Domestic violence and free movement of EU citizens: a shameful CJEU ruling

Steve Peers

EU laws on the free movement of EU citizens don’t give non-EU citizens rights in their own name. Rather, non-EU citizens can only gain rights under those laws if they have a family link with an EU citizen. This creates an obvious problem in cases of domestic violence committed by an EU citizen against a non-EU citizen family member. If the non-EU family member breaks the family link in order to flee the violence, there could be a risk of expulsion. So the victims might stay with their abusers due to a fear of removal from the country, which might include separation from their children.

However, there are provisions of EU law that mitigate this risk. It has long been the position (since the CJEU judgment in Diatta) that non-EU citizens can remain in the same country as their EU citizen spouse following a separation. Their position only changes after divorce.

Upon divorce, the EU citizens’ Directive (which sets out most of the rules governing EU citizens who moved to another Member State) provides specific protection. As a general rule, they can remain if the marriage has lasted three years, including one year in the host State. They can also stay if they have custody of the children, or access to them in the host State. Finally, they can also stay if ‘this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage…was subsisting’. In any of these cases, they can later get permanent residence status.

The recent judgment in NA was the first time the Court of Justice has interpreted the specific rule on domestic violence cases. It follows last year’s judgment in Singh, where the Court first interpreted the general rule about divorce. Both cases raised the same underlying issue: what happens if the EU citizen leaves the host State before the divorce is finalised? Does that departure immediately end the non-EU citizen’s status under the citizens’ Directive, trumping the retention of their residence that would otherwise apply during their separation and (probably) their subsequent divorce from their spouse?  

According to the Court of Justice, it does. This reasoning was an unconvincing interpretation of the general rule in Singh, and it is a particularly unconvincing interpretation of the special rule on domestic violence victims, taking insufficient account of the social context of this rule. While the victim in NA was able to rely on other provisions of EU law, not all victims will be able to. The Court of Justice should therefore rethink its position if the case arises – particularly in light of the EU’s planned signature of the Istanbul Convention on violence against women.

The judgment

The case concerned the status of a Pakistani woman who moved to the UK with her German husband. (The judgment will no longer be relevant to the UK if the country leaves the EU without an agreement on the continued free movement of people. However, it will still be relevant to other Member States). Her husband worked in the UK, and the couple had two daughters, both of whom are German citizens. She left the household due to domestic violence, and her husband left the country shortly after that, before any divorce proceedings began. She subsequently sought permanent residence status in the UK.

Did she retain rights under the citizens’ Directive? As noted above, the Court said she did not. It simply followed Singh, ruling that rights for the non-EU family member ended the moment the EU citizen left the country, unless divorce proceedings had begun beforehand. It gave three reasons. First, the wording of the relevant clause referred only to divorce. Second, the context was the ‘exceptional’ case where a non-EU citizen retained a right to stay despite no longer being a ‘family member’ of an EU citizen living in the same Member State. Third, the Court referred to the ‘aims’ of the law. In its view, the EU legislature had declined to make provision for cases where the EU citizen had departed the Member State, and the original proposal referred to possible ‘blackmail accompanied by threats of divorce’, with ‘safeguards’ only ‘necessary…in the event of final divorce’, as the right of residence is ‘not at all affected’ by a ‘de facto separation’.  

So she had no rights under the citizens’ Directive. However, the Court then examined two other arguments for her stay. First, the Regulation on free movement of workers says that the children of EU workers are entitled to access education. The Court had previously ruled that this entailed a right for the children to stay even if the worker had left, along with a corollary right for the parent caring for them to stay as well. The UK court questioned whether this rule applied even if (as in this case) the children only started school after the worker had left the country; the Court of Justice confirmed prior case law that it did. It was sufficient that the children were resident at some point while one parent was working in that Member State.

Finally, the Court examined a two-fold argument for NA’s right to stay on the basis of the EU Treaties. The first leg of this argument invoked Ruiz Zambrano, the well-known 2011 CJEU judgment which said that non-EU family members of EU citizen children who had not moved within the EU could derive a right to stay based on their children’s rights as EU citizens not to be deprived of the benefits of their EU citizenship. But the Court said that Zambrano was irrelevant to NA, since it only applied as a default, where no EU legislation could protect the legal status of the person concerned.

The second leg invoked the general right of free movement of EU citizens set out in the Treaties. But the Court ruled that the Treaty right was subject to secondary legislation. Applying the citizens’ Directive, NA’s EU citizen children could stay if they had ‘sufficient resources’, which could be derived from a parent. There was then a corollary right for a parent to stay with them – reaffirming case law going back to the Court’s well-known Chen and Zhu judgment.

Comments

In this case, Ms NA got to stay in the country – but that wasn’t actually the issue. She was seeking rather the right to permanent residence, but at first sight she will not obtain that. That right applies to a family member who retains a right of residence under the citizens’ Directive following divorce (among other cases). But it’s not clear if it applies to those who are resident only as a corollary to their children under the Directive. And it certainly does not apply to those who are only resident on the basis of the Regulation on free movement of workers, rather than the Directive: the Court said as much in its Alarape judgment.

The bigger problem with this judgment is the scope it opens to Member States to remove the victims of domestic violence from their territory. Ms NA only got the right to stay on the basis of her care for the children, not as a victim of domestic violence. So a victim without children would not have such protection. Also, rather arbitrarily, a victim whose husband had been self-employed, rather than a worker, would not benefit from the free movement of workers Regulation (see the Czop judgment). Moreover, the Court skipped over the point that her second child had not yet been born at the time when her husband left the country. The judgment would not help those victims whose children had been abducted by the husband when he returned to his home State, or who did not have parental responsibility for the children.

The logic of the Court’s analysis is deeply flawed. First, it isn’t self-evident that the rule on divorce is trumped in the event of separation: the EU legislature simply didn’t explain which rule takes precedence in that case. Secondly, the numbers of non-EU citizens with the right to stay will still remain ‘exceptional’, even if it is extended to cover also the (hopefully) small numbers of cases where an EU citizen perpetrates domestic violence against a non-EU citizen and then leaves the country before divorce proceedings start.

Thirdly, the Court’s analysis of the aims of the EU legislation is clearly absurd. True, the right of residence is ‘not at all affected’ by a ‘de facto separation’ – as long as the EU citizen spouse remains in the country. If the EU citizen spouse leaves, according to the Court’s own interpretation, the right of residence isn’t just ‘affected’ – it instantly vanishes entirely. So in that case ‘safeguards’ would be ‘necessary’. Otherwise there could be ‘blackmail accompanied by threats’ of departure, rather than divorce. Did the EU legislature really intend to make that fine distinction: it’s terrible to threaten a non-EU spouse in one case, but perfectly acceptable in the other? Does the humanity of our response to domestic violence rest on that technicality?

This analysis is shared by the Advocate-General’s opinion, which notes that the loss of status ‘could be used as a means of exerting pressure…to wear the victim down psychologically and, in any event, to engender fear of the perpetrator’. The Court’s interpretation could also complicate criminal proceedings, and deprive the victim’s derived right of its effectiveness. Overall that interpretation is ‘manifestly contrary to the objective of legal protection pursued by’ the citizens’ Directive.

Two final points on the broader context. First, the Istanbul Convention on violence against women, which the Commission has proposed that the EU sign, provides for a right of residence in domestic violence cases (see Article 59). There’s no reference to any distinction based on whether the perpetrator has left the country or not. Neither is there any such reference in the explanatory memorandum to the Convention. And why the hell should there be? Who cares where the perpetrator is, in this context? The sole purpose of the Convention – like the relevant clause in the citizens’ Directive – is obviously to help the victim.

Secondly, let’s examine the law from the perspective of the actual victim in this case. She could have preserved her position by bringing divorce proceedings before her husband left the country. But she had just fled her home, five months pregnant with an eleven-month old child. She may well have faced problems relating to work, benefits or accommodation. And on top of all this, the Court of Justice gives the nod to the Home Office to question her immigration status.

With all due respect, this is one of the most shameful judgments in the Court’s long history. It should be revisited at the earliest opportunity, in particular if the EU has concluded the Istanbul Convention in the meantime.

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo image: Telegraph.co.uk

Violence against women: what will be the impact of the EU signing the Istanbul Convention?

Steve Peers

The scourge of violence against women is a serious human rights abuse and the worst form of sex discrimination. Several years ago, the Council of Europe (a body different from the EU) drew up the Istanbul Convention on this issue. It came into force in 2014, and currently applies to 20 countries, including 12 EU Member States (for ratification details, see here). Today, the EU Commission proposed that the EU sign and then conclude the Convention. What practical impact will that have on violence against women?

If the EU does sign and conclude (ie ratify) the Treaty, it will be the second human rights treaty binding the Union. The first is the UN Convention on the Rights of Persons with Disabilities. While most attention has been focussed on the EU’s attempt to accede to the European Convention on Human Rights (ECHR), which was essentially thwarted by the EU’s Court of Justice (CJEU) in 2014 (as discussed here), the EU’s capacity to sign up to other human rights treaties is also relevant. While the EU cannot sign up to older international human rights treaties, like the UN Covenants, because they are only open to States, newer treaties (like the Istanbul Convention) expressly provide for the EU to sign up to them – if it wishes.

Impact of EU ratification

Like many international treaties, the Istanbul Convention is a ‘mixed agreement’, meaning that (if the EU ratifies it), the treaty will bind both the Union and its Member States. EU ratification should have six main effects (I’ve updated this list from the previous post on the reasons why the EU should ratify).

First of all, the EU’s ratification of the Convention could provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe. It should be noted that the treaty is open for signature to non-EU countries: the 19 Council of Europe countries not in the EU (8 of them have ratified it already), as well as the 4 non-European countries (plus the Holy See) which took part in drawing it up.

Do you live in a country which hasn’t ratified the Convention? You can sign up to a campaign for the UK to ratify the Convention here. Please let me know of any other campaigns in the UK or any other country, and I’ll list them with a link in an Annex to this post.

Secondly, ratification could, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that Member States, would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to urge any countries to do so?

Thirdly, ratification of the Convention should enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation. While there’s no general EU criminal law on violence against women (on the case for such a law, see here), there are other relevant EU rules. In particular, the Commission proposal refers to EU free movement law, substantive EU criminal law relevant to violence against women, EU immigration and asylum law, and the EU law on crime victims’ rights, applicable from last autumn (on the content of the crime victims’ law, see discussion here). It should also mean that the Convention will already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence. The proposal is based on EU competence over victims’ rights, and would apply (if agreed) to every Member State covered by the crime victims’ law – meaning every EU country except Denmark.

In practical terms, that should mean that (for instance), EU law must be interpreted to mean victims receive a residence permit based on their personal situation, if the authorities consider it necessary (Article 59(3) of the Convention). That would apply to citizens of other Member States and their (EU or non-EU) family members, in all 27 Member States covered by the proposal. It would also apply to non-EU citizens in general, in the Member States which apply EU law on non-EU migration (ie the 25 Member States other than the UK, Ireland and Denmark, which have mostly opted out of such laws).  

For asylum cases, Article 60 of the Convention makes clear that gender-based violence is a ground of persecution. This is more explicit than the EU’s qualification Directive, which says that ‘gender-related aspects shall be given due consideration’, with further reference in its preamble to specific practices like genital mutilation. (Note that the UK and Ireland are covered by the first-phase qualification Directive, which has less precise wording on this issue; so the EU’s ratification of the Convention might have more influence in these countries).

As regards victims of domestic violence crimes (of any nationality and residence status), Chapter IV of the Convention, concerning support and protection, could in particular have an impact on the interpretation of the crime victims’ Directive in each Member State.

Fourth, since the CJEU will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this could promote a uniform interpretation of those provisions within the EU.  

Next, the relevant provisions of the Convention will be more enforceable if the EU ratifies it. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

Conclusion

For all the above reasons, the EU’s planned ratification can only be welcomed. It may not, by itself, prevent any act of violence from being committed, but it may accelerate a broader process of ratification (and corresponding national law reform) on this issue. And it may have the important practical impact of helping victims receive support or protection, particularly in the context of the law on crime victims, immigration or asylum.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter II:4, chapter I:5

Should the EU ratify the Istanbul Convention on violence against women?

Steve Peers

For many years, discussion as regards the EU and human rights has focussed on the growing role of the EU Charter of Fundamental Rights and the EU’s planned accession to the European Convention on Human Rights. This is understandable, given the importance of these developments. However, the EU’s relationship with other international human rights instruments is also worthy of further examination.

The EU is not able to sign up to older UN human rights treaties – such as the two Covenants and the Conventions relating to sex discrimination, race discrimination and migrant workers – because ratification of these instruments is only open to States. Similarly, only States can ratify ILO Conventions, although the EU sometimes coordinates its Member States’ position as regards ILO measures (see the discussion of the proposal to coordinate positions regarding new ILO forced labour measures).

However, more recent international human rights treaties do provide for possible accession by the EU, and indeed the Union has signed up to the UN Convention on the Rights of Disabled Persons (see the recent Z judgment of the CJEU). With the imminent entry into force of the Council of Europe’s Istanbul Convention on violence against women (which will come into force on 1 August 2014, after the deposit of the tenth ratification on April 22nd), the question now arises whether the EU should sign up to another human rights treaty. This post sets out the reasons why the EU should ratify the Convention at the earliest opportunity.

EU competence to ratify the Istanbul Convention

The EU is certainty competent to ratify the Istanbul Convention, if it wishes to do so. First of all, the Convention expressly provides (in Article 75(1)) for ratification by the EU, without setting any special condition in this respect.

Secondly, as a matter of internal EU law, the EU can sign up to any treaties which are (inter alia) ‘likely to affect common rules or alter their scope’ (Article 216 TFEU). Although EU law has not regulated the key substantive criminal law issues dealt with in the Istanbul Convention, the Convention does not limit itself to establishing rules concerning criminal liability, but also addresses a number of other issues. In particular, there are EU law measures concerning the Convention’s rules on: crime victims’ rights, cross-border application of protection orders (both civil and criminal), other forms of cross-border cooperation, and immigration and asylum issues (see the detailed list in the Annex).

It must be pointed out that if the EU ratifies the Istanbul Convention, it would not be replacing its Member States, but ratifying the Convention alongside them. In other words, the Convention would be another ‘mixed agreement’ which both the EU and its Member States have ratified, like the UN Disabilities Convention, (in future) the ECHR and many other treaties. The EU would not be legally obliged to adopt any more legislation affecting the issue of violence against women than it already has done. While I have argued before that there are good reasons (and legal powers) for the EU to adopt legislation establishing substantive criminal law rules in this field, this is a separate question from whether the EU ought to ratify the Convention.

Reasons why the EU should ratify the Istanbul Convention

First of all, the EU’s ratification of the Convention would provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe.

Secondly, ratification would, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. While the double standards argument can be answered as regards human rights treaties which the EU cannot ratify, it cannot so easily be rebutted as regards treaties which it can. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to ask non-Member States to do so?

Ratification of the Convention would enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation (such as the legislation listed in the Annex, plus any future relevant measures). It would also mean that the Convention would already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence.

Furthermore, since the CJEU would have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this would promote a uniform interpretation of those provisions within the EU. 

Next, the relevant provisions of the Convention would be more enforceable if they were enshrined in to EU law. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

[Update: the Commission proposed that the EU should sign and conclude the Convention in March 2016. See discussion here.]

Annex

EU competence regarding the Istanbul Convention

Articles 18-22, 25-28, 30(1), 50(1), 56, 57: crime victims Directive

Article 47: Framework Decision on recognition of criminal sentences

Article 59(1): family reunion Directive, citizenship directive

Article 59(2): Returns Directive, citizenship Directive

Article 60(1) and (2): Qualification directive

Article 60(3): Reception conditions directive; asylum procedures directive

Article 61: Qualification directive, Returns Directive

Article 62(1)(b) and (3): Crime victims Directive

Article 62(1)(d): protection orders legislation 

Article 62(1)(a) and (c) and (2): legislation on mutual recognition, et al in criminal and civil matters

Article 65: Data protection Directive; Framework Decision on data protection


Barnard & Peers: chapter 20, chapter 24, chapter 25, chapter 26