent with the values of EU health law.

The EU’s position is also expressed in an important general exclusion from the market access and investment rules of TTIP for ‘activities considered as public utilities at national or local level’, which may lawfully be public monopolies and enjoy exclusive rights to supply public services. The text explicitly says that these include health services. Future sales of nationally-held equity interests in or nationally owned assets of state enterprises providing health, social, or education services may prohibit or limit sale to or ownership by US firms. EU countries may also introduce rules on nationality of management or board members, or limiting suppliers. Furthermore, although TTIP is all about greater regulatory coherence between the EU and the US, the TTIP texts explicitly embody the right to regulate to pursue legitimate public policy objectives. The EU can be expected to exercise that power consistently with its approach to public national health services. The European Commission has assured the House of Commons Health Committee that this is so, in a formal letter in December 2014.

The rationale for the Unite legal advice was that the TTIP texts did not provide sufficient assurances that the UK government would not be required to pay substantial compensation to US investors in the national health sector in the event of a decision of a future UK government to change the way the NHS is organised. The threat of litigation, or worse, the use of the widely-criticised investor-state dispute settlement mechanism involving private and secret arbitration, would provide a ‘chilling effect’ on a future government’s discretion, for example, to take back ‘in house’ certain services now provided by private contractors.

It is the case that, under TTIP, governments would be obliged to protect foreign investments, respect contractual commitments, and not to expropriate property through nationalisation without fair compensation for ‘market value’ of investments made.  But this is true in existing international trade or investment agreements, and would apply in any future trade or investment deals that the UK were to negotiate if it left the EU. There’s a nice summary explaining this here.

The obligation to compensate also applies, of course, to compensation for national firms, were a future UK government to breach contracts with such firms by renationalising the NHS. In this regard, the EU and TTIP are a red herring. 

But if under a future renationalised NHS, which provided health services through publicly owned entities, contracts with private providers were simply not renewed, claims in contract law would not apply.  The idea of a potential ‘chilling effect’ comes from the fear that there might be a claim under TTIP for foreign investors.  The argument has been made that a US investor in a private provider contracting with a Clinical Commissioning Group (CCG) under the Health and Social Care Act 2012 might claim that their investment in England and Wales was on the basis of a secure future market for such contracts. Investment decisions made on the basis that, although each contract was time-bound, there would be many future opportunities to contract with CCGs, and so to remove all possible future contracts would deprive the US investor of its property.

That argument assumes that the new national law would be a breach of TTIP, notwithstanding the UK’s right to adopt justifiable regulation to achieve legitimate policy objectives embodied in the TTIP text.  As I have already argued, a better interpretation of the TTIP text is that such regulation is permitted. The 12 November 2015 negotiating text on Investor Dispute Settlement begins with the ‘right to adopt justifiable regulation’:

“The provisions of this section shall not affect the right of the Parties to regulate within their territories through measures necessary to achieve legitimate policy objectives”

and

“the provisions of this section shall not be interpreted as a commitment from a Party that it will not change the legal and regulatory framework, including in a manner that may negatively affect the operation of covered investments or the investor’s expectations of profits.”

The text confirms that expropriation of private property may take place ‘for a public purpose’, and it is undoubtedly the case that a decision of a government to renationalise the NHS would be for such a purpose.

The ‘right to adopt justifiable regulation’ clause is general, and in itself doesn’t provide explicit protection for a decision of a government to take an action that indirectly results in expropriation of property. What I am suggesting here is that the proper interpretation of the text of TTIP (especially of the exclusions from the scope of TTIP, the reservations clauses, and the ‘right to adopt justifiable regulation’ itself) would take into account all of the above arguments about the place of health services within EU health law: not as an ‘ordinary’ service, subject to the rules of free and fair trade, but as a service of general interest, for which significant exceptions, flexibilities, and exclusions apply. This is what the EU’s Court of Justice has done (see Hervey & McHale). It is what the TTIP investment courts should understand as the intention, and meaning, behind the legal texts.

Moreover, even if the TTIP court concluded that there had been a breach, it would still have to decide what is a ‘fair market value’ for compensation for the relevant investment.

The original idea in the TTIP’s proposed procedure for settling such disputes was to use international arbitration. This has been criticised as lacking in the transparency and respect for the rule of law associated with decisions made by courts. The EU’s November 2015 negotiating text indicates a different approach. Disputes about investment settlements would be resolved by an ‘investment court system’, consisting of a tribunal and an appeal tribunal. The 15 first instance judges (sitting in panels of three) and 6 appeal judges would be independent of any government, qualified to hold judicial office in their own countries, and would have appropriate experience. They would either be paid a retainer fee, or would be salaried judges. A code of conduct would require disclosure of judicial interests, independence and impartiality. Judges would not be permitted to hear claims where they had a conflict of interest, and a specific procedure to assert such conflict of interest would be available. The proceedings and documents would be made transparent, subject to redacting confidential information. All of these rules are designed to secure a system respecting the principles of judicial process. While it is impossible at this stage to assess the possible future working of such a system in practice, the legal texts suggest something more akin to a court than to a private dispute settlement mechanism, with the concomitant expectation that a properly judicial approach would be taken to textual interpretation.

So, to recap, as for whether being in the EU would prevent a future government from ‘renationalising’ the NHS, of course that question is based on the premise that a future UK population elects a government that seriously proposes renationalisation. Others are better judges of the likelihood of that, but I note that even the Blair government continued with the NHS ‘marketisation’ agenda. It should be apparent from what I have already said that I do not think that EU law prevents such renationalisation. Indeed, in general EU law does not prevent nationalisation of business.

I have written about this in the past, taking the opposite view. It is certainly possible to argue that EU law ‘locks in’ arrangements for liberalized service provisions. This is sometimes known as the ‘aquarium to fish soup argument’ (you can make the latter from the former but not the other way around). But I now have a different understanding of the ways EU law includes significant flexibilities and exceptions for ‘services of general interest’. EU law cannot simply be said to promote competition at the expense of other NHS values, such as dignity, solidarity and equality. On the contrary, those values themselves are embedded into the legal texts of EU competition and free market law, and the ways in which they are interpreted.

Furthermore, the UK government could agree a TTIP reservation clause for the NHS. Many other Member States have done so, reflecting the way they organise their national health systems. For instance, Germany, one of the countries which has gone some way towards liberalizing its national health system, has many such clauses already in the negotiating texts. Nothing prevents the UK government from including such reservations while continuing to be part of the EU.

In summary: Is Brexit ‘necessary to protect the NHS from TTIP’?  No.

My view, along with that of many in the health policy community, is that the greatest threat to the NHS remains the policy of successive British governments, based on the idea that a market is the best approach to efficiency, and undermining the historic approach to the NHS as a service based on need and dignity, with no place for austerity narratives. Staying in the EU keeps us within that kind of vision for a public national health service.

Photo credit: NationalHealthExecutive.com

Barnard & Peers: chapter 21, chapter 24

Notes

[Note 1]

Conflicting data has been presented on, for instance:

·         numbers of incoming patients from other EU countries who are treated within the NHS;

·         how much that costs;

·         how much is reimbursed to the NHS by other countries, or by insurance or other private means;

·         how much they spend on other services while they are here;

·         how many UK citizens access free health care when in other EU countries on holiday;

·         how many UK citizens live permanently in another EU Member State, accessing health care there [1] [2] [3] [4] [5];

·         how many non-UK EU doctors, nurses, or other health professionals work in the UK [6] [7] [8];

·         how many new private providers there are within the NHS and;

·         how many of those are incorporated in the USA? (I couldn’t find any report on that, although it would seem that the contractual clauses seeking to block tax-avoiding incorporation have been abandoned recently, and the links with shareholding MPs reported here seem interesting). 

Disagreements about how to interpret that data concern, for instance:

·         what is its consequence for hospital trusts’ budgets;

·         how might we expect clinical commissioning groups to behave;

·         or health professionals from other EU countries who work here [9];

·         are the EU’s working time regulations bad for quality of care when applied in hospital contexts (see the arguments supporting the Private Members Working Time Directive (Limitation) Bill);

·         does the UK get more than it gives through EU-funded research collaborations, including in medical fields [10] [11] [12];

·         on balance, is EU membership a good thing for the NHS or not?

[Note 2]

Responsibility for health services is a devolved matter in Scotland; Wales; and Northern Ireland. This blog refers to the UK government, because this is the body that negotiates international trade deals. But decisions about the organisation of health services, including the extent to which health services are subject to market liberalisation, differ between the UK’s nations.

[Note 3]

The European Commission is negotiating TTIP with the USA.  But it can only negotiate on the mandate given by the Council. The Council is the governments of the Member States, including the UK government. The Council votes unanimously on general trade agreements like TTIP, since they include non-trade issues as well, so our government has a veto.  The negotiation is supervised by a special committee appointed by the Council (ie the Member States), to which the European Commission has to report regularly. The European Commission also has to report to the European Parliament. The European Parliament has a veto.  See Article 207 TFEU.  It is likely that each Member State will also have to individually ratify the TTIP too (because it is what is called a ‘mixed agreement’, not entirely within EU competence), giving national parliaments a de facto veto in most Member States, including ours. This blog is written on the basis that the TTIP is a mixed agreement – see further [1] [2] [3].

[Note 4]

This is highly unusual for trade deals, which are normally negotiated entirely in secret. So one possible implication of Brexit is that we may have less access to negotiating texts of future UK trade deals, unless our government chooses to adopt a similar approach to transparency.

None of this analysis would have been possible without access to the negotiating texts.