The Calais crisis: which Member State is responsible?

Steve Peers

Several thousand migrants are living in poor conditions near Calais, many apparently intent on making it to the UK. Their attempts to find passage via the Eurotunnel are severely delaying travel on both sides of the border. Which country is responsible for them: the UK or France?

At the outset, we should note that this is in a way a clash between two different types of movement within the EU. On the one hand, we have the free movement that the EU specifically tries to encourage: the free movement of goods in the lorries, persons in the trains, and transport services in either context. On the other hand, we have what the EU calls ‘secondary’ movements of (potential) asylum-seekers, which it specifically tries to discourage. EU internal market law is adopted to facilitate the first type of movement, while EU asylum law is harmonised to reduce the incentive for the second type.

Of course, the migrants don’t actually want to shut EU free movement down, since that would defeat their whole purpose. They merely want the lorries to slow down long enough to stow away on board, then continue on their journey – in effect bringing the two types of movement together. It’s the government attempts to prevent this that leads to near-gridlock.

But which of those governments is responsible? Let’s examine the issue first from the migrants’ perspective, and then from the free movement perspective. (While some consider the word ‘migrant’ offensive, I will continue to use it. In my view, it simply refers to a category of people, like teachers or nurses. It would make sense to refer to them as ‘asylum-seekers’ or ‘refugees’ only if it were clearly the case that almost all of them had applied for asylum or qualify as refugees; the available information doesn’t indicate this clearly enough. The word ‘migrant’ doesn’t deny their humanity; it simply explains their situation.)

Immigration and asylum law

Some of the migrants have applied for asylum in France, and so their position is governed by EU asylum law. This includes the Dublin Regulation, which determines which Member State is responsible for their application. That may not be France, but rather the Member State which they first entered – if France can prove that they entered there. If France cannot prove that another Member State is responsible, then it must assume responsibility. The UK would only be responsible for their applications if they have close family members in the UK, living there as refugees or asylum-seekers.

In the meantime, while the asylum-seekers are on French territory, the EU’s Directive on reception conditions for asylum-seekers applies. The EU Court of Justice has specifically ruled, in a case involving France, that this Directive applies to the State where asylum-seekers are currently located, even if the Dublin rules say those asylum-seekers should be transferred to another Member State. It only applies to that other Member State once the asylum-seekers are actually transferred there. This ruling obviously applies a fortiori to asylum-seekers who simply want to travel to another Member State and apply there instead. The whole point of the Dublin Regulation is to deny asylum-seekers exactly that choice. Although the Regulation fails epically in practice to stop asylum-seekers trying to choose the State they would like to apply in, the Directive still applies to ensure minimum living standards for asylum-seekers in the State they are present in.

What does that mean in practice? The Directive requires the Member State where the asylum seekers are present to ensure basic standards as regards welfare and accommodation, among other things. It appears from press reports that these standards are not respected as regards the migrants near Calais.

Furthermore, the latest EU Directiveon asylum procedures, which applied from last week, sets deadlines to deal with asylum claims. That part of the Directive doesn’t apply until 2018, but it could be argued in the meantime that the principle of effectiveness of EU law (which the CJEU has frequently applied in immigration law cases) requires asylum claims to be dealt with efficiently, not just ignored.  As for the substance of asylum law, some press reports suggest that France gives asylum to Eritreans much less often than the UK (and much of the rest of the EU). This may be due to a flawed application of the EU’s Qualification Directive. If this is not being fixed in the French courts by an asylum-seeker’s appeal or a judicial review by NGOs, then the Commission should identify the specific error in interpretation of the law and bring infringement proceedings against France.

But not all of those migrants have applied for asylum. For those people, since it seems unlikely that any of them are legal migrants, this must mean that they are irregular migrants. Their position in France is therefore governed by the EU’s Returns Directive, which specifies that the Member States must issue irregular migrants with a return order and try to enforce their expulsion to a country of origin or transit as soon as possible. The EU Court recently ruled that Member States could not simply issue irregular migrants with a fine and make no effort to remove them. It must equally follow that Member States cannot turn a blind eye to their existence, when (as in the Calais case) a large number of them are openly staying on Member States’ territory.

The Returns Directive does not create an absolute obligation to remove irregular migrants. First of all, a Member State can choose to regularise their position at any time. Secondly, if they apply for asylum, EU asylum law applies, until the end of the asylum process, when they are either recognised as needing protection or their application fails its final appeal. In the latter case, the Returns Directive then applies again. Thirdly, it may prove impossible in practice to remove them to their State of origin or transit, because there is not enough proof of where they come from.  In that case, they remain in a kind of limbo, unless the State chooses to regularise them. Irregular migrants are entitled to emergency health care and essential treatment of illness during their stay. As far as we can tell from press reports, it does not appear that the French authorities are making any active effort to return the irregular migrants in Calais to their countries of origin or transit pursuant to the Directive.  

Free movement law

The CJEU has ruled, in a case involving France, that Member States have a responsibility to prevent free movement of goods being disrupted by private individuals. While States have a margin of discretion exactly how to deal with that private behaviour, it is not unlimited. In that case, farmers’ groups had been vandalising lorries full of other Member States’ produce for years on a regular basis, and many of the perpetrators were known to the police. France was therefore liable for doing nothing very effective to stop this. It was compensating the victims, but this was not enough.

On the other hand, in the case of Schmidberger, Austria was not liable for allowing a disruption to trade by private protesters who briefly blocked a transit route. According to the CJEU, the protesters’ right to demonstrate overrode the free movement of goods, given that the disruption didn’t last very long.

What about industrial action? This is also a separate source of the current restrictions on movement between the UK and France. On this point, the CJEU has been quite critical of trade union action that restricts free movement: in the controversial cases of Viking Line and Laval, it ruled that while EU law recognized trade unions’ right to strike and take other collective action, these rights were easily overruled by EU free movement rules. But those cases concerned the freedom of establishment and free movement of services; the current strikes in France affect the free movement of goods. An EU Regulationadopted after the earlier French case states that while States have an obligation to deal with private disruptions to the movement of goods, this is without prejudice to the right to strike.

Applying these cases to the current problems at the UK/France border, it’s not clear whether the disruptions caused by strikes are an unjustifiable restriction on free movement.  The strikes seem only to concern pay and conditions, whereas in Laval and Viking Line, while the disputes were also indirectly about pay and conditions, they were mainly directed at shutting down free movement due to perceived ‘social dumping’.

What about the disruptions linked to the migrants’ attempts to travel to the UK?  While EU law does recognize a right to asylum, it’s possible to apply for that right in any Member State, and so it is not necessary to travel to the UK to that end. The number of migrants would surely be reduced if France applied its obligations to: process asylum applications; decide on Eritrean claims correctly; and remove irregular migrants who had not applied for asylum. France must also extend basic standards of welfare and housing to asylum-seekers, whether that acts as a 'pull' factor or not. 

Is the UK liable in any way? The UK does exercise border controls on French territory, pursuant to a treatybetween the two countries on ‘juxtaposed controls’, agreed in the context of the Channel Tunnel. But the UK’s obligations under that treaty do not extend to admitting asylum-seekers or other irregular migrants who want to use the tunnel to travel to the UK. More broadly, the UK’s border checks in France don’t turn any part of France into British territory, just as the reciprocal French border checks in the UK don’t turn any bits of Kent French, or transfer St. Pancras station to the Paris metro system.

So France is responsible for the impact on free movement, due to its separate breaches of EU immigration and asylum law. This shouldn’t be seen as a selfish or parochial conclusion; after all, it’s not really radical to say that States are generally responsible for what happens on their territory. That’s the normal rule of public international law, and it’s linked to the basic principle of State sovereignty. The EU rules in this case reflect that principle.

Having said that, allocating responsibility does not as such solve the problem. It would be open to the French government to denounce the treaty on juxtaposed controls, with a negative impact on the UK. So it makes sense for the UK government to offer a contribution to solve the problem, even if it is not obliged to do so. The government has already accepted this principle, paying for the construction of a security fence. And it would equally make sense to make a contribution as regards immigration issues, for instance the costs of removal or basic support, linked to a requirement to move to other parts of France to receive that support.

Barnard & Peers: chapter 26

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Divorce and free movement law: a problematic CJEU judgment

Steve Peers

Yesterday’s CJEU ruling in Singh addresses an important issue: 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. Unfortunately the Court of Justice chose the simplistic approach to this issue, following its Advocate-General’s opinion. My comments below therefore are adapted from my earlier comments on that opinion. (Note that there is also a reference pending from the UK on these issues).

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 Baumbast that 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 (if the EU citizen has moved to another Member State). 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 criteria in Article 13(2) are met, except that the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and then initiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The judgment

The Court rules that in principle third-country national family members of an EU citizen who has moved to another Member State lose their right to reside there under the Directive as soon as the EU citizen moves out of that country. Therefore Article 13(2) does not protect them unless divorce proceedings have started before that EU citizen leaves (assuming that the waiting period condition set out in Article 13(2) has also been satisfied). The later divorce petition cannot revive the right of residence, since Article 13 talks only about ‘reviving’ rights. However, it is open to a Member State to be more generous if it wishes to, as Ireland was in this situation.

Unlike the Advocate-General, the Court doesn’t discuss the possible relevance of the EU Charter of Fundamental Rights. Nor does it comment on Article 12 of the Directive, or the principle of legal certainty, or suggest solving the problem by having the non-EU citizen accompany the EU spouse to another Member State.

Next, the Court reiterates prior case law that the EU citizen and his or her family still have rights under EU free movement law even if the EU citizen is not working but the non-EU spouse is, thereby providing ‘sufficient resources’ for the EU citizen, for the EU citizen doesn’t have to be the source of those resources himself or herself.

Comments

With great respect, this judgment 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 Court to interpret the law in a way which fails to take account of the consequences of the judgment, and leads to results which were surely not intended by the EU legislature.

The starting point is the plain wording of Article 13(2)(a) of the Directive, which in no way states that the EU citizen has to be present in the host Member State when divorce proceedings begin. It only refers to the amount of time that the marriage has subsisted, including time in the host State.

To determine whether the departure of an EU citizen before those proceedings start means that the non-EU family member loses his or her rights, the Court should have interpreted Article 12(3), which specifically sets out rules on departure of EU citizens. However, that provision doesn’t suggest (by means of words like ‘only’ or ‘except where’) that it sets out an exhaustive list of cases where non-EU family members get to stay despite the EU citizen’s departure. Arguably, 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.

The Court’s ruling creates problems for legal certainty, because it will not always be clear if an EU citizen has left the country. What if the marriage is initially intact despite a cross-border separation, (the opinion suggested an exception for such cases)? 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? How can we be sure that the EU citizen is no longer in the host Member State? Who has the burden of proof in such cases – the host State’s authorities, or the family member who has been deserted?

It’s striking that 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. Does the Singh ruling mean that even if these hardship cases, the third-country national family member loses rights as soon as the EU citizen has departed?

It should be noted that the third-country nationals concerned may have rights under other provisions of EU law, for instance if they are refugees, Turkish citizens covered by the EU association agreement with Turkey, or possibly long-term residents who could obtain rights under the EU long-term residents’ Directive by adding periods of prior legal stay in that Member State to the time spent as the family member of an EU citizen. The latter Directive does not apply in Ireland (or the UK or Denmark), but could be relevant for people in the same position in other Member States. As noted above, they would also have rights if they are the carers of children of an EU citizen in the host State, or permanent residents under the EU Directive.

The Court’s ruling creates a ‘rush to court’ incentive for the non-EU spouse, who will need to bring divorce proceedings before the EU citizen leaves the country. The EU’s rules on civil jurisdiction in divorce cases 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).  

So what should the Court have ruled? Admittedly, the Directive is very unclear about the relationship between divorce and departure. But the rules on divorce lose much of their effet utile if they cease 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 better way to reconcile the two sets of rules would have been to rule that 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 Court’s approach of relying upon the amorphous concept of ‘departure’ isn’t any more precise anyway.

 

Picture credit: Telegraph

Barnard & Peers: chapter 13

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The Asymmetry in the Right to Free Movement of European Union Citizens: the Case of Students

Francesca Strumia*, Connor Brown**

 *Lecturer in Law, University of Sheffield

** LLB Law European and International, University of Sheffield

This post reflects the preliminary results of a research project conducted as part of the Sheffield Undergraduate Research Experience programme (SURE). It also builds on a presentation at the International Society of Public Law (ICON-S) annual conference in New York on 2nd July 2015

INTRODUCTION

Concerns for strained public resources, weakened trans-national solidarity and disaffection with the idea of ‘ever closer union’ in Europe have made a first victim in public debate: the free movement of persons. This fundamental freedom at the basis of the project of integration conjures up all the above worries: the guarantee of non-discrimination of European Union migrants regardless of their nationality seems a costly one for Member States to uphold; the ‘minimum degree of solidarity’ that free movement of the non-economically active calls for could not resonate less with the European Union public; and if intended as a right for citizens, rather than just for workers, free movement evokes a ‘federalist’ idea of Europe that is heresy in a union that wants to be looser rather than closer. On this background it is easy to see how what was once the ‘dream’ of free movement has become, in many respects, the ‘nightmare’ to paraphrase the title of a 2014 editorial in the Common Market Law Review.

But how far does the ‘nightmare’ go, legally speaking? Two cases decided in the last few months, Dano and Martens, offer a viewpoint in this respect. The two cases have little in common: one is about ‘welfare tourists’, the other is about students; one was much talked about, the other raised little attention. However they do share one element: they reconfirm a difference in treatment between claims against host Member States and claims against home Member States, difference that has come to characterize the law on free movement of European Union citizens. The former claims are subject to stricter conditions - Dano re-emphasizes that a non-economically active migrant does not have a right to reside in a host Member State, let alone a right to non-discrimination there, if she is a burden for the host Member State (see further discussion of Dano here). The latter are more strongly protected - Martens confirms that rigid residence requirements for exportable study grants are a disproportionate way for Member States of origin to avoid financial burdens.

The result is an asymmetry, in cases involving mobility of the non-economically active, between protection of a right to entry (i.e. the right to reside in a host Member State and claim benefits there on a non-discrimination basis) and protection of a right to exit (i.e. the right to leave and export benefits and entitlements from a home Member State). In part, this asymmetry descends from the very evolution of the Court’s free movement test, from one looking for discrimination to one looking for hindrance to movement, and in particular for “any national measures which even though applicable without discrimination on grounds of nationality, are capable of hindering or rendering less attractive the exercise by community nationals of the fundamental freedoms guaranteed by the treaty” (CJEU judgment in Government of the French Community and the Walloon Government v. Flemish Government). The way the test plays out in non-workers cases signals in any case a shift in the understanding of relevant free movement rights – a shift that leads to question for whom free movement is a financial burden, to what extent it involves transnational solidarity and how close is the union that it reflects.

This asymmetry emerges with peculiar clarity in the law on student mobility, of which Martens was the latest expression. This is a particularly significant field for free movement of persons as it has been the forefront of legal change in the context of the evolution of free movement from a right for workers to a right for citizens. In addition, encouraging student mobility is a self-standing Treaty objective (art 165(2) TFEU).  In numerical terms, the importance of student mobility is also on the rise. Between 2002 and 2012, the number of EU students studying in a EU country other than their own (or in a non-EU EEA country or EU candidate country) underwent an 87% increase, from 354,200 to 663,700, and in a single year between 2011 and 2012 it increased by 23%, from 540,900 to 663,700 (Eurostat data).

THE ASYMMETRY IN THE STUDENTS’ CASE LAW

Upon exploring students’ case law it seems, on a prima facie basis, that the asymmetry reigns true in how the law treats on the one hand certain “entry-type claims” - e.g. residence in a host Member State for purposes of study and right to obtain maintenance aid in a host State, and certain “exit-type claims” - e.g. portable study finance and tax relief in the home Member State for study fees paid in a host Member State. In the former respect, secondary legislation (Directive 2004/38, the citizens’ Directive) recognizes, implementing early case law (Raulin), a right to reside for students, however this is subject to resources and sickness insurance requirements; and maintenance aid is only available to EU students after five years of residence in the host Member State. In the latter respect, case-law has recognized the students’ right to export study grants from a Member State with which they can show a genuine link, and students and their families are entitled to claim tax relief in the home Member State for fees paid in a host State. A counter-trend element is education fees: EU students are entitled to equal treatment with host State nationals in this respect, which arguably strengthens their claim to entry. This is however in keeping with early case law pre-dating the advent of European Union citizenship (Gravier).  Beyond the prima facie contrasts, the Court’s reasoning differs in applying a similar test to claims on the entry and exit side: this is clear in cases concerning respectively maintenance loans and grants in a host State, and portable study finance.

Maintenance Loans/Portable Study Finance

Residence requirements to obtain maintenance aid or to export study finance are at best a hindrance to free movement, and may also be discriminatory. However, in order to avoid migrant students becoming an unreasonable financial burden, it is in principle legitimate for Member States to offer study finance only to students who have demonstrated a degree of integration into the paying State’s society(Bidar). In practice however what is a proportionate requirement for these purposes differs, in the Court’s case law, for host States and home States. In cases on maintenance aid in a host State, the Court has upheld a rigid five year residency rule as a necessary and sufficient means to prove integration (Förster). A fixed pre-determined requirement protects legal certainty, according to the Court.

In cases on portable study grants, the Court takes a different view. It finds all kinds of pre-determined residence requirements – three-year residence (Prinz and Seeberger), permanent residence in home State or grant limited to host State of permanent residence (Thiele Meneses), three-out-of-six-previous years (Martens), disproportionate. The same three-out-of-six rule had been the subject of an infringement proceeding in 2012 in which it was found to be a discriminatory violation of free movement of workers. Interestingly, in the relevant case (Commission v Netherlands) the rule had been considered from a right to entry perspective (entry of migrant workers in the Netherlands and equal treatment in respect of study finance).

What the court suggests in relevant cases is a more flexible approach to assessing integration: taking into account not only length of residence but also qualitative links such as nationality, educational history, family, employment, language skills and other social and economic factors. The court also corroborates its stricter scrutiny of relevant residence requirements by emphasizing the very importance of students’ and teachers’ mobility to the project of integration (art 6(e) and 165(2) TFEU), an element in whose respect the court remains silent in host State maintenance aid cases.

Genuine Links and Financial Burdens

As a result the same court that goes along with host Member States’ reluctance to support entrant students if not after years of residence, is unwilling to hinder students who wish to export entitlements. In particular, an unspoken implication of the Court’s approach is that nationality is an important alternative to residence in proving attachment, to the point that nationals may be allowed to export study finance even from home States they have barely ever entered (Thiele Meneses, involving a German national who grew up in Brazil; Martens, involving a Dutch national who had spent more time in Belgium than in the Netherlands).

Further, the court’s approach indicates that the Member States’ interest in avoiding systemic financial burdens has a different weight when opposed to claims from incoming students than when opposed to claims from outgoing students. This is confirmed in cases on tax relief in a home Member State in respect of school and university fees paid in a host Member State. A Member State can cap relevant tax relief to the same amount applicable for national fees however it cannot completely exclude tax relief for fees paid in another Member State (Schwarz and Gootjes Schwarz; Zanotti). Even if in such situation, no part of the paid fees, whether paid to public or private institutions, will accrue to the coffers of the tax-relieving State.  

Home-Coming Schemes

In a recent case concerning students-family members of frontier workers, Giersch, the Court has given a hint that may suggest a change of direction even in cases regarding students unrelated to migrant workers.  The Court has indicated that promotion of high rates of education among the resident population and promotion of the economy are legitimate State interests; and that a requirement for students in receipt of portable study finance to go back to reside and work in the paying Member State upon graduation is an appropriate means to this end. Recognition of similar home-coming requirements as legitimate restrictions to free movement of students would alter the current balance between right to exit and right to entry. By coupling the right to exit with a duty to return, similar requirements would thwart the natural evolution of a student’s right to leave a Member State into the right to enter and become integrated in another one. This may result into an impediment to free movement of workers. While any conclusion would be premature, it seems likely that the Court would take a highly contextual approach in assessing proportionality of similar requirements (the hint came in a case regarding Luxembourg, a Member State with an unusually low rate of highly educated residents, and a unusually high non-resident working population).

IMPLICATIONS

The asymmetry that emerges in student mobility case law could be articulated, with the necessary adaptations, also in other fields.  This asymmetry has two implications that warrant further research. A first implication is in terms of the financial burden of free movement. Who bears the brunt of free movement in this sense, between home and host States, depends in the case of students. For instance, Member States that are large recipients and moderate senders of EU migrant students may find free movement lucrative: sending Member States will pay for study finance, and the host Member State will gain in fees. An example to explore comes to mind: the United Kingdom, which in 2012 sent about 17,000 students to other EU/EEA/EU candidate countries, and received about 200,000 from other EU/EEA/EU candidate countries (Eurostat data). This in turn suggests further reflection on the nature and reach of transnational solidarity in the EU: on what kind of affiliation model does it really depend (D. Thym) and to what extent should it be tied to the nature of the involved social benefit (F. De Witte) rather than to the position of the involved individual. A second implication is in terms of the meaning of European Union citizenship and its relation to nationality. European Union citizenship is often considered a threat and a weakening factor for the rights and the image of national citizenship (according to Gareth Davies, ‘residence is the new nationality’ in light of European Union citizenship). In this sense it is one of the more ‘federalist’ achievements of the integration project. Actually at least as regards free movement of students, European Union citizenship rather reinforces national citizenship. It makes rights tied to national citizenship exportable and thus extends the reach of national citizenship across its national borders. The flip side of this implication is that renouncing European Union citizenship or losing it would have the effect of shrinking national citizenship back within its original boundaries. 

Further Reading

Francesca Strumia, ‘Individual Rights, Interstate Equality, State Autonomy: European Horizontal Citizenship and its (Lonely) Playground in Trans-Atlantic Perspective’

 (forthcoming in Dimitry Kochenov (ed) EU Citizenship and Federalism: the Role of Rights,

CUP 2015)

Floris De Witte, ‘Who Funds the Mobile Student? Shedding Some Light on the Normative Assumptions Underlying EU Free Movement Law’ (2013) 50 C.M.L.Rev. 203

Daniel Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Rights for Economically Inactive Union Citizens’ (2015) 52 C.M.L.Rev. 17

Gareth Davies, ‘“Any Place I Hang my Hat” or Residence is the New Nationality’ (2005) 11 E.L.J. 43

Barnard & Peers: chapter 13

Photo: Francesca Strumia

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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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Benefits for unemployed EU citizens: the CJEU may complicate David Cameron’s renegotiation strategy

 

Steve Peers

The issue of the free movement (or ‘immigration’) of EU citizens between Member States has become highly controversial politically, especially in the UK. In particular, their access to benefits remains highly contentious. The CJEU has the chance to clarify some key issues on this point, in the pending case of Alimanovic, in which an Advocate-General issued an opinion today.

Today’s opinion is not binding, so we must wait to see if the CJEU is willing to follow it. But if it does, the Court will complicate the Conservative party’s strategy to renegotiate the UK’s EU membership. Even if the result of the upcoming UK general election means that the Conservative party’s plans are moot, the judgment will still be relevant to the Labour party’s less far-reaching plans to restrict EU citizens’ access to benefits.

Background

The CJEU ruled in November 2014 in the well-known Dano judgment (discussed here) that unemployed EU citizens who moved to another Member State could not access social benefits there, if they were not looking for work. This ruling did not apply to other categories of unemployed EU citizens: those who moved to another Member State and were looking for work there, and those who had worked there already and become unemployed. Today’s opinion concerns both of these categories.

According to the EU citizens’ Directive,unemployed EU citizens looking for work in another Member State cannot obtain social assistance benefits from another Member State if they have not worked in that State. However, the case law of the CJEU states that those citizens can rely on the free movement of workers rules in the EU Treaty in order to claim benefits related to the labour market.

As for those EU citizens who have worked in that Member State and become unemployed, the Directive says that they retain worker status (and therefore access to benefits, including social assistance) if they have worked there more than one year. They also retain worker status if they have worked there for less than that period, although in that case they only keep that status for six months. However, again relying on the Treaty free movement rules, the CJEU has ruled that worker status can be retained in other cases too, for instance by women who have stopped work briefly due to maternity (see discussion here).

The Conservative party position is that EU citizens working in a Member State should have to wait four years to get access to tax credits, social housing and housing benefits, as well as no taxpayer support for job-seekers. As I discussed before, these are the first and eighth of Cameron’s nine objectives in the planned renegotiation of EU membership (in so far as it concerns ‘migration’ from the rest of the EU). The Labour party position is that EU citizens should have to wait two years for benefits.

The case concerns Swedish citizens (a mother and her children) who had lived in Germany before, left for a number of years, and then returned there. The mother and oldest child then worked in Germany briefly, but became unemployed. Do they have access to benefits?

The Opinion

The Advocate-General first clarifies that the benefits are social assistance, not labour-market related. So job-seekers in general do not have access to them; only former workers do. But as part of this analysis, he reaffirms the current rule that the Treaty gives job-seekers access to labour-market related benefits.

Then he examines whether people who become unemployed after short periods of work in a host Member State can be considered former workers – and therefore retain access to social assistance benefits – in cases besides those listed in the Directive. He argues that they can, in part on the basis of the EU Treaties, and that any Member State which refuses to extend such benefits to them automatically breaches EU law. Instead, a Member State must consider the benefit request on a case-by-case basis, assessing whether there is a sufficient link with the labour market of that State.

Comments

If it is followed by the CJEU, the Opinion makes both the Conservative and Labour plans to renegotiate UK membership as regards EU citizens’ access to benefits harder to achieve. The crucial point is the extent to which renegotiation concerns a Treaty amendment, which is far harder to achieve (unanimous agreement of all Member States, and national ratification) than an amendment to EU legislation, like the citizens’ Directive (qualified majority of Member States, proposal from Commission and agreement of European Parliament).

First of all, the Opinion reaffirms that the Treaty requires that all job-seekers get access to labour-market related benefits. So only a Treaty amendment could overturn that rule.

Secondly, the Opinion asserts that the Treaty requires that former workers might have access to benefits, on a case-by-case basis, if they have stopped work in circumstances other than those listed in the Directive. This goes further than the status quo, since the CJEU has only established this point as regards women interrupting work for maternity. The workers concerned have only been employed in Germany for short periods, well below the four-year waiting period that the Conservatives want, or even the two-year period that Labour supports.

It remains to be seen whether the Court will accept today’s opinion, or instead opt for a judgment that more obviously reflects the political sensitivities surrounding unemployed EU citizens’ access to benefits – as it plainly did in the Dano judgment.

 

Barnard & Peers: chapter 13

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