Expulsion of seriously ill migrants: a new ECtHR ruling reshapes ECHR and EU law

Dr Lourdes Peroni*, Postdoctoral Research Fellow, Ghent University Human Rights Centre (ECHR aspects) and Professor Steve Peers (EU law aspects)

In what is possibly one of the most important judgments of 2016, Paposhvili v. Belgium, the Grand Chamber of the European Court of Human Rights (ECtHR) has memorably reshaped its case law on when Article 3 ECHR (which bans torture or other inhuman or degrading treatment) applies to the expulsion of seriously ill migrants. In a unanimous judgment, the Court leaves behind the restrictive application of the high Article 3 threshold set in N. v. the United Kingdom and pushes for a more rigorous assessment of the risk of ill-treatment in these cases. For us at the Human Rights Centre of Ghent University, it was a thrill to intervene as a third party in such an important case. In our third party intervention we submitted that Paposhvili offered a unique opportunity to depart from the excessively restrictive approach adopted in N. We are delighted that the Grand Chamber has seized the opportunity to re-draw the standards in this area of its case law in a way that does fuller justice to the spirit of Article 3.

This main part of the post addresses the ECtHR’s interpretation of the ECHR in Paposhvili, while in the Annex to this post, Steve Peers considers its application within the scope of EU law.

The ECHR judgment

Mr. Paposhvili, a Georgian national living in Belgium, was seriously ill. He claimed that his expulsion to Georgia would put him at risk of inhuman treatment and an earlier death due to the withdrawal of the treatment he had been receiving in Belgium (for more on the facts, see my previous post). He died in Belgium last June, while his case was pending before the Grand Chamber. The Court did not strike his application out of the list. It found that “special circumstances relating to respect for human rights” required its continued examination based on Article 37 § 1 in fine ECHR (§ 133). The Court held that there would have been a violation of Article 3 if Belgium had expelled Mr. Paposhvili to Georgia without having assessed “the risk faced by him in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia.” It found a similar violation of Article 8 if Belgium had expelled him without having assessed the impact of his return on his “right to respect for his family life in view of his state of health.”

Opening Up “Other Very Exceptional Cases”

The Chamber judgment in Paposhvili followed N. and Yoh-Ekale Mwanje v. Belgium where the Court had taken into account that “the applicants’ condition had been stable as a result of the treatment they had been receiving, that they were not ‘critically ill’ and that they were fit to travel” (§ 119). The Chamber thus concluded that though Mr. Paposhvili suffered from “a fatal and incurable disease … his conditions are all stable and under control at present; his life is therefore not in imminent danger and he is able to travel” (§ 120).

As readers might remember, the N. Grand Chamber established that removing a non-national suffering from a serious illness to “a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case” (§ 42). The Grand Chamber concluded that the applicant’s circumstances in N. were not exceptional, as found in D. v. United Kingdom (§ 42). D was critically ill, close to death, and had no prospect of medical care and family support in his home country. The N. Grand Chamber, however, left a window open: it did not exclude that “there may be other very exceptional cases where the humanitarian considerations are equally compelling” (§ 43, emphasis added).

In our third party intervention, we argued that being medically stable and fit to travel as a result of the treatment received should not be a determining criterion in allowing an expulsion. We respectfully invited the Court to develop a less extreme approach, one that considered the difference between applicants’ suffering in the sending state and the suffering they would face in the receiving state. The aim, we submitted, should be to determine whether the reduction of applicants’ life expectancy and the deterioration of their quality of life would be such as to reach the level of severity required by Article 3. The applicant argued that his expulsion to Georgia would place him at risk of “a severe and rapid deterioration in his state of health leading to his swift and certain death” (§ 148). He asked the Court “to go beyond its findings in N. v. the United Kingdom” and to define “a realistic threshold of severity that was no longer confined to securing a ‘right to die with dignity’” (§ 149).

The Paposhvili Grand Chamber enters through the window N. left open. It notes that since N. no other “very exceptional cases” had been found (§ 178). It importantly recognizes that the application of Article 3 only to persons close to death has deprived those whose condition was less critical but who were still seriously ill from “the benefit of that provision” (§ 181). In a pivotal paragraph, the Grand Chamber considers

… that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness (§ 183). Emphasis added.

This is a graceful move that softens the unduly restrictive approach that had so far been followed in cases concerning the expulsion of seriously ill migrants. Paposhvili thus comes to fill what Judge Lemmens calls a “gap in the protection against inhuman treatment” (concurring opinion in Paposhvili § 3) by including as exceptional more than just cases of imminent death. My first impression is that the Court does not formally leave behind N.’s exceptional character and the high threshold of Article 3 in cases concerning the expulsion of seriously ill non-nationals (see last sentence § 183 and Judge Lemmens’ opinion § 3). Rather, it appears to open up what in practice has resulted in a limited application of the high threshold. The commendable effect of the Court’s move is, in any event, a less extreme approach more compatible with the spirit of Article 3. Elements of both our third party intervention and the applicant’s arguments are reflected positively in the Grand Chamber reasoning in this regard.

Real Rather Than Theoretical Access to “Sufficient” and “Appropriate” Care

In our third party intervention we proposed that the risk assessment should consider the adequacy of the medical care available in the receiving state and the person’s actual access to such care. The question, we argued, is not just whether adequate treatment is generally available but, crucially, whether the available treatment would in reality be accessible to the person concerned. The applicant argued that the alleged Article 3 violation should be examined “in concreto,” taking into consideration, among other things, “the accessibility of treatment in the country of destination” (§ 139).

The Grand Chamber seizes the occasion to meticulously set out a range of procedural duties for the domestic authorities in the ECHR state parties. All these duties point in one clear direction: a more rigorous assessment of the risk as required by the absolute nature of the Article 3 prohibition (Saadi v. Italy § 128). In assessing the alleged risk of ill-treatment, the domestic authorities should verify whether the care available in the receiving state is “sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3” (§ 189, emphasis added). The domestic authorities should also consider “the extent to which the individual in question will actually have access to this care and these facilities in the receiving State” (§ 190, emphasis added). Referring to existing case law, the Court points to several factors to be taken into account: “cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care” (§ 190).

Duty to Obtain Assurances from the Receiving State

With reference to Tarakhel (a 2014 ECtHR ruling on the application of the EU’s Dublin rules on allocation of asylum responsibility), our third party intervention proposed that Article 3 impose on the domestic authorities in the returning state the procedural duty to seek or obtain assurances from the receiving state that the person concerned would actually have access to the treatment s/he needed. We argued that access to appropriate medical care should not be a theoretical option, but a real and guaranteed one, and the burden of proving that such a real option exists should lie on the expelling state (on assurances and the benefits of adopting this path, see Eva Brems’ commentary on Tatar v. Switzerland).

On this point, the Grand Chamber states in paragraph 191:

Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).

Conclusion

There is so much more to say about the Court’s reasoning in Paposhvili. I have highlighted some of its most remarkable Article 3 principles. Together with others, such as the one establishing when the responsibility of the returning state is engaged (§ 192), these principles firmly move a body of the Court’s case law closer to its principles on the absolute nature of the Article 3 prohibition.

*This part of the post is reblogged with permission from the Strasbourg Observers blog

Barnard & Peers: chapter 26

JHA4: chapter I:7

Photo: OLV hospital, Belgium

Photo credit: Sapa group

Annex: the impact on EU law

By Professor Steve Peers

How does this judgment impact upon EU law?

First of all, it’s necessary to explain the existing EU law position, set in the Abdida and M’Bodj judgments of the ECJ, which was referred to in the ECtHR judgment (paras 120-22), and which I discussed further here. In short, ‘medical cases’ are not within the scope of EU asylum law, either as regards refugee status or subsidiary protection (M’Bodj). However, if the person concerned faces an expulsion order, then the Returns Directive applies. (Note that the latter Directive doesn’t apply to the UK, Ireland or Denmark.)

Although the Returns Directive was mainly intended to ensure removal of irregular migrants from the territory, in ‘medical cases’ (at least), as interpreted by the ECJ in Abdida, it has the opposite effect. According to the Court, the requirement in Article 5 of the Directive to ‘respect the principle of’ non-refoulement means that irregular migrants who fall outside the scope of EU asylum law but nevertheless face an Article 3 ECHR risk, as defined in the case law of the ECtHR, cannot be removed. Moreover, in further displays of legal alchemy, the ECJ ruled that the challenge to their removal must have suspensive effect, and they must receive the necessary health care and social benefits.  

The ECJ has not developed this case law since, although further relevant cases are pending. In MP, the Court has been asked to clarify the line between asylum cases and medical cases, where the medical conditions are more directly linked to persecution or serious harm suffered in the country of origin. In Gnandi, it has been asked to clarify the suspensive effect of a legal challenge in medical cases, following a failed asylum application. In K.A. and others, the Court has been asked about the requirement to ‘take due account’ of family life in Article 5 of the Returns Directive; its ultimate ruling might be relevant to the ‘non-refoulement’ aspect of the same clause by analogy. Equally in Nianga the Court has been asked whether Article 5 applies to the decision to issue a return decision or removal order in the first place: a crucial point because if it does not apply, the person concerned might well fall outside the scope of EU law entirely.  

What impact will the new ECtHR ruling have on the interpretation of EU law? First of all, there’s nothing to suggest it will, by itself, move the dividing line between asylum cases and medical cases, as applied by the ECJ. So we are still looking at the interpretation of the Returns Directive, if that Directive applies.

Since the ECJ committed itself to follow the case-law of the ECtHR as regards medical cases when interpreting the non-refoulement provision of the Returns Directive, it should follow that the new ECtHR ruling applies to the Directive too. Therefore this enlarges the group of people who can benefit from the specific provisions of EU law as interpreted by the ECJ, as regards suspensive effect of appeals and access to health care and social benefits.

Equally the ECtHR’s strong stress on the procedural elements of such cases logically applies by analogy to cases falling within the scope of the Returns Directive. While the ECJ in the Abdida judgment did not refer to its own jurisprudence on the right to a hearing for irregular migrants (discussed here), it is now necessary to update that approach in light of the ECtHR ruling, given the strong link which the latter judgment establishes between the procedural and substantive aspects of what I have referred to as ‘alternative protection’. The ECJ will have an opportunity to address this issue in the months to come, in the pending cases referred to above.

While the ECtHR judgment referred to a need to cooperate with the country of origin in order to check conditions there, in the EU context this might arguably in some cases entail by analogy a check on health conditions in another Member State, which would be responsible for that person under the Dublin rules. The ECJ has yet to determine how its interpretation of the Returns Directive in medical cases fits together with the application of the Dublin rules, which in principle apply if the person concerned has at one point applied for international protection (refugee status or subsidiary protection) within the EU. (Mr. Paposhvili was originally subject to the Dublin rules, but it seems that the plan to remove him to Italy pursuant to those rules petered out).  

Finally, it should be noted that the ECtHR also found a breach of Article 8 ECHR (the right to family life), on similar procedural grounds. This might be relevant to interpretation of the EU’s family reunion Directive, for those who fall within the scope of that Directive and who argue on the basis of the factors to consider during expulsion proceedings pursuant to Articles 17 and 18 of that law.

A template for protecting human rights during the ‘refugee crisis’? Immigration detention and the expulsion of migrants in a recent ECtHR Grand Chamber ruling

Stefano Zirulia, Lecturer, University of Milano* (main text on ECHR) and Professor Steve Peers (Annex on EU law aspects)

* Stefano Zirulia participated in the proceedings before the ECHR as counsel for the applicants

Introduction

On the 15th of December 2016 the European Court of Human Rights Grand Chamber handed down its judgment in the case of Khlaifia and Others v. Italy, which partially reversed the Chamber ruling issued on the 1st of September 2015. The case is about immigration detention at the Italian borders (including the island of Lampedusa) and the expulsion of aliens from Italy to Tunisia. Whilst the events took place in 2011, during that peculiar time which was in the immediate aftermath of the Arab Spring, the issues raised before the Court by the applicants and the principle outlined by the judgments appears relevant to the current refugee crisis and its management by the European Union Institutions and Member States.

1. The Facts

The applicants are three Tunisian nationals who, just like thousands of migrants every year, attempted to enter Europe by crossing the Mediterranean Sea from northern Africa to the Italian coast on board rudimentary vessels. The events took place in September 2011, when the flux of migrations was particularly high due to the revolutionary riots (so-called Arab Spring), which had just taken place in some North African countries. While heading to Lampedusa, the applicants were intercepted by the Italian coastguard and brought to the “Early Reception and Aid Centre” (“Centro di Soccorso e Prima Accoglienza” or “CSPA”) located on the island. They were kept at the centre for several days: the first applicant from the 17th to the 20th of September; and the second and the third applicants from the 18th to the 20th of September. When a fire partially damaged the centre, the migrants were first taken to a sports facility and then they escaped and proceeded to move around the island. On the 22nd of September, after having been stopped by the police, the applicants were transferred by airplane to Palermo (Sicily), where they were confined on board ships moored in the harbour for a few days, together with hundreds of other migrants. On the 27th of September, dozens of these migrants, including the second and third applicants, were taken by bus from the ships to the Palermo airport, where they briefly met the Tunisian Consul and immediately afterwards were returned to Tunisia. On the 29th of September, the first applicant followed the same procedure and was returned to Tunisia as well.

2. The Application to the ECHR and the Chamber Judgment

The applicants have alleged that Italian Government violated several of their rights as provided by the ECHR. Firstly, their right to liberty (Article 5 ECHR) was violated because the Lampedusa reception centre and the ships had been used as detention centres without any legal basis (Article 5 § 1), without providing any information to the detainees (Article 5 § 2), nor granting them access to judicial review (Article 5 § 4). Secondly, their right not to be subjected to inhuman and degrading treatment (Article 3) was violated on account of the overcrowding and the poor health and hygiene conditions in which they were held both in the reception centre and on board the ships. Thirdly, their right not to be subjected to collective expulsion (Article 4 of Protocol No. 4 to the Convention) was violated because their forced returns had been decided according to a bilateral agreement signed between Italy and Tunisia in April 2011, i.e. on the sole basis of their nationality, without any consideration of their individual situations. Finally, their right to an effective remedy (Article 13), taken together with Article 3 and Article of 4 Protocol No. 4 was violated because they could neither effectively challenge before a national court the conditions of their detention nor the return procedure.

The Chamber judgment was handed down on the 1st of September 2015. The Court unanimously found violations of Article 5 with regard to § 1, § 2 and § 4. As to Article 3, the Court majority (five votes to two) found a violation in relation to the conditions in which the applicants were held at the Lampedusa reception centre, but not in relation to those conditions in which the applicants were held on board the ships moored in Palermo. The same majority also pointed out a series of factors indicating that the expulsion was collective in nature and, thus, in breach of Article 4 of Protocol No. 4 (see § 156: «the refusal-of-entry orders did not contain any reference to the personal situations of the applicants; the Government failed to produce any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place prior to the issuance of the orders; a large number of individuals of the same origin, around the time of the facts at issue, were subjected to the same outcome as the applicants; and the bilateral agreements with Tunisia, which have not been made public, provided for the return of unlawful migrants through simplified procedures, on the basis of the mere identification of the person concerned by the Tunisian consular authorities»). Finally, again the majority held that there had also been a violation of Article 13 taken together with Article 3, due to the lack of any effective remedy to challenge the conditions of confinement; and another breach of Article 13 taken together with Article 4 of Protocol No. 4, because the refusal-of-entry orders issued against the applicants expressly stated that the lodging of an appeal would not have suspended their enforcement.

3. The Grand Chamber Judgment

In February 2016, the Italian Government request of referral to the Grand Chamber was accepted. The public hearing took place on the 22nd of June 2016 and the final judgment was delivered on the 15th of December 2016. The Grand Chamber confirmed the violations of Article 5 § 1, § 2 and § 4 and confirmed a violation of Article 13 taken together with Article 3.

3.1. Statements Concerning Immigration Detention

Just as the Chamber had previously determined, the Grand Chamber found unanimously that there had been violations of Article 5 § 1, § 2 and § 4.

The Government had objected arguing that the applicants were not deprived of their liberty (and thus the Court lacked jurisdiction ratione materiae under Article 5), since neither the Lampedusa reception centre nor the ships moored in Palermo were designed for detention but rather to provide first aid and assistance (in terms of health and hygiene) to the migrants for the time necessary to identify them and to proceed with their return (§§ 58-60). The Court rejected the argument by recalling that, «in order to determine whether a person has been deprived of liberty, the starting-point must be his or her concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question» (§ 64). With regard to the present case, the Court began by noting that it was not in dispute between the parties, and it was also confirmed by reports issued by the Parliamentary Assembly of the Council of Europe and the Italian Senate’s Special Commission for Human Rights, that the reception centre was under surveillance and that the migrants were prohibited from leaving the centre (§ 65), and that the same happened with the ships, which the Government considered “a natural extension of the reception centre” (§ 66-69). Additionally, the Court noted that the deprivation of liberty was not insignificant in duration: indeed, summing up the period spent in the Lampedusa reception centre and the period on board the ships, the confinement lasted for about twelve days in the case of the first applicant and about nine days in that of the second and third applicants (§ 70). Finally, the Court emphasized that neither the classification of the confinement under domestic law, nor the authorities’ alleged aim to assist the applicants and ensure their safety, could alter the nature of the constraining measures imposed. Indeed, «even measures intended for protection or taken in the interest of the person concerned may be regarded as a deprivation of liberty» (§ 71).

Having stated that Article 5 applied to the case, the Court concluded that its provisions had been violated by the Italian Government. With regard to Article 5 § 1, even if the detention of the applicants under the provision of letter (f) was to control the liberty of aliens in an immigration context (§ 96), the Court noted that it was devoid of any legal basis. According to Italian immigration law, immigration detention is only possible within dedicated centres (the CIE, “Centres for Identification and Expulsion of Aliens”) and under certain strict circumstances (for instance, where a refusal-of-entry measure or an expulsion cannot be implemented immediately, because it is necessary to provide assistance to the alien, to conduct additional identity checks, or to wait for travel documents or the availability of a carrier): in the present case, the Government itself admitted that the applicants had not been held within a CIE because those conditions were not met, thus conceding that their detention was not authorized under Italian law (§ 98). Furthermore, the Court stated that the bilateral agreement for readmission of aliens signed between Italy and Tunisia could not provide a proper legal basis for detention, above all because its full text had not been made public and, thus, it was not accessible to the applicants (§ 102-103).

With regard to Article 5 § 2, having already found that the applicants’ detention had no clear and accessible legal basis in Italian law, the Court failed to see «how the authorities could have informed the applicants of the legal reasons for their deprivation of liberty or thus have provided them with sufficient information to enable them to challenge the grounds for the measure before a court» (§ 117); to be clear, the Court pointed out that «information about the legal status of a migrant or about the possible removal measures that could be implemented cannot satisfy the need for information as to the legal basis for the migrant’s deprivation of liberty» (§ 118).

With regard to Article 5 § 4, the Court recalled that, where detainees are not informed of the reasons for their deprivation of liberty, their right to appeal against their detention is deprived of all effective substance (§ 132). Therefore, the Court considered that its finding under Article 5 § 2 constituted sufficient grounds to conclude that the Italian legal system did not provide the applicants with an effective remedy to challenge the lawfulness of their deprivation of liberty (§ 133). It must also be emphasized that, in the part of the judgment addressing the issue of Article 5 § 1, the Court already pointed out the unavailability of effective remedies by arguing that, since the Lampedusa reception centre and the boats were formally regarded as  reception facilities, the applicants could not have enjoyed the safeguards of habeas corpus applicable to placement inside the Italian detention centres for migrants (the CIE), i.e. the validation by an administrative decision subject to review by a competent court (§ 105).

3.2. Statements Concerning Inhuman and Degrading Treatment

With regard to Article 3, the Grand Chamber confirmed the Chamber judgment as to the conditions on board the ships and reversed it with regard to the Lampedusa reception centre, thus declaring that in neither situation did the applicants suffer inhuman or degrading treatment.

As a general statement, the Grand Chamber pointed out that, without prejudice to the absolute character of Article 3 and the related principle that an increasing influx of migrants cannot absolve a State of its obligations under that provision, yet «it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose» (§ 185). The Court took into consideration that the situation in 2011 was exceptional (§ 180) and therefore decided to make its assessment bearing in mind that «the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time» (§ 185).

As to the confinement in Lampedusa, the Grand Chamber found that, having considered the situation taken as a whole, as well as the specific circumstances of the applicants’ case, the treatment they complained of did not exceed the level of severity required for it to fall within Article 3 of the Convention (§§ 190-198). Among other factors, the Court specifically stressed that, «even though the number of square metres per person in the centre’s rooms has not been established […] the freedom of movement enjoyed by the applicants in the CSPA must have alleviated in part, or even to a significant extent, the constraints caused by the fact that the centre’s maximum capacity was exceeded» (§ 193). Moreover, the Grand Chamber emphasized that the applicants had been confined within the reception centre only for three and four days respectively, and that their cases could be distinguished from those where the violation was recognized in spite of the short duration of the confinement (§ 195-196).

As to the confinement on board the ships moored in Palermo the Grand Chamber pointed out that the applicants had not presented any objective proof of their allegations (overcrowding and extreme health and hygiene conditions) and it refused their request to shift the burden of proof upon the Government: «the burden of proof in this area may be reversed where allegations of ill-treatment at the hands of the police or other similar agents of the State are arguable and based on corroborating factors, such as the existence of injuries of unknown and unexplained origin» (§ 206). Furthermore, the Grand Chamber attached «decisive weight» to the fact that the Government had produced before it a judicial decision rendered by an Italian court contradicting the applicants’ account. Although the applicants criticized this decision with regard to its evidentiary basis (they highlighted that the decision was mainly based on the statements of a member of the Italian Parliament to the press and not reiterated at the hearing, and that the police had been present when the member of the Parliament visited the ships), the Court ruled that mere speculation cannot call into question the assessment of the facts by an independent domestic court (§§ 207-208).

3.3. Statements Concerning Collective Expulsions

By a vote of sixteen to one, the majority of the Grand Chamber reversed the ruling of the Chamber and declared that no violation of Article 4 of Protocol No. 4 to the Convention had occurred.

The Grand Chamber first recalled that, according to its case-law, collective expulsion is to be understood as «any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group» (§237). The purpose of this provision is in fact «to prevent States from being able to remove a certain number of aliens without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority» (§ 238).

With regard to the present case, the Court noted that, on the one hand, it was undisputed that the applicants underwent identification on two occasions (i.e. immediately after their arrival, by the Italian authorities at the reception centre; and before they boarded the planes for Tunis, by the Tunisian consul); on the other hand, the parties disagreed with regard to the conditions of the first identification. The applicants alleged that the Italian authorities had merely recorded their identities and fingerprints, without taking their personal situations into account, while the Government instead argued that the identification had consisted of a genuine individual interview, carried out in the presence of an interpreter or cultural mediator, following which the authorities filled out an “information sheet” containing personal data and any circumstances specific to each migrant. Although the Government was unable to produce the applicants’ “information sheets”, the Court accepted its version, considering it a «plausible explanation» that those documents had been destroyed in the fire at the reception centre (§ 246).

Additionally, the Grand Chamber stated that «Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances; the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State» (§ 248). Noting that the applicants remained between nine and twelve days in Italy, the Court concluded that «during that not insignificant period of time the applicants had the possibility of drawing the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in Italy» (§ 249). Moreover, the Court emphasized that, before boarding the planes for Tunis, the applicants were received by the Tunisian Consul, and that this later check «gave them a last chance to raise arguments against their expulsion» (§ 250).

The Grand Chamber then addressed other factors which the Chamber had considered relevant to prove the collective nature of the expulsion, i.e. the fact that the refusal-of-entry orders had been drafted in comparable terms, only differing as to the personal data of each migrant, and that a large number of aliens of the same origin had been expelled at the relevant time. In this regard, the Grand Chamber referred to case law according to which such scenarios do not automatically lead to a violation if each person concerned had been given the opportunity to make arguments against his expulsion to the competent authorities on an individual basis (§§ 239 and 251).

The Court then further noted and called into question the usefulness of an individual interview in the present case, by observing that «the applicants’ representatives, both in their written observations and at the public hearing, were unable to indicate the slightest factual or legal ground which, under international or national law, could have justified their clients’ presence on Italian territory and preclude their removal» (§ 253).

Finally, the Court considered it «unnecessary […] to address the question whether, as the Government argued, the April 2011 agreement between Italy and Tunisia, which has not been made public, can be regarded as a “readmission” agreement within the meaning of the Return Directive, and whether this could have implications under Article 4 of Protocol No. 4» (§ 255).

3.4. Statements Concerning the Availability of Effective Remedies at National Level

The Grand Chamber confirmed the Chamber judgment on the violation of Article 13 taken together with Article 3, but reversed it with regard to a violation of Article 13 taken together with Article 4 of Protocol No. 4.

As to inhuman and degrading treatments, the Grand Chamber observed that the Government did not indicate any remedy by which the applicants could have complained about the conditions in which they were held both in Lampedusa and on board the ships. For instance, an appeal to the competent court against the refusal-of-entry orders would have served only to challenge the lawfulness of their removal (§ 270).

As to collective expulsion, given that a remedy was available under national law, the Court examined whether the fact that such remedy did not provide an automatic suspensive effect of the removal order constituted itself a violation of Article 13. While the Chamber answered this question in the affirmative, the Grand Chamber held the opposite opinion: relying on the case-law De Souza Ribeiro v. France, Čonka v. Belgium and Hirsi Jamaa and Others v. Italy, the Grand Chamber stated that an obligation for States to provide for such a remedy (i.e. an appeal with automatic suspensive effect) only arises «where the person concerned alleges that the enforcement of the expulsion would expose him or her to a real risk of ill-treatment in breach of Article 3 of the Convention or of a violation of his or her right to life under Article 2, on account of the irreversible nature of the harm that might occur if the risk of torture or ill-treatment materialised» (§ 276). Given that in the present case the applicants did not claim any of those risks, the Court concluded that the absence of an automatic suspensive effect did not entail a violation of Article 13 taken together with Article 4 of Protocol No. 4.

4. Comment

Due to its scope and abundance of content, the Khlaifia and Others judgment deserves more thorough deliberation than that which follows. However, it is worthwhile to highlight herein some of the strengths and weaknesses, which arise in its interpretation. An Annex summarises the implications for interpretation of EU law in this field.

With reference to rulings relating to Article 5, the judgment represents a major step forward in the process of improving the protection for those people, even today, who are crossing the European borders despite not having any valid entry documentation. Suffice it, in this regard, to refer to October 2016, when Amnesty International released a report wherein it denounced, among other things, the practices of arbitrary detention carried out within the new “Hotspots” located at the European borders (see Amnesty International, Hotspot Italy. How EU’s flagship approach leads to violations of refugee and migrant rights, p. 26-29). Hereinafter, if the Member States continue to find the deprivation of liberty as a necessary tool to contrast illegal migration, they must adopt laws, which clearly and precisely govern the substantive requirements and procedural guarantees with particular reference the right to habeas corpus. The European Court, indeed, has established that no de facto deprivation of liberty exempt from judicial review is compatible with the aim of Article 5, explicitly stating that this applies "even in the context of a migration crisis" (§ 106).

With reference to ECHR Article 3, it is necessary to consider the judgment excerpt wherein the Court highlights the necessity to take into consideration the emergency situation that began in 2011 due to the increased migration as a consequence of the Arab Spring. While, from one side, such a statement is troubling because it seems like an attack on the mandatory character of Article 3, as well as  signalling a step backwards with respect to the principles established in the M.S.S. v. Belgium and Greece (§ 223) and Hirsi Jamaa and Others v. Italy (§§ 122 and 176) cases; on the other side, its scope must be defined in light of the characteristics of the case, namely, to a situation in which - at least according to the findings of the Court - the respondent State had not deliberately violated the prohibition against inhuman and degrading treatment, but rather found itself faced with the objective inability to provide better immigration reception conditions. The ratio decidendi, therefore, complies with the logic of the principle ad impossibilia nemo tenetur. In a key criticism, however, it is possible to see how the unlawful deprivation of liberty inflicted by the Italian Government on migrants had contributed to aggravating the consequences of the humanitarian emergency in terms of overcrowding and the poor health and hygiene conditions of the places where the migrants have been confined: the Grand Chamber could perhaps have taken greater consideration of this circumstance in assessing the existence of a violation of Article 3.

Turning, finally, to the aspects related to the prohibition against collective expulsions and the availability of domestic remedies to challenge them, it is notable how the judgment is thwarted by a fundamental ambiguity with regard to the scope of Article 4 of Protocol No. 4 (and its relationship with Article 13).

It is unclear whether the Court denied the existence of the collective expulsion because it determined that the applicants had benefited from individual interviews (according to the version provided by the Government and deemed reliable by the Court), or because the Court determined that the Government had no obligation to conduct individual interviews because no risk arose to the life or physical well being of the applicants according to Articles 2 and 3 of the Convention. The simplest and most plausible solution is that the Court intended to settle both issues cumulatively. That being said, the assertion that the obligation to conduct individual interviews exists only in the presence of risks to life or physical well being itself is open to criticism. This interpretation, in fact, makes the provision of Article 4 of Protocol No. 4 virtually useless (interpretatio abrogans), assuming that the same identical result is reached by directly applying the principle of non-refoulement arising from Articles 2 and 3 (according to the established case law starting from the famous case of Soering v. United Kingdom).

For this reason, the restrictive interpretation of Article 4 of Protocol No. 4 proposed by the Court does not seem reasonable and sound. The same is true with reference to the guarantees arising from Article 13 in relation to Article 4 of Protocol No. 4: if the automatic suspensive effect was mandatory only in the presence of risk of harm, then the protection provided by Article 13 in relation with Article 2 and 3 would be enough. The most persuasive interpretation of Article 4 of Protocol No. 4 seems, instead, to be that which was proposed by the applicants - and also supported by the third parties that intervened before the Grand Chamber (see in particular §§ 234-236), as well as by the partially dissenting opinion of Judge Serghides – according to which, Article 4 of Protocol No. 4 provides procedural guarantees that are independent from the concrete situation of the individual applicant because it is designed to ascertain such situation. Therefore, the only effective domestic remedy pursuant to Article 13 to prevent the violation of such procedural guarantee is necessarily one that envisages an automatic suspensive effect of the expulsion. A third party (see § 265) and the aforementioned dissenting opinion expressed their opinions to this effect (see in particular §§ 73-74 of the opinion, where the judge refers to the De Souza Ribeiro, Čonka and Hirsi Jamaa and Others case law in order to highlight how, in hindsight, they offered arguments supporting the opposite conclusions than those of the majority).

Therefore, valid arguments exist to support that the violations of Article 4 of Protocol No. 4 and Article 13 in relation to it, are integrated in each case in which the applicants are not given the opportunity to "put forward arguments" in support of their condition, nor are they granted a remedy having suspensive effect, regardless of any prediction concerning the contents of the statements they might have made to the authorities, as well as, any evaluation regarding the "safe country" nature of the destination country (without prejudice to the fact that, if risks to life and physical well being of the foreigner actually arise, his expulsion could lead to different and further violations of Articles 2 and 3).

This interpretation, in addition to being consistent with the text and the general scheme of the Convention, is the only one able to protect migrants without valid documents from potential abuses and arbitrary decisions by the border authorities: in this context, therefore, it seems that the Strasbourg Court has missed an important opportunity to impose a substantial level of protection of fundamental rights with regard to the current immigration crisis that Europe is facing.

Barnard & Peers: chapter 26

JHA4: chapter I:7

Photo: detention on Lampedusa

Photo credit: UNHCR

Annex: the EU law implications

Professor Steve Peers

Neither the main judgment in this case nor the concurring and dissenting judgments discuss EU law aspects in any detail. Nevertheless, in light of the ECJ’s tendency to take account of Strasbourg judgments, the ruling will have consequences for the interpretation of EU law, particularly in the context of the perceived ‘migration crisis’ which the ECtHR refers to.

First of all, the ruling that being kept in asylum reception centres and ships may amount to detention is significant for interpreting the EU’s reception conditions Directive (as regards detention of asylum-seekers) and the Returns Directive (as regards the detention of irregular migrants, given that the ECJ has already ruled that the ECtHR’s interpretation of ‘detention’ is relevant for applying the EU law on the European Arrest Warrant.

Secondly, the interpretation of ‘lawfulness’ of detention under the ECHR is also relevant, given that the EU legislation requires such detention to be lawful as well.  

Thirdly, the insistence that judicial control of detention is essential 'even in the context of a migration crisis' makes clear that there is no ‘crisis’ excuse to avoid judicial review of migration or asylum detention (for the most recent ECJ case law on this issue, see discussion here). The ruling on the breach of Article 5(4) ECHR regarding judicial review follows from the breach of Article 5(2), and is relevant to the interpretation of Article 9(3) of the reception conditions Directive and Article 15(2) of the Returns Directive.

Fourthly, as for the breach of Article 5(2) ECHR because the migrants were not told why they were detained (it being irrelevant that they know they were entering illegally) confirms the wording of Article 9(4) of the reception conditions Directive, but adds to the wording of Article 15(2) of the Returns Directive, which contains no express requirement to inform.

Fifth, the ruling that there was no breach of Article 3 as regards conditions in either reception centres or ships, giving states some latitude in the context of the migration crisis, is relevant to the interpretation of the rules in the reception conditions Directive and the Returns Directive on the conditions of detention.

Sixth, the Returns Directive and the asylum procedures Directive do not ban collective expulsion explicitly, but it is implicit from the requirement of individual decision-making and the obligation to comply with the EU Charter of Rights, which bans collective expulsion expressly. The ECtHR judgment is therefore relevant in that it confirms that the ban on collective expulsion also applies if States define it as a refusal of entry, but also as regards the ruling that the ECHR is not breached in the absence of individual interviews as long as they can make a case against expulsion. This falls well below the standard in the asylum procedures Directive as regards the asylum process, and also probably below the ‘right to be heard’ guaranteed by the ECJ case law regarding irregular migrants and the Returns Directive.

Seventh, the breach of Article 13 ECHR as regards the lack of an effective remedy regarding detention conditions could be relevant to EU law. Although a remedy on this issue is not expressly mentioned in Article 10 of the reception conditions Directive or Article 16 of the Returns Directive, it follows from Article 47 of the Charter (the ‘effective remedies’ clause) that such a remedy must be available.

Finally, the compliance with Article 13 ECHR as regards the lack of a right to of a right of suspensive effect of an appeal as there was no allegation of a risk of breaching Articles 2 or 3 ECHR justifies the lack of suspensive effect of a challenge to an expulsion under the Returns Directive, except in special cases as defined by the ECJ. Conversely, it confirms that there must be either suspensive effect of an appeal or the possibility to request such suspensive effect in asylum cases, as set out in the procedures Directive.

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

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

Background

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

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

C-304/14 CS: facts and judgment

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

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

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

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

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

C-165/14 Rendón Marín: facts and judgment

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

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

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

Comment

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

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

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

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

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

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

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

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

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

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

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

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo credit: cpkidsmountainclimbers.wordpress.com

The final UK renegotiation deal: immigration issues

Steve Peers*

So David Cameron has achieved his deal on the renegotiation of the UK’s EU membership (full text of that deal here). This is the first of a series of posts on the final deal – starting with the issue of ‘EU immigration’ (or, from the EU law point of view, the free movement of EU citizens). This builds on (and partly recycles) my earlier post on the EU immigration issues in the draft deal.

I will write later about the other substantive issues (competitiveness, Eurozone relations, sovereignty) and on the legal form of the deal (although see already my post on the legal form of the draft deal; my comments there won’t change much when I update them in light of the final deal). And see also Katarzyna Granat's analysis of the 'red card' for national parliaments – again, the final text of the deal doesn’t differ from the draft here).

The deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘Decision’); a Statement of the Heads of State and Government (which consists of an agreed 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 four declarations by the Commission. Of these, Section D of the draft Decision and three of the Commission declarations relate to immigration issues. One of these Commission declarations (relating to child benefit exports) was added during the negotiation, while the text of Section D and another declaration (on the ‘emergency brake’ in in-work benefits) was amended. The other declaration (on so-called ‘abuse’ of free movement) was not changed.

While Section D contains some important attempts to clarify EU free movement law, the key feature of the 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 Decision enters into effect. That will happen (see Section E of the Decision) as soon as the UK announces that it will remain a member of the EU – if, of course, the UK public vote to remain in the upcoming referendum. The 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 planned amendment to the citizens’ Directive, since that proposal is not referred to in the main Decision).

However, all three proposals will be 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, although the largest party (the European People’s Party, made up essentially of centre-right parties like Angela Merkel’s Christian Democrats) has announced that it supports the renegotiation deal in principle, subject to examination of the details. However, I offer some thoughts below about possible challenges to the legality of these laws if they are adopted.

Unlike some other parts of the deal (on the position of non-Eurozone states, and the exemption of the UK from ‘ever closer union’), there is no mention of future Treaty amendments to give effect to any part of the text dealing with free movement (immigration) issues. So the main impact of the deal in this area will come from the three legislative proposals, once adopted. Since those proposals will not be tabled or agreed until after the UK ‘Remain’ vote (if there is one), this means that the analysis of the details is necessarily somewhat speculative. There are some important points of detail that will only be clear once the legislation is proposed and approved. I flag up some of those finer points below.

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 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 deal provides not for 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. The Council will presumably act by the default voting rule in the Treaties: a qualified majority on a proposal from the Commission. That means no single Member State can veto the request to pull the brake. The final deal leaves vague the exact authorisation process which will apply in the Council, to avoid annoying the European Parliament (EP); but that detail will have to be addressed sooner or later. Certainly the EP will have to approve the legislation which sets up that process in the first place; the question is whether it would have a role deciding if the brake should be pulled.

A Commission declaration states the UK qualifies to pull this ban immediately, in particular because it did not apply transitional controls to workers from new Member States in 2004. However, there is nothing in the deal to suggest that Member States – who would have the final word – also agree. The restrictions would only to those who were ‘newly arriving for a period of seven years’, and would have to be phased out during that time. Again, the seven years matches the transitional period which the UK could have applied to control the numbers of workers from new Member States, back in 2004.

Several points of detail arise. First of all, after the seven years have expired, it’s not clear how much time would then have to pass before the brake could be applied again. Secondly, it will be important to clarify the meaning of those who are ‘newly arriving’. What about those who lived in the UK before, and are now returning here? How much time would they have had to spend in Poland (say) before they are considered ‘newly arriving’ again? Presumably the brake would not apply to those who are already here when the brake is pulled, but are not working at that time (due to youth, unemployment, childcare or illness) but who get work afterward.  

Thirdly, it will be necessary to define how to calculate the four year period. It’s easy enough to apply it to those who begin work as soon as they (newly) arrive in the country, and who work for the full four years afterward. But what about those (a non-working spouse, or a teenager, for instance) who start work some time after they enter the country? What about those who start work, stop for whatever reason and then restart? What about those who start work during the brake period, then spend a year or so in Poland, then come back? And how can we be sure when exactly someone entered the country in the first place?

The final crucial point of detail is, obviously, the grounds on which the brake can be applied. According to the 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 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 law 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 deal does not go as far as Cameron wanted: instead child benefit can be limited by indexing it to the ‘conditions’ in the receiving State. This will only apply to ‘new claims made by EU workers in the host Member State’; but after 1 January 2020, this ‘may’ be extended to ‘existing claims already exported by EU workers’. This is clarified by the Commission declaration, which states that the ‘conditions’ refers to the ‘standard of living and level of child benefits’ in the child’s State of residence. The transitional rule, and the Commission declaration, were added during negotiations. It’s an open question whether this new law would breach the Treaties, since there is no case law on the point.

Several points of detail arise here. It’s explicit that the new rules will be optional, so Member States can still be more generous if they want to. There’s nothing to limit their application to the UK (although I will refer to the UK and Poland here, purely for the sake of readability). It’s not clear whether the rules will also apply to British citizens who have children in other Member States; arguably the principle of non-discrimination will require that they do. It’s also not clear what happens to ‘mixed’ families of (say) British and Polish parents (or indeed step-parents). Will it depend on which parent is the worker? What if both are workers? What if that changes over time?

The transitional clause also raises issues. The Decision distinguishes between ‘new claims’ and ‘existing claims already exported by EU workers’. Presumably the new law will state a precise date at which claims can be regarded as ‘existing’ (say 1 January 2017). These must be existing exported claims, so if a child moves to Poland after 1 January 2017, or is born after that date and resides in Poland, then child benefits could be reduced, even if the worker is already in the UK. So if my estimated date is correct, anyone who is thinking about having a child, and who wants to avoid the application of these rules, had better get a move on. Perhaps this Easter will be the season of fertility even more than usual.

Finally, it should be noted that a challenge by the Commission to other aspects of UK payment of child benefit to EU citizens is still pending. The non-binding opinion of an Advocate-General argues in favour of the UK in this case (for a critical view, see Charlotte O’Brien’s analysis here). It wouldn’t surprise me if the Commission quietly withdrew this legal challenge. You read that here first.

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 Decision simply reiterates this case law, which has already satisfied Cameron’s main objectives in this field. It should be noted that another judgment by the Court of Justice on EU benefits issues is due next week.

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 (the ‘host 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 (the ‘home Member State’) with their family members, now invoking the free movement rights in the Treaties. This is known in practice (in the UK) as the ‘Surinder Singh route’, because of the name of the case which first established this principle. 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 chance 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 deal does not go this far. The main 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 guidelines which will provide ‘clarifications’. The amendments will 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. 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 deal that limits its application to the UK. (One important point of detail is whether all Member States would be obliged to apply the new rules on ‘prior lawful residence’ and ‘marriage after entry of the EU citizen’, or whether they could choose to waive one or both of those rules. The EU citizens’ Directive already states that Member States can apply more liberal standards if they wish to).

Finally, the consequences of the rule will need to be clearer in the future legislative amendments. 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. 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 host 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, possibly based on the Commission’s ‘guidance’ (which might be issued before the new legislation is adopted) 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 does the renegotiation deal do? First of all, the 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 is as imminent as the proposal to amend the rules to create a ‘prior lawful residence’ rule for non-EU family members. Otherwise the plan to issue guidelines is clearly not binding. The language in 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. Put simply, a Member State can impose an entry ban where an EU citizen has been expelled due to criminality – but not where he or she has been expelled due to poverty.

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

Finally, it should be noted that the 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

The key point to remember about the renegotiation deal, particularly as regards EU immigration, is that it consists of different parts. The main deal takes the form of a Decision, which essentially clarifies EU law without amending it. According to CJEU case law (Rottmann), the Court is willing to take Decisions like these into account when interpreting EU law.

However, in the area of EU immigration, the other parts of the deal are more relevant: the intention to pass three new EU secondary laws. Those new laws will be a fully-fledged amendment to existing EU rules, not simply a clarification of it. While some points of detail remain to be worked out, it is clear from the deal that the Commission will make proposals in these areas, and all Member States (ie the Council) will support them. It remains to be seen whether the European Parliament will approve them, and whether the CJEU would accept challenges to their legality. My assessment of the Court’s likely response, 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. Of course, there’s no prior case law on these specific issues, and so we can’t be certain of the Court’s approach in advance.

Overall, as I concluded in the earlier post on the draft agreement, these changes, if they are all implemented as planned, will 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.

Barnard & Peers: chapter 13

Photo credit: www.telegraph.co.uk

*Disclosure: I will be consulting for the European Parliament on the free movement aspects of the renegotiation. However, my advice will be fully independent; I don't represent or advocate for the European Parliament (or anyone else) on these (or any other) issues.