Jump before you’re pushed: the CJEU rules on the voluntary departure of irregular migrants

Steve Peers

For the first time, the CJEU ruled yesterday (in its judgment in Zh and O) on the provisions of the EU’s Returns Directive (the main set of rules governing the expulsion of irregular non-EU migrants) concerning ‘voluntary departure’. The word ‘voluntary’ is a euphemism here, of course:  there’s still a legal obligation for the migrant to leave, underpinned by the threat of force. But nevertheless it still makes a big difference to the people concerned whether they have a chance to leave the country under their own steam. If they aren’t given that chance, they are likely to be woken up in their homes in the middle of the night, arrested, detained in jail, and restrained on their journey to their country of origin or transit by an armed officer. Some are injured or die during this process. So it’s far better to jump than to be pushed.

But when do irregular migrants have the choice to do so? The Returns Directive makes it the normal rule to give them a period for voluntary departure, for a period of between seven and thirty days.  This time must be extended if necessary in individual cases, for instance whether there are children in school. But there are exceptions: Member States may decide not to grant this period, or to curtain it to less than seven days, in three cases: where there’s a ‘risk of absconding’; where ‘an application for a legal stay has been dismissed as manifestly unfounded or fraudulent’; and if the person concerned ‘poses a risk to public policy, public security or national security’.

If one of these exceptions apply, the removal must then be carried out by national officials, and the Directive in principle requires the migrant to be issued with an entry ban. (It’s still an option for a Member State to issue an entry ban in cases of voluntary departure). Migrants who have the chance of voluntary departure are entitled to family unity, emergency health care and education in the meantime, and it’s implicit that they would not normally be detained.

The Zh and O judgment concerns the third of the exceptions from the rule of giving a period for voluntary departure: the exception for ‘public policy’, et al. Last year’s judgment in Mahdi, discussed here, touched on the first exception (the ‘risk of absconding’), in a different context (the grounds for detention). Zh and O was about two separate cases, and the Dutch courts asked three questions to clarify the meaning of the public policy exception.

Judgment

The national court wanted to know whether the ‘public policy’ exception had the same meaning as the similar provisions in the EU’s citizens’ Directive, and also the EU Directives on family reunion and long-term resident non-EU citizens. First of all, the CJEU said that the exception had to be interpreted ‘strictly’. It confirmed that the three exceptions to the rule of voluntary departure were the ‘only’ ones allowed. A Member State has to ‘prove’ that there is a risk to public policy. Secondly, the voluntary departure rule aimed, among other things, to protect the ‘fundamental rights’ of the persons concerned during the expulsion process.

So while Member States ‘retain the freedom’ to decide on the concept of public policy, they did not have full latitude to determine the concept without any control by the Court. Here the CJEU referred ‘by analogy’ to case law on the EU citizens’ Directive. So the exception had to be applied on a ‘case-by-case basis’, to decide if the ‘personal conduct’ of the migrant ‘poses a genuine and present risk to public policy’. This meant the suspicion of committing a criminal act, or even a criminal conviction, could not by itself justify the conclusion that a ‘public policy’ risk exists.

On the other hand, the ‘public policy’ exception could still apply where an appeal against a criminal conviction had not yet been decided, or where there was no conviction, as long as ‘other factors’ justified the use of that exception. What are those other factors? The Court referred to the ‘nature and seriousness’ of the act and ‘the time which has elapsed since it was committed’. So the national court had to consider that in one case, the migrant was actually not trying to stay in the Netherlands without authorisation, but was on his way out (travelling to Canada) when he was stopped. In the other case, the migrant had been accused of domestic abuse, but it was relevant that there was nothing to substantiate that accusation.

Finally, the Court ruled that there did not have to be a separate assessment of the question of limiting voluntary departure; that issue could be considered when making the initial return decision. The Court reiterated its prior judgment in Boudjlida (discussed here), when it ruled that the migrant must have the opportunity to be heard on the question of whether voluntary departure ought to be granted.

Comments

The Court’s analysis in this judgment has broader implications. First of all, unlike the Advocate-General’s opinion, the Court drew an analogy between the concept of ‘public policy’ in the EU citizens’ Directive and in the Returns Directive. It should follow that the public policy exceptions in the EU’s legal migration legislation (and not just in the two other Directives referred to by the Court) should be similarly interpreted.

Secondly, the Court’s general approach to the exceptions to the rule of voluntary departure is surely equally relevant to the other two exceptions from that rule: the risk of absconding and the manifestly unfounded or fraudulent application to stay. So those other exceptions must be strictly interpreted; Member States have the burden of alleging them; and migrants can object to their application during a form of hearing.

Thirdly, a criminal conviction or suspicion does not by itself trigger the ‘public policy’ exception. But they can be considered along with other factors. The Court did not suggest that the factors which it referred to (departing the country, limited credibility of an allegation) were the only factors to take into account. So there might well be others in other cases. Presumably, for instance, it would conversely be relevant if a migrant’s battered wife has been admitted to hospital. A prior history of irregular migration or criminal convictions (and conversely, the absence of any such prior history) might also be relevant.

More broadly, the Court’s approach, expressly linking the opportunity for voluntary departure with the protection of human rights, properly takes account of the dramatic impact of forced removal on individual migrants. Its judgment does not limit the underlying obligation for irregular migrants to leave the European Union. But it rightly tempers that obligation with a consideration for the basic humanity of the people being removed.

 

Barnard & Peers: chapter 26

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The Returns Directive and the Expulsion of Migrants in an Irregular Situation in Spain

 

Dr Diego Acosta Arcarazo, Lecturer in Law, University of Bristol

Dr Andrea Romano, Research Assistant, La Sapienza University of Rome.

 

In a much expected ruling delivered on 23 April in Case C-38/14 Zaizoune, the CJEU apparently left without validity the Spanish legal architecture by which undocumented non-EU (third country) migrants could be subject to a fine, rather than be expelled as a result of their irregular situation. Below, we will briefly explain the Spanish legal system as well as the rationale by the Court in declaring it in breach of EU law, notably its limited analysis of Article 4(3) of the EU’s Returns Directive, which grants Member States the right to adopt or maintain more favourable provisions provided those provisions are compatible with that Directive.

 

The Case

 

Mr Zaizoune, a third-country national irregularly residing in Spain, received an expulsion order in October 2011. Mr Zaizoune brought an action against that decision and requested that such expulsion order should be replaced with a fine. Indeed, based on the Spanish legislation, which had been adopted in 2009 before the deadline for implementing the Directive had expired, and which followed consistent jurisprudence from the Spanish Supreme Tribunal, migrants in an irregular situation had to be subject to a fine as the only sanction as a general rule. Expulsion was indeed only possible when aggravating circumstances beyond the mere irregular stay were present, and only after having regard to the principle of proportionality, the degree of fault, the harm caused and the risk arising from the offence and its effects. In other words, irregular stay was, as a general rule, not considered to be of sufficient gravity to order expulsion from the territory.

 

However, we find here an instance of the dichotomy, that the American scholar Motomura has marvellously depicted in the US case, between immigration law in theory and immigration law in action or practice. Indeed, the fine was the first step for expelling an individual. Such person was told not only that he had to pay a fine but also that he had the obligation to voluntarily leave Spain or to attempt to regularize his status. Such regularization was only possible after having paid the fine, but paying the such fine did not excuse the person from being expelled if he had not been able to regularize.

 

The reasons for this system may be traced back to the Spanish immigration policy. Spain received a large number of third-country nationals in the first decade of this century. There were very few legal routes to migrate to Spain but this was coupled with a generous regularization policy well represented by the “arraigo” (settlement) figure. Arraigo allows an undocumented third-country national to request a residence permit after having resided for three years in Spain if some conditions are fulfilled out of which the most important one is to have a job offer. A scheme of fines fit well with this system where numerous third-country nationals could obtain a residence permit after having worked for a number of years in Spain.

 

The Court does not obviously enter into discussing these internal issues and concludes that the Directive precludes the Spanish provision providing for the fines as an alternative to expulsion, since it is likely to jeopardise the achievement of the objectives pursued by the Directive, notably the removal of the third-country national concerned, and, therefore, deprive it of its effectiveness (paras 39 and 41).

 

Comment

 

Since the adoption of the Directive, the Court has repeatedly ruled on the incompatibility between EU law and national law on return-related issues, where the latter provided for more restrictiverules. The CJEU clearly stated in El Dridithat “the Directive does not allow those States to apply stricter standards in the area that it governs” (par. 33).

 

In contrast, in Zaizoune the Court had to interpret the notion of the possibility of Member States adopting “more favourable provisions” than the Returns Directive, as permitted by Article 4 (2) and (3) of the Directive.

 

Labour law is an area where similar “more favourable provision” clauses have raised major concerns for the Court. Several rulings deal with the possibility for Member States to set higher standards for workers than EU employment legislation, and in some of these cases the Court has allowed them to do so.

For example, in Merino Gomez, the CJEU affirmed that number of days of leave for women who had taken maternity leave could be higher than those laid down in the relevant directive, since the latter only provides for minimum standards (par. 42-45). A similar rationale was also adopted in other cases such as Dominguez(paras 47-48) or Neidel(par. 35).

 

Probably a less linear attitude to the more favourable clause characterizes the case-law on migration and asylum law. In B and D the Court allowed a Member State to grant protection on the basis of its constitutional law in favour of a person excluded from the refugee status provided for by Directive 2004/83, the so-called “qualification Directive” that defines eligibility for refugee and subsidiary protection status in the EU. However, the Court excluded the application of the “more favourable provision” clause in that Directive in order to grant the persons concerned refugee status in accordance with the Directive, as the Directive required persons in the situation of the applicants to be excluded from refugee status (par.  113-121). Like the Returns Directive, the qualification Directive (and other EU asylum laws) only allow Member States to apply more favourable provisions that are compatible with the Directive. It should be noted that EU law on legal migration allows Member States to have more favourable standards withoutsuch a compatibility requirement.

 

A restrictive approach as regards “more favourable” rules for obtaining refugee and subsidiary protection status can again be found in the recent M’Bodjcase, discussed further here. Here, the Court held that a person suffering from a serious illness cannot be eligible for subsidiary protection based on the more favourable provision clause (art. 3, Directive 2004/83), as this situation “has no connection with the rationale of international protection” (par. 44).

 

Furthermore, the interpretation of the more favourable provision clause has also been problematic in the area of free movement of EU citizens: in Ziolkowski, Advocate-General Botargued that as art. 37 of the EU citizens’ directive provides for more favourable national provisions, residence periods of a Union citizen in a hosting Member State, on the basis of a residence permit issued under national law, are to be counted in order to obtain a permanent residence right (par. 46-49 and 58). This argument was however rejected by the Court (par. 48-50).

 

As far as migration law is concerned, in the recent Tahircase, the Court adopted a systematic reading and dismissed the literal interpretation of the applicant, who claimed the right to obtain a long-term residents’ EU residence permit on the basis that according to national legislation the requisite of an uninterrupted residence of 5 years was not explicitly required for family members of a TCN already holding such a long-term residence permit (par. 38-44). In both Ziolkowski and Tahir we see a refusal by the Court to incorporate those more favourable rules into the system of the Directive rather than a limit per se on the ability of Member States to have more favourable provisions.

 

As it can be seen, systematizing EU case law on more favourable national provisions is a hard task.  In Zaizoune, the Court could have explained more fully the reasons why Spain could not rely on Article 4(3) and given more details about the contrast between Spanish law and the Directive´s effectiveness. In particular, the Court´s appraisal of effet utile seems inconsistent with its earlier case-law (El Dridi, par. 31, 38, 42; Achughbabian, par. 42). The CJEU only mentions these cases to refer to the removal´s mandate and avoids mentioning that the directive also aims at ensuring guarantees and fundamental rights for migrants.

 

The CJEU provides for a narrow and literal reading of the Directive where any national provisions not leading to return are inconsistent with it. With respect, an alternative reading of Chapter II of the Directive, entitled termination of illegal stay, could have accepted more favourable provisions, such as those at play in the Spanish case, where the national legislation provides for a permanent mechanism of regularization which will indeed potentially lead to the termination of such legal stay. The Court could have then adopted a more nuanced interpretation, by stating that the Spanish law would be inconsistent with the directive where the person concerned could not regularize his status, something for the national court to assess in each scenario.

 

Spain will not now be able to impose a fine as an alternative to expulsion. It will however also have to make sure that the period for voluntary departure, which as a general rule has to be granted to any individual issued with a return decision, is effectively put into place. Indeed, this is not always the case in the Spanish practice. During such period for voluntary departure, which can be extended (according to the Directive) beyond 30 days taking into account the specific circumstance of the individual case, the person concerned could avail himself of the possibility to regularize his status through arraigo and have the return decision withdrawn in line with Article 6(4) of the Directive, which allows Member States to regularize irregular migrants. This alternative will respect the Returns Directive but will also allow the individuals concerned an opportunity to regularize and avoid expulsion. It will also take into account the particular circumstances of a Member State where a large number of undocumented migrants are those who fell into irregularity. In other words, these are individuals who, having resided for a number of years in Spain, could not renew their temporary permits due to, for example, having lost their jobs. This alternative will also require careful judicial oversight and good lawyering involved and will almost mirror the previous system while also respecting the Directive. It will also tackle the ongoing challenge of those third-country nationals who cannot be removed, a situation which not only arises in Spain but also in the other 24 Member States (all except the UK, Ireland and Denmark) bound by the Directive.

 

Barnard & Peers: chapter 26

Photo credit: bagnewsnotes.com

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The right to be heard in immigration and asylum cases: the CJEU moves towards a definition

 

Elspeth Guild, Kingsley Napley

An essential element of a legal challenge is the right to be heard. It is often characterised as a component of rights of the defence but it has a wider ambit requiring state authorities to provide an individual with an opportunity to state his or her case before taking a decision. By and large in EU law, the right to be heard has been bundled into national procedural rights but it began to make guest appearances in CJEU judgments from 2008 and recently has taken central stage in two judgments on the Return Directive.

The starting place, however, is in a judgment about post clearance recovery of customs import duties (C-349/07 Sopropé), where the CJEU held that when state authorities take decisions within the scope of EU law they must provide the entity with the right to be heard. This is the case even in the absence of such a procedural requirement in EU law. Two conditions must be fulfilled: the right must be the same as that to which individuals or undertakings in comparable situations under national law are entitled (the principle of equivalence) and secondly the procedural rules must not make it impossible in practice or excessively difficult to exercise the right (the principle of effectiveness). These principles laid out in the 2008 judgment are having a considerable impact on EU law on third country nationals both in the context of asylum and return decisions.

Where does the right to be heard come from?

First, the source of the right: the CJEU found in 2008 (a year before the Charter became legally binding via the Lisbon Treaty) that there was an EU principle of the right to be heard. But note, in subsequent judgments it has been reluctant to embed the right in the Charter. Although the Charter has a right to good administration (Article 41(1)) which includes the right to be heard, the CJEU has held, most recently in two judgments (Mukarubega and Boudjlida, discussed here) on the Return Directive (Directive 2008/115), that this right only applies to the institutions, bodies, offices and agencies of the EU (not to Member State bodies – a finding not entirely consistent with a previous ruling on an asylum matter see below).

So the right to be heard, for instance regarding a residence permit under the Return Directive, cannot be founded on Article 41 Charter. Further, Articles 47 and 48 Charter ensure respect for the rights of the defence and fair legal process in all judicial proceedings, but while the CJEU refers in its recent judgments to these two provisions in conjunction with Article 41, it has not expressly excluded them from applicability to Member State action (as to do so would limit them to really few situations).  Instead, the Court has chosen to determine that the right is inherent in respect for the rights of the defence which is a general principle of EU law (see Boudjlida).

There is an oddity here which the CJEU does not attempt to explain. On the one hand the right to be heard is critical for the individual or entity before the state authority reaches a decision. On the facts of the cases before the CJEU which were about the decisions of a national authority that individuals were unlawfully residing on the territory and therefore the consequence was a return decision (or expulsion order), this matters a lot. The individuals had to have an opportunity to explain why their residence was lawful or why it should be regularised on the basis of their personal circumstances in order to avoid a return decision being pronounced against them.

On the other hand, the rights of the defence apply afterthe state authority has made its decision and the individual seeks to appeal against it. It may be a ground of the defence that the individual was never provided an opportunity to make his or her case before the decision was reached but this is an ex post argument. It is a stretch of interpretation to push the rights of the defence backwards into an administrative obligation. Further Article 47 Charter, the fair trial provision, applies in respect of any right or freedom guaranteed by EU law. But Article 48 Charter, the rights of the defence, apply when the individual is charged (a criminal charge). There are a number of nuances here regarding the right to be heard.

In MM - an asylum case - the CJEU held that the right to good administration (Article 41 Charter) includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. It went on to state that Article 41 Charter from its very wording is of general application. On this basis, and also after a consideration of the generally applicable principle of the right to be heard, the CJEU held that an asylum applicant must be heard by the national authorities responsible for determining the claim pursuant also to the rules of the Common European Asylum System. This seems to indicate that in the asylum context the CJEU was tempted to apply Article 41 Charter to national authorities but in the later decisions on the Return Directive it drew back from that position.

Nonetheless, in the Return Directive context (Boudjlida), the CJEU found that the right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely.

What does the right mean?

There are two parts to the right to be heard – the first is the principle of equivalence and the second the principle of effectiveness. As far as the first principle goes, the comparator is the analogous situation under national law which applies to everyone (third country national or citizen). In a Return Directive procedure, the third country national must have the same right to be heard as a citizen in a comparable procedure. But what would a comparable procedure be? The CJEU does not tell us. One can begin to imagine what kind of administrative procedure should be the gold standard - a planning application? A compulsory purchase order? An access to education dispute? It is not clear that there is one specific kind of procedure which would necessarily provide the comparator. While this is not new – one encounters the same problem as regards the correct fee for EU registration certificates which must cost no more than an equivalent document for a citizen – it is particularly vivid here. The scope of the right to be heard for a third country national seeking to avoid an expulsion decision depends on the comparator chosen. One may presume then, that the comparable procedure under national law must be one with fairly enormous consequences for the individual. It could not be a trivial administrative matter (for instance parking fines?) as the intensity of the right to be heard may be lower in such cases than where the whole centre of life of an individual is in the balance. Thus it would need to be an important matter (for instance a decision to extinguish the mechanical means to prolong someone’s life?).

The second part of the test is the right to effectiveness. The national rules must not make it impossible in practice or excessively difficult to exercise the right to be heard. Assessing this part of the test may be controversial particularly where third country nationals are involved who may not speak the language and may need substantially more assistance in putting forward their case than a national would. What might be sufficient for the right to be heard to be respected for a national in a zoning dispute may be utterly inadequate for a third country national seeking to explain why he or she cannot go back to his or her country of origin. The CJEU has had to consider the meaning of effectiveness in the context of immigration matters already. In a series of cases pre-2004 on the association agreements with the Central and Eastern European (now) Member States, the CJEU had to determine whether various provisions of immigration laws in existing Member States rendered the right of establishment for nationals of association countries impossible or excessively difficult to exercise. The test of ‘impossible or excessively difficult’ came from the agreements themselves having been borrowed by the drafters from the WTO agreements. The CJEU held in those cases that so long as state authorities exercised their discretion under immigration rules in such a way that nationals of the association countries could in fact exercise their right of establishment the test was satisfied (Barkoci and Malik).

The effectiveness requirement has also been the subject of consideration by the European Court of Human Rights (ECtHR). In Conka v Belgium that court stated that the European Convention on Human Rights is intended to guarantee rights that are not theoretical or illusory, but practical and effective. As regards the accessibility of a remedy this implies that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (para 46). That court went on to provide guidance on the elements which make a remedy effective, namely whether: it is available and sufficient to provide redress; it is sufficiently certain in practice to be accessible and effective; practical information on remedies is clearly made available to individuals affected; the language used must be one the individuals are likely to understand and interpreters must be available in sufficient numbers; and the individuals must have real possibilities to obtain legal assistance (see the full extracts from the judgment in the Annex).

The ECtHR’s assessment of effectiveness has been played out in the context of remedies rather than the right to be heard per se, but the principles are likely to be the same. For the moment it is not entirely certain that the CJEU’s effectiveness test is fully compliant with that of the ECtHR. This doubt is intensified when one examines the facts of the two Return Directive cases – Mukarubega and Boudjlida. As Basilien-Gainche sets out in her blog post on the cases, the substance of the right to be heard for these two individuals was very thin indeed (short interview of 30 – 40 minutes, for which the individuals were unprepared and had no legal assistance). Not only that, an infringement of the right to be heard results in annulment only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see the MG & NR judgment on immigration detention).

What is the purpose of the right to be heard?

In every case, the right to be heard must be guaranteed in its context, according to the CJEU. In the context of the Return Directive, the purpose is to enable the person to express his or her point of view on the legality of his stay and on whether any exception to the expulsion presumption of the Directive should be applied (Boudjlida, para 47). The directive specifically sets out the need to consider the personal and family situation of the individual, the best interests of any children, family life and the state of health of the third country national. Further there must be full respect for the asylum principle of non-refoulement (no return to a country of persecution). The individual is under a duty to co-operate with the competent authorities and to provide them with all relevant information, in particular all information which might justify a return decision not being issued (Boudjlida, para 50).

The authorities are not under a duty to disclose, prior to making a return decision, their intention of doing so and the evidence on which they intend to rely to justify the decision (Boudjlida, para 53). Only where a third country national could not reasonably suspect what evidence might be relied on against him or her does such a duty of disclosure come into existence. This disclosure duty also applies where the individual objectively would not be able to respond until certain checks or steps were taken with a view to obtaining supporting documents (Boudjlida, para 56).

Otherwise, the extent of the right to be heard only goes so far as to require that the third country national be given to opportunity effectively to submit his or her point of view on the subject of the irregularity of stay and the reasons which might, under national law, justify the authorities to refrain from adopting a return decision (Boudjlida, para 55). The purpose is to ensure that the competent authorities adopt decisions in full knowledge of the facts and are able to provide adequate reasons for the decision (Boudjlida, para 59). This rather harsh position needs to be tempered by the finding in MG and NR that the rights of the defence include not only the right to be heard but also the right to have access to the file. According to the CJEU in that case, these are among the fundamental rights forming an integral part of the EU legal order (as well as enshrined in the Charter). Compliance with these rights is not dependent on express provision anywhere of such procedural requirements.

A Right to Legal Assistance?

Bearing in mind the importance of the right to be heard and the fact that a third country national may not have a clear idea of what the relevant facts are which the competent authorities need to take into account in order to decide whether the presumption in favour of a return decision has been displaced, legal assistance is clearly an issue. On the facts of the two cases, Mukarubega and Boudjlida, it seems very likely that neither of the individuals were aware of what they were supposed to be providing other than answering questions put to them by the police. Clearly the presence of a legal advisor who could present the relevant information in a manner designed to address displacing the presumption in favour of expulsion would have been very useful. In both cases, in a manner which seems to be one of omission, the two people gave up important rights such as to delays and reflection periods, which might have been central to the proper (and potentially successful) presentation of their situations. In both cases, under the relevant French law there were simultaneous decisions on their residence status (illegality) and expulsion (a return decision). The CJEU accepted that this procedure is consistent with the Return Directive. But in such cases it is even more important that individuals actually are able to get legal assistance as the consequences of such a truncated procedure may be very grave.

In the Boudjlida case, the third country national sought to register with the national authorities as a self-employed businessman. When he attended the appointment for his registration, the border police were waiting for him. The wording of the judgment states that he was invited by the border police to come to their offices either then or on the following day and that he accompanied them to their offices where he was interviewed forthwith. One wonders exactly how the invitation was made and whether there was any question of possible detention (Ms Mukarubega had been detained but her detention had been found by a national court to be without a legal basis). It seems most odd that an educated man such as Mr Boudjlida who had followed engineering studies, would not have been aware of the importance of legal assistance in such circumstances. One also cannot help but wonder why the border police were present at the national authority responsible for registration of businesses (associated with the social security authorities). Clearly some preparatory exchanges of information and personal data had taken place between the relevant authorities.

 The ECtHR has expressed concern about the use of incomplete communications with third country nationals in order to encourage them to present themselves at interviews, the actual purpose of which is to detain and expel them. In the Conkajudgment, it held “In the Court's view, [any exception to the right to liberty] must also be reflected in the reliability of communications such as those sent to the applicants, irrespective of whether the recipients are lawfully present in the country or not. It follows that, even as regards overstayers, a conscious decision by the authorities to facilitate or improve the effectiveness of a planned operation for the expulsion of aliens by misleading them about the purpose of a notice so as to make it easier to deprive them of their liberty is not compatible with Article 5.”

In a concurring opinion, Judge Velaers stated that: “Although States are entitled to expel illegal immigrants in an effective manner and while there may not be many suitable alternatives and those there are in some cases have equally damaging consequences for the immigrants and their children, using a ruse such as that used by the Ghent police creates a danger that the public authorities will generally be perceived as not being credible in their administrative dealings with aliens illegally present on the national territory. In my opinion, that consequence means that the ruse used by the Ghent police contravened the principle of proportionality. In a State in which the rule of law applies, illegal immigrants are not without rights. They must be able to rely on communications of the administrative authorities that concern them.” One wonders whether the actions of the French police in the Boudjlida case were properly consistent with this principle of honest communication which the ECtHR has established. Perhaps the rather unclear description of Mr Boudjlida’s ‘invitation’ from the police to accompany them to the police station for an interview (which results in the very quick issuance of a return decision) reflects more than just this reader’s doubts.

According to Article 13 Return Directive, there is a right to legal assistance and legal aid where necessary, only after the return decision has been made and solely when an appeal has been brought. Nevertheless, the CJEU found that a third country national may always have recourse (but at his or her own expense) to the services of a legal advisor in the context of a return procedure (Boudjlida, para 65). The purpose of the right is to enjoy the benefit of the advisor’s assistance when being heard by the competent national authorities. But, the exercise of this right must not affect the due progress of the return procedure nor undermine the effective implementation of the Directive. It is difficult to see how access to legal advice could undermine the effective implementation of the Directive as an inadequately founded return decision is inconsistent with the Directive. Such a flawed decision is much more likely to occur where third country nationals do not receive legal advice and assistance to present their cases. For instance, individuals are not necessarily likely to know the full legal meaning of ‘best interests of the child’ or non-refoulement. A legal advisor may well be necessary in order to clarify to the competent authorities why one or other of these legal concepts, in the context of the specific facts of the case, require the issue of a residence permit to the individual rather than a return decision.

In addition, if the right to a legal advisor is a component of the right to be heard (effectively) then the competent authorities must be under a duty to make this right known to the individual. On the facts of the Boudjlida case, the CJEU states baldly “it is evident that, when [Mr Boudjlida] was interviewed… he did not request the assistance of a legal advisor (Boudjlida, para 66). One wonders what lies behind that statement, in particular whether the third country national was fully aware of the seriousness of his situation.

The matter of the due progress of the return procedure and the right to legal advice needs a little more discussion as well. It is evident from the way in which French implementation of the directive has been designed that the objective is to speed up decision making. There is one single procedure where the legality of the individual’s residence is assessed and a decision to make a return order is made. So the question arises, how should the right to legal assistance and the due progress of the return procedure be reconciled. It seems likely that some kind of balancing must take place – but exact what this should be is not specified.

At this point someone is likely to suggest that the principle of proportionality may be useful. This may be true but to make an assessment using the proportionality principle one needs to have a clear indication of what are rights and what are exceptions. On the one hand there is the right to be heard which the CJEU has established as a principle of EU law, a corollary of which is the right to legal assistance. On the other hand, one has the principle of the Return Directive that the issue of a residence permit to an irregularly present third country national is an exception to the rule. One might suggest that a principle of EU law would take priority over a principle in a Directive though this has yet to be determined. In practice, however, the central question is likely to be how much delay can be countenanced in a return procedure to ensure that the individual has effective legal assistance.  

Conclusion

One thing is clear from the recent CJEU judgments: there is a right to be heard before an administrative authority reaches a decision with potentially adverse consequences which EU law principle is a free standing. The applicability of the EU Charter right to good administration (Article 41) to the procedures of national authorities has been thrown into doubt at least as far as the Return Directive is concerned. It may still be hoped that the Charter provision applies in asylum procedures but this is uncertain.

The right to be heard must be both equivalent (to other national procedures) and effective. This means it is subject to a type of non-discrimination requirement and additionally must be accessible for the individual. The effectiveness component has deep roots in ECHR jurisprudence and it is worth bearing in mind that line of cases when seeking to determine the scope of the EU principle.

Finally, third country nationals have a right to legal assistance at all stages of a return procedure but states are only required to provide legal aid (subject to means testing) at the appeal stage. The only limitation to legal assistance may be a claim that it is contrary to the due process of the return process or may undermine the effective implementation of the Directive. 

 

Annex

 

Extracts, judgments in Conka v Belgium

[1] “43. That factor has a bearing on the issue to which the Court must now turn, namely the Government's preliminary objection, which it has decided to join to the merits. In that connection, the Court reiterates that by virtue of Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66).

44. In the instant case, the Court identifies a number of factors which undoubtedly affected the accessibility of the remedy which the Government claim was not exercised. These include the fact that the information on the available remedies handed to the applicants on their arrival at the police station was printed in tiny characters and in a language they did not understand; only one interpreter was available to assist the large number of Roma families who attended the police station in understanding the verbal and written communications addressed to them and, although he was present at the police station, he did not stay with them at the closed centre. In those circumstances, the applicants undoubtedly had little prospect of being able to contact a lawyer from the police station with the help of the interpreter and, although they could have contacted a lawyer by telephone from the closed transit centre, they would no longer have been able to call upon the interpreter's services; despite those difficulties, the authorities did not offer any form of legal assistance at either the police station or the centre.”

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Could EU law save Paddington Bear? The CJEU develops a new type of protection

 

Steve Peers

Many readers may already be familiar with Colin Yeo’s brilliant blog post, imagining Paddington Bear’s unpleasant encounter with British immigration law. But could EU law save Paddington Bear, in particular by creating a new form of protection for those who have to flee their country of origin?

Background

EU law has regulated in detail two forms of international protection: refugee status (based on the UN’s Geneva Convention) and subsidiary protection status, for those who don’t qualify for refugee status. (There’s also EU legislation providing for temporary protection, but the EU has never used it). But there are people who don’t qualify for either form of status. When do they have a right to stay?

This question is relevant in a number of cases. For instance, Paddington Bear could argue that he was an ‘environmental refugee’, fleeing catastrophic events in his country of origin that were not caused by humans (or even bears). (I’m converting Paddington into a human for the purpose of this blog post, just as Colin does in his). Others might lack a right to stay, but can’t be removed for practical reasons, for instance because they don’t have documents that prove their nationality, and so the country which they probably come from refuses to accept them back. Or they have a serious illness, but the developing country which they come from lacks the resources to treat it: so sending them back would, in practice, amount to a death sentence.

It’s the last of these scenarios which forms the subject of the CJEU’s two recent rulings in M’Bodj and Abdida. (Note that these judgments should be read in that order, and it would be highly misleading to read one but not the other). However, these judgments might well have implications for other groups of people as well – perhaps including even our marmalade-loving bear.

Judgments

In the M’Bodj case, a non-EU citizen, having failed in his requests for asylum and stay on medical grounds in Belgium, was then the victim of a violent attack there. So he requested a disability allowance that was only available, on the facts of his case, if he could show that he was eligible for subsidiary protection. According to the EU’s qualification Directive, subsidiary protection must be granted if the applicant is facing any one of the following three situations: (a) the ‘death penalty or execution’; (b) ‘torture or other inhuman or degrading treatment or punishment of an applicant in the country of origin’; or (c) ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. (The EU has more recently adopted a revised qualification Directive, but it didn’t change this particular definition).

The CJEU has previously interpreted the third of these grounds, in its judgments in Elgafaji and Diakite. But it has not yet interpreted the first two grounds. Mr. M’Bodj argued that the second ground applies, on the basis that the European Court of Human Rights (ECtHR) has interpreted Article 3 ECHR, which equally bans ‘torture or other inhuman or degrading treatment or punishment’, to mean that, in exceptional cases, people who would die if they were sent back to their country of origin, due to the inadequate medical treatment there, cannot be sent back.

However, the CJEU rejected its arguments. In its view, since the qualification Directive listed specific human activities as the source of persecution or serious harm, this form of ‘serious harm’ had to be the result of ‘a form of conduct on behalf of a third party’, so ‘cannot therefore simply be the result of general shortcomings in the health system of the country of origin’. This interpretation was bolstered by the preamble to the Directive, which says in effect that the Directive does not apply to those allowed to stay ‘on a discretionary basis on compassionate or humanitarian grounds’. It did make an exception for cases where the person concerned had been intentionally deprived of health care. Just because the ECtHR interpreted Article 3 ECHR to mean that people in Mr. M’Bodj’s situation could not be removed to their country of origin, that did not mean that they were necessarily entitled to subsidiary protection under the EU Directive.

The Directive does state that Member States can have ‘more favourable standards’ as regards qualifying for refugee or subsidiary protection status than those set out in the Directive. But such higher standards have to be ‘compatible’ with the Directive. In the Court’s view, it would indeed be incompatible with the Directive to give subsidiary protection status to Mr. M’Bodj, since there would be ‘no connection with the rationale of international protection’.

Read in isolation, the M’Bodj case means that those facing awful conditions in their country of origin that were not caused by humans have no right to refugee or subsidiary protection status. Their legal position is governed only by the ban on removal to their country of origin, set out in ECtHR case law, along with whatever limited benefits they may have under purely national law. There are a wide variety of such national law rules, as documented in a study for the European Migration Network. For Paddington Bear, this would mean that he could be sent back to his country of origin, unless the conditions there breached Article 3 ECHR standards. In that case, he could remain in the UK, but probably could not expect a very nice life.

However, the Abdida case, decided on the same day by the CJEU, suggests that in some cases, those who are unable to qualify for subsidiary protection or refugee status can use the EU’s Returns Directive to obtain a different type of protection. Mr. Abdida had similarly claimed that he should receive leave to remain on medical grounds in Belgium, and was appealing against the refusal of this application. While the appeal was pending, he was refused social assistance, on the grounds that it was only available to those whose challenge to their removal had suspensive effect; his challenge did not have that effect under Belgian law.

The national court asked the CJEU to interpret EU asylum legislation, and in light of its judgment in M’Bodj, the CJEU simply said that EU asylum law did not apply. While Member States have an option to apply EU legislation on reception conditions and asylum procedures to other types of applications for protection, Belgium has not chosen to do so.

The CJEU could have left the case there, but it didn’t. Instead, it decided to give the national court a detailed answer to questions it had never asked, on the interpretation of EU legislation that it had never referred to – the Returns Directive, which governs the process of removing irregular migrants from the territory.

First, the Court ruled on Mr. Abdida’s procedural rights. While the Returns Directive does not require legal challenges to removal to have suspensive effect, it was necessary to consider the impact of the EU Charter of Rights, Article 19(2) of which bans removals to States where the person concerned would face a serious risk of inhuman or degrading treatment. This had to be interpreted in light of the ECtHR case law on Article 3 ECHR discussed above, which bans removals on ‘medical grounds’ in exceptional cases.

How does this impact the interpretation of the Returns Directive? Article 5 of that Directive says that when they implement the Directive, ‘Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the [person] concerned, and respect the principle of non-refoulement’. The CJEU ruled that Article 5, ‘taken in conjunction with Article 19(2) of the Charter’, means that Member States ‘may not…proceed with…removal’ where removal ‘would infringe the principle of non-refoulement’ on medical grounds.

This ban on removal had the consequential effect that the remedy against removal hadto be suspensive, despite the optional wording of the Directive on this point, because otherwise Mr. Abdida could suffer irreparable harm if sent back to his country of origin before his appeal was decided.   

Secondly, the CJEU ruled on his social rights. Article 14 of the Directive says that except where irregular migrants are in detention, where they are given a time for voluntary departure or their removal is postponed, Member States must ‘ensure that the following principles are taken into account as far as possible…: (a) family unity with family members present in their territory is maintained; (b) emergency health care and essential treatment of illness are provided; (c) minors are granted access to the basic education system subject to the length of their stay; and (d) special needs of vulnerable persons are taken into account’.

In the Court’s view, Mr. Abdida qualified for this treatment because his removal had to be postponed under the Directive, which requires postponement where suspensive effect of an appeal has been granted. Oddly, the Court did not mention that the Directive also requires postponement where removal would violate the principle of non-refoulement, although this rule was obviously relevant to Mr. Abdida as well.

It should be noted that the Directive gives an option to Member States to postpone removal in other cases, too. On that point it specifies that ‘Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity;’ and ‘(b) technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification’. In these cases, the persons concerned could also invoke the safeguards set out in Article 14, since that clause applies regardless of the reasons for postponement of removal.

Yet on the face of it, Mr. Abdida’s specific claim for social assistancecould not be successful, since such assistance is not mentioned in Article 14 at all. Indeed, the preamble to the Directive states that pending return, the ‘basic conditions of subsistence should be defined according to national legislation’. But the CJEU ruled that such legislation still had to be ‘compatible with the requirements laid down in’ the Directive. In this case, the right to the provision of health care would be ‘rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs’ of the person concerned. However, that right only had to be provided ‘as far as possible’, on the condition that the person lacked the means to provide for his own needs; and it was up to Member States to ‘to determine the form’ which the provision of basic needs took.

 

Comments

At the outset, it should be noted that the qualification Directive and the Returns Directive have a different territorial scope. The former applies to all Member States except Denmark, but including the UK and Ireland. The latter doesn’t apply to the UK and Ireland, and it applies to Denmark and the non-EU Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) only in certain cases.

So, in light of this recent CJEU case law, my advice to Paddington Bear would be to take the tube a few stops from Paddington to King’s Cross & St. Pancras station, and stow away again, this time on a Eurostar train to Brussels. (My apologies for facilitating a breach of immigration law, thereby infringing the EU’s Directive on that subject. And even greater apologies for inflicting upon the world the consequential change of name: it will be much harder to love ‘Gare du Midi Bear’.) Or alternatively, he could stow away on a train to Disneyland Paris – and create work for an army of copyright lawyers.

The Court’s judgments raise questions about the scope of international protection as defined by the qualification Directive, and about the new possibilities of protection arising under the Returns Directive. For the sake of brevity, let’s call that latter concept ‘alternative protection’ (technically, we should probably call it ‘Returns Directive protection’, but I can’t bring myself to use that term).

First of all then, the qualification Directive. The central point here is that there is no right to subsidiary protection merely due to the lack of decent health care in the country of origin, unless access to that health care has been blocked. The Court does not expand further on that exception, but presumably a parallel argument could be made for refugee status, where access to essential health care is blocked on one of the grounds (such as race, religion or political opinion) set out in the Geneva Convention, since that would surely constitute a form of persecution.

More broadly, the Court rules out a subsidiary protection claim unless the conditions in the country of origin have been caused by a ‘third party’ as defined in the Directive (namely the State, persons or groups controlling the State, or non-State actors). While the Court didn’t rule on this point as such, the logic of its judgment suggests that ‘non-State actors’ have to be humans. Also, it’s implicit that indirect causation isn’t sufficient. It could certainly be argued that the lack of sufficient health care in developing countries is ultimately the fault of corrupt dictators and elites who hoard those countries’ wealth, and/or the legacy of (neo-)colonialism and slavery. Equally, many believe that environmental displacement results from climate change caused by human activity. But it seems unlikely that the CJEU would accept this line of argument.

Furthermore, the Court has ruled out Member States using their power to apply more favourable rules for international protection in such cases. The CJEU had only ruled once before on this issue, in the case of B and D, when it ruled that States could not grant refugee status to persons who were excluded from that status. It was possible to interpret that judgment as meaning that Member States were only constrained from granting more favourable treatment when international law requiredthem not to do so. But the M’Bodj judgment goes much further than this. So the CJEU hasn’t just refused to raise the floor for international protection – it’s significantly lowered the ceiling.

It should be noted that the requirement that more favourable standards be compatible with EU law applies in all other EU asylum laws, as well as in some EU migration legislation, such as the Returns Directive. The M’Bodjjudgment might therefore have implications for these laws too. But the rule doesn’t apply to all EU immigration laws, and there’s no good reason to assume that a ‘compatibility’ requirement ought to apply in those cases where the EU legislature has deliberately decided not to insert one.

So what more favourable standards can Member States apply? In the case of the qualification Directive, the Court says that they must fall within the scope of international protection. It doesn’t elaborate further, but this presumably refers back to the key concept of persecution or serious harm caused by a ‘third party’. Higher standards can therefore apply only in relation to the Directive’s definition of ‘refugee’ and ‘subsidiary protection’. For instance, it should surely be open to Member States to grant subsidiary protection to persons fleeing indiscriminate violence even where the threat is not ‘individual’, or where the applicants are not civilians.

Secondly, what are the implications of the Abdida judgment for the new possibility of ‘alternative protection’? To understand this concept better, it should be compared to the elements of EU law governing international protection: the allocation of responsibility for an application (ie, the ‘Dublin rules’); the substantive grounds for protection; the procedures for determining whether there is a protection need; and the benefits which an individual receives during the determination process (and afterward, if his or her claim is successful).

Beforehand, though, some general points about the Court’s approach to the Returns Directive in Abdida.  When it was initially adopted back in 2008, that Directive was castigated by NGOs as the Devil incarnate, spurring on Member States to all sorts of inhumane treatment of irregular migrants. Over the years, the CJEU’s interpretation of the Directive has (generally speaking) ensured that irregular migrants are better treated than the Directive’s initial critics thought that they would be. The judgment in Abdidagoes even beyond this, and transforms an instrument of repression into (in some cases) an instrument for protection. It’s like going into a vegetarian restaurant, and being served a bacon sandwich.

For meat-eaters – with the obvious exception of Ed Miliband – that would be a pleasant surprise. So what’s the problem? The problem is that it’s difficult to take a law that was drafted to expedite the removal of migrants, and using it to help them instead. The CJEU tried to overcome this in the Abdidajudgment by performing a series of feats of legal alchemy: redrafting the national court’s questions from scratch; turning an obligation to ‘take due account’ of non-refoulement into a ban on removal; making an option to grant the suspensive effect of appeals into an obligation; transforming the ‘principle’ of obtaining health care into a rule; and adding social assistance to the list of benefits which Mr. Abdida has to receive.  Yet despite all this, a lot of effort will still be required to make the Returns Directive function as an instrument to grant individual protection.

To see why, let’s look at those elements of the protection process, starting with the allocation of responsibility for an application. There are no ‘Dublin rules’ applicable to alternative protection cases. So if Paddington Bear managed to make his way to Brussels or Paris, Belgium or France could not invoke formal rules requiring the UK to take him back. The position would be different though, if he had applied for asylum in the UK first, before making his way to another Member State. In that case, the Dublin rules would apply, so in principle the UK would have responsibility for him, since he crossed the UK borders without authorisation before he set foot in any other Member State. But this normal rule would have to be disapplied in his case, since unaccompanied minors can usually change the country which is responsible for their application (see the discussion here).

In fact, in real life, most of those using the ‘alternative protection’ route would likely have applied for asylum first (as is evident from the facts of the Abdida and M’Bodj cases), so the Dublin rules as such would apply to them. According to the CJEU, they could therefore only resist being sent back to the responsible Member State if there is a complete breakdown of the asylum system there. For Paddington, the demented attentions of Nicole Kidman’s character, or the grim reality of British immigration law as described in Colin Yeo’s blog post, would not meet that threshold.

Next, what are the substantive grounds for alternative protection? We know from the Abdidacase that they include at least non-refoulement, and crucially also that the concept of non-refoulement in the Returns Directive and the Charter is wider than the concept of international protection. It covers at least ‘medical cases’, and arguably also other cases that fall outside the scope of refugee and subsidiary protection status but within the scope of Article 3 ECHR (for instance, persons excluded from refugee status or subsidiary protection status). It could also be argued that it covers environmental cases, such as the fictional destruction of talking bears’ habitat, or the very real scenario of sinking islands. Article 5 of the Returns Directive also refers to the best interests of the child, the state of health of the person concerned and family life, so logically these could also potentially be grounds for alternative protection. But it’s not possible to claim alternative protection on the basis only that it’s impossible to carry out a return decision in practice: se the Mahdidecision earlier this year (discussed here).

Moving on to the procedures for determining whether there is an alternative protection need, there are three elements here: access to the process; administrative procedure; and judicial protection. There’s an obvious problem with access to the process, for the Returns Directive cannot be ‘accessed’ unless there is a pending returns decision. So we have the odd scenario where people facing expulsion (Mr. Abdida) are better off in terms of health care than those with residence permits (Mr. M’Bodj). The Returns Directive requires Member States to issue return decisions to those whose stay is not authorised, but it leaves them an option to allow people to stay if they wish; in that case, the return decisions must be rescinded. Otherwise, the Directive is silent on whether return decisions expire or can be renewed or rescinded. There’s no provision for an individual to ask for a return decision to be issued, even where it’s possible that it might make the person concerned better off.

Next, the administrative procedure during the returns process has been addressed in the CJEU recent judgments on the right to be heard in Returns Directive cases, discussed here. It’s notable that the judgment in Boudjlidaspecifically requires national authorities, before issuing a returns decision, to consider any issues related to Article 5 of the Returns Directive. However, on the whole the concept of the right to be heard in Returns Directive cases, as developed by the Court is significantly weaker than the rules on interviews, et al, set out in the asylum procedures directive.

Conversely, as for judicial protection, the suspensive effect of removals set out in the Abdida case is stronger than the equivalent provisions of the asylum procedures Directive. It’s not clear if this would apply to other cases where an ‘alternative protection’ argument might be made though. Article 13 of the Returns Directive also contains other rules, on: the independence and impartiality of the appeals body (which actually need not be a judicial body); requirement for a merits review; access to legal advice; and legal aid. It might be arguable by analogy with the suspensive effect point in Abdida,that at least in some cases, Article 47 of the Charter confers stronger rights than the Directive requires.

Finally, the benefits which an individual receives during the determination process, if his or her removal is postponed, are (as noted above) family unity, essential health care, education for minors, protection for vulnerable persons, and written confirmation of their status. We know from the Abdida judgment that this list of entitlements is not exhaustive, and can be extended to protection of basic needs in individual cases. In that case, the CJEU implicitly accepted that there would be no point providing health care for Mr. Abdida if, while he received it, he was being left to starve to death in the streets.  This is surely not the only type of case where basic needs have to be provided for: should an unaccompanied minor be left without food and shelter also?

What about the two provisos mentioned by the Court: a means test, and Member States’ power to ‘determine the form’ which provision of basic needs take? On the first point, it should be noted that the employer sanctions Directive (discussed here) gives Member States an option – but not an obligation – to permit irregular migrants to take up employment. Possibly Member States could take into account other income being provided by families, friends or charities. On the second point, Member States’ discretion does not extend to an absolute power to detain the people concerned, since the grounds for detention and conditions for detention set out in the Returns Directive would apply. But as regards other aspects of basic needs, Member States would surely be free to decide on the details of housing and financial support. So sadly, Paddington Bear could not insist on staying with Hugh Bonneville’s family – and would have to settle for marmalade from Aldi, not Marks & Spencer’s.

 

Barnard & Peers: chapter 9, chapter 26

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