Integration Requirements for family reunion: the CJEU limits Member States’ discretion

Steve Peers

Many Member States have, in recent years, required non-EU citizens who would like to join their family members in the EU to pass a form of integration test first. The EU’s family reunion Directive, which governs the position of family members who want to join non-EU citizens, expressly gives Member States the option: family members ‘may be required to comply with integration measures’. However, in the cases of the family members of refugees and highly-skilled migrants who have an EU Blue Card, the integration measures can only be applied after they come to the country.

What are the limits – if any – on Member States’ discretion to impose such requirements? The CJEU answered that question for the first time today, in its judgment in K and A.

Judgment

The Dutch government has implemented the family reunion Directive with an integration requirement: a test on Dutch language and society. There are exceptions for ‘very special individual circumstances’. Family members must pay €350 to take the course, and €110 to buy the study pack. The case concerns citizens of Nigeria and Azerbaijan who had argued that they should be exempt from the course on health grounds, but the Dutch authorities rejected their arguments. They challenged those decisions before the Dutch courts, which asked the CJEU to interpret the Directive.

The Court begins by repeating prior case law which stated that Member States must admit family members to their territory if they meet the conditions set out in the Directive. It then confirms that Member States can indeed impose an integration requirement on applicants for family reunion before entry, unless they are joining a refugee. But the Court applies prior case law by analogy (Chakroun, on the minimum resources requirement in the Directive) to insist that the ‘integration’ condition must be interpreted strictly, and that Member States cannot use it to undermine the main purpose of the Directive: facilitating family reunion.

Next, the Court invokes the principle of proportionality. In this case, it means that any integration measures must be linked to the actual purpose of facilitating family members’ integration. As in its recent P and Sjudgment on integration measures for long-term resident non-EU citizens (discussed here), the Court accepts that a test on the host State’s language and society is a legitimate way of ensuring integration.

However, the Court emphasises that the conditions relating to the integration requirement can’t exceed its aims. This would ‘in particular’ happen if the requirement ‘were systematically to prevent’ family reunion even though, ‘despite having failed the integration examination, they have demonstrated their willingness to pass’ it and ‘have made every effort’ to do so. The integration tests cannot be aimed at ‘filtering’ family members, but instead must actually help them integrate.

The Court went on to require Member States to consider ‘specific individual circumstances, such as the age, illiteracy, level of education, economic situation or health’ of a family member, ‘in order to dispense’ them from the integration test where those circumstances make the family member ‘unable to take or pass that examination’. Otherwise the test would create a ‘difficult obstacle’ to the family reunion right, and circumvent the requirement to make a ‘case-by-case’ decision on applications. Overall, then, Dutch law on integration measures went beyond the limits imposed by EU law (as interpreted by the Court), since the hardship clause in the Dutch law set out fewer exceptions from the integration requirement than EU law allowed.

Finally, the Court ruled (as in prior judgments on long-term residence) that the Dutch fees were too high, also forming an obstacle to the effective exercise of family reunion, in conjunction with travel costs, considering that they had to be paid also when the test was retaken.

Comments

It should be noted that the family reunion Directive doesn’t apply to the UK, Ireland or Denmark. It also doesn’t apply to the non-EU family members of EU citizens. Those people are either outside the scope of EU law (if they join an EU citizen in that citizen’s own Member State), or fall within the scope of the EU citizens’ Directive(if they join an EU citizen in a different Member State). The citizens’ Directive doesn’t allow for any integration requirement. Family members of Turkish citizens are also in a different situation: as discussed here, there is a ‘standstill’ requirement on new restrictions on their family reunion. So new integration requirements can only be introduced on public interest grounds.

Turning to the judgment, it’s no surprise that the Court upheld the validity of integration measures requirements in principle. They are expressly provided for in the legislation and there’s a sound argument that it makes sense for newcomers who aim to settle in a country to learn its language and about its society. But it’s also a potential limit on the right to family reunion.

The Court’s judgment does a good job trying to balance these conflicting principles. Although the Court unfortunately doesn’t mention the right to family life, that right nonetheless suffuses this judgment, as the Court identifies a public interest reason to restrict that right and then subjects this restriction to the principle of proportionality.  So the integration tests must be genuine, not simply an attempt to reduce numbers of new entrants. The Court even suggests that those who are genuinely willing to pass the test and made the effort to do so ought not to be denied family reunion, presumably even if they have not actually passed it.

Indeed, this is a non-exhaustive list of when the principle of proportionality applies (‘in particular’). There is a requirement to consider individual cases and again, the list of circumstances which the Court insists that Member States consider (age, illiteracy, education, finances and health) is not exhaustive (‘such as’). The Court also comes down hard again on the high fees charged to migrants by the Dutch government.

This judgment will be particularly useful to those migrants who have lower incomes and those who come from developing countries, where the level of education is not always as high. (Unlike the Advocate-General, the Court does not discuss the exception from the integration test in Dutch law for migrants from some wealthy countries). While there are good reasons to expect migrants to learn their host country’s language and to know about its culture – for both the sake of both migrants and the host country’s society – there is also a powerful argument that spouses, parents and children should be able to enjoy family life together. In significantly limiting States’ ability to insist that people pass an integration test before they can live with their loved ones, the Court has made the right choice.

Barnard & Peers: chapter 26

Photo credit: vorige.nrc.nl

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Integration requirements for third-country nationals: the first CJEU ruling

Steve Peers

When can a Member State require immigrants to undertake integration courses? The Court of Justice dealt squarely with this issue for the first time in today’s judgment in P and S, which concerned the application of the EU’s Directive on the long-term residence of non-EU citizens. (The UK, Ireland and Denmark have an opt-out from this law).

The judgment has a broader relevance, since the EU Directive on family reunion for non-EU citizens also provides for Member States to adopt integration conditions. On the other hand, EU free movement law does not provide for Member States to impose such conditions on EU citizens or their family members. As for Turkish nationals, the EU-Turkey association agreement does not provide for such a condition either, but Member States may impose one subject to a standstill rule in most cases (see last year's Dogan judgment, discussed here).

Today’s judgment turns on the wording of the long-term residence Directive, which states that Member States ‘may require third-country nationals to comply with integration conditions, in accordance with national law’. The case concerned non-EU citizens who already had long-term resident status under the Directive, but Dutch law still requires them to take civic integration courses and penalises them with a fine every time they fail. A later change to Dutch law requires non-EU citizens to pass these courses before they get long-term residence status, but that later version of the law was not directly at issue in this case.  

Judgment

According to the Court, the requirement to take integration courses does not as such infringe the Directive, first and foremost because the Directive clearly permits an integration condition to be imposed before obtaining long-term resident status. Next, the Court ruled that the requirement did not breach the equal treatment rule set out in the Directive, since Dutch nationals could be presumed to have knowledge of Dutch society and the Dutch language, whereas non-EU citizens could not.

However, that was not the end of the Court’s analysis. It then focussed on whether the national rules undercut the effectiveness of the Directive. The Directive had as its main aim the integration of non-EU citizens, and the Court stated that learning the national language and about the host State could facilitate communication with Dutch citizens, and ‘encourages interaction and the development of social relations’. Acquiring a knowledge of Dutch also ‘makes it less difficult’ to find work and take up training courses. The integration requirement therefore contributed to the aims of the Directive.

The Court went on to say that there were some limits upon what Member States can do, as regards ‘the level of knowledge required to pass the civic integration examination’, ‘accessibility of the courses and the material  necessary to prepare’ for the exams, the level of registration fees and ‘specific individual circumstances, such as age, illiteracy or level of education’. But the Court seemed most concerned about the amount of the fines, which were quite high and would be imposed for every failure, or even where the non-EU citizen had not sat the exam within the required time. The fines were also imposed on top of the high fees to sit the exam. So in principle this aspect of the system infringed EU law, although it was left to the national court to apply the Court’s ruling in practice. Finally, the Court stated that it was irrelevant whether the persons concerned already had long-term resident status, since (in this case) it was not a condition for getting or retaining that status.

Comments

The Court’s ruling makes clear that Member States can in principle impose integration requirements for long-term residence status, subject to the principle of effectiveness. The main feature of that principle in this case was the fees for failing (or not sitting) the exam, in conjunction with the fees for sitting the exam. Obviously the Dutch government is now obliged to lower those fees, and other Member States’ rules could be challenged on the same basis. The ruling is obviously particularly relevant to less wealthy migrants who would struggle to pay the fines and test fees several times over.

Although the Court did not rule in any detail on the other limits which EU law imposes upon national integration requirements, such limits certainly exist, as regards the level of knowledge needed to pass, the accessibility of tests and materials, and ‘specific individual circumstances’. It is not clear from the judgment exactly how Member States are obliged to take account of such circumstances – whether by means of a complete exemption from the test or a different version of it. But it should be noted that the list of specific circumstances mentioned by the Court is not exhaustive (‘such as’).

While the judgment clearly implies that Member States may even withhold long-term residence status if an integration test is not passed, the Court did not rule on that issue as such. So it remains open to argue that there may be stricter limits or other factors to consider when Member States impose an integration condition to acquire that status.

Nor did the Court rule on whether the failure to meet an integration condition could be a ground to lose long-term resident status. The Directive does not list this as one of the possible grounds for loss of that status, and it should follow from the objective of the Directive that the list of grounds which could lead to such a loss of status is exhaustive. This also follows from the structure of the Directive: if failure of an integration test could lead to loss of status, why did the drafters of the Directive only mention integration tests in the clause dealing with acquisition of that status?

Today’s judgment is only the first in a line of cases upcoming concerning integration conditions (the next batch of cases concern the parallel clause in the family reunion Directive). As a starting point, the Court has struck a good balance between ensuring that immigrants fit into society and the need to prevent integration tests forming a disguised means of excluding migrants from ever really fitting in despite their genuine efforts.

Barnard & Peers: chapter 26

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Irreconcilable Differences? Divorce and departure of EU citizens under the Citizens’ Directive

 

Steve Peers

What happens when a marriage between an EU citizen (who has moved to another Member State) and a non-EU citizen ends, after the EU citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce and departure), but those rules appear to conflict with each other nearly as much as divorcing couples do. An Advocate-General’s opinion today in the important case of Singh addresses these issues (there is a reference pending from the UK on these issues also). But unfortunately, this opinion is fundamentally flawed, and the Court of Justice should take an entirely different approach than the one which the Advocate-General recommends.

Background

EU free movement legislation, in the form of the Citizens’ Directive, gives EU citizens the right (subject to certain conditions) to move to another Member State, joined or accompanied by their spouse and other specified family members. But what happens if that marriage ends? According to the CJEU case law beginning with Diatta, a ‘spouse’ remains a spouse (and therefore still entitled to derived free movement rights, if that spouse is a non-EU citizen) even if the couple in question is separated, up until the date when the divorce becomes final. After the divorce, the Court ruled in case law starting with Baumbastthat since the Regulation on free movement of workers gives the children of EU workers (or former workers) a right of access to education, they were entitled to stay on the territory to exercise that right, and the non-EU parent who cared for that child had a right to stay too (regardless of any divorce from the EU citizen), otherwise the child’s right would be ineffective.

Other cases where a marriage between an EU citizen and a non-EU citizen end are regulated by the citizens’ Directive. Article 12(2) of that Directive provides for the non-EU family members to retain residence rights in some cases if the citizen dies. Article 12(3) provides for the non-EU family members to retain residence rights if there are children left behind who are still studying, where the EU citizen dies or leaves the host Member State. Article 13(2) then specifies the right to remain of non-EU family members, in the event of divorce or end of a registered partnership. There are four alternative possibilities for retaining the right of residence in this case. The first possibility allows the right to be retained if the marriage or partnership has lasted at least three years, including at least one in the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After five years’ legal residence, the non-EU family members obtain permanent residence status; the complications arise in the period beforehand).

The Singh case, referred from the Irish courts, concerns three divorcing couples. In each case, the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and theninitiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The opinion

The Advocate-General states that Article 12(3) of the Directive sets out an exhaustivelist of cases where a non-EU family member can retain residence rights after an EU citizen leaves the host Member State (presumably leaving aside the Regulation on free movement of workers, which is only relevant when there are also children involved). Conversely, the Advocate-General believes that Article 13 ‘is intended, in principle, to apply only to cases where both spouses are still residing in the host State until the time of the divorce’. If the EU legislature had wanted to create an exception to the rules on departure for cases relating to divorce, it would have done so expressly.  So Article 13 can only apply where a divorce claim is made before the EU citizen leaves the host Member State. Articles 12 and 13 can only be applied together in the cases referred to in Article 12(3), ie where the EU citizen has departed and there are children in education. This analysis is supported for reasons of legal certainty: it cannot be clear when an EU citizen departs that a marriage will end in divorce or not.

Therefore, in the Advocate-General’s view, once an EU citizen departs from that State without first initiating divorce proceedings, the non-EU citizen left behind loses the right to reside under EU law. On the other hand, if the divorce proceedings are initiated before the EU citizen leaves that Member State, then Article 13(2) applies and the non-EU ex-spouses will retain a right to stay if they meet the other conditions set out there. She admits the inequity in distinguishing between these two cases. However, problems could be avoided if the non-EU citizen accompanied the EU citizen, or began divorce proceedings in the host Member State before the EU citizen left.

She also rejects any relevance of the right to family life and private life referred to in Article 7 of the EU Charter of Fundamental Rights, since there is no family life to protect any longer in the case of a divorce. However, the Charter would protect the position of a non-EU spouse in an ‘intact’ marriage with an EU citizen who had moved to another Member State.

Finally, the opinion confirms prior case law to the effect that an EU citizen can also rely on resources provided by his or her non-EU family member in order to qualify for free movement rights.

Comments

With great respect, this opinion is highly problematic. The starting point is an over-literal interpretation of the relationship between the rules on departure and divorce in the EU citizens’ Directive. This leads the Advocate-General to suggest an interpretation which fails to take account of the consequences of her argument, and leads to results which were surely not intended by the EU legislature.

Let’s start with the purportedly literal interpretation of the Directive. In fact, there is nothing in the wording of Article 12(3) (like the words ‘only’ or ‘except where’) that clearly indicate that it sets out an exhaustive list of cases where non-EU citizens get to stay despite the EU citizens’ departure. We can turn the Advocate-General’s argument on its head here: if the EU legislature had wanted to create an exception to the rules on divorce for cases relating to departure, it would have done so expressly. Anyway, two of the four grounds for obtaining legal residence in the event of divorce (access to children and custody of children) will usually cross over with the grounds to remain after departure referred to in Article 12(3). If Article 12(3) were the only ground for the right to stay after departure, the reference to these cases in Article 13(2) is therefore largely redundant.

As for the argument based on legal certainty, applying a rule based on ‘departure’ of an EU citizen simply does not create any such certainty either. The Advocate-General herself argues for an exception where a marriage is intact despite a cross-border separation, but how can we know if that is the case?  How long a period in another Member State is necessary to count as a ‘departure’? What if the EU citizen decides to come back to the host State? What about cases where the EU citizen steps outside for the proverbial pack of cigarettes – and then goes missing?

Furthermore, the substance of the Advocate-General’s own argument is legally unclear. She mostly refers generally to the departure on an EU citizen from a Member State taking precedence over the rules on divorce set out in Article 13(2). But at one point, she makes a distinction based on whether the divorce application was filed before or after the EU citizen left the host Member State. Which is it? It’s a crucial distinction, because for the other three categories of cases where non-EU citizens retain residence rights despite a divorce (custody of children, access to children, domestic violence), there’s no reference to when the divorce proceedings were initiated. Anyway, her acceptance that the timing of the application for divorce might be relevant for the interpretation of the rules on departure undercuts her basic argument that Article 12(3) constitutes the only basis for non-EU citizens retaining a right of residence following the EU citizen’s departure.

What about the Advocate-General’s suggested solutions? It would be highly awkward, to say the least, to expect the estranged non-EU spouse to accompany his or her family member to another Member State, even though (according to the CJEU’s case law) they would not have to live under the same roof in that country. In any event, the family member would not have a right (under EU law) to accompany an EU citizen who moved to a third country (besides those covered by EU free movement rules: the EEA states and Switzerland). And it would be outrageous to conclude that the estranged non-EU spouse should follow an EU citizen in domestic violence cases.

The Advocate-General doesn’t mention the possibility that the non-EU family member could obtain rights under the EU’s long-term residence Directive, by adding periods of prior legal stay in that Member State to the time spent as the family member of an EU citizen. But not all non-EU citizens have had such a period of prior legal stay; and that Directive anyway does not apply to the UK, Ireland and Denmark.

The prospect of the non-EU spouse bringing divorce proceedings first depends on the interpretation of the EU’s rules on civil jurisdiction, which give jurisdiction to the courts of the Member State where one or both spouses are ‘habitually resident’. But that term is not defined in the Regulation, and so it might be argued that the courts of the host State, at least in some cases, will not have jurisdiction. Anyway, it is not unreasonable to expect the non-EU citizen concerned to devote his or her efforts to saving the marriage – and it’s even possible that he or she is unaware of the problems in it (where an EU citizen is having an affair, for instance).  Also, for the reasons already set out, this possibility should logically only apply where the Directive refers to the initiation of divorce proceedings. But that would mean that bringing proceedings first could not benefit those with custody of children, access rights to children or domestic violence issues.

Finally, it should be noted that the Advocate-General’s interpretation of the EU Charter analysis is simply wrong: Article 7 (which corresponds to Article 8 of the ECHR) does not apply only as regards family life, but also private life. This includes all the relationships which a foreigner has built up in a State, even if he or she no longer has family members there: see the Slivenko judgment, for instance.

So what is the correct approach to this issue? Admittedly, the Directive is very unclear about the relationship between divorce and departure. But the rules on divorce would lose much of their effet utile if they ceased to apply simply because the EU citizen left the country – particularly given that the whole point of EU law in this field is to promote such free movement in the first place. The best way to reconcile the two sets of rules is to rule Article 13(2) can confer a right of residence where a divorce application has been lodged within a reasonable period after the EU citizen has left the country. That’s undeniably vague. But the Directive is full of vague rules, such as the need to assess whether there is a reasonable prospect of finding employment, or to apply a case-by-case assessment of those convicted or crimes or applying for social assistance. And, as pointed out above, the Advocate-General’s alternative of relying upon the amorphous concept of ‘departure’ isn’t any more precise anyway.

 

Picture credit: salon.com

Barnard & Peers: chapter 13

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Damages for breach of EU free movement law: an important Irish judgment

 

Steve Peers

It’s been well over twenty years since the CJEU established, in the case of Francovich, that individuals could sue Member States in damages for breach of EU law. Yet many of the cases concerned have been brought by businesses for lost profit. The CJEU has never had the opportunity to apply the principles relating to damages claims in a case concerning the free movement of EU citizens.

But in its recent judgment in Ogieriakhi, the Irish High Court delivered a ruling on this issue, awarding over €100,000 to the family member of an EU citizen for breach of EU free movement law. This judgment isn’t a precedent as such outside Ireland, but it is a useful indication of how such claims might be made. So I suggest below how it might be particularly relevant to some of the UK's current breaches of EU free movement law.

Background

The Irish judgment follows the CJEU’s ruling earlier last year in the same case (discussed here), which answered the High Court’s questions as regards substantive free movement law and damages issues. Mr. Ogieriakhi had been married to a French citizen in Ireland, then separated from her for several years while living with an Irish woman. Ultimately he got divorced from his French wife, married the Irish woman he had established a family with, and became an Irish citizen.

But in the meantime, he lost his job in the Irish post office, purely on the grounds that he was not legally entitled to be employed. He had been denied a renewed residence permit and had failed in his application to be considered a permanent resident on the basis of the EU citizens’ Directive, which awards that status to third-country national family members of EU citizens after five years’ legal residence.  

In light of developments in CJEU case law, he brought a claim for damages for loss of his job, which was the basis for the High Court asking the CJEU to clarify the substantive free movement law and damages issues. The CJEU ruled, following prior case law, that (a) third-country national family members of EU citizens still had free movement rights as long as the marriage was not formally dissolved, and (b) permanent residence could be acquired on the basis of time spent entirely before the deadline of 30 April 2006 to apply the EU citizens’ Directive, which created the notion of permanent residence. The Irish implementation of the Directive had taken a more restrictive approach on the latter point.

The national judgment

The CJEU judgment makes clear that Mr. Ogieriakhi was entitled to permanent residence status. However, while this will be relevant by analogy in similar cases, it was no longer directly relevant to his immigration status, since the Irish government had awarded him not only permanent residence but also citizenship in the meantime. On the other hand, it was very relevant to his claim for damages.

The High Court judge, Gerard Hogan, applied the EU law principles relating to damages. Mr. Ogieriakhi had to show that: the EU rules conferred rights upon him; the breach of EU law was sufficiently serious; and there was a direct causal link between the breach of EU law and the damages suffered. The CJEU judgment in this case had clarified one aspect of the second point: the mere fact that the national court had asked the CJEU for interpretation of EU law did not as such mean that the breach of EU law was not sufficiently serious.

Applying the principles in turn, the permanent residence rules in the citizens’ Directive aimed to confer rights on individuals. On the second point, the case law of the CJEU on damages says that there must be a manifest and grave disregard of the limits of Member States’ discretion, considering the clarity and precision of the rule breached, the degree of discretion left to Member States, whether the breach was intentional or excusable, the position of EU institutions and the existence of prior case law of the CJEU on the issue. A continuation of national breaches of EU law after a CJEU judgment will always constitute a sufficiently serious breach. In this case, Judge Hogan ruled that: the EU legislation was clear and precise; there was no national discretion; and the breach was not excusable, even though the CJEU did not confirm that pre-2006 periods of residence counted until 2010, since this should have been clear enough from the wording of the Directive. Finally, it was clear on the facts that Mr. Ogieriakhi only lost his job due to the breach of EU law.  

The judge then had to assess the amount of damages payable. Mr. Ogieriakhi had been unable to find work in the difficult economic climate in Ireland, and so was able to claim for several years’ lost wages. To a limited extent, he had failed to mitigate his losses, and so the award was reduced a little as a consequence. The final result was six years’ lost wages, amounting to €107,905, along with a further €20,000 for breach of Irish constitutional law (right to a good name).

Comments

This judgment shows how significant EU law can be in individual cases, in particular in the area of free movement of people. €127,000 is a small sum for a large corporation but a substantial amount for people of modest means, like the Ogieriakhi family. Moreover, Mr. Ogieriakhi doesn’t have to share any of this sum with lawyers, since he represented himself (congratulations to him for his success – and to those in Ireland who obviously taught him EU law very well). Of course, the award shouldn’t be regarded as an unjustified windfall, since it mostly constitutes money that Mr. Ogieriakhi would have earned if he had not been unlawfully dismissed due to breach of EU law.

What are its broader implications? Let’s examine them by applying this case to two other EU free movement issues: the position of EU citizens who move to another Member State to be with their family members, and then seek to return to their own Member State with their family; and the position of those who wish to visit the UK with their third-country national family members, without obtaining a visa.

For the first category of people (often known as Surinder Singh cases), the CJEU clarified last spring (as discussed here) that in principle it should be sufficient for them to spend three months in another Member State exercising free movement rights with their family members.  Then they could return to their home state. The CJEU judgment concerned a Dutch case, and I don’t know what the consequences have been in the Netherlands. But the UK government has continued to apply a ‘centre of life’ test that seems to be clearly more restrictive than the test in the Court’s judgment.

For the second category of cases, the CJEU ruled in December in McCarthy(discussed here) that the family members should not have to obtain a visa, if they had a residence card in their country of origin issued to family members of EU citizens. This was a UK reference, but the UK courts have not followed it up yet. Nor has the UK government changed its practice, as far as I know.

So let’s apply the EU damages principles to these two breaches of EU law. In the first case, the right to return to the UK is based on the Treaty rules on free movement of people, which clearly aim to confer rights on individuals. Any delay in returning to the UK with family members is in principle caused by the UK’s wrongful application of EU law, although there might be other reasons in individual cases why people delayed their return (finding work back in the UK, finishing school years, and so on). As for the ‘sufficiently serious’ requirement, it is clearly met since the Court’s ruling last year, but it harder to argue that it applied before that date, due to the lack of legislation on this issue and the lack of clarity before the Court’s judgment. The calculation of damages due to the UK’s breach of EU law will depend on each case, and it might be harder in many cases to show losses as compared to the Ogieriakhijudgment, where the total absence of work was solely attributable to breach of EU law, and the resulting damages were fairly easy to calculate.

In the second case, the right to visit the UK without a visa is clearly a rule intending to confer rights on individuals. Any costs incurred to get a visa (mainly travel to a consulate) are clearly directly attributable to the breach of EU law by the UK. The breach of EU law is sufficiently serious since the McCarthyjudgment, but in this case it is arguably sufficiently serious beforehand. It is blatantly obvious from the wording of the citizens’ Directive that third-country national family members with a residence card do not need a visa, and there is no provision in the Directive for the UK practice of requiring a family permit as a separate requirement for a visa exemption. Equally it was clear from prior CJEU case law that the concept of ‘abuse of rights’ could only apply in individual cases.

As always on this blog, the suggestions above do not constitute legal advice, and anyone considering legal action should consult a lawyer (unless they are sure that they can represent themselves as well as Mr. Ogieriakhi did). I don’t practice law, so this isn’t an attempt to drum up work for myself. Rather my concern is not only for the individuals who ought to be compensated for the losses caused by the illegal actions of the UK, but also for the broader principle of the rule of law. It simply is not acceptable for the UK government to flout its legal obligations as long as it has, and the more legal proceedings aiming to pressure it to comply with those obligations, the better.

 

Barnard & Peers: chapter 6, chapter 13

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EU Free Movement, Immigration and Asylum Law: 2014 in review

 

Steve Peers

Introduction

The issue of the free movement of EU citizens, as well as immigration and asylum from non-EU countries, has in recent years become one of the most contested issues in EU law. This blog post reviews the large number of legal developments over the last year in these two fields, assessing firstly the controversies over EU citizens’ free movement rights and secondly the tensions in EU immigration and asylum law between immigration control and human rights and between national and EU powers. It’s the second in a series of blog posts reviewing aspects of EU law in the last year; the first in the series (on criminal law) can be found here.

Free Movement Law

The case law of the CJEU on EU citizens’ free movement in 2014 was dominated by the themes of the limits to economic migration and equal treatment, in conjunction with EU citizens’ right to family reunion. On the first point, the most prominent judgment of 2014 was the Dano ruling (discussed here), in which the CJEU took a more stringent approach than usual in ruling that an EU citizen who had not worked or looked for work had no right to insist upon a social assistance benefit in the Member State that she had moved to.

As for the basic rules on qualificationfor EU free movement rights, the CJEU was not asked to rule in 2014 on the definition of EU citizenship. However, a pending case in the UK Supreme Court (discussed here) raises important questions about the extent of EU rules on the loss of national (and therefore EU) citizenship. The acquisition of EU citizenship also proved controversial, in the context of Malta’s sale of national (and EU) citizenship (discussed here).

Furthermore, EU free movement rights usually only apply to those who have moved between Member States. In two linked judgments this spring (discussed here), the CJEU clarified some important exceptions to that rule, as regards EU citizens who have moved to another country to be with their family members and returned, or who are cross-border workers or service providers. Next year, the CJEU will further clarify another important exception to that rule: the Ruiz Zambrano scenario when the non-EU parent of an EU citizen child is expelled to a third country, and the EU child has to follow, resulting in a de facto loss of their EU citizenship. The CS and Rendon Marincases both ask the Court whether that case law applies to cases where the non-EU parent has been expelled following a criminal conviction.

For those EU citizens who do move between Member States, the CJEU delivered an important judgment in the case of Saint-Prix (discussed here), extending the concept of ‘former workers’ beyond the categories listed in the EU’s citizens Directive, to include also (under certain conditions) cases of pregnant women who gave up their jobs before the baby’s birth.

This judgment concerned the continued access to equal treatmentin welfare benefits which former workers enjoy. Indeed, a new Directive on workers’ equal treatment (discussed here) was adopted in 2014, aiming to ensure the effective implementation of such equal treatment rights in practice. Next year, the CJEU will be called upon in the Alimanovic case to clarify whether the limits on EU citizens’ access to benefits set out in Danoalso impact upon work-seekers, who have previously had limited access to benefits linked to labour market access. The Court will also soon rule on students’ access to benefits again in the case of Martens, where there has already been an Advocate-General’s opinion.

The issue of EU citizens’ right to family reunion was repeatedly addressed throughout the year, with the CJEU taking a consistently liberal view. It ruled for a generous interpretation of ‘dependent’ family members in Reyes(discussed here), and confirmed that separated spouses can still qualify for permanent resident status in Ogierakhi(discussed here). It also ruled in McCarthy(discussed here) that non-EU family members of EU citizens could not be subject to a ‘family permit’ requirement to visit the UK, but rather had to be exempt from the need to obtain a visa if they hold a residence card in the country which they live in. This judgment clarified that Member States could only claim that EU citizens were abusing free movement rights in individual cases. On this topic, the Commission produced a Handbook on the issue of 'marriages of convenience' (discussed here). Next year, the Court will be called upon to clarify the application of EU law to divorces (Singh), and for the first time, to same-sex relationships (Cocaj).

Finally, as regards the issue of derogations, the Court took a less generous view of cases involving criminal convictions, ruling in G and Onuekwere that time spent in prison in the host State did not count toward obtaining permanent residence status or the extra protection against expulsion that comes with ten years’ residence.  

Of course, the benefits of EU free movement law are not uncontested. Throughout the year, the debate on the merits of these rules in the UK intensified, to the point where Prime Minister David Cameron insisted that there had to be a major renegotiation of these rules as a key feature in the renegotiation of the UK’s membership of the EU. As I pointed out at the time (see discussion here), many of his demands will be difficult to agree, as they would require Treaty amendment.  

Immigration and Asylum law

There were important developments in all four areas of EU immigration and asylum law in 2014: visas and border controls; irregular migration; legal migration; and asylum.

Visa and borders

In the area of border controls, the EU adopted new legislation on maritime surveillance in the spring (discussed here), following a judgment of the CJEU invalidating the prior Council implementing measure on the same subject. This Regulation contains rules on search and rescue, as well as maritime surveillance and the accountability of Frontex, the EU’s border agency. But it does nothing to ensure the accountability of Member States for cases of ‘push-backs’ (illegal return to the country of origin from the high seas) where Frontex is not involved. Nor does it address illegal refusal of entry for asylum-seekers at the external land borders, as in the case of recent Spanish legislation applying to its North African enclaves.

To be fair, in recent years there have undoubtedly been far more cases of national operations which save migrants’ lives, in particular the Italian Mare Nostrum operation of 2013-14. However, that operation was wound down starting in autumn 2014, and replaced by a much more modest EU-led Operation Triton. It’s possible that more migrants will drown in the Mediterranean as a result.

The EU prefers to focus instead on ever-increasing controls at the external borders. But the negotiations on the EU’s smart borders proposals dragged on throughout 2014, with no agreement on the relevant rules likely before 2016. As for CJEU case law, the important Air Baltic judgment confirmed (following the 2013 judgment in Koushkaki, regarding the visa code) that EU rules on entry at the external borders are exhaustive, leaving no residual discretion to Member States. The Court’s other judgment in this field, on the EU’s passports regulation (the so-called Doktor U case), copied the EU legislature’s usual approach of prioritising border controls over individual rights (in this case, the right to present one’s own name in a passport).

In the area of visas, new legislation waived visa requirements for Moldova and then for a list of other countries (Peru, Ecuador, the United Arab Emirates, many tropical island States), subject (for most of these countries) to the negotiation of visa waiver treaties with the countries concerned. Treaties on visa facilitation with Armenia, Azerbaijan and Cape Verde entered into force, and the EU and Turkey began discussions on a visa waiver process.  Furthermore, the Commission proposed legislation to establish a new ‘touring visa’, and to overhaul the EU’s visa code, in order to encourage tourism and other legitimate travel (including new rules on Schengen visas for EU citizens’ non-EU family members, discussed here). Overall, the long-term trend of gradual liberalisation of the EU’s visa policy continued in 2014.

Irregular migration

The main focus in this field was the EU’s Returns Directive, with its detailed rules on many aspects of the expulsion process. Interestingly, while the CJEU’s case law prior to 2014 had focussed on the grounds for immigration detention (with the exception of the 2013 Filev and Osmanijudgment, concerning entry bans), the case law this year was far more diverse. In the Mukarubega and Boujlida judgments (discussed here), the CJEU elaborated on the right to be heard in the administrative phase, before an expulsion order was issued to an irregular migrant.  The Court ruled that such a right existed even without an express mention in the Directive, although it then proceeded to limit the actual content of that right considerably.

Conversely, the Directive does contain some basic rules on judicial review of detention, and the CJEU interpreted these for the first time in the Mahdijudgment (discussed here). In particular, the CJEU enhanced judicial control over extension of the detention period, but did not clearly answer questions concerning review of the grounds for detention, notably the issue of whether there was a ‘risk of absconding’ purely because a person lacked an identity document.

The CJEU also gave its first ruling on judicial review of removal orders, in the Abdida case (discussed here). It insisted that legal challenges to removal had to have suspensive effect, where the irregular migrant alleged a serious risk to his or her health would result from return to the country of origin. Also, for the first time this judgment addressed the living standards of irregular migrants pending removal (in this case, Mr. Abdida was entitled to basic social assistance, despite the absence of rules on this issue in the Directive). It also confirmed that the list of issues which Member States had to take into account when applying the Directive, including ‘non-refoulement’ (among other grounds), could constitute a reason for non-removal, and took a liberal view of the interpretation of ‘non-refoulement’. In effect, the CJEU ruled that in some cases, the Directive could form the basis of a claim for a form of protection. But in the parallel case of M’Bodj (discussed below) it ruled that such cases did not fall within the scope of EU rules on asylum, and in the Mahdi judgment it ruled that in the ordinary case, irregular migrants who could not be removed gained no particular rights from the Returns Directive, in effect being left in limbo.

Next, the CJEU broke more important new ground in the cases of Bero and others (discussed here), for the first time ruling on detention conditions. It significantly limited the circumstances in which Member States could detain irregular migrants in prisons, rather than specialised detention centres.

Further important questions are pending before the CJEU. Next year, the Court will rule on the extent of Member States’ power to establish more favourable conditions for irregular migrants, by issuing them with fines instead of expelling them (Zaizoune).  It will also clarify the extent of the Member States’ obligation to give irregular migrants a period for voluntary departure (Zh and O). It will clarify whether the limits on the criminalisation of irregular migrants, as established by prior case law, also apply to those who stayed without authorisation (Celaj; the Court passed up a chance to answer this point in the 2014 ruling in Da Silva). And it will clarify the grounds for detention further, in particular interpreting when a ‘lack of cooperation’ by an irregular migrant can justify a longer period of detention (Mehrabipari).

The Returns Directive also received attention from the Commission and the European Migration Network in 2014. For its part, the Commission report (discussed here) offered some indications of how Member States applied the Directive in practice, although many details were missing.  There were further details of the practice regarding detention in particular in the Network report (discussed here). Overall, there were signs that Member States had increased their standards in some areas but lowered them in others. But the Commission’s failure to bring any infringement actions against Member States, or to issue guidance regarding the correct application of the Directive, was disappointing.

There were developments regarding other aspects of irregular migration in 2014. The Commission issued a report on national application of the Directive prohibiting employment of irregular migrants (discussed here), which indicated that Member States were applying that Directive’s coercive rules enthusiastically, but failing to fully apply its rules on protection of migrants’ rights. For its part, the CJEU confirmed that EU employment law applies to third-country nationals, including irregular migrants (see discussion here). Also, the Commission reported for a second time on the application of the EU rules on the immigration status of trafficking victims. Its report (discussed here) indicates that Member States are still unwilling to issue many residence permits to such victims, hindering the effective prosecution of cases.

Finally, the EU’s readmission treaties with Turkey, Armenia, Azerbaijan and Cape Verde also entered into force in 2014. This completes the network of EU readmission treaties to the east and south-east (with the exception of Belarus), and for the first time extends that network to an African state. The CJEU also strengthened the EU’s powers to include readmission clauses in development treaties (as discussed here), presaging more readmission rules in future.

Legal Migration

After four years’ discussion, the EU agreed new legislation on two aspects of labour migration in 2014, adopting legislation on seasonal workers and intra-corporate transferees (the latter directive is discussed here). There was also some progress on the 2013 proposal to amend the rules on students and researchers: the European Parliament adopted its position in the spring, and the Council position was agreed in December. Negotiations between the two branches of the EU legislature will get underway in 2015, but are likely to be difficult due to their radically different views (I’ll look at these positions in detail in a future blog post).

The Commission also reported for the first time on the EU’s flagship legislation on labour migration, the ‘Blue Card’ Directive. The report (discussed here) indicated that Member States were making great use of the many options in the Directive, diluting its intended purpose to serve as a means to attract highly-skilled migrants to settle in the EU. The new EU Commission intends to propose amendments to this legislation (discussed here) to ensure that it is better able to accomplish its goals.

The CJEU played a modest role in the development of EU law on legal migration in 2014, ruling on issues relating to family reunion, long-term residents and students. On family reunion, the CJEU delivered a very disappointing judgment in Noorzai (discussed here) on the calculation of waiting periods for spouses married before the age of 21, paying little account to its prior case law on the need to protect family life and interpret exceptions from the EU’s family reunion Directive narrowly. For the family members of Turkish workers, though, the Court insisted in Dogan(discussed here) on the application of a standstill clause, thereby exempting them from being subject to the more restrictive rules introduced in recent years – unless such rules could be justified on public policy grounds. Next year, the Court is due to rule on the key question of the limits to the imposition of integration conditions as a ground for family reunion (K and A case). The Commission issued some useful (if very belated) guidance on the application of the family reunion Directive (discussed here); it remains to be seen whether it takes any action to enforce the law.

In other areas, the CJEU ruled in Tahir that being a family member of a long-term resident wasn’t enough to become a long-term resident in one’s own right. The Court should rule next year on: when integration conditions can be imposed on long-term residents (P and S; the Advocate-General’s opinion is due in January already); on the scope of equal treatment for long-term residents (Van Hauthem), and on the extent of fees which Member States can charge to get such status (CGIL).

Next, the Court ruled that Member States have no residual discretion to create new conditions for the admission of non-EU students, in the Ben Alayacase (discussed here). This judgment arguably applies by analogy in other areas of EU immigration law too.

Finally, the Court repeatedly rejected arguments that the UK’s opt-out over immigration matters applied to social security matters, in particular as regards Switzerland (discussed here) and Turkey (I’ll come back to the latter case soon).

Asylum

The CJEU’s case law on the qualification directive (which governs the definition and content of refugee and subsidiary protection status) addressed a number of issues. In A, B and C(discussed here), it ruled out a variety of unpleasant methods of assessing the credibility of LGBTI asylum-seekers, while oddly leaving it open to Member States to ask questions based on stereotypes. In Diakite, it ruled that the EU rules on qualification for subsidiary protection, on grounds that there is a risk of a serious threat to a civilian in cases of ‘indiscriminate violence in situations of international or internal armed conflict’, should notbe interpreted consistently with the similar provisions of international humanitarian law. It also clarified another ground for subsidiary protection in M’Bodj (discussed here), ruling that protection on grounds of facing ‘torture or other inhuman or degrading treatment’ did not apply where the person concerned would simply not receive medical treatment in his or her country of origin. Furthermore, Member States’ power to set ‘more favourable standards’ did not extend to permit them to give subsidiary protection as an optionto such people. EU law could only apply in the context of the Returns Directive (see the Abdida case, discussed above). Early next year, the CJEU should give important rulings in the cases of T (regarding terrorism) and Shepherd (regarding a US citizen claiming asylum due to conscientious objection to the Iraq war); there is an Advocate-General’s opinion in both cases already.

As for the reception conditions Directive, the CJEU delivered a liberal ruling in Saciri (discussed here), affirming asylum-seekers’ right to family housing on the basis of a very generous interpretation of the Directive. In the area of asylum procedures, the Court clarified the relationship between refugee and subsidiary protection status in the MM case (discussed here), and took a narrow view of the application of data protection rules to the asylum process in Y and S (discussed here).

Finally, the CJEU did not rule on the Dublin system on responsibility for asylum claims in 2014, except to rule in the Qurbani case (discussed here) that it did not have jurisdiction to interpret Article 31 of the UN Refugee (Geneva) Convention on this context. But its approach was implicitly criticised by the European Court of Human Rights (ECtHR) in the Tarakhel ruling (discussed here). The CJEU quickly reacted with its quite bonkers judgment on the EU’s accession to the ECHR (discussed here), insisting that its peculiar notion of naïve mutual trust in each Member States’ asylum system should prevail over any possibility that the other Court might find a breach of human rights in individual cases. The Dublin system was also the focus of the sole legislative proposal on asylum in 2014 (discussed here), which sought to clarify the rules on unaccompanied minors.

Conclusions

In the area of free movement of EU citizens, the CJEU has made significant gestures to its critics this year, as regards the issue of ‘benefit tourism’ and on the limited legal rights of those who have been convicted of crimes. But it continues to take a robust view of equal treatment rights and of the definition and rights of EU citizens’ third-country family members, even in cases outside the traditional rules. If David Cameron is in a position after next year’s UK general election to insist upon renegotiation of the UK’s EU membership, this will be one of the key political issues facing the EU.

In the area of immigration and asylum, the tension between immigration control and human rights can be seen particularly in the EU’s continued strengthening of its border controls despite the large loss of life in the Mediterranean. It’s often suggested that a more developed EU external policy on asylum could reduce the number of lives lost, but there are many legal and political issues holding up such a resolution. This autumn, I attended a seminar on these issues: there was a consensus among the high-level government experts that an effective policy was simply not politically realistic.

Once non-EU citizens do reach the EU’s territory, however, the CJEU’s relatively liberal interpretation of the legislation on legal migration, asylum and even the Returns Directive means that they enjoy more rights than the initial critics of much of this legislation thought would be likely. Interestingly, the EU’s traditional economic objectives are being increasingly used as justification for the adoption of more liberal rules on visas and labour migration, not only by the EU legislature but also (in the Ben Alaya judgment) by the CJEU.

The Court’s rulings this year have confirmed that EU law constrains Member States’ discretion in this field significantly, not only establishing the exhaustive nature of the EU’s rules on border control on admission of students, but also setting a ceiling as regards the definition of refugee and subsidiary protection status and developing many new rules in the context of the Returns Directive. But there is an interesting new development: the CJEU has opened up a second front, defending EU rules also from any significant influence by international law. This is evident in several areas: the decoupling of the EU’s subsidiary protection rules from international humanitarian law; the ‘channelling’ of the ECtHR jurisprudence on medical cases into the Returns Directive instead of asylum law; the continued implicit snub to international soft law (this year, as regards the UNCHR guidelines on credibility assessment in LBGTI cases); and most obviously the CJEU’s barely suppressed rage at the ECtHR’s mild criticism of the dysfunctional Dublin regime. Time will tell what the effects of the Court’s hubris will be.

 

Barnard & Peers: chapter 13, chapter 26

 

 

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The CJEU confirms short-term free movement rights for EU citizens’ third-country family members

 

Steve Peers

Today’s important CJEU judgmentin McCarthy answers an important question relating to the application of EU free movement law in the UK: can the UK limit the right of third-country national family members of UK (and other EU) citizens to visit the UK?

The judgment concerned a dual citizen of the UK and Ireland living in Spain, with his third-country national wife and their joint child (also a dual British and Irish citizen). UK law requires the family to obtain a ‘family permit’ every time they seek to visit the UK. As discussed in my previous comments on the Advocate-General’s opinion in this case, issues like these would normally only arise for travel between Schengen and non-Schengen states, since anyone holding a residence permit from a Schengen state is free to travel for short periods to other Schengen states without needing a visa, and there are normally no checks at the internal borders of Schengen states.

The EU’s citizens’ Directivestates, among other things, that third-country national family members of an EU citizen who lives in another Member State must be given a ‘residence card’ to prove their legal status. Such a card exempts them from any visa requirement that would normally apply when they visit another Member State, if they visit that State along with the EU citizen family member. There’s no reference to any possibility to demand a ‘family permit’, or anything resembling it. In this case, Mrs. McCarthy had a residence card, so at first sight the UK can obviously not insist upon a de facto visa requirement.

However, the UK sought to justify its policy for two reasons: in order to avoid the abuse of EU law, and in order to apply a special protocol on border controls, which allows the UK (as well as Ireland) to check people crossing the borders between the UK and other Member States to determine whether they have EU law free movement rights or not.

The Court’s judgment first of all examines whether the citizens’ Directive can apply. It ruled that Mr. McCarthy and his wife were (quite obviously) covered by the citizens’ Directive when in Spain. But did the Directive apply when they come to the UK? The Court ruled that it did, since the relevant clause in the Directive (Article 5, on entry) made no distinction between the Member State of the EU citizen’s nationality and other Member States.

Next, the Court ruled that the ‘abuse of rights’ rule, which is set out in an express clause in the Directive (Article 35) could not justify the UK’s action. According to the Court, abuse could only be assessed in individual cases, rather than as regards whole categories of persons. Finally, the Court ruled against the UK’s attempt to justify its measure based on the borders Protocol, since that Protocol only allows the UK to check whether individuals have the right of entry under EU free movement law, not to deny them the right of entry once they qualify for free movement rights. The judgment won't be applied in practice until the UK courts give a further ruling, now that the case returns to the national courts - unless the UK government (improbably) gives effect to the judgment sooner.   

Comments

I should first of all point out, in light of some hysterical press reports, what this judgment does not do. It does not allow all UK citizens to bring their third-country national family members into the UK. For those UK citizens who reside in the UK, there’s nothing in this judgment to change the traditional position that only national law (and so the UK’s restrictive rules on family reunion) applies to their situation, rather than EU law. Simply put, the McCarthy family lives in Spain, not the UK.

There is a modest impact upon those UK citizens who are temporarily living in another Member State with their third-country national family member, planning to return to the UK later on, having used EU free movement law in the meantime to live with their non-EU family members. This is traditionally known in the UK as the ‘Surinder Singh’ route, following an earlier judgment of the CJEU by that name (for Dutch citizens, it’s known as the ‘Belgian route’).

Today’s ruling will make it easier for those British citizens (as well as those who intend to live in another Member State permanently) to visit the UK with their third-country family members. It would only apply to them if their family members have obtained a residence card from their host Member State, though. And it isn’t relevant for their family’s eventual return to the UK: that is still hindered in practice by UK rules which are breach in of the CJEU’s ruling earlier this year which clarified the position of such ‘returnees’ (that ruling is discussed further here).

What about citizens of other Member States who want to live in the UK with their third-country family members? The ruling really has little to do with them, since it only concerns short-term visits. It would be relevant to (say) a German woman with a Turkish husband living in Spain, if the husband has a residence card from Spain and wants to visit the UK with his wife. But it isn’t directly relevant to those who seek to settle in the UK, although in a future case the Court might apply it by analogy. EU free movement law is already generous to EU citizens who seek to move to another Member State with their third-country family members; but this judgment does not make it any moregenerous.

Overall, today’s ruling is a welcome and convincing interpretation of the free movement rules. It’s quite obvious that the EU citizen’s Directive does not allow anything like a ‘family permit’ requirement as a condition before waiving the visa requirement, since that would negate the whole point of that waiver. The Court simply (and correctly) dealt with the point about the ability of dual citizens of the UK and Ireland to rely on the rules in question, by distinguishing between short-term visits and longer stays. It’s also obvious that the UK’s Borders Protocol is subject to substantive free movement law, and only gives the UK the right to check if EU citizens and their family members have free movement rights, not to deny them entry if they do.

This brings us to the point about the ‘abuse of rights’. The Court’s judgment follows its traditional case law in holding that this principle can only be applied to individual cases, and it gives many convincing reasons for applying this interpretation in the context of the citizens’ Directive. However, the UK government demonstrated that there are a sufficiently large number of cases of fraud of residence cards to be concerned about. Such abuses of free movement law cannot be defended in principle, and undermine the legitimacy of the free movement regime for the large majority of British (and other EU) citizens who exercise free movement rights honestly. To address this concern, all Member States should agree in principle to introduce secure residence cards as soon as possible.  

Barnard & Peers: chapter 13

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