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

 

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

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

 

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

 

The Case

 

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

 

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

 

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

 

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

 

Comment

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Barnard & Peers: chapter 26

Photo credit: bagnewsnotes.com

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

 

Elspeth Guild, Kingsley Napley

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

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

Where does the right to be heard come from?

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

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

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

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

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

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

What does the right mean?

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

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

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

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

What is the purpose of the right to be heard?

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

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

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

A Right to Legal Assistance?

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

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

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

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

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

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

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

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

Conclusion

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

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

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

 

Annex

 

Extracts, judgments in Conka v Belgium

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

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

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When can irregular migrants be detained in prisons?

Steve Peers

Yesterday’s Opinion, for the Court of Justice of the European Union (CJEU) by Advocate-General Bot, addresses an important legal question: when can irregular migrants be detained in ordinary prisons (as distinct from specialised detention centres for migrants) pending their expulsion?

This issue is addressed by the EU’s Returns Directive, which (among other things) sets out rules on the grounds for detention and detention conditions of irregular migrants pending expulsion. Most of the CJEU case law on this Directive to date has concerned the grounds for detention; yesterday’s Opinion (covering three different cases) was the first time that the Court has been asked to rule on aspects of detention conditions.

Conditions of detention in the Returns Directive

The main topic of yesterday’s opinion was Article 16(1) of the Returns Directive, which states that ‘Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners’.

The remainder of Article 16 sets out rules concerning communication with the outside world, vulnerable persons, treatment of illness, the role of NGOs and the supply of information to detainees. Article 17 contains special rules for detention of minors and families.

However, Article 18 of the Returns Directive allows Member States to derogate from Article 16(1), as well as two other rules on detention (concerning the timing of judicial review and the obligation to provide separate accommodation for detained families pending removal). This derogation can apply where there is ‘an exceptionally large number of third-country nationals to be returned’ which ‘places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or its administrative or judicial staff’. However, Germany (the Member State concerned by yesterday’s opinion) apparently did not claim that this derogation was applicable.

The Opinion

Two of the three cases (Bero and Bouzalmate) raised the same question: can a federal State argue that it is justified to keep immigration detainees in prisons on the basis that some of its constituent states do not have immigration detention facilities at all? The third case (Pham) raised the question of whether a detainee could consent to being held in a prison instead of a detention facility.

The answer to the first question turned in part on differences in the wording of the Directive between the various versions in the official languages of the EU. In the English version, Member States can detain irregular migrants in prisons if they ‘cannot’ detain them in specialised facilities. According to the Opinion, all other language versions suggest the same meaning – apart from the German version. Instead, the German version allows Member States to detain irregular migrants in prisons if they ‘do not have’ specialised facilities (my translation of the French language version of the opinion).

In the Advocate-General’s view, the version in the majority of language versions had to be preferred. Since specialised detention facilities were the rule, and detention in prisons was the exception, it would not be acceptable to allow (parts of) Member States to avoid applying the normal rule simply because they did not have immigration detention facilities. Implicitly, they simply have to build them.

He rejects a number of arguments to the contrary suggested by Germany and the Netherlands. In his view, Article 18 (which, as we have seen, allows for a derogation from Article 16(1) where there is an exceptionally large number of people to be returned) is the only possibility for an exception from Article 16(1). Surely this is correct, since if the drafters of the Directive had wanted to provide for further possible exceptions, they would have done so expressly, given the importance of the general rule that migrants should be detained separately from ordinary prisoners.

Also, he is not convinced by the argument that the federal structure of Germany (and, by analogy, other federal states such as Austria) justifies such a result. While the national identity of Member States, protected by Article 4(2) of the TEU, protects their federal nature, it does not exempt them from complying with their EU law obligations, but only leaves it to them to make arrangements within the framework of their national constitutional order to ensure that their EU obligations are complied with. In any event, German law in fact allows the different Lander to cooperate as regards immigration detention spaces. This approach has to be correct: Article 4(2) should be seen as a safeguard against the EU trying to alter the constitutional foundations of each Member State, not as a carte blanche allowing Member States to justify non-compliance with EU law.

He also rejects the astounding argument that prison accommodation is a ‘more favourable’ rule for immigration detainees than specialised facilities (the Returns Directive allows Member States to apply such more favourable rules as regards any of its provisions). Germany and the Netherlands argued that prison detention benefited irregular migrants because it meant that they were closer to friends and family, and could enjoy some of the extra facilities available in prisons. But the Advocate-General, quite rightly, cannot accept that detaining migrants in a prison, as if they were convicted criminals (or criminal suspects subjected to pre-trial detention) could be considered ‘more favourable’ for them.

Next, he rejects arguments based on cost and overcrowding. After all, as he points out, holding immigration detainees in prisons will also lead to overcrowding, and refurbishing prisons so as to provide for strict separation of ordinary prisoners and immigration detainees entails costs too.

Finally, in the other case (Pham), the Advocate-General rejects the possibility that detainees could consent to waive their rights to be held separately from ordinary prisoners. From a literal perspective, the Returns Directive does not provide for a waiver and given the importance of the rule of detaining migrants separately from ordinary prisoners, such an exception cannot be inferred. The Advocate-General also rightly lays stress on the lack of power of detainees as compared to the immigration and prison authorities. Simply put (borrowing from Noam Chomsky), it is easy in such cases to manufacture consent.

It might also be added that where EU legislators want to provide for the possibility of waiving rights, they usually provide for this expressly. A well-known example is the possibility of employees to agree to work more than 48 hours a week, provided for in the EU’s Working Time Directive. Another example, thematically closer to the issue in the Pham case, is the possibility of criminal suspects to waive some of the rights set out in recent EU legislation. Strikingly, in both these cases, there are detailed safeguards in the legislation aiming to ensure that the rights can only be waived freely and with knowledge of the consequences. If the EU legislature had wanted to allow any of the rights in the Returns Directive to be waived, they would surely have provided for such safeguards here too.

Again, the Advocate-General rejects the argument that the possibility of waiving his rights was a ‘more favourable rule’ for Mr. Pham. Member States had argued that he could spend more time with people from his own age and nationality – even though all the persons concerned were convicted criminals or criminal suspects.

Consequences of the judgment

Assuming that the CJEU follows this opinion in its judgment, what will be the consequences? First of all, what are the consequences for national administrations? It should be noted that according to the Commission’s recent report on the implementation of the Directive, Article 16(1) is being breached in nine Member States.

Member States might be tempted to imagine that they can get around the Court’s judgment by criminalising more breaches of immigration law, and/or providing for longer sentences for immigration offences and using such laws more frequently in practice. So then they could say that the migrants are in fact ordinary prisoners and could not benefit from this judgment. However, the CJEU has already ruled several times (see for example the El Dridi judgment) that the imposition of custodial sentences for immigration offences is in principle problematic, since it delays and complicates the expulsion of the person concerned – which is the main point of the Directive.

Alternatively, Member States might be attracted to use the exception from the rules provided for in Article 18. To do so they will have to show that there are ‘exceptionally large’ numbers posing an ‘unforeseeable’ burden. The Opinion suggests that this exception might be applicable in the Member States dealing with migrants crossing the Mediterranean. But the numbers entering the EU via this route have sometimes gone down as well as up, and it may be questioned whether the numbers concerned can actually be regarded as ‘unforeseeable’.

Another way to reduce the numbers being detained is to stop the migrants reaching the EU Member States’ territory in the first place – although this is easier said than done.

The simplest way to reduce the numbers of irregular migrants being detained, and to avoid the attendant costs of building detention centres, is of course not to detain so many irregular migrants in the first place.

Secondly, as for the consequences for migrants, the CJEU has ruled in the G and R judgment that there is no obligation to release migrants from detention, just because there has been a breach of their right to be heard, unless it can be shown that such a breach affected their defence. But surely these cases are distinguishable, because the breach of the legislation concerns whether migrants should be detained in prisons in the first place. So unless: (a) immigration detainees can indeed be separated from ordinary prisoners, assuming that the Member State can show that it ‘cannot’ detain them in separate facilities; or (b) the Member State can show that the Article 18 derogation can be validly invoked, such detainees have to be released from prisons, and not detained there in the first place.

Finally, as regards the consequence for asylum-seekers, the second-phase reception conditions directive includes an essentially identical rule (Article 10(1) of that Directive) as regards their detention in prisons. In the absence of any reason to interpret the rules in that Directive differently, it must follow that the judgment in these cases will be applicable also to asylum-seekers’ detention, following the deadline to apply that Directive in July 2015.

Conclusions

The suggestion that detaining migrants in prisons constitutes ‘more favourable conditions’ for them as compared to specialised detention centres would be comic, if it were not for the seriousness of the consequences for the persons concerned – as evidenced by Mr. Bouzalmate’s suicide attempt.

Taken as a whole, the Advocate-General’s opinion neatly brings together excellent arguments about the literal interpretation of the Directive with an appreciation of what a humane interpretation of the Directive would suggest. Although Advocate-General Bot has a reputation for taking a strict view in cases involving convicted criminals, his Opinion in this case shows that he has a very clear understanding of the importance of the difference between convicted criminals and migrants who have committed no crime (leaving aside immigration offences). His analysis certainly ought to be followed by the CJEU.


 Barnard & Peers: chapter 26

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Do potential asylum - seekers have the right to a Schengen visa?

By Steve Peers

In its recent judgment in Koushkaki, the Court of Justice clarified some key questions regarding the process of applying for a Schengen visa, in effect ruling that applicants have a right to a visa if they meet the necessary conditions. In doing so, it implicitly raised further questions about the grounds to refuse visa applications made by potential asylum-seekers.

The judgment

Mr. Koushkaki, an Iranian citizen living in Iran, applied to the German authorities for a Schengen visa to vist Germany. The German authorities refused, on the grounds that he did not have proof of subsistence for his stay or return. These are among the conditions for entry set out in the Schengen Borders Code, and also apply to the issue of Schengen visas under the EU visa code.

So Mr. Koushkaki applied again, this time explaining that he wished to visit his brother, who resided in Germany after obtaining asylum there. This second application was again rejected, this time on the grounds that Mr. Koushkaki had not shown an intention to return. Mr. Koushkaki challenged this decision, and the national court, believing that the authorities had refused Mr. Koushkaki on grounds not referred to in the visa code, asked the Court of Justice (inter alia) whether Mr. Koushkaki had the right to a visa if the conditions in the code were satisfied and none of the grounds for refusal listed in the code were applicable.

The Advocate-General took the firm view that there was no right to a Schengen visa, but the Court took a different approach. It reworded the national court's main question, answering instead the question whether the list of grounds for refusal of a visa set out in the Code was exhuastive. In the Court's view, the list was exhaustive, taking account of the wording, context and objectives of the Code.

First of all, the wording of the Code was ambiguous. Secondly, the context included: a reference to only those grounds for refusal listed in the code; a standard form for giving reasons for a rejection of a visa application which provided for no other reasons for refusal besides those listed in the Code; the wording of the legislation establishing the Visa Information System; and the link between the grounds for refusal of a visa application and the grounds for revocation or annulment of a visa which has already been issued. Since a Member State can annul or revoke a visa issued by another Member State, this presupposed that the 'conditions for the issue of uniform visas are harmonised', so there could be no differences between Member States as to the grounds to refuse a visa.

As for the objectives of the visa code, the preamble to the code states that it aims to 'establish the conditions for the issue of uniform visas'. Also, the preamble refers to 'the facilitation of legitimate travel', which would be jeopardised if Member States could add their own grounds for refusal of a visa application. So would the objective of 'preventing different treatment of visa applicants', also referred to in the preamble. Such variations in national practice would also encourage 'visa shopping', ie applications being to the Member State with the most favourable rules (leading to what a labour or company lawyer would call a 'race to the bottom').

Having said that, the CJEU did emphasise that Member States' authorities had a lot of discretion in applying the standard criteria. They have to consider the 'personality of the applicant', his or her integration in the country of origin, the 'political, social and economic situation of that country' and the possible threat to public policy, internal security, public health or international relations of the Member States. Some of these factors are not, in fact, expressly referred to in the visa code.

The Court of Justice then addressed the national court's other questions. It clarified that there need only be 'reasonable doubt', not certainty, that an applicant had the intention of leaving the country when the visa expired, and spelled out the criteria which had to be taken into account. Finally, it required the national court to interpret national law consistently with the judgment, even though that national law provided for residual discretion to refuse visa applications.

Comments

The Court's judgment is surely relevant by analogy to applications for most of the various forms of short-stay visa referred to in the visa code: airport transit visas, multiple-entry visas and visas with limited territorial validity. It is doubtful whether it applies to the issue of visas as the border, since the code says that such visas 'may' be issued if the relevant conditions are met. More obviously, the judgment is relevant by analogy to the Schengen Borders Code, given the similar wording and context of the rules on refusal of entry in the latter code, along with the use of a similar standard form to give reasons to refused applicants.

It is also arguable that the judgment applies by analogy to some or all of the EU's legal migration legislation: indeed the same German court has sent questions to the Court of Justice on exactly this point, as regards the students' Directive (Ben Alaya).

On the key question of the 'right' to a Schengen visa, the Court's ruling is welcome and its reasoning is convincing, in light of the structure and objectives of the visa code. It is notable that the Court sets out its ruling in technical language, referring to the exhaustive nature of the list of grounds for refusal, rather than a 'right to a visa'. But this is a distinction without a difference: national authorities must nonetheless issue the visa if the conditions are satisfied. As Mary Poppins might say, the different wording is simply a 'spoonful of sugar' to help the national authorities accept the Court's ruling.

Anyway, as the CJEU makes clear, those authorities have a lot of discretion left when they apply those criteria. As noted above, some of the factors referred to by the Court are not referred to in the Code. In particular, assessment of the applicant's 'personality' surely requires a psychiatrist, but it is doubtful that many consulates employ any of them.  

The position of potential asylum-seekers

According to the United Nations (Geneva) Convention on refugee status, a person cannot be considered a refugee until he or she is outside the country of origin. But of course a person fearing persecution on Convention grounds (or needing subsidiary protection) might well apply for a visa with the intention of leaving the country of origin in order to apply for asylum in the country which issues the visa.

On the facts of the Koushkaki case, it is strking that when Mr. Koushkaki mentioned that his brother had obtained asylum in Germany, the German authorities refused his application for a visa on the grounds that he had not proved his intention to return. Since Mr. Koushkaki might be assumed to have had life experiences comparable to his brother's, the national authorities might well have feared that he intended to apply for asylum in Germany. (Incidentally, the Dublin rules would have allocated Germany responsibility for his claim, if the German authorities had given him a visa).

Can potential asylum-seekers rely on this ruling to insist on the right to a Schengen visa? The key problem is that they do not have an intention to leave the country which might issue the visa to them. They would need to offer enough evidence that they do have such an intention to dispel any reasonable doubts of the national authorities. While such evidence might not be offered honestly, Article 31 of the Geneva Convention implicitly makes clear that the need to flee persecution justifies breaches of immigration law.

While Article 21(1) of the visa code refers to a need to decide whether an applicant presents a 'risk of illegal immigration', this clause should not be used against potential asylum-seekers, since they have the right to stay in the territory (subject to the conditions in the asylum procedures Directive), and the case-law of the CJEU on the Returns Directive confirms that they cannot be considered to be irregular migrants.

Potential asylum-seekers would also have to meet the other relevant conditions, such as holding a valid travel document, having subsistence, and not being listed on the Schengen Information System. For many, these conditions will be hard to fulfil.

However, as suggested above, following Koushkaki it could be argued that Member States are obliged to issue a visa with limited territorial validity (ie valid in one Member State only: this is good enough for an asylum-seeker to flee persecution, provided that the Member State concerned complies with its obligations towards asylum-seekers).  Such visas 'shall' be issued if the Member State 'considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations', to derogate from the rules in the Schengen Borders Code (among other things). Arguably the binding nature of the relevant international obligations, along with the EU Charter of Fundamental Rights and the use of the word 'shall', override the discretion suggested by the words 'consider it necessary'.

If this argument is correct, then the Koushkaki judgment has opened a significant crack in the wall of 'Fortress Europe' for would-be asylum-seekers.


Barnard & Peers: chapter 26

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