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

Read More

In light of the Dano judgment, when can unemployed EU citizens be expelled?

 

Steve Peers

Yesterday’s important CJEU judgment in Dano concerned an application for access to benefits, not expulsion. So it has no direct impact upon the latter issue. Nevertheless, it is possible that the judgment has an indirect impact on that issue, due to the Court’s interpretation of the EU citizens’ Directive.

Earlier this year, I wrote a detailed blog post on the issue of when unemployment could justify expulsions and entry bans of EU citizens. The following supplements that analysis in light of the Dano judgment.   

Rules on expulsion

The bulk of the rules on expulsion (and also denial of entry or exit) appear in Title VI of the EU citizens’ Directive, Articles 27-33. These rules concern expulsions or entry bans on grounds of ‘public policy, public security or public health’. However, they can’t be used to justify expulsions or entry bans of unemployed people, because Article 27(1) says that they ‘shall not be invoked to serve economic ends’.

Having said that, the Directive clearly does allow for the expulsion of unemployed EU citizens and their family members.  Article 15(1) states that some of the procedural rules applicable to expulsion on grounds of public policy, et al, ‘shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security and public health’ (my emphasis). On the other hand, the Directive clearly rules out entry bans for such persons: Article 15(3) states that ‘Member States may not impose a ban on entry in the context of an expulsion decision’ within the scope of Article 15(1).   

So when exactly can EU citizens and their family members be expelled other than on grounds of public policy, et al? Article 14(4) says that ‘an expulsion measure may in no case be adopted’ against EU citizens or their family members who are workers or self-employed persons, or who entered the territory as job-seekers, provided that (in the latter case) the EU citizens ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. So Member States can expel job-seekers, provided that the job-seekers fail to meet that particular condition.

What about formerworkers or self-employed persons, ie those who have lost their job in the host State? Article 7(3) specifies that the status of worker or self-employed person (and therefore, presumably, the protection against expulsion) is retained in a number of cases, such as retraining, or if the worker has worked for at least a year. Earlier this year, the CJEU confirmed that the list of cases where this status is retained is non-exhaustive: it also applies, for instance, to those who quit work due to maternity, for a limited period (see my analysis of the Saint-Prix judgment). But Member States could clarify in their national law that the status of worker or self-employed person is lost in any case where the Directive or the case-law permits it to be lost.

It should also be mentioned that once EU citizens or their family members become permanent residents, due to five years’ legal residence, they have full equal treatment as regards social assistance and need no longer meet the conditions which apply to the initial right of residence. So it obviously follows that they cannot be expelled on grounds of unemployment.

Another important rule in the Directive is Article 14(3), which specifies that ‘an expulsion measure shall not be the automatic consequence of…recourse to the social assistance system of the host Member State’ by the EU citizen or family member.

The impact of Dano

A key element of the Danoruling was the scope of the equal treatment rule in the Directive, which applies to social assistance. The Court ruled that the equal treatment rule only applied where a person had a ‘right to reside’ under the Directive, ie the right to stay for an initial three-month period without any conditions besides holding a passport, or for a longer period if they are a worker, self-employed person, student or have ‘sufficient resources…not to become a burden on the social assistance system’. In the latter two cases, they must also have medical insurance; students must submit a declaration as regards sufficient resources. It should be noted that according to the Court’s case law, ‘sufficient resources’ need not be generated by the EU citizen himself or herself, but could be provided by someone else, such as a family member.

Does the Court’s ruling mean that persons without a ‘right to reside’ under these provisions of the Directive have no protection against expulsion? The answer is absolutely not: the judgment does not in any way prevent such persons from relying on the protection set out in Articles 14 and 15.

Let’s look at the reasons why that’s the case. First of all, there’s the wording of the judgment itself: the Court states that its ruling applies ‘so far as concerns access to social benefits’, as regards the ‘equal treatment’ rules. The Court is careful to refer to equal treatment and social benefits throughout its ruling, rather than exclusion from the scope of the Directive entirely.

Secondly, there’s the wording of the Directive, which the Court relies on to justify its ruling. The right to equal treatment in Article 24(1) applies to ‘all Union citizens residing on the basis of the Directive’. But no such qualification applies to Articles 14(3), 15(1) or 15(3).

Thirdly, there’s the overall logic of the Directive. As regards Article 15(1) and (3) in particular, since those who qualify for a right to reside cannot be expelled on grounds other than public policy et al, those provisions would have no meaning unless they applied to people who don’t have a right to reside. Similarly, since an application for social assistance could mean that the EU citizen loses a right to reside, Article 14(3) would have little or no relevance unless it applied to those without such a right.

Finally, the Court of Justice already ruled that EU law rules on expulsion protected those who did not have a right to reside under the EU free movement rules that preceded the Directive, in the Commission v Netherlands case. In particular, the Court ruled that:

To exclude from the benefit of those substantive and procedural safeguards [on expulsion] citizens of the Union who are not lawfully resident on the territory of the host Member State would deprive those safeguards of their essential effectiveness.

Logically the same applies here. Indeed, the rules on expulsions on grounds of public policy et al are also not limited in scope to those who have a ‘right to reside’ under the Directive, other than Article 28(2), which applies only to those who have permanent residence. This wording suggests an a contrario reading of the rest of the rules on expulsion.  

Types of residence in another Member State

It may sound odd to say that parts of the Directive (such as the expulsion rules) can be invoked by all EU citizens, whereas other parts of the Directive (such as the equal treatment rules) can be invoked only by those who have a ‘right to reside’ under it. But there are other circumstances in which EU citizens reside in another Member State, even if there is not a ‘right to reside’ under the Directive.

One such case is where they are children of a former worker, or the parent carer of such children. In that case, they will sometimes have rights not under the Directive, but under the separate Regulation on the free movement of workers (see the Alarapejudgment).

Secondly, they might also have the right to reside under national law, but not EU law (see the Ziolkowskijudgment), although their right to claim equal treatment as regards social assistance in such cases (developed since the judgment in Martinez Sala) seems to have been implicitly overruled by the Dano judgment, which links such equal treatment to the right to reside under the Directive only.

Thirdly, they might be residing irregularly on the territory of the host Member State.

Finally, they might have a child who has the nationality of the host State, due to a prior relationship with a national of that State. In that case, the interesting question arises whether there might be a parallel with the Ruiz Zambrano judgment, in which the Court ruled that the third-country national parent of an EU citizen child could not be expelled, since that would de facto result in the removal of an EU citizen from the territory of the EU. Could an analogous rule apply to the de facto removal of a national of the home Member State to the territory of another Member State? Or would that be unobjectionable, since the child in question would still, as an EU citizen, remain within the territory of the Union?

We can look forward to some interesting jurisprudence from the Court of Justice.

 

Barnard & Peers: chapter 13, chapter 16

Read More

Can unemployed EU citizens be expelled and banned from re-entry?

Steve Peers

As detailed in today’s Open Europe blog post, the idea of expelling unemployed EU citizens has recently been mooted in Germany, and is therefore interesting the critics of EU free movement in the UK. It is therefore a good time to examine in detail in exactly what circumstances EU citizens can be expelled.

The main source of law on this issue is the EU citizens’ Directive, although the primary Treaty rules on the free movement of EU citizens play some role. While the Directive allows Member States to expel citizens on grounds of public policy, public security or public health, this possibility is irrelevant as regards the expulsion of unemployed EU citizens, since the Directive specifies that these grounds cannot be ‘invoked to serve economic ends’ (Article 27(1)). So the rules on expelling EU citizens on grounds of unemployment must be found elsewhere in the Directive.

Expulsion of EU citizens

First of all, it isn’t possible to expel EU citizens or their family members on the grounds of unemployment if they become ‘permanent residents’ in another Member State. This status is gained after five years’ legal residence in the host State (Article 16), or earlier if their work is interrupted due to retirement or permanent incapacity to work (Article 17).

Before that status is obtained, there are two phases in an EU citizen’s residence in another Member State. For the first three months of residence, an EU citizen can stay in another Member State without any conditions or formalities besides showing a residence card or passport (Article 6). However, there is no right to social assistance during that period (Article 24(2)), and EU citizens will lose the right to reside during this period if they ‘become an unreasonable burden on the social assistance system’ of the host State (Article 14(1)).

After the first three months, but before obtaining permanent residence status, an EU citizen’s right to reside in another Member State is conditional. The EU citizen must either: be a worker or self-employed person; have sufficient resources ‘not to become a burden on the social assistance system’; be a post-secondary student who makes a declaration concerning such sufficient resources; or be a family member of an EU citizen satisfying one of the first three conditions (Article 7). EU citizens retain the right of residence as long as they continue to meet these conditions (Article 14(2)). Conversely, they can lose the right to reside if they do not (or no longer) meet these conditions, but the Directive specifies that expulsion ‘shall not be the automatic consequence’ of an EU’s citizen’s recourse to the social assistance system of the host Member State’ (Article 14(3)).

Furthermore, it is not possible to expel a worker or a self-employed person, or a person seeking work, as long as such a person can ‘provide evidence’ that he or she ‘is continuing to seek employment’ and has ‘a genuine chance of being engaged’ (Article 14(4)). Any EU citizens subject to expulsion have the same procedural rights as those being expelled on grounds of public policy, public security or public health (Article 15(1)).

 Three other relevant rules in the Directive are important. First, EU citizens retain the status of worker of self-employed person (and so protection against expulsion on grounds of unemployment) if they are: (a) temporarily unable to work due to sickness or accident; (b) involuntarily unemployed, if they are registered with an unemployment office, although if they have been employed for less than one year, this status might terminate after six months; or (c) if they have started vocational training (a concept broadly defined by EU law), although this must relate to their previous employment unless they are involuntarily unemployed (Article 7(3)).

 Second, Member States cannot set a fixed amount to be considered ‘sufficient resources’, but must consider ‘the personal situation’ of each individual EU citizen (Article 8(4)). Third, if EU citizens die, leave or get divorced, their children retain rights to stay, as long as they are enrolled in education, along with the parent caring for them, even that parent is unemployed and reliant upon the social insurance system (see Article 12(3) of the citizens’ Directive and Article 10 of the Regulation on free movement of workers, as interpreted by the CJEU).

 So, to sum up these rules, which EU citizens can – and cannot – be expelled due to unemployment?

EU citizens cannot be expelled due to unemployment if they: (a) are permanent residents; (b) are workers or self-employed persons; (c) have ‘sufficient resources’; (d) have worked for more than one year and registered as a job-seeker; (e) have worked for less than one year and registered as a job-seeker, for at least a six-month grace period; (f) entered as a work-seeker, and can prove that they are still seeking employment and have a genuine chance of getting a job; (g) are family members of an EU citizen who has the right of residence or permanent residence; or (h) are the parent carers of an EU citizen’s child as described above.

Conversely, EU citizens can be expelled due to unemployment if they are not permanent residents, lack ‘sufficient resources’, and have become an unreasonable burden on the social assistance system, provided that they: (a) are not workers or self-employed persons, or the family members of an EU citizen or the parent carers of an EU citizen’s child as described above; (b) have worked for less than one year, if their grace period of least six months has run out; or (c) entered as a work-seeker, and cannot prove that they are still seeking employment and have a genuine chance of getting a job. Even if these criteria are satisfied, the legislation and case law make clear that each individual case must be considered before expulsion.

So there are small categories of EU citizens who can be expelled due to unemployment, but this is subject to an individual examination and procedural rights. Member States with a more liberal treatment of unemployed EU citizens than the Directive requires can tighten those rules, as long as they do not go so far as to breach the Directive. Clearly a blanket rule providing for the automatic expulsion of anyone unemployed for a particular period would therefore not be compatible with EU law.

Entry bans for unemployed EU citizens 

While the rules on the expulsion of unemployed EU citizens are complex, the rules on entry bans of the unemployed are very simple indeed. Article 15(3) of the citizens’ Directive states clearly that ‘The host Member State may not impose a ban on entry in the context of an expulsion decision’ that was taken on the basis of ‘grounds other than public policy, public security or public health’, ie on grounds of unemployment and poverty.

In light of this provision, it is remarkable that both the German and British governments are considering an entry ban of some sort. Are those plans compatible with EU law? The German intention is to impose an entry ban only on persons who have committed some sort of fraud. This raises the question of the correct interpretation of the ‘abuse of rights’ clause in the Directive (Article 35), which has yet to be clarified by the CJEU.

David Cameron’s proposal is that anyone who is expelled for not working would be subject to an entry ban for 12 months, unless they could prove that they have a good reason to return, such as work. On the face of it, this reason for an entry ban does not fall within the scope of the ‘abuse of rights’ clause, but rather within the scope of the rules which deal with the expulsion of those who are not working and who create an unreasonable burden for the social assistance system – where the Directive clearly rules out any entry ban.

Conclusions

While the Directive does allow EU citizens to be expelled due to unemployment and poverty, this is subject to tight substantive constraints, procedural rights for the persons concerned, and a case-by-case analysis. Moreover, a subsequent entry ban is ruled out. Both the German and British plans fall foul of these rules to an extent, the German plan because, at first sight, it sounds as if expulsion would be automatic, and the British plan because it would provide for an entry ban. Whether these rules should (or could) be changed is an entirely different question.


Barnard & Peers: chapter 13, chapter 16

Read More