The draft renegotiation deal: EU immigration issues

Steve Peers

This is the first in a series of blog posts about the draft deal on the renegotiation of the UK’s EU membership, tabled earlier today. I am starting with the critical issue of free movement of EU citizens (often referred to as ‘EU immigration’). Subsequent posts will be on the other substantive issues (competitiveness, Eurozone relations, sovereignty) and on the legal form of the deal (see also Katarzyna Granat's analysis of the 'red card' for national parliaments).

The draft deal takes the form of six draft legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); a Declaration by the European Council (which consists of the EU Member States’ Heads of State and Government, although when acting collectively they are legally distinct from the European Council): and three declarations by the Commission. Of these, Section D of the draft Decision and two of the Commission declarations relate to immigration issues.

Having said that, the key feature of the draft deal on immigration is the intention to propose amendments to the three main current EU laws. These three laws are: (a) the EU citizens’ Directive, which sets out the main rules on most EU citizens moving to other Member States: (b) the EU Regulation on free movement of workers, which contains some specific rules on workers who move; and (c) the Regulation on social security, which sets out rules on coordination and equal treatment in social security for those who move between Member States.  

All three sets of amendments are to be proposed by the Commission as soon as the main draft Decision enters into force. That will happen (see Section E of the draft Decision) as soon as the UK announces that it will remain a member of the EU (that would only happen, of course, if the UK public vote to remain in the upcoming referendum). The draft deal includes a commitment from the Commission to make these proposals, and from the other Member States to support their adoption in the EU Council (oddly, the latter commitment does not apply to the proposed amendment to the citizens’ Directive, since that proposal is not referred to in the draft Decision).

However, all three proposals are subject to the ‘ordinary legislative procedure’, meaning that they have to be agreed with the European Parliament. It is also possible that their legality would be challenged before the EU Court of Justice. I can’t appraise the political likelihood of the European Parliament approving the proposals, but I will offer some thoughts about possible challenges to their legality if they are agreed.

Unlike some other parts of the draft deal (on the position of non-Eurozone states, and the clarification of ‘ever closer union’), there is no mention of possible future Treaty amendments to give effect to any part of the text dealing with free movement (immigration) issues. It should be kept in mind that the texts are not final, and at least some amendments might be agreed before their formal adoption – which is planned for later in February.

Although the press discussion has focussed on the ‘emergency brake’ in in-work benefits, there are three categories of issues: benefits (including a couple of points besides that emergency brake); the family members of non-EU citizens; and EU citizens who commit criminal offences. I refer back to Cameron’s November 2014 speech on EU immigration issues (which I analysed here) where relevant.

It should be noted that there is no proposed text in the deal on two of the issues which Cameron had raised: removal of job-seekers if they do not find a job within six months, and a requirement to have a job offer before entry. Both these changes would have required a Treaty amendment, in light of the Antonissen judgment of the CJEU.

Benefits

There are three benefits issues in the draft deal: (a) the ‘emergency brake’ for in-work benefits; (b) the export of child benefit; and (c) benefits for those out of work.

‘Emergency brake’ on in-work benefits

Cameron had called for no access to tax credits, housing benefits and social housing for four years for EU citizens, but later signalled his willingness to compromise on this point. The position of non-workers and job-seekers is discussed below; but the position of workers is legally and politically difficult, since the Treaty guarantees them non-discrimination.

In the end, the draft deal suggests not permanent discrimination on this issue, but temporary discrimination on the basis of an ‘emergency brake’. The Commission will propose legislation on this issue, which will provide that the UK (or other Member States) can apply a four-year ban on in-work benefits, subject to substantive and procedural criteria. Procedurally, the rules will say that a Member State will apply to the Council to authorise the ban, which will approve it by a qualified majority on a proposal from the Commission (the European Parliament will have to approve the legislation, but would have no role on deciding if the brake should be pulled). A Commission declaration states the UK qualifies to pull this ban immediately; but there is nothing in the deal to suggest that Member States – who would have the final word – also agree. As I have already pointed out, there is no legal requirement in EU law that the legislation would have to give the final word to the Council, rather than the UK itself. The restrictions would only apply for a certain number of years (the exact number is not yet agreed), and would have to be phased out during that time. It’s not clear how much time would then have to pass before they could be applied again.

On what grounds could the brake be applied? According to the draft Decision, it would apply where:

‘an exceptional situation exists on a scale that affects essential aspects of [a Member State’s] social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services’.

There’s certainly a widespread perception that one of more of these problems exist in the UK and are caused by the large increase in the number of workers from other Member States in recent years. However, there are two serious problems with the proposed mechanism. Firstly, as Jonathan Portes has argued, objective evidence for this view is lacking. Secondly, while the CJEU has been willing to accept certain limits to free movement rights on the grounds of protecting health systems (see my prior blog post for details), this proposal would have a much more far-reaching impact on non-discrimination for workers. It’s certainly conceivable that by analogy from the Court’s obvious willingness to keep EU monetary union afloat, along with its endorsement of restrictions for non-workers in recent years (see below), it might accept that these plans do not violate the Treaties. But as EU currently stands, that is probably a long shot.

Export of child benefit

Cameron sought to end payment of child benefit to children living in other Member States. This payment is provided for in the EU social security coordination Regulation, which would have to be amended to change those rules. There was a strong argument that the plan would have breached the Treaties, since in the case of Pinna the CJEU struck down EU legislation that allowed Member States not to export such benefits at all as a breach of the rules on free movement of workers.

The draft deal does not go as far as Cameron wanted: instead child benefit can be limited by indexing it to the standard of living in the receiving State. It’s an open question whether this would breach the Treaties, since there is no case law on the point.

Benefits for those out of work

Cameron sought to end social assistance for job-seekers. The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. Although the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question, it took a narrow view of this rule in the judgment in Alimanovic. Pure benefit tourists (who have never had work in the host State) are not entitled to benefits, according to the judgment in Dano. So the draft Decision simply reiterates this case law, which has already satisfied Cameron’s main objectives in this field.

EU citizens’ family members

Under the EU citizens’ Directive, currently EU citizens can bring with them to another Member State their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. This applies regardless of whether the family members are EU citizens or not. No further conditions are possible, besides the prospect of a refusal of entry (or subsequent expulsion) on grounds of public policy, public security or public health (on which, see below).

In principle EU law does not apply to UK citizens who wish to bring non-EU family members to the UK, so the UK is free to put in place restrictive rules in those cases (which it has done, as regards income requirements and language rules). However, the CJEU has ruled that UK citizens can move to another Member State and be joined by non-EU family members there, under the more generous rules in the EU legislation. Then they can move back to the UK with their family members, now invoking the free movement rights in the Treaties. In 2014, the CJEU clarified two points about this scenario (as discussed by Chiara Berneri here): (a) it was necessary to spend at least three months in the host Member State exercising EU law rights and residing with the family member, before coming back; and (b) the EU citizens’ Directive applied by analogy to govern the situation of UK citizens who return with their family members.

In his 2014 speech, David Cameron announced his desire to end all distinction between EU citizens and UK citizens as regards admission of non-EU family members, by allowing the UK to impose upon the EU citizens the same strict conditions that apply to UK citizens. Since this would have deterred the free movement of those EU citizens who have non-EU family members, there is a good change that it would have required not just a legislative amendment but a Treaty change.  (Note that according to the CJEU, EU free movement law does not just require the abolition of discrimination between UK and other EU citizens, but also the abolition of non-discriminatory ‘obstacles’ to free movement).

However, the draft deal does not go this far. The main draft decision states that:

‘In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.’

The Commission Declaration then states that it will make a proposal to amend the citizens’ Directive:

‘to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State's immigration law will apply to the third country national.’

That Declaration also states that the Commission will clarify that:

‘Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules’; and

‘The concept of marriage of convenience - which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.’

It seems clear that these ‘clarifications’ will not be included in the legislative proposal, since the declaration later concludes (emphasis added):

‘These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.’

Let’s examine the planned legislative amendments, then the ‘clarifications’. The proposed amendments would exclude two separate categories of non-EU citizens from the scope of the citizens’ Directive: those who did not have prior lawful residence in a Member State before marrying an EU citizen who has moved to another Member State; and those who marry such an EU citizen after he or she has moved to a Member State. It’s possible to fall into both categories; the first category will exclusively apply to those who got married while an EU citizen lived in a non-EU state, or those who got married in an EU State even though the non-EU citizen was not lawfully resident there. For these people, national immigration law will apply.

The background to this proposal is CJEU case law. In 2003, in the judgment in Akrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.

Several points arise. First, the basic definition: what is lawful residence exactly? Presumably it means more than lawful presence, ie a stay of three months on the basis of a valid visa or visa waiver. But what about ambiguous cases, such as a pending asylum application or appeal? EU legislation says that asylum-seekers can usually stay until the application fails (if it fails), and then during the appeal (subject to some big exceptions). According to the CJEU, the EU’s main rules on irregular migrants therefore don’t apply to asylum-seekers whose application is pending.

Secondly, it’s odd to refer to national law alone, since sometimes EU law governs the admission of non-EU nationals. Even the UK (along with Ireland) is bound by the first-phase EU asylum law, and by the EU/Turkey association agreement.  Denmark is bound by the latter treaty. And all other Member States are bound by the second-phase asylum law, along with EU legislation on admission of students and researchers and some categories of labour migrants (the highly-skilled, seasonal workers and intra-corporate transferees).

Thirdly, it’s arguable that the EU principle of non-discrimination applies. That would mean, for instance, that if a German woman already in the UK married her American husband, the UK would have to treat her the same as a British woman in the same situation – but no worse. This would in fact be relevant to every Member State – there’s nothing in this part of the proposal that limits its application to the UK.

Finally, the consequences of the rule need to be clearer. Does the exclusion from the scope of the Directive mean that the family member is excluded forever from the scope of the citizens’ Directive – even if the person concerned is admitted pursuant to national immigration law? That would mean that national immigration law (or EU immigration legislation, in some cases) would continue to govern issues such as the family member’s access to employment or benefits, or subsequent permanent residence. It’s also not clear what happen to children such as the step-child of the EU citizen, or a child that was born to the EU and non-EU citizen couple while living in a third country.

Could this legislative amendment violate the EU Treaties? In its judgment in Metock, the Court referred almost entirely to the wording of the citizens’ Directive. It mainly referred to the Treaties when concluding that the EU had the competence to regulate the status of EU citizens’ third-country national family members. But it also referred to the Treaty objective of creating an ‘internal market’, as well as the ‘serious obstruct[ion]’ to the exercise of freedoms guaranteed by the Treaty, if EU citizens could not lead a ‘normal family life’. It must therefore be concluded that there is some possibility that the revised rules would be invalid for breach of EU free movement law.

Would the amendment violate the EU Charter right to family life? That’s unlikely. While the right to family life is often invoked to prevent expulsions of family members, the case law of the European Court of Human Rights gives great leeway to Member States to refuse admission of family members, on the grounds that the family could always live ‘elsewhere’ – as the CJEU has itself acknowledged (EP v Council). There is some possibility, though, that the CJEU would be reluctant to follow that case law (EP v Council concerns families entirely consisting of non-EU nationals) in the context of free movement: the idea that you could go away and enjoy your family life somewhere else is antithetical to the logic of free movement.

As for the ‘clarifications’ in future guidelines, they will of course not be binding. They first of all refer to cases where an EU citizen has moved to another Member State and come back to the home State (known in the UK as the Surinder Singh route). The definition of what constitutes a ‘sufficiently genuine’ move to another country is set out in the case law (three months’ stay with a family member) and mere guidelines cannot overturn this.

It should be noted that the Surinder Singh case law is in any event derived from the Treaty. This line of case law does not accept that such movement between Member States is an ‘evasion’ of national law – as long as free movement rights are genuinely exercised with a family member for a minimum time. The CJEU also usually assumes (see Metock, for instance) that a ‘marriage of convenience’ cannot apply to cases where there is a genuine relationship, even if an immigration advantage is gained. (The Commission has released guidelines already on the ‘marriage of convenience’ concept: see analysis by Alina Tryfonidou here).

Having said that, the planned legislative changes will complicate the plans of people who wish to move to another Member State with their non-EU family and then move back, since national immigration law will apply to their move to the first Member State. It will be important to see how the legislative amendments address the transitional issues of people who have already moved to a host Member State before the new rules apply. Can the home Member State say that those families must now obtain lawful residence in the host State for the non-EU family member, before the non-EU family member can come to the home State?

Criminality and free movement law

The Treaties allow for the refusal or entry or expulsion of EU citizens on ‘grounds of public policy, public security or public health’. The citizens’ Directive sets out detailed substantive and procedural rules on this issue, which has been the subject of considerable CJEU case law.

What would the renegotiation deal do? First of all, the draft decision states that:

‘Member States may also take the necessary restrictive measures to protect themselves against individuals whose personal conduct is likely to represent a genuine and serious threat to public policy or security. In determining whether the conduct of an individual poses a present threat to public policy or security, Member States may take into account past conduct of the individual concerned and the threat may not always need to be imminent. Even in the absence of a previous criminal conviction, Member States may act on preventative grounds, so long as they are specific to the individual concerned.’

To this end, the Commission declaration states that it will:

‘also clarify that Member States may take into account past conduct of an individual in the determination of whether a Union citizen's conduct poses a "present" threat to public policy or security. They may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned. The Commission will also clarify the notions of "serious grounds of public policy or public security" and "imperative grounds of public security" [grounds for expelling people who have resided for longer periods in a host Member State].  Moreover, on the occasion of a future revision of [the citizens’ Directive], the Commission will examine the thresholds to which these notions are connected.’

It’s not clear whether the revision of the Directive referred to at the end here will be as imminent as the planned proposal to amend the rules on a ‘prior lawful residence’ rule for non-EU family members. Otherwise the plan to issue guidelines is clearly not binding. The language on these guidelines partly reflects the existing law, but some features are new: the greater emphasis on past conduct, the lesser need to show that a threat is imminent and the possibility of expelling someone as a ‘preventative’ measure.

These changes fall within the scope of Cameron’s desire to have ‘stronger measures to deport EU criminals’. However, it should be noted that there is no specific reference to his plans for ‘tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters’. While a conviction and re-entry ban for fraud might be covered by the guidelines referred to above, there’s no mention of clarifying entry bans as regards those guidelines, or changing the legislation on this issue. Also, as I noted in my comments on Cameron’s plans at the time, EU legislation does not allow for re-entry bans for rough sleepers and beggars, since the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health.

Longer waiting periods for free movement of persons from new Member States

Finally, it should be noted that the draft Decision briefly refers to Cameron’s plan to have longer waiting periods for free movement of persons in future accession treaties. It does not incorporate his suggestion, but merely notes it. However, since the details of each new Member State’s adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State, the UK can simply veto any future accession treaties unless longer waiting periods for free movement are indeed included. The next accession to the EU is at least four years away, probably more. So nothing really turns on the absence of agreement with the UK’s position for now.

Conclusion

How to appraise the planned changes to free movement law? The most fervent supporters of the EU are likely to see some or all of them as a betrayal of the EU’s principles that should never be tolerated. But the departure of a large Member State is liable to do far greater damage to the EU’s integration project than acceptance of these changes ever would.

The changes, if they are all implemented as planned, would fall short of a fundamental change in the UK’s relationship with the EU. But equally it is clearly wrong to say that they mean nothing – if in fact they are implemented. The changes would be modest but significant: amendments to three key pieces of EU legislation that would for the first time roll back EU free movement law, not extend it. Leaving aside the calls for non-binding guidelines, there would be cutbacks in in-work benefits (albeit for a limited period), significantly more control on the admission of non-EU family members of EU citizens, and more limited export of child benefit.

The plans not only raise questions of interpretation (although most legislative reforms do that), but of political and legal feasibility: the Commission is willing to propose them and the Member States support two of them, but do Member States support the third proposal – and the UK’s intention to pull the ‘emergency brake’? Will the European Parliament support any of them? Which of them would get past the CJEU? My assessment, as detailed above, is that the amendments on family members will probably be acceptable; the child benefit reforms are an open question; and the changes on in-work benefits are highly vulnerable.

Others may reach a different legal conclusion, of course. And British voters will also be making an assessment not only of the rest of the renegotiation package, but also on the broader pros and cons of EU membership.  These changes go nowhere near far enough for the EU’s strongest critics, but much too far for its biggest admirers. Time will soon tell whether the British public believes that they are a reasonable compromise.

Barnard & Peers: chapter 13

Photo credit: 

Cameron's Chatham House speech: Full speed ahead for the renegotiation of the UK’s EU membership?

Steve Peers

Today’s Chatham House speech by David Cameron set out more detail of the UK’s demands for renegotiation of its EU membership. It was accompanied by a letter from Cameron to the President of the European Council, Donald Tusk, which set out a summary of his requests.

The speech also set out two changes to UK law which the government plans to make, as regards the EU Charter of Rights and (possibly) the role of UK courts reviewing the EU courts. Since these are changes to domestic law, they do not have to be negotiated with other Member States, unless there is a legal argument that they would breach EU law.

This is the latest elaboration of Cameron’s requests; I have commented earlier on his specific suggestions regarding free movement of EU citizens, and regarding other issues. I will refer back to what I’ve said already in those posts where relevant.

Changes to UK law

On the first change to UK law, Cameron referred to the government’s plans to repeal the Human Rights Act and replace it with a ‘British Bill of Rights’, which (as he acknowledged) are separate from EU law as such. But he then went on to state:

“And as we reform the relationship between our courts and Strasbourg, it is right that we also consider the role of the European Court of Justice and the Charter of Fundamental Rights. So - as was agreed at the time of the Lisbon Treaty – we will enshrine in our domestic law that the EU Charter of Fundamental Rights does not create any new rights. We will make it explicit to our courts that they cannot use the EU Charter as the basis for any new legal challenge citing spurious new human rights grounds.”

This is a new point not raised before the Chatham House speech. What should we make of it?

At first sight, it is not really any different from Article 1(1) of the special Protocol on the role of the Charter in the UK and Poland, which provides:

1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

A clause in the preamble to this Protocol provides:

WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;

So the Prime Minister’s commitment to change UK law could be met simply by making express reference to these provisions of the Protocol – or by incorporating their wording – in an Act of Parliament. This would simply reiterate the application of these rules to the UK, given that the Protocol already applies in UK law by virtue of the European Communities Act.

Any more far-reaching approach (such as that advocated by a House of Commons committee last year, as discussed here) would run the risk of complicated breaches of EU law. It’s impossible to say now whether that would happen or not, in the absence of  any proposed legislation on this point.

For the sake of context, it should be noted that the CJEU has ruled in the NS case that the Charter did not add any rights to the ‘general principles of EU law’, which were the basis for protection of human rights in the EU legal system prior to the Treaty of Lisbon. And in Fransson, the Court ruled that the scope of the Charter (ie when it applied to Member States’ action) was the scope of the general principles. True, the Charter can be used to set aside Acts of Parliament, even by the lower UK courts, as in recent cases involving embassy staff and Google. But that’s true of EU law generally, including the previous general principles, as we saw in judgments like Kucukdeveci.

The Prime Minister’s second pledge was to consider whether to introduce a national check on EU measures like that asserted by the German Federal Constitutional Court, concerning the loss of ‘essential constitutional freedoms’ and the review of acts by the EU institutions to check if they remain within the scope of the EU’s powers.

Such a measure would breach EU law in principle, since the CJEU has long ruled that it is the sole judge of whether an EU law is invalid. But Cameron is correct to point out that other national constitutional courts have done the same thing. A full-bodied constitutional conflict has been avoided in practice because those other courts have been reluctant to use those powers, and because the CJEU has maintained a dialogue with them (which does not extend to agreeing with them all the time: see discussion of the recent case law on the ECB’s OMT scheme).

It should be noted that the ‘essential constitutional freedoms’ which Cameron refers to are fundamental rights as protected by the German Basic Law (the de facto German constitution). It remains to be seen whether the ‘British Bill of Rights’ which Cameron plans will protect human rights so strongly in the UK that there is any real prospect of the EU taking those rights away. If not, Cameron’s proposal looks like the constitutional equivalent of shaving all his hair off, while simultaneously insisting on the fundamental importance of his comb.

Changes to EU law

Cameron’s speech essentially rehashed the key features of his prior demands for changes to free movement law, as discussed in the prior blog post. It should be noted that it is clear from more recent CJEU rulings (the Alimanovic ruling, discussed here) that Universal Credit can be legally denied to first-time EU job-seekers (one of the points in his list), because it doesn't qualify as a benefit concerning access to the labour market. That ruling might also make it easier to amend EU legislation to deny benefits to EU citizens who become unemployed within their first four years of entry in the UK. But it still seems unlikely that in-work benefits could easily be restricted, without a Treaty amendment.

On other issues, Cameron’s suggestion to bring together all commitments relating to competitiveness into a single text are rather unclear. It is striking that he has not demanded the repeal or amendment of specific EU legislation. (It’s a Euromyth – or perhaps we should call it a Cameronmyth – that he has ever made such specific demands. At least, they don’t appear in his keynote speeches on EU renegotiation; see the previous 'Bloomberg speech', for instance).

Next, on the issue of ‘sovereignty’, Cameron wants: (a) a ‘clear, legally binding and irreversible agreement to end Britain’s obligation to work towards an ever closer union’; (b) ‘a new arrangement where groups of national parliaments can come together and reject European laws which are not in their national interest’; (c) ‘clear proposals to achieve’ subsidiarity; and (d) ‘confirmation that the EU institutions will fully respect the purpose behind’ the UK’s opt-out from JHA matters. He also states that ‘national security’ is a sole competence of Member States.

The national security and JHA points are new as compared to previous demands. It isn’t clear what Cameron is seeking as regards national security; the Treaties already state in Article 4(2) TEU that ‘national security remains the sole responsibility of each Member State’. As for the JHA points, the UK has lost a few cases on social security rules for third countries bound to the EU by an association agreement (see here, on one such case); it has also quibbled about whether the opt-out applies to parts of treaties with third States (on this point, see discussion here of a relevant CJEU judgment). Since the ‘legal bases’ which divide the JHA competences from other Treaty rules are set out in the Treaties, it is not clear what could be done here. Indeed it’s not clear exactly what Cameron is asking for.

It’s equally unclear what he is asking for as regards subsidiarity. There is a Protocol on subsidiarity but it would need to be amended by the full Treaty amendment process. Equally the slightly more specific demands regarding national parliaments would also entail, in principle, an amendment to the Protocols on subsidiarity and national parliaments.

However, it would be possible – without a Treaty amendment – to give some stronger legal effect to the principle of subsidiarity, and to strengthen the role of national parliaments, by amending the rules on Council voting, as suggested in detail in my previous blog post. This would entail a requirement to delay a vote in Council on grounds of subsidiarity and national parliament objections. This could be coupled with a legal commitment by Member States, in the form of a legally binding Decision of Member States’ Head of State and Government, not to press ahead with a vote in Council if there were no agreement on the proposal after the period of discussion. As explained there, the Council voting rules and Member States’ Decisions can only be amended by unanimity, so there would be legal security for the UK.

This leaves us with the demand regarding ‘ever closer union’. Only a full Treaty amendment could abolish the rule or exempt the UK from it as such, since it appears not only in the preamble to the TEU but (as many seem to forget) in the main text – Article 1 TEU. However, it could be arguable that a legally binding Decision of Member States’ Head of State and Government can clarify that this does not mean (for instance) that the UK is bound to sign up to Schengen or the single currency, or must give up its JHA opt-outs or join an EU army (and so on). Such legally binding Decisions are only valid under EU law if they do not contradict the Treaties; but there would be no such conflict if the Decision simply confirmed existing legal rules.  

The final batch of proposals (although they came first in the speech) concern the relationship between the UK (and other non-eurozone States) and the Eurozone. They comprise: (a) ‘recognition that the EU is a Union with more than one currency’; (b) ‘no discrimination and no disadvantage for any business on the basis of the currency of their country’; (c) ‘integrity of the single market must be protected’; (d) any Eurozone developments ‘must be voluntary for non-Euro countries, never compulsory’’; (e) ‘taxpayers in non-euro countries should never bear the cost for operations to support the Euro as a currency’; (f) financial stability and supervision is a key area of competence for national institutions like the Bank of England; and (g) any issues that affect all Member States must be discussed and decided by all Member States.

These concerns could be addressed, as discussed in the prior blog post, by a mixture of reforms to the Council voting rules and a Decision of Heads of State and Government. So, for instance, there could be a delay in discussion of proposals at the behest of non-Eurozone Member States set out in the Council voting rules, with a separate legal commitment in the Decision not to forward with the proposals if the dispute cannot be settled. Only a full Treaty amendment could remove the reference to the euro as a single currency, but the Decision could refer to the existence of the euro opt-out Protocols for the UK and Denmark, plus the continued existence of other national currencies before other countries join the euro when they are eligible. The integrity of the single market and non-discrimination on grounds of currency are implicitly already in the Treaty, so could be reiterated by a Member States’ Decision; and that Decision could also set out commitments regarding voting on bail-out proposals and competence for financial regulation. A change to the Council rules of procedure and Eurogroup practice could ensure full participation of all Member States in discussions that affect the whole EU.

Photo credit: www.eurogamer.net

Barnard and Peers: chapter 2, chapter 9

The Ups and Downs of Dual Citizenship – the CJEU on Dual Turkish/EU citizens and social rights

Professors: Elspeth Guild, Queen Mary University of London; Kees Groenendijk, Radboud University; and Steve Peers, University of Essex

In recent years, an increasing number of Turkish citizens residing in the EU have become dual citizens of Turkey and an EU Member State. Like other dual citizens of a Member State and a non-Member State, they can invoke EU free movement law to move and reside in another Member State (see the CJEU’s Micheletti judgment). But as a general rule, EU free movement law will not confer rights in their home Member State. So in that case, can they still rely upon their Turkish citizenship to claim rights under the EU/Turkey association agreement?

Back in 2012, in its judgment in Kahveci and Inan, the CJEU determined that dual Turkish/Dutch nationals were entitled to rely on their Turkish citizenship to enjoy the benefits of the EU/Turkey association agreement as regards family reunification and thus escape the stricter national legislation for own nationals’ family members. So until the recent decision earlier this month in Demirci, it looked as if Turkish citizens with a second passport from a Member State were more or less free to choose which one to rely on in order to benefit from EU law. But the Demirci judgment changes the rules slightly and provides a more elaborated legal reasoning to when dual nationals of Turkey and a Member State may use one or other of their citizenship.

The finding is rather ominous so we will start some background on the facts of the case and conclude with a rather optimistic analysis where we conclude that dual nationality is still a strong source of rights in EU law and that this judgment is perhaps the exception.

The Facts:

Mr Demirci and his fellow applicants are all former Turkish workers who had worked in the Netherlands for many years fulfilling the conditions of the secondary legislation of the EU/Turkey Association Agreement, Decision 1/80 of the EU/Turkey Association Council, which regulates aspects of the immigration status of Turkish workers and their family members. They had all naturalised as Dutch nationals but kept their Turkish citizenship. They all became disabled and incapacitated for work and thus permanently left the labour force. They received a Dutch social benefit designed to provide income for the incapacitated. But this benefit is rather low so they applied for a top up benefit to bring their income closer to that of the minimum wage. They were all awarded the top up benefit.

Then a series of things happened. The men retired with their families to Turkey. The Dutch Government began to change the rules on the top up benefit to exclude anyone not resident in the Netherlands (or the EU). Mr Demirci and his colleagues first had their top up benefit reduced then it was cut off altogether on the basis that they no longer lived in the Netherlands (or EU). They appealed, relying on their Turkish nationality, on the basis that this treatment was contrary to the EU/Turkey Association Agreement measure on social security – Association Council Decision 3/80. The argument went that the Dutch authorities may be able to cut off the top up benefit to their own nationals living outside the EU as this is a matter wholly internal to one Member State. But they cannot cut off the top up benefit to Turkish nationals who have fulfilled the conditions as workers in a Member State under Decision 1/80 as this is a matter of EU law (which does not permit such an act – Article 6(1) of Decision 3/80 protects Turkish workers who retire to Turkey as regards receipt of social benefits). Several years ago, the CJEU ruled in Akdas that such rules infringed Decision 3/80 as regards Turkish nationals who returned to Turkey. But could a dual citizen of Turkey and a Member State rely on that judgment, as a Turkish citizen – or would he or she be prevented from doing so, as a national of that Member State?  

The reasoning

The CJEU bluntly tells Mr Demirci and his colleagues that they cannot rely on Decision 3/80 to object to the residence requirement imposed by the Dutch authorities (para 52). This is because, according to the Court, the objectives of the Decision and the EU/Turkey regime is to ensure the progressive integration of Turkish workers into the territory of the host Member State. The social security provisions consolidate that objective.

The Court provides two main reasons for this position. First, because Mr Demirci and his colleagues had acquired Dutch nationality they are in a particular situation as regards the Agreement. Citizenship is ‘the most accomplished level of integration’ of a person into the host state (para 54). This new citizenship means that the former Turkish worker can now enter and reside freely in the Netherlands or indeed any other EU Member State where he or she might wish to go. Conversely, in Kahveci & Inan the Court did not accept the argument of the Dutch government that naturalisation is the pinnacle of integration. In that case AG Sharpston argued that naturalisation may be an indication that an immigrant is on his path to integration, but that is not the same as saying that he has become completely integrated. .

But as Turkish nationals, Mr Demirci and his friends could only live in Turkey or their host Member State (the Netherlands) and so they have no free movement rights. Further as such, they only benefit from certain rights in the host Member State. So, says the Court, for the purposes of paying them a benefit, it is reasonable for the national authorities to make this subject to the same rules as apply to all other Dutch nationals (para 57).   

Secondly, dual Turkish/Dutch nationals would be placed in a better position than other EU citizens if they were allowed to have the top up benefit even though they did not fulfil the residential requirement (para 58). The right to export to Turkey social benefits in Decision 3/80, according to the Court, is a sort of compensation for the fact that Turkish nationals will no longer be able to return to and live in the host Member State. As the CJEU held in Bozkurt, a Turkish national ceases to be a protected person under Decision 1/80 if he or she becomes totally and permanently incapacitated for work (para 64). So there is a justification for applying different rules to those who are exclusively Turkish nationals as they have a much less secure residence status in the host Member State and no free movement rights in EU law. They therefore need the extra protection of the export right. For dual Turkish/Dutch nationals, they can always move back to the EU and fulfil the residential requirements for the top up benefit (even if they would rather not) (para 65).

 Distinguishing Kahveci & Inan

As mentioned above, this judgment takes a different approach from the CJEU’s own jurisprudence in Kahveci & Inan where it held that dual Turkish/Dutch nationals were allowed to rely on their Turkish nationality for the purposes of the EU/Turkey family reunification rules, in order to benefit from the expulsion of Turkish workers’ family members, which are more favourable than the rules applying to the expulsion of the family members of Dutch citizens in the Netherlands. However, the CJEU is anxious to protect its ruling in Kahveci and goes to some lengths to explain why the finding in Kahveci is consistent with that which they were giving in Demirci (para 66). The argument goes like this. Family reunification enhances integration, for Turkish workers who are already legally integrated into the host Member State. Article 7 of Decision 1/80 deepens the last integration of a Turkish worker by granting to that worker’s family members, after three years residence, access to the labour force (para 67). So, acquisition of national citizenship could not be used as a reason to deprive the worker of the benefit of family reunification in Decision 1/80 (para 68). By contrast with the facts in Demirci, the family’s integration would be hindered if it was denied on the basis of dual citizenship. Further in Kahveci the person was seeking to benefit family members who are also Turkish nationals (para 70). Presumably this reasoning means that dual Turkish/EU citizens can also invoke the ‘standstill’ clause in the EU/Turkey association agreement, as interpreted last year in the CJEU’s Dogan judgment (discussed here), to avoid stricter rules for family reunion that apply to a Member State’s own nationals.

But in the case of Mr Demirci he can always go back to the Netherlands (or the EU) to satisfy the residential requirement to get the top up (para 69). Further all he and his colleagues wanted was a top up benefit for themselves (para 71). Finally, the CJEU considered that if Mr Demirci could rely on Decision 1/80 to have the top up benefit while not fulfilling the residential requirement, this would put them in a better situation than that of other citizens of the Union (and thus contravene Article 59 of the Additional Protocol to the EU/Turkey association agreement, which rules out Turkish citizens being better off than EU citizens).

The Court’s approach seems to be that there is something inherently wrong about letting Mr Demirci and his colleagues have their cake and eat it too. The arguments may not be the most compelling in the world but they show a clear judicial line. The CJEU will favour Turkish nationals living in the EU even if they have taken a second citizenship so long as this improves their long lasting integration. But they cannot rely on their Turkish citizenship after naturalization when what they seek is a financial benefit which is subject to a residential requirement for EU citizens (and which they do not fulfil because they have left the EU).

The Court appears to implicitly return somewhat to its reasoning in the Mesbah judgement of 1999, where it held that the Moroccan mother of a Belgian-Moroccan worker who was living with her son in Belgium could not rely on the clause prohibiting discrimination on grounds on nationality in the EEC-Morocco Association Agreement to claim a disablement allowance that under Belgian law was only granted to Belgian nationals. The Court in Demirci, however, does explicitly point to the difference with Kahveci & Inan: “[in] the present case, by contrast, the respondents in the main proceedings are relying on the provisions of Decision 1/80 on their own behalf and in their own interest” (para 70). The Court leaves the door open for the Turkish spouse of a Turkish/Dutch (ex-) worker to rely on Decision 3/80, because the spouse, not having Dutch nationality, would be unable to return to the Netherlands.

 

Conclusions

The most important thing to remember about the Demirci decision is that it does not undermine the Court’s judgment in favour of dual rights for dual citizens in Kahveci & Inan. Yes, Turkish nationals can rely on the EU/Turkey association agreement family reunion rules even after they have naturalized in their host Member State, provided they are allowed to have dual nationality (it isn’t yet clear if they could invoke the EU’s own family reunion Directive). But they cannot rely on their non-EU citizenship after they leave the EU to get around a national residential requirement for the export of a social benefit if such a requirement applies to nationals of the host Member State.

Barnard & Peers: chapter 13, chapter 26

Photo credit: www.dw.de

The nine labours of Cameron: Analysis of the plans to change EU free movement law

 

Steve Peers

As a penance for terrible sins committed in a moment of insanity, the mythical hero Hercules was required to perform ten great labours – extended to twelve after he cheated on two of them. Similarly, David Cameron has today pledged to insist upon major changes to the rules on free movement of EU citizens, failing which he will advocate Britain leaving the European Union. He clearly considers this necessary in light of the political sin of failing to meet his earlier promise to hugely reduce the amount of migration to the UK – which was, in hindsight, made in a moment of political madness.

Cameron’s commitments will not be easy to meet, for the reasons I set out below. I have broken them down into a list of specific commitments. I leave it to the classicists to match each of them to Hercules’ tasks.

If no changes to EU free movement law are made, the Prime Minister implicitly suggested that he would campaign for the UK to leave the EU. He did not state that he would insist upon all of his suggested amendments being agreed. So it is important to assess how realistic each of these proposals is.

A crucial factor in determining what is politically realistic is the nature of the current EU legal rules. Where Cameron’s proposals reflect the status quo, they are obviously realistic. Where they would require EU legislative change, they will require only a qualified majority of EU Member States in favour, plus a proposal from the Commission and agreement of the European Parliament. But where would need an EU Treaty amendment, they would have to be agreed by all Member States and ratified by each national parliament. That isn’t impossible, but it won’t be very easy; and it means that Cameron will more likely have to compromise on the proposals made today.

What about the other political parties? UKIP, of course, wants the UK to leave the EU. The Liberal Democrats generally support benefit reforms, and the Labour party’s policy, as announced recently is broadly consistent with Cameron’s proposals. The difference is that the Liberal Democrat and Labour parties do not (or not yet) support a referendum on continued UK membership of the EU.

As can be seen from the detailed comments below, most of Cameron’s specific proposals will require a Treaty amendment. I have elaborated on some of the points made below in my recent blog post on the legal limits on the amendments to EU free movement law.

Specific proposals

1. No access to tax credits, housing benefits and social housing for four years for EU citizens

For EU citizens who are not workers, work-seekers or former workers, this confirms the status quo, as set out in the CJEU’s recent ‘benefits tourism’ judgment in Dano (see discussion of that judgment here).

For EU citizens who are work-seekers, the free movement of workers in the Treaties (as interpreted by the CJEU) requires Member States to give them access to benefits linked to labour-market participation. These benefits would probably not be covered by that rule. So this confirms the status quo.

For EU citizens who are workers (as defined by the Treaties and CJEU interpretation) or former workers (as defined by EU legislation, and the CJEU interpretation of the Treaties), there is a right to equal treatment as discussed in my prior blog post.  So this change would require a Treaty amendment.

2. Removal if job-seekers do not find a job within six months

For EU job-seekers, the EU legislation states that they cannot be expelled as long as they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. This reflects the case law of the CJEU, interpreting the Treaties (Antonissen judgment). Therefore this change would require a Treaty amendment.

3. Ending the entry of non-EU family members without restrictions

Currently EU citizens can bring with them their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. (As an exception, students can’t bring their parents with them – but it’s rather doubtful that many students would want to do that if they could). This applies regardless of whether the family members are EU citizens or not. In 2003, in the judgment in Akrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.

This rule could possibly be overturned by EU legislative amendment, but it is possible that the CJEU would find that for those EU citizens whose rights are based on the Treaties (workers, job-seekers, former workers, self-employed persons, students), such a restriction was a deterrent to free movement, so a Treaty amendment might be needed.  

In fact, Cameron’s speech appeared to suggest that all non-EU family members of all EU citizens would have to be subject to the same restrictive income and language requirements that apply to UK citizens who seek to marry non-EU citizens. This would clearly deter free movement of those EU citizens who have non-EU family members, and would surely require not just a legislative amendment but a Treaty change.  These changes would therefore probably restrict the possibility of UK citizens to obtain family reunion by going to another Member State to be with their family and then returning, ie the so-called Surinder Singh route.

4. Tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters

This assumes that re-entry bans are possible at the moment for such persons. That’s clearly not the case for rough sleepers and beggars: Article 15(3) of the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health; and Article 27(1) states clearly that such grounds ‘cannot be invoked to service economic ends’. This rule could possibly be overturned by EU legislative amendment, but it is possible that the CJEU would find that this would constitute a disproportionate restriction on free movement for those who were entering to obtain work later. So a Treaty amendment might be needed.

For those convicted of fraud, they would arguably have been expelled on grounds of public policy, public security and public health. In that case, entry bans are allowed, but EU law does not set absolute upper limits on the duration of those bans. Instead, Article 32 of the citizens’ Directive merely sets out a right to challenge them. So in principle longer and stricter entry bans for fraudsters are possible, as a matter of national law, under the status quo. However, if Cameron wants to make sure that they cannot be challenged successfully in individual cases as a disproportionate limit on free movement rights, a legislative amendment or Treaty amendment might be necessary.

5. Stronger measures to deport EU criminals

Currently, as well as possible expulsion for not meeting the economic criteria for free movement, EU citizens can be deported if they are a ‘sufficiently serious threat’ to public policy or public security. Expulsion decisions must be made on a case-by-case basis and a criminal conviction cannot automatically lead to expulsion. In principle, there is a higher degree of protection against expulsion for those who have got permanent residence status (due to living in a Member State for more than five years) or who have lived in that Member State for more than ten years. However, the CJEU’s case law has somewhat undercut that extra protection in practice.

Any changes to the rules on deportation after a criminal conviction would require at the very least a legislative amendment. It is likely that they would also require a Treaty amendment, since the protection against removal on grounds of public policy, public security or public health is set out in the Treaties for EU migrant workers (Article 45(3) TFEU).

6. Longer waiting periods for free movement of persons from new Member States

The details of each new Member State’s adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State. The UK would be in a position to veto any future accession treaties unless longer waiting periods for free movement are included. So this is entirely consistent with the status quo.

7. EU citizens to have a job offer before entry

EU legislation says that EU citizens can stay for three months as long as they have a valid passport and do not apply for social assistance. After that point, they can stay if they are workers, self-employed persons, students or otherwise have sufficient funds. Also they can stay if they are a job-seeker, subject to the proviso (described above) that they have a genuine chance of getting work. So this proposal would require a legislative amendment.

In fact, it would also require a Treaty amendment, since the CJEU has said (in Antonissen) that the Treaty right to free movement of workers also applies to job-seekers, giving them the right to enter and stay in a Member State to look for work.

If such an amendment were made, it would clearly be unfeasible in practice, since it is not realistic to check at the border or before getting on transport if all EU citizens have job offers, considering also that there are many other legal reasons for EU citizens to come to the UK (short-term visits, self-employment, for study, or self-sufficient stay).  

8. No taxpayer support for job-seekers

The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. However, the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question. While David Cameron suggested that the UK’s future Universal Credit would not fall within the scope of the CJEU’s case law, that would likely be challenged in practice. So a Treaty amendment is likely necessary as regards current rules, and possibly necessary as regards universal credit.

9. Payment of child benefit to children abroad

Non-payment of child benefit to children living in other Member States is arguably indirectly discriminatory, since it affects more non-UK nationals than UK nationals. Since the equal treatment of workers is guaranteed by the Treaties, a Treaty amendment would likely be necessary to put this change into effect as regards workers’ family members.

 

Barnard & Peers: chapter 13